Law Commons^™

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Linda A. Malone

No abstract provided.

Technology-Augmented Courtrooms: Progress Amid A Few Complications, Or The Problematic Interrelationship Between Court And Counsel, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Technology Comes To The Courtroom, And . . ., Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Special Challenges To 21st Century Lawyers: The Use And Misuse Of Technology, Fredric I. Lederer, Richard K. Herrmann, Jan Michelsen, Andrew Mertens

Fredric I. Lederer

No abstract provided.

Scientific Evidence - An Introduction, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Some Thoughts On Technology And The Practice Of Law, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Office Hours: The Robots Are Coming!, Jeffrey Bellin, Michaela Lieberman, Fredric I. Lederer, Iria Giuffrida, Nicolas Vermeys

Fredric I. Lederer

April 10, 2018: This week’s episode features three guests from William & Mary’s Center for Legal & Court Technology (CLTC). Professors Fred Lederer, Iria Giuffrida and Nicolas Vermeys talk about CLTC’s efforts to prepare students and courts for rapidly evolving technologies. They also provide tips for how best to navigate the coming robot apocalypse – spoiler alert: we are all doomed.

Impractically Obscure? Privacy And Courtroom Proceedings In Light Of Webcasting And Other New Technologies, Fredric I. Lederer, Rebecca Green

Fredric I. Lederer

No abstract provided.

Empirical Research Report: The Use Of Technology In The Jury Room To Enhance Deliberations, Fredric I. Lederer

Fredric I. Lederer

Modern courtroom technology permits the use of technology in the jury deliberation room to enhance deliberations in both traditional trials and technology-augmented cases. SJI-funded research conducted by the Courtroom 21 Project surveyed the law of the United States with respect to statutory and case law governing the use of exhibits during deliberations; surveyed the state courts and, with the assistance of the Federal Judicial Center, the United States district courts concerning their deliberation practices and courtroom technology use; and conducted two controlled studies of the use of deliberation room technology in both traditional and technology-augmented trials. The Courtroom 21 protocol …

Reduce, Refine, Replace: The Failure Of The Three R’S And The Future Of Animal Experimentation, Darian M. Ibrahim

Darian M. Ibrahim

No abstract provided.

Equity Crowdfunding: A Market For Lemons?, Darian M. Ibrahim

Darian M. Ibrahim

No abstract provided.

Google Glass While Driving, Adam M. Gershowitz

Adam M. Gershowitz

Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass.

This article …

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Susan S. Fortney

No abstract provided.

The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr

Orin Kerr

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …

The Case For The Third-Party Doctrine, Orin S. Kerr

Orin Kerr

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Orin Kerr

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

The Role Of Satellites And Smart Devices: Data Surprises And Security, Privacy, And Regulatory Challenges, Anne T. Mckenna, Amy C. Gaudion, Jenni L. Evans

Amy C. Gaudion

Strava, a popular social media platform and mobile app like Facebook but specifically designed for athletes, posts a “heatmap” with consensually-obtained details about users’ workouts and geolocation. Strava’s heatmap depicts aggregated data of user location and movement by synthesizing GPS satellite data points and movement data from users’ smart devices together with satellite imagery. In January of 2018, a 20-year-old student tweeted that Strava’s heatmap revealed U.S. forward operating bases. The tweet revealed a significant national security issue and flagged substantial privacy and civil liberty concerns.

Smart devices, software applications, and social media platforms aggregate consumer data from multiple data …

Rise Of The Robot Lawyers?, Milan Markovic

Milan Markovic

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This Article constitutes a lightly edited transcription of Joshua Fairfield's oral remarks at the April 6, 2018 Cleveland State Law Review Symposium on Blockchain Law and Technology.

The author posits that there is a tendency to think that technology will emerge triumphant in resolving physical problems, including banking and transactional recording; that there is sort of a "tech-bro utopianism," epitomized by Mark Zuckerberg, suggesting that what we need is a technological, not a human, solution. He states that one major problem is that social technologists, psychologists, historians, linguists, and cultural anthropologists are not on the development teams that are building …

Legal Personhood For Artificial Intelligence, Tyler Jaynes

Tyler Jaynes

Carpe Diem: Privacy Protection In Employment Act, Ariana R. Levinson

Ariana R. Levinson

What these employees have in common is that their employers technologically monitored them, invading their privacy, yet their lawsuits were dismissed.6 Indeed, scholars generally agree that the law in the United States fails to adequately protect private sector employees from technological monitoring by their employers.7 This article proposes a solution: federal legislation intended to permit private sector employers to monitor their employees when necessary but to also provide their employees adequate privacy protection.8 Section II reviews the nature and extent of the problem of technological monitoring of employees by their employers. Section III surveys the laws and proposed legislation that …

Integrating Online Instruction And Hands-On Laboratory Activities For Summer Learning For Students Of Color: A Design Case In Forensic Science, Douglas Elrick, Jiaqi Yu, Connie Hargrave

Constance P. Hargrave

The popularity of TV shows such as Crime Scene Investigation (CSI) has generated high school students’ interest in forensics. Yet, forensic science is not commonly accessible to students, and especially students of color who often attend under-resourced high schools. This article presents the design, development, and evaluation of an online forensics course created for high school students of color who were a part of an informal science, technology, engineering, and mathematics (STEM) educational development program. Two essential elements guided the course design: the target learners (high school students of color) and integrating online instruction and hands-on laboratory activities involving real-world …

Financial Conflicts Of Interest In Human Subjects Research: Proposals For A More Effective Regulatory Scheme, Karen A. Jordan

Karen A. Jordan

No abstract provided.

Trademark Issues Relating To Digitalized Flavor, John T. Cross

John Cross

Over the past three decades, most people have become accustomed to dealing with music, film, photography, and other expressive media stored in digital format. However, while great strides have been made in digitalizing what we see and hear, there has been far less progress in digitalizing the other senses. This lack of progress is especially evident for the chemical senses of smell and taste. However, all this may soon change. Recently, several groups of researchers have commenced various projects that could store odors and flavors in a digital format, and replicate them for humans.

Dead Ends And Dirty Secrets: Legal Treatment Of Negative Information, 25 J. Marshall J. Computer & Info. L. 619 (2008), John T. Cross

John Cross

This article discusses the process of innovation and releasing so-called negative information to help others in the process to innovate. The article focuses on patent law and asks the questions: Why do people innovate? Does the legal system really reflect how the process of innovation actually occurs?

Age Verification In The 21st Century: Swiping Away Your Privacy, 23 J. Marshall J. Computer & Info. L. 363 (2005), John T. Cross

John Cross

Today a lot of private businesses have adopted the practice of driver's license swiping where proof of age or security issues arise. This practice has beneficial uses for both private entities, in identifying underage persons and those with fake identification, and law enforcement. However, the problem arise when the private sector, businesses are not using the information to merely identify underage customers or those with fake identification but store the information encoded on the barcode in a computer database. No federal laws and very few state laws regulate the collection and use of this information while the private sector is …

Sexting And Freedom Of Expression: A Comparative Approach, Joanne Sweeny

JoAnne Sweeny

No abstract provided.

Is It Time For A Universal Genetic Forensic Database?, Christopher Slobogin, Ellen Wright Clayton, J. W. Hazel, B. A. Malin

Christopher Slobogin

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Is It Time For A Universal Genetic Forensic Database?, Christopher Slobogin, Ellen Wright Clayton, J. W. Hazel, B. A. Malin

Ellen Wright Clayton

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …