Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining both the historical grounding of rights and duties of physical presence and recent empirical evidence about the effects of virtual participation. The right to be present has deep common-law roots and has long been regarded as a fundamental element of due process. It allows defendants to observe and comprehend proceedings, participate in their own defense, and be treated with dignity. In early American history, the defendant's presence was considered so fundamental to a fair process that defendants were not allowed to waive it. Courts could not proceed with trial in the defendant's absence. Presence was also regarded as an obligation, justified on the grounds that it promoted the search for truth, public confidence in the process, and respect for the court's authority. Gradually, however, courts and policymakers have reconsidered these ideas as a result of efficiency concerns and technological advancements. Today a key question is whether remote appearances can satisfy the same constitutional values traditionally advanced by physical presence. Drawing on historical doctrine and empirical evidence from recent virtual hearings, this Article offers a systematic analysis of the purposes served by both kinds of participation. It demonstrates that remote appearances can enhance efficiency and access to justice in some contexts while threatening important due process interests in others. It then presents a framework for determining when virtual appearance satisfies foundational constitutional purposes. This analysis aims to assist judges and policymakers in integrating useful technology even as they seek to protect constitutional values.
As AI becomes increasingly embedded in our daily lives, this Article explores one of its critical, yet overlooked, societal implications: the propensity of large language Taking a close look at the technological underpinnings of LLMs, the analysis suggests that-due to the combination of human judgments, training datasets, and likely to be geared toward the popular and to project to their users concentrated, mainstream worldviews, sidelining a broader spectrum of perspectives. This Article explores the asymmetrical power relations between LLMs and humans, further suggesting that the constricted worldview projected through LLMs is likely to affect users' perceptions and may yield a variety of systemic harms, from diminishing cultural diversity to undermining democratic discourse and burdening the formation of collective memory. To address these challenges, this Article advocates a novel legal-policy response: exposing users, or at least alerting them, to the existence of multiple options, content, and narratives and encouraging them to seek additional information. This Article governance principles in the field, such as explainability or transparency, are insufficient for adequately addressing the "narrowing world" concerns and how embedding multiplicity into AI ethical and regulatory schemes could directly address by-design, namely embedding multiplicity-promoting features in the architecture of in our daily lives while preserving the richness and intricacies of the human
The increasing use ofAI rather than human surveillance puts pressure on two long-used cultural and (sometimes) legal distinctions: as between human and machine observers and as between content and metadata. Machines do more and more watching through advancing technology, rendering AI a plausible replacement for humans in surveillance tasks. Further, machines can commit to surveil only certain forms of information in a way that humans cannot, rendering the distinction between content and metadata increasingly relevant too for crafting privacy law and policy. Yet despite the increasing importance of these distinctions, their legal importance remains in four key domains of privacy law: Fourth Amendment law, wiretap law, consumer privacy law, and the privacy torts. Given the failure ofprivacy law to settle conclusively the import of the human/AI and content/metadata distinctions, this Article proposes looking to empirical measures of the judgments of ordinary people to better understand whether and how such distinctions should be made if law is to be responsive to reasonable expectations ofprivacy. There is incomplete empirical evidence as to whether the AI/human surveillance and content/metadata distinctions hold weight for ordinary people, and if so, how. To address this empirical gap, this Article presents the results of a vignette study carried out on a large (N = 1000), demographically representative sample of Americans to elicit their judgments of a state surveillance program that collected either content or metadata and in which potential surveillants could be either human or AI. Unsurprisingly, AI surveillance was judged to be more privacy preserving than human surveillance, empirically buttressing the importance of a human/AI distinction. However, the perceived privacy advantage for an AI surveillant was not a dispositive factor in stated preferences regarding technology use. Accuracy-a factor rarely discussed in defenses of state surveillance -was more influential than privacy in determining participants' preferences for a human or AI surveillant. Further, the scope of information surveilled (content or metadata) strongly influenced accuracy judgments in comparing human and AI systems and shifted surveillance policy preferences as between human andAI surveillants. The empirical data therefore show that the distinction between content and metadata is important to ordinary people, and that this distinction can lead to unexpected outcomes, such as a preference for human rather than AI surveillance when contents of communications are collected. These empirical results provide strong evidence for judges and legislators alike to contemplate how various domains of privacy law could be more responsive (and more consistently responsive) to the expectations of ordinary people. Ordinary people have reasonable expectations not only of privacy but also of accuracy, and the tension between these preferences can lead to surprising outcomes. Long held assumptions in state surveillance policy that automated surveillance is not privacy invasive or is otherwise minimally privacy invasive are unresponsive to the nuanced judgments of ordinary people. While law and policy need not always reflect the intuitions or preferences of the citizenry, empirical data such as offered in this Article could prove helpful where judges and lawmakers have otherwise failed to establish a clear and convincing consensus.
In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall ofRome to consider how rage and misinformation traveling through today's technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: "We have built networks for the delivery of information-- the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage."1 This Article carries the metaphor into a new context and considers what should be done when the poison being transported through the digital pipes is directed at members of the U.S. military. While extremism in the U.S. military is not a new threat, the events of January 6, 2021, brought the threat into much sharper focus. It exposed three preexisting trends, each sitting in plain sight but not yet woven together. These trends include a growing acceptance of extremist views and ideologies in U.S. military and veteran communities, an increase in violent extremist acts committed by individuals with military backgrounds, and the enhanced use of digital platforms by extremist groups to target their messaging to and strengthen their recruitment of individuals with military experience. To return to the metaphor, the extremist poison is teeming through the pipes at an alarming rate, and the number of pipes has increased to include social media platforms, encrypted chat tools, gaming platforms, podcasts, and music streaming apps, including YouTube, Discord, Gab, Telegram, and WhatsApp, among many others. In offering these observations, the author is mindful of not overstating the threat and takes seriously warnings as to the adverse consequences that follow from hyperbole and exaggeration. Indeed, a fundamental difficulty is the lack of understanding as to scope and scale of the extremism threat in the U.S. military. This Article attempts to draw the contours of that threat, exposes the structural and legal obstacles that make countering extremism in the military such a fraught exercise, and identifies actors, tools, and mechanisms-beyond the conventional options--able to overcome these long-standing structural and institutional obstacles.
U.S. design patent law protects the visual characteristics of articles of manufacture. For many years, major manufacturers of athletic footwear have protected their visually iconic designs with design patents, fueling a global market valued at nearly $100 billion. Today, however, shoe design has arrived in the digital universe. Digital sneakers such as Gucci's Virtual 25 and Nike's "Our Force Ones" can be "worn" only in virtual worlds but have substantial real world economic value. Yet U.S. design patent law makes it difficult-some would say impossible-to protect those designs, on the ground that they do not satisfy the statutory requirementfor a design for an "article of manufacture." On that reasoning, a visually innovative athletic shoe would be eligible for design patent protection, while its visually identical digital counterpart would be ineligible, and the same would be true ofa vast array of other valuable digital designs. This Essay examines critically the role of the article of manufacture requirement in contemporary and future design patent law, challenging whether the prevailing approach to that requirement in current Federal Circuit law and PTO practice is suitable for emergent areas of design endeavors such as designs for elements of digital environments, designs rendered for virtual and augmented reality, and designs for holographic projections.
Lawmakers have started to regulate "dark patterns," understood to be design practices meant to influence technology users' decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them. In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack a clear value anchor for cases to build upon. Second, legal definitions of dark patterns overfocus on individuals and atomistic choices, ignoring de minimis aggregate harms and the societal implications of manipulation at scale. Finally, the law has struggled to articulate workable legal thresholds for wrongful darkpatterns. To better regulate the designs called dark patterns, lawmakers need a better conceptual framing that bridges the gap between design theory and the law's need for clarity, flexibility, and compatibility with existing frameworks. We argue that wrongful self-dealing is at the heart of what most consider to be "dark" about certain design patterns. Taking advantage of design affordances to the detriment of a vulnerable party is disloyal. To that end, we propose disloyal design as a regulatory framing for dark patterns. In drawing from established frameworks that prohibit wrongful self-dealing, we hope to provide more clarity and consistency for regulators, industry, and users. Disloyal design will fit better into legal frameworks and better rally public supportfor ensuring that the most popular tools in society are built to prioritize human values.
Silicon Valley, and the U.S. tech sector more broadly, have changed the world in part by embracing a "move fast and break things" mentality popularized by Mark Zuckerberg. While it is true that the tech sector has attempted to break with such a reactive and flippant response to security concerns, including at Microsoft itself through its Security Development Lifecycle, cyberattacks continue at an alarming rate. As a result, there are growing calls from regulators around the world to change the risk equation. An example is the 2023 U.S. National Cybersecurity Strategy, which argues that "[w]e must hold the stewards of our data accountable for the protection of personal data; drive the development of more secure connected devices; and reshape laws that govern liability for data losses and harm caused by cybersecurity errors, software vulnerabilities, and other risks created by software and digital technologies." What exactform such liability should take is up for debate. The defect model ofproducts liability law is one clear option, and courts across the United States have already been applying it using both strict liability and risk utility framings in a variety of cases. This Article delves into the debates by considering how other cyber powers around the world-including the European Union-are extending products liability law to cover software, and it examines the lessons these efforts hold for U.S. policymakers with case studies focusing on liability for AI-generated content and Internet-connected critical infrastructure.
Personal property ownership is in a precarious state, facing structural, economic, and legal assaults. As a result, the autonomy, security, and privacy that ownership once protected have been displaced by a tenuous reliance on opaque contractual arrangements and corporate goodwill. Owners no longer enjoy the unfettered right to access, use, and control their personal property. Through a range of seemingly unrelated business practices, companies have leveraged their growing power to disaggregate the property bundle into compartmentalized rights and privileges, which can then be individually licensed, leased, restricted, or even revoked. Purchases no longer mark the end of buyer-seller relationships; instead, they signal the beginning of a manufacturer's ongoing control-holding purchased goods hostage in exchange for continued payments, data collection, and remote oversight. Taking inspiration from the IT concept of "defragging" a hard drive-where scattered data fragments are recombined to restore function and efficiency-this Essay argues that we must now defragment ownership: reassembling fractured property rights into coherent bundles to reempower owners and restore legal clarity. To lay the groundwork for this goal, the Essay develops a taxonomy of structural attacks on personal property ownership by dissecting how market practices and corporate behaviors systematically undermine consumers. In doing so, it highlights the urgent need to address both the economic structures and legal doctrines enabling this erosion. By calling for defragmentation, the Essay reaffirms that property law's traditional bundles of rights remain essential to private ordering, standardizing expectations, and fostering trust in market transactions.
Travel rights and travel restrictions shape nearly every part of society, moderating where and how we go about our daily lives. Yet a central aspect of travel has gone largely unnoticed in the legal literature. Oppressive governments have routinely restricted free movement as a principal means of effectuating discrimination. And travel rights, as a result, have always had a strong anti-discriminatory valence. From the Magna Carta to Blackstone's Commentaries to the Constitution itself, rights to travel have consistently emerged from struggles against discrimination. This Article makes several independent but related contributions. First, the Constitution's protections of travel have a strong anti-discriminatory core. Second, travel restrictions have been used as a key tool for effectuating discrimination throughout history. Third, because constitutional rights to travel were intended to serve as a bulwark against discriminatory travel restrictions, these same restrictions should not be used to support the constitutionality of contemporary restrictions. Rather than reflecting a historical acceptance of certain restrictions on travel, such laws represent the evil to which travel rights respond. These insights have sweeping implications for a wide span of contemporary restrictions on travel, ranging from vagrancy and loitering ordinances to the federal No Fly List. Such restrictions have largely withstood constitutional challenge because of their historical antecedents. What this Article suggests is that these histories-histories of discrimination-instead render such restrictions especially constitutionally infirm. Recognizing the anti-discriminatory thrust of the Constitution's rights to travel will reshape the landscape of both travel rights and travel restrictions.
For the last 200 years, human activities have been the main driver of global climate change, particularly the burning of fossil fuels. Increased emissions from fossil fuels have contributed to rising temperatures, food scarcity, and natural disasters, including fires, flooding, and droughts. Although climate change has been an issue in the public eye for the last several decades, global emissions are projected to continue increasing. At this point, it is clear that current actions at the individual and state level are not enough to meaningfully reduce greenhouse gas emissions. In this Note, I will discuss the idea of using third-party litigation finance in climate lawsuits as a mechanism to hold the world's biggest contributors to climate change accountable for their actions. I will argue that if more funding exists for plaintiffs to forced to bear the expenses of litigation on a more frequent and greater scale. Additionally, I will discuss why litigation finance for climate lawsuits could present an attractive opportunity for outside investors.
The Supreme Court concluded its 2023 decision barring affirmative action in university admissions with a qualification: Although they may not give weight to "race qua race," universities may consider individual applicants' discussion of race-related life experience that bears on their strengths and potential. This "essay carveout" provides a potential path forward for universities (and other entities to which the affirmative action ban may eventually apply). But the Court also warned against using it to enact "indirect" affirmative action, and legal advocates of colorblindness stand poised to challenge any use of essays that appears to stray over this line. So where is the line? And what other potential legal pitfalls could universities encounter in evaluating essays about race? This Article provides the first in-depth analysis of these questions, examining how the essay carveout fits into emerging legal battles over colorblindness, the nature of racial classifications, and racial balancing. It argues that the carveout must be interpreted to allow universities to pursue racial diversity (which remains constitutionally permissible) so long as they use the kind of individualized analysis contemplated by the Court. It assesses the evidentiary hurdles plaintiffs would need to clear to establish that essays are being improperly used. It also examines possible First Amendment viewpoint discrimination challenges to diversity-related essay requirements, concluding that such challenges should fail on the law and on the facts. Finally, to inform these legal analyses, the Article provides two novel sets of empirical evidence testing widespread (but anecdotal) reports that universities are now revamping their approach to essays and that applicants have changed their writing strategies accordingly. I review the essay requirements over a four-year period at 65 top colleges and report the results of a national survey of 881 students who applied to college in the 2022-23 or 2023-24 admissions cycles. I find that diversity, identity, and adversity-focused essay prompts are prevalent and increasing in frequency, and that the large majority of students of color as well as nearly half of white students do discuss their race in their college essays; this latter pattern, though, was already established before Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.
Puerto Rico, often referred to as the "Medical Cabinet of the U.S.A.," is a hub for pharmaceutical manufacturing, contributing significantly to the American medical supply chain and Puerto Rico's economy. However, decades of industrial activity, compounded by climate events like Hurricane Maria, have led to severe environmental damage, particularly through groundwater contamination and damaged Superfund sites. This Note examines the historical intersection of economic incentives and environmental neglect in Puerto Rico, focusing on the pharmaceutical industry's impact. By critically analyzing the Superfund program and proposing reforms, this Note advocates for a balanced approach: introducing proactive environmental protections and financial incentives for compliant pharmaceutical manufacturers. Such measures aim to sustain pharmaceutical investments while safeguarding Puerto Rico's fragile environment, public health, and long-term economic resilience.
Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring-and new laws are idling on the books- suggests that rights-creation in this space has not been efficacious. This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization. This Article tackles the uptake puzzle in expungement of criminal records. Employing an access-to-justice framework, theArticle presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions. We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it. We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy. These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully. Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial. These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law. The Article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle. With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable. In addition, the Article offers three broad implications from our research that point the road forward on reform. First, we find that legislatures play a dominant role in restricting access to the expungement remedy. State expungement statutes are laden with access barriers, which create downstream impacts on courts and agencies charged with implementing the expungement remedy. Second, we suggest that, in each state, the institutions responsible for effectuating expungement relief have developed de facto "access policies" that serve an adjunctive role to substantive expungement policy. Without exception, we find that states' access policies are internally inconsistent and work at cross-purposes with the stated goals of expungement. Third, we point to the limits of automatic expungement in overcoming the access barriers we describe. What is commonly depicted as automatic expungement in fact is a state-initiated process that is plagued by informational deficits in access to criminal record data, making it difficult to match eligible records against state legislative eligibility criteria. We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants and revise their expungement laws to increase uptake.
Injured workers entering state workers' compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers' compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the data collection, including the methodology used and an overview of the results. Part II examines state response in three areas: scope of information protected, ex parte communications, and protective orders for disclosures. Detailed survey results are presented in the Appendix. Part III describes best practices among the states and provides proposals for legislative change, including the adoption of the HPR's standards as a floor for medical privacy protections, or, alternatively, more state statutory protections to limit disclosures. I conclude by summarizing the implications of this work.
On October 4, 2018, Jerod Draper lost his life after two hours of torture by Harrison County jail officers. While in custody of the jail and suffering from an overdose, Jerod Draper was placed in a restraint chair for two hours and tased seven times in fifteen minutes. Jerod Draper's story is one of the many stories demonstrating how a jail death epidemic is occurring throughout Indiana. In this Note, I discuss the history of incarceration in the United States, the statutes under which families of jail death victims can sue, and Indiana's jail death problem. I then highlight Indiana's problematic jail officer training requirements, as well as the composition of the Indiana Law Enforcement Training Board, the entity responsible for designing and implementing jail officer training. I also present an analysis of various states' statutory training requirements for jail officers and correctional officers. Lastly, in an effort to combat the Indiana jail epidemic, I propose two changes. First, I propose changes to Indiana's statutory training requirements for jail officers that would require continuing education and require jail officers to complete at least part of their training before beginning in their roles. Second, I propose the addition of new voices to the Indiana Law Enforcement Training Board, specifically the voices of medical professionals and former inmates.
This Essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the constitutionality of information sharing between federal agencies and social media companies. The litigation has been a good and a bad teacher. On one hand, the lower court decisions made legible the risks to free expression, accountability, transparency, and intimate privacy posed by government-industry collaborations. On the other hand, the litigation chilled information sharing between federal agencies, state election officials, and social media companies at the moment that such collaboration could and should help protect against foreign malign influence operations designed to undermine the integrity of the 2024 elections and beyond. We must rebuild public- private collaborations that protect democratic processes, guided by these lessons. Government can work cooperatively with tech companies without sacrificing free speech, but it must do so with commitments to accountability, transparency, and intimate privacy in mind.
