Law Commons^™

The Need For A United States National Antiquities Database: A Valuable Suggestion From The Nicosia Convention, Sula, Dea

Santa Clara Journal of International Law

Antiquities trafficking is an international cultural and security risk due to the involvement of organized crime. The Nicosia Convention proposes utilization of shared national databases cataloging antiquities as a method to combat the antiquities black market. The United States should adopt this database recommendation. A comprehensive database of antiquities in the U.S. is technically feasible. Further, a database would strengthen American criminal law by creating evidence that a buyer could have notice and knowledge of the status of a trafficked antiquity, the lack of which currently incentivizes authorities to use civil forfeiture actions instead of criminal prosecution. Implementing an antiquities …

The Exceptional Unfairness Of The “Exceptional And Extremely Unusual Hardship” Test, Bin Mohsin, Momin

Santa Clara Journal of International Law

Legislators often face criticism for introducing ambiguous terms into law. The "exceptional and extremely unusual hardship" (EEUH) standard in U.S. immigration law is one such prominent example. Delving into a historical analysis, the article tracks the evolution of the EEUH standard from its incorporation in the Immigration and Nationality Act of 1952 to its current applications. Through a comprehensive survey across different jurisdictions such as the UK, Canada, and Australia, the paper exposes the inadequacies of the EEUH standard, emphasizing its obsolescence. Advocating for a paradigmatic reassessment, it proposes the replacement of the EEUH standard with the “best interest of …

The Joyful Prosecutor: A More Empathetic And Balanced Approach, Reid, Melanie

Santa Clara Law Review

Over the years, prosecutors have been criticized for exhibiting aggressive, competitive traits while negotiating plea deals, investigating and preparing cases for trial, or arguing for their positions before, during, and after trial. Prosecutors are asked to interact with others in a highly adversarial criminal justice system on a daily basis on top of working in a highly competitive environment back in their own offices. This environment makes it difficult for a prosecutor to see the opposing party through a more compassionate lens. However, rather than continually focusing on how “bad” prosecutors can be and how to punish their misconduct, this …

Upon Further Review, The Ruling On The Field Has Been Overturned: The New Era Of College Athletics Following Ncaa V. Alston, Salvestrin, John

Santa Clara Law Review

Recent market trends in college athletics elicit the true effects of the NCAA’s constraint on student athletes across the United States. Since the NCAA’s inception, student athletes have not been justly compensated for their efforts on the field—the NCAA and its member universities hoard the spoils that come about from these students’ world-class athletic abilities. This inequity is becoming more apparent than ever before, as college athletics is shifting towards a more pro-athlete landscape where they can finally profit from their athletic status and contributions. The NCAA’s justifications in prohibiting athletics compensation is quickly losing merit as we enter a …

Beyond #Freebritney: An Analysis Of The Impact Of Ab 1194 On Professional Fiduciaries, The Role Of Court-Appointed Counsel, And Court Oversight Requirements, Schrammel, Isabella

Santa Clara Law Review

This article analyzes the impact of California Assembly Bill No. 1194 (AB 1194) on professional fiduciaries and court-appointed counsel and posits funding issues as a barrier to achieving the goals set out by AB 1194 and prior conservatorship law reforms. This article proposes numerous changes to AB 1194, including incentivizing rather than solely penalizing professional fiduciaries, adopting a midway standard between zealous advocacy and the best interests standard for court-appointed counsel, and development of a coherent funding plan.

AB 1194 was adopted largely in response to media movements such as #FreeBritney, the movement which called for an end to the …

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

Analysis Of Global Data Privacy Regulations And How Transnational Companies Are Impacted, Fujimori-Smith, Aska

Santa Clara High Technology Law Journal

Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, …

Relying On Unreliable Tech: Unchecked Police Use Of Algorithmic Technologies, Fraerman, Ali

Santa Clara High Technology Law Journal

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid …

In Event Of An (Ai) Emergency: Interpreting Continuity Of Government Provisions In State Constitutions, Frazier, Kevin T.

Santa Clara High Technology Law Journal

“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.

Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …

The Good, The Bad And The Ugly Of Dobbs: A Constitutional Reckoning, Hutchinson, Allan C.

Santa Clara Law Review

The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization marked a constitutional reckoning, with pervasive and inescapable consequences for many Americans. This article discusses this constitutional reckoning in two senses. First, it was a reckoning with the Court’s own precedent, as it overturned nearly fifty years of precedent on abortion rights. Second, it was a reckoning with the Court’s role in American society, as it raised fundamental questions about the Court’s legitimacy and its ability to protect the rights of minorities.

This article begins by outlining a history of abortion rights in the United States, from …

Technology, Tinker, And The Digital Schoolhouse, Simoneau, Blakely Evanthia

Santa Clara Law Review

The world, both inside and outside the schoolhouse, has changed considerably since the Supreme Court decided Tinker v. Des Moines in 1969. Education in much of the United States is now inextricably linked with technology, and the schoolhouse is, increasingly, digital. This article critically examines the impact of the increasing use of technology on students’ First Amendment rights, looking at the Supreme Court’s recent decision in Mahanoy v. B.L. Specifically, it examines the effect of allowing schools to restrict speech on school-issued devices.

Disciplining speech that takes place on school-issued devices will have a silencing effect on students who do …

Reaching Past Rucho: A Constitutional Tort For Money Damages Against Individuals Who Draw Gerrymandered Districts, Turner, Sam

Santa Clara Law Review

The Supreme Court in Rucho v. Common Cause held that the issue of partisan gerrymandering—that is, the drawing of political districts in a way that favors the party in power— presented a political question that was outside the competency of the courts to solve, at least through constitutional law. This article argues that Rucho does not close the door to judicial action in the face of partisan gerrymandering but instead closes the door only to the remedy proposed in the case. As with practically all major constitutional cases in recent memory, the Rucho plaintiffs were seeking relief that was equitable …

Restoring Balance To Qualified Immunity: Modified Mandatory Sequencing, Cain, Patrick

Santa Clara Law Review

Qualified immunity continues to confound and frustrate judges, lawyers, law professors, law students, and even those outside the legal industry. Much of this frustration results from outcomes that shock the conscience, such as when government officials are granted qualified immunity despite stealing money while executing a search warrant or when government officials lock a prisoner in a highly unsanitary cell for a week.

Legal scholars have examined two main areas within the qualified immunity doctrine: the common law origins and the clearly established prong of qualified immunity analysis. The common law origins of qualified immunity have been thoroughly examined, and …

Unraveling The Disgorgement Regime, Piras, Alessandro

Santa Clara Law Review

Disgorgement is a legal remedy requiring those who gain from illegal or wrongful acts to give up any profits they made as a result of that conduct. The current state of disgorgement is uncertain, marked by rising tension between limitations in recent Supreme Court jurisprudence and newly enacted statutory authority granted to the Securities Exchange Commission (SEC) by Congress. Problems emerging from this regime threaten to render adjudication of disgorgement actions ineffective and inconsistent, potentially damaging the integrity of the financial system and eroding public trust in the markets. A comprehensive legislative framework is needed to fill in the gaps; …

Algorithmic Auditing: Chasing Ai Accountability, Goodman, Ellen P., Trehu, Julia

Santa Clara High Technology Law Journal

Calls for audits to expose and mitigate harms related to algorithmic decision systems are proliferating,3 and audit provisions are coming into force—notably in the E.U. Digital Services Act.4 In response to these growing concerns, research organizations working on technology accountability have called for ethics and/or human rights auditing of algorithms and an Artificial Intelligence (AI) audit industry is rapidly developing, signified by the consulting giants KPMG and Deloitte marketing their services.5 Algorithmic audits are a way to increase accountability for social media companies and to improve the governance of AI systems more generally. They can be elements of industry codes, …

Weisner V. Google Llc: An Effort To Provide Clarity Regarding Patent Subject Matter Eligibility, Poirot, Nicole

Santa Clara High Technology Law Journal

The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) recently issued a precedential two-to-one decision regarding patent subject matter eligibility under section 101 of the Patent Act.1 In Weisner v. Google LLC, the Federal Circuit held that U.S. Patent Nos. 10,380,202 and 10,642,910 are directed to abstract ideas of creating digital travel logs which are patent ineligible.2 Additionally, the Court held that U.S. Patent Nos. 10,394,905 and 10,642,911 are directed to both creating and using travel logs to improve computerized search results and are potentially patenteligible.3 The majority’s decision is an attempt to clarify the historically gray …

The Nhk-Fintiv Rule: Patent Law’S Whack-A-Mole, Barbier, Janelle

Santa Clara High Technology Law Journal

Since their inception in 2013, inter partes review proceedings have steadily gained in popularity, killing patents at an astounding rate. It is no wonder that defendants flee to the PTAB when staring down costly patent infringement suits in federal court. But an IPR institution is not a right––it is at the sole discretion of the USPTO Director. And despite increased petitions for IPR over the past few years, institution rates have declined. The reason for fewer institutions seemingly lies with the PTAB’s decision to employ certain factors in determining whether public policy weighs against IPR institution. This precedential doctrine—known as …

The Old And New Divides Of Patent Law: From The Theory Of Antedation To Defining Immediately Envisageable Limited Classes, Condon, Eamon M.

Santa Clara High Technology Law Journal

Recently, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) ruled on a patent case involving the application of pre-America Invents Act (“AIA”) antedation and the issue of when a genus of compounds is narrowly limited enough to anticipate an individual compound found within the genus.1 On appeal, this case generally discussed why the claimant’s anticipation and obviousness claims failed.2

While the entire Federal Circuit decision will be discussed, this Comment will discuss in greater depth the reasons why antedation is no longer applicable under the AIA, and the implications of the Federal Circuit’s decision to not …

Placing A Bid: A Comparison Of The Traditional Marketplace (Stocks) And Non-Traditional Markets (Nfts), Nieh, Haley

Santa Clara High Technology Law Journal

Non-fungible Tokens (NFTs) are exploding in the marketplace and are not losing momentum anytime soon. Artists, athletes, celebrities, and even brands and luxury houses are rolling out NFTs. With this excitement, a great deal of profit is being generated; the market cap of NFTs is expected to grow from $3 billion in 2022 to $13.6 billion in 2027 (a compound annual growth rate of 35 percent).1

Blockchain technologies are an empowering platform for democratization of financial instruments and transactions. Cryptocurrency has received some regulation from the United States Securities and Exchange Commission (SEC), but clarity and regulation of NFTs have …

Legislative Interpretation No. 748: Examining The History And Future Of Taiwan’S Same-Sex Marriage Law, Chang, Cara

Santa Clara Journal of International Law

Taiwan has always had two advantages that increased the odds of passing a same-sex marriage law: the political empowerment of women, and a strong economy characterized by balanced development. However, Taiwan is also part of the conservative Confucian cultural milieu of East Asia, a force that has often made it hard for the gender equality movement to gain traction — although interestingly, Confucius believed and taught that it is marriage that lies at the foundation of government.

This paper examines the history leading up to the 2017 and 2019 legalization of same-sex marriage in Taiwan, a “first in Asia,” as …

Getting Away With Murder: Why U.S. Courts Should Incorporate The Vclt In The Interpretation Of International Tax Treaties, Schroeder, Helen

Santa Clara Journal of International Law

There is a growing trend in the United States for the adoption of the VCLT in analyzing international tax treaties.1 This trend is positive and should be continued. By looking at how the VCLT could have been applied to the tax treaty interpretation in dispute in Xerox Corp. v. U.S., I assert both that it should be seen as a legitimate source of international tax law and that it should continue to be used moving into the future.

Mental Illness And Criminal Justice, Belli, Kelsey

Santa Clara Journal of International Law

This paper assesses some of the critical issues relevant to the connection between the mental health and criminal justice systems. Throughout the entirety of this paper there will be a comparison between the Unites States, France, and the Netherlands. This article will examine the current statutes, case law, and public policies in place in the criminal justice and mental health systems. It will offer a comparison between the balance of needs of individuals suffering from mental health issues and the maintenance of public safety. The first section will look at the historical background of how individuals were found to be …

Intersection Of U.S. Patents And Space Law – How Infringement Exists Among The Stars, Perez, Erik I.

Santa Clara High Technology Law Journal

With the recent proliferation of the commercialization of space, private entities are beginning to race towards the sky. Increased use of privatized money in space has greatly increased the probability of intellectual property used outside the bounds of the United States on the terrestrial Earth. Current literature has analyzed certain aspects of international space treaties but very few have proposed solutions to combatting space travel. Current literature has not proposed any solutions to the current evolution and explosion of space travel. This paper reviews the past historical analysis from previous authors, looks forward to the proliferation of privatized space travel, …

Biotechnology Patent Law Top Ten Of 2021. Experimentation, Blaze Marks, And Unspecified Ranges, Noonan, Kevin E., Torrance, Andrew W.

Santa Clara High Technology Law Journal

Biotechnology has never demonstrated its benefits to society more than in 2021. The SARS-CoV-2 virus that caused the CoVID-19 pandemic met a formidable opponent in mRNA vaccines developed and supplied by Moderna and Pfizer/BioNTech. These vaccines are claimed in myriad – not Myriad – patents and patent applications, many of which are destined to be litigated over the coming years, not least inspired by the many billions of dollars that have been, and will continue to be, earned by their owners. While the world waits for this storm of patent litigation, federal courts continue to be busy with ownership, licensing, …

Equity In Legal Education, Deo, Meera E.

Santa Clara Law Review

The pandemic has brought to light myriad inequities, in legal education as elsewhere in society. Many of these barriers have existed for decades; while they have been exacerbated due to COVID, they will likely linger even as the pandemic subsides. This Article draws from both quantitative and qualitative data collected from students and faculty to reveal how the pandemic has heightened existing challenges in legal education, in particular ways and with distinctive effects on different populations. While inequities are a hallmark of legal education, the fissures and fault lines of these hierarchies have expanded during COVID. People of color, women, …

Misinformation And Covid-19, Reiss, Dorit R

Santa Clara Law Review

The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a …

Leading Law Firms In The “New Normal”: Recovering From Crises Through Leadership Development, Polden, Donald J.

Santa Clara Law Review

Beginning in 2008, the first of three major crises hit the nation and had global implications and effects, including significant ones for the legal profession. Those crises were the financial crisis of 2008, followed by the social justice movements reflecting outrage at several highly-publicized police killings of Black men and women, and, most recently, the 2020-2022 COVID-19 pandemic. The crises created significant challenges for lawyers and legal institutions but they also created opportunities for enhanced access to justice, more efficient law organization practices, and new workplace requirements. The Article considers several difficult questions about where the legal profession is at …

Employers As Information Fiduciaries, Bodie, Matthew T.

Santa Clara Law Review

In order to better protect users from the predations of large tech companies amassing their data, commentators have argued that these companies should be considered information fiduciaries for the purposes of collection, use, storage, and disclosure of that data. This Essay considers the application of the “information fiduciary” label to employers in the context of employee data. Because employers are handling ever greater quantities of employee data, and because that data is becoming more sensitive and potentially damaging to workers if misused, the law should account for this expanded role with expanded protections. The beginnings of how such a set …