Discriminating Alignment in the Innovation Sphere

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these contracts by evaluating how specific industries utilize these provisions in different ways. Separate industries may use the same provisions––like information sharing, for example––within their contracts, but they will pair these provisions with different clauses or private strategies, resulting in different governance choices. This Article looks at two areas––the manufacturing and biopharma industries­­––because these fields use collaborative agreements with similar provisions and suggests that the same provisions actually work in very different ways. The theory of discriminating alignment suggests that parties within these two industries use contractual and other strategy choices differently in order to meet their separate goals in a cost minimizing way. This Article reaches this conclusion based on qualitative interviews to learn about how participants in the biopharma industry use provisions and understand them. It draws on prior empirical work and scholarship to analyze how the same provisions operate differently within the manufacturing industry. It concludes that the same contract provisions operate differently in manufacturing and biopharma, leading to a divergence in governance choices. In manufacturing, where relational sanctions are possible, parties can combine informal enforcement with formal provisions to achieve their goals. This is consistent with a “braiding theory” of formal and informal enforcement. By contrast, biopharma parties have a joint interest in collaborating early on to achieve profits and success, which renders informal enforcement unhelpful. Biopharma uses formal provisions––including information transfer provisions––because they are the best means of facilitating a successful complex project. However, when the interests of parties within biopharma diverge, property provisions take over. This Article echoes Professor Macaulay’s view that to to understand governance within a specific industry, the industry must be analyzed using qualitative interviews

Causation’s Due Process Dimensions

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications for evaluating the constitutionality of tort doctrines like market-share liability and innovator liability, which challenge traditional notions of causation. Our analysis reveals that these doctrines may be vulnerable in some applications to constitutional challenge under the Court’s modern due process approach. We trace the evolution of the Court’s jurisprudence, demonstrating how it emphasizes the relationship between plaintiff’s harm, defendant’s conduct, and the forum state’s interest. Applying this framework to market-share and innovator liability, we suggest that causation itself may have constitutional dimensions. This finding has far-reaching implications for mass tort litigation and could reshape how courts approach cases involving multiple actors and attenuated chains of causation. By bridging the gap between due process jurisprudence and tort law, this Article offers a new perspective on longstanding debates about liability in complex cases and provides a roadmap for courts navigating these challenging waters

Sam Altman, OpenAI, and The Importance of Corporate Governance

The sudden firing of CEO Sam Altman by OpenAI’s three independent directors highlights concerns about whether a leading AI company, susceptible to internal conflict and unclear accusations, can be trusted to develop a technology with far-reaching consequences for billions of people. This paper examines how OpenAI’s board of directors terminated CEO Sam Altman’s employment, a decision that risked hundreds of highly skilled employees walking out the door, disrupted billions of dollars in value, and jeopardized critical knowledge of this important technology. It is hoped that corporate directors—whether at for-profit and non-profit companies—along with venture capitalists, technologists, and government regulators can draw valuable lessons from this near-disastrous crisis. This paper proceeds in five parts: first is a discussion about the significance of artificial intelligence; second is a look at OpenAI\u27s history, mission, relationship with Microsoft, and unique corporate structure; third, the importance of professional, experienced corporate governance is discussed; fourth is an examination of the OpenAI governance crisis culminating with the ouster of CEO Sam Altman on November 17, 2023; and last, we conclude

AI Lawyering Skills Trainers: Transforming Legal Education with Generative AI

The integration of generative AI (GenAI) tools in legal education is not just an innovation—it\u27s a transformative shift redefying how law students acquire and refine advocacy skills. This article examines AI’s critical role in modernizing legal education, emphasizing its potential to offer personalized, one-on-one coaching that enhances student learning and engagement. As AI reshapes the legal profession, law schools must evolve to prepare students for an AI-driven future. Serving as a practical guide, this article provides a step-by-step framework for educators and institutions to develop AI tools that simulate real-world courtroom scenarios and provide continuous, personalized feedback. It also highlights how AI bridges the gap between theory and practice, fostering practical skills and readiness for the evolving legal landscape. This article explores the rapid growth of AI in education and legal practice and outlines the development of MootMentorAI, a pioneering GenAI skills trainer from the University of Missouri-Kansas City School of Law. By employing Agile methodology, MootMentorAI’s iterative design process demonstrates how AI-driven tools can boosts student engagement, enhance practical skills, and ensure future lawyers are well-equipped for a changing profession

Inventions Without Inventors: The Need to Recognize AI Systems as Inventors

As AI systems increasingly generate innovative products and processes, a critical issue to address is the nature and extent of the patent protection that is conferred upon such outputs. The overarching objective of patent law is the support of innovation and progress. In determining applications, the clear focus of patent judgments is whether the claimed invention satisfies the required standards of inventiveness, novelty, and non-obviousness. It is hence curious that incidental references to “individuals” and “persons,” variously scattered through patent statutes, operate to deny recognition of AI inventors. This is the result of the global test litigation instigated by Dr. Stephen Thaler of the University of Surrey related to two products invented by an AI system. These patent applications for a humble beverage container and flashlight have shaken the very foundations of patent law. As the inventiveness of these products was not disputed, it is suggested that this has resulted in the unusual situation of there being “inventions without inventors.” In such a vexing legal and technological context, the objective of this paper is to analyze whether the present requirement in patent statutes for a human inventor should be removed to extend protection to AI-generated inventions. To do so, this paper begins by considering the historical and theoretical underpinning of patent law. It then transitions to an analysis of the notion of inventiveness in patent law and the relevance of human attributes to the conception of an inventor, connecting the Thaler judgments to subsequent legal developments and scholarship. As the patentability of AI-generated inventions is of international relevance, the analysis seeks to transcend national boundaries by identifying concerns, musings, and themes that resonate across the United States, the United Kingdom, and Australia. This paper concludes by presenting a case for statutory reform to permit the patentability of AI-generated inventions

White Paper on The Need to Strengthen International Humanitarian Law to Address the Challenges of 21 St Century Warfare

Over the course of four meetings in September-October 2024, thirty leading experts in International Humanitarian Law discussed whether there is a need to strengthen IHL to address the challenges of 21 st century warfare, and how that could best be accomplished. The resulting White Paper identifies five substantive areas (space warfare, cyberwarfare, autonomous weapons, environmental warfare, and treatment of non-state actors during armed conflict) that the participating experts believed warrant clarification, new rules, or interpretations of existing rules found in the Geneva Conventions or other elements of IHL, through new treaties, soft law, and interpretative guidance

Booing Bohnak: How the Second Circuit Dropped the Article III Ball in Analyzing Standing in Class Actions Arising from Cyberattacks

This article examines the Second Circuit\u27s decision in Bohnak v. Marsh & McLennan Cos., which represents a pivotal development in the interpretation of Article III standing in the context of cyberattack class actions. The court\u27s principal ruling, which held that mere unauthorized access to personal information by reason of a cyberattack constitutes a concrete injury sufficient for standing, marks a significant departure from prior jurisprudence and misinterprets the Supreme Court\u27s seminal Article III decision in TransUnion LLC v. Ramirez. So does the court\u27s alternative holding that standing can be predicated on a plaintiff\u27s risk of suffering identity theft by reason of a cyberattack at some point in the future, even where no showing is made that such identity theft has already occurred or is likely to befall the plaintiff any time soon. This article explores the implications of the Bohnak decision, including its misinterpretations of TransUnion and its potential to reshape the landscape of cyberattack class-action litigation. The article identifies fundamental legal fallacies in the Second Circuit\u27s reasoning in assessing Article III standing in the cyberattack context, such as its misplaced reliance on the intangible injury doctrine and its application of a subjective substantial risk standard. If broadly adopted, these holdings would dramatically lower the threshold for Article III standing, making standing a foregone conclusion in most if not all cyberattack class actions. By exposing the flaws in the Bohnak decision, this article aims to provide litigants and courts with a roadmap to counter its jurisprudential impact and preserve the integrity of Article III standing requirements in cyberattack class actions

2024 Law-Medicine Conference: Cognitive Decline and the Law

As the American population ages, a growing number of people will suffer cognitive decline. Cognitive decline may affect individuals’ ability to work, drive, obtain medical care, manage their finances and engage in other activities of daily living. As cognitive decline becomes more prevalent in American Society, legal experts and policy makers will need to grapple with its implications. This conference will explore a variety of legal and policy challenges associated with cognitive decline. Topics will include medical decision-making, guardianship, cognitive decline among incarcerated individuals, family caregivers, telemedicine and much more. Agenda and speaker biographie