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Governing Generative AI
No full textThis Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as potential remedies. Part III, “Models of Governance,” contrasts the diverse regulatory approaches taken by major jurisdictions, highlighting the need for a cohesive international strategy to navigate the complexities of AI-driven creativity. The paper advocates for adaptable, forward-looking legal frameworks that strike a balance between fostering technological innovation and protecting the intellectual property rights of human creators, underscoring the importance of global collaboration and inclusive policymaking in shaping the future of copyright law in the AI domain
Ensuring Just Compensation: Imposing a Reasonable Time Limit on Payment of Money Judgments Under the Fifth Amendment
No full textThe government’s use of eminent domain power to take private property for public use remains a controversial and fast-moving area of law. The Fifth Amendment was ratified as a check on the state’s use of eminent domain power by requiring just compensation after a taking. There is great variation among the states regarding the requirements of just compensation in an eminent domain claim. Some states are unwilling to provide any compensation at all, while others ensure full compensation. Property owners whose land has been taken face a dilemma when, after winning a money judgment in state court, they are unable to collect their judgment because their state legislature refuses to appropriate the funds to pay the judgment.
In 2021, the Supreme Court of the United States provided some relief to beleaguered property owners across the nation facing the uncertain promise of just compensation from their own state courts. Property owners can now go directly to federal court and pursue their claims as the Court held the state litigation exhaustion requirement unconstitutional. Despite this development, property owners still face the obstacle of state sovereign immunity, which bars many of their claims, as well as the federal circuit courts’ divergent interpretations of what just compensation is.
This Comment explores the historical background of the Fifth Amendment to the federal Constitution and how the Supreme Court has interpreted its language. Louisiana and Florida provide a comparison of how much compensation property owners can get depending on which state their property is located in. This Comment argues that in order to satisfy the Fifth Amendment, the government must provide just compensation to the property owner within a reasonable time. Finally, this Comment examines how just compensation is not merely a constitutional mandate, but good economic policy
Vertical Restraints in an Amazon World
No full textVertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.
Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable the manufacturer or brand to bind dealers and retailers to deliver its products to consumers in a manner that maximizes the product’s value to those consumers. Manufacturers try to accomplish this with these unique contractual tools, including price-based vertical restraints such as resale price maintenance and non-price restraints such as restrictions on selling through online platforms such as Amazon. To render these tried-and-true contract provisions illegal would upset a balance that benefits manufacturers and consumers, with no substantial corresponding benefit to anyone else.
Moreover, vertical restraints are powerful tools that manufacturers can use to counter Amazon, which reformers allege uses pressure tactics against manufacturers who do not want their products sold on Amazon’s platform. This reveals a difficult contradiction: on the one hand, reformers want to make vertical restraints illegal, but, on the other, they recognize that these very contract terms are among the most powerful tools manufacturers and dealers may have to limit Amazon’s—and perhaps other large retailers’—power in retailing and distribution. Thus, this Article argues that, as antitrust law has done for some time, it should continue to balance these competing forces through the rule of reason, rather than rushing to illegalize vertical restraints. Indeed, the reformers’ desire to upset the balance struck for vertical restraints calls into question their broader approach to increase antitrust enforcement in other contexts