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The Shadow of the Law Versus a Law With No Shadow: Pride and Prejudice in Exchange for Generative AI Authorship
Get PDFAs generative AI that can perform almost any intellectual task a human could, is already a game changer in miscellaneous aspects of modern life, determining its authorship, ownership, and accountability is critical.
The axiom held by current American law that human creativity is “the sine qua non at the core of copyrightability”, has very little to do neither with legal history nor with the current state of the law regarding the perception of legal agency as equal human personhood. Likewise, If the human factor is so essential to copyrightability, it should follow that the relevant legislation should state that principle. Strangely enough – it does not. Hence, penumbral thinking in both the constitutional and the statutory arenas lies at the bottom of denying authorship to generative AI.
Penumbral thinking, being “the shadow of the law” versus copyright law, titled “a law with no shadow,” due to its binary perceptions of copyrightability, leaves the concept of authorship caught at a crossfire between the two. Static models that vest pre-fixed ownership in one component of the AI value chain, ignore the causation dilemma inherent in generative AI technological mechanisms.
Likewise, a rights-based approach that correlates with ownership is not sufficient in terms of a risk-based approach that correlates with accountability, and vice versa. Hence, the advocacy for a flexible model that takes into account the chameleonic shifts of risks and rights of generative AI, while using spectral thinking regarding both. Thus, better benefiting the public good than pride and prejudice
Carbon Offsets and Washington\u27s Climate Commitment Act: Can Carbon Offsets Be Aligned with Environmental Justice Principles?
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Sneakers, the Shoes that Talk the Talk and Walk the Walk: How Jack Daniel’s Properties, Inc. v. VIP Products Left its Footprint on Trademark Law and the Sneaker Industry
Get PDFAs the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC. The holding in Jack Daniel’s marked a new chapter of intellectual property jurisprudence, as indicated by the Court’s limitation of the landmark case, Rogers v. Grimaldi, that set forth the modern expressive use test. Although Jack Daniel’s did not pertain to the fashion industry, the Court’s decision nonetheless impacted the sneaker industry because a Second Circuit case involving sneakers, Vans, Inc. v. MSCHF Product Studio, Inc., was one of the first cases to apply the Jack Daniel’s holding. This Note takes particular interest in the sneaker industry’s strong cultural roots and customs and how recent changes in trademark jurisprudence have and will continue to operate in the sneaker industry. First, this Note argues that, based on the rule in Jack Daniel’s that limits access to the Rogers test for First Amendment-protected expressive use, and its application to the Van’s sneaker case, the Jack Daniel’s rule will limit speech that is embedded into sneakers and similar consumer goods where the good itself is an expression of speech. This Note further argues that, in sneaker cases specifically, the new Jack Daniel’s rule has the potential to preclude inquiries in Rogers that serve as an important buffer for defendants to have a chance at prevailing in expressive use cases
The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP
Get PDFSixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.
With the benefit of material obtained from numerous archival sources, this Article argues that Kalven’s categorization of Patterson (and the three other rulings by the Supreme Court of the United States that it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years).
On June 1, 1956, the injunction preventing the NAACP from doing business in the state was secured by Alabama’s Attorney General John M. Patterson from Montgomery County Circuit Court Judge Walter B. Jones. This Article is narrowly focused on the two years leading up to, and the first few months following June 1, 1956, and is part of an extensive research project focused on the history of this protracted litigation.
Ultimately, Alabama’s injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All the President’s Men, nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country
Henderson and the Objective Observer Standard: The Future of Race-Conscious Standards Post-Students for Fair Admissions
Get PDFOn June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions will continue to have a ripple effect on other sectors, including the judiciary. The potential for Students for Fair Admission’s effects to bleed from the classroom to the courtroom are a dangerous and looming reality.
In contrast, over the past decade, the Washington State Supreme Court has made a series of decisions and court rules to support race-conscious rulings. The court’s innovative approach enabled Washington State to consider the influence of racial bias in a trial when reviewing cases on appeal. In 2022, the Washington State Supreme Court issued the pinnacle of its race-conscious decisions in Henderson v. Thompson, holding that a court must grant a new civil trial if an objective observer could view race as a factor in the verdict. Subsequently, Henderson v. Thompson was petitioned for certiorari to the Supreme Court of the United States. In Justice Alito’s statement respecting the denial of certiorari, the Justice placed special concern on a potential conflict with Students for Fair Admissions. The Justice noted that Henderson “appear[ed] likely to have the effect of cordoning off otherwise-lawful areas of inquiry and argument solely because of race.” While the Supreme Court did not hear Henderson, its open skepticism left the possibility for similar race-conscious policies to be challenged and overturned.
This Comment will focus on the narrowing constitutionality of race-conscious policies under Students for Fair Admissions. Despite the Supreme Court’s stringent interpretation under Students for Fair Admissions, there is still room for race-conscious policies such as Henderson. After the Introduction, discussing the importance of the constitutionality of race-conscious efforts, Part I of this Comment will discuss the history and background of the constitutional debate on race-conscious policies. Part II will elaborate on why Henderson’s objective observer standard should remain constitutional, namely because (1) it identifies and remediates a specific instance of discrimination, (2) it is not a race-based classification, and (3) it is the exercise of state sovereignty, which ought to be preserved. Part III will address notable counterarguments to the objective observer standard. Finally, Part IV proposes that racial considerations, namely those made to remediate a specific instance of discrimination, like in Henderson, should be upheld as constitutional under the Equal Protection Clause of the Fourteenth Amendment
Pathways to a Diverse Legal Academy: Pipeline Programs After SFFA
Get PDFResponding to the Supreme Court’s 2023 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) decision invalidating race-conscious admission policies in a public and private university, I urge an emphasis on pipeline programs to ensure law school admissions pools include racially diverse applicants. I detail my school’s pipeline programs for high school, college students, and recent college graduates—both as these programs were implemented before the Court’s decision and as they changed in its wake—as examples of what law schools generally, and collectively, should be doing. Most importantly, I focus on the lawful recruitment, design, and content of pipeline programs aimed at fostering diverse campus admissions toward a legal profession still lacking diversity
