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The AI Author in Litigation
Get PDFMany scholars have posited whether a computer possessing Artificial Intelligence (AI) could be considered an author as defined per the Copyright Act of 1976. What was once a thought experiment is now becoming reality. To date, scholarship has focused primarily been on whether an AI meets the requirements of authorship from a purely objective legal framework or whether an AI could be an author based on the doctrines of incentives, independent creation, and creativity.
However, a burden inherent in the rights and liabilities of authorship is the ability to be held liable if that author’s expressive work is infringing on another’s. A cause of action is meaningless if a copyright owner cannot enforce it by suing the infringer or if the infringer is judgement-proof. Thus, when contemplating whether an emancipated AI—or any non-human—can be an author under the Copyright Act, part of that examination should be whether the AI which created the work can sue or be sued for infringement.
This article considers issues from the theoretical, like civil procedure and remedies, to the practical, such as legal representation and discovery. How is an AI served with a lawsuit? What would be an adequate, enforceable remedy for an AI’s infringement? Is an AI even bound by our laws? Additional questions—and procedural barriers—are raised when considering other roles an AI might play in an infringement action: as a witness, a co-party, or even a plaintiff seeking to protect its own creative expression.
This morass of legal headaches goes beyond any doctrinal issues regarding authorship, and provide ample reason to keep legal authorship in the hands of humans or entities controlled by humans—at least until legal procedure catches up to technological realities and possibilities for litigation that AI parties present
Calculating the Gender Gap in Legal Scholarship: An Empirical Study
Get PDFWomen have been attending law school at approximately equal rates as men for decades and began comprising a greater percentage of law school entrants than men in 2016. Yet, men continue to hold a solid majority of leadership positions across the legal field: from seats on judicial benches to podiums in front of law school classrooms. This paper examines one under-evaluated, yet critical gender gap within the legal profession: legal scholarship—specifically legal scholarship published by the flagship law reviews at the top twenty law schools. This article presents original research demonstrating that law reviews might be perpetuating the law professor gender gap because, for the five-year period studied, the law reviews published, on average, twice as many articles with male authors than with female authors.
Based on this evidence, this article highlights points along the article review process that could be subject to implicit biases and suggests ways for those biases to be noticed and minimized. Who gets to speak and whose ideas are heard, matters. Currently men get to speak, and be listened to, more than women in legal scholarship.[1] This article seeks to demonstrate why this should, and how this can, concretely change.
[1]. Nancy Leong, Discursive Disparities, 8 FIU L. Rev. 369, 370 (2013) (“Concretely, the [discursive] disparity has negative consequences for women’s lives, careers, and personal well-being. More broadly, the disparity distorts our discourse by conforming that discourse to male perspectives.”)
Substance Use Disorder, Discrimination, and The CARES Act: Using Disability Law to Strengthen New Protections
Get PDFThe COVID-19 pandemic is having devastating consequences for people with substance use disorders (SUD). SUD is a chronic health condition—like people with other chronic health conditions, people with SUD experience periods of remission and periods of exacerbation and relapse. Unlike people with most other chronic conditions, people with SUD who experience a relapse may face criminal charges and incarceration. They are chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. People with SUD are also at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led to new and increased drug use, and overdose deaths are surging. More than ever, people with SUDs need access to evidence-based treatment and other services without structural barriers and with civil rights protections. To that end, a new provision in the Coronavirus Aid, Relief, and Economic Securities Act (CARES Act) strengthens penalties for the wrongful disclosure of SUD treatment records as well as addresses discrimination in multiple settings based on the misuse of those records.
People with SUD reasonably fear negative treatment and discrimination if their condition is exposed. To address this barrier, federal law strictly protects the confidentiality of SUD treatment records. These protections have existed for nearly 50 years; however, the stringent requirements have been blamed for hampered and even deadly treatment decisions by health care providers who do not have access to SUD treatment records.
Section 3221 of the CARES Act, effective March 2021, enacts the first major statutory changes to SUD treatment record confidentiality since 1992 and is aimed at improving information sharing among SUD treatment providers and other health care providers. But increased information sharing also creates concerns about information misuse and discrimination, and the possibility of renewed treatment avoidance. To address the tension between the benefits of information sharing and the possible harms of discrimination after disclosure, Section 3221 strengthens the disclosure penalties to align with HIPAA. It also adds an entirely new nondiscrimination provision which prohibits discriminatory use by recipients of disclosed SUD treatment information in areas including health care, employment and receipt of worker’s compensation, rental or sale of housing, access to courts, and social services and benefits funded by federal, state, or local governments.
This essay provides the first analysis of the new nondiscrimination protections in Section 3221 of CARES Act for individuals with SUD using the framework of existing protections against disability-based discrimination in the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Patient Protection and Affordable Care Act, and the Fair Housing Act. We propose that as the new protections of Section 3221 are implemented through regulations, guidance, and enforcement, they should be understood within the context of existing disability nondiscrimination laws as well as the specific purpose of Section 3221 to ensure that discrimination against such people does not continue to serve as a barrier to seeking treatment. We offer three insights to achieve this goal. First, the new protections should be understood to include current illegal substance users and should be construed broadly. Second, the scope of entities covered by the new protections should be interpreted consistently with existing definitions in laws that prohibit disability-based discrimination in employment, public programs, services, and activities, health care, and housing. Finally, robust enforcement must be coupled with educational initiatives about the pervasive discrimination faced by people with SUDs, and new and existing nondiscrimination requirements that protect them
Top Executives Forgoing Their Salaries in the Face Of COVID-19: A Benevolent Act or Deceitful Trick?
Get PDFAs financial hardship hits us all in the wake of COVID-19, affluent executives of top companies have announced relinquishment of their 2020 salaries. While appearing to be to sharing the financial suffering with their lower employees, Lauren Sullivan dives into the question of how much these executives are really “sacrificing.”https://scholarship.law.slu.edu/lawjournalonline/1047/thumbnail.jp
Poll Watching: You and What Army? An Analysis of Voter Intimidation Concerns in the 2020 Presidential Election
Get PDFIn light of President Donald Trump\u27s recent calls for his supporters to monitor polling places, Emily Lapp discusses the differences between lawful poll watching and voter intimidation.https://scholarship.law.slu.edu/lawjournalonline/1050/thumbnail.jp
Sex-Based Discrimination in Healthcare Under Section 1557: The New Final Rule and Supreme Court Developments
Get PDFOne of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the even broader prohibition of discrimination on the basis of race, color, national origin, disability, age, and sex in Section 1557 of PPACA also promote gender equity.
Prior to PPACA, a patchwork of federal laws targeted only certain areas for sex nondiscrimination protections and enforcement, notably employment (Title VII of the Civil Rights Act of 1964) and education (Title IX of the Education Amendments of 1972). Such laws had been used to address healthcare access to some degree, but their scope has been limited. For example, Title VII has been used to eliminate coverage exclusions that uniquely harm women, such as pregnancy-related care, but only in employment-based plans.
Section 1557 filled this critical gap by creating a new healthcare-specific prohibition of sex discrimination. Prohibiting sex and gender discrimination was a dominant focus of the May 2016 Final Rule implementing Section 1557 (2016 Final Rule) issued by the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR). Notably, the 2016 Final Rule clarified that Section 1557’s sex discrimination provision would protect transgender individuals from discrimination on the basis of gender identity in healthcare delivery and insurance.
By contrast, in June 2020, OCR issued new regulations that dramatically narrowed Section 1557’s scope, including interpreting the prohibition on sex discrimination to not include discrimination on the basis of gender identity or transgender status (2020 Final Rule). In addition, the 2020 Final Rule significantly expanded the grounds for providers of care or insurance to obtain exemptions from nondiscrimination mandates.
The battle over the scope of sex discrimination protection is also playing out in the courts. Indeed, the United States Supreme Court recently weighed in on this issue, though not in the healthcare context. In Bostock v. Clayton County, Georgia, a consolidation of three high-profile cases involving claims of sex discrimination in employment under Title VII, the Supreme Court affirmed a definition of sex discrimination consistent with the 2016 Final Rule. In a 6-3 decision, the Court held that an employer that fires an individual merely for being transgender or gay violates the sex discrimination prohibition under Title VII. Bostock’s implications for Section 1557 are significant, but the fact that it is a non-healthcare case means the battle over the scope of sex discrimination protections under Section 1557 will continue.
This article examines the current regulatory and litigation landscape for defining and enforcing PPACA’s prohibition on sex discrimination in healthcare. It considers three key questions engaging regulators and courts at this time, which are discussed below: Who is protected? What kind of activity is prohibited or required? How should religious objections to these requirements be balanced against the health and equity interests advanced by nondiscrimination protections
Vaccine Hesitancy: Experimentalism as Regulatory Opportunity
Get PDFThis symposium on patient innovation has prompted us to explore problems related to departures from official vaccination schedules. At a time in which vaccine confidence has been plummeting across the world, we argue that a more granular understanding—and ultimately a more finely tuned regulatory framework—is needed to reflect the current behavioral heterogeneity among indicated patients who choose to forego or delay administration of recommended vaccines. In particular, we focus on a phenomenon we term “vaccine staggering:” a departure from vaccination schedules in the form of delays in receiving one or more vaccines, which is motivated by the desire to boost the efficacy of each vaccine received by a child or adult.Current regulatory approaches subsume staggering into vaccine hesitancy frameworks. The scientific literature, however, has begun to explore possible benefits of specific forms of staggering, as well as the need for the production of more information on different forms of vaccine staggering. The Essay thus argues in favor of separate treatment for vaccine staggering as opposed to vaccine refusal and further notes that the current conceptual and regulatory problems surrounding vaccine staggering point to broader systemic issues in vaccination policy and vaccine data infrastructure in the United States.The Essay proceeds as follows. It begins with a brief background section on the evolution of vaccination schedules. Part II describes different types of behaviors that may result in departures from vaccination schedules, highlighting the disjunction between behavioral heterogeneity and the unified regulatory framework, which currently lumps together materially different behaviors under the “vaccine hesitancy” umbrella. Part III then focuses specifically on the case of vaccine staggering and advocates for a separate treatment of staggering behaviors as opposed to other types of departures from official vaccination schedules. The Essay further argues that the persistence of unitary treatments of vaccine-related behaviors increases uncertainty and promotes conflicting discourses outside scientific circles, an especially concerning phenomenon at a time in which outbreaks of vaccine-preventable disease are once again becoming more frequent. The Essay concludes by briefly pointing out that the specific problems surrounding current approaches to vaccine staggering also illustrate systemic limitations of the vaccine data infrastructure in the United States