Law Commons^™

An Initial Examination Of Computer Programs As Creative Works, Trina C. Kershaw, Ralph D. Clifford, Firas Khatib, Adnan El-Nasan

Faculty Publications

Products from many domains (art, music, engineering design, literature, etc.) are considered to be creative works, but there is a misconception that computer programs are limited by set expressions and thus have no room for creativity. To determine whether computer programs are creative works, we collected programs from 23 advanced graduate students that were written to solve simple and complex bioinformatics problems. These programs were assessed for their variability of expression using a new measurement that we designed. They were also evaluated on several elements of their creativity using a version of Cropley and Kaufman’s (2012) Creative Solution Diagnosis Scale …

Spring 2021 Newsletter: The Docket, Emma Wood

Law Library Newsletter

Copy of the Spring 2021 issue of the UMass Law Library Newsletter, The Docket.

Feminist Perspectives On Disaster, Pandemics, And Intimate Partner Violence, Margaret Drew

Faculty Publications

The COVID-19 pandemic brought international awareness to the likelihood of increased abuse of those in abusive intimate partner relationships because of the forced confinement with their abusers (Bettinger-Lopez and Bro, A double pandemic: domestic violence in the age of COVID 19, Council on Foreign Relations. https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19, 2020). While this awareness was much discussed, assistance to survivors of abuse was limited because survivors often could not reach out for help, nor could advocates wishing to offer assistance safely reach in to advise them (Taub, A new Covid-19 crisis: domestic abuse rises worldwide. https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html, 2020). The ever-present influence of the …

Spring 2020 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Spring 2020 issue of the UMass Law Library Newsletter, The Docket.

Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy

Faculty Publications

This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.

Complicated Lives: A Look Into The Experience Of Individuals Living With Hiv, Legal Impediments, And Other Social Determinants Of Health, Margaret B. Drew, Jason Potter, Caitlin Stover

Faculty Publications

Those living with HIV continue to have challenges that extend well beyond their medical needs Public misconceptions surrounding HIV transmission and treatment have resulted in systemic and pervasive discrimination against those living with the disease. Common misconceptions include overly optimistic perceptions of the modern state of medical treatment, leading the uninformed to conclude that people living with HIV are minimally impacted by the disease, and misunderstandings regarding how the disease is transmitted from person-to-person, leading to stigma and social prejudice. Because of these misconceptions, three professors from the University of Massachusetts Dartmouth formed a community partnership to determine the unmet …

Fall 2020 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Fall 2020 issue of the UMass Law Library Newsletter, The Docket.

Fall 2019 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Fall 2019 issue of the UMass Law Library Newsletter, The Docket.

Spring 2019 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Spring 2019 issue of the UMass Law Library Newsletter, The Docket.

Queer Sacrifice In Masterpiece Cakeshop, Jeremiah A. Ho

Faculty Publications

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and …

Anthrogogy: Towards Inclusive Law School Learning, Rebecca C. Flanagan

Faculty Publications

At the time it was introduced, andragogy did offer benefits over “chalk and talk;” where most law students passively took notes while one student at a time actively engaged with their professor in a Socratic dialogue. While andragogy has sustained several modifications and revisions over the last fifty years, it does not reflect the life stage or life experiences that blur the boundaries of childhood and adulthood for over half the current student body in most law schools. Andragogy, designed as a teaching methodology for traditional adults seeking continuing education or to gain credentials for upward mobility in their current …

Fall 2018 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Fall 2018 issue of the UMass Law Library Newsletter, The Docket.

Truth Seeking: The Lenahan Case And The Search For A Human Rights Remedy, Margaret B. Drew

Faculty Publications

Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan …

Creativity Revisited, Ralph D. Clifford

Faculty Publications

The University of New Hampshire's Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ("AI") on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the "legal predictions [that were] right -- or wrong!" In …

Ferpa Close-Up: When Video Captures Violence And Injury, Richard J. Peltz-Steele, Kitty L. Cone

Faculty Publications

Federal privacy law is all to often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing …

Law As Instrumentality, Jeremiah A. Ho

Faculty Publications

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Spring 2017 Newsletter: The Docket, Emma Wood

Law Library Newsletter

Copy of the Spring 2017 issue of the UMass Law Library Newsletter, The Docket.

Fall 2017 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Fall 2017 issue of the UMass Law Library Newsletter, The Docket.

Services And Resources For People Living With Hiv/Aids In The Southcoast Of Massachusetts: “Can’T Get There From Here!”, Jason Potter Burda, Margaret B. Drew, Caitlin M. Stover

Faculty Publications

Fall River and New Bedford, two diverse and economically challenged cities in the Southcoast region of Massachusetts, are areas of substantial concern in the effort to reduce HIV incidence and to provide effective services for people living with HIV/AIDS in the Commonwealth. In these two communities, HIV disparately impacts marginalized populations, with particularly high infection and prevalence rates among men who have sex with men and injection drug users in comparison to other Massachusetts localities. This project used community engaged research principles to conduct a community assessment guided by the social determinants of health. The primary goal of this study …

Design Patent Infringement Needs A Free Expression Defense (La Infracción De Patentes De Diseño Necesita Una Defensa De Libre Expresión), Richard J. Peltz-Steele, Ralph D. Clifford

Faculty Publications

English Abstract: As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression.

Spanish Abstract: Las patentes de diseño se propagan en abundancia en el derecho de …

It’S Not Complicated: Containing Criminal Law’S Influence On The Title Ix Process, Margaret B. Drew

Faculty Publications

Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through decision making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This essay addresses change in light of campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay will …

Protecting Homeowners' Privacy Rights In The Age Of Drones: The Role Of Community Associations, Hillary B. Farber, Marvin J. Nodiff

Faculty Publications

Homeowners' notions of privacy in their dwellings and surroundings are under attack from the threat of pervasive surveillance by small civilian drones equipped with highly sophisticated visual and data-gathering capabilities. Streamlined rules recently issued by the Federal Aviation Administration ("FAA') have unleashed technological innovation that promises great societal benefits. However, the new rules expose homeowners to unwanted snooping because they lack limits on the distance drones may operate from residential dwellings or time of operations. Indeed, our society should not expect a federal agency to deal effectively with the widely diverse issues of drone technology facing the states, given the …

Keep Out! The Efficacy Of Trespass, Nuisance And Privacy Torts As Applied To Drones, Hillary B. Farber

Faculty Publications

The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.

We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new …

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele

Faculty Publications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …

Emerging Adults: A New Understanding Of Millennial Law Students, Rebecca C. Flanagan

Faculty Publications

The challenges facing emerging adults in law school can be some of the vexing for Academic Success professionals if these students are assumed to have the adult life experiences of prior generations of law students. However, their challenges can be some of the simplest to solve when Academic Success professionals are aware of trends in law school admissions and undergraduate education. Academic Success professionals have the tools to work with doctrinal or substantive professors to provide context to the difficulties students are experiencing with understanding class discussions.

International Legal Education And Specialist Certification (Year In Review), Richard J. Peltz-Steele, Marissa Moran, Diane Edelman

Faculty Publications

The American Bar Association (ABA) promulgates rules and regulations that apply to all United States law schools with ABA-accreditation and approval. Those rules apply specifically to schools offering programs leading to a J.D. degree. In August 2016, the ABA Council approved certain changes to the ABA Standards and Rules of Procedure for Approval of Law Schools, which became effective on August 9, 2016. The changes affected not only J.D. programs, but also study abroad programs offered by ABA member schools.

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

Faculty Publications

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Your Mission, Should You Choose To Accept It: Taking Law School Mission Statements Seriously, Irene Scharf, Vanessa Merton

Faculty Publications

A law school can best achieve excellence and have the most effective academic program when it possesses a clear mission, a plan to achieve that mission, and the capacity and willingness to measure its success or failure. Absent a defined mission and the identification of attendant student and institutional outcomes, a law school lacks focus and its curriculum becomes a collection of discrete activities without coherence.

Fall 2016 Newsletter: The Docket, Emma Wood

Law Library Newsletter

Copy of the Fall 2016 issue of the UMass Law Library Newsletter, The Docket.

Preventing Neonatal Abstinence Syndrome Within The Opioid Epidemic: A Uniform Facilitative Policy, Jeremiah A. Ho

Faculty Publications

The United States is currently in the midst of an opioid epidemic that has hit states in the southern New England regions particularly hard — with Massachusetts as one primary example. One of the many unfortunate results of the epidemic is a dramatic upsurge in cases of opioid dependency by expectant women that result in children born with Neonatal Abstinence Syndrome (NAS). NAS is a clinical syndrome that occurs when a newborn suffers withdrawal symptoms as a consequence of abrupt discontinuation of prenatal substance exposure. The expenses of treating and rehabilitating these drug-dependent newborns, predominantly shouldered by state taxpayers, are …