Law Commons^™

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M.L. Acri, Evan Weidner

Fordham Intellectual Property, Media and Entertainment Law Journal

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

The Future Of The Law On The Moon, Andrew Y. Lee

Journal of Air Law and Commerce

Outer space is rapidly becoming the domain for industrial-scale private-sector innovation and entrepreneurship. By developing and maturing the unprecedented technology for vertical landing and partial reuse orbital-class rockets, Space Exploration Technologies Corporation (SpaceX) has reduced the cost of access to orbital space by a staggering factor of magnitude, i.e., to one-tenth the previous rate. SpaceX is now on the cusp of launching its next-generation launch system called Starship to orbit. Starship is designed to be fully and rapidly reusable (land, refuel, and fly like airplanes) and expected to decrease the cost of access to orbital space to a level comparable …

Opening Pandora’S Box: Comparing Airline Passenger Protection In Korea And Europe In Light Of Global Treaties, Pablo Mendes De Leon, Jin Choi

Journal of Air Law and Commerce

Passenger protection will continue to ask for attention. The involved bodies and persons include policymakers and legislators, media, courts, compliance departments of airlines, law firms, consumer protection organizations, and airports. All parties must announce the conditions for such protection on their premises. In 2020, around 50% of all cases in the Netherlands, around 4,000 to 5,000 claims submitted to the lower courts, concerned passenger protection in aviation. In the Republic of Korea (Korea), these numbers are more limited but still significant; that is, around 2,500 claims form the aggregate number presented to Korean courts and Korea’s Consumer Protection Agency.

The …

Vfr Into Imc Through The Lens Of Behavioral Economics, Stephen O'Mahony, Felicity Deane, Kieran Tranter

Journal of Air Law and Commerce

Decision-making can be the difference between life and death in all types of aviation, but in general aviation (GA), where most of the flying is conducted as single-pilot operations, the decision-making of one individual becomes fundamentally important. It is critical to consider, first, why pilots make bad decisions that can ultimately lead to weather-related aviation accidents or incidents; and second, whether a better understanding of weather-related decision-making can inform regulations that will improve decision-making and consequently reduce the frequency of pilot-error accidents.

Behavioral economics (BE) aims to better understand individual decision-making to model decision-making pathways. As individual decision-making is central …

On Launching Environmental Law Into Orbit In The Age Of Satellite Constellations, Michael B. Runnels

Journal of Air Law and Commerce

In September 2022, the Federal Communications Commission adopted a new rule changing the deorbiting timeframe for satellites ending their missions in low Earth orbit from a twenty-five-year recommendation to a five-year legal requirement. The adoption of this rule, which seeks to cultivate a sustainable orbital environment for satellites, followed the United States’ July 2022 National Orbital Debris Implementation Plan, which tasked federal agencies with reviewing the effectiveness of their orbital debris-related rules. In the wake of the Supreme Court’s June 2022 West Virginia v. EPA decision, however, federal rulemaking in the area of orbital debris may not survive judicial scrutiny …

From Geopolitics To Lunapolitics: A Response To Lee’S The Future Of The Law On The Moon, Andrea Harrington

Journal of Air Law and Commerce

No abstract provided.

Commentary For The Journal Of Air Law And Commerce On The Article By Andrew Lee Entitled The Future Of The Law On The Moon, Stephan Hobe

Journal of Air Law and Commerce

No abstract provided.

Commentary: Lunar Court Operational And Constitutional Considerations, Megan Sieffert

Journal of Air Law and Commerce

No abstract provided.

Flying Towards Extinction: The Role Of The Aviation Industry In Perpetuating International Wildlife Trafficking, Isabelle Dominguez

Journal of Air Law and Commerce

In the past sixty years, the world has developed significant concern for burgeoning environmental issues. Starting in the 1960s, governments, industries, and the public have embraced efforts to set standards for public and private actors in areas of environmental concern. Particularly, increased globalization has led to an increase in the trade of wildlife and its products, including endangered species.

Unregulated wildlife trade implicates various issues, such as conservation concerns, the spread of diseases, and even funding for criminal organizations. While sovereign governments work independently and together to combat wildlife trafficking and its effects, current law leaves significant gaps in the …

Crash Landing: The Airline Industry’S Failing Efforts To Remedy Its Sexist And Discriminatory Practices Towards Flight Attendants, Elise Gonzalez

Journal of Air Law and Commerce

Since the deregulation of the airline industry, flight attendants have become the friendly faces and hallmark of airline brands across the globe. However, airlines went to unconstitutional heights to ensure that flight attendants looked, behaved, and acted in compliance with conservative and outdated notions about gender and sexuality. Piece by piece, the airline industry’s strict and misogynist policies that regulated female flight attendants’ appearance were declared a violation of Title VII of the Civil Rights Act; however, the sexist policies and attitudes maintain a pervasive and insidious presence in the modern airline industry.

Moreover, the airline industry’s dress and appearance …

The Drone Star State: How A Challenge To Texas Drone Law Became The Latest Battleground Between The First Amendment And The Right To Privacy, Edward W. "Ted" Tooley

Journal of Air Law and Commerce

Texas is unconstitutionally infringing upon the First Amendment in the form of its overly restrictive drone regulations. While the state originally set out to create a robust privacy law providing maximum protection to its citizens, its overbroad statute instead produced the latest constitutional conflict between two of our nation’s oldest and most sacred rights. For almost a decade, Texas drone law stood unchallenged, garnering the state a reputation as arguably the least friendly jurisdiction for drone journalism. These regulations, however, have never been more vulnerable. There is a constitutional challenge unfolding in federal district court that, if successful, will redefine …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Deregulating Consumers From The Airline Industry—Dot’S Proposed Rule In Response To U.S. Airlines’ Refusal To Refund Unused Tickets During Covid-19, Alicia L. Hinton, Diana Hyunjin Malcolm

Journal of Air Law and Commerce

The COVID-19 pandemic has resulted in significant delays and cancellation of airline tickets without proper refunds to consumers by U.S. airlines. In response to an unprecedented number of consumer complaints, in August 2022, the Department of Transportation (Department or DOT) proposed new rules regarding airline ticket refunds and consumer protections.Does this rule go far enough?

This article provides a summary of the events and policy changes leading up to the Airline Deregulation Act (ADA) of 1978 and challenges the scope of federal preemption over the field of airline regulation that has created a boon to air carriers while essentially eliminating …

Non-Governmental Organization (Ngo) Participation In Civil Aviation Policy And Decision Making, Goran Petrović

Journal of Air Law and Commerce

This article discusses the role and influence of non-governmental organizations (NGOs) in civil aviation. These organizations represent a way for united citizens to realize some of their global (national) interests, that is, to realize their ideals. NGOs participate in the work of international institutions and cooperate with specialized UN agencies. For the consideration of civil aviation NGOs, which have global coverage, the relationship and influence they achieve in relation to the International Civil Aviation Organization (ICAO) as a specialized agency of the UN is important. The participation of certain NGOs in the work of the Air Navigation Commission (ANC) as …

The Airline Pilot Shortage: A Result Of Age Discrimination Or Excessive Training Requirements?, Katherine Hancock

Journal of Air Law and Commerce

In its relatively short history, public air travel has seen its fair share of airline pilot shortages. Before the COVID-19 pandemic, the industry was facing yet another. There was virtually no part of the airline industry untouched by the pandemic, and pilot supply was no exception. As an attempt to mitigate profit loss, airlines offered pilots early retirement packages. When air travel returned to pre-pandemic numbers earlier than expected, airlines struggled to fill cockpit seats, which was a major factor in causing the extensive flight cancellations and delays in 2022.

Legislators sought to alleviate the issue by raising the federally …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Aircraft Leasing—How To Comply With The Regulations And What Happens When You Don’T, David T. Norton, Gregory J. Reigel

Journal of Air Law and Commerce

The Federal Aviation Administration’s (FAA) increased emphasis on investigating improper leasing/illegal charter presents a challenge for aircraft operators. Understanding the regulatory requirements related to aircraft leasing is critical for operators to ensure their aircraft operations are compliant. Equally important is the need for aircraft operators to understand how the FAA exercises its oversight when it investigates alleged improper leasing/illegal charter operations, the consequences to which an aircraft operator may be subject in the event of non-compliance, and how an operator who is the target of such an investigation may respond to and/or work with the FAA to successfully resolve the …

Hot Topics And Current Issues Related To Aircraft Ownership, Cost Sharing, And A Case In Point If The Law Is Not Followed, Katherine Staton

Journal of Air Law and Commerce

This paper will explore the issues encountered when multiple users and/or entities purchase or sell an aircraft for business or personal use, which commonly involve the navigation of and compliance with Federal Aviation Administration (FAA) and Internal Revenue Service (IRS) regulations and accompanying federal statutes. This paper will also address the ownership of aircraft by multiple individuals and/or entities, and then operations under various ownership structures. Where multiple aircraft owners are involved, the utilization of dry leases, time sharing agreements, interchange agreements, and co-owner/joint-ownership agreements may be used to navigate FAA and IRS regulations and rules. Also, co-owning an aircraft, …

Autonomous Archaeological Authority: The Future Of Drone Use And Privacy Laws In Cultural Heritage Preservation, Kara Anderson

Journal of Air Law and Commerce

Since ancient times, humanity has placed high value on natural and cultural phenomena, with Philo of Byzantium recording the first list of the “Seven Wonders of the Ancient World” as early as 225 B.C.E. Similarly, modern world leaders continue to recognize the value of these and more sites through preserving them as United Nations Educational, Scientific, and Cultural Organization (UNESCO) World Heritage sites. With the advancement of drone technology, researchers now employ drones to aid preservation efforts since drones can enter dangerous and humanly-inaccessible spaces, provide detailed images of sites the human eye cannot see, and assist governments in identifying …

The Department Of Transportation’S Failures In Regulating Emotional Support Animals, Jillian Doughty

Journal of Air Law and Commerce

In the past decade, the number of emotional support animals being used to treat a wide array of mental and emotional disorders has multiplied exponentially. This increase has been met with mixed reactions in the context of air travel. While some passengers are thrilled to sit next to a dog on their flight, others are frustrated due to the belief passengers with emotional support animals are exploiting a loophole to travel with their pet for free. Regardless of the differing perceptions, emotional support animals are a valid, affordable way to treat mental health illnesses without incurring negative side effects associated …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

The U.K.’S ‘Appetite’ For Space: An Increased Craving!, Sarah Jane Fox

Journal of Air Law and Commerce

Launching into space was once the pursuit of super-power nations, who, during a period of international tensions, competed to be the first—the first into space and the first to the Moon. While the United Kingdom (U.K.) had a similar appetite it never achieved a space launch from its national soils, often thwarted by political and economic constraints. This said, the U.K. has played a key role, working alongside other nations in technological advancements related to space. This paper revisits the historical legacy of the U.K.’s space ventures and its space policies before comment is made to the current strategy …

On Who Should Pay When Orbital Debris “Trickles-Down” In A Tragedy Of The Low Earth Orbit Commons, Michael B. Runnels

Journal of Air Law and Commerce

In March 2023, NASA released the most rigorous and wide-reaching orbital debris analysis in the space law literature that provides a cost-benefit analysis of removing orbital debris from low Earth orbit (LEO), a region of the Earth’s environment with no environmental regulation. NASA contextualized the motivation in releasing this report as rooted in the exponential growth of the commercial satellite industry, noting that “the number of tracked and untracked debris in LEO is projected to grow . . . even if no new satellites are launched into space, yet launch traffic is likely to increase in the coming decade compared …

The Cape Town Convention Offers Registered International Interests Providing Maximal Security To American Lessees Of Aircraft, B. Patrick Honnebier

Journal of Air Law and Commerce

This paper focuses on the acquisition of aircraft by United States-based airlines. At present in the U.S., airlines are faced with a fierce competition, and to commercially survive, they keep advertising that they operate modern and safe aircraft. Since the beginning of aviation, there does not exist a fully state-owned “flag carrier” in the U.S. On the contrary, the commercial airlines market has always been in the hands of private undertakings. Traditionally, the airlines themselves have arranged the acquisition of their fleets of aircraft. For this purpose, they have to obtain loans from private banks and other non-governmental financial institutions. …

Navigating Through Cloudy Skies: The Montreal Convention & Article 17 “Accidents” Post-Moore, Elan Wilson

Journal of Air Law and Commerce

The Montreal Convention is a multilateral treaty that comprehensively regulates international air carriers. Specifically, Article 17 of the treaty allows passengers to recover against air carriers for injuries or deaths on international flights, so long as certain requirements are met. In Air France v. Saks, the Supreme Court held that “accident”—a controlling term in Article 17—describes an event that is external to the passenger and “unexpected or unusual.” Last year, in Moore v. British Airways PLC, the First Circuit purported to identify a split over what this language means. According to Moore, there are courts who (correctly) …

When Federal Standards Crash And Burn: The Need To Distinguish Aviation Product Liability Claims From In-Air Operations Cases, Olivia Cahill

Journal of Air Law and Commerce

If you are injured in an aviation disaster or lose a loved one in a plane crash, may you seek recovery under state law? Do federal regulations provide adequate opportunities to compensate aviation crash victims? These are questions few people think to ask themselves. A more common query is what entity regulates the more than 16 million flights that occur yearly in the U.S., and how do you know whether the aircraft you fly on are safe?

The tragic Boeing 737 MAX crashes initiated a federal oversight investigation into the Federal Aviation Administration (FAA). Industry whistleblowers revealed severe lapses in …

Delayed Flights And Delayed Rights: It Is Time For The United States To Follow The European Union’S Lead And Enact More Regulations To Protect Airline Passengers, Hannah Foote

Journal of Air Law and Commerce

Since Congress passed the Airline Deregulation Act of 1978, travelers have benefitted from airline deregulation through discounted prices and greater access to air travel, but these benefits have largely been offset by the reality that many airline passengers are unsatisfied with the airline industry’s customer service, or lack thereof. This Comment argues that the United States should follow the European Union’s lead and, in accordance with Regulation EC 261, require airlines to compensate passengers when their flights are delayed or canceled. The concentrated aviation industry has created a market that does not adequately protect airline passengers, and the courts have …