Author: hj172@duke.edu

Confidentiality of AI Conversations: Protecting Self-Represented Litigants Who Use ChatGPT for Legal Advice

Artificial Intelligence, Current Volume, Featured Articles, Recent Publications, Science & Technology Leave a comment

By: Anoo Dinesh Vyas When a layperson uses ChatGPT to obtain feedback on a legal matter, attorney-client privilege may not apply, as ChatGPT is not a lawyer, much less a human. Further, while lawyers are entitled to protection for their opinion work-product, it is not clear whether self-represented litigants are entitled to the same protection. Additionally, the broader duty of confidentiality binds only attorneys, not AI systems like ChatGPT. The public increasingly uses AI tools such as ChatGPT. If a layperson employs ChatGPT for legal advice, particularly in a civil matter, such communications may be discoverable and potentially admissible. This presents an access to justice issue because a self-represented litigant who seeks to understand the scope of their legal rights may not realize that their AI communications can be used against them. Alternatively, they may not be able to afford an attorney, and thus decide to take the risk of communicating with AI anyway. This Article argues that self-represented litigants should enjoy protection for opinion work-product, and further, AI responses to self-represented litigants should also be permitted to count as opinion work-product. In addition, this Article proposes a discovery management protocol so courts may handle AI communications in a practicable

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The Myth of Sufficient Technological Barriers: Reevaluating the “Gates-Up-or-Down” Analogy in Data Scraping

Current Volume, Cybersecurity, Recent Publications, Science & Technology Leave a comment

By: Yucen Zhong In Van Buren v. United States, the Supreme Court adopted a “gates-up-or-down” analogy from physical trespass law to define “authorization” under the Computer Fraud and Abuse Act (CFAA). Despite historical shifts in judicial interpretation, courts have recently relied on this binary framework to interpret authorization as it applies to online trespass. But courts have struggled to apply this binary inquiry while still accounting for complications in modern authentication technologies. When pursuing a code-based inquiry based on the gates-up-or-down analogy, courts risk oversimplifying the dynamic nature of online trespass. Such an approach fails to account for how modern authentication measures—such as CAPTCHAs, unsearchable URLs, and compromised passwords—blur the line between public and private information. This Note argues that the gates-up-or-down framework is inadequate in defining authorization in online trespass and calls for a more balanced approach that looks beyond a code-based inquiry. Download Full Article (PDF) Cite: 26 Duke L. & Tech. Rev. 87

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Scaling Sustainable Propellants to Address Rocket Emissions: Lessons From the U.S. Aviation Industry

Current Volume, Featured Articles, Recent Publications, Space Law Leave a comment

By: Zhizhou (Josie) Liu The rapid growth of the U.S. commercial space industry has exposed a profound regulatory gap in addressing rocket emissions. By releasing greenhouse gases and particulates like black carbon, alumina, and water vapor, rocket launches not only contribute to climate change but also accelerate stratospheric ozone depletion. The U.S. aviation industry encountered similar environmental challenges decades ago, which eventually prompted legal and policy frameworks to curtail aviation emission through sustainable fuel technologies. Unlike aviation, however, the space industry now operates in a legal vacuum, with no binding international environmental standards or domestic regulations targeting rocket atmospheric pollution. As rocket emissions penetrate into every layer of the atmosphere, their environmental risks are even more intensified and distinct from aviation emissions. This Note argues that sustainable rocket technologies, such as green propellants and green non-chemical propulsion systems, offer an effective pathway to contain rocket emissions. Drawing lessons from the U.S. aviation industry’s gradual regulatory evolution, the Note proposes that a proactive regulatory framework, including industry-specific emission standards, incentive programs, and international collaboration, is critical for the U.S. space industry to avoid replicating aviation’s delayed response and to ensure that the new space era proceeds within environmentally sustainable bounds. Download

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Revisiting Eli Lilly v. Canada: Judicial Interpretation of IP Law and Exposure to Investor-State Disputes

Current Volume, Featured Articles, Intellectual Property, Recent Publications One comment

By: Yumu Chen Eli Lilly v. Canada was an investor-state dispute settlement (ISDS) case widely noted for signaling a regime shift in intellectual property (IP) protection from the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ISDS. Its true yet often overlooked significance, however, lies in being a case of first impression on whether judicial interpretation of IP law may serve as a basis for state responsibility independent of denial of justice. To bridge that gap, this Note undertakes a close reading of the novel doctrinal discussion in Eli Lilly and related precedents, drawing implications for the broader theory of state responsibility arising from substantive judicial acts. It then applies those implications to domestic IP regimes through a comparative lens, with particular attention to common law jurisdictions, where judicial interpretation plays a central role in developing IP law. This Note argues that Eli Lilly suggests judicial lawmaking may be reviewable by ISDS tribunals as a basis for state responsibility, akin to legislative or executive acts, thereby exposing common law IP regimes to heightened risk of investor-state disputes. Nevertheless, the “regulatory chill” of which scholars have warned as a result of Eli Lilly may be overstated. Any reading of

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