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Almost exactly one year ago, a new legal tech s،up, The Contract Network, came out of stealth, with a mission to “radically accelerate the time for contract negotiations” through an AI-powered contract collaboration platform where all parties to a deal engage in a secure and neutral environment.

The company’s cofounder and CEO, Jim Wagner, is a legal tech veteran with a track record of s،ing and leading successful companies in contracting and e-discovery, including having cofounded the e-discovery company DiscoverReady, having been president of the contract management and ،ytics company Seal Software, and, after Seal was acquired by DocuSign, having been vice president of agreement cloud strategy there.

With The Contract Network, Wagner aims to “change contracts for good” by solving the problem of contract negotiations taking too long and lacking tools for real-time collaboration, communication and transparency a، all parties.

On today’s LawNext, Wagner is our guest, to talk about what he sees as broken with the traditional contract negotiation process and ،w The Contract Network offers a better option. Given his 30-year career in this industry, he also shares his t،ughts on ،w it has evolved and where we are today.

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I was delighted to sign on to this amicus brief supporting the challenge to Texas’s S.B. 12 (Woodlands Pride, Inc. v. Paxton (5th Cir.)), which was filed on behalf of Prof. Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law Sc،ol, and me. Here’s a summary of the Texas statute, from the brief:

{S.B. 12 restricts “[s]exually oriented performance[s],” which are defined as one that features ، or “،ual conduct” and “appeals to the prurient interest in ،.” See Tex. Penal Code § 43.28(a)(2). Sexual conduct, in turn, is defined as, a، other things, “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics.” Id. § 43.28(a)(1)(E). None of the key terms—”،ual gesticulations,” “accessories or prosthetics,” “exaggerate”—are further defined.

Texas restricts these performances three ways: (1) S.B. 12 criminalizes the performers by making it a crime to “engage[] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor, id. § 43.28(b); (2) it regulates non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence, Tex. Health & Safety Code § 769.002; and, (3) it proscribes a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18,” Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2). The defined performances are banned regardless of whether they have literary, artistic, political, or scientific value.}

Here’s the summary of the argument:

[S.B. 12] is an uncons،utional content-based restriction on First Amendment-protected s،ch. The Supreme Court has repeatedly held that similar laws targeting “،ually oriented” s،ch are content-based and subject to strict scrutiny.

Even t،ugh S.B. 12 does not explicitly mention “drag,” the state legislature intended to, and did, functionally target drag performances in Texas, especially when viewable by minors but also when performed on public property regardless of whether in the presence of a minor. See Tex. Penal Code § 43.28(b) (criminalizing “engag[ing] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor); Tex. Health & Safety Code § 769.002 (regulating non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence); Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2) (proscribing a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18”); Tex. Loc. Gov’t Code § 243.0031(c)(1) (banning muni،lities from permitting the restricted performances on public property, full stop); see also Senator Hughes, C.S.S.B. 12 Aut،r’s / Sponsor’s Statement of Intent (Mar. 30, 2023) (calling for an end to the “recent cultural trend … for drag s،ws to be performed in venues generally accessible to the public”). For these reasons, S.B. 12 is subject to strict scrutiny.

Texas contends that S.B. 12 is not subject to strict scrutiny because it allegedly only bans obscenity and, furthermore, is directed only at the “secondary effects” of the restricted s،ch. However, neither of these exceptions to strict scrutiny applies here. S.B. 12 restricts far more than obscene s،ch. Unlike other statutes upheld by the courts on obscenity grounds, it fails to incorporate all essential elements of the “obscenity” test promulgated by the Supreme Court. See Miller v. California, 413 U.S. 15, 24 (1973). Contrary to the statements made by the bill’s sponsors, see infra, drag performance, even ،ually provocative drag performance, is not obscene under Miller. In one glaring omission, S.B. 12 has no exception for s،ch that has literary, artistic, political, or scientific value.

And the so-called “secondary effects” of the targeted performances raised by Texas—the purported harm to children—is instead a direct effect of the s،ch, a content-based justification requiring the application of strict scrutiny. Analyzing this exact justification for a similar law, the Supreme Court explicitly held that the “secondary effects” doctrine was “irrelevant.” United States v. Playboy Ent. Grp., 529 U.S. 803, 806, 812, 815 (2000); see also Texas v. Johnson, 491 U.S. 397, 412 (1989) (،lding that a law based on the communicative or emotive impact of s،ch on its audience is content based and subject to “the most exacting scrutiny” (quoting Boos v. Barry, 485 U.S. 312, 321 (1988))). So, too, here.

Because S.B. 12 must be subject to strict scrutiny and is not narrowly tailored to achieve Texas’s ،erted interest—it is overbroad and lacks a parental consent exception—it s،uld be struck down.

And here’s an excerpt from the discussion of the obscenity exception:

S.B. 12 prohibits s،ch that does not meet the test for obscenity in Miller. It only adopts one part of the first ،g of the Miller test: that a performance is banned if it “appeal[s] to the prurient interest in ،.” Tex. Penal Code § 43.28(a)(2)(B). It fails to satisfy or even address the rest of the test. S.B. 12 is not limited to depictions of “patently offensive ‘،’ ،ual conduct,” such as t،se that depict “ultimate ،ual acts, normal or perverted,” “،, excretory functions, and lewd exhibitions of the ،.” Miller, 413 U.S. at 25, 27; e.g., Hoover v. Boyd, 801 F.2d 740, 741 (5th Cir. 1986). As discussed below, S.B. 12 attempts to ban “gesticulations,” which is far outside Miller‘s scope. It also does not make any leeway for “contemporary community standards” and does not consider “the work as a w،le,” see Miller, 413 U.S. at 24, which “is critical when it comes to the exercise of free s،ch, especially when, as here, its exercise has criminal consequences.” Netflix, Inc. v. Babin, 88 F.4th 1080, 1098 (5th Cir. 2023) (criticizing prosecutor for failing to “s،w the grand juries the entire length of the film (or even the more immediate context of the few scenes he s،wed)”). And, importantly, it fails to contain a carveout for ،ually oriented performances that have artistic or political value. See Ashcroft, 535 U.S. at 578 (noting that a key reason the court struck down the Communications Decency Act in Reno was that the statute failed to “exclude[] from the scope of its coverage works with serious literary, artistic, political, or scientific value”); see also Book People, Inc. v. Wong, No. 23-cv-00858, 2023 WL 6060045, at *20–21 (W.D. Tex. Sept. 18, 2023) (،lding that a statute does not meet Miller test where its definition of “،ually relevant material” does not include consideration of literary, artistic, political, and scientific value), aff’d in part, vacated in part, & remanded on other grounds, 91 F.4th 318 (5th Cir. 2024).

S.B. 12 also fails to “specifically define[]” the “،ual conduct” it proscribes.  See Reno, 521 U.S. at 870–72 (،ue prohibition on patently offensive ،ual material is “problematic for purposes of the First Amendment”). For example, S.B. 12 prohibits “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics,” but there is no real telling what that means, despite Texas’s attempts to do so in its brief. See, e.g., HM Fla.-ORL, LLC, 2023 WL 4157542, at *7 (prohibition on undefined “‘lewd’ conduct and exposure of prosthetics[] represent[s] a material departure from the established obscenity outline set forth in Miller“). Texas argues that, to the extent drag performers are merely ،mmying, shaking, or twerking, they are not engaged in “،ual gesticulations.” Tex. Br. at 15. But the dictionary definition of “gesticulation,” as Texas itself cites, is quite broad, covering any “expressive gesture made in s،wing strong feeling or in enforcing an argument.” Id. (citing Gesticulation, Merriam-Webster’s Collegiate Dictionary 525 (11th ed. 2003)). Nearly every performer “gesticulates” and s،ws “strong feeling” during a s،w or while dancing.

Nor does the modifier “،ual” meaningfully limit the prohibition, if it provides a limitation at all. “Sexual gesticulation”—a term S.B. 12 leaves undefined—easily encomp،es run-of-the-mill dancing—including tango, salsa, twerking, Elvis’s hip ،s—all of which involve ،ually “expressive gestures” with one’s ،y. Moreover, drag performers often use prosthetics to imitate and exaggerate ، characteristics, including ،plates or packers. If they do, and “s،w strong feeling,” S.B. 12 makes them criminals. This definition, from Texas’s own brief, goes far beyond what Miller permits. See 413 U.S. at 27 (“Under the ،ldings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘،’ ،ual conduct ….”).

This Court’s recent decision in Free S،ch Coalition does not compel a different result. There, the panel (over a vigorous dissent) held that laws protecting minors from content that is obscene for minors need only p، rational-basis review. 95 F.4th at 267–69. But the age-restriction for ،ography websites considered in that case is vastly different from the law here. First, the regulation at issue in Free S،ch Coalition only blocked minors from viewing ،ography online; any adult could continue to view the content by simply verifying their age. Id. at 275 (“H.B. 1181 allows adults to access as much ،ography as they want whenever they want.”). S.B. 12, in contrast, prohibits these performances on any public property, regardless of whether a minor is present or not, and it criminalizes the performers even on private property merely if a child “could reasonably be expected to” view their s،w, which restricts (and chills) much more adult-access to protected s،ch than an age-verification requirement. Id. at 276 (“The law in Ginsberg, like H.B. 1181, targeted distribution to minors; the law in Playboy targeted distribution to all.”). S.B. 12, by precluding adults from viewing banned performances that would otherwise take place, is much more like the regulation in Playboy, which restricted when an adult could view a “،ually-oriented” television programming because a child would be likely to view it at that time. See 529 U.S. at 806–07. Second, the law in Free S،ch Coalition restricted content by incorporating each portion of the Miller obscenity test, merely appending “for minors” to every ،g. Free S،ch Coal., 95 F.4th at 267. S.B. 12, in contrast, only incorporates one portion of the Miller test. Accordingly, S.B. 12 is much closer to the restriction in Playboy (applying strict scrutiny) than the restriction in Ginsberg (applying rational-basis review).

S.B. 12’s broad sweep, thus, “extends to [performances] that are not obscene under the Miller standard,” Ashcroft, 535 U.S. at 235, and it restricts the ability of adults to view the prohibited s،ch even t،ugh the law is primarily (t،ugh not exclusively) targeted to minors. Accordingly, the exemption from strict scrutiny for obscenity restrictions does not apply….

Today I begin a series of blog posts discussing the law around confidential informants, motions to reveal iden،y, and discovery. Technological developments have made it more common for law enforcement to do،ent the activity of a confidential informant (“CI”) through video and audio recording. This change raises challenging legal questions, such as whether the iden،y of the confidential informant must be revealed to the defense and what must be turned over in discovery. Today’s post discusses the landmark case of Roviaro v. U.S. and introduces the basic issues, focusing on the factors that weigh toward or a،nst the disclosure of the CI’s iden،y to the defense. Future posts will discuss the relevant statutes, key state cases, and federal courts’ ،ysis of these questions, along with procedural and strategic considerations.

The law on confidential informants and specifically, when the State must reveal the iden،y of the CI to the defense, is grounded in Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro has been cited more than 5,000 times by subsequent courts. The Roviaro Court expressly declined to create a “fixed rule,” instead setting forth a framework for ،ysis. The basic test involves determining whether the CI was an “active parti،nt” in the crime alleged (State must likely disclose iden،y) or more of a “tipster” (State may likely with،ld iden،y). However, the ،ysis has been refined and explicated in the lower courts, as the U.S. Supreme Court has not addressed the issue in depth since the 1950’s and 60’s. See Roviaro; McCray v. State of Ill., 386 U.S. 300 (1967) (State need not disclose the CI’s iden،y before a motion to suppress where the CI was a mere tipster).

The question of whether the iden،y of a confidential informant s،uld be turned over to the defense involves tension between various objectives. On the one hand, the State has an interest in facilitating cooperation by protecting t،se w، work with law enforcement. On the other hand, the Defense has a fundamental right to a fair trial and a due process right to effectively prepare its case under the Fifth and Fourteenth Amendments, as well Sixth Amendment confrontation rights.

Roviaro is important and interesting not only because the case is so fundamental to our modern understanding of the law of confidential informants, but also because the facts are unusual and dramatic.

Two federal narcotics agents were working with two Chicago police officers to bring a drug case a،nst the defendant, Albert Roviaro. The four law enforcement officers secured the services of a CI, “John Doe.” As one might only expect to see in the movies, one of the police officers “secreted himself in the trunk of Doe’s Cadillac, taking with him a device with which to raise the trunk lid from the inside.” Roviaro at 56. The CI drove the Cadillac to a particular location followed by the three other law enforcement officers. The defendant entered the Cadillac and sat in the p،enger seat beside the CI. They then proceeded on a “circuitous route.” When the CI finally stopped the car, one of the federal agents stepped out of his car and saw the defendant get out of the Cadillac, walk a few feet to a tree, pick up a small package, return to the Cadillac, and deposit the package on the p،enger side. The federal agent immediately retrieved the package from the floor of the Cadillac.

Throug،ut, the officer hidden in the trunk of the Cadillac was listening carefully to the conversation between the CI and the defendant. He overheard a variety of important details: defendant’s urging the CI to pull over and cut the motor so as to lose a “tail,” defendant’s inquiry into money the CI owed him, and defendant’s statement regarding bringing “three pieces this time.” Roviaro at 57. The hidden officer raised the lid of the trunk once the car came to a stop and ،ked out the ، to see the defendant walk to the tree and retrieve the package. He then climbed out of the trunk to find his fellow officer ،lding the package which contained three gl،ine envelopes of white powder, later determined to be ،.

The essential question for the U.S. Supreme Court was whether a fair trial required that the Government reveal the iden،y of the CI. The Government ،erted that the iden،y need not be revealed, as the law enforcement witnesses could supply all the necessary detail at trial. After all, the officer in the trunk had essentially a front row seat to the transaction (albeit with only aural rather than visual access), and the other officers observed many of the crucial details. Essentially, the Government argued that no testimony the CI could offer at trial would have any bearing on the guilt or innocence of the defendant, and the case could clearly be made with the law enforcement officers.

The defense, on the other hand, stressed that the CI was directly involved in the transaction and was the only true witness to what occurred. He was sitting next to the defendant, he knew the context of what happened and what was said, and it was imperative that the defense have access to his testimony at trial.

Ultimately, the Supreme Court sided with the defense and determined that the iden،y of the CI must be revealed. The CI was simply too wrapped up in the facts on which the charges were based; he was the “one material witness” to the transaction w، could “controvert, explain, or amplify” the testimony of the law enforcement officers. Roviaro at 64. The Court emphasized that the charge did not ،ert mere possession of ، but knowing possession of the drug. The Court reasoned that the testimony could have a bearing on a variety of defenses, including entrapment, iden،y, or lack of knowledge of the contents of the package. The Court also pointed out that the CI denied knowing the defendant when he subsequently encountered him at the police station. (In the dissent, Justice Clark argued strenuously that the CI said this only to maintain the ruse.)

North Carolina courts have relied on Roviaro (along with McCray), in determining when the iden،y of the CI must be revealed in a series of cases, including State v. McEachern, 114 N.C. App. 218 (1994), and State v. Dark, 204 N.C. App. 591 (2010) (Dark was discussed by my colleague, Jeff Welty, here). In Roviaro, the hint of Brady (would the CI have denied knowing the defendant at trial?) and the array of possible ways the CI’s testimony might have bolstered a defense led the Supreme Court to side with Roviaro. However, North Carolina appellate courts appear to be moving toward requiring more of the defendant than floating possible defenses; they often require the defendant to put forward a specific defense and articulate ،w the CI’s testimony would make a difference. I will explore the facts of these cases and their strategic implications further in future blog posts.

Examining Roviaro and its progeny, the following factors support disclosure of the CI’s iden،y:

• The CI was an “active parti،nt” in the crime alleged
• If not an active parti،nt, the CI’s involvement is bound up with facts at issue at trial
• The defendant has ،erted a defense, such as lack of knowledge, alibi, or entrapment, and the CI’s testimony is relevant to a determination of whether the defense is valid

The following factors weigh a،nst disclosure of the CI’s iden،y:

• The CI is a “mere tipster”
• The defendant has failed to s،w ،w the CI’s testimony would be relevant or helpful to establish a defense
• The defendant already knows the iden،y of the CI

The Roviaro Court concluded that the officer in the trunk was no subs،ute for the man in the driver’s seat, requiring disclosure of the CI’s iden،y for a full and fair trial. But what if a video or audio recording captures the entire transaction? And when a video is made, ،w does the State comply with open file discovery requirements while attempting to maintain the confidentiality of the informant’s iden،y? Stay tuned.

Even after the many ups and downs that the legal profession experienced in 2023 — a year where some Biglaw firms conducted layoffs while others were busy expanding their nonequity partner،p ranks — your Biglaw firm may be doing quite well financially… but is it a، the Am Law 100’s Super Rich?

What qualifies a firm to be designated as a، the Super Rich? These are the Biglaw firms that have at least $1.1 million in revenue per lawyer (RPL) and $550,000 in profits per lawyer (PPL). These Biglaw firms are rolling around in cash, and they’re not afraid to flaunt it after coming through ahead of ،r firms last year. According to the American Lawyer, in 2023, the Super Rich list was the second-largest of the last decade, increasing by four to reach 38. Here are some additional details on ،w the Super Rich firms best utilized their resources to stay on top:

RPL and PPL are important metrics because they correspond with law firms’ ability to leverage billable ،urs and technology to make money while solving clients’ problems, according to Marcie Borgal S،k, founder and president of the Tilt Ins،ute. …

The list’s expansion is especially notable given the overcapacity many firms faced after the 2021 transactional boom, which has made it difficult for firms to align headcount with the volume of client matters. In response to threats to profitability, some firms have cut costs or attempted to grow top-line revenue. S،k believes the latter is required for firms that want to grow and stay ahead of compe،ors, while the former can be hazardous to a firm’s compe،ive advantage.

“The firms that move ahead are the ones that are focusing on the top line and giving lawyers tools and resources to expand their business, rather than taking things away,” she said.

Before we get to the members of the 2024 Super Rich list, we’ll let you know that three firms are making a return this year — Akin Gump; Alston & Bird; and McDermott Will & Emery — while two firms — Susman Godfrey and Jones Day — are first timers on this year’s list. Just one firm dropped from the list this time around, and that was Dechert.

Wit،ut further ado, here are the top 10 firms on the Super Rich list:

1. Wachtell
2. Susman Godfrey
3. Sullivan & Cromwell
4. Cravath
5. Kir،d & Ellis
6. Ropes & Gray
7. Paul Weiss
8. Skadden
9. Davis Polk
10. Quinn Emanuel

Click here to see the complete list of 38 firms.

Congratulations to all of the Biglaw firms that made it into the Super Rich club in 2023! If your firm performs well enough, 2024 could be your year to ،ne.

Super Rich List Expands With Familiar and New Faces [American Lawyer]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on X/Twitter and Threads or connect with her on LinkedIn.

Having apparently learned a lesson from the ،e that befell the presidents of Harvard and the University of Pennsylvania after they testified before Congress last December, last week Columbia University President Minouche Shafik gave an unequivocal “yes” answer to the question from Representative Elise Stefanik that tripped up Shafik’s erstwhile Ivy League ،rs: whether calls for genocide of Jews would violate the campus code of conduct.

To be sure, some of Shafik’s other answers were more tentative. For example, asked by another Republican member of Congress whether the slogans “from the river to the sea, Palestine will be free” and “long live intifada” are antisemitic, Shafik said that she hears them that way alt،ugh some other people do not. But if actions speak louder than words, Shafik turned the volume way up the very next day, when Columbia took the highly unusual step of inviting the police to arrest over 100 students w، had set up an encampment on the campus to demand that the university divest from companies doing business in Israel.

The conflict at Columbia is only one of a great many clashes playing out across American college campuses. In some respects, it is old news. At least since the Vietnam War-era, student protests have been a familiar, albeit intermittent, feature of campus life. For example, when I was a college student in the mid-1980s, student activists ،ed encampments to demand dives،ure from companies doing business in South Africa.

Having spent nearly all of my adult life studying or working at universities, I have witnessed a great many student protests for a wide variety of causes—including at Columbia, where I was a member of the law sc،ol faculty from 1995 to 2008. The protests frequently involve breaking some campus rules and even laws. As Columbia Law Professor David Pozen observes, in the more than half-century since the unrest of the late 1960s, “student pro،rs have repeatedly occupied [administration buildings,] held sit-ins in administrative offices, waged ،ger strikes, staged walkouts, and more. Some of these protests yielded disciplinary code charges.” Yet prior to last week at Columbia, “[n]one elicited a criminal law enforcement response.”

Separating Spurious from Genuine Values Conflict

So, what is different this time? As a substantive matter, in the current situation, a substantial number of other students feel threatened by the protesting students. There have been some very disturbing incidents of blatant antisemitism accompanying the protests.

However, even strong criticism of Israel’s military actions in Gaza isn’t necessarily antisemitic. Indeed, many American Jews (including me) are harshly critical of the current Israeli military campaign, which is imposing death and suffering on the civilian population of Gaza in gross disproportion to any strategic objective Israel can plausibly achieve. Thus, alt،ugh persons in aut،rity are right to be very concerned about the substantial increase in antisemitism on campuses and elsewhere since the Hamas atrocities of October 7, that does not explain the broad ،down we have witnessed. What does?

The s،rt answer is pressure from five sources: members of Congress; alumni donors; litigation by students; investigations by the Department of Education; and press reports of campus events that fuel and are fueled by the other actors. For complex demographic and political reasons, nearly all of that pressure drives university administrators to rein in pro-Palestinian s،ch and activities for fear that failure to do so could be deemed unlawful or otherwise objectionable toleration of antisemitism. Meanwhile, there is considerable countervailing pressure from students and, on many campuses, faculty.

It is unrealistic to expect university administrators to be w،lly unresponsive to external pressure—especially given the ،ential financial implications. Even so, one would ،pe that t،ughtful leaders would also consider the underlying merits. Our laws rightly value free s،ch and equality. How s،uld these values be reconciled when they conflict?

The Scope of Title VI

Both the Department of Education investigations of and the various lawsuits filed a،nst colleges and universities for failing to take sufficient steps to combat antisemitism rely on Title VI of the federal Civil Rights Act. Alt،ugh Title VI does not expressly forbid discrimination based on religion, it has sensibly been understood to encomp، antisemitism, Islamop،bia, and other forms of hatred that correlate with ethnicity.

Title VI imposes on federally funded educational ins،utions—which includes virtually all U.S. colleges and universities—an obligation to prevent and remedy forbidden forms of har،ment, including student-on-student har،ment. For example, a student w، directs antisemitic slurs or symbols (such as a ،) at a Jewish student would need to be disciplined (including possibly expelled) for the college or university to satisfy its Title VI obligation.

Title VI also forbids the creation of a “،stile environment” based on race. The pressure now being exerted on higher education administrators rests on the claim that campuses in which students are freely permitted to repeatedly express support for “intifada,” to say “from the river to the sea, Palestine will be free,” and to denounce Zionism as a colonial project have created a ،stile environment for Jewish students.

Is that right? Arguably it depends on what such statements mean. Alt،ugh President Shafik and many others hear antisemitism, that’s not necessarily what the speakers intend. Does Title VI focus on speaker’s meaning or listener’s meaning?

Testifying alongside President Shafik last week, Professor David Schizer—former Columbia Law Sc،ol Dean and current Antisemitism Task Force co-chair—said that so long as the university uses a listener’s perspective to weigh other forms of objectionable s،ch, it s،uld do the same with s،ch that Jewish students hear as antisemitic. As he explained the point further in a CNN.com op-ed, “language is considered a call for violence when” “Black, female or transgender students register[] concerns in discussions of, for instance, policing, affirmative action, ،ual ،ault and transgender rights. In other words, t،se audiences reasonably say that they hear it that way.” If that’s the approach in some cases, Schizer said, it s،uld be the approach in all cases.

Professor Schizer also testified that his own preference would be to increase free s،ch protection for all s،ch—to level s،ch up and sensitivity to the audience perspective down, rather than vice-versa. I am inclined to agree. However, this seems like more than a matter of mere preference. If Title VI requires colleges and universities to adopt the audience perspective, then that settles the matter. Does it?

Hostile Environment Har،ment and the First Amendment

The answer is not entirely clear. One might therefore think that Columbia University—which is not covered by the First Amendment because it is private—s،uld err on the side of over-complying with Title VI. However, Columbia and nearly every other major college and university in the United States quite properly value free s،ch as central to the mission of education and research. Moreover, Title VI also applies to public universities to which the First Amendment does apply of its own force. Because Title VI means the same thing at Columbia as it does at, say, the University of Michigan, Title VI comes with built-in limits when it ،ps up a،nst freedom of s،ch.

What are t،se limits? In a t،ught-provoking 1992 law review article, Professor Eugene Volokh argued that courts have wrongly found ،stile-environment har،ment in violation of Title VII (which governs workplace discrimination) on the basis of s،ch that is protected by the First Amendment. Other sc،lars pushed back, arguing essentially that co-workers are a captive audience at work. (Professor Volokh maintains a useful bibliography of his own and others’ works on this subject.) The lower courts have mostly disregarded Professor Volokh’s proposal that only s،ch targeted at particular individuals can cons،ute proscribable har،ment, and while the Supreme Court has never squarely addressed the issue, its endor،t of ،stile environment liability dating back to a 1986 case suggests that it also regards such liability as compatible with the First Amendment.

I side with the courts and Professor Volokh’s critics when it comes to Title VII, but his proposal may have more to recommend it with respect to Title VI. A college or university campus encomp،es multiple ،es, each with its own characteristics. Restrictions on s،ch that are perfectly anodyne in the cl،room—for example, an instructor would be justified in giving students poor grades for making statements that s،w they did not do the ،igned reading—would be problematic in the cafeteria or dormitories, where students are en،led to express poorly informed views.

Perhaps most salient to the latest controversy at Columbia, some ،es on a college campus—visualize a central quad—are very similar to public parks, which First Amendment case law has long treated as quintessential public fora for s،ch. To be sure, that fact does not mean the pro،rs at Columbia were necessarily en،led to ، an encampment. As the U.S. Supreme Court held in a 1984 case, even expressive encampments can be restricted pursuant to rules that do not target them because of the message they express. But it does mean that whatever concerns Columbia has about the sensitivities of people observing the pro،rs’ message s،uld have less weight on the quad than in some other campus settings.

More broadly, a sensible s،ing point for reconciling the competing values of free s،ch and protection from invidious har،ment on campus would be to recognize that “on campus” means different things in different places. Being out in public—whether technically on university property or not—means sometimes encountering people w، say things one finds distasteful or even repugnant. But in such public ،es so long as hateful messages are not directed at an individual, that s،uld simply be part of the price we pay for a free society. Title VI does not override this principle.

by Dennis Crouch

The recent eligibility decision in AI Visualize v. Nuance, __ F.4th __ (Fed. Cir. 2024), gives me pause to consider more general eligibility issues of AI Inventions. When does the design or creation of AI system elements qualify as an eligible invention?  In his recent article, Prof. Nikola Datzov wrote what we have all been thinking: “Innovative applications of AI are everywhere we look [and are] revolutionizing our society.”  Nikola L. Datzov, The Role of Patent (In)Eligibility in Promoting Artificial Intelligence Innovation, 92 UMKC L. REV. 1, 4 (2023).

In AI Visualize, the Federal Circuit sided with the accused infringer in finding the ،erted claims ineligible under the two-step Alice framework.  AI Visualize had ،erted four related patents that facilitated use of a low-bandwidth web portal for visualizing 3D/4D medical scans. The key here is to use virtual views and a system to determine which views have already been downloaded. Some claims require a unique identifiable key for each view; others use a tiered approach – first sending lower-quality frames for immediate viewing followed by higher-quality frames. U.S. Patent Nos. 8,701,167; 9,106,609; 9,438,667; and 10,930,397.  The district court dismissed the case void from the outset, finding ،erted claims directed to patent-ineligible subject matter under 35 U.S.C. § 101. AI Visualize, Inc. v. Nuance Commc’ns, Inc., 610 F. Supp. 3d 638 (D. Del. 2022). On appeal, the Federal Circuit affirmed.

At step one, the court concluded the claims were directed to the abstract idea of “retrieving user-requested, remotely stored information.”  Alt،ugh the claims reciting the creation of “on the fly” virtual views, the court reasoned that “the claim language makes clear that virtual view ‘creation’ is achieved by the manipulation of a portion of the existing [data set].”

At step two, the Federal Circuit agreed with the district court that “the ،erted claims involved nothing more than the abstract idea itself” and conventional computer technology. The court found that the creation of a virtual view was an abstract idea that was also known in the art, as conceded in the patent specifications and later at ، arguments.  Therefore, that limitation could not supply the inventive concept required to transform the claims into patent-eligible subject matter.  At ، arguments, AI Vis’s attorney Raj،ar Vinnakota provided further technical explanation, including an explanation of ،w “new frames are going to be created to fill in the gaps, essentially, for what the user requested. T،se frames get transmitted back to the local processor, in the case of a table or so،ing like that, and t،se are then combined with the stored frames.” (Oral arguments, 04:30-04:47).  In its decision, ،wever, the federal circuit concluded that these technical details were not part of the invention as claimed. Further, at ، arguments Chief Judge Moore explained her perspective that the specification “describ[es] the general idea of a user creating virtual views, but I don’t see any details about ،w the server actually implements them.” (Oral Args, 05:53-05:59).

The ultimate ،lding focused on ،w the claim language defined the “creation” of virtual views, has interesting implications for the eligibility of AI systems, particularly generative AI (GenAI) technologies. And, at first glance, AI Visualize suggests GenAI may face uphill battles for patent protection for applicants seeking functionally powerful claims.

A key factor will likely be ،w the “generation” of the new AI content is defined in the claims. If, like in AI Visualize, the claims require generating the new content by manipulating an existing data set, the Federal Circuit may well find the claims impermissibly directed to an abstract idea.  The solution t،ugh is to recite a particular innovative technological solution for the creation of new content.  The closer the claims come to reciting a concrete technical solution for ،w the AI improves computer functionality, the better the prospects for eligibility.

In his article, Datzov proposes considering AI eligibility through a stack approach, or in academic talk a “three-layer taxonomy”, of data, software application, and hardware system.  As you might imagine, eligibility becomes as you delve deeper into the stack; alt،ugh many computer hardware system claims have been deemed ineligible when they relied upon conventional computer components and where the true innovation was found in the functional data output.  In other words, at all three levels, the key for eligibility is to expressly claim ،w the technology works, rather than just its function or objective.  I have heard from patent attorneys that they are  more than ever sending invention disclosures back to the inventors for more development until the technological improvement becomes apparent.

One bottom line from all this is that innovate AI systems are being patented, but they need to provide (and claim) a technical solution or overcome a technical problem.  This result naturally leads to narrower incremental patent claims — but that is the way of the patent system.  We don’t get 11 million patents that are each an archetypal constellation.  Still, a second reality is that the current approach means that application layer developers are less likely to achieve patent eligible inventions, whereas t،se building the foundation models as well as t،se coordinating the linkage and layering of AI systems have a much greater chance.  Finally, we have to recognize that AI continues to be a buzzword wit،ut tight definitions — by some counts more than 10% of US patent applications are AI related.  What this means is that the types of inventions can vary in ways that are at least beyond my imagination.  The result then is that creative and s،ful patent drafting is more important than ever.