Law Commons^™

"Cooperative Federalism" Gone Wrong: The Implementation Of The Telecommunications Act Of 1996, Roy E. Hoffinger

Colorado Technology Law Journal

No abstract provided.

Year 2002: The Year Of The Telecom Meltdown, Dale A. Oesterle

Colorado Technology Law Journal

No abstract provided.

Incentives To Speak Honestly About Incentives: The Need For Structural Reform Of The Local Competition Debate, Jonathan E. Nuechterlein

Colorado Technology Law Journal

No abstract provided.

Daubert Asks The Right Questions: Now Appellate Courts Should Help Find The Right Answers, Christopher B. Mueller

Publications

No abstract provided.

Ucita, Copyright, And Capture, Deborah Tussey

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Queers Anonymous: Lesbians, Gay Men, Free Speech, And Cyberspace, Edward D. Stein

Articles

The expansion of cyberspace in the past decade has created unprecedented opportunities for communication, both across the globe and across the street. The Internet and other forms of cyberspace have provided new avenues for anonymous and pseudonymous communication. Individuals can now interact without the traditional constraints of time, place, and manner of communication.

Cross Border E-Commerce And The Gst/Hst: Towards International Consensus Or Divergence?, Keith R. Evans

Canadian Journal of Law and Technology

In February 2001, the OECD issued a draft report on ‘‘Consumption Tax Aspects of Electronic Commerce’’. The purpose of this report was to seek comments on Working Party No. 9’s conclusions and recommendations in respect of the approach to be taken on the application of consumption taxes to e-commerce in light of the Ottawa Taxation Framework Conditions. The 1998 Conditions called for the taxation principles that applied to traditional commerce to be the guide for the taxation of e-commerce, to ensure non-discriminatory tax treatment of electronic commerce transactions. In November 2001, the Canada Customs and Revenue Agency (‘‘CCRA’’) issued its …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel Gervais, Alana Maurushat

Canadian Journal of Law and Technology

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

Einstein On The Bench?: Exposing What Judges Do Not Know About Science And Using Child Abuse Cases To Improve How Courts Evaluate Scientific Evidence, Joelle A. Moreno

Faculty Publications

It has been a decade since the Supreme Court made judges the arbiters of scientific validity through Daubert v. Merrell Dow Pharmaceuticals, Inc. Although this decision was intended to improve how courts use science, recent empirical evidence reveals that judges continue to struggle with scientific evidence and that Daubert has failed to yield accurate or consistent decisions. This also means that judges have received little useful guidance from ten years of academic literature expounding on the science-law chasm.

If the academic discourse is not helpful, it may be because non-scientists too often try to tame science by treating it as …

E Wars - Episode One: The Patent Menace, Raymond Van Dyke

Computer Law Review and Technology Journal

With the advent of the Information Age and the consequent transformation of our society, information companies have recognized the importance of protecting their business methodologies. As with any technological revolution, competition between the players is intense, and in this new arena of business, competitors have turned patents into a weapon of choice. Thus, businesses need new strategies to avoid becoming unnecessary casualties in this war.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

What Online Activity Does The Wiretap Act Protect? The Ninth Circuit Holds That Unauthorized Access Of A Secure Website Does Not Violate The Federal Wiretap Act Konop V. Hawaiian Airlines, Inc., Thomas P. Ludwig

Computer Law Review and Technology Journal

Throughout the last half-century, there has been constant tension in the communication arena between individual privacy interests and the interests of law enforcement in proactively combating crime and terrorism. The difficulty in maintaining a balance between these interests has been compounded by the explosive development in electronic communication technology over the last several decades. In an attempt to bring the state of privacy protection law up to date with modem technology, Congress enacted the Electronic Communications Privacy Act of 1986 ("ECPA"). While the ECPA was enacted "to update and clarify Federal privacy protections and standards," both the usage and the …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Temptations To Take: Misappropriation Of Trade Secrets, Damages And Remedies, Eric S. Tautfest

Computer Law Review and Technology Journal

Protecting trade secrets serves two basic functions: it provides a means for preserving standards of commercial ethics and it encourages innovation. In contrast to a patent or a copyright, a trade secret has no statutory limitation and can, conceivably, be protected forever. Further, while patent and copyright protection extends only to certain types of materials or information, trade secret protection extends to a wide range of information. Additionally, trade secrets are not publicly disclosed; with patents, the entire patent file and its contents become public property.

In Texas, trade secret protection is defined by a large body of welldeveloped case …

Game When They Win; Investment When They Lose: Sec V. Sg, Ltd., Todd M. Tippett

Computer Law Review and Technology Journal

Congress established the Securities Act of 1933 and the Securities Exchange Act of 1934 to protect citizens from fraud in a wide array of financial instruments, ranging from well-established investment vehicles such as stocks and bonds to the more elusive concept of the investment contract. The landmark case of SEC v. W.J. Howey Co. has long grounded judicial efforts in defining what is and what is not an investment contract. The various federal circuit courts struggle, however, with the applicability of one prong of the Howey test, namely the requirement of a "common enterprise," with no indication of an agreement …

Patent Pending ... Pending ... Pending The Evolution Of Equivalents: Festo Corp. V. Shoketsu Kinzoku Kabushiki Co., Karly Stoehr

Computer Law Review and Technology Journal

Information is rapidly becoming many firms' most valuable resource and the patents protecting inventions have become critical strategic assets. In May of 2002, the Supreme Court unanimously issued a ruling on the doctrine of equivalents that will likely trigger inconsistent results in future patent protection cases. Patent holders acquire a limited monopoly of twenty years to generate profits. Patent protection is critical because there is a strong need to provide firms with sufficient incentives to create and invest in new technologies. It is important, therefore, to provide clear guidelines for patent procedures so that inventors may rely on future protection. …

Ashcroft V. Aclu: The Fate Of The Child Online Protection Act, Marybeth Eyrich

Computer Law Review and Technology Journal

Concerns about the proliferation and accessibility of cyber-porn motivated Congress to pass legislation intended to protect children from on-line pornography. This nascent attempt to regulate the Internet has not yet passed constitutional muster, as Congress's efforts to protect children have been thwarted by First Amendment challenges. Ashcroft v. ACLU examines, but does not resolve, the constitutionality of the Child Online Protection Act ("COPA"). The issue in Ashcroft was whether COPA's use of "community standards" to identify "material that is harmful to minors" violated the First Amendment. In a plurality opinion, the Court held that COPA's use of "community standards" does …

Clients' Views On Privacy And Security After September 11: Have They Changed? Should They? An Information Technology Lawyer's Perspective, Richard G. Lyon

Computer Law Review and Technology Journal

No abstract provided.

Looking For A Crack To Break The Internet's Back: The Listen4ever Case And Backbone Provider Liability Under The Copyright Act And The Dmca, Daniel W. Kopko

Computer Law Review and Technology Journal

In August 2002, a group of 13 record labels brought a lawsuit against the four major companies that provide the "backbone" infrastructure of the Internet. The record labels sought an injunction under section 512 of the Digital Millennium Copyright Act of 1982 ("DMCA") to compel the defendants to block access to a China-based website, Listen4Ever.com ("Listen4ever"), that offered free downloads of entire albums of copyrighted music from its central server. The labels alleged that Listen4ever located its operations in China specifically to evade U.S. copyright laws. They noted that the site was in English and offered almost exclusively music by …

Personal Jurisdiction: Lost In Cyberspace?, Susan Nauss Exon

Computer Law Review and Technology Journal

No abstract provided.

The Erosion Of Online Privacy Rights In The Recent Tide Of Terrorism, Thomas P. Ludwig

Computer Law Review and Technology Journal

Imagine a world where any idea or message communicated to another individual is subject to governmental scrutiny for possible criminal, subversive, or terroristic content. The current location of any individual, as well as the places that he or she commonly frequents, can easily be tracked through that person's phone calls, online activity, and financial records, which are all accessible to government agencies. By intercepting e-mails and tracking online browsing, shopping, and other activities, the most intimate details, habits, and preferences of the average individual are readily available to the prying eyes of cyber-criminals and law enforcement officials alike. Scenarios such …

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

Faculty Scholarship

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …

Qui Détient Les Droits D'Auteur Sur Les Diverses Productions Des Professeurs D'Université?, René Pépin

Canadian Journal of Law and Technology

L’utilisation des nouvelles technologies de l’information et de la communication (NTIC) peut prendre un grand nombre de formes. On peut donner l’exemple, déjà appliqué à certains endroits, où le professeur, en plus de dispenser son enseignement dans un local de cours, place le contenu intégral de son cours sur un serveur de la faculté ou de l’université, avec un genre de babillard électronique dans lequel les étudiants peuvent lui poser des questions, lire ses réponses, ou discuter entre eux de différents sujets. Les étudiants peuvent aussi le contacter par téléphone ou par courriel. La technologie facilite également l’enregistrement des cours …

The Internet Direct Public Offering: Establishing Trust In A Disintermediated Capital Market, Jason Trainor

Canadian Journal of Law and Technology

Whereas the process of financial intermediation was once human capital and relationship intensive, it is now heavily influenced by technological innovation and consumer demand, factors which have tended to disrupt the monopoly power of financial intermediaries. Technological innovation alone, however, is not sufficient to replace the institutions and actors that previously dominated the market for public offerings; rather, the concept of disintermediation by definition creates a vacuum that must be filled. Law firms and other intermediaries can create additional value for their clients by assuming some or all of the tasks currently apportioned to investment bankers in the public offering …

Reducing Inconsistency In Udrp Cases, David Wotherspoon, Alex Cameron

Canadian Journal of Law and Technology

The UDRP has proven to be an effective means of resolving domain name disputes. There are, however, a number of shortcomings in the UDRP that affect its legitimacy and fairness. The most glaring of these lies in the failure to delineate the elements outlined in section 4(a) of the UDRP and in the application of Rule 15(a) of the Rules for Domain Name Dispute Resolution Policy (the ‘‘Rules’’).4 These shortcomings have resulted in inconsistency in the decisions of arbitral panels. As it stands, complainants are unable to ascertain the case they must meet in order to succeed and respondents are …

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

Faculty Scholarship

In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release …

Why Did The Antitrust Agencies Embrace Unilateral Effects, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Shape Of The Universe: The Impact Of Unpublished Opinions On The Process Of Legal Research, William R. Mills

Articles & Chapters

Unpublished appellate judicial opinions present formidable challenges for modern legal researchers, from both practical and ethical points of view. The practice of selective publication of court opinions, and attendant court rules that restrict citation of unpublished opinions, have long been the subject of debate within legal profession. The recent case of Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot 235 F.3d 1054 (8th Cir. 2000), has rekindled this debate, giving it a new constitutional dimension, and placing it squarely within the context of judicial accountability and the appropriate separation of powers among our branches of …

A Mind To Blame: New Views On Involuntary Acts, Deborah W. Denno

Faculty Scholarship

This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These binary doctrines have no valid scientific foundation and clash with other key criminal law defenses, primarily insanity. As a result, courts may adjudicate like individuals very differently based upon their (often unclear) understanding of these doctrines and the science that underlies them. This article proposes a compromise approach by recommending that the criminal law's concept of …

Inquiry And Advocacy, Fallibilism And Finality: Culture And Inference In Science And The Law, Susan Haack

Articles

No abstract provided.