Digital Commons Network^™

Protecting Health Privacy In An Era Of Big Data Processing And Cloud Computing, Frank A. Pasquale, Tara Adams Ragone

Faculty Scholarship

This Article examines how new technologies generate privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values it is …

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

The Emergence Of New Corporate Social Responsibility Regimes In China And India, Shruti Rana, Afra Afsharipour

Faculty Scholarship

In an era of financial crises, widening income disparities, and environmental and other calamities linked to corporations, calls for greater corporate social responsibility (“CSR”) are increasing rapidly around the world. Though CSR efforts have generally been viewed as voluntary actions undertaken by corporations, a new CSR model is emerging in China and India. In a marked departure from CSR as it is known in the United States and as it has been developing through global norms, China and India are moving towards mandatory, not voluntary, CSR regimes. They are doing so not only in a time of great global economic …

Probiotics: Achieving A Better Regulatory Fit, Diane E. Hoffmann, Claire M. Fraser, Francis Palumbo, Jacques Ravel, Virginia Rowthorn, Jack Schwartz

Faculty Scholarship

In 2007, the National Institutes of Health (NIH) launched the Human Microbiome Project (HMP), a $150 million initiative to characterize the microbial communities found at several different sites on the human body and to analyze the role of these microbes in human health and disease. Many lines of research have demonstrated the significant role of the microbiota in human physiology. The microbiota is involved, for example, in the healthy development of the immune system, prevention of infection from pathogenic or opportunistic microbes, and maintenance of intestinal barrier function. The HMP findings are helping us understand the role and variation of …

Infusing Technology Skills Into The Law School Curriculum, Simon Canick

Faculty Scholarship

Legal education has never considered technological proficiency to be a key outcome. Law professors may debate the merits of audiovisual teaching tools: do they work when they should?; do they facilitate learning objectives or are they just toys?; whom should they call when something breaks?; and so on. Teachers use course management sites like TWEN and Blackboard to share information and manage basic course functions. Many fear that laptops and other devices distract students in class, and some institute outright bans. Among many law teachers, technology is warily accepted, but only for the purpose of achieving traditional educational objectives.

What …

The Merchants Of Moocs, James Grimmelmann

Faculty Scholarship

A loose network of educators, entrepreneurs, and investors are promoting Massive Open Online Courses as an innovation that will radically disrupt higher education. These Merchants of MOOCs see MOOCs' novel features—star professors, flipped classrooms, economies of scale, unbundling, and openness—as the key to dramatically improving higher education while reducing its cost.

But MOOCs are far from unprecedented. There is very little in them that has not been tried before, from 19th-century correspondence courses to Fathom, Columbia's $25 million dot-com boondoggle. Claims of disruption look rather different when this missing context is restored. This essay examines some common arguments about what …

Indistinguishable From Magic: A Wizard's Guide To Copyright And 3d Printing, James Grimmelmann

Faculty Scholarship

3D printing is a technology of such surprise and wonder that it verges on the magical. But what if 3D printers actually were magic? How would copyright law treat the wizards who used them? This Comment uses the magical analogy to make familiar doctrines strange, and a strange technology familiar.

This Comment was prepared as an invited comment on Kyle Dolinsky's "CAD’s Cradle: Untangling Copyrightability, Derivative Works, and Fair Use in 3D Printing" for the 2013 Washington and Lee Student Notes Colloquium.

Goals And Governance In Municipal Bankruptcy, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Protecting Health Privacy In An Era Of Big Data Processing And Cloud Computing, Frank Pasquale, Tara Adams Ragone

Faculty Scholarship

No abstract provided.

Remic Tax Enforcement As Financial-Market Regulator, Bradley T. Borden, David J. Reiss

Faculty Scholarship

No abstract provided.

Influence Of Popular Television Programming On Students’ Perception About Course Selection, Major, And Career, Kristy Tucciarone

Faculty Scholarship

This study explores the ways in which television programming influences undergraduate students’ perceptions of careers in advertising and related fields. Drawing on cultivation theory, the research examines how repeated exposure to television portrayals of professional life can shape expectations and decision-making about college majors and career paths. The analysis focuses on two series—Mad Men and Trust Me—which depict advertising professionals in contrasting but influential ways.

Using a focus group methodology, the study engaged undergraduate students enrolled in advertising and communication-related courses. Participants were asked to discuss their viewing experiences, perceptions of advertising careers as presented on television, and …

Commercializing The Digital Canvas: Renewing Rights Of Attribution For Artists In The Networked Economy, Jon M. Garon

Faculty Scholarship

No abstract provided.

Bypassing Congress On Federal Debt: Executive Branch Options To Avoid Default, Steven L. Schwarcz

Faculty Scholarship

Even a “technical” default by the United States on its debt, such as a delay in paying principal or interest due to Congress’s failure to raise the federal debt ceiling, could have serious systemic consequences, destroying financial markets and undermining job creation, consumer spending, and economic growth. The ongoing political gamesmanship between Congress and the Executive Branch has been threatening — and even if temporarily resolved, almost certainly will continue to threaten — such a default. The various options discussed in the media for averting a default have not been legally and pragmatically viable. This article proposes new options for …

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Crimes And Medical Care On Board Cruise Ships: Do The Statistics Fit The Crimes?, Leticia M. Diaz, Barry H. Dubner, Nicole Mckee

Faculty Scholarship

No abstract provided.

Unpacking Mooc Scholarly Discourse: A Review Of Nascent Mooc Scholarship, Maureen Ebben, Julien Murphy

Faculty Scholarship

The rapid rise of MOOCs (Massive Open Online Courses) signals a shift in the ways in which digital teaching and learning are engaged in and understood. Drawing upon a comprehensive search of nine leading academic databases, this paper examines the initial phase of MOOC scholarship (2009–2013), and offers an analysis of these empirical studies that conceptualizes themes in MOOC scholarship and locates them within a chronological framework. Two key phases of scholarship about MOOCs are identified, each with associated research imperatives and themes.

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon Sandeen

Faculty Scholarship

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Wrap Contract Morass, Nancy Kim

Faculty Scholarship

No abstract provided.

Boilerplate And Consent, Nancy Kim

Faculty Scholarship

In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask …

Situational Duress And The Aberrance Of Electronic Contracts, Nancy Kim

Faculty Scholarship

This article explains how the aberrant nature of electronic contracts has unique effects. Companies take advantage of these unique effects and use electronic contracts in a coercive manner. This article proposes the new defense of “situational duress” to address the exploitative use of electronic contracts in certain situations.

Part I explains why electronic contracts are aberrant and explains how the developing law in this area deviates from traditional contract doctrine. This section also discusses how the electronic form affects consumer behavior and understanding of contract terms. Part II provides background to the traditional doctrine of duress and introduces the concept …

In Defense Of Snooping Employers, Jessica Fink

Faculty Scholarship

The Article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this Article discusses the financial, legal, and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.

Two Alternate Visions Of Contract Law In 2025, Nancy Kim

Faculty Scholarship

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered …

The Separation Of Politics And Science, Joanna K. Sax

Faculty Scholarship

This article proposes that scientific inquiry regarding questions of fact should have an autonomous zone that is protected from politics. Although many scholars promote the idea that science is politicized, little empirical data exists to support this conclusion. This article contains an empirical study that demonstrates that the public received inaccurate information in the debate over a highly politicized and controversial area of scientific inquiry, embryonic stem cell research.

This article utilizes the data from the empirical study and public choice theory to explain that there are process defects; this economic model can help explain, but cannot be used to …

Completing The Picture Of Uncertain Patent Scope, Greg Reilly

Faculty Scholarship

This Commentary addresses the intertwined relationship of claim construction, indefiniteness, and uncertain patent scope. Claim construction is a necessary threshold step and, if effective, can resolve uncertainties in claim scope, reducing the need to invalidate claims as indefinite, as discussed in Part II. Part III demonstrates how the Federal Circuit’s failed claim construction rules accentuate, rather than resolve, ambiguities in claim scope. Part IV explains how the ineffectiveness of claim construction increases the need for an effective indefiniteness doctrine, but, perversely, both decreased the effectiveness of the Federal Circuit’s pre-Nautilus standard and renders any stricter standard too draconian. Part IV …

The Constitutional Standing Of Corporations, Brandon L. Garrett

Faculty Scholarship

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such …

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …

Using Egg Freezing To Extend The Biological Clock: Fertility Insurance Or False Hope?, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Swords, Shields, And Shackles: Human And Corporate "Persons" Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Faculty Scholarship

No abstract provided.

Ice Cube Bonds: Allocating The Price Of Process In Chapter 11 Bankruptcy, Edward J. Janger, M. B. Jacoby

Faculty Scholarship

No abstract provided.