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Artificial Intelligence is Like a Perpetual Stew
Get PDFArtificial intelligence is inescapable. It is in our phones, fridges, and most of the businesses we engage with use it to “improve” their services. From deciding on what YouTube video to watch next to driving vehicles or firing weapons, artificial intelligence is a linchpin in our society. But what is artificial intelligence? And, more importantly, why does that matter? It matters because we are currently unprepared to deal with the paradigm-shifting legal issues brought about by artificial intelligence. And without this understanding, we are nearly certainly going to make mistakes. The bright side is that artificial intelligence is not complicated. Artificial intelligence—more accurately, machine learning—is built on simple and intuitive concepts revolving around: (1) a particular type of machine known as a neural network; and (2) getting that machine to learn through a process of, or similar to, gradient descent. The aim of this Essay is to provide a low-level, accurate, and easy-to-digest explanation of what artificial intelligence is, providing a novel metaphor to aid in that explanation. Like a perpetual stew, models built with artificial intelligence start with a recipe (neural network architecture), are tweaked to a particular palate (training), and are set to live forever as long as they continue to produce tasty (accurate) results. In turn, the Essay provides the legal community with an accurate vantage point from which to analyze the many artificial-intelligence-based issues that will not be on the horizon for much longer
Litigating Original Meaning from Heller to Rahimi: The Role of Lawyering in the Confused Path of Second Amendment Jurisprudence
Get PDFThe Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, the Court seemingly changed course, upholding a statute prohibiting the possession of firearms by those under domestic violence orders of protection.
There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Rahimi. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” In Rahimi, the Court ignored its prior account of the original meaning of the Second Amendment’s text altogether. We are left with an incoherent originalism, which the Court elevates framing-era regulatory practice and its contemporary analogs over its own account of the original meaning of the Second Amendment’s text, albeit without claiming any justification for doing so, or even admitting what it is doing.
Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law
Reviving Criminal Code Reform
Get PDFThis Article presents a history of how the District of Columbia (D.C.) recently rewrote its criminal code—legislatively adopting the first Model Penal Code (MPC)-based comprehensive criminal code reform in the U.S. in decades—and how Congress blocked the bill in 2023, its only criminal legislation of the year. The development and fate of the legislation has national implications. Like D.C., about fifteen states have never undergone MPC-based reform and dozens of other MPC-based codes have degraded over time and need comprehensive revision. After decades of reform failures, D.C. created an independent agency solely dedicated to criminal code revision. Emphasizing public transparency and taking an integrated, data-driven approach to set liability and punishments, the agency worked closely with prosecutors, defense attorneys, and others for five years. The resulting bill, the Revised Criminal Code Act of 2022, adopted the principal features of the Model Penal Code and is the first and only comprehensive revision of the District’s substantive criminal laws since Congress enacted the D.C. Code in 1901. Legislative debate on the bill centered on a couple dozen penalty changes, misdemeanor jury trial rights, and a “second look” review of lengthy sentences while core Model Penal Code features and hundreds of other liability and penalty changes were uniformly accepted. The amended bill passed unanimously. However, District legislation is subject to Congressional disapproval, and the bill was blocked when pandemic-driven crime rates spiked, a new House Republican majority targeted the bill as part of a national tough-on-crime messaging campaign, and President Biden withdrew administration support. For now, the District’s outdated criminal code remains in place. The District’s mixed legislative success presents a singular case study for other jurisdictions on the modern possibilities and perils of comprehensive criminal code reform
The Rule Against Perpetual Celebrity
Get PDFPost-mortem Right of Publicity (ROP) statutes have grown from relative obscurity and of little value to a reliable source of nonwage income for those lucky enough to be the legatees of a famous now-deceased person. Unlike most other intellectual property rights, there is no federal ROP statute. Rather, an individual’s ROP—both while alive and post-mortem—is governed by state law. This has led to a widespread range of term lengths for this right among the states that have either common law or statutory post-mortem ROP rights.
While there might be some value in them, if the post-mortem ROP term is too long or infinite, it can exacerbate wealth disparities; famousness provides a multi-generational benefit to those who have done nothing to earn the fame they are now exploiting and is yet another avenue by which non-wage wealth accumulation moves upward.
The problems of a lengthy post-mortem ROP are the same issues that were used to rationalize the Rule Against Perpetuities (RAP), where the dead have a limited time in which to control their assets from beyond the grave. We can thus appreciate that a decedent’s postmortem ROP should be limited for analogous reasons to those under RAP. Limiting the term of a post-mortem ROP would promote industriousness, limit the accumulation of unearned wealth, and avoid the rent-seeking and other problems associated with a ridiculously long-term control of the rights to a decedent’s exploitable fame. Famous dead people should not have their personal rights in their name, image, and likeness (NIL) controlled and exploited by their descendants for longer than one generation after the famous person’s death. This is a simplified, but analogous, term length to what is considered acceptable control of property by the dead under RAP.
This Author thus argues that the optimal term length for the post-mortem ROP should be either twenty-five years after the death of the famous person or the death of the last surviving child or spouse of the famous person, whichever comes first. This will ensure that at least one generation of descendants has the ability to exploit their dead parent’s or spouse’s fame, without such exploitation becoming a multi-generational personal welfare system. One generation of control should be enough
Charting the Course: Trips-Plus Agreements and the Intersection of Intellectual Property with Digital Trade
No full textThis is a Response to Professor Trimble’s article Unjustly Vilified TRIPS-Plus?: Intellectual Property Law in Free Trade Agreements. It builds upon the analysis of TRIPS-plus developments in Free Trade Agreements (FTAs) that have often been criticized in the existing literature and offers a more nuanced perspective on these advances in international intellectual property (IP) law. We complement Professor Trimble’s arguments with insights gleaned from our own empirical research with the TAPED (Trade Agreements Provisions on Electronic-commerce and Data) dataset, which analyzes digital trade rulemaking in the entire body of FTAs, including in the IP domain. Evident in this respect is the growing disconnect between these two fields of law (digital trade and IP). We argue that this disconnect may have negative implications, as it further fragments the regulatory landscape. An adequate interface of international IP and digital trade rulemaking is critical particularly under the conditions of data-driven economies and artificial intelligence development, and it may call for policymakers and trade negotiators to look across previously discrete topics in order to design forward-looking regulatory frameworks that still maintain the precarious balance between strong IP protection and its social cost
Affirmative Acts, Passive Retention, and Exercising Control: Applying City of Chicago v. Fulton to Related Provisions of the Automatic Stay
No full textThe Supreme Court’s decision in City of Chicago v. Fulton partially resolved a decades-long circuit split around the interpretation of a fundamental debtor-protection mechanism, the automatic stay. However, the limited ruling only applied to one subsection of the automatic stay and resulted in lingering questions regarding the proper application of the other subsections of 11 U.S.C. § 362(a). This Comment argues that despite the Court’s narrow holding, its reasoning and analysis provided a framework that courts can extend and apply to other subsections of § 362(a). Further, this Comment argues that City of Chicago v. Fulton left open the possibility that passive retention of debtor property does, in some instances, violate the automatic stay
The Dark Side of Tokenisation
No full textTraditional financial institutions are increasingly showing interest in tokenising real-world assets, meaning they are curious about how these assets could be digitally represented by programmable tokens recorded on shared ledgers. There could be real efficiency gains associated with tokenisation, but the drive towards it could also take a dark turn
A Matter of Time: Artificial Intelligence, the Fourth Amendment, and Changing Privacy Expectations
No full textUnder the Supreme Court’s existing Fourth Amendment doctrines, an individual generally loses a reasonable expectation of privacy in information when that individual exposes the information to others. This is because the Court says that individual has assumed the risk that the information may be used against them in any way. These doctrines presume that an individual is, at least theoretically, aware of the ways the information can be used against them when they expose it. This presumption makes sense if the timespans between when the information is exposed, when it is collected, and when it is used are short—days, weeks, and months, for example. However, if exposure, collection, and use are spread out over longer intervals—years or decades—new technologies can fundamentally alter expectations about the ways information can be used, undermining the presumption.
When new technologies alter expectations, an individual can expose information assuming one set of risks and subsequently be subject to an entirely different set of risks when that information is used against them in the future. The internet contains vast quantities of publicly available data that individuals have exposed over the course of years or decades, much of which cannot be taken back. Now, artificial intelligence is collecting and using that data in ways that were unforeseeable at the time it was exposed. For example, law enforcement can now use AI facial recognition software on a photo of an unidentified individual without a warrant. That software can compare the photo to a database of billions of publicly available photos scraped from the internet (social media posts etc.) in a matter of seconds to identify the individual. Many of the photos in such databases were posted to the internet prior to the advent of this facial recognition technology and the individuals who posted them cannot erase them. That is, individuals are now subject to the risk that the photos they posted can be used in a way that may have been fundamentally unforeseeable at the time they posted them. Thus, new technologies have once again upset the balance between individual privacy expectations and the general public interest in effective law enforcement, a recurring theme in Fourth Amendment jurisprudence. Further technological development will only exacerbate this imbalance unless the law evolves.
The Supreme Court has acknowledged the shortcomings of applying old doctrines to new technologies but has yet to set forth a revised comprehensive framework for analysis. The problem is that existing doctrines fail to account for how reasonable expectations about the ways information can be used change over time. The solution is a combination of statutory protections and a revised time-dependent reasonable expectation of privacy test that preserves normative notions of Fourth Amendment fairness by holding individuals accountable for the risks they knowingly expose themselves to while also allowing them to revise their behavior when new technologies fundamentally alter privacy expectations in unforeseen ways
The Presumption Against Suicide as the Standard for ERISA Accidental Death and Dismemberment Benefit Cases
No full textThis Comment argues that the presumption against suicide should be applied in ERISA-controlled accident death and dismemberment (“AD&D) insurance policy cases where the decedent’s intent cannot be determined. The First Circuit, which articulated the current majority standard in Wickman v. Northwest National Insurance Co., requires the application of a two-prong subjectiveobjective test to determine if the decedent died accidentally or by suicide. The Eleventh Circuit requires the application of a presumption against suicide when the decedent’s intent is unclear, as articulated in Horton v. Reliance Standard Life Insurance Co. The Horton standard better aligns with the goals of ERISA, which include protecting the interests of AD&D plan beneficiaries
Thank You for Your (Continued) Service: How DoD\u27s Medical Standards Find Some Service Members Eligible to Deploy, but Ineligible to Lead as Commissioned Officers
No full textIn 2018, Chief Petty Officer Shannon Kent received an offer to participate in one of the U.S. Navy’s highly competitive clinical psychology programs. Kent—an enlisted Service member with fourteen years of experience— wanted to support fellow veterans battling post-traumatic stress disorder (PTSD). The six-year program only accepted ten active-duty candidates a year, but given her credentials and character, the Navy accepted Kent only two days after completing her interview