Recent Articles in Volume 28, Number 1 (2025)
By Brian L. Frye – “To disobey the Machine’s analyses is to follow a non-optimal path.”1
Regulating is hard, but regulating effectively is even harder. For better or worse, it’s hard for agencies to adopt new regulations because they always have to satisfy administrative, statutory, and constitutional requirements. But it’s even harder for agencies to know which regulations to adopt and why. Regulations are supposed to solve problems, but it’s hard to identify problems, figure out why they are problems, develop solutions to those problems, and know whether those solutions will work. Especially because people often disagree about whether a problem exists, whether it needs solving, what kind of solution is needed, and whether a proposed solution will work. []
By George Horvath – Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to be aware of both kinds of innovation and to consider different approaches to each if we are to reap their benefits and avoid their dangers. []
By Michael D. Murray – The paradoxical development of visual generative AI tools, such as OpenAI’s DALL-E 3, Midjourney, and Stable Diffusion, simultaneously signals a renaissance and a potential dark age in visual rhetoric and communication. On the one hand, these tools democratize the creation of visual content, empowering attorneys and others to become artists and illustrators of their legal communications without needing to learn how to draw. These AI systems can simplify complex legal concepts, bridge language barriers, and enhance advocacy. But on the other hand, the proliferation of deepfakes presents significant challenges for visual rhetoric. Deepfakes can quickly and easily create realistic but false images, videos, and audio that exploit celebrities, distort facts, and facilitate various crimes. The negative implications of deepfakes include their association with fraud, misinformation, and emotional harm. This technological advancement undermines the credibility of genuine news photography and other highly representational media as the public struggles to distinguish real from fabricated content and begins to discount all visual media. []
By Henry H. Perritt Jr. – Artificial intelligence (AI) is frequently in the news. Policymakers and business executives must decide whether it is a revolutionary phenomenon, likely to overturn established enterprises and practices, or if it is a mere modest advancement in decades-old natural language capability over-advertised by Silicon Valley seeking the “next big thing” and hyped by reporters eager for the next byline. The patent office and the patent bar are not immune from the turmoil. The USPTO has issued several policies and inquiries related to the impact of AI on various aspects of patent prosecution. Most recent is a Request for Comments on the impact of AI on patentability determinations, in particular its impact on discovering and disclosing prior art. []
By Ruifeng Song – Despite being criticized as a flawed mechanism for data protection, con- sent has witnessed a revival in the recent wave of state privacy statutes. One factor that contributed to the revival may be the widely held belief that con- sent constitutes the “cornerstone” of data privacy laws. This Article conducts a comparative historical survey to examine the validity of this belief. The findings are twofold. First, contrary to what many believe, consent has been playing a limited role in global data privacy laws. Second, consent is an inherently defective mechanism for data protection. Some of its problems have existed since the inception of modern data privacy laws, and attempts to address them and safeguard consent will likely be doomed. These findings disenchant con- sent and signify the need to look beyond it. Reform efforts should focus on other areas of data privacy laws, a lesson with implications for states with new laws or bills that reinforce the role of consent. []