Law Commons^™

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Daniel L. Brenner

ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

Wild Rice: The Minnesota Legislature, A Distinctive Crop, Gmos, And Ojibwe Perspectives, Rachel Elena Durkee Walker, Jill Doerfler

Rachel Elena Durkee Walker

No abstract provided.

I Own The Pipes, You Call The Tune. The Net Neutrality Debate And Its (Ir)Relevance For Europe, Andrea Renda

Andrea Renda

The debate of the so-called “net neutrality” has been under the spotlight in the US for many years, whereas many believed it would not become an issue in Europe. However, over the past few months the need to revise the current regulatory framework to encourage investment in all-IP networks has led to greater attention for net neutrality and its consequences for investment and competition. After the Commission adopted a “light-touch” approach to the issue at the end of 2007, the European Parliament has started to reconsider the issue, and it is reportedly considering a move towards more pro-neutrality rules. This …

Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann

Ryan M Seidemann

Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …

“The Nation’S Broadband Success Story”: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer

Benjamin W. Cramer

The Federal Communications Commission regularly promotes the competitiveness of the American broadband market and the availability of robust services to consumers. Since 2000, the Commission has reported on broadband deployment by zip code, and by late 2006 broadband was supposedly available in 99% of American zip codes, with those zip codes representing 99% of the population. However, the viability of the FCC’s zip code-based measurement methodology has long been a matter of controversy, because broadband is counted as “available” in a zip code even if as few as one household in the area has obtained service. Meanwhile, the FCC continued …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Forensic Genetics And The Ascendancy Of Modern “Race Science:” Establishing The Inadmissibility Of Dna Estimates Of Race, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to …

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.

Neuroscientific Evidence In The Law: Fascinating Science, But To Laymen It's Still Phrenology, John M. Mccarthy

John M McCarthy

ABSTRACT

Neuroscientific Evidence in the Law: Fascinating Science, But to Laymen It's Still Phrenology by John M. McCarthy J.D. Yale, 1977

Cognitive neuroscience is one of biology's most exciting specialties, but outside of laboratories, "neuroscience" is not "science" but something else. The article examines what it is. This bears on today's burgeoning "neuro-" applications in the law, including "neuroethics". The article argues that neuroscientific findings should be excluded today from legal contexts, because valid scientific findings do not exist concerning the complex mental performances pertinent to adjudication.

Laymen and neuroscientists embrace a theoretical paradigm that is over two centuries old: …

Regulating Search, Viva R. Moffat

Viva R. Moffat

With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.

In this paper, I …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

The Impact Of Government-Mandated Public Access To Biomedical Research: An Analysis Of The New Nih Depository Requirements, Kristopher A. Nelson

Kristopher A Nelson

On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008. The bill, which became Public Law 110-161, contained a new requirement that manuscripts developed through funding by the National Institutes of Health (NIH) be made available to the public, free of charge, within one year after publication. This new mandatory requirement struck a compromise position between the existing pay-to-access model of private journal publishers and the potential free-for-all of the public domain. But did it go far enough? Should Congress have adopted a more aggressive policy of opening access to research? Alternatively, did Congress go too far, …

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Paging King Solomon: Towards Allowing Organ Donation From Anencephalic Infants, Fazal Khan

Fazal Khan

The article, Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants, argues that organ donation from anencephalic infants is ethically and legally justifiable. Anencephaly is a medical condition characterized by a lack of brain development above the brainstem, so such children often lack a cerebrum, cerebellum and a skull. With an intact brainstem, these children can maintain heart and lung function. Without higher brain functioning though, these children are not capable of human consciousness and they typically have very short life spans measured in days or weeks. The way in which an anencephalic infant dies typically destroys the suitability …

The Ghost In Our Genes: Ehical And Legal Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled-—patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

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 treatments. 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 resorting to a new paradigm of patent regulation to resolve research holdup. Increasingly, federal and state agencies, universities, non-profits, and disease advocacy groups are conditioning vital research support on requirements that recipients share resulting patented inventions widely for noncommercial research purposes. In essence, these institutions are contractually constructing …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

this article addresses both the theoretical and practical elements of M&A due diligence regarding IP and IT, with an emphasis on recent developments.

From Nuclear War To Net War: Analogizing Cyber Attacks In International Law, Scott James Shackelford

Scott Shackelford

On April 27, 2007, Estonia was attacked by a computer network causing widespread damage. It is currently unclear what legal rights a state has as a victim of a cyber attack. Even if Estonia could conclusively prove that it was Russia, for example, behind the March 2007 attack, could it respond with force or its own cyber attack? There is a paucity of literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (“IW”) on national and international security. Treatments of IW outside the orthodox international humanitarian law (“IHL”) framework are nearly …

Pirates Among The Second Life Islands – Why You Should Monitor The Misuse Of Your Intellectual Property In Online Virtual Worlds, Ben Quarmby

Ben Quarmby

Virtual online worlds such as Second Life – a world in which users can live, work and purchase virtual goods, services and real estate – have enjoyed a well-documented explosion in popularity. Their success, however, has not come without some degree of turbulence. Relying on the example of Second Life, this article will address one of the primary sources of concern to arise in connection with these worlds: the dramatic escalation in trademark and copyright violations in virtual world and its impact on real-world individuals or business entities. Given that users have the ability to design and create virtual property …

The First Amendment Constitutional Implications Of Facebook And Myspace And Other Online Activity Of Students In Public High Schools, Brandon J. Hoover

Brandon J. Hoover

My paper, entitled The First Amendment Constitutional Implications of MySpace and Facebook, will explore what constitutional issues may arise through the use of social networking websites such as MySpace and Facebook. The paper will begin with an explanation of social networking websites; how such sites were developed, how many users each cite has, and how such sites work. The central focus of the paper will be on youth who use such sites. After laying the basic framework of what these sites are and what they do, the paper will next turn to the First Amendment issue of free speech. Some …

Space Pirates, Hitchhikers, Guides And The Public Interest: Transformational Trademark Law In Cyberspace, Thomas C. Folsom

Thomas C. Folsom

Modern trademark law has come of age. Like copyright and patent, it not only has a metaphysic of its own, but it also has the capacity to take goods and services out of the commons. The tendency of modern trademark law to dimi-nish, waste or spoil the commons is nowhere more apparent than in cyber-space. My prior analytic, descriptive and doctrinal articles asserted the leading cases either overprotect or under–protect marks in space, and both extremes are wrong. The cases reach the wrong results at the critical margin because they neither define cyberspace nor distinguish the mark–type conflicts typical-ly occurring …

Computers, Search Warrants, And The Private Papers Exemption, David E. Clark

David E Clark

Police increasingly seek search warrants for information stored on personal computers. Georgia law, OCGA 17-5-21(a)(5) prohibits the issuance of a search warrant for "private papers," which include any documents subject to a recognized privilege (attorney-client, doctor-patient). This statute, and other technological factors, raise the risk of a computer search warrant being ruled overbroad unless it is carefully drafted. A constitutionally sound format for a computer search warrant application is given, along with guidelines for drafting and executing a warrant for digital property believed to be evidence of a crime.

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.