Category: Current Volume

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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Fossil-Fueled Failure: How Nonrenewable Energy Policy Will Cost the United States the AI Race

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

By: Kayla Landeros This Article examines the structure and regulation of the United States electricity industry in light of accelerating electricity demand driven by Artificial Intelligence (“AI”) and digitalization. It argues that the One Big Beautiful Bill Act and related executive actions have exacerbated existing structural weaknesses within the nation’s energy governance framework by repealing renewable energy incentives, privileging nonrenewable generation, and reinforcing the instability of an executive dominated regulatory model. Through a comparative analysis, the Article contrasts the United States’ fragmented, market-based approach with China’s centralized, statute-based framework, which integrates renewable energy development, grid expansion, and AI infrastructure into a cohesive national strategy. While acknowledging the constitutional and institutional limits of United States energy federalism, the Article contends that meaningful reform remains possible through measures that promote reliability and long-term planning. It concludes that the United States economic and technological leadership in the AI era requires a durable, whole-of-government energy policy that supports all forms of energy generation and unites generation, transmission, and distribution within a coherent framework capable of supporting both innovation and sustainability. Download Full Article (PDF) Cite: 26 Duke L. & Tech. Rev. 127

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Juror Contact in the Digital Age: The LinkedIn Problem

Current Volume, Featured Articles, Media & Communications, Recent Publications Leave a comment

By: Drew Thornley This Article examines an evolving dispute in professional responsibility: whether a lawyer makes a prohibited communication when viewing a juror’s LinkedIn account. When one LinkedIn user views another’s profile, the platform automatically notifies the profile owner and may include the viewer’s identity. Ethics rules are currently divided on whether or not this notification would count as a prohibited juror communication. On one hand, the ABA and some state bar associations explicitly allow attorneys to view social-media profiles of jurors even when the lawyer’s identity is revealed. On the other hand, some bar associations and courts believe these automatic notifications violate ethical rules, primarily, the juror-contact rule. Drawing on a survey of ethics opinions and the purpose of juror-contact rules, this article argues against a strict interpretation of what prohibited juror contact means in the digital age. This article argues that, with respect to the juror-contact rule, a communication requires that the attorney have a purpose to convey information. Since there is no purpose to convey information through these automated notifications, there is no communication. During voir dire, lawyers have an obligation to understand the people who will be deciding their client’s case. This interest needs to be

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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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Falling Flat: Why AI Cannot Free Melodies from Copyright Protection with “All the Music” as an Example

Artificial Intelligence, Copyrights & Trademarks, Current Volume, Featured Articles, Intellectual Property, Recent Publications Leave a comment

By: Hayley Huber As artificial intelligence (AI) continues to surprise us with its humanlike abilities, it raises the question of whether AI-created music can or should be afforded legal protection. Particularly, how should copyright law treat melodies produced by an AI designed to algorithmically generate every possible melody? This article seeks to answer that question, ultimately concluding that AI-produced melodies are not copyrightable and that melodies are not merely facts undeserving of copyright protection, but something valuable to mankind and worth protecting by law. The article explores Damien Riehl’s All the Music project (ATM) and his arguments for why ATM’s outputs should be protected as a case study that AI-produced music is uncopyrightable and that melodies are more than uncopyrightable facts. The article shows that U.S. copyright law does not recognize machines as “authors” for copyright purposes, that reducing melodies to “just math” conflicts with mainstream legal and musicological understandings of melody, and that even if ATM’s outputs were copyrightable, most of its “melodies” would fail for lack of originality. Projects like ATM neither free existing melodies from copyright protection nor meaningfully reduce the risk of infringement litigation for musicians. Download Full Article (PDF) Cite: 26 Duke L. & Tech.

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

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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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It’s Not So Simple: An Examination of How the Internal Revenue Code Fails to Contemplate the Economic Realities of Individuals With Disabilities and Their Families

Assistive Technology, Current Volume, Disability Law, Family Law, Featured Articles, Juvenile Law, Recent Publications, Tax Law One comment

By: Garret Hoff Families with disabled students face extra costs associated with providing their child with the same education that other students get for free. Even though these costs are spent with the explicit purpose of supporting their child’s disability-informed care and are not incurred but for their disability (“but-for costs”), some of these costs are not deductible and others are subject to unnecessary ambiguity when it comes to their deductibility. Families with disabled students are forced to reckon with arbitrary distinctions if they want to receive any favorable tax treatment on but-for costs. This is because the relevant provision in the Internal Revenue Code, Section 213, was written and consequentially interpreted during a time when disabled people were not viewed as being worth public money to educate. This status quo is unacceptable. As a starting point, the IRS should revise Treasury Regulation 1.213-1(e)(1)(v)(a) to unambiguously recognize a broader interpretation of Section 213. This revision would remove a dated regulatory distinction that pushes families towards medical institutions and away from the rest of the world to support their children’s disability-informed education. A more substantial solution would be for Congress to amend Section 529A, the section of the tax code created

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To Infinity and Beyond (And Beyond): The Legal and Ethical Imperative for Rocket Reusability

Current Volume, Featured Articles, International, Recent Publications, Science & Technology, Space Law Leave a comment

By: Matthew Lumia Although the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits of space exploration to be shared by more nations, and conserving resources which can be redirected to other pressing needs on Earth. As the global launch cadence continues to rise, widespread adoption of reusable rocket technology is essential to ensuring the long-term sustainability of space exploration while fulfilling international legal obligations and inherent ethical responsibilities. Download Full Article (PDF) Cite: 25 Duke L. & Tech. Rev. 262

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Playing to Win: The Use of Export Controls to Address Non-military Strategic Competition

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

By: Joshua Angelo Technology and national security have been intimately related throughout American history. Over the past eighty-five years, the United States has increasingly made use of export controls to prevent adversarial countries from using the fruits of its technological advancement to strengthen their militaries and harm American interests. Today, strategic competition with the People’s Republic of China involves a myriad of technologies which present risks outside of, as well as within, the military context. Chinese exports of technologies, including artificial intelligence, quantum computing, and 5G communications, can promote the country’s authoritarian model abroad, enable economic coercion, and help to enrich the regime. The Belt and Road and “Made in China 2025” initiatives illustrate China’s use of novel technologies to further its global ambitions. Export controls may help to confront these threats. This note asks whether the Bureau of Industry and Security (a government body tasked with implementing export controls) can regulate exports of novel technologies for purposes of non-military strategic competition. Through examination of the statutes authorizing export controls and of the deference traditionally afforded to the Executive in administrative and foreign affairs matters, this note concludes that such export controls are authorized. Download Full Article (PDF) Cite: 25

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