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Most Recent Print Issue

Volume 73, Issue 1

Winter 2024


Robots as Pirates
Henry H. Perritt, Jr.

Generative AI has created much excitement over its potential to create new works of authorship in the literary and graphical realms. Its underling machine- learning technology works by analyzing the relations among elements of preexisting material in enormous databases assembled from publicly available and licensed sources. Its algorithms “learn” to predict “what comes next” in different types of expression. A complete system thus can become glib in creating new factual summaries, essays, fictional stories and images. A number of authors of the raw material used by Generative AI engines claim that the machine learning process infringes their copyrights. Careful evaluation of actual and likely claims shows that such plaintiffs claiming infringement will have a hard time proving reproduction, distribution, display, or preparation of derivative works and thus are unlikely to be able to establish copyright infringement under established doctrines. Fears of uncompensated appropriation, however, are likely to fuel the erection of more pay walls around original content and more licensing collectives.



Tackling Vulnerabilities Through Corportate Duties
Jingchen Zhao

In this article, and drawing on the work of Fineman and others, we use a vulnerability lens as a device to emphasise the protection that could be offered to vulnerable parties in corporations through directors’ duties. By situating corporations in the vulnerability paradigm, we will discuss the limitations of formal equality and clarify the role played by corporate law. The increasingly blurred distinction between private law and public law will be discussed to rationalise the protection of the vulnerable through collective responsibility. Vulnerability theory mediates conflicts between calls for “regulatory state policies” and “individual responsibility” to supervise and monitor corporate actions by improving resilience in four kinds and two stages. We observe that vulnerability is universal in corporations, but priority should be given to the vulnerable parties with the highest dependency, whose identity varies depending on both internal and external contexts. The vulnerability paradigm, assisted by Goodin’s analysis of protecting the vulnerable, lays a solid theoretical base to explain directors’ duties towards vulnerable parties, particularly those with the highest dependency, within the vulnerability matrix. These parties will periodically enjoy prioritised protection over other constituencies occupying less threatened positions.


Veterans Treatment Courts: Broadening Eligibility for Veterans Convicted of Violent Offenses
Mark Dela Peña

Veterans treatment courts (VTCs) have been gaining widespread popularity as a tool to divert justice-involved veterans from the criminal justice system. While a step in the right direction, most of these courts categorically exclude violent offenders for eligibility. Many jurisdictions conflate violent offenses with serious offenses, even when many violent offenses lack any physical harm. Additionally, prosecutors wield almost unbridled discretion in determining whether or not someone is charged with an offense considered to be violent, determining VTC eligibility even before a case reaches a sentencing hearing. This comment argues for admitting veterans convicted of violent offenses into VTCs. This comment compares VTCs that exclude violent offenses with those that include them and argues that a standard-based approach serves public safety and the needs of a justice-involved veteran better than a rule-based approach that categorically excludes violent offenses.


Anything You Say (or Like, Repost, and Quote Post) Can Be Used Against You
Alexandra Heyl

Social media allows users to exchange thoughts and ideas without saying a single word. Whether a user “likes”, “reposts”, or “quotes” third-party content, a user publicly interacts with content authored by someone else with the click of a button. Is this online activity more akin to a user making a statement, adopting a third-party’s statement, or not making a statement at all? Does it matter? Only certain statements can be used against you at trial. Federal Rule of Evidence (“Federal Rule”) 802(a) provides that “hearsay” is an out-of-court statement offered for the truth of the matter asserted. According to Federal Rule 802, hearsay is generally not admissible at trial unless an exception applies. Despite the existence of hearsay exceptions, Federal Rule 801 also carves out hearsay exemptions which are unaffected by the rule against hearsay. One of these exemptions is Federal Rule 801(d)(2)(A) which deems statements of a party- opponent offered against it at trial admissible.



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