Law Commons^™

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 …

Gender Inequities, The Covid-19 Shecession, And The Need For A Conscious Transformation, Blassing, Marissa J.

Santa Clara Law Review

The recent COVID-19 pandemic demonstrated that new and acute burdens tend to fall on women in a time of crisis because society defaults to structural gender-normative roles. Even before the pandemic, women had a long history of facing structural inequities in the workplace and at home. Such inequities are fueled by implicit biases, expectations, and stereotypes. The fallout from the COVID-19 pandemic worsened gender inequities. For women, it disproportionately increased domestic obligations and it had a disproportionate effect on female-dominated occupations—threatening to roll back decades of progress.

This Article will discuss the problem of gender inequity in the workplace, the …

Welcome To The Land Of Trademark Cancellation––Where Not All Fraud Is Created Equal, Barbier, Janelle

Santa Clara High Technology Law Journal

The intellectual property community is buzzing about a recent decision by the U.S. Court of Appeals for the Federal Circuit handing down a ruling on trademark cancellation under the Lanham Act. A divided panel grappled with whether the Agency had authority to cancel a trademark registration as a punishment for filing a false declaration. The majority held that the Agency was precluded from canceling the registration as a remedy for fraud unrelated to the issuance or maintenance of that mark. However, the dissent took aim at the majority’s reasoning, making a compelling argument that green- lighting any type of fraud …

The Major Questions Doctrine And The Threat To Regulating Emerging Technologies, Johnson, Walter G., Tournas, Lucille M.

Santa Clara High Technology Law Journal

Emerging technologies offer the potential to improve health and quality of life but also pose notable risks to safety, wellbeing, and equity. Law and technology scholarship posits that robust policy and regulatory strategies in the public interest are required to manage these complex benefits, risks, and uncertainties. At the same time, the Supreme Court in its recent jurisprudence appears eager to revitalize nondelegation legal norms, especially through the major questions doctrine—a shifting administrative law doctrine that increasingly appears to act as a clear statement rule when interpreting statutory grants of authority to regulatory agencies. This article argues the major questions …

Data Insecurity Law, Stein, David

Santa Clara High Technology Law Journal

By broad consensus, data security laws have failed to stem a rising tide of data breaches. Lawmakers and commentators blame these failures on some combination of underenforcement and the laws failure to recognize the full range of data breach harms. Proposed solutions would augment or expand existing data security laws.

These proposed solutions share a fatal flaw: they are rooted in traditional theories of deterrence by punishment. Data security laws come in three forms: duties to protect data, duties to notify consumers after a breach, and post-breach remedies. Almost every data security law is enforced through sanctions, most of which …

Remedies For Universal Service Funding Compassion Fatigue, Frieden, Rob

Santa Clara High Technology Law Journal

Nearly every nation in the world has a government mandated program aiming to make telecommunications service more widely available and affordable. Universal service funding subsidies have garnered popular support largely based on the shared view that society and individuals benefit from progress in achieving ubiquitous and affordable access, initially to voice telephone service. Technological developments and changes in consumer requirements have generated support for expanding the universal service mission to include broadband access to the Internet, and to identify a growing number of subsidy beneficiaries, now including schools, libraries, healthcare facilities, telephone companies operating in high-cost areas, and people with …

Reconceptualizing Conception: Making Room For Artificial Intelligence Inventions, Villasenor, John

Santa Clara High Technology Law Journal

Artificial intelligence (AI) enables the creation of inventions that no natural person conceived, at least as conception is traditionally understood in patent law. These can be termed “AI inventions,” i.e., inventions for which an AI system has contributed to the conception in a manner that, if the AI system were a person, would lead to that person being named as an inventor. Deeming such inventions unpatentable would undermine the incentives at the core of the patent system, denying society access to the full benefits of the extraordinary potential of AI systems with respect to innovation. But naming AI systems as …

Finding Happiness In The Law: Lifelong Learning As A Path To Meaning And Purpose, Mamaysky, Isaac

Santa Clara Law Review

We begin with the premise that the happiest and most fulfilled attorneys are those who live a life of meaning and purpose. While many in the legal profession have achieved this goal, many others are unsatisfied with their career trajectories but feel, for a variety of reasons, that they aren’t empowered to make a change. Unfortunately, study after study finds that many attorneys are stressed and unhappy with their professional lives, and would even leave the law entirely if they could.

The Article argues that these attorneys have a far more dynamic set of options than simply leaving the profession …

Remote Law: The Great Resignation, Great Gigification, Portable Benefits, And The Overdue Reshuffling Of Work Policy, Lobel, Orly

Santa Clara Law Review

The shift to widespread remote work in 2020 during the COVID-19 pandemic accelerated changes to the labor market, including flexibility of time, place, and nature of traditional office jobs, and a steep rise in gig economy work. As vaccines became available and employers began to require their employees to return to in-person work, many employees instead chose to move to jobs with more competitive pay, more flexibility, and better remote work options. Now, law and policy must evolve to address this changing labor market, including the uncertainties and risks created by remote work. This Article identifies inequities that have deepened …

Auris Health, Inc. V. Intuitive Surgical Operations: A New “Rigid Rule” For Patent Obviousness, Moawad, Jake

Santa Clara High Technology Law Journal

AURIS HEALTH, INC. V. INTUITIVE SURGICAL

OPERATIONS:

A NEW “RIGID RULE” FOR PATENT OBVIOUSNESS Auris Health, Inc. v. Intuitive Surgical Operations, Inc.,

32 F.4th 1154 (Fed. Cir. 2022)♦

Federal Circuit Declines To Find Patent Claims Indefinite For Broad Descriptive Words (And An Ode To 1l Civil Procedure), Barbier, Janelle

Santa Clara High Technology Law Journal

FEDERAL CIRCUIT DECLINES TO FIND PATENT CLAIMS INDEFINITE FOR BROAD DESCRIPTIVE WORDS (AND AN ODE TO 1L CIVIL PROCEDURE)

Niazi Licensing Corporation v. St. Jude Medical S.C., Inc., 30 F.4th 1339 (Fed. Cir. 2022)♦

A Proposed Analytical Framework For Resolving An Intra-Court Split On Claim Construction Ambiguity, Perez, Erik I.

Santa Clara High Technology Law Journal

The Federal Circuit was created to ensure patent law consistency by reducing inter-circuit splits.1 For decades, the Federal Circuit has oscillated between two standards associated with claim construction. This Article attempts to explain, analyze, and propose a solution to the intra-court split on claim construction. Part I examines the historical overview of patent litigation. This section briefly describes patent document sections, protectable patent rights, and patent interpretation shifts, from relying on the patent’s specification, to the patent’s claim. Part II examines current patent law. This section briefly describes how patent claims are interpreted and what role the specification aids in …

A Reconceptualization Of Website Accessibility Under The Ada: Resolving The Inter-Circuit Conflict Post-Pandemic, Lazar, Jonathan, Ferleger, David

Santa Clara High Technology Law Journal

The federal circuit courts of appeals are in conflict over whether Title III of the Americans with Disabilities Act requires public accommodations’ websites to be accessible to people with disabilities. Some courts consider websites themselves to be a covered “place of public accommodation.” Others conclude that websites are not covered at all. The predominant view is that a website must be accessible if it has a “nexus” to a physical public location. However, the “nexus” requirement has been problematic from the start and its weaknesses have been particularly exposed during the COVID-19 pandemic. The pandemic exposes a deep mismatch between …

Dark Systems: Reprogramming Artificial Intelligence Regulations To Promote Fairness And Employment Nondiscrimination, Wennagel, Robert

Santa Clara High Technology Law Journal

Automated decision-making (“ADM”) systems, whether deploying artificial intelligence, machine learning, or other algorithmic processes, have become ubiquitous in modern life, but their use is often unnoticed or invisible to society at large. Currently no federal laws require notice or disclosure to individuals when an ADM is used to collect their data, evaluate them, or make determinations about their lives. This is particularly concerning for the employment relationship because notice and transparency are essential for personal privacy, and the surreptitious use of ADM systems deprives applicants and employees of the ability to understand employers’ decision-making processes and to seek redress under …

Dragonfly Is Watching You: Artveillance And The Legal Issues Implicated, Yang, Sydney

Santa Clara Journal of International Law

Art law as a practice area can seem innately contradictory. Indeed, at first glance “art” and “law” are concepts that should be on the opposite ends of the spectrum. While art is all about unleashing your imagination and thinking out of the box, law may seem more rigid and orderly as it focuses more on the structured legal system and the enforcement of law by social and governmental institutions. As the art market became more complex and sophisticated in the 20th century, art law has developed into a discrete and increasingly recognized legal field despite the fact that it is …

A Regulatory Back Door: General Prohibition Ten And America’S National Security, Ramachandran, Vilas

Santa Clara Journal of International Law

American leadership in innovation requires, among other things, an export control regime that adapts to the realities of trade in the twenty-first century. The United States understands that the importance of American leadership in innovation reaches far beyond a theoretical debate about American hegemony; it has implications for the national security of the United States. However, Section 736.2(b)(10) of the Export Administration Regulations, known as General Prohibition Ten, creates vulnerabilities that jeopardize the national security of the United States while also adding unnecessary costs to American exporters. General Prohibition Ten makes it impossible for an American exporter to take control …

Alba And Unasur: Back To The Future?, Porrata-Doria, Jr., Rafael A.

Santa Clara Journal of International Law

This essay discusses efforts at creating a unified Latin American region through the lens of different integration attempts. Part I briefly examines MERCOSUR and the Andean Group and how these two efforts failed to achieve promises made under the free trade model that grew under the Washington Consensus. Structural problems and changing political tides left these two groups unsuccessful, and ultimately the election of populist leftwing presidents in Argentina, Brazil, and Venezuela ushered in a new model of integration intended to increase the economic development of Latin America in an equitable fashion. Despite their different ideologies and missions, both Alianza …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Sturm, Susan

Santa Clara Law Review

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must also collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues that these seemingly contradictory practices can be brought together through the theory and action of paradox. …

Growing Number Of Leadership Programs And Courses Supports Professional Identity Formation, Teague, Leah

Santa Clara Law Review

Through service and leadership, lawyers influence people and impact organizations and communities. Law students need to be aware of their opportunity for influence as part of their professional identity and they need to be prepared for the obligations of service that accompany the privilege of acquiring a law degree. The number of law schools with leadership development courses and programs has grown rapidly over the last ten years to: encourage law students to embrace their obligation to serve clients and society; better equip law students for positions of leadership and influence (including building relationships with clients); and inspire them to …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Short, Aric K.

Santa Clara Law Review

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Academic Leadership Is A Full-Contact Sport: Reflections From A Law School Dean, Rooksby, Jacob H.

Santa Clara Law Review

Leadership in any setting is hard, often physically as well as emotionally. Academic leadership requires a full-dimensional, mind-body-soul effort that uniquely calls upon one’s baseline character, positionality, and preparation for leadership. Our willingness and ability to read the word as we also read the world combine to shape our approach and range as leaders. And ultimately, our legacy is our imprint on people. This article shares the views of a law school dean on how life experiences, leadership lessons, and book learning intertwine to inform our humanity and charter our influence on people and organizations.

Leadership To Address Implicit Bias In The Legal Profession, Polden, Donald J., Anderson, Jenna M.

Santa Clara Law Review

This Article discusses the problem of implicit bias within the legal profession; why its persistence impedes the work that lawyers do; and the need for leaders to take steps to recognize, understand, and ameliorate it. Implicit biases, also referred to as unconscious biases, are prejudices that people have, but are unaware of their existence. These biases act as mental shortcuts based on known stereotypes and social norms that cause people to make decisions that favor one group to the detriment of another. Even though the United States has laws prohibiting discrimination on the basis of race, religion, gender, and disability, …

Change Leadership And The Law School Curriculum, Heminway, Joan Macleod

Santa Clara Law Review

Change is ubiquitous, and lawyers, as trusted advisors to individuals and organizations, must acknowledge and address change. Moreover, as essential, everyday leaders in their many capacities (professional, community-related, and personal) they often find themselves leading change by design or by chance. Remarkably, however, lawyers have little awareness of or training in change leadership, long a mainstay in business management education and literature. Drawing from both this business academic and practice literature and the emergent literature on lawyer leadership, this article briefly makes a case for the purposeful teaching of change leadership across the law school curriculum.

Teaching And Assessing Active Listening As A Foundational Skill For Lawyers As Leaders, Counselors, Negotiators, And Advocates, Gustafson, Lindsey P., Short, Aric K., Hamilton, Neil W.

Santa Clara Law Review

Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that …

Symposium On Lawyers, Leadership, And Change: Addressing Challenges And Opportunities In Unprecedented Times, Polden, Donald J.

Santa Clara Law Review

No abstract provided.

Original Idea Or Illegal Copying? Video Game Copying In China And Its Effects On The U.S. Video Game Industry, Future Steps For U.S. Developers And Publishers, Wang, Michael

Santa Clara High Technology Law Journal

While China has been hearing more cases and trying to limit the “reskinning” of many popular video games published by U.S. and other foreign companies, China’s copyright law is too restrictive and does not consider the multitude of precedent as to how the industry has interpreted copyright regulation for video games. China’s copyright law sets such a high bar for originality that companies can create games with similar characters having similar abilities and mechanics, but still not violate China’s copyright laws. Chinese game companies have attempted to create mobile versions of popular games in order to make quick profits as …

The Role Of Artificial Intelligence In Pushing The Boundaries Of U.S. Regulation: A Systematic Review, Gutierrez Gaviria, Carlos Ignacio

Santa Clara High Technology Law Journal

Artificial Intelligence’s (AI) growing catalog of applications and methods has the potential to profoundly affect public policy by generating instances where regulations are not adequate to confront the issues faced by society, also known as regulatory gaps. The objective of this article is to improve our understanding of how AI influences U.S. public policy. It does so by systematically exploring, for the first time, this technology’s role in the generation of regulatory gaps. Specifically, it addresses two research questions:

1. What U.S. regulatory gaps exist due to AI methods and applications?

2. When looking across all of the gaps identified in the …

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The Telephone Consumer Protection Act Of 1991: Adapting An “Odd” Law, Blasing, Marissa J.

Santa Clara Law Review

The Telephone Consumer Protection Act (“TCPA”) was introduced in 1991 before the rise of the cell phone, text messages, and broadband internet. It placed restrictions on then-contemporary technology used to reach consumers in an automated way and its primary purpose was to protect consumer’s privacy interests and public safety. Yet, it has proven to be an odd and increasingly outdated law. The federal government has made a good-faith effort to maintain the TCPA’s relevancy. However, evolving technology and inconsistent interpretations of the law’s fundamental elements have resulted in harm to consumers and businesses. During the COVID-19 pandemic, the law also …