One of the essential missions of the University of Miami School of Law is to educate and prepare future lawyers for the important real-world roles they will one day fill. For the past 10 to 12 years, the legal landscape has been changing and evolving quickly in business law, technology law, and the increasing overlap. As the University of Miami continues to look ahead to meet the needs of its students and the global community it serves, Miami Law professors—many of whom are recognized as leading scholars and practicing experts in their fields—offered their insights on issues the law is serving today, as well as the challenges for lawyers of tomorrow.
Robotics and Artificial Intelligence
Though typically heralded as next-level solutions, robotics and artificial intelligence present many questions regarding legality. “The nature of technology is always changing,” said Professor A. Michael Froomkin, the Laurie Silvers and Mitchell Rubenstein Distinguished Professor of Law. “It often takes multiple years for new ideas to work their way through the legal system.”
The shortcomings of AI are downplayed in the name of progress. “AI has proven itself very effective at pattern recognition,” Froomkin said. “However, sometimes they spot patterns that aren’t really there.” While the former has valuable applications in situations such as aiding in diagnostic imaging for cancer and other conditions, the latter is problematic if it becomes an ethnic or racial bias in facial recognition or criminal behavior profiling.
AI also often lacks quality control over the data it provides and method of obtainment. “We all know our smartphones can and do spy on us, but we rarely think about how that data is collected, stored, processed, used, and even re-used,” said Froomkin. “The general public is only just waking up to this, but it is something that will need to be addressed.”
Similar concerns surround the emerging technology of autonomous vehicles, which Professor William H. Widen has been researching. His current work, often conducted jointly with engineering professor Philip Koopman at Carnegie Mellon University, represents some critical legal discourse in autonomous vehicle safety, ethics, and regulation.
“There is an important distinction between technology like an ADAS (Advanced Driver Assistance System) such as adaptive cruise control, which helps a human operate a motor vehicle safely, and an ADS (Automated Driving System) which is a fully robotic solution within its operational design domain. The former uses human decision-making as part of its operation. The latter does not.” Like Froomkin, he believes the rush to market has meant sidestepping legalities. “It has led the automotive industry to largely self-regulate the testing and deployment of autonomous vehicles because states and the federal government have yet to do so in any meaningful way.”
The answer, both professors agree, lies in cross-disciplinary understanding that works to demystify the technology processes at work. Widen suggests lawyers in this space learn to interact with engineers, so they can explain technology to decision makers who lack the appropriate background. Froomkin said that “future lawyers will need to understand the subtleties of the technology and the industry in order to shape legislation and regulations, and to represent both tech clients and those affected by them.”
Intellectual Property
Professor Andres Sawicki, who also serves as director of the Business of Innovation, Law, and Technology Concentration (BILT), says AI and robotics will soon need to answer a variety of complex questions associated with creative and ownership of creative goods. “Who really owns the product of algorithms?” he asks. “What’s more, what if the originating entity is, itself, an AI? It stands to change the nature of intellectual property law as we know it.”
He said there have been several big changes happening in the patent space during the last decade, and technology and software have long been an odd fit for IP. Ownership of programming code could be covered by either copyright or patent—but there are problems with both. “Patents are a slow tool in a fast-moving business sector, and copyright isn’t designed to protect functional things.”
The Larry J. Hoffman, Greenberg Traurig Distinguished Professor Michele DeStefano believes the business applications of IP law are becoming increasingly important in today’s changing landscape, given the metaverse and non-fungible token marketplaces. “The real question is how do we make IP laws accessible in ways that democratize NFT marketplaces?” she said. “It shouldn’t be the case that IP protections extend only to those with expensive attorneys.”
For that reason, Sawicki urges lawyers of today and tomorrow to think critically about the role of IP in establishing business goals. “We tend to drift toward maximum assertion and maximum rights management as lawyers, but that approach may not be the best way to achieve objectives like growth and market share. Consider Tesla,” he said. “Could they have placed strict, lucrative IP protections around their technologies? Yes. Was it more helpful to their business to be the technology everyone could more easily adopt? Also, yes. The best solution will always be one in which IP supports a business as opposed to limiting it.”
Civil Rights and Technology
As the law works to protect innovators and business professionals, it cannot ignore the needs of the greater public and the unique populations within it. Professor Mary Anne Franks is the Michael R. Klein Distinguished Scholar Chair and is a nationally and internationally recognized expert on the intersection of civil rights and technology. “We need to think about the consequences for technology when it’s used—or misused,” she said. “This is not simply about what the law said we can or can’t do; it’s about whether or not we’re marginalizing certain groups in digital spaces or through the adoption of certain technologies.”
She outlines how direct harassment in online communities and the aggregating and normalizing of radical groups are becoming persistent problems, but with little incentive for the technology industry to take responsibility for the role they play within them. “It’s more profitable for companies to not be accountable,” she said, “and we’ve seen that since the 1990s, any solution that rests on voluntary industry action has failed.”
Like Widen has observed with the automobile industry and autonomous vehicles, Franks suggests the answer may require creativity. “I encourage students to think about how law, technology, and policy can all work together to address needs like oversight, testing, and fairness. Sometimes it’s not a legal answer. It’s just as important to know the limits of the law and how justice can be achieved through other means, if necessary.”
Corporate Governance
Civil rights are not simply an individual concern; they are an essential corporate interest as well. Professor Marcia Narine Weldon serves as the Transactional Skills Program’s director and the Business Compliance & Sustainability Concentration faculty coordinator. She explains that environmental, social, and governance issues are taking front-and-center focus for many corporations. “Stakeholder capitalism is definitely becoming a priority, and companies are looking to lawyers to help them see beyond the transactional side of their businesses.”
She also said corporate and legal worlds are at a crossroads regarding digital currency and its cyber threats. “There are companies stockpiling crypto currency for ransomware demands and cyber threats, because it’s not a matter of if, but when. The law has an opportunity to advise on how traditional and cryptocurrencies function, but only if banks, businesses, and attorneys come together to make long-term decisions based on legitimate knowledge.”
To that end, Weldon suggests the law may be called upon very soon to weigh in on jobs that do not yet exist. “UM's future undergraduate degree track in Innovative Technology Design could be a good place for promising lawyers to start,” she said. “It’s an interdisciplinary program that brings value to the education of our students by making sure they have the skills the future business world needs.”
DeStefano agrees. “I believe law school will need to adapt in the future so that lawyers and other legal professionals can be more innovative in how we deliver services. This is one of the ways in which Miami Law is constantly adapting so that our graduates serve clients well and relevantly.”
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