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Ten Thousand AI Systems Typing on Keyboards: Generative AI in Patent Applications and Preemptive Prior Art
Get PDFGenerative AI makes it possible to create unlimited amounts of text at essentially zero cost. While this technology has many benefits, it can also be used in ways that undermine the goals of the patent system. This Article identifies policy solutions to address the potentially anti-innovative application of generative AI in several patent-related contexts. First, it examines the use of AI to publish massive online databases of preemptive prior art intended to foreclose patentability. This Article argues that computer-generated invention descriptions published without any substantive nexus to human understanding of their contents should not count as “printed publications” under US patent law. In addition, this Article considers the use of AI to automate the process of writing and filing enormous numbers of patent applications. It also explores the associated market incentives as well as the potential role of regulatory measures and market forces to provide a corrective effect
Chancery Court Applies Entire Fairness Standard of Review in Assessing Actions of Conflicted Fiduciaries Engaging in “Value- Destructive” SPAC Transactions
Get PDFThe Ordinary Questions Doctrine
Get PDFIn Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act ( APA ), which requires courts to decide all relevant questions of law and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes-the ordinary questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, if not most, ordinary questions involve questions of law that depend on questions of policy for resolution and can be character- ized either way for purposes of judicial review. Under Chevron, courts did not need to decide how to characterize such mixed questions because the doctrine instructed them to treat statutory ambiguities as presenting questions of policy for the agency to decide. That directive eased the pressure of determining how to handle such questions for purposes of judicial review under the APA. Loper Bright has altered the doctrine but not the nature of ordinary questions. Even though courts may no longer treat these questions as ones of policy simply because the statute is ambiguous, they do not need to characterize every ques- tion as one of law simply because a statutory term or phrase is involved. Many agency interpretations are no different in kind or degree from the agency policy decisions subject to the arbitrary and capricious standard of review in the APA. Courts determine which of the underlying questions are for them to decide independently and which are for the agency to decide, subject to the arbitrary and capricious test. This is a judicial policy choice, and we should be interested in how courts make it. Before Chevron, courts made the choice on an ad hoc basis. After Loper Bright, the temptation is for courts to ignore the problem and decide what they can. This Foreword contends that courts should make the choice mindful of established judicial norms for questions of policy. More specifically, a court should consider whether resolving a question itself would amount to judicial policymaking in the relatively concrete ways that the arbi- trary and capricious test discourages. The claim is not that courts should apply the arbitrary and capricious test straight away to ordinary questions. Rather, the considerations for applying that test are useful in the first instance to dis- cern whether a question is best regarded as one of law or policy, consistent with the APA and the normative values that undergird the allocation of authority between courts and agencies
A Global Crypto Code of Conduct: Crafting an Internationally Centralized Regulatory Body for a Decentralized Asset
No full textThe advent of Bitcoin in 2009 presented a previously unfathomable possibility for the future of currency and monetary transactions. Now, cryptocurrency is ubiquitous; it is increasingly seizing media headlines, novel swathes of investors, institutional bank involvement, and most importantly of all, the attention of government regulators. Yet governments around the globe have failed to adequately keep up with the pace of cryptocurrency\u27s evolution, particularly because of their lack of expertise in this unprecedented area. This Note discusses how cryptocurrency\u27s truly global footprint warrants a partnership between national regulators and industry actors at the international level. Specifically, by exploring the approaches of Japan, China, the United States, and the European Union against the functions and purpose of the international financial regulatory system, this Note argues that the current approaches to global crypto regulation have overly prioritized crypto\u27s effects on traditional financial markets while overlooking the unique role crypto exchanges can play. A common goal towards establishing a meaningful framework grounded in investor protection, reliability, and innovation has thereby been undermined, despite the alignment between the international monetary system\u27s strengths and its capacity to create a global crypto framework. This Note proposes the creation of a specialized cryptocurrency group based on, or molded into, the successful Basel Committee on Banking Supervision, to show how a newly formed partnership between regulators and exchange leaders can establish the future of a sustainable cryptocurrency ecosystem
Rapt Admissions: Comparing Proposed Federal Rule of Evidence 416 “Rap Shield” with the Rule 412 “Rape Shield”
Get PDFCreative expression depicting illicit activity can cause jurors to infer improper conclusions about a defendant, even when the jurors attempt to analyze such evidence objectively. When the government seeks to admit a defendant’s creative work into evidence in a criminal trial, courts use existing evidentiary rules to balance the work’s probative value against its risk of unfair prejudice. These rules are supposed to prevent unfair prejudice, but various scholars have shown that courts do not always appreciate how unfairly prejudicial art can be. Rap music presents unique challenges because jurors may fail to discern the work’s literal versus symbolic meaning. Similarly, several decades ago courts struggled to exclude improper evidence of victims’ sexual histories from the courtroom until social pressure encouraged legislators to pass “rape shield” laws. Now, legislators in several states as well as Congress have proposed “rap shield” laws to exclude improper artwork evidence.
This Note analyzes proposed Federal Rule of Evidence 416, “Limitation on admissibility of defendant’s creative or artistic expression,” in the context of Federal Rule of Evidence 412, which governs admission of a victim’s sexual history in sex offense cases. Although proposed Rule 416 would protect artistic defendants and Rule 412 protects sexual assault victims, the two rules share various similarities; in particular, they both entail categorical rules of exclusion. This Note summarizes the Rule’s social and legal background and concludes by offering recommendations for its improvement
Strategic Litigation in Wartime: Judging the Russian Invasion of Ukraine through the Genocide Convention
Get PDFUkraine\u27s recent initiation of legal proceedings against Russia under the Genocide Convention is a prominent example of what has been termed strategic litigation, denoting the bringing of a case with a goal to produce a wider impact beyond the courtroom. In Allegations of Genocide (Ukraine v. Russia), Ukraine sought a series of declarations from the International Court of Justice (ICJ) that Russia\u27s decision to use force in Ukraine, and its ongoing operation, was unlawful, insofar as such a decision rested on the prevention of genocide. Given that the ICJ does not have the jurisdiction to determine whether Russia has committed aggression, Ukraine creatively argued that Russia has abused its rights under the Genocide Convention as a pretext for its unlawful use of force. It also sought and obtained provisional measures obliging Russia to suspend its military operations. The purpose of this Article is to evaluate the efficacy of this strategic litigation through an examination of the participants\u27goals, the court\u27s strategic choices, and the discernible impact of the provisional measures\u27 decision so far. In turn, this Article contributes to the scholarly literature on strategic litigation impact, the role of judicial institutions in ongoing armed conflicts. It also provides a basic structure for future researchers to consider the longer-term impact of this case in the resolution of the Russia-Ukraine conflict
Closing the Cracks and the Courts: A Comparative Analysis of Debt Collection Regulation in the United Kingdom and the United States
Get PDFConsumers who borrow from a lender today cannot count on dealing with that same lender later if they default on their debt. In today\u27s world of debt collection, the lender will outsource collection to a thirdparty debt collector, or those consumers\u27 defaulted debt will be bought and sold numerous times for pennies on the dollar until eventually a debt buyer decides to pursue payment. Either way, under the current US debt collection laws and regulations, both third-party debt collectors and debt buyers can act outside the scope of debt collection regulation in the United States, and many will take that opportunity to engage in abusive debt collection practices, including abusing the courts as an enforcement mechanism. Through a comparative analysis of the central statutes and regulations governing debt collectors in the United States and the United Kingdom, this Note finds that the accountability gap for debt collectors in the United States stems from the US statute\u27s narrow scope and sparse restrictions on judicial action by debt collectors. In order to close this accountability gap, the United States should adopt the United Kingdom\u27s broad definition of debt collector and a version of the UK Debt Respite Scheme which allows consumers to delay judicial action by debt collectors
Discharge Discrimination
Get PDFAlthough the Bankruptcy Code is facially neutral, the consumer bankruptcy discharge provisions produce anomalies that run counter to bankruptcy\u27s internal principles of not forgiving debt that is based on misconduct or that implicates a public policy concern. For example, the discharge provisions allow some individuals to discharge debt that stems from civil rights violations or tortious discrimination. In contrast, the Bankruptcy Code precludes some debtors from debt relief based on narrow views of misconduct or misconceptions about moral hazards. These individuals who file for bankruptcy owe debts that generally cannot be forgiven, like civil and criminal fees and fines and student loans. These loans are not always debts that stem from the debtor\u27s misconduct or involve a moral hazard, but they still fit within this punitive classification of nondischargeable debt.
This Article adds to existing consumer bankruptcy scholarship by arguing that the anomalies in the bankruptcy nondischargeability provisions create unintended costs that are borne by economically marginalized individuals. The Bankruptcy Code works at cross- purposes with its internal principles of risk spreading and economic rehabilitation by preventing the discharge of penal debt and student loan debt. The inconsistent treatment of debt follows recognizable racial and socioeconomic lines of vulnerability and marginalization. To remedy these inconsistencies, this Article proposes targeted reforms to the bankruptcy discharge system and reintroduces the question of whether there should be nondischargeable debts
Delegalization
Get PDFThe lack of resources available to assist low-income litigants as they navigate the legal system has been widely documented. In the civil context- where a majority of cases involve eviction, debt collection, and family matters--various solutions have been offered to address the problem. These include expanding the civil right to counsel; increasing funding for civil legal aid; providing for greater availability and accessibility of self-help services; adopting a more flexible approach to the provision of legal services (including, for example, unbundled and limited legal services options); scaling back unauthorized-practice-of-law regulation and allowing for higher utilization of other service providers; and placing an emphasis on active judging. The range of possible reforms spans the supply-demand divide: Some focus on external resources, often in the form of increased lawyer provision, while others focus on procedural and judicial reforms Yet another option is the creation of rights that would provide a stronger foundation for legal advocacy, such as a right to housing
A Compulsory Solution to the Machine Problem: Recognizing Artificial Intelligence as Inventors in Patent Law
Get PDFArtificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.
To embrace the development and power of AI, Congress should grant patents, subject to a compulsory license, to AI-created inventions. Though the AI systems themselves do not need the same incentive that a human or corporation does to engage in the inventorship process, the prospect of patent protection can encourage the use of AI in the first place. AI is already a valuable tool in the innovative process, and its power may only grow with increased sophistication. Because US patent law seeks to incentivize innovation, its goals are best served by embracing AI inventorship