Digital Commons Network^™

Can Americans Resist Surveillance?, Ryan Calo

Articles

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Rulemaking As Legislating, Kathryn A. Watts

Articles

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.

Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …

Beyond Respectability: Dismantling The Harms Of "Illegality", Angélica Cházaro

Articles

Current pro-immigrant reform efforts focus on legalization. Proposals seek to place as many of the eleven million undocumented people in the United States as possible on a “path to earned citizenship.” However, these reform efforts suffer from a significant and underappreciated blind spot: the strategies used to advocate legalization harm those to whom the path to citizenship is barred—such as those with prior deportation orders, prior criminal convictions, and those who have yet to arrive. The problem begins with rhetoric: in making the push for legalization, immigrant rights groups have deployed imagery of the undocumented as law-abiding, hard-working, and family-oriented—the …

Leaky Covenants-Not-To-Compete As The Legal Infrastructure For Innovation, Robert W. Gomulkiewicz

Articles

The flow of information that naturally occurs when employees change firms plays a vital role in spurring innovation. Numerous law review articles have explored how covenants-not-to-compete (“non-competes”) can impede this important information flow. In 1999 Professor Ronald Gilson published an influential article concluding that California’s ban on non-competes led to the rise of California’s Silicon Valley and the comparative decline of Massachusetts’ high technology corridor known as Route 128. Despite the scholarly praise for California’s approach, most states enforce non-competes that are reasonable.

That may change, however, because many states are re-evaluating their non-compete laws to avoid Gilson’s cautionary tale …

Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan

Articles

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.

Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.

This Article proposes allowing what it terms “bounded access” to …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Articles

This brief narrative captures the second wave of “immigrant sanctuary”—a term used to describe the state and local government practice of restricting police departments from participation in immigration enforcement. The immigrant sanctuaries of the Homeland Security era are of unique significance given the ongoing dialogue among legal scholars regarding the significance of local law enforcement participation in national and domestic security administration after 2001, as well as the legal framework structuring cooperative security governance.

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check …

In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz

Articles

Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism.

The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that …

In Vitro Fertilization And The Law: How Legal And Regulatory Neglect Compromised A Medical Breakthrough, Steve P. Calandrillo, Chryssa V. Deliganis

Articles

The rise of assisted reproductive technology like in vitro fertilization (“IVF”) as a method of human reproduction represents a remarkable medical achievement. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics now “guarantee” a baby to clients who sign up.

But with successes come inevitable downsides. Everyone knows that the price tag is steep, but given the demand, relatively few individuals are deterred. More insidious are the increased birth-defect risks associated with reproductive technologies. For some time it was assumed that these risks were due to the fact that individuals …

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …

Can Law Students Disrupt The Market For High-Priced Textbooks?, Jane K. Winn

Articles

The Center for Computer-Assisted Legal Instruction (CALI) is a non-profit organization whose mission is to advance legal education through technological innovation and collaboration. With its eLangdell Press project, CALI publishes American law school textbooks in open access, royalty-free form, offering faculty authors compensation equivalent to what most law school textbook authors would earn in royalties from a traditional full-price publisher.

I am writing a new sales textbook and “agreements supplement” based on contemporary business practice that I will publish in open access form with CALI’s eLangdell Press. Relatively few other American legal academics publish in open access form, however, suggesting …

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other …

Creators, Innovators, And Appropriation Mechanisms, Sean M. O'Connor

Articles

Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who are …

The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor

Articles

The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems.

As the Supreme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

Articles

Ask any lawyer what an "amicus curiae" is, and you will be told that the term means "friend of the court." The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.

Yet, amici curiae—nonparties who are nevertheless advocates, who are not bound by rules of standing and justiciability, or even rules …

Flexoelectric Behaiour Of A Bimesogenic Liquid Crystal, R. Balachandran, V. P. Panov, Yuri Panarin, M. G. Tamba, G. H. Mehl, J. K. Song, J. K. Vij

Articles

The effective flexoelectric coefficient and flexoelectric polarization are investigated for a bimesogenic liquid crystal CBC11CB with a twist bend nematic phase (Ntb). The effective flexoelectric coefficients for CBC11CB in the ordinary nematic phase (N) are obtained to be much larger in comparison to conventional calamitics, and is almost twice higher for CBC11CB than that reported for another odd symmetric bimesogen. The flexoelectric polarization (Pf) in the N phase is found to be almost 2.5 times higher than in rod-like molecules. Additionally, Pf is obtained to be much larger in the Ntb phase than in the nematic phase

What Dna Can And Cannot Say: Perspectives Of Immigrant Families About The Use Of Genetic Testing In Immigration, Llilida P. Barata, Helene Starks, Patricia Kuszler, Wylie Burke

Articles

Genetic technologies are being implemented in areas that extend beyond the field of medicine to address social and legal problems. An emerging example is the implementation of genetic testing in the family petitioning process in immigration policy. This use of genetic testing offers the potential benefits of reducing immigration fraud and making the process more efficient and accessible for immigrants, especially those without documentation. However, little is known about the positive or negative impacts of such testing on immigrant families and their communities.

This study collected empirical data through family interviews to understand the experiences and attitudes of individuals who …

Ctc And International Research And Information Systems, Ruth Bird, Penny A. Hazelton, Kyle Brown

Articles

There is a long history of creating digital libraries of legal materials in general and of international legal materials in particular. This article highlights the history of several noteworthy examples of earlier digital libraries. It then describes the creation of the Cape Town Convention Academic Project digital library. Finally, the article applies lessons learned from the histories of the earlier libraries to analyse issues the Cape Town Convention library may face in the future.

Searching For The Borders, Penny A. Hazelton

Articles

I like to think about legal research as a complex jigsaw puzzle. The border pieces of the puzzle are the tasks we must complete in order to find an answer to a research problem. Once the border pieces have been fit together, the inside pieces must be found, then turned to fit into place—like knowing the details of how to select and effectively use the best research tool.

Let’s start with the border. Jigsaw puzzle veterans know it is always easier to fit the other pieces into place once the borders or edges have been found. But wait, with so …

Experience The Future: Papers From The Second National Symposium On Experiential Education In Law: Alliance For Experiential Learning In Law, Christine N. Cimini, Roberto L. Corrada, Myra Berman, Christine E. Cerniglia, Katherine R. Kruse

Articles

On June 13-15, 2014 the Second National Symposium on Experiential Educa­tion in Law took place in Greensboro, North Carolina. The Alliance for Experi­ential Learning in Law and Elon University School of Law hosted the symposium, with the support of Northeastern University School of Law. Presenters included professors and practitioners across multiple disciplines, in­cluding business, medicine, and architecture, and they shared their insights about the value of experiential education in their fields. Working from the Alliance for Experiential Learning in Law also presented their findings and distributed a set of working papers, which eventually culminated into this report. The report covers …

"Lead In The Far North" By Acceding To The Law Of The Sea Convention, Craig H. Allen

Articles

The theme for the 2015 Arctic Encounter Symposium was “Charting a Path to U.S. Leadership in the Far North.” I would like to begin my comments regarding U.S. leadership by reminding the audience that the Arctic is primarily a maritime domain and the fundamental rule set for international relations in the Arctic’s maritime domain is the 1982 U.N. Convention on the Law of the Sea (LOS Convention), a convention to which the United States remains the most conspicuous non-party.

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over …

Obergefell'S Squandered Potential, Peter Nicolas

Articles

No abstract provided.

Gayffirmative Action: The Constitutionality Of Sexual Orientation-Based Affirmative Action Policies, Peter Nicolas

Articles

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities—such as affirmative action policies—as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As …

Have Fun With Strategic Planning, Kellye Y. Testy

Articles

No abstract provided.

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

Articles

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

Electronic Cigarette Use Among Irish Youth: A Cross Sectional Study Of Prevalence And Associated Factors, Kate Babineau, Keisha Taylor, Luke Clancy

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No abstract provided.

Remote Risk Assessment: A Case Study Using Scope Software, Maria Chiara Leva, Farzad Naghdali, Noral Balfe, Marko Gerbec, Micaela De Michela

Articles

A thorough risk assessment requires input from experts in both safety analyses and the system under analysis. The cost of collecting together the required expertise for a short risk assessment may mean that for some small and medium enterprises (SME), the risk assessment is not deemed worthwhile or is completed using a generic form. This is despite the possible safety and performance benefits that can be identified via a thorough risk assessment. This paper presents a case study of a risk assessment on a rare periodic inspection & maintenance procedure planned by a LPG storage and distribution company in Slovenia. …

An Estimation Of Periconceptional Under-Reporting Of Dietary Energy Intake, Laura Mullaney, Amy C. Higgins, Shona Cawley, Anne Doolan, Daniel Mccartney, Michael J. Turner

Articles

Background The purpose of this cross-sectional study was to examine periconceptional misreporting of energy intake (EI) using the Willet food frequency questionnaire (WFFQ). Methods Women were recruited in the first trimester. Women completed a semi-quantitative WFFQ. Maternal body composition was measured using eight-electrode bioelectrical impedance analysis. Under-reporters were those whose ratio of EI to their calculated basal metabolic rate fell below the calculated plausible threshold for their physical activity category. Results The mean age was 30.1+5.3 years (n ¼ 524). The mean body mass index (BMI) was 25.4+5.6 kg/m2 , and 16.6% were obese (BMI 30.0 kg/m2 ). Under-reported EI …

Rethinking Standing In Patent Challenges, Michael J. Burstein

Articles

No abstract provided.