May 2, 2018

Jamison Gilmore 3L Wins National Law Review Law School Writing Contest

Congratulations to Jamison Gilmore on winning the National Law Review Law School Writing Contest! His article, “Augmented Reality Incitement: How the Creator of Pokémon GO, and Those Who Follow, are Open to Tortious Liability,” was published on their website. Bravo!

“I am absolutely honored to bring Southwestern Law School its first student publication in the National Law Review. My love for video games inspired me to uncover new hurdles posed to the industry and provide nuanced solutions to those problems. Southwestern's strong Moot Court and Law Review programs paired with its immaculate faculty have developed my legal mind and provided me with the tools necessary to fulfill this inspiration."

- Jamison Gilmore, 3L

Here's a sneak peek of his article, as summarized by Jamison:

“My note focuses on the plausible erosion of First Amendment protections video game companies have when they utilize augmented reality technology in their games. A string of well-cited case law applying the incitement standard in the entertainment context indicates that the mere use of augmented reality technology in a video game makes the expression within that video game unprotected speech, subject to government regulation, and, what is more chilling to the growth of this infant-industry, tortious liability. Given the consistently increasing interest and investment in augmented reality technology, this problem is only likely to become more problematic.

But alas, there may be a constitutional remedy to this issue found in the least likely of places -- Fourth Amendment jurisprudence surrounding the private search doctrine. The private search doctrine, which allows police to search a container that has already been searched by a third party, has been interpreted by two circuits to extend to electronically stored documents when it is "virtually certain" that the police will not learn of new facts. When using this same concept to video game companies' augmented reality video games, a plaintiff would have to prove the intent element of incitement by showing the company was not "substantially certain" that harm would result from the game, but the company was "virtually certain" harm would result from the game. Or in other words, the company was virtually certain that the plaintiffs could not play the game without getting injured. This heightened standard would address the heart of how video games that utilize augmented reality technology are stripped of their First Amendment protections and subject to tortious liability.”

Read the full article here.