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TRANSCRIPT: The Roberts Court and Free Speech Symposium
Get PDFOn April 9, 2021, the Brooklyn Law Review gathered a panel of First Amendment scholars for a symposium on the Roberts Court\u27s free speech jurisprudence. This transcript captures the panelists\u27 diverse perspectives on the free speech themes highlighted by the Roberts Court\u27s free speech jurisprudence
Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, and Why Personhood May Be the Answer
Get PDFArtificial intelligence (AI) is a part of everyday life. From our phones, to social media accounts, to online shopping, AI is present and enhances our daily experiences. One area where AI has a heavy (and an increasing) presence is the medical industry. Just as humans make mistakes, so does AI. However, when a human doctor makes a mistake, they can be sued for malpractice, but when AI makes a mistake, who is to be held responsible? Because tort law was designed with humans in mind, it may be hard to apply to medical AI, who’s “black box” algorithms make their thoughts and decisions hard to decipher. This note examines current American tort law and suggests that the current tort regime is inadequate when applied to medical AI. This note suggests adopting a framework similar to that proposed by the European Parliament in 2017, in which medical AI could be granted quasi personhood and insured directly, alleviating the burden of determining liability and allowing victims to seek redress right away
Section 230 and the Problem of Social Cost
Get PDFThis Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, as Coase observes, the ability of private markets to deal with such externalities is limited when the harmful effects are widely distributed, so that many of the entities that are harmed do not have incentives to bring private actions against their sources. It also notes that this problem is compounded in the case of information that is distributed over the internet because of the difficulties involved in identifying, and obtaining jurisdiction over, the ultimate sources of such information. For that reason, it concludes that private actions to limit the dissemination of harmful materials are likely to be more effective if interactive computer services, in addition to information sources, can be held liable by their victims both because the services will often be easier to identify and because they have greater ability to engage in content moderation. However, it also observes that this is likely to be of limited effectiveness, in part because of the difficulties of bringing private actions against these services both because of the cost, delay, and uncertainty of litigation and because some services may obtain substantial economic benefits when they disseminate harmful information. For these reasons, the Article concludes that policy makers should consider expanding the range of carve outs, provisions that eliminate the immunity from liability that interactive computer services currently enjoy when they are involved in the dissemination of certain types of harmful materials, and that empowering the government to bring civil actions against interactive computer services for disseminating specific types of harmful information should also be considered
Retail Investors: Why Online Investing Platforms Need More Regulation and Oversight
Get PDFRetail trading, in the age of the COVID-19 pandemic, has reached impressive and consequential levels, mostly due to the rise in popularity of online investing platforms. These platforms greatly increase the accessibility of the stock market and the ability to create wealth for young investors. However, this recent surge in activity has dramatically affected the stock market in various ways and led to many negative outcomes for retail investors themselves. This Note uses several examples, surrounding the use of the platform Robinhood, to argue for action by the SEC and FINRA to implement additional protections for retail investors who utilize such platforms. Specifically, this Note calls for FINRA to modify its existing rules regarding account opening and approval and to provide a more detailed account approval process. This Note also argues for required education for retail investors looking to access certain complex and high-risk trading products
Corpus Linguistics and the Law: Extending the Field from a Statistical Perspective
Get PDFDuring the last 5–10 years, corpus-linguistic applications have slowly become more widespread in matters of legal interpretation; specifically, we see more court cases in which corpus-linguistic data are brought to bear on the (original) ordinary/public meaning of expressions in legal texts (in briefs and judicial opinions), but also more academic research focusing on if/how corpus-linguistic methods can shed light on the plain/ordinary meaning of words in a legal text.While this development is welcome, it also comes with shortcoming/risks, some of which are now hotly debated in recent and forthcoming law review articles. In particular, there is a whole family of currently debated shortcomings/risks that is virtually exclusively due to the fact that several early adopters/promoters of corpus methods for legal applications have been massively simplifying the field of corpus linguistics to what they know and what seems convenient.This is not useful for several reasons, one of which is that it makes corpus-linguistic applications in the legal field more vulnerable to various lines of attack in the legal literature. More important, however, is that reductionist corpus-linguistic applications also undermine the strength of the cases that corpus linguistics can (help) make. In this paper, I will discuss a few applications that showcase the wider range of methods that proper/full-fledged corpus analysis has to offer: one case study on historical trends in corpus data based on frequencies augmented with required but never-used additional statistics such as dispersion and uncertainty/robustness estimates; the other involves applying semantic vector spaces and word embeddings to explore (heuristically) the scope of terms
The Fight Over Frankenmeat: the FDA as the Proper Agency to Regulate Cell-Based “Clean Meat”
Get PDFIn recent years, concern over the environmental, animal welfare, and human costs of animal agriculture has spurred an increased demand for nonanimal sourced protein. This has led to significant innovation in food technology. As part of this trend, food scientists have developed a process for in-vitro cultivation of meat cells to produce protein that is biologically and nutritionally identical to meat from traditionally raised and slaughtered animal sources, but that involves neither animal agriculture nor animal slaughter. This lab-grown “clean meat” represents a new era in food technology and is already having an effect on the existing meat industry. In 2019, the Food and Drug Administration and the United States Department of Agriculture announced joint regulatory oversight of clean meat. This agreement is problematic, as the USDA is captured by the traditional meat industry, has consistently failed to protect consumers’ health and safety, and the Department’s statutory infrastructure and mandate is ill-suited to oversee meat production that involves neither agriculture nor animal slaughter. The FDA, on the other hand, is not beholden to the meat industry, and has extensive experience overseeing the development and introduction of new food products into the market. For these reasons, the FDA should use its power to determine “Standards of Identity” for foods to define clean meat in such a way that the FDA will be able to assume exclusive regulatory oversight of this burgeoning and exciting new food technology
Autonomous Weapons Systems and the Procedural Accounta- bility Gap
Get PDFThe development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human fault and, therefore, they should be attributed to the deploying State. The second part of the article looks at the obligations of AWS deploying State, namely the obligations of due diligence enshrined in Common Article 1 of the 1949 Geneva Conventions and to Article 36 API. However, as the articles concludes, although the deploying States have the duty to “respect and ensure respect” for the laws of war, and to conduct legal reviews of new weapons, the reality is that state practice shows that States tend to fall silent about their obligations in matters of weaponry. The complex reality of State practice may well lead, as far as AWS are concerned, to an “accountability trap”: the reality of AWS is not taken seriously and IHL violations will be left unaccountable