Law Commons^™

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching, William A. Herbert

William A. Herbert

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities. The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual …

Blueprint For Teaching Skills In Practicum And Seminar Courses Using Technology, Andrea L. Johnson

Andrea L Johnson

Abstract: “Blueprint for Teaching Skills in Practicum and Seminar Courses Using Technology” By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article focuses on how to teach skills in practicum and seminar courses using technology. The author conducted a Classroom Assessment Study (“Study”) with 126 students in Business Planning and Telecommunications between 2006-2008. Classroom Assessment is a concept in higher education that uses feedback from students about how they learn from different teaching methods to help them learn skills more effectively. The Study deconstructs the classroom experience using …

Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge The Traditional Realm Of Conflicts Of Law, Sonia B. Green

Sonia Bychkov Green

New technologies have always posed challenges to established legal norms. Assisted Reproductive Technologies (ART) in particular pose legal and ethical challenges to the law, and create never before seen legal problems. Although the ABA House of Representatives recently approved the Model Act Governing Assisted Reproductive Technology, differences in laws and rules will continue to exist. The legal issued involved are wide-ranging, including: liability issues arising from the failure of ART technology, parentage issues, disposition of embryos, and many others. As ART becomes more widely used, it is also used more in an interstate and international context. Thus, when a dispute …

Rethinking "Reasonable Efforts" To Protect Trade Secrets In A Digital World, Elizabeth Rowe

Elizabeth A Rowe

The very technological tools in use today that increase the efficiency with which companies do business create challenges for trade secret protection. They make trade secrets easier to store, easier to access, easier to disseminate, and more portable, thus increasing the risks that trade secrets will be destroyed. While secrecy is the sine qua non of trade secret protection, it can be difficult to accomplish. There is a tension between the need to keep information secret and modern technological methods that allow the information to be easily accessed, reproduced, and disseminated. In trade secret misappropriation cases, courts evaluate the sufficiency …

The Next, Small, Step For Mankind: Fixing The Inadequacies Of The International Space Law Treaty Regime To Accommodate The Modern Space Flight Industry, Brian J. Beck

Brian J Beck

Since man’s first foray into space flight in 1958, the world has greatly changed. Early space law treaties were created for a world where nations looked to travel to the moon and beyond, two hostile superpowers gave rise to the danger of a weaponized outer space, and space travel was too expensive for anyone but the world’s richest governments. This article argues that the current space law treaty regime, negotiated in the late 1960s and early 1970s, is inadequate to handle the challenges of space flight in the next decade. These challenges include commercial space flight and its attendant concerns, …

Contracting To Preserve Open Science: The Privatization Of Public Policy In Patent Law, Peter Lee

Peter Lee

Patents on biomedical research tools—technological inputs to experimentation—may inhibit scientific inquiry and the development of life-enhancing therapies. Various “public law” approaches to address this challenge, such as a common law experimental use exception to patent infringement, have achieved limited success. In the wake of these shortcomings, this Article argues that institutions are utilizing a new model of private ordering to resolve research holdup. Increasingly, federal and state agencies, universities, non-profits, and disease advocacy groups are conditioning the provision of vital research support on requirements that recipients of this support make resulting patented inventions widely available for noncommercial research purposes. In …

Complexity As A Catalyst Of Market Failure: A Law And Engineering Inquiry, Steven L. Schwarcz

Steven L Schwarcz

This article examines how the complexities of modern investment securities and the assets underlying them can trigger a breakdown of financial markets and also analyzes what should be done to mitigate the potential for market failure. Because these complexities are characteristic of complexities in nonlinear engineering systems, the article’s analysis draws on the literature analyzing these systems.

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

Manipulating Andhiding Terrorist Content On The Internet: Legal And Tradecraft Issues, Jack F. Williams

Jack F. Williams

The global war on terror (“GWOT”) is being fought on many levels. In addition to traditional terror and counterterror activity, both sides are engaged in a public relations and propaganda war, employing the media, willingly and unwillingly, to support their positions. Hovering over these war campaigns are information technologies, which include the Internet. This article provides an introduction to various online content concealing practices that have been employed by those seeking to conceal or limit access to information on the Internet, including terrorist organizations. Further, there is a discussion on tracking and monitoring of website visitors. After reviewing open source …

Indecent Speech On Broadcast Television: A Constitutional Challenge To The Government’S Time-Channeling Provisions, Krista Jacobsen

Krista S. Jacobsen

What is the correct level of scrutiny under which to evaluate the constitutionality of restrictions of indecent speech in broadcast television? The Supreme Court has never articulated the answer to this question. Since the mid-1970s, however, courts have seemingly afforded a lower-than-strict level of scrutiny to governmental restrictions of indecent speech in broadcast television.

The Federal Communications Commission (FCC) attempts to “time-channel” indecent content on television to the hours when children are unlikely to be in the audience. In 2006, the FCC announced that it was adopting a more aggressive approach to indecent speech on television. In the future, even …

The Formal Structure Of Patent Law And The Limits Of Enablement, Jeffrey A. Lefstin

Jeffrey A Lefstin

Modern American patent law is characterized by two grand themes, both of which were first sounded in the formative years of patent law but have assumed center stage today. The first has been the condensation of the invention and the inventor’s legal rights around the claim, a highly formal and abstract collection of properties defining the boundaries of the patent’s reach. The second has been the drive to reduce patent law to a small set of formal principles, from which the essential doctrines of patent law may be logically derived. This Article argues that those two themes are fundamentally incompatible, …

Leave Those Orcs Alone: Property Rights In Virtual Worlds, Kevin Deenihan

Kevin E Deenihan

Conversion of property is a familiar piece of law. What about conversion of virtual property? In 2006, a man filed suit claiming theft of virtual real estate he maintained in a Virtual World. The Judge may well have wondered: is this property law? Intellectual property? Torts? Contract? When should the law even apply to Virtual Worlds at all? New societies populated by millions of people have sprung up in the online context. Their inhabitants buy goods, trade with each other, and form complex self-regulating organizations and economic systems. All are activities governed in the real world by centuries of legal …

Government Intervention In Emerging Networked Technologies, Erik Lillquist, Sarah E. Waldeck

Erik Lillquist

Some new technologies succeed, while others fail. Networks and multi-sided platforms are an important, but often-overlooked, explanation for these successes and failures. Many technologies will be successful only if their promoters can convince two (or more) sets of heterogeneous users to simultaneously embrace the technology. For example, in the case of credit cards, both consumers and merchants must decide to use the technology. For high definition (HD) televisions, both consumers and broadcasters must adopt the innovation. If only consumers adopted credit cards and HD, but merchants and broadcasters respectively did not, the technologies would fail: with no stores in which …

Empathy And Compassion, Richard Warner

Richard Warner

No abstract provided.

Law's Misguided Love Affair With Science, Robin Feldman

Robin C Feldman

The allure of science has always captivated members of the legal profession. Its siren’s song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law’s dilemmas, and we are constantly disappointed.

This …

An Enhanced Standard For Redefining Obviousness: Why Ksr Does Not Work And A Proposed Solution To A Subjectivity Problem, Aaron Davis

Aaron P. Davis

This paper will evaluate the background and evolution of the obviousness requirement of patentability established by 35 U.S.C. § 103, including an in-depth analysis of the landmark decision in KSR v. Teleflex and its subsequent confirmation in Leapfrog v. Fisher-Price. Next, the study will explain why the Supreme Court decision in KSR is ineffective and propose a solution to the KSR problem using a hybrid test, to be explained further, which generally combines the elements of the Graham test with the standard TSM approach adopted by the Federal Circuit post-Graham, and institutes a grace period by which an inventor will …

Beneath The Surface: Metadata, Transparency And The Ethical Use Of Information, Michael Katz

Michael Katz

While the gains from the digital revolution are tremendous in terms of increased efficiency, access to information and searchability, the change in information format has caught some off guard. No longer is data limited to what is available on a piece of paper. Yet there is a price to pay for these gains. Where once a letter’s recipient could not see anything but what the sender openly presented in the letter, today that email, word processing document and spreadsheet all contain additional information not readily visible on their face. Beneath the surface, packed into the file, exists metadata - information …

Recycling Copyright: Survival And Growth In The Remix Age, Michael Katz

Michael Katz

Current copyright law, both as written and as applied, is stifling the development of new content, limiting the use of creative work, and prohibiting uses which are reasonable and fair given the state of current technology. Copyright law should be amended to recognize profound change in publishing and editing created by the advent and growth of digital technology, and should allow for reference to and creative reuse and recycling of all digital media. If done correctly, the original goals of copyright - to encourage and reward the development of creative works for the betterment of society - will be served …

Throwing It All Away: Community, Data Privacy And The False Choices Of Web 2.0, Eli Edwards

Eli Edwards

Online privacy has long been a challenge, but the rise of Web 2.0 technologies has made it easier for more people to share personal information about themselves. There is a particular concern that young people who have grown accustomed to baring their private information in the public Internet sphere are especially vulnerable to potential harms now and in the near future. There is even a recurrent meme that posits people today, especially young people immersed in the digital culture, no longer value the right to privacy; the assumption is that between the equal values of community and privacy, Web 2.0 …

Outgrowing Copyright: The Effect Of Market Size On Copyright Policy, Tom W. Bell

Tom W. Bell

Does copyright protection offer the best means of stimulating the production of expressive works? Perhaps, at the moment, it does. If so, however, copyright protection will probably become inefficiently over-protective as the market for expressive works grows. With such growth, copyright holders will find it increasingly remunerative to focus on customers willing to pay a premium for particular expressive works. In a larger, more finely segmented market, copyright holders will find that their statutory rights generate larger monopoly rents. Yet copyright holders will suffer no corresponding increase in production or distribution costs; thanks to technological advances, we can expect those …

Orwell Was An Optimist: The Evolution Of Privacy In The United States And Its De-Evolution For American Employees, Robert Sprague

Robert Sprague

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the …

International E-Discovery: Navigating The Maze, Erica M. Davila

Erica M Davila

Globalization and the growing mountain of Electronically Stored Information (“ESI”) will inevitably lead to an increase in discovery requests for ESI located abroad. But no consistent methodology exists for United States courts to evaluate whether discovery of ESI abroad is appropriate, and if so, the consequences for not complying with a discovery order. As international commerce depends on “the ability of merchants to predict the likely consequences of their conduct in overseas markets,” United States courts need to apply a consistent standard to decisions involving the discovery of international ESI. This paper reviews existing law related to international discovery and …

The Electronic Workplace: To Live Outside The Law You Must Be Honest, William A. Herbert

William A. Herbert

No abstract provided.

The Impact Of Emerging Technologies In The Workplace: Who's Watching The Man (Who's Watching Me)?, William A. Herbert, Amelia K. Tuminaro

William A. Herbert

No abstract provided.

Biomedical Upstream Patenting And Scientific Research: The Case For Compulsory Licenses Bearing Reach-Through Royalties, Richard Li-Dar Wang

Richard Li-dar Wang

In the wake of breakthroughs in biotechnology and prosperous development in the biotechnology industry, the field of biomedical upstream research has experienced a large increase in the number of patents granted. This Article concerns mainly the threat that the proliferation of upstream patents pose to biomedical research and commercialization, especially the danger posed by research tool patents. The propagation of research tool patents may impede access to those research routes that are most promising to scientists. These patents also create substantial burdens, including research delays and financial costs, for independent researchers seeking authorization for the use of research tools. There …

Revitalizing Essential Facilities, Spencer Weber Waller, Brett Frischmann

Spencer Weber Waller

Revitalizing Essential Facilities

Spencer Weber Waller

Brett Frischmann

Our article examines an age old debate about the nature and limits of property rights and the current manifestation of this debate in antitrust law. Many areas of law struggle to balance private property rightsCmost importantly, the right of exclusionCwith the public=s right of access to essential resources. What is the best way to manage resources that provide both public and private benefits? For years, academics and law makers have debated this question with respect to transportation systems, communication networks, scientific research, and a variety of other "infrastructural" resources. Many press for …