Digital Commons Network^™

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

The Political Speech Of Charities In The Face Of Citizens United: A Defense Of Prohibition, Roger Colinvaux

Scholarly Articles

The Supreme Court’s decision in Citizens United v. Federal Election Commission makes a Supreme Court challenge to the tax law rule that prohibits charities from involvement in political activities more likely, and a reexamination of the political speech of charities necessary. Part I of the Article surveys the history of the political activities prohibition in order to emphasize that it was not a reactionary policy but quite considered, and that there are strong State interests supporting it, including protection of the definition of charity from further dilution. Part II of the Article analyzes Citizens United in detail and argues that …

Graham On The Ground, Cara H. Drinan

Scholarly Articles

In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the …

Lafler And Frye: Good News For Public Defense Litigation, Cara H. Drinan

Scholarly Articles

In Missouri v. Frye and Lafler v. Cooper, the Supreme Court confirmed that the Sixth Amendment right to counsel applies to the plea negotiation process and held that prejudicial error can flow from ineffective plea advice. The defense community has applauded these decisions for recognizing the pivotal role that guilty pleas play in our criminal justice system and for requiring a minimum level of efficacy in plea lawyering. In this brief essay, I suggest that Frye and Lafler are victories for the defense community in yet another way. The decisions reflect judicial realism, and in this respect, they are especially …

Rescuing The Dignitary Torts From The Constitution, Cristina Carmody Tilley

Faculty Publications

The rights of individuals to recover for dignitary torts has been withering for the past forty years, since the Supreme Court constitutionalized the state common law tort of defamation in New York Times v. Sullivan in 1964. The Court announced in that case that the First Amendment required it to impose high standards for individual defamation claims in order to protect robust speech. As that principle has taken hold, it has in effect squeezed the rights of individuals to recover for invasion of privacy and intentional infliction of emotional distress as well as defamation. Just last Term, the Court held …

Sustainable Engineering Practices In Transportation Projects, Kiran Rangarajan

Doctoral Dissertations

"Sustainability has become an important issue in transportation and infrastructure development projects. While several agencies are trying to incorporate a range of sustainability measures in their goals and missions, only a few planning agencies have been able to implement these policies and they are far from perfect. The low rate of success in implementing sustainable policies is primarily due to incomplete understanding of the system and the interaction between various elements of the system. The conventional planning efforts focuses mainly on performance measures pertaining to the system and its impact on the environment but seldom on the social and economic …

The Effect Of Supercritical Water On Crude Glycerin Solution, Jared Bouquet

Doctoral Dissertations

"Crude glycerin solution, a principal byproduct of the conventional biodiesel process, was reacted in supercritical water using a specially designed Haynesʼ Alloy 282 reactor system for the production of hydrogen rich syngas. The effects of temperature, pressure, water-to-carbon molar ratio, reactor residence time, and glycerin-to-methanol weight ratio on the extent of carbon gasification and gas composition were explored. Based on the results, the extent and selectivity of reactions that concurrently occur when methanol and glycerin are in the presence of supercritical water were analyzed. A decomposition reaction pathway for glycerin conversion to syngas was hypothesized, and then utilizing the results …

Exploring Effective Feedback Techniques In The Esl Classroom, Molly B. Mccord

Language Arts Journal of Michigan

No abstract provided.

Grammar Instruction Needs Fixed: Teaching Standardized Grammatical Conventions And Honoring Linguistic Idenity, Shelia Benson

Language Arts Journal of Michigan

No abstract provided.

Numerical Simulations Of Fracture Propagation And Sealing: Implications For Wellbore Strengthening, Saeed Salehi

Doctoral Dissertations

"To mitigate the small tolerance between pore pressure and fracture gradients an engineering practice referred to as "wellbore strengthening" is conducted to increase the fracture gradient. The method relies on propping and/or sealing the fractures with specially designed materials. Different competing theories exist for physical wellbore strengthening mechanisms which can be categorized into two groups. The first group explains that strengthening happens as a result of increasing wellbore hoop stress when fractures are sealed while the second group emphasis is on fracture tip isolation with suitable materials and enhancing fracture propagation pressure. The numerical models and lab experiments …

Building Meaning Through Metaphor: Using The Arts To Deepen Understanding In Oedipus The King, Brigitte Knudson

Language Arts Journal of Michigan

No abstract provided.

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To Section 5000a Of The Tax Code, Kevin C. Walsh

Law Faculty Publications

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

There is a puzzle surrounding the Supreme Court's consideration of these cases. Everyone seems to want an answer to the question …

The Ghost That Slayed The Mandate, Kevin C. Walsh

Law Faculty Publications

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

It's About Time, David Frisch

Law Faculty Publications

This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …

Outsourcing Childcare, Meredith Johnson Harbach

Law Faculty Publications

Existing discourse on childcare decisions proceeds as if there were one "right" answer to the question of who should care for children. The law has preferences, too. But the reality is that parents, like businesses, make diverse, strategic decisions about when to keep work in-house, and when to collaborate with outside partners. This Article uses the lens of business outsourcing to gain fresh perspective on childcare decisionmaking, and the law's relationship to it. The outsourcing framework provides three key insights. First, it enables us to better understand the diversity of childcare decisions and the reasons underlying them. Second, the outsourcing …

Compelled Production Of Encrypted Data, John E.D. Larkin

Vanderbilt Journal of Entertainment & Technology Law

There is a myth that shadowy and powerful government agencies can crack the encryption software that criminals use to protect computers filled with child pornography and stolen credit card numbers. The reality is that cheap or free encryption programs can place protected data beyond law enforcement's reach. If courts seriously mean to protect the victims of Internet crime--all too often children--then Congress must adopt a legal mechanism to remedy the technological deficiency.

To date, police and prosecutors have relied on subpoenas to either compel defendants to produce their password, or to decipher their protected data. This technique has been met …

Promoting Trademark's Ends And Means Through Online Contributory Liability, E. Jordan Teague

Vanderbilt Journal of Entertainment & Technology Law

Trademark law accomplishes its ultimate end--helping consumers easily find, distinguish between, and trust products and services from different brands--through the means of giving markholders an incentive to develop and cultivate these brands in the first place. While individual trademark laws should serve these ends and means, this is not the case with contributory infringement in the United States as applied to the Internet. First, since the doctrine is based entirely in common law with little case law specifically addressing the online context, contributory infringement gives online service providers (OSPs) little notice as to what types of behaviors could result in …

One Work, Three Infringers: Calculating The Correct Number Of Separate Awards Of Statutory Damages In A Copyright Infringement Action, Timothy L. Warnock

Vanderbilt Journal of Entertainment & Technology Law

Columbia Pictures provides the most persuasive analysis of the correct number of separate awards of statutory damages available to a plaintiff. Lime Group recognized that the question was a particularly close one, and the court erred in reaching the opposite result from Columbia Pictures. The Lime Group analysis is based on a fundamentally flawed earlier decision and relies, in the end, on an approach as likely to reward infringers rather than defend the rights of copyright holders: determining whether the potential result in any given case is absurd. Regarding the hypothetical case provided at the beginning of this Essay, Warren …

Train Wreck (Of The I-Aa), John R. Maney

Vanderbilt Journal of Entertainment & Technology Law

In 2009, the Knight Commission, which addresses major problems facing intercollegiate athletics, polled the presidents of the Football Bowl Subdivision schools (I-A schools) about their views on the state of financial affairs in college athletics. Less than 25 percent of those polled thought intercollegiate athletics was sustainable in its present form. As a result, the Commission recommended a series of reforms to help maintain the health of collegiate athletics. Unfortunately, the Commission did not poll the presidents of Football Championship Subdivision schools (I-AA schools). They should have polled those presidents because the I-AA schools' fiscal health is worse. In 2010, …

Eudemonic Intellectual Property: Patents And Related Rights As Engines Of Happiness, Peace, And Sustainability, Estelle Derclaye

Vanderbilt Journal of Entertainment & Technology Law

The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives: liberalism, capitalism, and consumerism. After having shown that the predominant justification for intellectual property rights is the incentive theory, which rests on the idea of progress, this Article traces back the history of the idea and shows its parochialism in both time and space. The Article next shows that the progress ideology rests on assumptions that are either wrong or impossible to prove and therefore propounds that it must be abandoned, or if …

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …

A Rollicking Band Of Pirates: Licensing The Exclusive Right Of Public Performance In The Theatre Industry, Shane D. Valenzi

Vanderbilt Journal of Entertainment & Technology Law

With ticket prices on Broadway at an all-time high, amateur and regional theatres are the only venues for theatrical productions to which most Americans are exposed. Licensing these performance rights--known as "stock and amateur rights"--is the primary source of income for many playwrights, even for those whose plays flopped at the highest level. However, the licensing houses responsible for facilitating these transactions frequently retain and exercise the ability to issue exclusive performance licenses to certain large regional theatres. This practice limits public access to particular works and restricts playwrights' potential earnings in those works. Though this behavior does not amount …

Virtual Blinds: Finding Online Privacy In Offline Precedents, Allyson W. Haynes

Vanderbilt Journal of Entertainment & Technology Law

A person in a building shows a desire for privacy by pulling her blinds shut or closing her curtains. Otherwise, she cannot complain when her neighbor sees her undressing from the window, or when a policeman looks up from the street and sees her marijuana plants. In the online context, can we find an analogy to these privacy blinds? Or is the window legally bare because of the nature of the Internet?

This Article argues that by analyzing the privacy given to communications in the offline context, and in particular, by analyzing case law recognizing privacy in an otherwise public …

Infringers Or Innovators? Examining Copyright Liability For Cloud-Based Music Locker Services, Brandon J. Trout

Vanderbilt Journal of Entertainment & Technology Law

Music lockers--Internet sites where users may store a copy of their music for later playback--have revolutionized the way people listen to music, allowing them to take their music with them anywhere in the world. However, rights holders are concerned that these locker services potentially infringe music copyrights when they allow their users to upload and stream music and when they use a space-saving technology called "deduplication." This Note delineates the separate rights guaranteed under the Copyright Act as applicable to music lockers: the right to copy and the right of public performance. The analysis looks at several music locker services …

A Semiotic Analysis: Developing A New Standard For Scent Marks, Erin M. Reimer

Vanderbilt Journal of Entertainment & Technology Law

In recent years, businesses have discovered a new way to capture consumer loyalty: through their noses. Companies have begun to invest heavily in the development of scent marks and innovative digital scent technology that will disseminate signature scents through the Internet and television; however, the standards surrounding scent mark registration and infringement remain hazy due to a lack of precedent and conflicting global legal standards. While US and European courts have determined that scent marks can exist under current laws, the registration requirements and infringement standards remain unclear.

This Note analyzes the four major issues that arise in scent mark …

Copyright's Creative Hierarchy In The Performing Arts, Michael W. Carroll

Vanderbilt Journal of Entertainment & Technology Law

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Three Theories Of Copyright In Ratings, James Grimmelmann

Vanderbilt Journal of Entertainment & Technology Law

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright's usual balance between incentives and access becomes indeterminate when ratings …

Digital Originality, Edward Lee

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

Hacking For Lulzi: Employing Expert Hackers To Combat Cyber Terrorism, Swathi Padmanabhan

Vanderbilt Journal of Entertainment & Technology Law

Because hacking collectives Anonymous and LulzSec have routinely breached supposedly secure computer networks--including Visa, MasterCard, and the Central Intelligence Agency--the threat of cyber terrorism has become more prominent. Many US industries and companies depend on online communication and information storage. If terrorists compromise these capabilities, they could cripple the US economy and perhaps even cause widespread fatalities. Members of Anonymous and LulzSec lack the necessary intent to be prosecuted as cyber terrorists because they hack not to cause fear, but rather to create laughter. Their method of posting all necessary instructions and information regarding intended targets on online message boards …