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Fairness and Fair Use in Generative AI
Get PDFAlthough 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
Climate Risk, Insurance Retreat, and State Response
Get PDFClimate change is fundamentally destabilizing the private insurance industry, with many high-profile insurance companies exiting states in the face of catastrophic, climate-induced risk. This rapid insurance retreat represents a major market signal in response to climate-exacerbated risks. Private businesses are making actuarial decisions, assessing that some locations are just too vulnerable to insure. At the same time, this insurance retreat also poses a policy challenge for states as they react to the mounting insurance gaps left by exiting private insurers.
This Article analyzes insurance retreat, its attendant policy challenges, and the lessons that can be drawn from state responses. It first describes the causes and effects of private insurance retreat. Then, the Article examines different potential policy responses to insurance retreat, including interventions modeled after the federal National Federal Insurance Program (NFIP) as well as state insurance programs in California, Florida, and Louisiana. Finally, the Article offers a comparative analysis of these different policy response options. It observes that existing policies differ substantially along two important dimensions: 1) extent of government intervention, and 2) prioritization of physical risk concerns versus financial transition concerns. It also explores how the different state programs show surprisingly diverse policy approaches and how-contrary to assumptions-many do not actually subsidize insurance affordability. Through these observations, the Article uncovers unexpected examples of state insurance policies complementing, rather than contravening, pricing signals sent by private insurance retreat
Institutional Design and the Predictability of Judicial Interruptions at Oral Argument
Get PDFExamining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply
The Legal Crisis Within the Climate Crisis
Get PDFClimate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations following natural disasters. This final tool of unmanaged retreat has emerged as the default “strategy.” However, longstanding property and tort law doctrines—developed when there was a more stable physical environment—are poised to thwart these tools.
In this Article, I argue that just as climate change destabilizes the physical environment, legal doctrine is also ripe for destabilization. Using coastal zone adaptation challenges as a touchpoint, I show how legal doctrines designed for a more stable physical environment constrain climate adaptation efforts. For example, if governments invest in armoring measures, they will confront physical takings jurisprudence that mandates just compensation. The duty to repair and maintain—a mixed question of property and tort law—complicates disinvestment by states and localities from coastal roads and their retreat from coastal areas. Legal doctrine needs to adapt to meet the climate moment. Absent a doctrinal change, climate adaptation will default to unmanaged retreat—an ad hoc, reactive, and disjointed “strategy” that exacerbates existing inequalities
Non-Uniformity is the New Uniformity: Inconsistent Quarterly Fees and Why the Bankruptcy Administrator System Must Go
Get PDFThe Bankruptcy Clause’s call for uniformity is one of the more mysterious and unstudied constitutional constraints on bankruptcy, yet it is an ever-present policy consideration. It is a flexible guidepost that functions as a minor constraint on bankruptcy law. However, courts have recently allowed this guidepost to bend too much. When the courts upheld a split bankruptcy administration system as constitutionally uniform, it set the stage for needless, avoidable litigation. The most recent examples of such needless litigation are the Supreme Court cases of Siegel v. Fitzgerald and Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC.
This Comment analyzes the Bankruptcy Uniformity Clause’s history, the need for its enactment, and its evolution. It also analyzes the circuit split leading to Siegel and John Q. Hammons and the motivations behind the Siegel decision. Next, this Comment examines remedies in post-Siegel cases, and where the future of Bankruptcy Uniformity Clause jurisprudence may be headed.
Finally, this Comment argues that the existence of a dual-scheme United States Trustee and Bankruptcy Administrator system is unconstitutional. This Comment proposes that Alabama and North Carolina join the other forty-eight states in the U.S. Trustee system to avoid pointless litigation like Siegel and John Q. Hammons
