Science and Technology Law Commons^™

Fuel Efficiency: The Disconnect Between Environmental Policy And Tax Policy, John J. Marciano

ExpressO

The recent high gas prices in America have intensified the debate over oil and gas efficiency, use, and reserves. As the national average for a gallon tops $2.10, Congress and the President strive to find a common position to foster energy independence, protect the environment, and bolster the struggling economy.

President Bush’s energy policy and recent Senate and House bills have not contemplated their effects on the environmental state of our nation or its impact on the internal revenue code. In this time of uncertainty, energy independence and measured use of resources may be at odds, but must we stray …

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Where Do High Tech Commercial Innovations Come From?, Lewis Branscomb

Duke Law & Technology Review

On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market.

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Using Architectural Constraints And Game Theory To Regulate International Cyberspace Behavior, Van N. Nguy

San Diego International Law Journal

The debate over whether cyberspace can or should be regulated is essentially dead. This is the conclusion being taught in law schools today. The battle between Judge Frank Easterbrook and Professor Lawrence Lessig over "laws" and "horses", infamous among cyberspace legal scholars, became irrelevant when geographically-based governments began regulating Internet related activities. However, debate over how the Internet should be regulated continues. One way of framing this debate is in terms of deciding how to regulate behavior in cyberspace. Professor Lessig postulated four kinds of constraints regulate behavior: (1) social norms, (2) markets, (3) law, and (4) architecture. This comment …

A Distance Education Primer: Lessons From My Life As A Dot.Edu Entrepreneur, Linda C. Fentiman

ExpressO

No abstract provided.

Assessing The Options For Designing A Mandatory U.S. Greenhouse Gas Reduction Program, Robert R. Nordhaus, Kyle W. Danish

ExpressO

The United States faces growing pressure – both from domestic and international sources – to adopt a mandatory greenhouse gas reduction program to address the risk of global climate change. If policy-makers decide to establish such a program, they could end up creating an environmental regulatory regime of potentially unprecedented scope and impacts. A domestic greenhouse gas program could break ground in other ways too. Many policy-makers are considering innovative market-based approaches to regulation, including a multi-billion dollar economy-wide “cap-and-trade” program. In this paper, we: (1) set forth criteria for evaluating program options; (2) analyze the leading design options and …

Innovation, Regulation And The Selection Environment, Timothy F. Malloy, Peter Sinsheimer

ExpressO

This article focuses on the question of how regulation can be best designed to encourage technological innovation. Most scholarship in this area applies standard economic analysis to evaluate the impact of various forms of regulation on technological innovation. We reject that approach as too narrow, drawing instead upon principles of evolutionary economics. The basic premise of the article is that a firm’s technology choices—and its response to regulation intended to shape those choices—are influenced by other actors (such as suppliers and competitors), by external social and legal institutions (e.g., industry standards and norms) and by the firms' internal structure (such …

Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright And Competition Laws, Daniel J. Gifford

ExpressO

Abstract: This paper examines a number of government policies related to competition or intellectual property and affecting innovation for their welfare effects. Its premise is that the enhancement of social welfare is included among the purposes of competition and intellectual-property laws. It also assumes that innovation is a major contribution to long-run welfare. The paper then considers whether the policy initiatives under review furthered that purpose. First it considers U.S. and Canadian legislation designed to promote the entry of generic pharmaceutical products into the market and the response (or lack thereof) of both governments to the issue of regulatory delay …

Should Juries Hear Complex Patent Cases?, Jennifer F. Miller

Duke Law & Technology Review

A debate has arisen within the legal community over the existence and constitutionality of a so-called "complexity exception" to the Seventh Amendment. This exception would give a judge the discretion to deny a jury trial in a civil case if he or she feels that the issue is too complex for a jury to decide properly. This iBrief discusses the constitutionality of the complexity exception and the arguments for and against its implementation, with particular emphasis on the application of the exception to patent infringement cases. The iBrief then postulates that, while a blanket exception for patent infringement cases may …

When Nice Guys Finish First: The Evolution Of Cooperation, The Study Of Law, And The Ordering Of Legal Regimes, Neel P. Parekh

University of Michigan Journal of Law Reform

This Note adds to the scholarship in the area of Evolutionary Analysis and the Law (EA). EA is a paradigm that comments on the implications of evolution on the law. EA recognizes that many complex human behaviors that the law seeks to regulate have evolutionary origins that remain relevant today. This Note details how an understanding of the evolutionary basis of cooperation can bring about favorable revisions and reforms in the law.

Following a review of the scientific foundation of EA, this Note sets forth the proposition that humans have an evolutionarily developed tendency to cooperate, an idea that contrasts …

Los Tribunales Supremos Y Un Plan De Reingeniería Para La Corte Suprema De La Argentina, Horacio M. Lynch, María Clara Pujol

Horacio M. LYNCH

Versión depurada del informe REINGENIERÍA - Se exponen los objetivos, principios, criterios y finalidad de un proyecto de reingeniería en la Corte Suprema de la Argentina. REINGENIERÍA DE LA CORTE SUPREMA DE LA NACIÓN – Aspectos organizativos, funcionales y de gobierno del Alto Tribunal (Guía de trabajo) También se reflexiona sobre la repercusión sobre la labor institucional del Alto Tribunal así como también sobre otras cualidades como su independencia y especialmente en su transparencia.

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …

Ef Cultural Travel V. Explorica: The Protection Of Confidential Commercial Information In The American And Canadian Contexts, Suzanne White

Canadian Journal of Law and Technology

Commercial information, once relegated to paper files stored in cabinets, is now more likely to be in digital form, allowing a myriad of people to access its contents. These electronic storehouses can subsequently be stored on the Internet, providing a handy but some- what risky means of archiving valuable information. The United States Court of Appeals (1st Circ.) judgment EF Cultural Travel v. Explorica1 is a clear indicator of the way in which the advent of the Internet has completely changed the constructive meaning of the traditional ‘‘office file’’. This paper attempts to provide an under- standing of the scope …

Recalibrating Copyright Law?: A Comment On The Supreme Court Of Canada's Decision In Cch Canadian Limited Et Al. V. Law Society Of Upper Canada, Teresa Scassa

Canadian Journal of Law and Technology

The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada marks a second recent decision by the Court that has major implications for the development of copyright law in Canada. In Théberge v. Galerie D’Art du Petit Champlain, the majority of the Court provided a significant articulation of the balance to be struck between the rights of creators and the rights of users of copyright-protected works. In doing so, it embraced an approach to copyright typical of U.S. copyright law in its heyday. The unanimous Court in CCH Canadian makes it …

Electronic Commerce - A Practitioner's Guide Edited By Alan M. Gahtan, Martin P.J. Kratz, And J. Fraser Mann (Toronto: Thomson Carwell, 2003), Harmonie Roesch-West

Canadian Journal of Law and Technology

At a time when there seems to be no clear consensus on how to regulate electronic commerce comes a much-needed discussion of the many salient factors impacting the matter in Electronic Commerce: A Practitioner’s Guide. The collaborative effort includes works from several authors, compiled by Alan M. Gahtan, Martin P.J. Kratz, and J. Fraser Mann. This guide is an excellent first step in clarifying the issues and summarizing the precedents and relevant statute law to date. Although the target is an audience of law professionals, other e-commerce stakeholders, including business pro- fessionals, will find this collection useful.

Of Neighbours And Netizens, Or, Duty Of Care In The Tech Age: A Comment On Cooper V. Hobart, Robert J. Currie

Canadian Journal of Law and Technology

The focal point of this comment will be the recent judgment of the Supreme Court of Canada in Cooper v. Hobart, which appears to have made some significant changes to the elements of ‘‘duty of care’’, the foundational negligence concept. The Court framed its decision as refining duty of care analysis in order to properly deal with ‘‘novel claims’’ (i.e., those for which there is not an established or analogous duty of care in the existing case law). Given that the growth of elec- tronic commerce and Internet usage continues to spawn ‘‘novel’’ legal issues, Cooper is an appropriate starting …

Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant

All Faculty Scholarship

Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but over reliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

No Wonder They Dislike Us: Us Admonishes Europe For Protecting Itself From Microsoft's Predation, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

This short article applauds the European Commission for holding that Microsoft violated European competition laws, and admonishes the U.S. for criticizing the Europeans for protecting themselves from Microsoft's anticompetitive activity.

Gay And Lesbian Rights To Procreate And Access To Assisted Reproductive Technology, John A. Robertson

ExpressO

No abstract provided.

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

ExpressO

If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin.

Katz Is Dead. Long Live Katz, Peter P. Swire

Michigan Law Review

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that "the Fourth Amendment protects people, not places." The concurrence by Justice Harlan announced the new regime - court-issued warrants are required where there is an infringement on a person's "reasonable expectation of privacy." Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that …

Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr

Michigan Law Review

I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Michigan Law Review

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Patents And The Diffusion Of Technical Information, James Bessen

Faculty Scholarship

Does the disclosure requirement of the patent system encourage the diffusion of inventions? This paper builds a simple model where firms choose between patents and trade secrecy to protect inventions. Diffusion is not necessarily more likely with a patent system nor is the market for technology necessarily greater.

The Dmca Subpoena Power: Who Does It Actually Protect?, Thomas P. Ludwig

ExpressO

After years of legal maneuvering and courtroom skirmishes, the lines in the war between copyright holders and online copyright infringers have been clearly drawn. This conflict, which is poised to erupt in courts across the country, began decades ago with the birth of the Internet, which gave rise to a previously unparalleled opportunity for the dissemination, sharing, and enjoyment of every conceivable form of human expression. In addition to the benefits it has provided, the Internet also has given rise to copyright infringement on a global scale through the unauthorized posting and sharing of digital files. After years of unsuccessfully …

Invasion Of The Clones: Animal Cloning And The Potential Implications On The Future Of Human Cloning And Cloning Legislation In The United States, The United Kingdom, And Internationally, Adrienne N. Calhoun

ExpressO

Cloning is an area of science that changes daily; with advances being made constantly. This technology has caused great controversy in the United States and across the world. The issue has raised religious, ethical, technical and legal concerns. This paper is broken into four parts in order to best address the complex area of cloning technology. Part one will be a review of the history of the science of cloning and the history of animal cloning. Part two will be a discussion of the risks and benefits of cloning. Part three will address ethical and religious concerns surrounding human cloning. …

The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang

Duke Law & Technology Review

The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."