Monthly Archives: June 2019
What is the relationship between copyright law and artificial intelligence or machine learning systems that produce outputs biased by race, gender, national origin, and related aspects of being human? That is the question that Amanda Levendowski investigates and addresses in her refreshingly well-written, to-the-point article How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem. In a nutshell, she argues that: (1) these systems need large quantities of training data to be effective; (2) those building these systems rely on biased data in part because of their own biases but also because of potential risks of copyright infringement; and (3) more copyrighted works can legally be included as training data under the fair use doctrine and should be so used to selectively diversify the inputs to these systems to de-bias their outputs.
Levendowski starts with the problem in the form of Google’s natural language processing system word2vec. It is a form of neural word embedding that analyzes the context in which words appear in the source texts to produce “vectors,” which indicate word associations such as “Beijing” is to “China” as “Warsaw” is to “Poland.” Trained by analyzing the published news sources incorporated into Google News to which Google has obtained a copyright license, word2vec ingests the biases in those sources and spits out results like “man” is to “computer programmer” as “woman” is to “homemaker.” Levendowski acknowledges that those in the machine learning research community agree that this is a problem and are in search of a solution (including Google’s own researchers), but she responds that it should not be left only to developers at large technology companies with access to the training data to de-bias their own systems. Continue reading "Using Fair Use to Reduce Algorithmic Bias"
The current #MeToo movement is a powerful force in our society. It has inspired multitudes of women to come forward about hideous incidents of workplace sexual assault and harassment by powerful men such as Harvey Weinstein, the movie and entertainment mogul. As droves of women in the entertainment industry began making allegations about Weinstein’s sexually abusive behavior, actress Alyssa Milano sought to shine a national spotlight on it. In an October 18, 2017 tweet, Milano invited other women who had been sexually harassed or assaulted to respond by writing ‘me too’ as a method to capture the severity of the problem. There is no doubt that Milano’s tweet helped propel a juggernaut of a movement now referred to as #MeToo.
A recent Essay that I like a lot, What About #UsToo? The Invisibility of Race in the #MeToo Movement,” by Angela Onwuachi-Willig, criticizes #MeToo and the feminist movement more generally because its “essential woman” continues to be a “white woman.” Published in the Yale Law Journal Forum, Onwuachi-Willig’s Essay is one of twelve contributions to a symposium on “#MeToo and the Future of Sexual Harassment Law”; the entire collection can be found in the Yale Law Journal Forum and the Stanford Law Review Online. Continue reading "Intersecting Race Within #MeToo Movement as #UsToo"
John Snape and Dominic de Cogan, two legal scholars from universities in England, have provided a significant contribution to the emerging scholarly discussion in many different countries about the nature and limits of the law—not just tax law, which is their nominal domain in this chapter and book, but of all law. Without being at all polemical, and although they give a fair hearing to those with whom they disagree, they make an undeniable case for the claim that the study of tax law is ultimately the study of, to be honest, everything.
Their argument is subtle and nuanced in a number of important ways, but in the end they could not be more clear. Tax laws are, in the point of view to which they adhere, “not exclusively legal and not even exclusively about tax.” (P. 25.) Even detailed tax statutes have “no coherence or morality outside [of a] political and public law context.” (P. 25.) Continue reading "The Law of Taxation Is the Lynchpin of Civilization"
Pamela Samuelson & Mark P. Gergen, The Disgorgement Remedy of Design Patent Law
, 108 Calif. L. Rev.
__ (forthcoming, 2020), available at SSRN
The law of design patents continues to evolve in dramatic ways. The law of remedies must also adapt to serve the underlying goals of design patent law and restitution. In creating and interpreting the disgorgement remedy, Congress and the Supreme Court have caused a crisis with unintended consequences. They have provided insufficient guidance on how to construe the remedy. Congress added this remedy to cure a perceived remedy deficit, but Congress crafted it too bluntly—authorizing disgorgement of “total profit” from one who sells, without a license from the owner, articles of manufacture that apply a patented design or colorable imitation. Meanwhile, the Court splintered the design patent right into smaller fragments without suggesting how to align the remedy.
In a thought-provoking critique, Professors Pamela Samuelson and Mark Gergen present a compelling, detailed argument for applying causation and apportionment to limit restitutionary disgorgement awards in partial design patent cases. This narrowing is essential to maintaining the utility of restitution in design patent law. The authors’ proposed solution also advances the normative purposes of restitution and its disgorgement remedy in design patent cases. Continue reading "Calibrating the Disgorgement Remedy for Design Patent Law"
Nestor Davidson and David Fagundes, Law and Neighborhood Names
, 72 Vand. L. Rev.
__ (forthcoming, 2019), available at SSRN
What’s in a name? According to Nestor Davidson and David Fagundes, in Law and Neighborhood Names, a lot. As the authors recognize, the conflicts over neighborhood names that seem to be popping up in city after city may, at first glance, seem “trivial,” “cosmetic,” or (I might add) downright silly. Perhaps for these reasons, government regulation of neighborhood naming has largely been passive, reactive, or weak. But neighborhood names are emblems for the communities, values, and conflicts that they demarcate.
Law and Neighborhood Names provides a new perspective on this complex phenomenon. The authors also provide a pragmatically effective set of tools for addressing the injustices that so regularly flow from gentrification.
To be sure, gentrification is just one of the contemporary issues, though a key one, on which this article sheds new light. The authors also provide fresh insights on important debates about ownership, governance, identity, and space – informing conversations within the fields of property law, local government law, and toponomy (the sociology of place naming). Continue reading "What’s in a Name?"
Why do people go to law school? For a while there, it began to seem like it was all about the money. Large law firm competition for associates in the late 1990s and 2000s—with firms offering six-figure starting salaries and extravagant signing bonuses—helped fuel a ten-year surge in law school enrollment, peaking in 2010-11. The recession changed all that, plunging associate hiring into a free fall and focusing sustained, critical attention on law school marketing, the student loan industry, and the negative return-on-investment for many law graduates. Between 2010-11 and 2017-18, law school enrollment fell 25 percent, to its lowest point in forty years. Several law schools failed and numerous others have been exposed for gaming the U.S. News rankings—or outright cheating—in efforts to pad their profiles in a hyper-competitive market. (Sound familiar, celebrity parents?)
But “law school is cool again,” according to the most recent numbers. Applications in 2018-19 were up nearly 11 percent. And while associate hiring also is up, at least part of the increase in law school applications appears to be a political response to recent assaults on civil rights, lawyer independence, and the rule of law—the so-called “Trump Bump.” This makes it a good time for soul-searching by law schools as well as potential applicants, with an eye toward professional commitments as well as economic returns. Christopher J. Ryan’s forthcoming study of law school choice provides an important and timely starting point. Continue reading "Location, Location, Vocation? Toward a Post-Recession Analysis of Law School Choice"
Scholars of comparative constitutional law and animal law alike have recently recognized what has been called comparative constitutional animal protection. One country with a strong constitutional commitment is India, as exemplified by Art. 51A (“It shall be the duty of every citizen of India—(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures …”) and Art. 48 (“The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”).
And yet, paradoxically, this is not all good news for the animals. And not all good news for India’s human citizens, either. The politics of cow protection in India, and in particular the prohibition on the slaughter of cows that exists in most of the Indian states, are complex, and anyone seeking to understand the place of cows in Indian society will not find any easy answers. And yet for years, I have been looking, unsuccessfully, for a publication that examines the cow slaughter ban from all angles and brings out the many complexities that I knew must be lurking under the surface of the constitutional language. That is, looking unsuccessfully until now. Yamini Narayanan’s article, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, does everything that I had hoped I might find and much more—it is brilliant, beautifully written, and essential reading for anyone interested in animal law, animal rights, the regulation of milk, India’s caste system, cow protection, the Hindu religion, and speciesism generally—well as comparative analyses of all of these areas. Continue reading "Cow Protection in India is Not About Cows, Not About Protection"
Making a case for the value of legal history on a forum dedicated to the study and celebration of the field might seem unnecessary, but Laura Edwards’s historiographical essay in the Spring 2018 Journal of the Early Republic (JER) is too good not to bring to the attention of legal scholars.
Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article. Continue reading "A Case for Legal History"
When people talk about the law what, if anything, are they talking about? What do their sentences mean? Much of the philosophy of law has revolved around this question. In this essay, Finlay and Plunkett offer a novel answer—and a plausible reading of the answer proposed by the foremost Anglophone philosopher of law, H.L.A. Hart.
In The Concept of Law, Hart draws a distinction between external and internal legal statements. External legal statements describe people’s beliefs, attitudes, and behavior concerning legal standards. An example is “In England, they accept as law what the Queen in Parliament commands.” Internal legal statements (ILSs), by contrast, apply legal standards and usually put their conclusions using normative language. An example is “You (legally) ought not drive over 55 m.p.h.”. Continue reading "The Semantics and Pragmatics of Legal Statements"
The unique qualities of digital contracts—weightless, easily duplicable—have made them ubiquitous and much longer than their paper counterparts. Consequently, they are everywhere and accordingly, nobody reads them. Yet, courts have consistently argued that digital or “wrap” contracts (shrinkwrap, clickwrap, browsewrap, etc.) are just like paper contracts and that the same doctrinal rules should apply. Sure, tech giants like Facebook and Google use wrap contracts to vacuum our data under the guise of consent, and companies have used them to impose onerous one-sided clauses, but isn’t that just the same old “lack of consumer bargaining power in a capitalist society” problem that we’ve always had dressed up in digital form? It’s not like digital contracts will lead to the end of civilization as we know it—or will they? In Chapter 6 of their fascinating, original book, Re-Engineering Humanity, Brett Frischmannn and Evan Selinger argue that ubiquitous, digital contracts may have profound negative consequences for humanity.
It may seem an odd choice to select a non-contract specific book for a contracts section JOT, and even more so to focus specifically on a particular chapter in that book. Even though Re-Engineering Humanity is about more than contracts, it is also and importantly about contracts. Frischmann and Selinger argue that contracts are doing something much more sinister than implementing one-sided bargains and deleting our rights with a click. They argue that contracts are actually erasing our humanity and turning us into simple machines. Continue reading "Little Clicks, Big Consequences"