Past Case Law Research Articles

Medical malpractice liability in large language model artificial intelligence: legal review and policy recommendations.

The emergence of generative large language model (LLM) artificial intelligence (AI) represents one of the most profound developments in healthcare in decades, with the potential to create revolutionary and seismic changes in the practice of medicine as we know it. However, significant concerns have arisen over questions of liability for bad outcomes associated with LLM AI-influenced medical decision making. Although the authors were not able to identify a case in the United States that has been adjudicated on medical malpractice in the context of LLM AI at this time, sufficient precedent exists to interpret how analogous situations might be applied to these cases when they inevitably come to trial in the future. This commentary will discuss areas of potential legal vulnerability for clinicians utilizing LLM AI through review of past case law pertaining to third-party medical guidance and review the patchwork ofcurrent regulations relating to medical malpractice liability in AI. Finally, we will propose proactive policy recommendations including creating an enforcement duty at the US Food and Drug Administration (FDA) to require algorithmic transparency, recommend reliance on peer-reviewed data and rigorous validation testing when LLMs are utilized in clinical settings, and encourage tort reform to share liability between physicians and LLM developers.

Abandoning the Spouse, Abandoning the House? Abandonment of Co-Ownership Shares in Immovable Property [Discussion of M V M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.

Definition of Tax Planning in the Case Law of the Court of Justice of the EU (ECJ)

The objective of the study is to analyse the current and past case law of the European Court of Justice (ECJ) regarding tax disputes based on the modern legislation of the EU countries and applicable international law to determine the concept and criteria for legal tax planning. This article provides an in-depth study of the well-known Cadbury Schweppes case (2006), including the decision of the ECJ, which laid the foundation for a new concept of examination and interpretation of tax disputes on the merits in general. The introduction of the concept of “wholly artificial arrangements” and their characteristics stipulated and determined the development of the entire field of tax planning for years to come. Other rulings of the ECJ following the case of Cadbury Schweppes have described in greater detail and more specifically the concept of “wholly artificial arrangements” under the influence of the practice of tax planning itself, determining what tax planning is legitimate and how exactly it should be distinguished from tax evasion and tax avoidance. Several research methods have been used in this study: comparative method, historical method, analytic method, inductive method. Keywords: European Court of Justice, freedom of establishment, notion of economic substance, tax disputes, tax planning, wholly artificial arrangements, tax evasion

Dangerous Liaisons: The Story of Special Economic Zones, International Investment Agreements, and Investor–State Dispute Settlement

ABSTRACT This article focuses on the interaction and relationship between Special Economic Zones (SEZs) as facets of unilateral economic law, international investment law, and the investor–state dispute settlement (ISDS) system in a four-fold manner. It initially explains the role of international investment agreements in protecting foreign investments in these zones. Then, it classifies the public or private nature of such zones and goes on to examine related claims through past case law, to determine how modern SEZs must be created to reduce host State liability. Whilst doing so, it provides important suggestions to improve the domestic and international success of SEZs by reducing costs associated with it. In this manner, this article endeavours to highlight the need for a balance in public policy between the rights of host States and foreign investors to ensure that SEZs continue to attract significant amounts of foreign investment. It also stresses on understanding transnational foreign investment rules and the implication of the previously concluded investor–ISDS proceedings so that host States can ensure better regulation of foreign direct investment in these areas.

Importance of judicial decisions as a perceived level of relevance

Studies employing network analysis to reveal hidden mechanisms in judicial decision making, both in common law as well as civil law countries often use rather vague concepts of ‘importance’ of judicial decisions, concepts that are not always thoroughly explained, tend towards certain relativity and are used together with other similar words [(legal) relevance, (legal) significance…], with or without attempting explanation of these concepts, or relying purely on operationalization. This paper argues that in the context of legal systems that do not recognize a doctrine of precedent this approach is either oversimplified, or even erroneous. It further shows that ‘importance’ of past case-law is essentially a matter of the judge’s choice. Approaching this concept in this manner allows me to show that this choice is explainable within the theoretical framework provided by theories of relevance. This paper focuses on two major approaches to relevance: linguistic pragmatism and information retrieval, and shows that the concept of optimal relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering the question of why judges tend to argue by referring to past case-law even in those legal systems that do not recognize a doctrine of binding precedent.

Personality testing and the Americans With Disabilities Act: Cause for concern as normal and abnormal personality models are integrated

AbstractApplied psychologists commonly use personality tests in employee selection systems because of their advantages regarding incremental criterion-related validity and less adverse impact relative to cognitive ability tests. Although personality tests have seen limited legal challenges in the past, we posit that the use of personality tests might see increased challenges under the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA) due to emerging evidence that normative personality and personality disorders belong to common continua. This article aims to begin a discussion and offer initial insight regarding the possible implications of this research for personality testing under the ADA. We review past case law, scholarship in employment law, Equal Employment Opportunity Commission (EEOC) guidance regarding “medical examinations,” and recent literature from various psychology disciplines—including clinical, neuropsychology, and applied personality psychology—regarding the relationship between normative personality and personality disorders. More importantly, we review suggestions proposing the five-factor model (FFM) be used to diagnose personality disorders (PDs) and recent changes in theDiagnostic and Statistical Manual of Mental Disorders(DSM). Our review suggests that as scientific understanding of personality progresses, practitioners will need to exercise evermore caution when choosing personality measures for use in selection systems. We conclude with six recommendations for applied psychologists when developing or choosing personality measures.

Truth or Justice: A Comparative Look at the Exclusionary Rule in Germany and the United States

Procedural rules and case law play a key role in shaping the fact-finder’s ability to “find the truth” in both Germany and the United States. In the United States, in the absence of comprehensive codes of criminal procedure, the judiciary’s shifting interpretations affect the exclusionary rule’s scope forcing prosecutors to use the pre-trial process to determine “whether the logically relevant information [they have] gathered will successfully undergo the legal metamorphosis into technically competent evidence.” In both countries, the willingness of courts to impose those rules or to reshape the contours of past case law in a manner that may or may not exclude evidence shifts over time. At this moment in history, we are witnessing competing trends regarding the exclusion of evidence in Germany and in the United States. Although courts in the United States, in particular the Supreme Court, have recently been more willing to narrow the use of the exclusionary rule, the decisions of German courts are trending in favor of placing more safeguards on the legislature’s efforts to expand police powers. Many scholars have highlighted the differences in the scope and application of both country’s exclusionary rules. While I summarize this prior scholarship and key court decisions in Parts I and II of this article, in Part III, I explore how these different normative underpinnings fare in a world of rapid technological developments. Further, I probe how the differing legal conceptions of privacy, autonomy, and dignity mediate the relationship between the democratic state and the concept of the individual and ask whether the structure of evidentiary protections in both countries prepare us for the decades ahead.

The Indecency of the Communications Decency Act § 230: Unjust Immunity for Monstrous Social Media Platforms

The line between First Amendment protection and the innovation of social media platforms is hazy at best. Not only do these platforms increasingly encompass the lives of many individuals, but they provide incredible new opportunities to interact from near and far, through sharing photographs, videos, and memories. The Internet provides countless outlets that are available at the tip of users’ fingers: thriving forums to communicate nearly whenever and wherever desired. Users effortlessly interact on these platforms and are consistently exposed to numerous forms of speech, including messages through posts, chat room discussions, videos, polls, and shared statements. From 2010 to 2017, the number of social media users worldwide has increased from 0.97 billion to 2.46 billion, respectively.1 These numbers are expected to grow as high as 3.02 billion in the year 2021.2 Undoubtedly, an unbelievably large number of individuals are exposed daily to these leading-edge speech forums—many of whom are unaware of the inadequacy of Section 230 of the Communications Decency Act (“Section 230”).3 This Article will address its history of creation and past case law, and provide a thorough analysis of its need to be revised. Moreover, this Article will specifically speak to the manner in which it should be revised in order to ensure protection to users of social media platforms who encounter situations in which they seek legal remedies for the need to remove unlawful material.

Greek Debt Restructuring and Investment Treaty Arbitration: Jurisdictional Stumbling Blocks for Bondholders

The recent award of an International Center for the Settlement of Investment Disputes (ICSID) tribunal in Poštová banka a.s. and ISTROKAPITAL SE v. Hellenic Republic came as an unpleasant surprise for holders of Greek sovereign debt, who suffered losses because of the sovereign debt restructuring (SDR) that took place in February 2012, since it seems to be at odds with past case law on the matter. The tribunal found that it did not have jurisdiction to hear the dispute, inter alia, because the acquisition of Greek sovereign bonds by Poštová banka did not constitute an ‘investment’ under Article 1(1) of the Greece-Slovakia Bilateral Investment Treaty (BIT). At any rate, according to the tribunal, transactions over sovereign bonds on the secondary markets do not fall within the definition of ‘investment’ under Article 25 of the ICSID Convention. In this article, the author questions the narrow interpretation of the definition of ‘investment’, as set forth in Article 1(1) of the Greece-Slovakia BIT, adopted by the tribunal. In declining jurisdiction, the tribunal looked through the provisions of Greek law so as to ascertain whether the claimants had rights protected under the BIT. The author advocates a different interpretation of the relevant provisions of Greek law in accordance with legal doctrine in Greece concerning the rights of investors over dematerialized government debt. The author also supports a wide meaning of the term ‘investment’ under Article 25 of the ICSID Convention, so that sovereign bonds are included in the definition.

Reasons and reasons for reasons revisited: has the domestic arbitral award moved away from the fundamental basis behind the reasoned award, and is it now time for realignment?

This article begins by detailing the origins of Arbitration and the development of the reasoned award. It goes on to note Lord Bingham’s evaluation of how a reasoned award can serve interested parties most effectively, evaluating the four and half reasons Lord Bingham advanced in support of a fully reasoned award. This evaluation is used to assess the current domestic Arbitral award, looking at both the Arbitration Act 1979 and 1996. The article goes on to consider recent case law in the area of challenges to the reasoning provided within the arbitral award, and whether the current high threshold is restricting the reasoning contained within the arbitral awards. The piece goes on to further consider whether changes to the current threshold could be made in order to reap the benefits highlighted by Bingham as well as considering whether the current threshold is based upon a misinterpretation of past case law.

Turkey's International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire

This paper examines the legal consequences of the commission by the Ottoman Empire of internationally wrongful acts, including acts of genocide, against the Armenian population during World War I. Specifically, the present paper examines the following question: can the modern State of Turkey (which was only officially proclaimed in 1923) be held responsible, under international law, for internationally wrongful acts committed by the Ottoman Empire before its disintegration? This paper first briefly examines whether Turkey should be considered, under international law, as the "continuing" State of the Ottoman Empire or whether it should instead be deemed as a "new" State, We will show that Turkey is, in legal terms, "identical" to the Ottoman Empire and is therefore "continuing" the international legal personality of the Empire. This paper will then focus on the legal consequences arising from this conclusion of continuity. Our analysis of past case law and State practice shows that both in the context of secession and of cession of territory, the continuing State continues to be held responsible for its own internationally wrongful acts committed before the date of succession. Accordingly, Turkey should be held responsible for all internationally wrongful acts committed by the Ottoman Empire.

How to Give a Meaningful Interpretation to the Efficiency Defence in European Competition Law?

The role of the efficiency defence in competition law, particularly in European Union competition law was always heavily debated since the adoption of the first merger regulation in the European Community, later the European Union. According to the current interpretation of the notion of dominance by the ECJ it is not possible to justify a merger creating or strengthening a dominant position based on efficiency justification. Moreover, the structural presumptions underlying the system of merger control prevail in such situations. If the merged undertaking does not have a dominant position, efficiency gains can outweigh the harm to competition on the condition that the benefits reach the consumers. This approach is not only consistent with past case law, but is also reflecting the traditions of the Harvard- and Freiburg Schools. Oligopoly theory suggests that concentration on the market is a very relevant factor and this is reflected in the SIEC test.This a revised version of the previous working paper under the same title.

State-Based Business Licensing in Australia: The Constitution, Economics and International Perspectives

This article considers the current controversial question of the continuing existence of state licensing systems in relation to businesses and occupations. While there may be good reasons for such regimes, differing requirements in different jurisdictions can have the effect of making it more difficult for families and individuals to conduct business in particular jurisdictions, and can inhibit them from moving between jurisdictions. These restrictions could, in the view of economists, lead to inefficient use of human resources. The article considers the extent to which section 92 of the Constitution might be invoked to challenge such regulations, bearing in mind past case law on the section and the recent Betfair decision.

An integrated methodology for collecting, classifying, and analyzing Canadian construction court cases

Construction contracts are becoming more complicated, and the increase in complexity of construction processes, documents, and conditions of contracts has contributed to a higher possibility of disputes and conflicting interpretations. The judicial system has been the means for dispute resolution for claims that cannot be solved through other means such as negotiation and arbitration. Knowledge of previous outcomes of judicial processes will both inform participants in a dispute and increase the likelihood of a less-expensive out-of-court dispute-resolution process. This paper presents a methodology to classify, categorize, and analyze Canadian case-law construction claims. In total, 567 Canadian construction court cases have been collected from 10 different sources and are classified into 12 categories that follow the Canadian Construction Documents Committee (CCDC) standard construction contract document CCDC 2-1994. The proposed methodology is implemented in a computer-integrated system called the Canadian construction claim tracker (CCCT), which consists of one central database and three modules, namely a statistical module, a prediction module, and a classification module. The CCCT provides its users with easy and quick access to past case-law claim information.Key words: construction courts, claims, litigation, artificial neural networks, Canadian Construction Documents Committee.

Federalism, Consumer Protection and Preemption: A Case for Heightened Judicial Review

Should courts defer to the preemption decisions of federal agencies? The Supreme Court has not settled the controversy generated by this issue, and Circuit Courts have divided on the question. The focus in past case law and in the literature has been on agency versus judicial expertise. This article examines another aspect of the question - agency bias. It presents a case study of the actions of the Comptroller of the Currency (OCC) in the 1992-2005 period and compares that agency's stance to that of the FDIC. The conclusion drawn is that the OCC has not served as an unbiased forum for resolving disputes over preemption. Instead it has exhibited an overly aggressive viewpoint - ignoring the evolution of Supreme Court doctrine, ignoring legislative history and embracing the interests of the banking industry while minimizing the interests of consumers and state governments. Heightened judicial review of agency decisions tainted by self-interest is necessary.