Law Commons^™

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

Faculty Publications

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

"The Rule” And The Constitution: Witness Exclusion And The Right To A Public Trial, Stephen E. Smith

Faculty Publications

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. …

United States V. Allen And Judicial Review Of Early Pandemic Courtroom Closures, Stephen E. Smith

Faculty Publications

Trial court judges in 2020 were faced with a remarkable new problem. They were asked to accommodate both public health concerns (preventing trial participants, jurors, and spectators from contracting COVID-19) and criminal defendants’ Sixth Amendment right to a public trial. As courts of appeal begin their review of cases alleging violations of the Sixth Amendment’s right to a public trial arising during the early pandemic, they should be careful to consider conditions as they were at the time. We have learned much about COVID-19 and its management since then. But reviewing courts should not demand that trial courts possess public …

Redefining Progress And The Case For Diversity In Innovation And Inventing, Colleen Chien

Faculty Publications

In the United States, women represent 50% of the workforce, but only 27% of STEM workers and 13% of inventors. This article surveys the scientific literature to make the empirical case for diversity in innovation and inventing, finding a growing body of research to show how diverse innovators expand the reach, quality, and quantity of innovation. It then surveys the history of patent law to make the legal case for prioritizing diversity in inventing, and for expanding conventional notions of “progress” in the patent system to include the promotion of a diverse set of innovators, rather than just innovation. It …

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 …

The Inequalities Of Innovation, Colleen Chien

Faculty Publications

Over the last few decades, the United States has become more innovative, but the gains have been distributed unequally. In 2020, over 50% of new U.S. patents went to the top 1% of patentees, and more than 50% of all patents of U.S. origin were generated by just five states, all coastal. Less than 13% of inventors were women. The economic, geographic, and demographic concentration of innovation highlight how the intersections between two traditionally discrete topics—innovation and inequality—have become increasingly relevant. But rather than any single inequality, this Article argues, multiple inequalities—of income, opportunity, and access—have relevance to innovation. Examining …

How Abortion Laws Do And Don't Work, Michelle Oberman

Faculty Publications

The US Supreme Court appears ready to permit states to re-criminalize abortion. When the “law on the books” changes in the United States, what might the “law on the ground” look like? One answer lies in examining what happens today, in countries with restrictive abortion laws. Israel’s 1977 law bars abortion unless approved by a “pregnancy termination committee.” Drawing on interviews with committee members, lawmakers, advocates and others, this Article presents an ethnographic study of one country’s experience with a law criminalizing abortion.

Israel’s approach, limiting abortion access to those with qualifying conditions, is likely to be in play for …

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 …

Integrated Nonmarital Property Rights, E. Gary Spitko

Faculty Publications

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet, despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law governing …

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 …

What Will And Won’T Happen When Abortion Is Banned, Michelle Oberman

Faculty Publications

For the past fifty years, abortion opponents have fought for the power to ban abortion without little attention to how things might change when they won. The battle to make abortion illegal has been predicated on three nebulous assumptions about how abortion bans work. First, supporters believe banning abortion will deter it. Second, they hope bans will send a message about abortion—specifically, that abortion is immoral. And third, they expect bans to be competently implemented and enforced.

Drawing on empirical work from within and outside of the U.S., this Article offers an evidence-based assessment of each of these assumptions. Part …

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 …

Estimating The Earnings Loss Associated With A Criminal Record And Suspended Driver’S License, Colleen Chien, Alexandra George, Srihari Shekhar, Robert Apel

Faculty Publications

No abstract provided.

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 …

Dmca § 1201: Effective Or Outdated?, Yazzolino, Sydney

Santa Clara Law Review

Creators have gone digital and so have copyrights. To combat rampant piracy, creators flock to digital rights management systems (DRM), which control user access to copyrighted material through technology. However, DRM can be bypassed, and file-sharing networks make it easy to distribute and download illegal copies. In response, Congress enacted the Digital Millennium Copyright Act (DMCA), which makes it illegal to circumvent digital rights management technologies. This Note will analyze the effectiveness of the DMCA in the light of DRM technology in 2022. Both copyright holders and users of the copyrighted works have legitimate concerns over how digital copyrights are …

May The Force Majeure Be With You: The Impact Of Covid-19 On The Force Majeure Clause In International Commercial Contracts, Natarajan, Priyasundari

Santa Clara Journal of International Law

Covid-19 has complicated the application of force majeure (FM) as an excuse for contractual non- performance worldwide. FM clauses are fundamental in allocating risk in international commercial contracts between parties in the event of similar unforeseeable circumstances. This paper aims to investigate the unintended consequences of present-day FM laws by identifying the required elements of FM clauses, tracing the historical evolution of the law, and analyzing various jurisdictional approaches to interpreting FM. Furthermore, a comparative analysis of FM laws adopted in the United States, China, and Germany are used to establish the efficacy of FM clauses in international commercial contracts …