Science and Technology Law Commons^™

Abandoning The Iron Horse: Railroad Rights-Of-Way And The Implied Doctrine Of Reverter On Indian Reservations, Arthur B. Macomber

Public Land & Resources Law Review

Land title issues on Indian Reservations are notoriously but unnecessarily complex. Unsettled land titles and the resulting fragile land ownership status on Indian Reservations are well-known factors impeding productive land uses, the cure of environmental degradation, and Indian sovereignty, ownership, and control over sustainable land uses. Some lawsuits even question the existence of a Reservation itself. Land titles to many parcels on Indian Reservations have been split into thousands of owners. Using existing law and principles of equity, abandoned Reservation rights-of-way of many types do not have to sit unused and economically unproductive. Future lawsuits and other wasteful societal friction …

Powering Progress: How Ferc Order 2023'S Cluster Study Process Aims To Revolutionize Grid Interconnection, Lowell J. Chandler

Public Land & Resources Law Review

This Article analyzes Order 2023’s cornerstone reform: the replacement of the traditional first-come, first-served serial queue process with a more sophisticated first-ready, first-served cluster study approach. The Article also provides a basic introduction to utility regulation in the United States. While Order 2023’s change promises to revolutionize grid interconnection, the Article also considers whether additional reforms may be necessary to fully realize FERC’s vision of an efficient, equitable interconnection process.

Ai And The Erosion Of Law’S Moral Authority, Joseph Avery

BYU Law Review

Over the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.”

In the legislative realm, there are AI tools devoted exclusively to drafting statutes, and the use of AI by members of the U.S. Congress is now officially sanctioned. These developments have led to a focus on technical and performance-related issues with AI, including those of accuracy and reliability, …

Not Her Fault: Ai Deepfakes, Nonconsensual Pornography, And Federal Law’S Current Failure To Protect Victims, Taylor Percival James

BYU Law Review

No abstract provided.

Cox Communications, Inc. V. Sony Music Entertainment, No. 24-171 (U.S. June 30, 2025), Charles Duan

Amicus Briefs & Court Filings

Under the Copyright Act, “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright." 17 U.S.C. §501(a). This Court has also recognized two categories of secondary liability, which means liability for the copyright infringement of another. Those two categories are “contributory” liability and “vicarious” liability. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U. S. 913, 930. This case concerns contributory liability, which requires that a provider intended its service to be used for infringement. A copyright owner can show the requisite intent in two ways. First, it can show …

Protect The Clearwater V. Montana Department Of Environmental Quality, Gillian Ellison

Public Land & Resources Law Review

In Protect the Clearwater v. Montana Department of Environmental Quality, the Montana Supreme Court reinforced that injunctive relief provisions in the Montana Environmental Protection Act are the exclusive avenue for injunctive relief once a claim has been filed under MEPA. The Court clarified that parties may not separately seek preliminary injunctions under Montana’s general injunction statute when a MEPA action contesting the same permit is already pending.

Securing Americans' Genetic Information: Privacy And National Security Concerns Surrounding 23andme's Bankruptcy Sale. Hearing Before The House Committee On Oversight And Government Reform, United States House Of Representatives, 119th Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Montana Trout Unlimited V. Montana Department Of Natural Resources, Kelly Brady

Public Land & Resources Law Review

A proposed copper mine located near tributaries of the highly protected Smith River in central Montana set off a series of lawsuits over the use of water in the state. After a number of administrative hearings and subsequent trials, the only substantial question left was the status of “mine dewatering.” The Montana Supreme Court decided whether 1,500,000 gallons of water removed annually from the inner workings of a mine should require a water use permit as a beneficial use or if it exists outside of the regulatory jurisdiction of the Montana Department of Natural Resources under the Montana Water Use …

Montana Environmental Information Center. V. Montana Department Of Public Service Regulation, Sadie Giles

Public Land & Resources Law Review

Montana Environmental Information Center v. Montana Department of Public Service Regulation provides insight into the discretion of the Public Service Commission and its impact on renewable energy development in Montana, especially in the wake of the repeal of the Renewable Power Production and Rural Economic Development Act. This case evaluates the Commission’s decisions to grant waivers to NorthWestern Energy for its 2015 and 2016 renewable energy purchase obligations under the Act. The Court found the Commission’s decisions were arbitrary and unsupported by substantial evidence and appropriate reasoning. Montana’s renewable portfolio standards had proven effective in promoting renewable energy and economic …

Tribal Sovereignty And The Limits Of Federal Evidence: Authenticating Indian Status In United States V. Harper, Anthony J. Shirey

Public Land & Resources Law Review

In United States v. Harper, the Tenth Circuit reversed a conviction for violent crimes committed in Indian Country because the government failed to provide admissible evidence proving that the defendant was an “Indian” under federal law. At first glance, the ruling appears to turn on a technical evidentiary issue concerning the exclusion of a tribal membership verification letter under the business records exception. Yet the case reveals something deeper: a jurisdictional framework that conditions the recognition of tribal identity on federal evidentiary norms, and in doing so, limits the functional sovereignty of tribal governments in federal courts. This Note seeks …

Friends Of The Inyo V. United States Forest Service, Sarah J. Leopard

Public Land & Resources Law Review

Friends of the Inyo v. United States Forest Service provides necessary guidance for categorical exclusion analysis under the National Environmental Policy Act. The Ninth Circuit Court of Appeals held that the United States Forest Service wrongfully construed NEPA as permissive of applying different categorical exclusions to various components of the same mining project until the project was excluded in its entirety from further environmental review. The Court’s holding establishes two essential rules for evaluating mining proposals on public lands: (1) a categorical exclusion, when applied under § 220.6, must cover the entire scope of a proposed project; and (2) the …

Session 6: Ai Regulation: The Role Of Washington State Legal Organizations, Alicia Burton, Michele Carney, Ryan Harkins, Craig Shank, Drew Simshaw, Christon Skinner, Leslie Veloz

SITIE Symposiums

In session six of the SITIE 2025 Symposium, the panelists discuss how legal institutions in the State of Washington are responding to the challenges surrounding artificial intelligence (AI). Being aware that AI is continuing to evolve and will inevitably be integrated more into the legal field, this session discusses the benefits and concerns of AI and what legal institutions like the Board of Judicial Administration, Washington State Bar Association (WSBA) Committee on Professional Ethics, and the Washington State Bar Association Legal Technology Task Force are doing to educate lawyers and what changes, if any, are being done to address AI …

Session 5: Ai Regulation From Domestic Sources: From Where And When?, Mark Geistfeld, Margaret Hu, Emile Loza De Siles

SITIE Symposiums

In the wake of high-profile calls for AI regulation from tech leaders like Sam Altman and Brad Smith, domestic efforts to shape AI governance in the U.S. are becoming more urgent. Moderated by Professor Steve Tapia, this panel of legal scholars examined the evolving field of AI regulation, here from domestic sources, focusing on gaps in legal literacy, the limits of tort law, and the promise of more transparent frameworks. Panelists explored the challenges posed by the “Black Box” nature of AI, including trade secret protections, opaque algorithms, and their impact on tort causation and discrimination. They highlighted tensions between …

Session 4: Analyzing The Benefits Of Artificial Intelligence To Racially Inclusive Democracy, Spencer Overton, Jeffrey Omari

SITIE Symposiums

This keynote discussion explored the intersection of artificial intelligence (AI), race, and democratic governance, focusing on the challenges and opportunities AI presents for creating a racially inclusive democracy. Professor Overton argued that while AI has transformative potential, it is currently influenced by actors and systems that may unintentionally (or intentionally) weaken racial equity. The spread of AI technologies—without proper safeguards—has opened new pathways for reinforcing structural inequalities, especially in the democratic process.

Session 2: The Cases For Industry Self-Regulation And Government Regulation Of Ai, Boaz Ashkenazy, Kevin Bartholomew, Kevin De Liban, Christopher Yoo

SITIE Symposiums

In Session Two of the SITIE 2025 Symposium titled “The Cases for Industry Self-Regulation and Government Regulation of AI,” moderated by Seattle University Technology Ethics Initiative Director and Professor Onur Bakiner, the panelists discuss their perspectives and experiences with AI regulation. They share observations about the industry and delve into the topics of AI complexity, concerns around accountability, the shift to agentic AI, the current state of AI regulation, existing legal guardrails, and their outlook on AI regulation.

8th Annual Innovation And Technology Law Conference: Regulating Artificial Intelligence: From Where And When?, Steven Bender

SITIE Symposiums

Since 2018, the Seattle University School of Law has presented an annual late spring/summer conference on innovation and technology, shifting to a virtual conference in 2020. The virtual format fosters inclusion of national and even international speakers (as this year with Marie-Charlotte Roques-Bonnet, Data Protection/AI Consultant & Research Lead, ID side.eu, joining from France), and participation from a broad base audience, which this year included over 200 registrants who joined live or watched the recording.

Foreword, Mark D. Janis, Jennifer D. Oliva, Alivia D. Benedict

Indiana Law Journal

In this issue we are delighted to present papers from the symposium “Law and Technology at the Crossroads: A Centennial Summit,” held in Bloomington in November 2024. The symposium originated from the collaborative efforts of the Indiana University Maurer School of Law’s law and technology faculty and the Indiana Law Journal’s editorial board, notably 2023–2024 Editor-in-Chief John Vastag and 2024–2025 Executive Articles & Symposium Editor Paige Wynkoop. The Maurer School of Law’s Center for Intellectual Property Research provided funding, as did Indiana University through its Research Conference Grant Program. Indiana University’s Ostrom Workshop and the Luddy School of Informatics, Computing, …

Multiplicity As An Ai Governance Principle, Michal Shur-Ofry

Indiana Law Journal

As AI becomes increasingly embedded in our daily lives, this Article explores one of its critical, yet overlooked, societal implications: the propensity of large language models (LLMs) to generate mainstream, standardized content, potentially narrowing their users’ worldviews.

Taking a close look at the technological underpinnings of LLMs, the analysis suggests that—due to the combination of human judgments, training datasets, and inherent features of the underlying technological paradigm—LLMs’ outputs are likely to be geared toward the popular and to project to their users concentrated, mainstream worldviews, sidelining a broader spectrum of perspectives. This Article explores the asymmetrical power relations between LLMs …

Unpacking Open Source Bio, Jorge L. Contreras

Indiana Law Journal

For at least a quarter of a century, life science researchers around the world have undertaken initiatives loosely based on principles, goals, and institutional structures derived from the open source software (OSS) movement—approaches that I term “open source bio.” Yet open source bio lacks a clear definition and set of guiding principles. Given public calls for greater openness in life science research, it is useful to understand how open source bio projects have fared over the past quarter century: how they were structured, what they hoped to achieve, and, as social and policy experiments, whether or not they were successful. …

Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion

Indiana Law Journal

In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …

On Software Bugs And Legal Bugs: Product Liability In The Age Of Code, Asaf Lubin

Indiana Law Journal

Despite software’s ubiquity in modern life, its classification within product liability law remains unsettled. Is software a product, a service, a good, a component, a medium, a force, or something else altogether? Under the Restatement (Third) of Torts, a product is defined as a “tangible personal property distributed commercially for use or consumption.” But has this definition been embraced by states? And how has it been applied in the courts, since its adoption some twenty-six years ago?

Through a fifty-state survey and the canvassing of all relevant case law, this Essay reveals widespread doctrinal inconsistencies within the common law. Some …

Defragging Ownership: How Corporations Sliced, Diced, And Sold The Bundle, Joao Marinotti

Indiana Law Journal

Personal property ownership is in a precarious state, facing structural, economic, and legal assaults. As a result, the autonomy, security, and privacy that ownership once protected have been displaced by a tenuous reliance on opaque contractual arrangements and corporate goodwill. Owners no longer enjoy the unfettered right to access, use, and control their personal property. Through a range of seemingly unrelated business practices, companies have leveraged their growing power to disaggregate the property bundle into compartmentalized rights and privileges, which can then be individually licensed, leased, restricted, or even revoked. Purchases no longer mark the end of buyer-seller relationships; instead, …

Unlocking Platform Data For Research, Niva Elkin-Koren, Maayan Perel, Ohad Somech

Indiana Law Journal

Digital platforms, which control unique access points to the rich data stored on their servers, have become a “living lab” of real-time information. Scientists and researchers increasingly use platform data for various purposes, such as training machine learning (ML) systems and Natural Language Processing (NLP) models, and for studying diverse fields such as medicine, humanities, and social sciences, including the influence of digital platforms on society. However, researchers increasingly encounter significant barriers when attempting to access platform data. Although platforms typically lack proprietary rights over the data itself, they exert strong control over its use by imposing digital locks and …

Moving Slow And Fixing Things, Scott Shackelford, Janine Hiller, Christos Makridis, Iain Nash, Kathryn Kisska-Schulze, Hannibal Travis

Indiana Law Journal

Silicon Valley, and the U.S. tech sector more broadly, have changed the world in part by embracing a “move fast and break things” mentality popularized by Mark Zuckerberg. While it is true that the tech sector has attempted to break with such a reactive and flippant response to security concerns, including at Microsoft itself through its Security Development Lifecycle, cyberattacks continue at an alarming rate. As a result, there are growing calls from regulators around the world to change the risk equation. An example is the 2023 U.S. National Cybersecurity Strategy, which argues that “[w]e must hold the stewards of …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Indiana Law Journal

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

Design Patent Law's Three Little Words, Mark D. Janis

Indiana Law Journal

U.S. design patent law protects the visual characteristics of articles of manufacture. For many years, major manufacturers of athletic footwear have protected their visually iconic designs with design patents, fueling a global market valued at nearly $100 billion. Today, however, shoe design has arrived in the digital universe. Digital sneakers such as Gucci’s Virtual 25 and Nike’s “Our Force Ones” can be “worn” only in virtual worlds but have substantial real world economic value. Yet U.S. design patent law makes it difficult—some would say impossible—to protect those designs, on the ground that they do not satisfy the statutory requirement for …

Can Ai, As Such, Invade Your Privacy? An Experimental Study Of The Social Element Of Surveillance, Aileen Nielsen

Indiana Law Journal

The increasing use of AI rather than human surveillance puts pressure on two long-used cultural and (sometimes) legal distinctions: as between human and machine observers and as between content and metadata. Machines do more and more watching through advancing technology, rendering AI a plausible replacement for humans in surveillance tasks. Further, machines can commit to surveil only certain forms of information in a way that humans cannot, rendering the distinction between content and metadata increasingly relevant too for crafting privacy law and policy. Yet despite the increasing importance of these distinctions, their legal importance remains in four key domains of …

Ninth Amendment Neurorights, Joseph A. Tomain

Indiana Law Journal

Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature …

The Mirage Of Artificial Intelligence Terms Of Use Restrictions, Peter Henderson, Mark A. Lemley

Indiana Law Journal

Artificial intelligence (AI) model creators commonly attach restrictive terms of use to both their models and their outputs. These terms typically prohibit activities ranging from creating competing AI models to spreading disinformation. Often taken at face value, these terms are positioned by companies as key enforceable tools for preventing misuse, particularly in policy dialogs. The California AI Transparency Act even codifies this approach, mandating certain responsible use terms to accompany models.

But are these terms truly meaningful, or merely a mirage? There are myriad examples where these broad terms are regularly and repeatedly violated. Yet except for some account suspensions …

The Overstated Cost Of Ai Fairness In Criminal Justice, Ignacio Cofone, Warut Khern-Am-Nuai

Indiana Law Journal

The dominant critique of algorithmic fairness in AI decision-making, particularly in criminal justice, is that increasing fairness reduces the accuracy of predictions, thereby imposing a cost on society. This Article challenges that assumption by empirically analyzing the COMPAS algorithm, a widely used and widely discussed risk assessment tool in the U.S. criminal justice system.

This Article makes two contributions. First, it demonstrates that widely used AI models do more than replicate existing biases—they exacerbate them. Using causal inference methods, we show that racial bias is not only present in the COMPAS dataset but also worsened by AI models such as …