Focusing on New Technology and Its Implications
Every semester, Dean William McGeveran, William S. Pattee Professor of Law, assigns his data privacy law class a Harvard Law Review article about the threat to privacy posed by a suite of new technologies that can be used to capture and disseminate an individual’s image without their consent — a situation that McGeveran says could easily describe the introduction of cellphone cameras and online celebrity news sites.
But it doesn’t. Instead, “The Right to Privacy,” written by Samuel D. Warren II and future U.S. Supreme Court Justice Louis Brandeis in 1890, addresses the rise of instant photography, cheap newsprint, and daily newspaper gossip columns.
“The writing is a little old-fashioned, but they could be talking about current technological challenges,” says McGeveran, an expert on information law whose casebook, Privacy and Data Protection Law, is used at dozens of law schools. “So, we’ve been here before.”
More than once, in fact. McGeveran says every major technological advance, from railroads to genomics, has required some kind of legal response. Sometimes the law changes to accommodate new technologies, and sometimes it imposes regulations and restraints that shape them.
Now we find ourselves in an era when the pace of innovation has exploded. Artificial intelligence is supercharging ongoing revolutions in automation and the life sciences, whether in digital platforms or drug discovery. And all that technological disruption has ramifications for everything from bioethics and patent law to contracts and the rules of evidence.
“Any law school that wants to be relevant needs to focus on new technology and its legal implications,” McGeveran says.
Minnesota Law is as relevant as it gets. Faculty members are studying the legal and ethical implications of the latest developments in AI, bioengineering, and neuroscience. They are considering how these emerging technologies could affect legal education and the practice of law and are proposing novel legal frameworks for pharmaceutical manufacturing and social media platforms. They are also sharing their insights and expertise in the classroom to help prepare the next generation of technologically savvy legal professionals.
“We’re thinking about how to come up with rules of the road for these innovations,” says McGeveran, who sees all these efforts as an attempt to answer the same fundamental question that Warren and Brandeis grappled with more than 100 years ago: “How do we govern these technologies to make our lives better, rather than causing harm?”
The Innovation Balancing Act
After several decades studying patents and other intellectual property, Thomas Cotter, Taft Stettinius Professor of Law, knows better than most how difficult it can be for the law to keep up with the latest technological developments like gene editing and large-language models.
“It’s a never-ending battle,” Cotter says. “The law is always at a disadvantage, because technology doesn’t stop, and lawmaking is a slow and deliberate process. That means a lot of what goes on is ultimately relegated to the courts, which must decide cases in a timely fashion and can’t always wait for legislatures to catch up.”
The law must also strike a careful balance between fostering innovation — or at least not hindering it — and preventing abuse. This is especially important, Cotter says, because the intended beneficiary of the patent system is not so much the individual inventor as it is the broader public, which benefits from innovation and the economic growth that it fuels.
“The point of having a patent system is to serve the public,” says Cotter. “So, the theory behind the patent system is that we confer exclusive rights upon inventors for a limited period of time to spur innovation and to disclose the nature of the invention so that others can learn from it.”
Yet if those rights are too strong, too broad, or too long-lived, the costs borne by the public can outweigh any benefits it receives.
The territorial nature of intellectual property rights — U.S. patents, for example, are not enforceable in Canada — coupled with the global nature of commerce, further complicates matters. Smartphones, for instance, contain hundreds, if not thousands, of patented components, requiring manufacturers to acquire corresponding portfolios in all the major markets where the devices are manufactured and sold.
But when patent holders and users can’t agree on negotiated licenses, parallel litigation can erupt in many different countries at once. Since each jurisdiction handles licensing agreements differently, and patent owners can use litigation as a strategic tool to compel patent users to come to terms, the situation quickly resembles a game of three-dimensional chess.
“It’s very difficult to keep up with all the developments,” Cotter says. “There are so many of them, and things happen so rapidly.”
This doesn’t stop him from trying, though. Cotter has already published multiple books on domestic and international intellectual property and patent law, and he has a new one coming out that examines the tools various countries use to address potential patent abuses. He also recently signed a contract to edit a volume of essays dealing with IP territoriality issues.
Now AI is adding new wrinkles to the IP landscape: Can someone who uses AI to invent a device assert inventorship? Can copyrighted materials be used to train AI models without authorization?
These types of questions drew Charlotte Lucas ’27 to Minnesota Law. Lucas earned her undergraduate degree in computer science and thought her background might help her navigate the legal implications of AI. But taking Cotter’s classes in patents, copyright, and IP remedies has broadened her interests to include tech-related patent work.
Now, she says, “Litigation with patents sounds really interesting, whether or not the patents involve AI.”
When the Market isn't Enough
Like Cotter, Sapna Kumar, Henry J. Fletcher Professor of Law, is interested in examining the double-edged nature of patent systems — their power to promote innovation and the flow of technical information, and their ability to hinder it, sometimes with profound consequences.
During the COVID pandemic, for example, many countries faced drug shortages. Some responded by embracing compulsory licensing, essentially granting licenses to third parties to produce drugs without the patent holder’s consent. But compulsory licensing was only a partial solution, leading Kumar to write a 2022 paper suggesting legislative and contractual solutions to reduce future pandemic-related shortages. That line of thinking led Kumar to critique the U.S. patent system’s ability to ensure an adequate supply of critical medicines, such as vaccines and antibiotics. In a 2024 paper, she argued that while the system’s reliance on market incentives promotes innovation, it also encourages pharmaceutical companies to focus on drugs with a clear path to profitability. That works well for driving the production of drugs like GLP-1 inhibitors, which must be taken for life, but not so well for vaccines, which may require only one administration yet play a crucial role in protecting the public.
“The more public in nature a good is, the harder it is for the patent system to incentivize it,” Kumar says, adding that someone who receives a vaccine will never pay what the drug is worth in terms of protecting public health.
The solution, she contends, is for the government to play a role in overseeing the development of “infrastructure-adjacent medicines” to help prevent future collapses of the public health system. That could involve subsidizing vaccine development by private companies, developing the drugs themselves, or creating a market for them through purchasing agreements.
More recently, Kumar has examined another intersection of law and technology that could affect the courts’ ability to decide technically complex cases.
The 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo overturned the previous doctrine that required courts to defer to a federal agency’s interpretation of an ambiguous statute that it administered. Under that doctrine, skilled agency staffers could weigh in on complicated scientific and technological issues. Loper Bright shifted that interpretive responsibility to judges, who may not be as technically savvy.
“There’s still some deference for agency rulemaking, but not very much,” Kumar says. “So, what we’re increasingly seeing is generalists having more and more control over technically complex areas. And that can be problematic.”
The full ramifications of Loper Bright remain unclear, and Kumar says that Congress could intervene by allowing appellate courts to hire neutral experts. She points to the Unified Patent Court in the European Union as an example because it employs both legally qualified judges and technically qualified ones. The latter may lack formal legal training, but they are well-versed in patent law and are experts in specific technical fields.
Loper Bright illustrates just how quickly things are changing in law and technology — a situation with consequences in the classroom, where Kumar spends as much time discussing where the law is heading as she does explaining how it has evolved.
“You can’t just say, ‘the law says this,’ because what the law is now and what it will be when litigating a case in the future may not be the same thing,” she says.
Governing Science Before It Arrives
As a pioneering figure in bioethics and health law, Susan Wolf, Regents Professor; McKnight Presidential Professor of Law, Medicine & Public Policy; Faegre Drinker Professor of Law; and Professor of Medicine, has spent her career confronting the most difficult legal and ethical questions in medicine, bioengineering, and biomedical research, often building the tools and institutions required to answer them.
In 2000, Wolf worked with colleagues across the University to found the Consortium of Law and Values in Health, Environment & the Life Sciences, a University-wide center dedicated to addressing the ethical, legal, and societal issues raised by science and technology.
Over the years, the Consortium has received numerous grants from NIH, NSF, and private foundations to support multidisciplinary projects spanning genomics, neuroscience, and nanotechnology.
Wolf is currently working on the University of Minnesota’s NSF-funded Engineering Research Center for Advanced Technologies for the Preservation of Biological Systems (ATP-Bio). The center’s goal is to use bioengineering techniques such as cryopreservation, which preserves biological materials at ultra-low temperatures, to radically extend the ability to store and transport cells, organs, and even entire organisms — a process known as advanced biopreservation.
As director of the center’s Ethics & Public Policy component, Wolf is particularly focused on efforts to biopreserve organs for transplantation. Together with her co-director, Dr. Timothy Pruett, a transplant surgeon at the University of Minnesota Medical School, she is working with a team of experts to determine how to implement this emerging technology in ways that maximize societal benefits while avoiding harm.
The questions are many, varied, and far from straightforward. How, Wolf asks, can we avoid creating a two-tier system in which some people have access to fresh organs and others to biopreserved ones? And once organs can be stored indefinitely and procured on demand, how can we prevent the emergence of a marketplace where they can be bought and sold, which is currently prohibited under federal law?
“Patients are dying now while they wait for an organ. How do you ensure that biopreserved organs save lives, promote fair allocation, and advance public trust?” Wolf asks.
None of these questions has an obvious solution. But that’s the point of addressing them now, while the technology is still under development. It’s an approach known as anticipatory governance, and the goal is to hammer out frameworks and guidelines before the technology matures.
“If you wait for the science, if you wait for the products, it is very often too late,” Wolf says.
Wolf doesn’t avoid uncertainty in the classroom either.
“This course deals with emerging technologies where regulators and courts often have no idea what to do,” she warns students in her class on law, biomedicine, and bioethics. Students debate messy and contentious topics ranging from medical aid in dying and reproductive technologies to gene editing. She encourages multiple points of view, asking students to develop the best legal, ethical, and policy arguments to support each position.
“We are training students to lead on 21st-century innovation,” Wolf says.
The Mind and the Law
The Consortium’s co-chair, Francis Shen, Solly Robins Distinguished Research Fellow and professor of law, co-directs the Neurotech Justice Accelerator project (supported by the Dana Foundation) with colleagues at Massachusetts General Hospital. While Shen also studies AI and the law — in fact, he taught the first course on the subject at Minnesota Law — he’s betting that neuroscience will most thoroughly transform the law and legal practice.
“The law is in the business of governing behavior,” says Shen, who runs the Law School’s Neurolaw Lab. “And neuroscience is in the business of helping us better understand and modify mental states and decision-making. So, neuroscience is at the center of what the law does.”
Neuroscience has already made its way into the courtroom, albeit sometimes prematurely. More than a decade ago, Shen and colleagues helped stymie the admission of evidence from brain scans to detect lies because it wasn’t reliable. He is also quick to point out that there are many things legal professionals would like to know that neuroscience cannot explain, such as which specific neural circuits predispose some people to criminal behavior.
But he is confident that as the science progresses, those mysteries will be revealed, and new forms of evidence will emerge.
Last year, for example, Shen co-authored a paper with Wolf and others on portable MRI technology that promises to increase access to brain scans by bringing them out of the clinic and into underserved communities and even people’s homes. From a legal perspective, Shen says this technology could make it easier for lawyers and their clients, including the incarcerated, to use brain scans to support their claims.
Shen is also preparing an article on deep-brain evidence: real-time recordings of brain activity generated by deep-brain stimulation devices currently used to treat disorders like Parkinson’s disease. Courts are already admitting data from wearable devices like Fitbits as evidence, and Shen contends that it is only a matter of time before deep-brain data is introduced as well.
“For the first time, we will potentially have measurements of real-time brain activity during legally relevant behavior,” he says, which could shed light on a person’s mental state at the very moment of a car crash, shooting, or other event that landed them in court.
Alexander Engemann ’26, who earned his undergraduate degree in neuroscience at the University of Minnesota and has been a research assistant in the Neurolaw Lab for the past two years, says that a better understanding of brain function could also help reduce recidivism — for example, by helping target rehabilitation programs at the specific neural factors that contribute to addiction and criminal behavior.
“That’s where I am most optimistic about neuroscience: How can we better understand the mental health issues and afflictions that are driving people to do these things?” he asks.
Shen can’t predict when neuroscience will fulfill its potential as a legal tool. But he has no doubt that he and his colleagues will be prepared for the day it does.
“I can’t give you a timeline,” he says. “But I can tell you that Minnesota Law will be ready — and leading the way.”
The Rise of the ‘Artificial Executive’
If the neuroscience revolution is coming, the AI revolution is already here. Alan Rozenshtein, associate professor of law, is trying to figure out what this means for executive power, the separation of powers, and democracy itself.
Rozenshtein’s interest in technology and the law is broad. He has looked at the liability and free speech issues raised by online platforms, considered whether the state of Minnesota should lower the legal barriers to testing self-driving cars in Minneapolis, and weighed in on the debate over whether AI systems should be “open,” meaning their components should be made available for public inspection and verification.
Whatever the topic, he seeks to understand how the law can effectively balance competing concerns — such as innovation versus safety, or access versus national security — that inevitably arise with new technologies.
“Most interesting legal and societal problems don’t have solutions,” Rozenshtein says. “They only have trade-offs.”
Rozenshtein is now using that approach to examine the implications of a president using AI to exert greater control over the executive branch.
In a lecture delivered last fall at the University of Toledo Law School, Rozenshtein introduced the concept of the “Unitary Artificial Executive” — an AI-driven extension of the systematic, decades-long expansion of presidential power.
Rozenshtein contends that AI will enhance the president’s existing powers, especially by giving the president unprecedented visibility into how the multi-million-person civil service operates. This combination could produce a so-called unitary chief executive with complete control over all executive branch decision-making.
That’s where the trade-offs come in.
On the one hand, Rozenshtein says, using AI to increase executive control over the federal bureaucracy could make communications and decision-making more efficient and effective.
On the other hand, it could pose a serious threat to the constitutional order.
Currently, a president can only issue opinions on a relatively small number of marquee policy issues. But an AI model tailored to a president’s preferences could apply them to all the millions of decisions made by the entire federal bureaucracy every day.
And that, Rozenshtein says, could vastly increase the power of a presidency that already overshadows Congress and the courts — a situation that could have “enormous implications for separation of powers.”
Such a system could also be used to flood social media with targeted political messaging, all of which would be perfectly permissible under the government speech doctrine.
“There is no First Amendment limit to the president’s ability to create and disseminate propaganda,” says Rozenshtein, who adds that using AI to supercharge the president’s control over the public agenda could raise “real democratic concerns.”
Rozenshtein believes that legislative, institutional, and judicial strategies could allow the executive branch to reap the benefits of AI while avoiding the unchecked concentration of power. He is writing a book about where all this might be heading, and what can — and should — be done about it. “I’m looking forward to spending the next few years writing about this,” he says.
Can AI think like a lawyer?
Some in the legal community welcome AI as a tool that can improve productivity and the quality of their work, while others see it as a real threat to the profession.
“It’s hard for me to envision a future where AI isn’t used to devalue the work of associates,” says Sophia Caranicas ’28, who fears that as AI is used to automate more routine legal tasks, firms will cut junior positions and expect fewer associates to do more work for less pay.
However, accurately assessing the potential harms and benefits of an emerging technology requires understanding its actual capabilities. And no one has assessed the legal capabilities of AI more rigorously than Daniel Schwarcz, Fredrikson & Byron Professor of Law.
Working with colleagues at Minnesota Law and elsewhere, Schwarcz has demonstrated that ChatGPT can pass a law school exam, help law students score higher on their own exams, and even grade law school exams roughly as well as law school faculty. He has also shown that AI can significantly boost students’ productivity when performing everyday lawyering tasks, such as drafting client emails and analyzing complaints.
Most recently, he turned to the effects of AI on human legal reasoning. The results surprised him.
Schwarcz expected that relying on AI would undermine a person’s critical legal judgment.
“Writing is thinking,” Schwarcz says. “And many lawyers recognize that they don’t understand something really well until they dig in and write about it and try to articulate their arguments.”
He and his Minnesota Law colleagues, Professors Nicholas Bednar ’16, Allan Erbsen, and David Cleveland, tested that hypothesis by randomly assigning approximately 100 law students to two groups and having them complete a series of tasks with and without AI assistance.
The first task involved extracting key legal rules and concepts from legal documents, and subsequent tasks involved applying the legal understanding acquired in the first task to a new fact pattern. One group used AI to summarize the materials in the first stage, while the other did not. Neither group had access to AI in the later stages.
Schwarcz predicted that students who initially used AI would produce better summary memos but would perform worse later because they hadn’t engaged with the materials as deeply as their peers who didn’t use AI. But that didn’t happen.
“We actually found the opposite,” he says. “In some ways, the folks who had AI in stage one did better in the later stages, even when we took AI away from them.”
Schwarcz is still writing up the results, but he suspects the explanation is that AI helped students organize and understand their materials, enabling them to grasp the relevant legal principles more effectively than they could on their own. This suggests AI may have real value as a teaching tool.
But Schwarcz still worries about the potentially damaging longterm effects the technology could have on human lawyering skills. He argues that further study is needed to evaluate that risk and determine just how widely AI should be adopted in legal settings — and he intends to lead the charge.
“This is one of the more important questions for the future of law,” he says.
Finding the Law's Equilibrium
Artificial Intelligence. Deep brain implants. Bioengineered organs.
These all seem a world away from the instant cameras and newspaper gossip columns that concerned Brandeis and Warren back in 1890.
But the need to respond to the latest technologies remains the same.
“The 21st-century world is different from the 19th-century world, and the law is different too,” McGeveran says.
Nonetheless, we still face the task of determining which goals and values we want to retain amid technological change — and how we can use the law to do so.
“Technology is disruptive, and there is a period during which the law has yet to adapt,” he adds. “But eventually, the law does find its equilibrium.”
Minnesota Law is striking that balance across every area of technology.