Law Commons^™

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

All Faculty Scholarship

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

Fcc V. Wncn Listeners Guild: An Old-Fashioned Remedy For What Ails Current Judicial Review Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Got Wheels?: Article 2a, Standardized Rental Car Terms, And Unilateral Private Ordering, Irma S. Russell

Faculty Works

This Article examines the modern system of unilateral private ordering facilitated by form contracts in the context of standard form contracts for renting a car. Modern law accepts the presumption of a free market and free bargain in the setting of form contracting despite the lack of bargaining power on the consumer side of the deal. The article assesses the importance of defaults and presumptions in contract law, and presents the results of an empirical review of standard agreement forms of ten leading rental car companies, noting examples of significant alterations to common law defaults. The article also explores the …

Concurring In Part & Concurring In The Confusion, Sonja R. West

Scholarly Works

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

All Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

Paradoxical Impact Of Asymmetric Regulation In Taiwan's Telecommunications Industry: Restriction And Rent Seeking, Yuntsai Chou, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

The mobile penetration rate in Taiwan has climbed from 6.86 to 112.15. Mobile phone accounts per 100 capita in the first 6 years of market competition, during this time the state-owned incumbent Chunghua Telecom has been dethroned by a new entrant, Taiwan Cellular Corp. This paper addresses the cause of Taiwan's unprecedented mobile growth, and provides policy solutions for countries that strive to improve their telecommunications sectors in a short time scale. The authors highlight the fundamental role of asymmetric regulation, rather than pure liberalization, in the creation of the deregulated telecommunications industry in Taiwan. The asymmetric regulation in Taiwan …

Of Secrets And Spies: Strengthening The Public's Right To Know About The Cia, Martin E. Halstuk, Eric Easton

All Faculty Scholarship

The impetus behind the Intelligence Reform Act was to prevent another terrorist attack on American soil. The statute completely overhauled the United States intelligence apparatus, largely by amending the National Security Act of 1947, which created the CIA and established the Director of Central Intelligence (DCI) as its head. The purpose of this article is to demonstrate that by renovating the fifty-seven-year-old National Security Act to create a modern intelligence infrastructure, Congress has also paved the way for a new intelligence-information paradigm. For the last two decades, near-blanket CIA secrecy has gone largely unchecked, principally because of the Court's ruling …

Vicarious Liability And The Private University Student Press, Nancy Whitmore

Scholarship and Professional Work - Communication

Once described as a quintessential marketplace of ideas by the Supreme Court of the United States, the academic marketplace has been criticized recently for institutionalizing a left-leaning ideology within its curriculum and academic discourse. As a result, national activists and organizations have been calling on state legislatures and university administrators to adopt policies and report on steps taken to encourage intellectual diversity and protect political and cultural minorities from faculty bias and academic retribution in the classroom and other university settings. But who would win a constitutional showdown between the academy and those seeking to infuse academic discourse with alternative …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

Articles

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Why Have A Telecommunications Law? Anti-Discrimination Norms In Communications, Tim Wu

Faculty Scholarship

This paper describes a vision of what telecommunications laws’ central goals should be in coming decades, and what kind of legal instruments will serve those goals. The telecommunications law, I suggest, has been preoccupied with three projects: allocating rights, managing discrimination, and achieving various social goals, like indecency regulation. This paper argues that in the future the main point of the telecommunications law should be as an anti-discrimination regime, and that the main challenge for regulators will be getting the anti-discrimination rules right.

The view advanced here, while much popularized over the last decade, has deeper roots reaching back to …

Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels

Articles & Chapters

No abstract provided.

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

Articles in Law Reviews & Other Academic Journals

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a free marketplace of ideas that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

Articles

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a "free marketplace of ideas" that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Comments On Stealth Marketing And Editorial Integrity, R. Polk Wagner

All Faculty Scholarship

No abstract provided.

Network Neutrality And The Economics Of Congestion, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

Publications

This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

Open Video Systems: Too Much Regulation Too Late?, Michael Botein

Articles & Chapters

No abstract provided.

Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu

Faculty Scholarship

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what …

Representing The Media At Trial, Joseph A. Tomain, Richard M. Goehler, Amanda G. Main

Articles by Maurer Faculty

No abstract provided.

The Media As Participants In The International Legal Process, Monica Hakimi

Faculty Scholarship

We know what we know about current international events through the media. The media (with their instantaneous transmission of images and sound across great distances) inform us of everything from the train bombings in Madrid and London, to human rights abuses in Darfur, to the fall of Saddam Hussein’s Iraq. Yet the media do not simply communicate raw information; they selectively filter, define and give shape to the events that they cover — in terms of what is happening, whether it is appropriate, and how relevant international actors should and do respond. The media thus are the nerves of the …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …