How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem
January 01, 2018 | 93 Wash. L. Rev. 579
Abstract: As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright.
|Amanda Levendowski||93 Wash. L. Rev. 579|
The Secret Life of Priority: Corporate Reorganization After Jevic
January 01, 2018 | 93 Wash. L. Rev. 631
Jonathan C. Lipson
Abstract: Academics have long debated whether the order of bankruptcy distributions should be “absolute” or “relative.” Should courts have the flexibility to scramble priority to serve some greater good? The Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp. holds that the answer is “no”: priority is absolute absent the consent of affected creditors.
|Jonathan C. Lipson||93 Wash. L. Rev. 631|
January 01, 2018 | 93 Wash. L. Rev. 715
Alex B. Long
Abstract: Until fairly recently, the narrative regarding employment retaliation plaintiffs has been that the federal courts—and the Supreme Court in particular—are generally sympathetic to employees claiming illegal workplace retaliation. This narrative has changed drastically over the past few years, to the point that there has been a backlash among courts to the initial wave of plaintiff success. In this respect, the evolution of retaliation law largely tracks the evolution of disability law. This Article argues that the evolution of these areas of the law illustrates a simple but fundamental point about the interpretation of statutes regulating the workplace at present: unless the text of the statute strongly supports a reading that limits the discretion traditionally afforded to employers under the employment at-will doctrine, courts, as a general rule, will not adopt that reading, nor will they apply the statute in that manner.View Article ×
|Alex B. Long||93 Wash. L. Rev. 715|
Visual Metaphor and Trademark Distinctiveness
January 01, 2018 | 93 Wash. L. Rev. 767
Abstract: Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy.
|Dustin Marlan||93 Wash. L. Rev. 767|
Confidentiality in Patent Dispute Resolution: Antitrust Implications
January 01, 2018 | 93 Wash. L. Rev. 827
Mark R. Patterson
Abstract: Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents.
|Mark R. Patterson||93 Wash. L. Rev. 827|
Choosing Medical Malpractice
January 01, 2018 | 93 Wash. L. Rev. 891
Nadia N. Sawicki
Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases—dealing with alternative therapies and Jehovah’s Witness blood refusals—lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.View Article ×
|Nadia N. Sawicki||93 Wash. L. Rev. 891|
January 01, 2018 | 93 Wash. L. Rev. 967
Abstract: The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if they are no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.
|Nirej Sekhon||93 Wash. L. Rev. 967|
Privacy in the Cloud: The Fourth Amendment Fog
January 01, 2018 | 91 Wash. L. Rev. 325
Abstract: The Cloud has changed how individuals record, store, and aggregate their personal information. As technology’s capacity for holding an individual’s most intimate details and recording day-to-day experiences increases, Fourth Amendment privacy protections become less equipped to respond to technological advances. These advances allow private companies to store an immense amount of their consumers’ personal information, and government entities to obtain that information. In response, tech companies have begun refusing to comply with government demands for information collected and stored in their devices and in the Cloud, and are increasingly ending up in court, fighting orders to disclose consumer information. A dynamic tension has developed between the United States government’s desire and increased capacity to obtain information about consumers, and tech companies wanting to keep their consumers’ information private. The relevant statute, the Electronic Communications Privacy Act (ECPA), is not equipped to address these technological advances. The Supreme Court’s extensive Fourth Amendment jurisprudence and guidelines for addressing Fourth Amendment issues are similarly ill-suited to answer the novel and unique issues that accompany digital, remote storage of personal information. This Comment identifies the inadequacies of ECPA and the Fourth Amendment jurisprudence as they each apply to technological advances and the potential of Cloud data. It argues that Congress must revise the legislative scheme to adequately protect information stored in the Cloud, particularly addressing whether consumers have a right to know when their information is being accessed by the United States government. Further, it argues courts lack the tools to adequately amend, reframe, repeal, or apply ECPA, and thus should not be the primary body making decisions about the bounds of technologically based government collection under the Fourth Amendment. Alternatively, if the legislature does not act, courts will remain required to make findings related to whether the collection of information is a violation of the Fourth Amendment. Courts should, then, recognize that digital data deserves a fundamentally distinct analysis and discontinue the trend of finding attenuated connections between classic surveillance techniques and government surveillance using advanced technology.View Article ×
|Sarah Aitchison||91 Wash. L. Rev. 325|
I Would Like to Request Your Academic Records: FERPA Protections and the Washington Public Records Act
March 21, 2016 | 93 Wash. L. Rev. 1057
Abstract: The Washington Public Records Act is a broad mandate for the release of almost all public records. In response to a request, a state or local agency must produce the requested records unless a specific exemption applies. In part to enforce compliance on public agencies, the Public Records Act requires that a requester be compensated for statutory fees, costs, and attorneys’ fees if a government agency declines to provide a public record, is challenged, and the requester succeeds in court. However, within public education agencies, compliance with the Washington Public Records Act can run against the agencies’ requirements under the Federal Education Rights and Privacy Act.
|Tevon Edwards||93 Wash. L. Rev. 1057|
Preserving VAWA’s “Nonreport” Option: A Call for the Proper Storage of Anonymous/Unreported Rape Kits
January 01, 2018 | 93 Wash. L. Rev. 1089
Abstract: The Violence Against Women Act (VAWA) requires participating states and the District of Columbia to pay for medical forensic exams for victims of rape and sexual assault, including the collection of evidence using “rape kits,” whether or not the victim chooses to pursue criminal charges. The chief statutory purpose of the requirement is to preserve evidence in the interest of justice without pressuring a traumatized victim to decide on the spot whether to activate a criminal investigation. Rape kits collected without an accompanying police report are called “anonymous rape kits,” “unreported rape kits,” or “Jane Doe rape kits.” This is because they are typically assigned an anonymous tracking number rather than the victim’s name for privacy reasons, before being sealed and stored for evidentiary integrity. Beyond requiring their subsidization, VAWA is silent on anonymous rape kit preservation, leaving methods of storage to the discretion of each state, many of which defer to local jurisdictions. In states that defer, inconsistent storage practices can lead to the loss or destruction of the kits. These outcomes undercut the statutory purpose of VAWA’s “nonreport” option and waste public funds. Using Washington State as a prototype, this Comment argues that states that do not regulate anonymous rape kit storage should remedy this problem legislatively. State legislatures should pass comprehensive statutes that assign maintenance responsibility to a relevant state agency, provide funding for costs associated with evidence collection and storage, ensure the preservation of evidence through the relevant statute of limitations, and require that victims be kept informed of their rights. Thoughtful regulation will ensure the proper preservation of critical evidence and facilitate the empowerment of sexual assault victims, and in those respects reinforce VAWA’s nonreport option.View Article ×
|Gavin Keene||93 Wash. L. Rev. 1089|
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