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Articles 1 - 30 of 71
Full-Text Articles in Law
Privacy Inalienability And The Regulation Of Spyware, Paul M. Schwartz
Privacy Inalienability And The Regulation Of Spyware, Paul M. Schwartz
Paul M. Schwartz
No abstract provided.
The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law, David A. Wirth
The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law, David A. Wirth
David A. Wirth
“Precaution” is increasingly accepted as a basis for governmental policy in the areas of public health and environment on both the domestic and international levels. A precautionary perspective counsels action to avert danger or threats in situations of scientific uncertainty or incomplete information. Precautionary approaches find expression in internationally harmonized formulations as non-binding exhortations, binding treaties, and meta-level principles. Precaution is a particular challenge to free trade agreements, whose purpose is to eliminate unjustified barriers to trade. In that context, precaution as a justification for a challenged governmental measure may appear to be nothing more than a pretext for protectionism. …
Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth
Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth
David A. Wirth
The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they …
The Trial Court’S Gatekeeper Role Under Frye, Daubert And Kumho: A Special Look At Children's Cases, John Eric Smithburn
The Trial Court’S Gatekeeper Role Under Frye, Daubert And Kumho: A Special Look At Children's Cases, John Eric Smithburn
J. Eric Smithburn
No abstract provided.
The Killer Idea: How Some Gunslinging Anarchists Held Freedom Of Speech At Gunpoint, Gert A. Van Vugt Msc
The Killer Idea: How Some Gunslinging Anarchists Held Freedom Of Speech At Gunpoint, Gert A. Van Vugt Msc
Gert A van Vugt MSc
In May 2013, the first all-plastic, 3D printed gun was fired. This paper offers a detailed description of the origins and development of the printable gun. It elucidates the transformation of the principal narrative in the increasing media coverage from circumventing arms regulation to defending free speech, highlighting the role of Defense Distributed and their strategic framing of the printable gun. Finally, the uptake of the latter narrative by early popular and scholarly contributions is discussed. The paper highlights the political impact of narrative formation in debates about regulating 3D printing and the communication of printable designs, and suggests an …
Nexus Crystals: Crystallizing Limits On Constractual Control Of Virtual Worlds, Joshua A.T. Fairfield
Nexus Crystals: Crystallizing Limits On Constractual Control Of Virtual Worlds, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot. The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …
E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman
E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman
Lawrence J. Trautman Sr.
What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn
Robert Bloom
In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …
Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski
Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski
Michael J. Malinowski
All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …
"Do-Not-Track" As Contract, Joshua A.T. Fairfield
"Do-Not-Track" As Contract, Joshua A.T. Fairfield
Joshua A.T. Fairfield
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) …
The Magic Circle, Joshua A.T. Fairfield
The Magic Circle, Joshua A.T. Fairfield
Joshua A.T. Fairfield
This Article examines the concept of the "magic circle," the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no "real" world as distinguished from "virtual" worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual …
The End Of The (Virtual) World, Joshua A.T. Fairfield
The End Of The (Virtual) World, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Virtual worlds have been the next big thing for some time now. In 2008, more than 100 public virtual worlds received venture capital funding - a significant increase over previous years. Yet virtual worlds have been going bankrupt faster than ever, including several high-profile firms and worlds. Every technology goes through a shakedown phase, and for virtual worlds the current recession has served as a catalyst for a downturn that, although not unexpected, is nevertheless startling in both numbers and rapidity. This article examines the intimate relationship between how a virtual world begins life and how it ends. The amount …
Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster
Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster
T. Noble Foster
This paper explores legal issues associated with cloud computing, provides analysis and commentary on typical clauses found in contracts offered by well-known cloud service providers, and identifies strategies to mitigate the risk of exposure to cloud-based legal claims in the critical areas of data security, privacy, and confidentiality. While current research offers numerous case studies, viewpoints, and technical descriptions of cloud processes, our research provides a close examination of the language used in cloud contract terms. Analysis of these contract terms supports the finding that most standard cloud computing contracts are unevenly balanced in favor of the cloud service provider. …
Castles In The Air: F. Gregory Lastowka's Virtual Justice, Joshua A.T. Fairfield
Castles In The Air: F. Gregory Lastowka's Virtual Justice, Joshua A.T. Fairfield
Joshua A.T. Fairfield
This Article argues that informed consent to contract terms is not a good to be maximized, but an information cost that courts should minimize. As a result, courts ought to minimize the cost sum of information costs and contractual surprise. The Article applies information-cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential consumers. The Article demonstrates …
Do-Not-Track As Default, Joshua A.T. Fairfield
Do-Not-Track As Default, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Do-Not-Track is a developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature. The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This …
Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield
Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people, and things with rich virtual experiences. As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that …
Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield
Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The …
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield
Joshua A.T. Fairfield
Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations. A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …
The Mandatory Stay Provision Of The 2013 Joint House-Senate Patent Bill, Ron D. Katznelson
The Mandatory Stay Provision Of The 2013 Joint House-Senate Patent Bill, Ron D. Katznelson
Ron D. Katznelson
The author discusses patent legislation proposed in the 113th Congress that, if enacted, would mandate a stay of some cases, stripping district court judges of their independence and discretion in handling patent infringement cases. The author explains that the proposed provisions would also undo the prohibitions against instituting certain administrative post grant proceedings at the U.S. Patent and Trademark Office during a parallel court proceeding challenging patent validity, promote de-facto the lowest damages “apportionment” scheme, and perversely and illogically insert plaintiffs into unresolvable situations involving a combination of direct and indirect infringing parties, thereby denying relief to patentees.
Technology, Competition, And Values, Frank Pasquale
Technology, Competition, And Values, Frank Pasquale
Frank A. Pasquale
Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character. As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more …
Internet Policy’S Next Frontier: Data Caps, Tiered Service Plans, And Usage-Based Broadband Pricing, Daniel A. Lyons
Internet Policy’S Next Frontier: Data Caps, Tiered Service Plans, And Usage-Based Broadband Pricing, Daniel A. Lyons
Daniel Lyons
Usage-based pricing has rapidly become one of the most controversial topics in Internet policy. Both wired and wireless broadband providers are migrating from flat-rate pricing to a variety of consumption-based pricing models. Some consumer groups have viewed the change to usage-based pricing with skepticism, fearing it will usher in an era of higher prices, deteriorating service, and increasingly anticompetitive conduct. This article evaluates the merits of data caps, tiered-service plans, and other usage-based pricing strategies. It finds that usage-based broadband pricing is not inherently anti-consumer or anti-competitive. Rather, it reflects a cluster of pricing strategies through which a broadband company …
The Challenge Of Voip To Legacy Federal And State Regulatory Regimes, Daniel A. Lyons
The Challenge Of Voip To Legacy Federal And State Regulatory Regimes, Daniel A. Lyons
Daniel Lyons
No abstract provided.
Synaptic Plasticity In Neurological Deficit As A Form Of Indemnification: The Utility Of Analogical Thinking, Madeleine Schachter, Madeleine Schachter
Synaptic Plasticity In Neurological Deficit As A Form Of Indemnification: The Utility Of Analogical Thinking, Madeleine Schachter, Madeleine Schachter
Madeleine Schachter
The need for creative problem-solving is as infinite as are the ways in which to engage in it. This article posits that one useful, albeit not flawless, mechanism in which to seek scientific advancements is through the use of analogical thinking. The technique has been invoked in virtually all disciplines, sometimes successfully and sometimes not. The utility of thinking by analogy lies, paradoxically, in its capacity to conceptualize a solution or a viable avenue of further inquiry as much as in its capacity to expose flaws in the analogical concept hypothesized. As such, it is an important means of stimulating …
Voir Dire And Frye-Daubert Hearings: Choosing The Proper Tool, Kenneth Sanders, Geoffrey Sanders
Voir Dire And Frye-Daubert Hearings: Choosing The Proper Tool, Kenneth Sanders, Geoffrey Sanders
Kenneth L Sanders MD
Attack and defense of scientific evidence and expert testimony through Frye-Daubert and voir dire hearings is potentially game changing. Counsel should conceptualize and organize the similarities and differences of each category of scientific/medical hearing.
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
David S Caudill
This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
David S Caudill
My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …
Junk Philosophy Of Science?: The Paradox Of Expertise And Interdisciplinarity In Federal Courts, David S. Caudill, Richard E. Redding
Junk Philosophy Of Science?: The Paradox Of Expertise And Interdisciplinarity In Federal Courts, David S. Caudill, Richard E. Redding
David S Caudill
No abstract provided.
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical - And Not Just The Methodological - Aspects Of Science, David S. Caudill, Lewis H. Larue
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical - And Not Just The Methodological - Aspects Of Science, David S. Caudill, Lewis H. Larue
David S Caudill
In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (1) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …
Race[,] Science, History, And Law, David S. Caudill
Race[,] Science, History, And Law, David S. Caudill
David S Caudill
No abstract provided.
A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski
A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski
Michael J. Malinowski
This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.