ARTICLES
Navigating Personal Jurisdiction Based on Social Media Activity—Tips for Practitioners
Enter the wild world of personal jurisdiction based on social media activity in intentional tort cases. The U.S. Supreme Court has not weighed in on the personal jurisdiction standard in such cases, and ever-changing technology and social media use have created a fractured legal landscape. This article does two things: (1) provides an overview of the fractured landscape, and (2) distills some guidelines for practitioners dealing with personal jurisdiction in intentional tort cases involving social media activity.
Anna Conley
Home—The Final Frontier: Why Privacy Means Protecting Workers’ Rights to Time and Space
New technological trends in artificial intelligence, machine learning, algorithmic management, bossware, sensor fusion, and sensor seeding now render the home vulnerable to total employer oversight. A raft of new uses, and markets, for data extracted from workers’ homes has emerged. The law has done little to stem employers’ invasion of the home. The dominant global frameworks for securing workers’ privacy have failed to secure space and time for workers to live thriving private lives. The common theme with these approaches is that they do not adequately address the asymmetry of power between employers and workers. Hence, their impact amounts to the rubber-stamping of corporate surveillance and unchecked exploitation of worker data. “Rights” structured to be stripped through a pseudo-bargaining process and constructed as secondary to an employer’s interests are not rights at all. This Article proposes a rights-first, human dignity-centered framework for the conceptualization and protection of privacy rights in the teleworking context.
Joshua Fairfield & Amanda Reilly
The recent explosion of artificial intelligence and generative AI undeniably impacts our federal and state courts. Currently, ABA Model Rule 1.1 and its Comment include a broad requirement of technological competence for an ethical practice. This Article will identify the technical competence obligations embodied in Model Rule 1.1 and examine the implications of AI for technological competence standards. After reviewing the timeline of cases that invoke AI hallucinations and other issues and current scholarly literature, this Article will propose a more specific ethical standard for baseline knowledge of various AI technologies according to current practice and use of ever-expanding technologies by today’s lawyers. The legal technology landscape constantly changes and attorneys must follow the new professional norms of technological competence for their ethical practice. This Article will also survey federal and state standing orders and court rules for generative AI, artificial intelligence, and technological innovations that lawyers need for competent practice in an evolving era of AI.
Heidi L. Frostestad
This Article explores how federal courts have responded to the 2015 proportionality amendment to Rule 26. Ultimately, this Article finds that, in general, pre-amendment predictions that the 2015 Amendment would undermine the ability of litigants (mainly plaintiffs) to obtain eDiscovery have been wrong, and that the majority of eDiscovery disputes have been resolved in favor of production. This Article discusses which factors appear to be most meaningful to the resolution of eDiscovery disputes and provides recommendations to litigants on navigating eDiscovery disputes pursuant to the 2015 Amendment.
Blake A. Klinkner
Taxpayer Privacy Protections: Restrictions and Remedies for Releasing Return Information
Since the early history of the federal income tax, government officials have accessed tax return information for political purposes, such as to embarrass or threaten political adversaries. Despite limited legal protections, social and moral pressures disfavored extraneous uses for return information, and these sentiments ultimately resulted in expanded legislative rules aimed at protecting taxpayer privacy. The legal framework includes rules to define the scope of protected information, delineate appropriate avenues for accessing and disclosing that information, sanctions for breach, and civil damage remedies for aggrieved data subjects. This Article explores and assesses privacy protections that emanate from this framework, along with their limits.
Edward A. Morse
Copyright, Creativity, and Skill: Authorship and AI-Assisted Works
Generative artificial intelligence (“AI”) has increasingly become a focal point in legal discussions, raising complex issues across multiple domains, including algorithmic bias, defamation, intellectual property, and privacy. By analyzing how tools like Midjourney create visual art from textual prompts, this Article explores whether and to what extent these AI-generated outputs can be protected under copyright law. It describes current copyright doctrine through a novel framework, demonstrating that copyright law’s requirement for creativity pertains to an author’s mental acts rather than the technical skill of fixation. The resulting requirement for conception-informed fixation is then applied to AI-assisted works, showing that an author can maintain sufficient creative control of an AI tool’s output to meet the mark.
Lucas S. Osborn
IP, AT, and AAAs: What Intellectual Property Can Teach Antitrust about the War on Amazon Basics
This Article explores the war on Amazon Basics, and particularly the dichotomy in treatment of private label goods sold by Amazon versus those sold by brick-and-mortar stores. Using the lenses of antitrust law and intellectual property law to assess the anticompetitive claims being lodged against Amazon Basics, this Article argues that under either set of laws, Amazon Basics is beneficial to consumers and is promoting—not harming—competition.
Kristen Jakobsen Osenga
A Social Reckoning? Litigation, Legislation, and the Future of Social Media
Today we stand at a tipping point where a convergence of forces— increasing public awareness of potential ill-effects of social media usage, an ever-growing avalanche of civil cases seeking to hold social media platforms liable for harm to youth users, and a constantly evolving list of new state statutes aimed at tackling what many policymakers see as a public health crisis caused by youth social media use—is forcefully challenging the legal status quo. Faced with these mounting challenges, large social media platforms argue that Section 230 and the First Amendment insulate them from liability for harm to youth users and stand as insurmountable legal barriers to the enactment of state laws to regulate their conduct. This Article examines how these converging forces are leading judges and legislators alike to rethink the legal frameworks that have protected the large platforms from liability.
Randoph A. Robinson II
Law and Technological Innovations: Three Reasons to Pause
Faced with optimistic accounts of technological innovations, businesses, law firms, and governments face pressure to rush into adopting these technologies and enjoying the increased efficiency, reduced costs, and other benefits that are promised. This Article sets forth reasons to pause before adopting such technologies. First, new technology is often contrasted with unrealistically dire portrayals of the status quo, which leads to exaggerated accounts of how beneficial the new technology will be. Second, overconfidence in technological fixes, as well as tendencies against revisiting and critiquing traditional ways of doing things, may lead to an entrenchment of harmful systems. Third, the institutional incentives and pressures in which technology is employed may affect how that technology is used—leading to unanticipated consequences for those who only consider how technology functions in non-legal settings.
Michael L. Smith
NOTES
That’s the Way the Cookies CRUMBL: Using Antitrust to Punish Sham Trade Dress Litigation