UC Irvine Law Review

Generative artificial intelligence (AI) is revolutionizing the creation of art, literature, and music—challenging the boundaries of intellectual property law. To date, scholars have primarily focused on AI’s authorship/entity status and the regulation of its use, overshadowing a critical issue: how AI’s involvement in creative processes influences legal judgments in copyright disputes. Our empirical research reveals systemic bias against AI-generated works in such legal matters. In our studies, participants read about a company that had hired either a human designer (condition one) or a generative AI art system (condition two) to produce works of art, and those works of art arguably infringed an existing copyright. Everything except for the identity of the hired creator (human vs. AI) was held constant, including the works of art: Participants saw identical works. The results showed that, when the works were produced by the AI (vs. the human), participants’ perception and behavior radically shifted. They were more likely to recommend that a copyright suit be commenced, more likely to find substantial similarity between the original and the allegedly infringing work, and more likely to rule in favor of infringement. Importantly, we do not argue that this bias against AI is bad or immoral or unjust. Rather, we merely identify the fact that, when a creator is an AI, people perceive the creation differently. There is a perceptual bias, and more importantly, this perceptual bias impacts legal outcomes. From this foundation, from this advance in basic science, a number of normative claims may emerge. For one, it is reasonable to assume that human actors, such as corporations, that make use of AI creators, face increased legal risk. As an extension, we delve into copyright law’s primary objective—to promote the creation of new works—and we show that biases against generative AI may frustrate this objective, impeding the very creativity copyright law aims to incentivize.

Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a substantial literature also explores whether “sin pays” in the public capital markets. This literature’s underlying theory is that social norms discourage the funding of businesses that promote vice. According to this theory, some investors—particularly institutions sensitive to social norms, such as pension funds and foundations—will shun vice investments. A consequence of this aversion is a “vice premium” for those investors who will invest in such companies. Largely unexplored, however, is what industries or business models qualify as “vice,” how this definition is constructed and changes, how vice aversion affects startup corporate governance and finance, and what consequences vice aversion holds for the real economy. We address these gaps through a series of interviews with startup founders, venturecapital (VC) and angel investors, and legal and financial practitioners. Descriptive data from commercial VC databases supplement our interviews. We find that the definition of “vice” is nuanced and shifts over time as the subjective preferences of investors and their constituents adapt to changing regulatory environments and social mores. Our respondents report that vice startups face heightened regulatory and business-infrastructure hurdles compared to non-vice startups. This experience is especially true for women and other minoritized vice entrepreneurs and those serving minoritized customer bases. These challenges implicate entrepreneurship, society, and capital markets, including by complicating the concept of the vice premium in finance theory and by showing the potential for vice aversion to shape both the vice and nonvice sides of the real economy.

The accelerated approval pathway of the United States Food and Drug Administration (FDA) enables drugs to come to market more quickly than would be possible under a traditional FDA approval pathway. Accelerated approval is based upon the agency’s determination that changes in a surrogate or intermediate clinical endpoint are “reasonably likely” to predict a clinical benefit meaningful for patients. In essence, the pathway affords sick patients earlier access to potentially beneficial drugs while trials to confirm clinical benefit continue. Accelerated approval has been likened to a social compromise in which promising drugs enter the market sooner in exchange for a sponsor’s promise to undertake so-called confirmatory trials—that is, postmarketing trials to “verify and describe” the predicted clinical benefit. This Article argues that patients, too, are expected to engage in a compromise when they take drugs approved under the pathway: patients must accept the risk that a drug will ultimately confer no meaningful benefit in exchange for the chance of treatment. But must the compromise end there? This Article deconstructs the harms that result from the accelerated approval pathway and explores how those harms should be remedied. For purposes here, the focus is on therapies later withdrawn from the market due to a sponsor’s inability to verify clinical benefit or its decision not to pursue confirmatory trials to completion. Patients and payers incur great expense during what the FDA has termed the “period of uncertainty,” the span of time between a therapy’s approval under the pathway and verification of clinical benefit or lack thereof. Moreover, therapies approved under accelerated approval, the bulk of which are immunotherapies to treat various types of cancer, often have serious side effect profiles. This means that patients who consume later-withdrawn therapies may suffer serious adverse effects or even a hastened death from a drug that ultimately yields them little to no benefit—in essence, a “toxic placebo.” This Article proposes a tort alternative modeled on the National Vaccine Injury Compensation Program to “make whole” patients harmed by accelerated approval’s “toxic placebos.” The proposed administrative compensation scheme, funded through a combination of prescription drug user fees and mandatory contributions from sponsors of later-withdrawn accelerated approval drugs, would allow patients to recover medical expenses, out-of-pocket costs for the accelerated therapy itself, compensation for side effects causally linked to a later withdrawn drug, lost wages, pain and suffering, and wrongful death. This Article does not stand as a criticism of the accelerated approval pathway, which has successfully yielded a plethora of new cancer therapies, among others. Rather, it addresses why an administrative compensation scheme is a necessary adjunct to the pathway and preferable to the status quo in which patients harmed by accelerated approval typically remain without redress through the civil tort system. Finally, it counters the notion that the defense of assumption of risk should bar recovery for patients who incur harm from therapies approved under the pathway.

The Supreme Court’s recent decision in Tyler v. Hennepin County seemed unsurprising. But the Court’s opinion unabashedly adopted an approach to claims under the Takings Clause that looks to a general law of property, even when there was an available resolution resting on state law. This Article aims to elucidate the ways in which the Court’s opinion in Tyler effects a sea change in takings law. It also poses portentous questions about the effect the decision will have on the scope of the Takings Clause, the source of property law, and the viability of the general common law as a basis for rights claims in other areas of the Court’s jurisprudence.

As we move toward full electrification for household uses, we will need to change the perspective of how we look at reliability and the reliance we have on our utilities. Current measures of reliability are utility-centric, focus on averages and may exclude large-scale events which cause widespread and long-duration outages. Averages are not good enough now (if they ever were). Excluding large events from reliability metrics drives specific utility behavior: restoring densely populated areas quickly to keep averages down, even if some customers in other areas or customers in pockets of more densely populated areas are left without service for days or weeks; discounting compounding harms from long-duration outages; and claiming that reliability is improving when the customer experience clearly is not. To adequately measure customer impact as we electrify everything, the perspective that we measure reliability from should not be that of the utility or of the regulator—but rather the individual, the household, the business who is increasingly reliant on that utility service. We need to view it from the perspective of the person who has no power, especially given the energy justice issues that arise with long-duration outages. After discussing current measures of reliability and how they do not adequately capture customer experience and impact (including, in some cases, death), this Article will discuss how states and utility responses to increasingly poor reliability have been inadequate. Instead, regulators must center the customer when addressing reliability in three ways: first, by making more informed decisions; second, by expanding their idea of what can contribute to reliability, especially with regard to distributed resources and storage; and third, by allowing customers pathways to recover damages from their utility. This Article also suggests pitfalls for regulators to avoid as they transition to customer-centric reliability.

The coronavirus pandemic was, for all intents and purposes, a national emergency that highlighted the lack of quality healthcare for people of color and the overall lack of trust that communities of color, in general, have for medical professionals. In particular, Blacks, Latino/x, and Native Americans experienced higher hospitalization and death rates than White people. Part of the reason is because Black and Latino/x communities were overrepresented in essential service jobs during the pandemic, and these jobs did not allow for the ability to work from home. Other reasons stem from a lack of trust due to a history of discrimination in the medical field, lack of health insurance, and the quality of healthcare facilities in areas with diverse populations. Given the disproportionate impact of COVID-19 on people of color, states like Utah, Minnesota, and New York, implemented race-based health policies to decrease the hospitalization and mortality rate among people of color, effectively creating affirmative action programs for healthcare treatment. Yet, these policies would likely not survive the Supreme Court’s strict scrutiny test. Additionally, given the historical relationship between the medical field and communities of color, using race may not be an effective path to achieve better health outcomes for people of color. This Note will present solutions to improve healthcare outcomes for people of color, incorporating the lessons learned from the COVID-19 pandemic.

“Political freedom cannot exist in any land where religion controls the state, and religious freedom cannot exist in any land where the state controls religion.” — Sen. Sam J. Ervin Jr.