Digital Commons Network^™

Take A Deep Breath: On Not Losing The Turtle In The Technology, Marilyn R. Pukkila

Faculty Scholarship

Understanding media messages and selecting worthwhile sources of information require the ability to analyze and deconstruct messages.

This Is The End… My Friend: Disgorgement, Dissolution And Sequestration As Remedies Under State Udap Statutes, Michael Flynn

Faculty Scholarship

No abstract provided.

Open Code Governance, Danielle Keats Citron

Faculty Scholarship

Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person’s eligibility for public benefits. Computer systems store sensitive personal information. These systems’ closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program’s source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …

Using Actual Legal Work To Teach Legal Research And Writing, Michael A. Millemann

Faculty Scholarship

Legal research and writing (LRW) teachers should use actual legal work to teach their courses, including (indeed, especially) first-year courses. The legal work might come from a planned or ongoing lawsuit, transaction, or other matter. What is important is that it is real, although in my model, the teacher can add hypothetical features to customize the legal work to the particular LRW course. For example, in an appellate advocacy course, the teacher could present the legal issues arising out of a pretrial matter by summarily “deciding” them in a hypothetical trial court opinion, thus allowing the students to fully explore …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In this survey, we discuss electronic contracting cases decided between July 1, 2007 and June 30, 2008. In addition to cases adding to the literature on the enforceability of online contracts, this survey includes cases discussing modification of online contracts, incorporation by reference, and unconscionability. We conclude that our common law is developing nicely to address the issues presented by internet contracting.

Conversations On "Community Lawyering:" The Newest (Oldest) Wave In Clinical Legal Education, Karen Tokarz, Nancy L. Cook, Susan Brooks, Brenda Bratton Blom

Faculty Scholarship

This Article explores the pedagogical and professional challenges and rewards of community lawyering and clinical legal education. The authors are clinical law faculty who self-identify as community lawyers and teachers of community lawyering clinics. They have gathered in recent years with a larger group of similarly engaged colleagues to discuss what is meant by community lawyering, how it is taught, and how it is practiced. This Article seeks to capture some of those conversations, crystallize some of the ideas that have arisen out of the discussions, and examine the implications of these ruminations for future directions in clinical legal education.

Are Health Care Conflicts All That Different? A Contrarian View, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Participation And Disintermediation In A Risk Society, Robert J. Rhee

Faculty Scholarship

The chapter argues that financing extreme catastrophic loss will become more problematic as catastrophes become more frequent and severe. An effective strategy must increase the level of participation in the spreading of risk and loss. Currently, risk spreading is done largely through insurers and government as they are the default aggregators of private and public capital. An enlargement of participation may mean the disintermediation of the traditional insurance and public compensation functions, thus allowing more direct and efficient participation between those are exposed to risk and those who are willing to bear it. This chapter also argues that tax policy …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Faculty Scholarship

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale

Faculty Scholarship

Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.

Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic …

The Google Dilemma, James Grimmelmann

Faculty Scholarship

No abstract provided.

Climate Change Law: An Introduction, John C. Dernbach, Seema Kakade

Faculty Scholarship

No abstract provided.

Reintermediation, Jon M. Garon

Faculty Scholarship

Jon M. Garon, Reintermediation, 2 Int. J. of Private Law 227 (2009).

The digital revolution has interrupted traditional supply chains and wholesaler relationships with manufacturers and retailers, companies are developing new methodologies to create supplier loyalty critical to control of market share. This article documents the leading strategies being utilised by companies to reassert their relevance in the value proposition for their clients and the consequences of these new business models on intellectual property law, privacy rules and influences on judicial contract interpretation. In Philip Evans and Thomas Wurster's bestselling book, Blown to Bits (Harvard Business Press, 1999), the …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

No abstract provided.

The Cleaver, The Violin, And The Scalpel: Duty And The Restatement (Third) Of Torts, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

What If Drm Fails?: Seeking Patronage In The Iwasteland And The Virtual O , Jon M. Garon

Faculty Scholarship

Section 1201 of the 1998 Digital Millennium Copyright Act provided sweeping protection for technological measures or virtual locks on digital content to protect the entertainment industries-including music, films, games, and consumer electronics. Manufacturers use digital rights management (DRM) authorized under the law to lock down all software embedded in products, movies on DVDs, and audio files sold on iTunes and other Internet sites. DRM unfairly extends copyright and that legal protection is unnecessary to the robust development of new creative works Critics of the DMCA have charged that the law has extended well past its anti-piracy role to undermine fair …

Emeritus Lawsuits: Much Ado About Nothing?, Robert M. Jarvis

Faculty Scholarship

Robert Jarvis, Emeritus Lawsuits: Much Ado About Nothing?, 9 Nevada Law Journal 63 (2008).

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Competing Legal Cultures And Legal Reform: The Battle Of Chile, James Cooper

Faculty Scholarship

This Article explores the competition that exists between U.S. and German legal cultures and examines Chilean legal reform efforts since the late 1990s as a case study of this competition. A country's legal culture is comprised of the self-governing rules and operations of national and regional bar associations, the format of legal education, the structure of the legal and judicial profession, the role of the judiciary, jurisprudential style, and the reputation of the legal sector according to the general public. The influence of predominant legal cultures on developing nations has been explored in a number of contexts, while the importance …

The Software Licensing Dilemma, Nancy Kim

Faculty Scholarship

This Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the …

Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So

Faculty Scholarship

Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur …

Understanding The ‘Corporate’ In Corporate Social Responsibility, Barak D. Richman, Aaron K. Chatterji

Faculty Scholarship

No abstract provided.

Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman

Faculty Scholarship

Recent discussions in health reform circles have pinned great hopes on the prospect of innovation as the solution to the high-cost, inadequate-quality U.S. health system. But U.S. health care institutions--insurers, providers and specialists--have ceded leadership in innovation to Indian hospitals such as Care Hospital in Hyderabad and the Fortis Hospitals around New Delhi, which have U.S.-trained doctors and can perform open heart surgery for $6000 (compared to $100,000 in the United States). The Indian success is a window into America's stalemate with inflating costs and stagnant innovation.

The Public Domain: Enclosing The Commons Of The Mind, James Boyle

Faculty Scholarship

Our music, our culture, our science and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, …

Climate Change And The Limits Of The Possible, Jedediah S. Purdy

Faculty Scholarship

Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features – how long it takes to unfold and the ways in which its effects are distributed across the globe – which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate …

Survey Of Seqra Cases From 2007, Michael B. Gerrard

Faculty Scholarship

The courts issued 58 decisions under the New York State Environmental Quality Review Act (SEQRA) in 2007.

Typically, plaintiffs have a much greater chance of success in SEQRA cases when no environmental impact statement (EIS) has been prepared: on average, in the cases from 1990 (when this column’s annual survey began) through 2006, plaintiffs won 15.9 percent of the cases where there is an EIS, and 38.6 percent of the cases without an EIS.

But in 2007 the ratio was much different. In the 22 cases with an EIS, plaintiffs won seven, or 31.8 percent. In the 27 cases without …

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …

Tribal Nation Economics: Rebuilding Commercial Prosperity In Spite Of U.S. Trade Restraints–Recommendations For Economic Revitalization In Indian Country, Angelique Eaglewoman

Faculty Scholarship

Tribal commerce created the current highways that stretch from coast-to-coast in North America today. The roads that are traveled by semi-trucks full of cargo, grocery produce, and all manner of commercial goods are on top of the ancient trade routes Natives have traveled for centuries. Unfortunately, the history and sophistication of Native commercial activities have been largely suppressed and left out of the story of the North American continent as Euro-Americans rewrote the continent’s history to reflect the glorification of colonization. The truth is that there was no need for the 'rugged pioneer' to cut through tall grass to head …

Roleplays As Rehearsals For “Doing The Right Thing”---Adding Practice In Professional Values To Moldovan And United States Legal Education, Ann Juergens

Faculty Scholarship

In a work world where injustice and corruption challenge lawyers daily, how might law schools better prepare students to become ethical leaders, or, at least, to practice ethically themselves? This article asserts that adding short interactive roleplays to large classes is one way for students to learn the skill and value of doing the right thing under difficult circumstances. The authors build on their experience teaching in Moldova, where they found students eager to engage in realistic roleplays, so eager that they transformed a lawyer-client interviewing exercise into an exploration of what to do when offered a bribe. If U.S. …

The Post-Cuno Litigation Landscape, Morgan Holcomb, Nicholas Allen Smith

Faculty Scholarship

In 1996, Northeastern University School of Law Professor Peter Enrich wrote a groundbreaking article, in which he argued that certain state tax incentives are unconstitutional as violations of the Commerce Clause. This article begins by describing the constitutional landscape into which Enrich cast his argument, and them turns describe the litigation that Enrich’s article has generated, including the much-watched case, Cuno v. DaimlerChrysler Corp., which held the promise of resolving this dormant Commerce Clause question, only to wither away on the vine of standing. Following the discussion of Cuno, this article will turn to an exploration of the litigation that …