Black Metropolis Research Consortium
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Rogue AI Patents and the USPTO’s Rejection of Alice Joshua A. Z
No full textAI inventions, from ChatGPT to self-driving taxis, have taken the world by storm. Many of these inventions are protected by patents, and the number of AI patents is rapidly growing. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment argues that many AI patents were granted on legally flawed grounds, pursuant to United States Patent and Trademark Office (USPTO) regulations that systematically departed from controlling case law. The existence of these flawed patents poses a growing problem. Courts may invalidate the patents, upsetting expectations of an important, nascent industry. On the other hand, courts may acquiesce to the USPTO’s leniency, which could have the perverse effect of further unsettling the law, increasing examination uncertainty, and proliferating bad patents.
This Comment asks, in light of the policy of the patent system, which AI inventions ought to receive patents. It concludes that AI methods and models should be patent eligible because they are likely to be incentivized by patents and unlikely to chill follow-on innovation. This Comment further argues that both the USPTO’s guidance and much of the Federal Circuit’s recent eligibility case law are inconsistent with finding these inventions patent eligible. However, the Federal Circuit demonstrated an understanding of eligibility that would allow patents for many AI methods and models in its 2016 McRO, Inc. v. Bandai Namco Games America Inc. decision. This Comment concludes by advocating that the Federal Circuit explicitly apply the holding of Bandai to hold that an AI invention is patent eligible at the first opportunity in order to settle the law while granting the benefits of patents only to deserving inventions
Power and Politics in Original Jurisdiction
Full text linkThe original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.
This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The Article and its Appendix include a catalog of the original jurisdiction law of all fifty states; a survey of scores of recent original actions related to elections, COVID-19, and abortion; and a review of relevant legislation from the last decade.
This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts fact-finding responsibility, and has the potential to permit quicker resolution of disputes. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court without the frictions of lower court litigation.
Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in “avoidance” maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way
A New Global Corporate Regulatory Power?: Market Entry as the Basis for Prescriptive Jurisdiction
Full text linkThe rules of international economic law are changing. In a range of areas, governments are asserting that if a multinational firm touches the state’s market, the state can claim the authority to regulate the firm everywhere. This departure from multilateral economic coordination and towards more unilateral regulatory power over firms’ global operations represents an important shift in international economic policy. We have entered an era where governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating national industrial policies. This Article examines the political dynamics that lead states to use access to their national markets as the basis for global corporate regulation in the national security and corporate social responsibility (CSR) fields. Specifically, this Article analyzes how market-entry-based global regulations represent an expansive conception of states’ extraterritorial jurisdiction and what constraints there are on states’ exercise of these jurisdictional claims. For national security and CSR regulation, the Article addresses three questions: (1) how states are using entry into their markets to gain global regulatory power, (2) why states are adopting this approach, and (3) what the limits are to this market-entry-based extraterritorial jurisdiction. The Article concludes by exploring how the jurisdictional claims will likely intensify conflict between governments as nations seek to push their own priorities on foreign corporations. These conflicts will exist between allies and adversaries as states disagree over the ideal level of corporate regulation, as well as the best means to implement it
Domestic Terror Across State Lines: A Failed Federal Framework
Full text linkAs white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.
Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists who have crossed state borders to commit violent acts are prosecuted under federal hate crime and firearm laws. This lack of a consistent definition offers a corrigible reason why white supremacist organizations and supporters have largely circumvented prosecution under domestic terrorism charges. To properly address and regulate the interstate travel of individuals to commit white nationalist violence, the existing domestic terrorism statutory framework must be applied vigorously. This Comment argues that a consistent definition of “domestic terrorism” should be employed at the federal level in order to ensure that the statutory framework is enforced against perpetrators of such violent crimes. It ultimately concludes that a strengthened framework could lead to the regulation and subsequent prosecution of white supremacists who cross state lines to commit violent acts
Brexit Backslide: How the United Kingdom’s Break from the European Union Could Erode Female Labor Rights
Full text linkBritain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain may find inspiration from other Organization for Economic Cooperation and Development countries which have successfully protected women. This Comment serves as a cautionary tale for other European countries which may someday seek to exit the E.U., and provides a path forward for British activists looking to protect the rights of women in the workforce
Liquidity Effects of Litigation Risk: Evidence from a Legal Shock
No full textTheory offers two diverging views on the effects of ex ante litigation risk on corporate liquidity proxied by cash holdings. Ex ante litigation risk, however, is difficult to measure. We test the liquidity effects of ex ante litigation risk by exploiting the phase-by-phase introduction of securities class actions (SCAs) in Korea. Following the increase in litigation risk, firms significantly increase their internal liquidity, especially those without directors’ and officers’ liability insurance and those that are financially constrained. The results hold robustly in difference-in-differences and regression discontinuity designs. We also find that the increase in ex ante SCA risk improves firms’ stock market liquidity and valuation, especially for firms that do not carry liability insurance. Taken together, the results are consistent with the arguments that SCAs increase firms’ liability risk and lower investors’ risk
Beyond Home and School
Full text linkThe Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision- makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other Expressive Content”––to illustrate how the subtle transformation in Part 4 of the Restatement points toward potentially path breaking changes for the law of children generally. This Essay draws upon our prior work in order to illuminate the major contributions––but also shortcomings––of Part 4 of the Restatement of Children and Law. In the first Part of this Essay, we examine the Restatement’s focus on children’s interests in accessing ideas and the Restatement’s endorsement of parental authority to control that access. We applaud the Restatement’s important discussion of the background and rationale for recognizing children’s right to access information and expressive materials. Yet we note that the Restatement undermines its own commitment to children’s free speech interests by expressly endorsing parents’ broad authority to limit children’s access to ideas. In the second Part, we explore what it would mean to respect children’s right to access ideas on their own, free from parental control. We focus on the example of social media because of its importance in children’s lives today and note that broad parental authority to limit this access, as set forth in the Restatement and in recent legislation in Utah and Arkansas, potentially harms children’s interests. The third Part proposes alternative black-letter law designed to better promote children’s interests in accessing ideas
Lost Profits and Unjust-Enrichment Damages for the Misappropriation of Trade Secrets
No full textThis paper analyzes civil remedies for the misappropriation of trade secrets. We study the impact of different damages doctrines on firms’ competitive behavior and on the incentives to misappropriate. We find that the owner of a trade secret is better off under the lost-profits regime, while the rival (independently of whether he obtained the technology by misappropriation or by independent development) is better off under the unjust-enrichment regime. The unjust-enrichment regime provides fewer incentives to misappropriate and yields a smaller market deadweight loss. The choice between the two rules essentially depends on the lawmaker’s goal
“Federalisms” and Union: The Interbellum Constitution
Full text linkIn her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms,1 Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.”2 What was happening on the constitutional front during those years, sandwiched between what is often seen as the true end of the American Revolutionary era—the War of 1812, when the United States fought its last battles with its former colonial overseer, Great Britain3—and the transformative days of the U.S. Civil War when the U.S. Constitution was remade, is what LaCroix means by the phrase “The Interbellum Constitution.”4 She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.”5 Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”6
To make her case, LaCroix offers “five central claims about the nature of the Interbellum Constitution,”7 and the book considers each in detail. The first claim carves out the years of 1815 to 1861 as a “distinct period” that was not, as she asserts it is too often treated, merely a “gap between the constitutional landmarks of the founding era and the Civil War.”8 In her second claim she identifies the “two conventional stories about constitutional debates in the period between 1815 and 1861” and says that they are both essentially wrong.9 One story depicts a “binary federalism” that “frames all disputes about the structure of the American union as contests about the power of the general government versus the states.”10 The second story associates the assertion of federal power with liberty, as the federal government was seen as an enemy, or a potential enemy, of slavery.11 At the same time, “[s]tate power [ ] in its many incarnations (states’ rights, state sovereignty, localism) is seen as tending toward—perhaps even necessarily tied to—protections for slavery and limits on freedom, in particular the freedom of Black people.”12
There is little wonder that historians and other observers of this period, writing in the latter half of the twentieth century, would characterize the difference between the federal and state governments in this fashion. Historians are always writing in a particular social context and are almost inevitably influenced by the events taking place around them. It is important, therefore, that the twentieth century was the era of the modern Civil Rights Movement. Many of the people of the Southern states—politicians and ordinary citizens—were recalcitrant in the face of federal laws and court decisions mandating the end of de jure segregation in the South and other measures taken to ensure that African Americans had equal rights before the law in the United States.13 They made arguments based upon a version of federalism that tracked many of the arguments made during the period of which LaCroix writes. It is significant that the point of controversy often centered on the question of race: What was to be done with the African Americans who, in the early nineteenth century and the twentieth century, were outside the polity if they were enslaved, and treated as mere denizens rather than true citizens of the Republic if they were free?
LaCroix’s third claim is that the era of the Interbellum Constitution was one in which the idea of “concurrent power” flourished, and indeed it was “uniquely central to” the constitutional discourse of the time.14 This separates this period from both “the founding era” and “the post-Civil War regime.”15 Her fourth claim expands upon her take on concurrent power, saying that the concept was very much a part of the discourse on the federal commerce power during this period of the nineteenth century.16 Indeed, commerce was “[t]he primary terrain on which interbellum struggles over federalism unfolded.”17
LaCroix’s final claim is about the nature of the American Union during this moment in history. Americans today may see the Union as an entity that existed in a recognizable form from the very start. But it should not surprise that the specific contours of the concept of union were not set in stone in the immediate decades after the Union was formed. There were, LaCroix notes, “many and varied meanings of the concept of ‘union’ in this period.”18 For this reason, it is a mistake to base historical understandings on a single definition of the term. “The emotional, moral, and constitutional heft of the phrase ‘the Union’ was, like so much else in this period, contested and fragile. For many interbellum observers, the Union was simply inadequate.”1