Science and Technology Law Commons^™

Algorithmic Adjudication And Constitutional Ai—The Promise Of A Better Ai Decision Making Future?, April G. Dawson

SMU Science and Technology Law Review

Algorithmic governance is when algorithms, often in the form of AI, make decisions, predict outcomes, and manage resources in various aspects of governance. This approach can be applied in areas like public administration, legal systems, policy-making, and urban planning. Algorithmic adjudication involves using AI to assist in or decide legal disputes. This often includes the analysis of legal documents, case precedents, and relevant laws to provide recommendations or even final decisions. The AI models typically used in these emerging decision-making systems use traditionally trained AI systems on large data sets so the system can render a decision or prediction based …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Neither Here Nor There: Redefining “Presence” For A Virtual Criminal Justice System, Brandon M. Draper

SMU Science and Technology Law Review

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials …

Computers, Credit, And Human Dignity, Jonathan Weinberg

SMU Science and Technology Law Review

Credit scores determine a person’s life chances. The credit scores we’re all used to, calculated by Equifax, Experian, or TransUnion, take as inputs a person’s payment history, loans, current debt, and similar financial information. But that world is changing. Modern alternative data models for credit scoring can go so far as to include an individual’s educational record, criminal history, shopping behavior, or telephone patterns. Activists, regulators, and scholars have expressed serious concerns about these new credit systems. Do they classify applicants on unfair or arbitrary grounds? Do they perpetuate, or even amplify, bias and pre-existing inequality?

Participants in this conversation …

Generative Ai In The Attorney-Client Relationship: An Exercise In Critical Revision And Client Management, Michael L. Smith

SMU Science and Technology Law Review

Discussions of generative AI in legal practice and education often assert that this technology will lead to a sea change in legal writing, research, and revision. While some of the more breathless proclamations deserve skepticism, there’s little doubt that this technology may generate new forms of headaches for those in the legal field—particularly once it’s in the hands of clients or opposing counsel who wish to use this technology to save the time, money, and effort required for complex legal tasks.

This essay proposes an exercise template for law students that illustrates how generative AI technology may be misused or …

Judging Our New Judges: Why We Must Remove Artificial Intelligence From Our Courtrooms Now, Kieran Duffy Newcomb

Honors Theses and Capstones

In this paper, I explore some of the ways in which artificial intelligence might enhance the sentencing process through recidivism prediction technology. Notably, this technology can increase the accuracy of risk predictions and the speed with which sentencing decisions are reached. I then show, however, that the recidivism prediction technology is likely to turn into what data scientist Cathy O’Neil calls a Weapon of Math Destruction. The potential harmfulness of this technology is due not to the inherent nature of the technology, but the symbiotic relationship it will have with our already harmful criminal justice system. I argue that the …

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Trademarks On The Blockchain: Nft Domains And Collisions, Jelena Laketić

Michigan Technology Law Review

Blockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.

This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs …

A Series Of Historical Accidents, Christopher S. Storm

Michigan Technology Law Review

The Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit …

Innovation Originators, Tabrez Y. Ebrahim, Rafeel Wasif

Michigan Technology Law Review

Asian Americans are one of the most striking and undertheorized ethnic groups in the field of innovation. While a prolific ethnic group when it comes to being named as inventors on U.S. patents, very little has been written on this observation, perhaps because of previously limited datasets and unwieldy data analysis on ethnic backgrounds about patenting at the United States Patent & Trademark Office (USPTO). Research on inventor diversity and ethnicity in innovation has begun to explore some ethnic groups, but a more holistic account should focus on one particular overlooked group. Recently, entrepreneurship studies concerning ethnicity have shown that …

An Artificially Intelligent Approach To Medical Device Monitoring, Cristian A. Rodriguez

St. Thomas Law Review

The integration of artificial intelligence (Al) in medical devices, particularly the subset of Al technologies known as machine learning, has sparked a new era of precision and efficiency in healthcare. AI/ML-enabled medical devices are proving to be invaluable as they have already improved patient diagnosis, treatment, and disease prediction. As machine learning continues to be adopted in medical devices, the U.S. Food and Drug Administration (FDA) continues to receive more marketing submissions and pre-submissions for AI/ML-enabled medical devices, a trend that is expected to increase over time. While the FDA has made significant progress in proposing regulatory frameworks that will …

The Twenty-Six Words That Created The Internet… And Then Maybe, Kind Of, Destroyed Society: Understanding And Reforming Section 230 Of The Communications Decency Act, Nandor F. R. Kiss

Michigan Technology Law Review

In 1996, Congress passed Section 230 of the Communications Decency Act, a twenty-six-word law that immunized early internet companies from civil immunity arising from hosted, third-party content. At the time, the law was necessary to allow fledging companies to innovate without fear of bankruptcy-inducing lawsuits and ultimately helped to create the internet as we know it. To the extent this civil immunity has contributed to the vast technological advances over the past three decades, it should be lauded. However, the internet has dramatically changed in the past thirty years, and the law has been relied upon to protect companies in …

Selling Surveillance, Asaf Lubin

Articles by Maurer Faculty

Almost everything we do on the Internet is achieved through Internet-connected devices, such as smartphones and laptops. This reality has produced a new sprawling industry of commercial spyware corporations: a vast network of companies specializing in selling security vulnerabilities in the very devices we all use. These companies provide clients with tools and services for unauthorized access and surveillance. Investigative reporting has unearthed the scope and nature of the systematic abuses produced by these technologies. Around the world, government actors rely on spyware to target human rights activists, journalists, and dissidents with almost no accountability.

Spyware companies have long defended …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

The Rights Of Donor-Conceived Persons In Colorado: America's First Foray Into Abolishing Anonymous Gamete Donation, Madeline Ash

Indiana Law Journal

On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United …

The Criminal Metaverse, Eldar Haber

Indiana Law Journal

Virtual worlds are no longer science fiction. New technologies that promise a world lacking physical or mental boundaries are finally becoming a reality. Commonly referred to as the metaverse, this innovative technology opens a world of opportunities for individuals everywhere to experience an almost unlimited virtual dimension where they can play, work, own property, engage in sexual activities, and fulfill their dreams. Unlike previous virtual worlds, the metaverse could be a gamechanger as it offers an immersive experience. It feels authentic to the users and will become even more realistic with advancements in haptic technology. With its benefits, the technology …

A Theory Of Genetic Dimensions In The Law, Yaniv Heled, Liza Vertinsky, Ana Santos Rutschman

Indiana Law Journal

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

Framing Online Speech Governance As An Algorithmic Accountability Issue, Mehtab Khan

Indiana Law Journal

Automated tools used in online speech governance are prone to errors on a large-scale yet widely used. Legal and policy responses have largely focused on case-by-case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino

IP Theory

The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second …