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Secrets, Secrets are No Fun: Supreme Court of Georgia Expands the Possible Remedies for a Confidential Breach of Fiduciary Relationship and Analyzed Certified Questions of Law
No full textThe crux of the Supreme Court of Georgia’s decision in King v. King revolved around one theme: the consequences for a party that fails to disclose information in a confidential and fiduciary relationship. In King, the plaintiff’s difficult circumstances began over three decades earlier when his father died in a plane crash and a wrongful death suit was filed on his behalf. Though the plaintiff became entitled to settlement funds as a result of the wrongful death suit, the plaintiff never received the funds and filed a suit accordingly, alleging that the defendant breached his fiduciary duties and converted the funds
Of Another Mind: AI and the Attachment of Human Ethical Obligations
No full textWe are entering a new world. A world in which we humans will be confronted with our intellectual limitations as we watch the evolution of artificial intelligence (AI) that we have created meet and exceed our capabilities. I have a few predictions about this—based first on how technology changes occur, with a layer of how human nature reacts to those changes.
My first prediction is that we may not initially recognize AI’s actual capabilities. We will find ways of describing what AI can do as somehow mimicry—the advances of a stochastic parrot, perhaps; we will not want to recognize our own limitations after two thousand–plus years tenaciously holding onto an abiding belief in human exceptionalism. My second prediction is that some of us will understand what is happening and others will deny it, vehemently. My third prediction is that some of us can see what is over the horizon right now. Although we are not at the horizon, we are walking toward it. Others believe in a flat earth with no horizon, at least on this topic.
Intellectual capabilities will only be one part of the human great awakening. The other part will come in the form of being told—through research papers, whistleblowers, or even our own experiences—that AI has achieved or is about to achieve a level of self and situational awareness. Some would call this consciousness and, combined with intellectual abilities, a form of sentience
Fairness and Fair Use in Generative AI
No full textAlthough we are still a long way from the science fiction version of “artificial general intelligence” that thinks, feels, and refuses to “open the pod bay doors,” recent advances in machine learning and artificial intelligence (AI) have captured the public’s imagination and lawmakers’ interest. We now have large language models (LLMs) that can pass the bar exam, carry on (what passes for) a conversation about almost any topic, create new music, and create new visual art. These artifacts are often indistinguishable from their human-authored counterparts and yet can be produced at a speed and scale surpassing human ability.
“Generative AI” systems, such as the Generative Pretrained Transformer (GPT) and Large Language Model Meta AI (LLaMA) language models and the Stable Diffusion and Midjourney text-to-image models, were built by ingesting massive quantities of text and images from the internet. This was done with little or no regard to whether those works were subject to copyright restrictions or whether the authors would object to their use.
The rise of generative AI poses important questions for copyright law. These questions, however, are not entirely new. Generative AI gives us yet another context to consider copyright’s most fundamental question: where do the rights of the copyright owner end and the freedom to use copyrighted works begin? Some jurisdictions will choose to answer this question in relation to generative AI with special rules. Others will rely on fair use and perhaps even fair dealing. Some jurisdictions will hide their heads in the sand as this technology develops, tacitly allowing widespread infringement or opting to let others do the heavy technological lifting of training large models.
My aim in this Essay is not to establish that generative AI is, or should be, non-infringing; it is to outline an analytical framework for making that assessment in particular cases
Criminal Subsidiaries
No full textCorporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself—a subsidiary-only conviction (SOC). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s expressive purposes while avoiding socially unacceptable collateral consequences from parent-level conviction. This kind of settlement presents an under-considered application of entity partitioning in which adjudicated criminal liability is isolated to a subsidiary, leaving the rest of a firm’s assets unencumbered by a conviction’s collateral consequences. This criminal partitioning differs, however, from better-known private asset partitioning. That is because within a firm, entity borders tend to be more porous to criminal than to private liability. Thus, in the criminal context, partitioning occurs through ex post settlement between parents and prosecutors, rather than the ex ante and unilateral use of asset partitioning seen in the private context. After considering this extension in light of prosecutorial practice and a ten-year dataset of federal SOC settlements, this Article calls for expanded use of SOC settlements as a means for balancing competing public interests in corporate enforcement and the avoidance of social cost
Western Feminism Before and After October 7
No full textIn this interview, I provide my view on the state of Western feminism before and after the assault on Gaza. The interview includes discussion of the various strands of emergent feminisms in the West and some of their offshoots as they appear in Palestine in the context of Israeli colonialism and resistance to it
Grágás and the Legal Culture of Commonwealth Iceland
No full textThe subject of this chapter is Grágás, the compilation of the laws of Iceland in the Commonwealth period. The chapter begins by outlining the court structure of Iceland and the fundamentals of legal procedure, briefly discussing the importance of law to the conversion narrative in Íslendingabók and its account of the first decision to put Iceland’s laws into writing. It describes the distinctive concepts and customs which underlie the legal system of medieval Iceland, looking at the role of the búi (neighbour) in legal procedure, and explaining the key concepts of helgi (the right of inviolability), grið (domicile, or household attachment), vígt (the right to kill or to avenge a wrong with impunity), and the problem of dealing with ómagar (dependants). The chapter argues that the laws and sagas are often mutually informing and demonstrates how fundamental an understanding of law is to the interpretation of the Íslendingasögur. It gives numerous examples of how the laws can be used to help elucidate the sagas, and uses the sagas to reveal the importance of law and legal knowledge in medieval Icelandic society
Bottom-Up Federal Sentencing Reform
No full textToday, about 160,000 people live behind the bars of a federal prison. That is roughly the population of Alexandria, Virginia. Starting from the premise that the federal system’s contribution to mass incarceration should be curbed and recognizing that broad legislative reform seems unlikely, this Article considers the federal judiciary’s potential role in sentencing reform.
Bottom-up sentencing reform consists of federal trial judges exercising their decisional authority in individual cases to engage with the fundamental premises and assumptions that underlie traditional sentencing decisions, categorically rejecting them when appropriate. This approach to reform is available under current law. In fact, a few prominent examples of this type of reform already exist. This Article proposes expanding those existing models and concludes that the benefits of more ambitious judge-led reform are not offset by potential critiques. In the absence of top-down reform, federal trial judges should use their discretion and fact-finding power to reform federal sentencing
When All Else Fails: The Doctrine of Foreign Equivalents as a Bar to Cultural Misappropriation
No full textThis Note argues that under trademark law, the doctrine of foreign equivalents can be utilized to prevent some aspects of legally enforced cultural misappropriation. While it would be impossible to solve cultural misappropriation in one written piece, this Note proposes that the doctrine can serve to prevent applicants from obtaining trademark protections for certain foreign words.
Part I of this Note provides background on cultural misappropriation and the doctrine of foreign equivalents. Part II argues why the doctrine of foreign equivalents is poised to solve some of the harms of cultural misappropriation both in its structure and purpose. Part III proposes changes to the application of the doctrine that will aid not only in its consistency but also in its prevention of cultural misappropriation. Finally, Part IV discusses potential challenges and limitations to this proposed structure.
This abstract was taken from the author\u27s introduction