Law Commons^™

Congress, The Internet, And The Intractable Pornography Problem: The Child Online Protection Act Of 1998, Timothy Zick

Timothy Zick

No abstract provided.

The Satellite Has No Conscience: §230 In A World Of ‘Alternative Facts’, Laura A. Heymann

Laura A. Heymann

No abstract provided.

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Jeffrey Bellin

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

Content And Quality Of Legal Information And Data On The Internet With A Special Focus On The United States, Claire M. Germain

Claire Germain

In the United States today, digital versions of current decisions, bills, statutes, and regulations issued by federal and state governments are widely available on publicly accessible Web sites. Worldwide, official (defined as "authoritative," or "the official" word of the law) legal information issued by international organizations and foreign governments is also becoming available on the Web. However, there are currently no standards for the production and authentication of digital documents. Moreover, the information is sometimes available only for a short time and then disappears from the site. No guidelines exist either to promote a uniform way to cite to digital …

Legal Information Management In A Global And Digital Age: Revolution And Tradition, Claire M. Germain

Claire Germain

This article presents an overview of the public policy issues surrounding digital libraries, and describes some current trends, such as Web 2.0, the social network. It discusses the impact of globalization and the Internet on international and foreign law information, the free access to law movement and open access scholarship, and mass digitization projects, then turns to some concerns, focusing on preservation and long term access to born digital legal information and authentication of official digital legal information. It finally discusses new roles for librarians, called upon to evaluate the quality of information teach legal research methodology and be advocates …

Tucker Lecture, Law And Media Symposium, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Pornography As Pollution, John C. Nagle

John Copeland Nagle

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …

Cyberbulling - When Does A School Authority's Liability In Tort End?, Robert Pelletier, Boris Handal, Jessica Khalil, Tryon Franicis

Boris Handal

Cyberbullying in schools is increasing on an alarming rate. The development of the Internet and smartphone technology have increased the potential scope of a school authority’s duty of care for its students. A question frequently asked by educators is “Where does a school authority’s duty of care end in the interconnected, 24/7 world of the Internet?” This paper argues that a duty of care will be owed where the school is in a school/student relationship with its students. That relationship can exist outside the school gates and outside of school hours.

There are no decisions of senior appellate courts that …

Virtual Property, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - which is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Trust And Social Commerce, Julia Y. Lee

Julia Lee

Internet commerce has transformed the marketing of goods and services. The separation between point of sale and seller, and the presence of geographically dispersed sellers who do not engage in repeated transactions with the same customers challenge traditional mechanisms for building the trust required for commercial exchanges. In this changing environment, legal rules and institutions play a diminished role in building trust. Instead, new systems and methods are emerging to foster trust in one-shot commercial transactions in cyberspace. The Article focuses on the rise of “social commerce,” a socio-economic phenomenon centered on the use of social media and other modes …

A Roundtable Discussion With Lawrence Lessig, David G. Post & Jeffrey Rosen, Thomas E. Baker

Thomas E. Baker

This article is a transcript of a discussion between Lawrence Lessig, David G. Post and Jeffrey Rosen on a variety of issues surrounding law, technology and the Internet. The moderator was Thomas E. Baker and the discussion was part of a Drake University Law School symposium in February of 2001.

Are They Worth Reading? An In-Depth Analysis Of Online Trackers’ Privacy Policies, Candice Hoke, Lorrie Faith Cranor, Pedro Giovanni Leon, Alyssa Au

Lorrie F Cranor

We analyzed the privacy policies of 75 online tracking companies with the goal of assessing whether they contain information relevant for users to make privacy decisions. We compared privacy policies from large companies, companies that are members of self-regulatory organizations, and nonmember companies and found that many of them are silent with regard to important consumer-relevant practices including the collection and use of sensitive information and linkage of tracking data with personally-identifiable information. We evaluated these policies against self-regulatory guidelines and found that many policies are not fully compliant. Furthermore, the overly general requirements established in those guidelines allow companies …

Payment Methods For Consumer-To-Consumer Online Transactions, David E. Sorkin

David E. Sorkin

Participants in online auctions use a variety of payment mechanisms, but checks and money orders still represent the most commonly used means of payment. Credit cards afford greater protection to buyers, but until recently payment by credit card was not even an option for person-to-person transactions. However, several online payment services have been established that enable individuals to make credit card payments to one another, generally with the payment service acting as an intermediary. These services are growing rapidly, mainly because of the speed and convenience that they offer. Yet relatively little attention has been paid to the risks and …

Gender Biases In Cyberspace: A Two-Stage Model For A Feminist Way Forward, Shlomit Yanisky-Ravid, Amy Mittelman

Shlomit Yanisky-Ravid Professor of Law

Increasingly, there has been a focus on creating democratic standards and procedures in order to best facilitate open exchange of information and communication online—a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a Cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution that social activists, Intellectual Property opponents …

E-Obviousness, Glynn S. Lunney Jr.

Glynn Lunney

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Wayne R. Barnes

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Wayne R. Barnes

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt

Cynthia R. Farina

This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Victor C. Romero

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …

Privacy As Intellectual Property, Pamela Samuelson

Pamela Samuelson

No abstract provided.

Closing One Gap But Opening Another?: A Response To Dean Perritt And Comments On The Internet, Law Schools, And Legal Education, Michael Heise

Michael Heise

No abstract provided.

Net Neutrality - Computer Law, Matthew Charles Quattrochi

Matthew Charles Quattrochi

The overall purpose of this work is to discuss the current state of net neutrality. Given Federal Communication Commission (“FCC”) Chairman Tom Wheeler’s most recent proposal to pass net neutrality into law, net neutrality is ripe for discussion.The court ruling striking down the infrastructure of the Open Internet Order in Verizon v. F.C.C., and the devaluation of Title I regulatory authority exhibited in the decision made in Comcast Corp. v. F.C.C. bring about an appropriate point to stop and reflect concerning the options the FCC has to instill net neutrality regulation.Part II of this work will be dedicated to explaining …

Becoming A Competent 21st Century Legal Ethics Professor: Everything You Always Wanted To Know About Technology (But Were Afraid To Ask), Catherine Lanctot

Catherine J. Lanctot

This Article provides a roadmap for rebooting the legal ethics curriculum. It describes how to revise a traditional legal ethics class to respond to twenty-first century law practice, and provides a detailed overview of the landscape of technological issues currently affecting the practice of law, including many cautionary tales of lawyers who ignored their ethical responsibilities.

We have finally hit the tipping point with respect to the use of technology within the legal profession, as bar regulators have begun to warn attorneys that they may no longer plead ignorance of technological advances if such ignorance harms the interests of their …

Incendiary Speech And Social Media, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

Technology And Intellectual Property: New Rules For An Old Game?, Elizabeth A. Rowe

Elizabeth A Rowe

This foreword to the first issue of 2009 for the Journal of Technology Law and Policy discusses the questions presented by the merger of technology and intellectual property and considers how best the two areas should co-exist.

Saving Trade Secret Disclosures On The Internet Through Sequential Preservation, Elizabeth A. Rowe

Elizabeth A Rowe

When an employee discloses an employer's trade secrets to the public over the Internet, does our current trade secret framework appropriately address the consequences of that disclosure? What ought to be the rule that governs whether the trade secret owner has lost not only the protection status for the secret, but also any remedies against use by third parties? Should the ease with which the Internet permits instant and mass disclosure of secrets be taken into consideration in assessing the fairness of a rule that calls for immediate loss of the trade secret upon disclosure? Given that trade secret law …

'I Know My Rights, You Go'n Need A Warrant For That:' The Fourth Amendment, Riley's Impact, And Warrantless Searches Of Third-Party Clouds, Laurie Buchan Serafino

Laurie B. Serafino

Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the …

Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall

Adam A Marshall

In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how the …

The New Territorialism In The Not-So-New Frontier Of Cyberspace, William L. Reynolds, Juliet M. Moringiello

William L. Reynolds

This Essay addresses the following questions: What jurisdictions should govern cyberspace problems? Are cyberspace problems different from those in the tangible world? If so, what are the implications for governance? We conclude that the judicial response to cyberspace governance has been mostly correct. After some adaptation problems (an early learning curve), courts have generally followed common law analogs to cyberspace problems. In other words, those problems are not treated as unique unless there is something special about the internet that suggests different resolutions are needed. There certainly is nothing to suggest that American courts or legislatures are trying to occupy …