Law Commons^™

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway. Put differently, a hotel owner’s expectation of privacy in a guest registry …

City Of Los Angeles V. Patel: The Upcoming Supreme Court Case No One Is Talking About, Adam Lamparello

Adam Lamparello

Focusing solely on whether a hotel owner has a reasonable expectation of privacy in a guest registry is akin to asking whether Verizon Wireless has a reasonable expectation of privacy in its customer lists. The answer to those questions should be yes, but the sixty-four thousand dollar question—and the proverbial elephant in the room—is whether hotel occupants and cell phone users forfeit their privacy rights simply because they check into the Beverly Hills Hotel or call their significant others from a Smart Phone on the Santa Monica Freeway.

Put differently, a hotel owner’s expectation of privacy in a guest registry …

The Unexamined Life In The Era Of Big Data: Toward A Udaap For Data, Sean Brian

Sean Brian

No abstract provided.

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets for …

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Adam Thierer

This paper highlights some of the opportunities presented by the rise of the so-called “Internet of Things” and wearable technology in particular, and encourages policymakers to allow these technologies to develop in a relatively unabated fashion. As with other new and highly disruptive digital technologies, however, the Internet of Things and wearable tech will challenge existing social, economic, and legal norms. In particular, these technologies raise a variety of privacy and safety concerns. Other technical barriers exist that could hold back IoT and wearable tech — including disputes over technical standards, system interoperability, and access to adequate spectrum to facilitate …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

‘Point And Click’ Versus Byod: Student Engagement Technologies As An Ethical Imperative For Teaching Law, Elizabeth A. Kirley

Elizabeth A Kirley

What conscientious law professor of first year, large format classes in torts, contracts, or criminal law has not pondered how to better engage students while easing their reluctance to speak out in class? While many students entering law schools are quite adept with student engagement technologies (SETs) from their undergraduate studies, some law faculty seem tied to the passive environment of lectures and PowerPoint presentations and hence reject SET methodologies as so much techno-wizardry. With the entry of web-based programs into the expanding field of SETs, and increasing empirical evidence that interactive learning improves grades, closes gender gaps, and helps …

Regulation Of Chemical Risks: Lessons For Tsca Reform From Canada And The European Union, Adam Abelkop, John D. Graham

Adam Abelkop

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. …

Legal And Scientific Flaws In The Myriad Genetics Litigation, Eric Grote

Eric Grote

In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court held that Myriad’s isolated BRCA DNA patent claims were invalid because an isolated DNA with the same sequence as a natural DNA is a product of nature. The decision has two fundamental flaws. First, due to a faulty claim construction by the trial court, the Supreme Court was never informed that isolated DNA is a synthetic molecule that is not actually isolated from nature, or that isolated DNA lacks functional information encoded by chemical modifications present in natural human DNA. Second, the Court ignored a long line of …

The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden

Rob Frieden

This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable operators. …

Internet Protocol Television And The Challenge Of “Mission Critical” Bits., Rob Frieden

Rob Frieden

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. Many consumers have become “technology agnostic” about what kind of wireline or wireless medium provides service. However, they expect carriers to offer access anytime, anywhere, via any device and in any format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a single channel and in only one presentation format. This paper assesses whether and how Internet Service Providers (“ISPs”) can offer …

"Step Into The Game": Assessing The Interactive Nature Of Virtual Reality Video Games Through The Context Of "Terroristic Speech", Robert Hupf Jr

Robert Hupf Jr

This article will begin the discussion on video gaming’s next interactive jump – total VR immersion – and examine whether the interactivity of VR changes the ordinary First Amendment analysis . . . . Yet, even with the “terroristic speech” component, involving everything from instructions on bomb-making to anti-American “terrorist” recruitment messaging, the Court should affirm the speech-protective logic of Justice Learned Hand and Justice Brandeis and hold that the First Amendment protects the freedom of video game developers in making VR video games with problematic content. The video game medium and its depictions have already been recognized as “speech” …

Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in digital devices no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking exclusively about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …

Protecting The Sender: Liability Protection For The Senders Of Electronic Communication, Meredith W. Doherty

Meredith W. Doherty

As the technology of smartphones has progressed, electronic communication has become an integral and portable part of our daily lives. A recent New Jersey case highlighted the issue of holding the sender of a text message liable for injuries resulting from a motor vehicle accident in which the driver at fault was reading a text message from the sender at the time of the accident. This note focuses on the implications of such liability being imposed on senders of text messages as well as the slippery slope that could result, taking all forms of electronic communication, social media and mobile …

Facts Can Be Stubborn: The Importance Of The Fact Section In Environmental Law, L.A. County Flood Control Dist. V. Natural Res. Def. Council, 133 S. Ct. 710 (2013), Aaron Schaer

Aaron Schaer

L.A. County is a perfect example of a difficulty that underlies many environmental cases. The facts are often incredibly complex, and based on science that even the PhDs among us struggle to comprehend. And if this were not enough, the environmental laws that these facts are siphoned through are no walk in the park themselves. Quite the opposite, as should be expected from political compromises over intricate, ever-evolving science. Environmental laws are rife with jargon and compound terms that are best left to acronyms like NAAQS and NPDES. This itself has become food for fodder, as these laws have been …

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

The Transmit Clause Test: A Pragmatic Approach To A Contemporary Understanding Of The Ambiguity In The Copyright Act’S Transmit Clause, Samantha Tilipman

Samantha Tilipman

The 1976 Copyright Act was a response to development of new technology and an attempt to clarify copyright law to promote further investment in the burgeoning sphere of cable systems.[1] In drafting the provisions of the new Act, Congress created the “Transmit Clause,” a key passage nestled into the definition of “to perform or display a work ‘publicly.’”[2]The ambiguity of the Transmit Clause has led the circuits to interpret it differently leading to conflicting caselaw on opposite ends of the nation. The purpose of this note is to provide the Supreme Court of the United States and …

Defining Death: A Call For The Reformation Of The Standard For Declaration Of Death In The Modern Era, Jayme M. Reisler

Jayme M Reisler

Prior to the mid 20th century, a declaration of death was a relatively definite determination because the functioning of each vital organ was inextricably linked to the other. With the advent of the positive-pressure mechanical ventilator, however, came the loss of integration among these organ systems. The ability to maintain metabolic functioning of a patient as well as the ability to successfully transplant viable organs have given rise to a host of legal issues revolving around the determination of death. The main issue that arises is two fold. On one hand, such medical technology can prolong an individual’s life even …

Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding

Dillon A Redding

This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried …

The Infringement Continuum, Bernard H. Chao

Bernard H Chao

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations; suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill-suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

Book Review: Fresh Water In International Law. By Laurence Boisson De Chazournes, ‎Oxford, Oxford University Press (Dec. 2013). ‎, Itzchak Kornfeld

Itzchak E. Kornfeld

This book review of an extremely timely, far-reaching and comprehensive book by Professor Laurence Boisson de Chazournes, titled Fresh Water in International Law, by an expert in the field. Today, in an era of climate change, wide spread droughts across the globe, the fate of fresh water, which is a fixed resource and is the source of life, is an ominous problem in and for international law. Boisson de Chazournes addresses issues related to treaty design and interpretation, case law, UN initiatives, human rights issues and the development of the human right to water. The author also stresses that today …

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith

Christopher R Smith

Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Bargaining In The Shadow Of Big Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement—based on their forecast of the outcome at trial and associated costs. Lawyers bargaining in the shadow of trial have traditionally relied on their knowledge of precedent, intuition, and previous interactions with the presiding judge and opposing counsel to forecast trial outcomes and litigation costs. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Foreseeability Decoded, Meiring De Villiers

Meiring de Villiers

The Article reviews the conceptual and doctrinal roles of the foreseeability doctrine in negligence law, and analyzes its application in cases where a new technology or unexplored scientific principle contributed to a plaintiff’s harm. It adopts the common law definition of foreseeability as a systematic relationship between a defendant’s wrongdoing and the plaintiff’s harm, and demonstrates translation of the concept into the language of science so that the common law meaning of the foreseeability doctrine is preserved. An analysis of the foreseeability of HIV/AIDS as a blood-borne risk illustrates application of the concept to contemporary issues in medical science.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

“Step Into The Game”: Assessing The Interactive Nature Of Virtual Reality Video Games Through The Context Of “Terroristic Speech”, Robert Hupf Jr

Robert Hupf Jr

This article will begin the discussion on video gaming’s next interactive jump – total VR immersion – and examine whether the interactivity of VR changes the ordinary First Amendment analysis . . . . Yet, even with the “terroristic speech” component, involving everything from instructions on bomb-making to anti-American “terrorist” recruitment messaging, the Court should affirm the speech-protective logic of Justice Learned Hand and Justice Brandeis and hold that the First Amendment protects the freedom of video game developers in making VR video games with problematic content. The video game medium and its depictions have already been recognized as “speech” …