Law Commons^™

Reconstruction Of The Reasonable Person Standard Under Chinese Patent Law, Weihong Yao, Robert H. Hu

Faculty Articles

The standard of a Reasonable Person is the common basis for determining the duty of care of a patent infringer. Under the Chinese patent law, the standards for Reasonable Manufacturer and Reasonable Importer are among the highest standards in the world; such high Chinese standards impose an excessive duty of care for Chinese manufacturing enterprises, importers, and distributors, which hinder the development of those enterprises. We should reconstruct the Chinese patent law's Reasonable Person standard based on the characteristics of the patent system and the status quo of China's economic production. A Reasonable Manufacturer should be defined as an ordinary …

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

In Code(Rs) We Trust: Software Developers As Fiduciaries In Public Blockchains, Angela Walch

Faculty Articles

A decade into Bitcoin's existence, governance questions around it and other public blockchains abound. Do these 'decentralized' structures even have governance? If so, what does it look like? Who has power, and how is it channeled or constrained? Are power structures implicit or explicit? How can we improve upon the ad hoc governance structures of early blockchains? ls ‘on-chain governance,’ like that proposed by Tezos and others, the path forward?

In August 2016, in the aftermath of the DAO theft and resulting Ethereum hard fork, I argued in American Banker that the core developers and significant miners of public blockchains …

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

The Path Of The Blockchain Lexicon (And The Law), Angela Walch

Faculty Articles

The terminology around blockchain technology is notoriously confusing, with disputes over whether a blockchain is the same as a distributed ledger or whether an appcoin is the same as a protocol token. In this article, I examine the difficulties the rapidly shifting, contested vocabulary poses for regulators seeking to understand, govern, and potentially use blockchain technology, and I offer suggestions for how to fight through the haze of unclear language.

I provide examples of the fluctuating, contested language in the blockchain technology space and describe the forces at play in shaping the language. I then lay out the problems the …

The Bitcoin Blockchain As Financial Market Infrastructure: A Consideration Of Operational Risk, Angela Walch

Faculty Articles

“Blockchain” is the word on the street these days, with every significant financial institution experimenting with this new technology. Many say that this remarkable innovation could radically transform our financial system, eliminating the costs and inefficiencies that plague our existing financial infrastructures. Venture capital investments are pouring into blockchain startups, which are scrambling to disrupt the “quadrillion” dollar markets represented by existing financial market infrastructures. A debate rages over whether public, “permissionless” blockchains (like Bitcoin’s) or private, “permissioned” blockchains are more desirable.

Amidst this flurry of innovation and investment, this paper inquires into the suitability of the Bitcoin blockchain to …

Data Security And Tort Liability, Vincent R. Johnson

Faculty Articles

Established tort principles carefully applied to the contemporary problems of cybersecurity and identity theft can perform a key role in protecting the economic foundations of modern life. Tort law offers an appropriate legal regime for allocating the risks and spreading the costs of database intrusion-related losses. It can also create incentives, on the part of both database possessors and data subjects, to minimize the harm associated with breaches of database security.

In considering this field of tort law, it is useful to differentiate three questions. The first issue is whether database possessors have a legal duty to safeguard data subjects’ …

The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror, Jeffrey F. Addicott, Michael T. Mccaul

Faculty Articles

The most important weapon in the War on Terror is intelligence. The Protect America Act of 2007, a modification of the Foreign Intelligence Surveillance Act (FISA), was favored by Congress for providing a positive framework for ensuring the proper rule of law kept pace with changes in technology. FISA closed the intelligence gaps that had arisen because of the application of the Act to foreign persons in foreign countries.

FISA codifies in federal law the procedures associated with how electronic surveillance and searches of acquisition of foreign intelligence is conducted. In order to conduct electronic surveillance, a court order must …

Fattening Foods: Under Products Liability Litigation Is The Big Mac Defective?, Charles E. Cantú

Faculty Articles

Excessive consumption of fast food may produce negative results, but it does not render fast food products, like the McDonald’s Big Mac, defective. While no product is technologically perfect, and any product can cause injury, American jurisprudence has always held purveyors of defective food liable. The question is whether fattening foods, such as the Big Mac, are defective under a strict products liability theory.

The cornerstone of this cause of action requires a product to be defective, which may stem from: (1) mis-manufacturing, where the product enters the stream of commerce in an unintended condition; (2) mis-marketing, where the risks …