Infrastructure

'Infrastructuring the Digital Public Sphere' by Julie E Cohen in (2023) 25 Yale Journal of Law & Technology (forthcoming) comments 

The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions. 

Hart

'The Rule of Law: “A” Relation Between Law and Morals' by Alani Golanski in (2022) 42(2) Northern Illinois University Law Review comments 

H. L. A. Hart begins chapter nine of The Concept of Law by saying that “[t]here are many different types of relation between law and morals and there is nothing which can be profitably singled out for study as the relation between them.”1 He allows that conventional and social group morality, as well as a more rigorously practiced and “enlightened” moral criticism, have both “profoundly influenced” the development of law. Most saliently, legal systems, but also institutions generally, will as a “natural necessity” incorporate a “minimum content of [n]atural [l]aw” in service of the human propensity toward survival. 

This minimum content of natural law includes certain substantive prohibitions. Human beings are vulnerable creatures, of bounded capabilities as well as limited altruism. All are tempted, at least sometimes, to pursue their own immediate interests at the expense of others’ welfare. This is “one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one.” So law, like morality, will ordinarily proscribe such offenses as murder or unprovoked assault aimed at appropriating one’s neighbor’s assets. Given the “standing danger” that there are always some who will try to exploit and overcome merely moral constraints, “what reason demands is voluntary cooperation in a coercive system.” 

These sorts of considerations that draw moral values into a relation with law do not warrant the different conclusion that conformity with morality provides a necessary criterion of the existence or validity of law. Rejection of that conclusion is one of Hart’s main legal positivist premises, his “separation thesis.” Nor can there be a necessary correlation, for Hart, between legal rules and natural-law theory’s ample moral standards, because “the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument” that the legal system’s content necessarily encompasses more than natural law’s minimum content. 

Yet, for Hart, the factors that warrant an acknowledgment that legal systems generally must incorporate a minimum content of natural law spill over into his understanding of what he terms “legality.” This concept implicates the manner in which laws come into existence, as well as characteristics of the laws requisite to any legal system’s abilities to effectuate social control. The central claim is that, if the legal system is to fulfill its social control function, and by close analogy abide by legality, the system’s outputs will have to abide by certain formal requirements that bring enacted rules “within the capacity of most to obey.” Hence, the legal rules will have to satisfy certain conditions, such as being intelligible and typically not retrospective. 

The notion of legality is intimately related to, and often taken to be synonymous with, the idea of the rule of law. Hart’s project conduced him toward minimizing the perception of any necessary connection between law and morals, and his minimal expression of legality has influenced slim and formal conceptions of the rule of law ideal itself. This is how Jeremy Waldron put it:

I think Hart was inclined to see a preoccupation with legality and the rule of law as a source of confusion in jurisprudence; often one gets the impression that Hart thought that if anyone offered to talk about it, the responsible thing to do was to say something palliative and then shut down the discussion as quickly and firmly as possible. Principles of legality, Hart implied, may be among the principles we should use for the evaluation of law, but their study is not part of the philosophical discipline that tries to tell us what law essentially is.

That is fair enough. But the impulse criticized by Waldron to sever the focus on the concept of law from an evaluation of law and legal systems should not precondition the criteria by which legal institutional action is evaluated. Limiting the rule of law evaluation to an appraisal of whether the system abides by a few, sharply delimited formal conditions is likely in inevitable tension with the general impulse to evaluate law’s workings more deeply. This does not mean that just any sort of evaluation of the legal system counts as a rule of law assessment. Nor, however, does a robust concept of the rule of law as an exercise in political morality impair a “hard” legal positivist concept of law that emphatically excludes moral criteria from the identification of the existence or content of valid, positive laws.

The interrelated questions asked in this Article are: (1) whether the concept of the rule of law is well served by a delimited focus on whether the legal system promulgates laws capable of being obeyed; (2) whether a morally richer view of the rule of law fits the concept’s use and formulation; and (3) whether, even if extending beyond traditional formulations, a rule of law inquiry broader than Hart’s capacity-to-obey test should be seen as conceptual overreach? The answers argued for here aspire toward both releasing the rule of law construct from its formal-equality fetters and accentuating the construct’s potential for improving the moral landscape endured by those for whom legal arrangements reinforce impairment of their capabilities to exercise powers that the legal system otherwise confers or encourages.

AI, Patent Reading and Patent Disclosure

'Misleading AI: Regulatory Strategies for Transparency in Information Intermediary Tools for Consumer Decision-Making' by Jeannie Marie Paterson in (2023) Loyola Consumer Law Review comments

Increasingly, consumers’ decisions about what to buy are mediated through digital tools promoted as using “AI”, “data” or “algorithms” to assist consumers in making decisions. These kinds of digital information intermediaries include such diverse technologies as recommender systems, comparison sites, virtual voice assistants, and chatbots. They are promoted as effective and efficient ways of assisting consumers making decisions in the face of otherwise insurmountable volumes of information. But such tools also hold the potential to mislead consumers, amongst other possible harms, including about their capacity, efficacy, and identity. Most consumer protection regimes contain broad and flexible prohibitions on misleading conduct that are, in principle, fit to tackle the harms of misleading AI in consumer tools. This article argues that, in practice, the challenge may lie in establishing that a contravention has occurred at all. The key characteristics that define AI informed consumer decision-making support tools ––opacity, adaptivity, scale, and personalization –– may make contraventions of the law hard to detect. The paper considers whether insights from proposed frameworks for ethical or responsible AI, which emphasise the value of transparency and explanations in data driven models, may be useful in supplementing consumer protection law in responding to concerns of misleading AI, as well as the role of regulators in making transparency initiatives effective.

'Linguistic metrics for patent disclosure: Evidence from university versus corporate patents' by Nancy Kong, Uwe Dulleck, Adam B Jaffe, Shupeng Sun and Sowmya Vajjala in (2023) 52(2) Research Policy comments 

 Encouraging disclosure is important for the patent system, yet the technical information in patent applications is often inadequate. We use algorithms from computational linguistics to quantify the effectiveness of disclosure in patent applications. Relying on the expectation that universities have more ability and incentive to disclose their inventions than corporations, we analyze 64 linguistic measures of patent applications, and show that university patents are more readable by 0.4 SD of a synthetic measure of readability. Results are robust to controlling for non-disclosure-related invention heterogeneity. The linguistic metrics are evaluated by a panel of “expert” student engineers and further examined by USPTO 112(a) – lack of disclosure – rejection. The ability to quantify disclosure opens new research paths and potentially facilitates improvement of disclosure. ... 

The patent system serves two purposes: “encouraging new inventions” and “adding knowledge to the public domain”. The former incentivizes creation, development, and commercialization by protecting inventors’ exclusive ownership for a limited period of time. The latter encourages disclosure of new technologies by requiring “full, clear, concise, and exact terms” in describing inventions.2 Sufficient disclosure in patents has three major benefits: (1) fostering later inventions (Jaffe and Trajtenberg, 2002, Scotchmer and Green, 1990, Denicolò and Franzoni, 2003); (2) reducing resources wasted on duplicate inventions (Hegde et al., 2022); and (3) inducing more informed investment in innovation (Roin, 2005). 

Despite a large body of literature on the patent incentivizing function (Cornelli and Schankerman, 1999, Kitch, 1977, Tauman and Weng, 2012, Cohen et al., 2002), patent disclosure receives limited attention. This raises concerns; as Roin (2005), Devlin (2009), Sampat (2018), Arinas (2012) and Ouellette (2011) document, the technical information contained in patent documents is often inadequate and unclear. Important questions, such as how to measure disclosure, potential incentives behind disclosure, heterogeneous levels of disclosure by entities, and the tactic of avoiding the disclosure requirement, have not been directly investigated. A major barrier to such empirical research has been the lack of broadly applicable, reproducible quantitative measures of the extent of disclosure or information accessibility. We propose and demonstrate that extant metrics developed in computational linguistics can help to fill this gap. 

In using computational linguistic metrics to compare the readability of documents, we follow researchers in the finance and accounting literature, who have used readability metrics to gauge whether readers are able to extract information efficiently from financial reports (Li, 2008, Miller, 2010, You and Zhang, 2009, Lawrence, 2013). This literature posits that more complex texts increase the information processing cost for investors (Grossman and Stiglitz, 1980, Bloomfield, 2002) and finds, for example, that companies are likely to hide negative performance in complicated text to obfuscate that information (You and Zhang, 2009). 

Although patent applications differ from corporate annual reports, the research question regarding strategic obfuscation is similar: Documents are created subject to regulation, in which the purpose of the regulation is to compel disclosure, but the party completing the document may have incentives to obscure information. Our proposed linguistic measures are likely to serve as an informative proxy for the explicitly or implicitly chosen level of disclosure. The goal of this article is simply to demonstrate that these measures do appear to capture meaningful differences in accessibility or disclosure, and thereby opening up the possibility of research on the causes and effects of variations in disclosure. 

Our strategy for demonstrating the relevance of linguistic readability metrics is to identify a situation in which we have a strong a priori expectation of a systematic difference in disclosure across two groups of patents. If the proposed metrics show the expected difference, we see this as an indication to treat them as potentially useful. We compare patent applications from universities with those of corporations. Both strategic reasons and the costs of revealing information inform our expectations. From a strategic perspective, universities, with their focus on licensing of patents have an interest in making their patents more accessible. In contrast, corporations (particularly practicing corporations) may benefit from limiting the accessibility of information. From a cost perspective, drafting patents is usually informed by documentation of the relevant research or process of innovation. Given university researchers’ primary interest in accessible publications and the relevant standards of documentation, the source material available to an attorney drafting a patent may be much better than in the case of the same attorney drafting a patent for a corporation, in which the need for such documentation is much less. The literature also supports this expectation (Trajtenberg et al., 1997, Henderson et al., 1998, Cockburn et al., 2002). 

Universities and corporations follow different business models for patenting: technology transfer versus in-house commercialization. Patents applied for by universities, with a focus on generating income from the licensing of inventions, should have a higher level of disclosure because transparent information makes it easier to signal the technology contained in the patent and attract potential investors. As a result, they are more readable than corporate patents. The readability difference could be further magnified by the moral requirements of university research as well as the rigor of academic writing, which could further affect the level of disclosure. 

Corporations, particularly those with a focus on in-house production, on the other hand, have a greater incentive to obfuscate crucial technical information to deter competitors from understanding, using, and building on their inventions. The profit-maximizing motive, as well as a lack of incentive to thoroughly document the invention, could also contribute to the low level of disclosure. Together, it is reasonable to assume that universities may strategically (or unconsciously) choose a higher disclosure level in patent applications than corporations. We emphasize that we do not see this analysis as testing the hypothesis that universities engage in more disclosure than corporations for a particular reason. Rather, we take this as a maintained hypothesis and show – conditional on that maintained hypothesis – that the linguistic measures meaningfully capture differences in disclosure across patents, which indicates the value of further research and the need to reconsider patent examination with respect to the accessibility and disclosure of information contained in patents. 

Similar to the finance literature, we use a computational linguistic program designed to assess the reading difficulty of texts using 64 measures from second language acquisition research. The indicators cover the lexical, syntactic, and discourse aspects of language along with traditional readability formulae. We apply them to a full set of U.S. patent application texts in three cutting-edge industries from the past 20 years. Our baseline OLS estimations reveal significant differences between university and corporate patents. Using principal component analysis (PCA) to combine the 64 indicators and create synthetic readability measures, we show that composite indices detect strong differences between university and corporate patents, which lends support to the validity of our measures. 

The key empirical challenge is that the nature of corporate and university inventions might differ; thus, the textual communication required for corporate inventions could differ. To address this concern, our identification strategy employs the following. First, to account for the unobserved heterogeneity in linguistic characteristics intrinsic to technical fields, our econometric method controls for U.S. patent subclass fixed effects. This enables us to measure disclosure as the degree of readability relative to other technologically similar patents. Second, we use patent attorney fixed effects to control for systematic disclosure effects from the drafting agents. This compares the university and corporate patents drafted by the same patent attorney. Third, we employ cited-patent fixed effects with a data compression technique, least absolute shrinkage and selection operator (LASSO), to further control for the nature of inventions. This is because university and corporate patents that cite the same previous patents build on the same prior knowledge, and are therefore likely to be technologically similar inventions. Fourth, to deal with any selection bias from observables, we use a doubly robust estimation that combines propensity score matching and regression adjustment. This enables us to compare university and corporate patents with similar attributes. 

Our results show that corporate patents are 0.4 SD more difficult to read and require 1.1–1.6 years more education to comprehend than university patents. We find that the difference is more prominent for more experienced patent applicants, and that licensing corporate patents disclose more than other corporate patents, which we believe supports the idea that the differences in readability are at least somewhat intentional. We also show that a potential channel for obfuscation lies in the provision of many examples in order to conceal the “best mode” of inventions. 

This paper is one of the first to specifically use textual analysis to examine patent disclosure (with exception of Dyer et al. (2020) who focus on patent examiners’ leniency) and validate the measure. We obtain the whole set of full text patent applications in categories related to nanotechnology, batteries, and electricity from 2000 to 2019, totaling 40,949, and apply our linguistic analysis model to the technical descriptions of these patents. We expand readability studies in related literature that rely heavily on traditional readability indices such as Gunning Fog, Kincaid, and Flesch Reading Ease by including lexical richness, syntactic complexity, and discourse features. We use the best non-commercial readability software (Vajjala and Meurers, 2014b) to capture the multidimensional linguistic features of 64 indicators, and perform a more in-depth linguistic analysis (Loughran and McDonald, 2016) than previous studies. We also use principal components analysis to construct synthetic overall measures of readability. 

Having developed this rich set of readability measures, we validate them as indicators of effective patent disclosure by testing whether the lexical measures show patents to be more readable in several real-world contexts. Our primary comparison is between university and corporate patents. The licensing aims of universities and absence of market driven competitive motives mean that they have greater incentive to disclose – less incentive to conceal – key information relative to corporations. Through analyses that control for sources of variation in readability, we find that university patents are, indeed, more readable. We support this main analysis with several other comparisons. Intellectual Ventures – a corporation that, akin to universities, seeks to license its patents over competing in the market – also holds patents with above average readability. Several large corporations known to be active patent licensors (IBM, Qualcomm, and HP) similarly exhibit higher readability. Additionally, a set of patents that can be presumed to have been reassigned also exhibit higher readability than otherwise similar patents. Finally, we compared the computational readability measures to subjective evaluations of readability and disclosure for a small number of patents, and assessed the readability of patents rejected by the USPTO for reasons that include failure to adequately disclose the technology. 

We see the role of this paper as analogous to Trajtenberg et al. (1997), who first introduced metrics of patent “importance”, “generality” and “originality” based on patent citation data. We imitate their strategy to test whether our proposed new measures reveal the contrast we expect between university and corporate patents, and argue that the finding – that they display the predicted pattern – can be taken as initial evidence that they capture meaningful variation in unobservable patent disclosure quality. The introduction and initial validation of these measures open up the possibility of quantitative treatment of extent of disclosure in patents, both for social science research on the sources and effects of better or worse disclosure, and potentially for use in more systematic treatment of the disclosure obligation in the patent examination process. 

The rest of the paper proceeds as follows. Section 3 explains the linguistic measures used in the study. In Section 2, we review the relevant literature and lay out our hypothesis of differences in disclosure between university and corporate patent applications. Section 4 presents our data and baseline estimation, followed by our main results in Section 5. We examine attorney fixed effects and cited-patent fixed effects in Section 6, and one channel that corporations could use to obscure patent applications in Section 7. We show heterogeneous effects in Section 8 and usefulness tests in Section 9, and conclude in Section 10.

Ecocentrism

'Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law' by Niels Hoek, Ivar Kaststeen, Silke van Gils, Eline Janssen, and Marit van Gils in (2023) 19(1) Utrecht Law Review 72–86 comments 

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

The authors consider 'Rights of Nature (RoN) as a response to failing protection', stating 

The degradation of natural ecosystems continues, as confirmed by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), despite the adoption of a wide degree of national, regional, and international nature conservation instruments. Against this backdrop of continuing ecological decay, new forms of protection have been proposed by international lawyers, NGOs, and academics, which challenge existing environmental laws. One such regulatory approach is the assignment of legal personhood to natural sites, which directly grants standing in court and, perhaps more pressingly, confers substantive and procedural rights to said natural sites. In a general sense, the rights of nature movement mirrors how the law confers rights (but not obligations) to individuals, companies, or institutions. This controversial yet much-cited idea was first put forward by Christopher Stone in 1972. Fundamentally, it represents a shift from a view of nature as an object before the law to a view of nature as a subject of the law. This movement has gained prominence, given the pressures which natural ecosystems face. A practical case of ecological decline can be found in the Dutch, German and Danish Wadden Sea, where climate change, pollution, and large-scale mining activities are causing irreversible damage to the natural site, with modern-day legal instruments seemingly unable to halt this decline. For example, in 2022, a permit for mining was issued in the Netherlands, approving the further exploitation of the Wadden Sea, despite a backlash from a plethora of NGOs and local residents. 

In light of these pressures, the case for assigning legal personhood to the Wadden Sea was made by Lambooy and others in 2019. In their article, the authors argued in favour of adopting legal personhood for the Dutch part of the Wadden Sea. In this context, they put forward the idea of a ‘Natureship’. Linguistically speaking, a Natureship places the focus on the underlying entity, namely, the natural site. The suffix -ship implies a position held and/or created, a grammatical feature common in both Dutch and English. Their article defines a Natureship as a ‘public law person’ that combines the power of a public institution, such as environmental management, with private powers, such as the ability to own assets or claim reparations. The statutory purpose of the Natureship would be to ‘protect and support the ecological coherence’ of a specified geographical area, with significant independence from external governmental interference. Lambooy and others argue that, under Dutch law, legal personhood can be granted to natural sites in this form. Here lies the relevance of this contribution: the concept of a Natureship implements the Rights of Nature movement in practical terms. The idea has received traction in the Netherlands, where the ‘rights for the Wadden Sea’ has been transformed from a foreign concept into an issue seriously contemplated within the national Parliament. 

However, while this paper by Lambooy and others is a highly valuable contribution to legal scholarship, it does not take into account the transboundary nature of most ecosystems. The Wadden Sea, for example, spans three different EU Member States, namely, the Netherlands, Germany, and Denmark. Biodiversity does not inherently subscribe to the idea of human-made borders; thus, a Natureship grounded in EU law is a proposition that needs further exploration. An EU approach may tackle transboundary issues more effectively than a purely national one since the latter cannot reach the desired spatial scope nor guarantee uniform protection throughout all the concerned Member States. This paper will explore the merits of an EU approach to Natureships by engaging in a thought experiment, conceptualising how such an instrument may take shape at the EU level. It refers to the German, Dutch and Danish Wadden Sea as an example to reflect on the potential merits of this approach, when needed. 

Overall, this will inform the question of whether an EU Natureship law may act as a ‘remedy’ for anthropocentrism within EU environmental law. As an ethos underpinning the law, anthropocentrism takes a human-centred approach to legislation. This is the antithesis of an EU Natureship. In contrast, an ecocentric ethos subscribes intrinsic value to nature as a collective. An ecocentric law, as such, provides a holistic perspective towards environmental protection, including non-human interests within the scope of consideration. An EU Natureship, in essence, is a proposition aimed to achieve such holistic protection. 

This paper hosts several methodologies to unpack the research statement as outlined above. The primary method deployed consists of doctrinal research, initially taking an ‘internal’ perspective of the legal system. However, from the normative premise that the law may be failing the environment, a critical analysis will be undertaken, exploring the possible routes ahead in order to close the perceived gap between law and ecology. This article will highlight anthropocentrism within modern-day EU environmental law in Section 2.1 and 2.2, thus analysing its failures. In the following Sections 3.1, 3.2 3.3 and 3.4, the concept of an EU Natureship is set out as a thought experiment, taking the Wadden Sea wetland as an example. In doing so, concrete provisions are suggested in the context of a (fictive) EU Natureship Regulation and/or Framework Directive. The paper ends with a brief conclusion, in Section 4, on the merits of such an EU-wide approach. It should be noted that this paper does not review international obligations derived from the Ramsar Convention, the UNESCO World Heritage Convention, or the Convention on Biological Diversity. Whilst international instruments are essential components of the legal framework that governs wetland protection, given the EU-specific proposition being put forward, the scope of this paper will primarily be limited to the supranational.