Digital Commons Network^™

Who Owns The Customer? The Emerging Law Of Commercial Transactions In Electronic Customer Data, Jane Kaufman Winn, James R. Wrathall

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The Information Revolution is changing the way commerce acted and value is defined within transactions. Before the Internet and "e-business" took center stage, "electronic commerce" meant electronic data interchange, just-in-time inventory systems, supply chain automation, and corporate reengineering.

But the rise of the Internet as a communications medium has coincided with a shift in management focus, from merely trying to improve the efficiency of business logistics systems to a more holistic perspective on improving customer relationships. Intangible assets such as intellectual property rights, human capital in the form of employee knowledge, and established relationships with customers and suppliers are playing …

A Circus Among The Circuits: Would The Truly Famous And Diluted Performer Please Stand Up? The Federal Trademark Dilution Act And Its Challenges, Xuan-Thao Nguyen

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Sometimes, nothing is more painful than the truth. Congress passed the celebrated Federal Trademark Dilution Act of 1995 (“the Act” or the “Dilution Act”) with great hope that it would create a uniform anti-dilution law, end forum shopping, and encourage trademark owners to build brand equity with more ease. Congress was overwhelmingly in favor the Act, and thus passed it with little debate, leaving behind a sparse congressional record. In its haste to pass the Act, Congress failed to address whether the Act extends to product design marks; whether the Act requires proof of actual economic harm, or if likelihood …

Limitation Of Liability, Craig Allen

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From the list of "problems" with the Limitation Act in the U.S. that are within the federal courts' power to resolve, I have elected to discuss three. Necessarily, the coverage of each problem will be brief. After a short summary of the Limitation Act's principal features, the essay examines the recurring confusion over the relevance of unseaworthiness in limitation actions. Second, it highlights the need to update the courts' choice of law doctrine for limitation issues. Finally, it turns to an issue that is only beginning to emerge, and one which the federal courts may yet save from idiosyncratic precedents …

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part Iv), Craig H. Allen

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No abstract provided.

Electronic Records And Signatures Under The Federal E-Sign Legislation And The Ueta, Robert A. Wittie, Jane K. Winn

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Federal legislation establishing legal parity between electronic records and signatures and their paper and ink counterparts was signed into law June 30, 2000, and became effective, at least for most purposes, on October 1. The Electronic Signatures in Global and National Commerce Act (E-SIGN or the Act) effectively sweeps away a myriad of anachronistic and inconsistent state and federal requirements for paper and ink documents and signatures. In so doing, E-SIGN eliminates many of the legal uncertainties that have surrounded the use of electronic media in commerce and should enable businesses and consumers alike to more fully realize the cost …

Making Xml Pay: Revising Existing Electronic Payments Law To Accommodate Innovation, Jane K. Winn

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Many businesses today are rushing to embrace "e-Business" technologies in a mad scramble to remain competitive. Only a few years ago, simply using email instead of faxes or phone calls, converting a purchasing system to EDI technology, or building a corporate Web site might have seemed like important advances in the use of new information technologies.

Businesses are now moving beyond such "electronic commerce" technologies and trying to integrate their disparate information systems and business processes into a comprehensive new "e-Business" structure. At the heart of this new model for business organization is the idea that information and resources should …

The Myth Of The Win-Win: Misdiagnosis In The Business Of Reassembling Nature, William H. Rodgers, Jr.

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This Article starts with a closer than customary look at the most serious obstacle to the ambitious campaign of environmental restoration that is the focus of this Symposium. That obstacle is the human brain.

The Article contends that human cognitive processes are marvelous designers of serviceable self-deceptions. In the war on nature that we witnessed in the twentieth century the most functional of these is the firm belief in a non-zero sum world. This is the conviction that gains from economic development could be enjoyed without sacrifice of the natural world.

This is a convenient, powerful, and serviceable myth although …

A Dangerous Supplement? Longshot Claims And Private Securities Litigation, Charles M. Yablon

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No abstract provided.

Copyright At The Supreme Court: A Jurisprudence Of Deference, Marci A. Hamilton

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No abstract provided.

The Enlightenment Case For Vouchers, John O. Mcginnis

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No abstract provided.

Development Of A Quality Control Procedure For Force Platforms, Jacinta Browne, Neil O'Hare

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A force platform is a technical method of quantitatively assessing balance indirectly. The use of force platforms in physiotherapy departments has become more prominent over the last few years. However, the main drawback in the use of force platforms is the lack of comprehensive calibration procedures, which casts doubt on the results obtained with these systems. Existing calibration tests are limited to testing the spatial accuracy of the force platform. This paper describes a comprehensive quality control test procedure which was developed. It is proposed that the developed quality control test procedure could be used to test all types of …

Thickness Variation Of Self-Processing Acrylamide-Based Photopolymer And Reflection Holography, F. O'Neill, Justin Lawrence, J. Sheridan

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There are many types of holographic recording material. The acrylamide-based recording material examined here has one significant advantage: it is self-processing. This simplifies the recording process and enables holographic interferometry to be carried out without the need for complex realignment procedures. However, the effect that the polymerization process has on the grating thickness must be examined. This question is fundamental to the material's use in holographic optical elements, as thickness variations affect the replay conditions of the produced elements. This paper presents a study of this thickness variation and reports for the first time the production of reflection holographic gratings …

Production Of A Signal By Irradiated Cells Which Leads To A Response In Unirradiated Cells Characteristic Of Initiation Of Apoptosis, Fiona Lyng, C. Seymour, C. Mothersill

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This study investigated the ability of medium from irradiated cells to induce early events in the apoptotic cascade, such as mobilization of intracellular calcium, loss of mitochondrial membrane potential and increase in reactive oxygen species, in cells which were never exposed to radiation. Medium from irradiated human keratinocytes was harvested and transferred to unirradiated keratinocytes. Endpoints characteristic of the initiation of apoptosis were monitored for a period of 24 h following medium transfer. Clonogenic survival was also measured. Rapid calcium fluxes (within 30 s), loss of mitochondrial membrane potential, increases in reactive oxygen species (from 6 h after medium transfer), …

Euroclicking And The Irish Sme: Prepared For E-Commerce And The Single Currency, Pierre Mcdonagh, Andrea Prothero

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There is much technological hype (see Gates, 1999) as to the consequences of operating within cyberspace (Gibson, 1994) in an e-commerce capacity, at a time of operationalising European economic union within "Euroland". Debates centre on the need to theorise cyberspace (Besser, 1995) and the individualisation offered from organisations in serving e-customers, both from business to business to consumer perspectives. There is however, limited investigation as to how small to medium sized enterprises (SMEs) are preparing for this electronic or euro transmogrification. This article seeks to redress this by providing insight into these issues and draws upon an empirical analysis of …

Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White

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My subject in this Essay is the relation between a text or other artifact and the tradition against which it acts. I want to begin by borrowing from a book that seems to me to represent a model-not the only model, of course, but a very good one-of a certain kind of cultural investigation. The book is Inventing Masks by Z.S. Strother, an art historian at Columbia University who specializes in African art. Its material subject is a set of face masks made by the Central Pende, an African people in what is now the Democratic Republic of Congo.

The Usury Trompe L'Oeil, James J. White

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This Article demonstrates how the interaction of a federal statute passed in 1864,1 a case decided by the Supreme Court in 1978,2 and modem technology has legally debarred every state legislature from controlling consumer interest rates in its state-but not from passing laws that appear to do so-and has politically debarred the Congress from setting federal rates to replace the state rates. As a consequence, the elaborate usury laws on the books of most states are only a trompe l'oeil, a "visual deception... rendered in extremely fine detail ... ." The presence of these finely detailed laws gives the illusion …

Phoebe's Lament (Symposium: Empirical Research In Commercial Transactions), James J. White

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Assume a bright hypothetical social scientist - call her Phoebe - who is completely ignorant of legal research as it is practiced in today's law schools. Phoebe might speculate about legal research as follows. First, she would note that the law schools are joined with and are the exclusive source of the practitioners of a profession. Second, she would note that commercial and legal actors rub up against and are influenced by the law in countless ways every day. Third, she might remark that this interaction occurs practically on the doorsteps of our law schools. Unlike anthropologists, who may have …

Due Process Rights Of The Second Parent In Child Protection Proceedings, Donald N. Duquette

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When one parent is charged with child neglect or abuse under MCL 712A.2(b)and the other parent is not an active participant in the abuse, is absent, or is not part of the same household, what process is due the second parent?' If the second parent comes forward and asks for custody, should he or she be able to get it, absent a finding of neglect or abuse as to that parent? Or is the child a ward of the Family Court, based on the misconduct or maltreatment of one parent so that the second parent is subject to the court's …

Linking The Visions, James Boyd White

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It is a major tendency of legal studies in our time to focus upon questions of general social policy, with argument centered on which theory or methodology ought to determine such matters. My own attention has been differently focused, on the nature and quality of legal thoughts itself, and of legal expression. It is to these matters that the work I do with the humanities – literature, classics, philosophy, and translation – many speaks.

Festschrift: Lee Loevinger, Layman E. Allen

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Lee Loevinger is well-known and recognized for his outstanding achievements as a Minnesota Supreme Court Justice, as Assistant United States Attorney General for Antitrust, and as a superb practicing attorney. Perhaps less appreciated are his extraordinary contributions to the intersection of law and science generally and more particularly to the nurturing of the application of computer technology to law in its infancy.

Commentary (Response To Article By H. David Rosenbloom), Reuven S. Avi-Yonah

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David Rosenbloom has delivered an important lecture on an important topic:' whether exploiting differences between the tax system of two different jurisdictions to minimize the taxes paid to either or both ("international tax arbitrage") is a problem, and if so, whether anything can be done about it in a world without a "world tax organization." As Rosenbloom states, international tax arbitrage is "the planning focus of the future,"2 and recently has been the focus of considerable discussion and debate (for example, upon the promulgation and subsequent withdrawal under fire of Notice 98-11).3 Rosenbloom's lecture is one of the first attempts …

Globalization, Tax Competition, And The Fiscal Crisis Of The Welfare State, Reuven S. Avi-Yonah

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This Article examines the increased use of tax incentives as weapons in the international competition to attract investment. Professor Avi-Yonah argues that the establishment of tax havens allows large amounts of capital to go untaxed, depriving both developed and developing countries of revenue and forcing them to rely on forms of taxation less progressive than the income tax. He points to social insurance programs, many of which are already on uncertain courses as aging populations imperil their fiscal health, as likely to bear the brunt of the revenue loss that tax havens cause. Professor Avi-Yonah contends that both economic efficiency …

Allocating The Judicial Power In A 'Unified Judiciary' (Restructuring Federal Courts), Evan H. Caminker

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Over the past half-century, federal courts scholarship concerning congressional control over the authority of Article III courts has focused predominantly on the question of jurisdiction: Which, if any, federal courts may or must be available to adjudicate which cases or controversies?' This preoccupation is unsurprising since most threatened or actualized congressional regulation over this period of time has concerned when and which federal courts would play a role in implementing the law of the land.2

The Baker [Baker V. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, And The Recognition Of Our Common Humanity: An Introduction And A Speculation, David L. Chambers

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Every. Vermonter seems to know about two recent decisions of the Vermont Supreme Court. In the first, the court struck down the system of local financing of public schools. Like similar decisions in many other states, the school financing case led to a struggle in the legislature and difficulties for legislators at election time. In the second and even more controversial decision, the court reached an outcome that no other state supreme court had ever reached: it held unconstitutional the state's marriage law on the ground that it inappropriately denied the legal benefits of marriage to same-sex couples. This decision, …

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

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It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil …

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

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No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

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I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …

An Essay On Texas V. Lesage, Christina B. Whitman

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When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard

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This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

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In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …