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Metaphysical Quandary of Synthetic Media Transparency
No full textArtificial intelligence (AI) is reshaping our view of reality. The interaction between human creativity and generative AI presents both opportunities and challenges concerning free speech and innovation. AI’s transformative impact on perceptions of innovation complicates discussions surrounding creativity and societal expectations. A human-centric perspective in the debate over government-mandated transparency for AI-generated creative works reveals a notable conflict. This conflict arises from the need to balance the protection of human creativity with an apparent obligation to provide information about the human or nonhuman origins of creative works. As society increasingly relies on AI technologies to produce art, literature, and other forms of creative expression, classifications of speech as “AI-generated” impact public perception of creativity and creator rights. This complexity evokes a dialogue that considers the implications of labeling creative works as “AI-generated” while ensuring that human contributions and perspectives are not overshadowed. Tension arises because many content creators are incorporating AI-generated elements into their innovative projects. This Article advocates for the rights of artists and content creators to maintain confidentiality regarding the presence of AI-generated elements in their creative work. As the field of AI-generated media rapidly evolves, this Article advocates for democratizing AI-assisted digital output by establishing a sui generis framework that will counter government efforts to categorize such content. The sui generis framework proposes that individuals should not be obligated to reveal whether their creations incorporate outputs generated by artificial intelligence, allowing them more creative freedom and personal autonomy over their creative processes. Furthermore, the Article examines the role of transparency in AI-generated works for consumers and explores the impact of technology on creator rights and intellectual property
Using the Transmission Grid to Make “Second Best” Decarbonization Better
No full textInstead of a “first best” decarbonization approach such as a national carbon tax, U.S. efforts to decarbonize the electric power sector draw heavily on the decentralized, often fragmented tools of state utility regulation. These “second best” decarbonization approaches can create many benefits, but they also present several challenges for energy markets. In this Essay, I focus attention on how interstate transmission planning and cost allocation can help to mediate and improve the efficacy of second best decarbonization policies. Despite much-needed recent improvements to federal transmission policies, opportunities remain to continue to reform transmission grid regulation to improve second best decarbonization in the future
Delaware Supreme Court Rules That Officer Exculpation Amendments Do Not Require Separate Class Vote of Non-Voting Shares
No full textBefore 2022, Section 102(b)(7) of the Delaware General Corporation Law (the DGCL ) permitted corporations, via amendments to their corporate charters, to exculpate corporate directors from personal liability for breaches of their duty of care ( & 102(b)(7) ). Delaware amended & 102(b)(7) in 2022 to allow corporations to extend exculpation to officers (the 2022 Amendment )
Goodbye, Zoning?
Full text linkAmerican zoning is under attack on multiple fronts. The concerns of zoning’s many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning’s critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court to find it unconstitutional, so this Article features excerpts from three fictitious Supreme Court opinions that reflect the jurisprudence of today’s iteration of the Roberts Court. Unfortunately for those who see the elimination of zoning as a magic bullet for many of society’s ills, a judicial declaration that zoning violates the protections afforded by the Due Process, Takings, Equal Protection, and Contracts Clauses would only result in the re-creation of some of zoning’s most problematic aspects, bringing American society back to square one. Moreover, eliminating classic (“Euclidean”) zoning would invalidate modern modifications that respond to current socioeconomic and environmental conditions. Rather than waving goodbye to zoning, this Article offers four achievable steps that local and state governments can take today to continue the longstanding process of adapting zoning (the good and the not-so-good) to changing realities
Queering Carceralism
Full text linkThis article endeavours to expand the horizons of queer carceral studies, recognizing it is an apt frame of reference for reconsidering empirical research and advocacy which welcomes queerness as a central and fundamental analytic lens to interrogate carceral capitalist logics. As I have argued elsewhere, we find ourselves in quite the carceral age. Despite the fact queer, trans, and gender nonconforming people continue to be disproportionately incarcerated, if not otherwise affected by the carceral system, queer studies has paid scant attention to the prison, while critical prison studies has only somewhat engaged with queerness. Indeed, the historical illegality, costs, and subsequent consequences of queerness, broadly conceived, teaches many trans/queer/nonconforming folks their lives will be intimately connected to legal and prison systems. Therefore, it is important to expand the horizons of queer carceral studies to better situate carceral capitalistic conversations and concerns. This discussion provides a useful entry point for the analysis of costly legal challenges and associated barriers for queer and trans people; ongoing restrictions and decreases in correctional health care budgets; ongoing restrictions and decreases in community services; and ongoing restrictions and decreases in housing. Ultimately, I conclude that more challenges than solutions persist, a matter that will require remedial socio-legal and carceral policy work at all government levels
Reasonable AI: A Negligence Standard
Full text linkEven as artificial intelligence (“AI”) promises to turbocharge social and economic progress, its human costs are becoming apparent. For example, selfdriving technology will someday make traffic jams a thing of the past, but technologists now acknowledge that it will never eliminate all traffic deaths. By design, AI behaves in unexpected ways. That is how it finds unanticipated solutions to complex problems. But unpredictability also means that AI will sometimes harm us. To curtail these harms, scholars and lawmakers have proposed strict regulations (to help ensure firms develop safe algorithms) and strict corporate liability (for injuries that nonetheless occur). These rigid approaches go too far. They dampen innovation and disadvantage domestic firms in the international technology race. The law needs a more nuanced approach to holding corporations liable for their AI, one that balances progress with fairness. Tort law offers a compelling template. The challenge is to adapt its distinctly human notion of fault to algorithms. Tort law’s central liability standard is negligence, which compares the defendant’s behavior to an external reasonableness benchmark. But there is no clear comparison class for AI. Assessing algorithms by reference to how reasonable people behave would set too low of a bar—AI can and should outperform humans on many tasks. Assessing AI instead by reference to itself is often impossible—there are not enough algorithms in many contexts to establish a meaningful baseline. This Article offers a novel negligence standard for AI. Instead of comparing any given AI to humans or to other algorithms, the law should evaluate it against both. By this hybrid measure, an algorithm would be deemed negligent if it causes injury more frequently (e.g., causes more accidents per mile driven) than the combined incident rate for all actors—both human and AI— engaged in the same type of conduct. This negligence standard has three attractive features. First, it offers a baseline even when there are very few comparable algorithms. Second, it incentivizes firms to release all and only algorithms that make us safer overall. Third, the standard evolves over time, demanding more of AI as algorithms improve and proliferate
Brain-Dead Surrogacy and Testamentary Disposition: Legal Rights over One’s Body for Reproductive Purposes
Full text linkThrough the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities for infertile couples to welcome a child. Yet so far, no literature has considered the implementation of brain-dead surrogacy from a legal perspective. This Note evaluates the efficacy of brain-dead surrogacy under three different legal frameworks: contracts, organ donation, and wills. These analyses seek to identify an application of brain-dead surrogacy that most effectively protects the interests of the surrogate, the intended parents, and the child alike. Ultimately, brain-dead surrogacy would be best effectuated under the wills framework, by honoring testamentary dispositions of one’s body for reproductive purposes. The wills framework is optimal because it would (1) make altruistic braindead surrogacy enforceable; (2) avoid some harms associated with commercial surrogacy; (3) ensure exclusive and informed consent by the testator-surrogate; and (4) safeguard intended parents’ expectations of parenthood
Delaware Supreme Court Rules That Both of MFW’s Dual Protections Are Required to Obtain Business Judgment Review of Any Conflicted Transaction Involving Control Stockholders
Full text linkIn In Re Match Group, Inc. Derivative Litigation, 315 A.3d 446 (Del. 2024) (“Match”), the Supreme Court of Delaware (“Supreme Court” or “Match Court”) considered whether both independent committee approval and an unaffiliated stockholder vote are required to obtain business judgment review of transactions––in addition to so-called freeze-out mergers––in which a controlling stockholder receives a “nonratable benefit” at the expense of public stockholders. Given the gravity of the issues presented, Match ranks as one of the most highly anticipated Supreme Court decisions of recent years
Understanding Brady Violations
Full text linkThis largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Mostviolations occur in a small number of states, and most often, state courts provide relief. And while there is not quantitative evidence of an epidemic, the individual effects of Brady violations are severe. On average, a defendant whose Brady rights are violated spends more time in prison than a defendant who is later exonerated.
When government officials routinely violate a clearly established constitutional right like Brady with such negative consequences to the injured parties, the time is ripe for evidence-based interventions to enhance constitutional compliance. The insights from this study point to a new range of strategies. For example, focusing on preventing “good faith” Brady errors, especially in non-homicide cases, may be substantially more productive than solely focusing on punishing “bad faith” Brady violations—a tactic that has proven to be frustratingly unsuccessful. Relatedly, working with law enforcement officers to better identify and submit potential Brady evidence to prosecutors may create a smoother pipeline for the eventual production of material evidence to defendants. Ultimately, by providing unprecedented detail about historical Brady violations, this study will serve the cause of future overall Brady compliance
Goncharov (1973), Internet Folklore, and Corporate Copyright
Full text linkGoncharov (1973) is a meme, which is a term broadly used to refer to a species of viral internet creativity. Memes can be many different things, but Goncharov is an especially rich, complex, collaborative, and mutating one. It revolves around a movie that does not exist. Goncharov is a fictional Martin Scorsese film that the internet collectively pretends was produced in 1973. Over the course of a few feverish weeks in the fall of 2022, social media users, with no coordination and without knowledge of each other or the overall project, created a cast, storyline, soundtrack, reviews, fanfiction, and a promotional poster. And they did it all for free. Actually, they did it all for fun—a concept foreign to copyright law’s idea of what drives creativity.
This Article uses Goncharov to illustrate how copyright law doctrines have developed to support a narrow, corporate conception of copyright. Copyright law depends heavily on an understanding of creativity as an economic venture mediated by contractual relationships. Sprawling collaborative and unmonetized memes like the Goncharov meme sit uneasily in the system because they are likely uncopyrightable as a type of folklore. However, positioning a meme like Goncharov as the equivalent of public domain folklore leaves it vulnerable to financial exploitation. This Article uses the vehicle of Goncharov to ask whether such a result is what copyright law should support, or whether we should rethink how we treat the new traditional knowledge being developed daily by our creative culture. This Article argues that copyright law dangerously focuses attention on a very small slice of human creativity, leaving vast amounts of creativity devalued as undeserving of legal protection. This hierarchy paints a watered-down picture of creativity. Creativity, as can be seen just in the single example of the Goncharov meme, is so much more complex, multi-faceted, unpredictable, and interesting than current copyright law posits. As we prepare to grapple with machine-generated creativity that may challenge copyright assumptions, we should not forget the vast swaths of human creativity that also challenge those assumptions