Law Commons^™

How A Changing Nation Is Fueling The Rise Of Trade Secret Litigation, David S. Almeling

David S. Almeling

Reports of pilfered trade secrets have grown increasingly common, and as recent studies demonstrate, trade secret litigation is on the rise. A 2010 study of the federal courts shows that trade secret litigation has grown exponentially while litigation in general has decreased. And a 2011 study of state courts shows that trade secret litigation is increasing at a faster rate than the rate of litigation in general. This essay asks: Why? Why is trade secret litigation more prevalent than ever? This essay posits — for the first time — explanations for the fact that trade secrets are increasingly important to …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher M. Holman

Christopher M Holman

The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic commentators …

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry Macintosh

Kerry L Macintosh

Infertile men and women have been using assisted reproductive technologies (“ART”) to conceive children since the first “test-tube baby” was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer. Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (“IVF”) and intracytoplasmic sperm injection (“ICSI”). They claim children conceived through ART face an increased risk of birth defects and other health problems. This Article examines …

Off The Roads & Out Of The Courts: Enter A Technology Fix For Drunk Driving, Nora J. Pasman-Green

Nora J. Pasman-Green

More than 1.4 million people are arrested annually for drunk driving, a crime that results in over 10,000 fatalities, more than 225,000 non-fatal injuries, and economic costs exceeding $50 billion. Drunk driving has become a major public health problem. This article traces development of the technology – the alcohol ignition interlock – which prevents drunk drivers from operating their vehicles. Ongoing research is underway to equip new automobiles with alcohol detection devices as standard equipment. The article explores the possibility of eliminating drunk driving once all vehicles are manufactured with pre-market interlocks installed. The article examines the impact of current …

No Place To Hide: First Amendment Protection For Geolocation Privacy, Theodore F. Claypoole

Theodore F Claypoole

The article analyzes the conflict between established Constitutional rights and evaporating privacy, by exploring technological changes that threaten anonymity and examining the First Amendment rights to be anonymous in association and speech.

A Virtual Property Solution: How Privacy Law Can Protect The Citizens Of Virtual Worlds, John W. Nelson

John W. Nelson

Privacy laws can protect virtual worlds and their users where property law cannot. Yet, legal scholars tend to ignore this power in favor of extending the virtual world metaphor in an effort to see the common law of property cover virtual worlds. This article explores how harms against the citizens of virtual worlds are harms against the victim’s mental state rather than his wallet. A review of the types of privacy law applicable to virtual worlds is provided, and those laws are applied to common virtual world scenarios resulting in harm. Finally, privacy law is offered as the most viable …

The Theorem Of The Social Value Of Inventions And The Happiness Machine Patent Syndrome, Nuno P. Carvalho

Nuno P Carvalho

The higher the social value of inventions the lower is the proportion of revenue that inventors are able to capture from their exploitation. This formulation is a hypothesis that stems from the observation of facts: most patents covering highly valuable inventions are subject to attacks that are difficult to explain. Those attacks have social causes, such as the monopoly stigma, the urge for penance and the idea of just price. Together they form the happiness machine patent syndrome. There is no evidence making a definitive case for the theorem above, and yet observation of the difficulties that have insistently haunted …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

Transborder Licensing: New Frontier For Job Creation, Andrea L. Johnson

Andrea L Johnson

Abstract: TRANSBORDER LICENSING: NEW FRONTIER FOR JOB CREATION http://ssrn.com/abstract=1675285 (September, 11 2010). Available at SSRN: http://ssrn.com/abstract=1675286 By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article makes the case that the best opportunities for creating new jobs in the United States will come from transborder licensing. Transborder licensing involves the creation and disposition of intellectual property (IP), such as copyrights, patents, trademarks, and trade secrets, across geographical boundaries. Licensing is a contractual agreement in which the owner of IP, called the licensor, agrees to permit or restrict the …

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover …

Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis S. Karjala

Dennis S Karjala

In the 1970=s, paying virtually no attention to the fundamental distinction between patent and copyright subject matter, Congress decided to protect computer programs as a Aliterary work@ under copyright law. As a result, a work of technology for the first time was consciously placed under the protective umbrella of a statute designed for art, music, and literature. While the vulnerability of computer program code to cheap and easy verbatim copying supplied a policy basis for Aanti-copy@ protection of code, courts often analogized these congressionally anointed Aliterary works@ to broadly protected novels and plays rather than thinly protected technical specifications and …

Optimal Fines For False Patent Marking, Thomas F. Cotter

Thomas F. Cotter

Since January 1, 2010, plaintiffs have filed over three hundred lawsuits under 35 U.S.C. § 292, the false patent marking statute. Fueled in large part by recent Federal Circuit case law embracing an expansive interpretation of the statute, this uptick has alarmed some observers, who fear that patent owners whose products bear the numbers of expired or inapplicable patents could be liable for, literally, billions of dollars in fines. While Congress and the courts consider various responses, one issue that has failed to attract much notice thus far is the question of how to calculate appropriate fines for marking violations. …

Legislative And Regulatory Strategies For Providing Consumer Safeguards In A Convergent Information And Communications Marketplace, Rob M. Frieden

Rob Frieden

Many ventures involved in information, communications and entertainment (“ICE”) industries have begun to expand their array of offered services. Technological convergence, digitization and the ability of the Internet to handle many different service types within a single bitstream make it possible for companies to offer “quadruple play” bundles of wireless and wireline telephony, video, and Internet access services. Financial and efficiency gains from vertical integration, and the search for new revenues to replace declining margins from maturing and newly competitive services, combine to create robust incentives for carriers to diversify. Diversification by ventures typically results in a single company providing …

Teens, Technology, And Cyberstalking: The Domestic Violence Wave Of The Future?, Andrew J. King-Ries

Andrew J King-Ries

While the legal system has made progress in combating domestic violence in the last 30 years, this progress is threatened by the intersection of two recent developments: teenagers normalizing unhealthy relationship patterns through pervasive use of technology and law enforcement’s inability to adequately respond to cyberstalking. The combination of these trends suggests America is producing a new generation of domestic violence batterers.

Recent studies document extensive use of technology—email, texts, social networking—by teenagers in their intimate relationships. Teenagers’ use of technology in their dating relationships often mimics relationship patterns present in violent adult relationships. Teenagers appear to be normalizing unhealthy …

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

The Not-So-Risky Business Of High-End Escorts And The Internet In The 21st Century, Robert R. Rigg

Robert R. Rigg

The advent of the Internet has changed the advertising and marketing of prostitution. This advertising and marketing has expanded greatly since the days of advertisements in newspaper classifieds, as seen in the movie, Risky Business. Today, Internet websites allow escorts much greater exposure.

This Article focuses on “high-end” escorts—escorts charging more than $500 per act or session. These service providers use the Internet in ways different than their low-end or mid-range counterparts. These high-end escorts have sophisticated websites, geared toward discretion—for both the provider and client.

Criminal law has begun focusing on escorts who use the Internet for advertising and …

The Law And Policy Of Online Privacy: Regulation, Self-Regulation Or Co-Regulation?, Dennis D. Hirsch

Dennis D Hirsch

The Internet poses grave new threats to information privacy. Search engines collect and store our search queries; Web sites track our online activity and then sell this information to others; and Internet Search Providers read the very packets of information through which we interact with the Internet. Yet the debate over how best to address this problem has ground to a halt, stuck between those who call for a vigorous legislative response and those who advocate for market solutions and self-regulation. In 1995, the European Union member states began to build a third approach into their data protection laws, one …

Domestic Violence And Spyware: How And Why Spousal Abuse Through Spyware Lies Outside The Protection Of California Law And A Proposal For Reform., Terese Laubscher

Terese E Laubscher

No abstract provided.

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is "real" to them. The …

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

The Knowledge Guild: The Legal Profession In An Age Of Technological Change. Review Of Richard Susskind, "The End Of Lawyers? Rethinking The Nature Of Legal Services", Paul F. Kirgis

Paul F. Kirgis

In "The End of Lawyers? Rethinking the Nature of Legal Services," Richard Susskind predicts that lawyers will suffer the fate of other guild-members—the artisans and craftsman of an earlier age—who saw their livelihoods wiped out by the potent mix of technological advancement and market forces that is modernity. He argues that the commoditization of legal services will make much traditional legal work unnecessary, dramatically reducing the demand for the one-on-one client service that has sustained the growth of the legal profession. This review challenges Susskind’s assumption that the work of lawyers is analogous to the work of the mechanical craftsmen …

Global Patenting And Its Effect On The Optimal Patent Term In The United States, Wesley D. Markham

Wesley D Markham

Patent globalization has arrived. Procedurally, the Patent Cooperation Treaty (PCT) makes it easy for firms to seek patent protection in many countries around the world. Substantively, the TRIPS Agreement has upped the level of patent protection available in these countries. One critically important issue is how patent law in the United States should respond to the increased globalization of the patent system. Specifically, should we reduce the patent term in the United States to compensate for the enhanced potential for patent exclusivity outside the United States? In this article, I develop a new metric which I call the “global patent …

What’S Privacy Got To Do, Got To Do With It: Why Information Should Drop Privacy And Seek Legal Love On Its Own Terms, Christopher E. Paxton

Christopher E Paxton

My paper argues that because the privacy interests at stake are so varied and so difficult to pin down, privacy law in the United States should shift away from privacy qua privacy and focus on the protection of information by adopting something akin to the European Union’s Data Protection and Database Directives.

The Case For Liberal Spectrum Licenses: An Economic And Technical Analysis, Thomas W. Hazlett

Thomas W Hazlett

The traditional system of radio spectrum allocation has inefficiently restricted wireless services. Alternatively, liberal licenses ceding de facto spectrum ownership rights yield incentives for operators to maximize airwave value. These authorizations have been widely used for mobile services in the U.S. and internationally, leading to the development of highly productive services and waves of innovation in technology, applications and business models. Serious challenges to the efficacy of such a spectrum regime have arisen, however. Seeing the widespread adoption of such devices as cordless phones and wi-fi radios using bands set aside for unlicensed use, some scholars and policy makers posit …

Interpretation And The Internet, Cameron J. Hutchison

Cameron J Hutchison

Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Matthew J. Wilson

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …