Wiley-Online-Library: American Business Law Journal: Table of Contents

When machines invent: How AI shapes patent litigation outcomes

Joseph J. Avery, W. Michael Schuster — Sun, 24 May 2026 17:29:39 -0700

Abstract

Artificial intelligence (AI) is no longer merely a tool of invention. It has become an inventor. As AI systems increasingly contribute to the design and discovery of new technologies, their involvement raises novel challenges for patent law. This essay presents the first empirical test of whether jurors systematically perceive alleged patent infringement differently when a product is designed by AI rather than human engineers. In a controlled experiment involving a hypothetical patent dispute, participants were significantly more likely to find infringement, award higher damages, and judge business practices as less ethical when a putatively infringing device was designed by AI. These findings reveal a legally irrelevant but psychologically powerful distortion in adjudicating AI-designed products, with serious implications for firms, innovation policy, and the future structure of patent incentives. We conclude by discussing strategies for business leaders, litigators, and policymakers as AI becomes a central actor in technological innovation.

The importance of being important: Measuring materiality in consumer deception litigation

A. Lynn Matthews, Valerie Flugge, M. Christine Phillips — Sun, 24 May 2026 17:29:39 -0700

Abstract

In many cases alleging consumer deception, a plaintiff must prove both that the representation at issue was false or misleading and that it was material. While there is an extensive body of law addressing when a representation is false or misleading, there is a paucity of authority on how to establish that the representation was material. Neither federal regulation nor case law has clearly laid out a standard method by which materiality should be measured. In this article we empirically show how a research study's design can impact its effectiveness in identifying an attribute's materiality and propose a measurement method that can effectively measure both small and large effects of that attribute, independent of the overall desirability of a product and the importance of other characteristics of that product. Using mathematical simulations, we show that between-groups experiments are less effective than within-groups experimental choice tasks at identifying the presence of a material attribute when ceiling effects or other important traits are present in a product. We also explain why focalism bias and the need for marketplace realism are inappropriate objections to the use of a within-groups choice task to measure materiality. Finally, we demonstrate the utility of our proposed methodology with two case studies.

Rethinking the antitrust‐securities interface

Kelvin Hiu Fai Kwok — Sun, 24 May 2026 17:29:39 -0700

Abstract

This article proposes a new theoretical framework for resolving conflicts between antitrust law and securities regulation, which is distinctive in four respects. First, it eschews the traditional approach of resolving antitrust-securities conflicts through implied antitrust immunity, which unjustifiably prioritizes securities regulation above antitrust law. Second, it argues for a narrow definition of conflict, encompassing only conduct presently authorized or required by the securities regime that also has likely and significant anticompetitive effects; practices that are illegal under both antitrust law and securities regulation are thereby excluded. Third, this article builds on the literature on the antitrust-intellectual property interface to recommend a structured, rule-of-reason framework for resolving conflicts at the antitrust-securities interface. Unlike implied antitrust immunity, which automatically allows securities regulation concerns to trump antitrust concerns, the rule of reason seeks to strike a proper balance. The analysis begins by asking whether the securities practice has likely and significant anticompetitive effects. It then inquires into the securities regulation concerns behind the conduct and whether there is a less restrictive means of addressing those concerns. Fourth, a two-stage procedure is proposed for implementing the rule of reason to resolve antitrust-securities conflicts in rulemaking and adjudication, involving the collaboration of the Securities and Exchange Commission, the Department of Justice, and the courts.

Reliance as Promise

Yehuda Adar, Efi Zemach — Sun, 24 May 2026 17:29:39 -0700

Abstract

In the face of powerful criticism, the “reliance interest” continues to hold an impactful position in judicial and academic treatment of contract damages. And yet, the theoretical foundation of reliance damages for breach of contract remains unsettled. This Article exposes the inability of the reliance scholarship to coherently explain and justify the widespread judicial practice of awarding reliance damages in lieu of expectation damages. Considering this failure, the Article offers a hitherto overlooked promise-based conception of the reliance interest. Under reliance-as-promise, the right to be reimbursed for one's reasonably foreseeable performance costs is a secondary remedial right grounded in an implied contractual promise which the law attributes to every contracting party. When due to a total breach it becomes clear that the contract will not be performed, the background duty to reimburse comes into play. The Article presents and develops this promise-based account. It claims that reliance as promise can provide a more coherent normative and explanatory account of the phenomenon of awarding reliance damages for breach of contract. Apart from its explanatory force, and the normative support it can find in major contract theories, reliance as promise finds support in basic psychological insights and in the findings of a preliminary empirical study conducted by the authors.

Issue Information

Sun, 24 May 2026 17:29:39 -0700

American Business Law Journal, Volume 63, Issue 2, Page 101-103, Summer 2026.