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Petitioner Estoppel from Patent Trial and Appeal Board Proceedings after \u3ci\u3eSAS Institute Inc. v. Iancu\u3c/i\u3e
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Algorithms and Human Freedom
No full textPredictive analytics such as data mining, machine learning, and artificial intelligence drive algorithmic decision making. Its all-encompassing scope already reaches the very heart of a functioning society . Unfortunately, the legal system and its various tools developed around human decisionmakers cannot adequately administer accountability mechanisms for computer decision making. Antiquated approaches require modernization to bridge the gap between governing human decision making and new technologies. We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to incorrect, unjustified, or unfair outcomes? Second, how should one regulate those features to make outcomes more acceptable? Third, how can one ensure that the use of predictive analytics sufficiently respects human freedom? We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to incorrect, unjustified, or unfair outcomes? Second, how should one regulate those features to make outcomes more acceptable? Third, how can one ensure that the use of predictive analytics sufficiently respects human freedom? You are not free when you are subject to the arbitrary will another, and predictive analytics is no exception. It violates your freedom when it pushes you down an arbitrary and capricious path.We answer the first question by profiling uses of predictive analytics. We adapt the idea of profiling people. A profile of a person is a summary of characteristics relevant to evaluating and predicting the person\u27s behavior. Our profile consists of five features that significantly affect the extent to which a system will yield incorrect, unjustified, or unfair decisions. We answer the second question by explaining how to control predictive systems by regulating the features the profile identifies. Along with others, we propose that a government agency regulate the use of predictive systems. The novel feature of our approach is the use of legal regulation to unify consumer demand in ways that create a type of norm extensive studied in game theory, a coordination norm
Copyright Protection for Conceptually Separable Artistic Features Post-\u3ci\u3eStar Athletica\u3c/i\u3e: A Useful Article on Useful Articles
Get PDFIn the wake of the U.S. Supreme Court’s ruling in Star Athletica v. Varsity Brands in 2017, U.S. federal district courts and the Copyright Office Review Board have grappled with the Supreme Court’s reimagined conceptual separability test for determining the copyrightability of artistic aspects of useful articles. An examination of the decisions in the first eighteen months post-Star Athletica reveals district courts have interpreted the Supreme Court’s guidance inconsistently, with some courts adding language to the test and even using overruled portions of previous tests. The author takes an empirical approach to evaluating such decisions and the trends that emerge from them. The examined range begins at the issuance of the Star Athletica decision in March 2017 and ends in mid-October 2018. Because courts continue to struggle to define protectable elements of useful articles despite the Supreme Court’s guidance, the author proposes that Congress should enhance the conceptual separability test in the Next Great Copyright Act. In the meantime, litigants may take some lessons from Star Athletica, such as to examine whether the object even constitutes a useful article and to disregard artistic judgment and the remainder of a useful object aside from the separable design. Also, litigants may consider the guidance that emerges from lower court cases, such as the “primary function” test from Judge Forrest of the Southern District of New York
A Tale of Two Approaches: Analysis of Responses to EU’s FTA Initiatives on Geographical Indications (GIs)
Get PDFVol. 36, No. 1
Get PDFJanus: Otherwise Known As The Death Of Stare Decisis, But Only As It Relates To Unions, by Amanda R. Clark and Susan M. Matta
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1107/thumbnail.jp
Executive Rulemaking and Democratic Legitimacy: Reform in the United States and the United Kingdom\u27s Route to Brexit
Get PDFEstablished public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the wish list of advocates of deregulation. In the United Kingdom no general statute requires a notice-and-comment process with public input and reason-giving, but the judiciary is beginning to view public involvement as a way to promote the democratic accountability of executive policymaking. If these developments were given a statutory base in the Brexit bill, the United Kingdom could achieve enhanced public accountability without the admitted weaknesses of a referendum. In the United States the notice-and-comment provisions of the APA require openness to public input and reason-giving by regulators. The courts explicitly invoke democratic values to justify rulemaking procedures that require transparency, public participation, and reason-giving. American procedural requirements strike a balance between democratic accountability and policymaking discretion that could help the United Kingdom craft more democratically responsive procedures. However, if legislative and executive branch changes in the United States succeed, we may see a reversal where the United Kingdom moves toward rulemaking procedures that are more accountable to the public at the same time as the United States moves away from rulemaking and operates in a less transparent manner. The worry in the United Kingdom is that the transition to the post-Brexit world will be only weakly informed by thoughtful input from the public. The worry in the United States is that executive policymaking will become increasingly difficult and subject to challenge