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Lessons in Advocacy From Held v. Montana
No full textOn Aug. 14, 2023, in Held v. Montana, Judge Kathy Seeley ruled in favor of 16 youth plaintiffs in the first ever constitutional climate change lawsuit to go to trial in the United States. Historically, constitutional climate cases have been dismissed before trial on grounds that plaintiffs lack standing or the political question doctrine applies. Locally, a majority of the Washington Supreme Court recently denied review of Aji P. v. Washington, a youth climate case, upholding the Washington Court of Appeals dismissal of the case on grounds that the court could not provide a remedy to plaintiff’s climate harms. In dissent, Chief Justice González and Associate Justice Whitener wrote: “The court should not avoid its constitutional obligations that protect not only the rights of these youths but all future generations who will suffer from the consequences of climate change.
The default posture of most judicial bodies in the United States deciding these cases has been judicial restraint. But Montana was different.
The First Judicial District Court of Montana ruled that the state had violated the plaintiffs’ constitutional rights to “a clean and healthful environment” as well as rights to seeking safety, health, and happiness and individual dignity, guaranteed by Montana’s constitution and granted the youth plaintiffs’ request for declaratory relief. The court specifically declared as unconstitutional and enjoined Montana’s environmental laws, because they prohibited its state agencies from considering climate change or greenhouse gas emissions when issuing permits for fossil fuel activities and removed “the only preventative, equitable relief available to the public and MEPA litigants.” The court found that plaintiffs had established all the elements of standing, and that “[e]very additional ton of GHG [greenhouse gas] emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.”
This column focuses on how effective advocacy by plaintiffs’ counsel surmounted the usual obstacles and resulted in a ruling in the plaintiffs’ favor
Challenging Disability Discrimination in the Clinical Use of PDMP Algorithms
No full textState prescription drug monitoring programs (PDMPs) use proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder (SUD). Clinical overreliance on PDMP algorithm-generated information and risk scores motivates clinicians to refuse to treat—or to inappropriately treat—vulnerable people based on actual, perceived, or past SUDs, chronic pain conditions, or other disabilities. This essay provides a framework for challenging PDMP algorithmic discrimination as disability discrimination under federal antidiscrimination laws, including a new proposed rule interpreting section 1557 of the Affordable Care Act.
https://doi.org/10.1002/hast.156
The Rise and Fall of Silicon Valley Bank: A Conversation With Professor Xuan-Thao Nguyen
No full textUniversity of Washington law professor Xuan-Thao Nguyen discussed her new book, “Silicon Valley Bank: The Rise and Fall of a Community Bank for Tech,” with UVA Law professor Elizabeth A. Rowe. Nguyen’s book provides a first-hand account of the founding, ascent and dissolution of Silicon Valley Bank, a tech community bank founded in 1982 with $5 million that became the nation’s 13th-largest bank and the tech industry’s lender and bank
Copyright\u27s Public Reliance Interests
Get PDFCourts are increasingly invoking copyright law’s “scenes a faire” doctrine, which precludes infringement liability for copying typical or standard elements in a copyrighted work. But judges and commentators only cursorily discuss why certain elements constitute scenes a faire. Alternatively, they characterize the doctrine as merely an extension of other copyrightability doctrines. The result is doctrinal inconsistency in how scenes a faire applies and theoretical disagreement about why the doctrine exists.
This Article advances a “public reliance interests” theory of scenes a faire that provides descriptive clarity to the doctrine and highlights its underexplored importance to copyright law writ large. Drawing from progressive approaches to property and cultural-democratic theories of copyright, the public reliance interests theory describes scenes a faire as precluding copyright protection when consumptive and discursive activities of public users make certain elements particularly popular and widely distributed. The public then has reliance interests in being able to utilize these particular elements in future creative works without fearing overreach by copyright holders. The scenes a faire doctrine protects these reliance interests by demarcating these elements as outside the scope of copyright protection.
In an era of rapid content creation, distribution, and ever-expanding rightsholder claims, a theoretically reinvigorated scenes a faire doctrine offers promise for a more democratic copyright law. The public reliance interests theory clarifies scenes a faire’s operation as an internal counterbalance to copyright’s expansions that recognizes and gives force to the public’s personal and discursive consumption of copyrighted works. Such a clarification has wide-ranging consequences for contested debates about copyright law’s purpose, structure, and normative orientation
WHEN AI REMEMBERS TOO MUCH: REINVENTING THE RIGHT TO BE FORGOTTEN FOR THE GENERATIVE AGE
Get PDFThe emergence of generative artificial intelligence (AI) systems poses novel challenges for the right to be forgotten. While this right gained prominence following the 2014 Google Spain v. Gonzalez case, generative AI’s limitless memory and ability to reproduce identifiable data from fragments threaten traditional conceptions of forgetting. This Article traces the evolution of the right to be forgotten from its privacy law origins towards an independent entitlement grounded in self-determination for personal information. However, it contends the inherent limitations of using current anonymization, deletion, and geographical blocking mechanisms to prevent AI models from retaining personal data render forgetting infeasible. Moreover, the technical costs of forgetting—including tracking derivations and retraining models—could undermine enforceability. Therefore, this article advocates for a balanced legal approach that acknowledges the value of the right to forget while considering the constraints of implementing the right for generative AI. Although existing frameworks like the European Union’s GDPR provide a foundation, continuous regulatory evolution through oversight bodies and industry collaboration is imperative. This article underscores how the right to be forgotten must be reconceptualized to address the reality of generative AI systems. It provides an interdisciplinary analysis of this right’s limitations and proposes strategies to reconcile human dignity and autonomy with the emerging technological realities of AI. This Article’s original contribution lies in its nuanced approach to integrating legal and technical dimensions to develop adaptive frameworks for the right to be forgotten in the age of generative AI
THE NEED FOR AN INTERNATIONAL AI RESEARCH INITIATIVE: HOW TO CREATE AND SUSTAIN A VIRTUOUS RESEARCH-REGULATION CYCLE TO GOVERN AI
Get PDFThis paper explains the need for an international AI research initiative. The current focus of lawmakers at the subnational, national, and international level on regulation over research has created an imbalance, neglecting the critical role of continuous, informed research in developing laws that keep pace with rapid technological advancements in AI.
The proposed international AI research initiative would serve as a central hub for comprehensive AI risk analysis, modeled on successful precedents like CERN and the IPCC. CERN exemplifies a collaborative research environment with pooled resources from member states, leading to significant advancements in particle physics. Similarly, the IPCC has successfully consolidated and synthesized global climate research, informing policy decisions on an international scale. Drawing from these models, the initiative aims to provide accurate, timely assessments of AI risks, aiding policymakers worldwide and ensuring that AI development benefits all of humanity, not just technologically-advanced nations.
This paper also highlights the dichotomy in AI risk perspectives—near-term concerns like algorithmic bias versus existential threats like the empowerment of authoritarian regimes. This division often detracts from a unified approach to funding and researching all potential AI risks comprehensively. The necessity for an international body becomes evident as individual nations and private entities tend to focus on regional and domestic agendas, which are insufficient to address the global nature of AI risks.
Discussing various national and subnational efforts, the paper critiques their limited scope and emphasizes the inadequacies of these isolated initiatives in tackling global AI challenges. Instead, it calls for an international approach that can leverage global expertise and resources more effectively, similar to CERN’s resource pooling and the IPCC’s consensus driven research aggregation.
In summary, the paper argues for a shift in focus from predominantly regulatory efforts to a balanced approach where informed, well-researched guidelines shape global AI policies. This shift is crucial to developing a regulatory framework that is responsive to the rapid advancements and broad implications of AI technologies. By fostering a robust international research initiative, stakeholders can ensure that AI development is guided by comprehensive risk assessments and ethical considerations, promoting a safer, more equitable technological future
Does Black-Letter Law Matter in Labor Rights Protection in China? - A Tale of Two Cities
Get PDFThis article discusses the role of black-letter law in labor protection in China in cases where employers dismiss employees on the grounds of serious breaches of internal regulations. This article presents an empirical analysis of the judicial practice of two of China’s economically developed cities, Suzhou and Wuxi. Suzhou employers have to give employees the opportunity to be heard prior to dismissal, while Wuxi does not provide that opportunity. First, this article introduces the Chinese labor legislation system, the dismissal system, and the two cities’ local labor regulations. Second, the article will analyze and discuss 140 cases from Suzhou and 234 employment cases from Wuxi. Third, this article concludes that giving employees the opportunity to be heard is essential for protecting their rights, as evidenced by the higher success rates (i.e. the combination of full win and partial win rates) for employees in Suzhou compared to those in Wuxi. The analysis highlights the significance of black-letter law in ensuring labour protection in China. Finally, this article calls for national legislation to provide more explicit and detailed guidance on dismissals, or in the alternative, to mandate local authorities to enact clear labor protection rules appropriate to local circumstances