UnCommon Law

Federal courts run on a quiet assumption: when the government speaks, it's telling the truth. Over the past two episodes of UnCommon Law, we've watched longstanding norms between the White House and the Justice Department erode. Now we turn to the judges. Over the next two episodes, we'll look at how the courts are responding to Justice Department attempts to carry out the president’s agenda — the questions judges ask, the deference they typically give, and what happens when some judges begin to question whether they can trust what government lawyers are telling them. Through a remarkable case involving hundreds of Guatemalan children, we examine what happens when that trust begins to break down — and what judges can do when government lawyers no longer get the benefit of the doubt. Guests: Efrén Olivares, vice president of litigation and strategy, National Immigration Law Center Ryan Goodman, professor, New York University School of Law Suzanne Monyak, reporter, Bloomberg Law *** CREDITS Host/Producer/Sound Design: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special Thanks: Cesca Antonelli, Tom Taylor, Seth Stern

The US copyright system encourages human creativity. So does it make sense to grant a copyright to work created by AI with the click of a button? And, if AI generated artwork is given copyright protection, how would that impact the livelihoods of creative professionals? In our last episode, we looked at Jason Allen’s AI-generated artwork, "Théatre D’opéra Spatial," and the arguments why it should have some copyright protection. This time, we examine the other side – the most powerful arguments for why AI-generated work should never be eligible for copyright. Guests: Jason M. Allen, founder of Art Incarnate Sy Damle, partner in the copyright litigation group at Latham & Watkins Karla Ortiz, artist Kelly McKernan, artist Delanie West, advocacy liaison for the Graphic Artists Guild Genel Jumalon, artist *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte

Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators? This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. On episode one, we learned about the lawsuits filed against AI companies that trained their large language models on copyrighted work without permission. Now we'll learn about the legal defense that could give the AI companies a pass to continue scraping up whatever content they want, copyright-protected or not. Guests: Matthew Butterick, founder at Butterick Law, and co-counsel with the Joseph Saveri Law Firm on class-action lawsuits against OpenAI and others Isaiah Poritz, technology reporter for Bloomberg Law Matthew Sag, professor of law and artificial intelligence, machine learning and data science at Emory University School of Law Mark Lemley, professor of law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology, who is also representing Meta and Stability AI in the copyright cases against them James Grimmelmann, professor of digital and information law at Cornell Tech and Cornell Law School *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte

When Scott Griffin visited the Haunted Trail, he expected to be scared. But he did not expect what happened after he thought the scare was over. This special Halloween episode of UnCommon Law tells the true story of a man terrorized by a haunted house attraction. Griffin bought a ticket to a haunted house — but ended up getting more than he bargained for: two broken wrists. He sued for negligence and assault. Can someone who paid to be frightened sue when things go too far? Guests: P. Christopher Ardalan, attorney at Ardalan & Associates, PLC Larry Levine, law professor at the University of the Pacific McGeorge School of Law *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte

The Supreme Court has effectively ended the use of race as a factor in college admissions. In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process. Today, on this special edition of UnCommon Law, we’ll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We’ll learn why some supporters of affirmative action still have a glimmer of hope. Featuring: Ted Shaw — Professor at the University of North Carolina, and past president of the NAACP’s Legal Defense Fund Michelle Adams — Professor at the University of Michigan Law School Lee Bollinger — Outgoing president of Columbia University, and former president of the University of Michigan Edward Blum, president of Students for Fair Admissions

California is one of just three states where noncompete agreements are almost completely banned. California is also the home of Silicon Valley, the global hub of technological innovation. Is that just a coincidence? Or would Silicon Valley be as successful even if noncompete agreements were allowed? This week on UnCommon Law, part three of our ongoing series on the Federal Trade Commission's proposal to ban noncompete agreements nationwide. Is California’s ban on noncompete agreements really a key component to Silicon Valley’s success? Guests: Evan Starr, professor at University of Maryland Margaret O'Mara, professor at the University of Washington Ronald Gilson, professor emeritus at Columbia Law School and Stanford Law School David Schultz, host of Bloomberg Law's On the Merits *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte

This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals of the last half century: a near-total nationwide ban on noncompete clauses. We’ll examine arguments for the ban, and talk to workers who’ve had their livelihoods crushed by oppressive covenants not to compete. We’ll look at arguments in favor of keeping noncompetes, and talk with business owners who say they’re crucial for keeping trade secrets confidential and protecting business relationships. Finally, we’ll explore a more fundamental question: Does the FTC even have the legal authority to do this? Our first episode explores how this unprecedented proposal came to be. To understand just how out-of-the-ordinary this proposal is, we'll journey into the history of the agency, whose past rulemakings got them labeled the "national nanny" by the Washington Post, and led to threats of defunding. Guests: Emily Olson, hair stylist Leah Nylen, Bloomberg News reporter Sandeep Vaheesan, legal director of the Open Markets Institute Evan Starr, professor at the University of Maryland *** Host/Producer: Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte