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Granting Legal Personality to Artificial Intelligences in Brazil’s Legal Context: A Possible Solution to the Copyright Limbo
Full text linkThis Article investigates the feasibility and consequences of granting legal personality to Artificial Intelligences (AIs) in the context of Brazilian law, with a special focus on copyright law. It conducts a thorough analysis of how such a grant can enhance legal security and encourage innovation in AI technologies. Through an integrative review of the literature and a comparative analysis of national and international legislation and jurisprudence, the study explores the implications of this legislative innovation. This Article highlights the importance of legal clarity for companies and investors in the AI sector, emphasizing that granting legal personality to AIs can simplify the identification of the copyright holder and protect investments. However, this Article also recognizes challenges, such as the complexity of assigning authorship and evaluating the originality of works created by AIs. A careful debate is proposed on criteria for determining which AIs should be considered legal persons and how to balance the rights and duties of AIs and their creators. This Article suggests adapting the legal structure of the limited liability company (LTDA) to incorporate AIs as operational entities, aiming for an effective legal framework for managing risks associated with AI. This Article concludes that granting legal personality to AIs in Brazil is a promising strategy, requiring careful consideration and forward-looking vision, emphasizing the need for Brazilian law to prepare for the opportunities and challenges of the AI era
Coming Full Circle: The International Legal Status of the International Olympic Committee
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Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law
Full text linkThe issue of how to prove discrimination in reverse discrimination cases has produced a division in the circuits and some strongly worded opinions about discriminatory discrimination law. The courts begin with the three-stage proof framework developed by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green, 411 U.S. 792. Some courts adjust the prima facie case, the first stage of the analysis, by requiring a reverse discrimination plaintiff to prove background circumstances that justify the inference that the defendant discriminates in a way that is not consistent with historical patterns of discrimination. Other courts reject the background circumstances requirement and permit reverse discrimination plaintiffs to establish a rebuttable presumption of discrimination based on the acknowledged weak evidence of the prima facie case. Neither of these approaches is acceptable. The background circumstances approach always has been susceptible to an Equal Protection challenge. That challenge seems even more likely, and perhaps more likely to succeed, after the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023). On the other hand, permitting reverse discrimination plaintiffs to establish a prima facie case based on the same evidence required in traditional discrimination cases undermines the basic assumption on which the prima facie case was based. The appropriate solution is for the Supreme Court to abrogate the McDonnell Douglas analysis and free courts in all employment discrimination cases to analyze motions under the sufficiency-of-the-evidence standard and factfinders to evaluate the ultimate issue of employment discrimination under the preponderance standard. The shifting burdens and proxy questions of the McDonnell Douglas framework served a useful purpose in developing employment discrimination law in its early decades. Now it is time for the Court to jettison the five-decade-old structure and permit employment discrimination law to evolve. The Court has that opportunity in a case in which it has granted certiorari: Ames v. Ohio Department of Youth Services, 87 F.4th 822, 824 (6th Cir. 2023), cert. granted, 2024 WL 4394128 (U.S. Oct. 4, 2024) (No. 23-1039)
Living the Good Life in the Anthropocene
Full text linkThe Stockholm Resilience Centre has concluded that the number of planetary boundaries we are crossing has increased from three in 2009, when the Centre\u27s researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between safe and just planetary boundaries raises questions regarding how to conceptualize the good life. In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the good as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like freshwater to amenities like outdoor recreation
The Three Elements of \u3cem\u3e303 Creative\u3c/em\u3e and How They Limit the Decision’s Impact
Full text linkIn 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.
Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding context. This Comment argues that this reaction is overstated. In fact, the Court’s opinion is highly limited to the precise factual circumstances of that case. And those facts were extraordinarily favorable to 303 Creative because of factual stipulations that are unlikely to be present in future cases.
Because the Court’s opinion is based on unusually lopsided stipulated facts, this Comment argues that it is unlikely that many businesses will be able to present a 303 Creative free speech defense against a public accommodation law. Businesses will need to show (1) a public accommodation law would force them to create new speech; (2) that speech would be, at least in part, the business’s own speech; and (3) that speech would actually express the message that the business wishes not to express. This Comment explains that these factors are unlikely to be met in many future cases, which should limit 303 Creative’s practical impact
Liability Rules for Automated Vehicle: Definitions and Details
Full text linkThis paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a Computer Driver, which can have negligence liability, anytime a court or jury determines that the Computer Driver\u27s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to a Human Driver by specifying a portion of time during the take-over transition period in which the Human Driver cannot have contributory negligence or comparative fault as a matter of law. We have proposed and defended these views in contemporaneous traditional law review articles, but to achieve the needed regulatory reform, our suggestions must be presented in a form containing proposed statutory language for adoption by a legislature. To that end, we make our case in this paper by presenting proposed legal definitions and explanatory legislative history for use by legislatures to implement our recommended structure. We use this non-traditional presentation because we believe the complexity associated with automated driving technology can only be fully conveyed by providing the details in a precise way, with technical definitions and wording that should be familiar to engineers and safety specialists
Two Steps Too Far: New Limitations on the Use of the Texas Two-Step to Resolve Mass Tort Liability in Bankruptcy
Full text linkThis paper explores the mechanisms by which companies have utilized corporate restructuring through divisive mergers in conjunction with the available protections and tools of the United States Bankruptcy Code to resolve mass tort liability without placing the entirety of the business under bankruptcy. Popularized in Texas, a divisive merger is a mechanism by which an existing business entity divides itself into two new entities, allocating all pre-existing assets and liabilities to each as they see fit. Although intended to be a means by which to easily sell assets of a business, it has been more popularly used to resolve mass tort liability burdening a business.
Known as the Texas Two-Step, this procedure requires two simple steps. First, a business undergoes a divisive merger and allocates all liability associated with its mass tort claims to a newly created entity. Second, the liability-burdened entity places itself under Chapter 11 bankruptcy, in order to enjoin further prosecution of claims and to resolve all current and future liability through the creation of a settlement trust administered by the bankruptcy court. In addition to presenting the mechanisms of the Texas Two- Step and a case study of its use, this paper will present the series of decisions culminating in the Third Circuit’s instruction to reject its use