Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

Contracting In The Modern World, Enrico Baffi

enrico baffi

In this paper we try explore some of the basic features of mass contracting. In our opinion, there are basically four characteristics of mass contracting: the reduced negotiations, the dissemination of standard form contracts, the presence of abusive clauses, and the recapitulation of the contract and its execution in a single act of stipulation. a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalised contracts; secondly, this reduction is the consequence of the greater advantage of mass-produced goods compared to personalised goods; ) The …

Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford

Scott Shackelford

Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven J. Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

Reproductive Technology Development Of Artificial Wombs And Its Prospective Impact On Employment Law: How Federal Legislation Must Redefine “Birth” After Ectogenesis To Rectify 29 U.S.C.A. § 2612 Of The Family And Medical Leave Act Of 1993, Daniel J. Burns

Daniel J Burns

There are countless issues stemming recent advancements in the field of reproductive technology. This article focuses specifically on redefining “birth” to appropriately reflect how external fetal gestation will inevitably impact the future of both maternity and paternity leave in the United States and provides recommendations on how to rectify the currently ambiguous federal legislation.

Spectrum Rights For Complementary Connectivity, Sarah Oh

Sarah Oh

In spectrum policy, regulators define legal certainties to withstand the dynamics of technology change. Coordinated networks of wireless radios – over-the-air television antennas, 4G LTE mobile broadband, WiFi nodes, satellite dishes, GPS chips, and government devices – each depend on independent rulemakings to provide degrees of operational certainty. Yet innovative technologies can layer noise across radio constituencies with flexibility, as engineers rightly claim, if minds meet in economic alignment.

The stubborn challenge is a sequential one, as hardware design relies on existing knowledge and future uncertainty, with necessary conditions to stabilize emission patterns and harmful interference expectations. The state of …

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

Understanding Search Engines: A Legal Perspective Of Liability In The Internet Law Vista, Gönenç Gürkaynak, İlay Yılmaz, Derya Durlu

Gönenç Gürkaynak

This contribution discusses the legal dimension of the functioning of search engines in an Internet law context, both across the world and in Turkey. The paper initially introduces the subject matter in the growing Internet industry and the role of search engines in distributing and disseminating information. Secondly, a world-wide perspective on the legal dimension of search engines is discussed. Third, the liability of search engines as understood in the Turkish legal context is evaluated. The paper finally concludes by providing an overall evaluation of the general remarks submitted.

The Discoverability Of E-Mails: The Smoking Gun Of The Modern Era, Michael J. Martin

Michael J Martin

The discoverability of e-mails is an area of law that every modern day lawyer must be familiar with in order to avoid the risk of being sanctioned. Over the past years, courts have awarded sanctions to moving parties at a steadily increasing pace. These sanctions have included adverse jury instructions, default judgments, attorney’s fees, large monetary fines, and in one instance, a jail sentence. Courts have sent the message that improper conduct will not be tolerated in this developing area of law by not hesitating to order sanctions. Thus, it is essential that modern day lawyers become acquainted with the …

Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang

Chester S. Chuang

Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …

Law Student Laptop Use During Class For Non-Class Purposes: Temptation V. Incentives, Jeff Sovern

Jeff Sovern

ABSTRACT LAW STUDENT LAPTOP USE DURING CLASS FOR NON-CLASS PURPOSES: TEMPTATION v. INCENTIVES Jeff Sovern St. John’s University School of Law This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings: • More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class …

The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser

Mark Strasser

Personhood statutes and amendments have been proposed in several states. As a general matter, they establish as a matter of state law that legal personhood begins at conception. Such laws may have implications for state policies concerning abortion and contraception, and will have implications for other areas of law including state policies related to assisted reproductive technologies. Yet, some of the ways in which these different areas of law might be affected are not well understood and thus are explored here.

The Court Misses The Point Again In United States V. Jones: An Opt-In Model For Privacy Protection In A Post Google-Earth World, Mary G. Leary

Mary G Leary

“Nothing is private anymore.” This is an oft repeated sentiment by many Americans, not to mention the focus of judicial confusion and legislative blustering. In the wake of publicly available technologies such as Google Earth, internet tracking, cell phone triangulation, to name just a few, many people feel unable to prevent the government or anyone from obtaining private information. While this may seem simply a function of a modern world, this reality creates a fundamental problem for Fourth Amendment jurisprudence which has heretofore gone unrecognized. The Fourth Amendment protects citizens from unreasonable searches and seizures. Therefore, in order for the …

Breakthrough Science And The New Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from …

Illuminating Innovation, Lea B. Shaver

Lea Shaver

The central justification offered for patent protection is the need to incentivize technological innovation. Yet to date there is little empirical evidence that this aim is achieved. This Article argues that historical case studies, exploring the impact of patent law on particular fields of technological innovation, can be especially helpful in providing an empirical foundation for patent scholarship. The Article then proceeds to offer one such case study, focused on one of the most important technological revolutions of the past two centuries: electrification. Although Thomas Edison and “the incandescent lamp” have been extensively studied, so far no one has asked …

Constructing Access Through Exclusion. The Effect Of Individual And Collective Patent Ownership And Licensing On Openness In Human Genomic Science, Geertrui R.L. Van Overwalle

Geertrui R.L. Van Overwalle

Human genomic science and intellectual property are often considered to be at odds. The present paper is an attempt to analyse the current problems in gene patenting through the lens of individual, multiple and collaborative ownership. The objective of the present chapter is to systematize the relation between modes of ownership, modes of licensing and their effect on access.

Individual and multiple ownership have different effects. Individual ownership may result in blocking patent positions and multiple ownership may lead to hindering patent thickets. Both phenomena frustrate follow-on innovation. The effect of individual and multiple ownership, blocking patents and patent thickets …

Do Japanese Trade Secret Laws Finally Work? A Comparative Analysis Of Japanese And U.S. Trade Secret Law, Travis A. Flynn

Travis A Flynn

This paper will explore and analyze trade secret law in Japan, and how the recent revisions to Japanese trade secret law compares to the doctrine generally followed in the United States. This analysis begins with a very brief examination of the historical differences between the two regions with respect to trade secret protection. The paper then goes into a comparative statutory analysis of the Japanese Trade Secret law, examining each of the “elements” of trade secret misappropriation and comparing those to how they are applied in the United States. The next section examines the remedies and penalties available in Japan …

To Be Or Not To Be (A Parent)? – Not Precisely The Question; The Frozen Embryo Dispute, Yehezkel Margalit

Hezi Margalit

Modern medicine offers a variety of fertility treatments, with the result that in the United States alone, there are more than 400,000 frozen embryos and another 10,000 are frozen every year. Since the rate of divorce in the United States increases exponentially, one can easily imagine how many frozen embryos could become open to litigation. Indeed, the media, the law and the people concerned with the ethical aspects have devoted much attention to this issue. This is because litigation forces the reassessment of many complex issues starting with the appropriate balance between an individual’s legal right to be and not …

Law Of The Intermediated Information Exchange, Jacqueline Lipton

Jacqueline D Lipton

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Governing The Final Frontier: A Polycentric Approach To Managing Space Weaponization And Debris, Scott Shackelford

Scott Shackelford

Effective space governance has become increasingly important to spacefaring and non-spacefaring powers alike given the interrelated problems of space weaponization and debris management, but thus far the applicable legal regimes remain amorphous and outdated. For example, the 1967 Outer Space Treaty (OST) establishes space as being free from national appropriation, while setting out certain property rights. But legal ambiguities persist, such as regarding what weapons are permitted in space since the military use of space has not been forbidden, only the placement of weapons of mass destruction in orbit and the establishment of military bases on the moon or other …

Interoperable Electronic Healthcare Record: A Case For Adoption Of A National Standard To Stem The Ongoing Healthcare Crisis, Deth Sao, Amar Gupta, David A. Gantz

Deth Sao

Interoperable electronic health records (EHR) have the capacity to deliver health care at optimal costs and quality in the United States, but current private and public initiatives have delayed nationwide implementation by failing to overcome several obstacles. These obstacles include: widespread reluctance in adopting health information technology (HIT); differing technical and semantic standards for communication between vendor systems; and legal challenges, which are mainly based on liability, privacy, and security concerns. This paper examines these challenges and the inadequacies of current HIT-EHR implementation strategies, questioning in particular the validity of privacy and security-based concerns. A comparison with the U.S. finance …

Right To Information Identity, Elad Oreg

Elad Oreg

Inspired by the famous Warren&Brandeis conceptualization of the "right to privacy", this article tries to answer a different modern conceptual lacuna and present the argument for the need to conceptualize and recognize a new, independent legal principle of a "right to information-identity". This is the right of an individual to the functionality of the information platforms that enable others to identify and know him and to remember who and what he is. What was happening regarding privacy in the late 19th century happens now with identity. Changes in technology and social standards make the very notion of identity increasingly fluid, …

Propelling Aviation To New Heights: Accessibility To In-Flight Entertainment For Deaf And Hard Of Hearing Passengers, Michael A. Schwartz

Michael A Schwartz

In-flight entertainment has been available for over forty-five years, but to this day remains without captions or subtitles, thus depriving deaf and hard of hearing passengers of access to this service. The Air Carrier Access Act of 1986 (“ACAA”) and implementing regulations do not require captioning of in-flight entertainment, and Congress, the airline industry and the U.S. Department of Transportation (“DOT”) have yet to remedy the problem. The courts do not allow deaf and hard of hearing passengers a private right of action and punitive damages under the ACAA. The DOT recently indicated it will issue a Notice of Proposed …

The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi

enrico baffi

This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful and sometimes impossible. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms to …

Mental Budget And Inefficient Clauses: A Lesson From Behavioral Law Nand Economics, Enrico Baffi

enrico baffi

This paper is an attempt to highlight how clauses, which are traditionally considered to be inefficient, may actually be desired by consumers. This anomaly originates in the fact that each individual builds a mental budget by dividing the money he has among the needs he intends to satisfy. According to consumers’ reasoning, money is not fungible, in the sense that amounts cannot be transferred from one expenditure to another. Consumers who behave in this way may sometimes find that they have depleted the amount they budgeted for an item while wanting to buy more of it. Since additional time, efforts …

Threats Escalate: Corporate Information Technology Governance Under Fire, Lawrence J. Trautman

Lawrence J. Trautman Sr.

In a previous publication The Board’s Responsibility for Information Technology Governance, (with Kara Altenbaumer-Price) we examined: The IT Governance Institute’s Executive Summary and Framework for Control Objectives for Information and Related Technology 4.1 (COBIT®); reviewed the Weill and Ross Corporate and Key Asset Governance Framework; and observed “that in a survey of audit executives and board members, 58 percent believed that their corporate employees had little to no understanding of how to assess risk.” We further described the new SEC rules on risk management; Congressional action on cyber security; legal basis for director’s duties and responsibilities relative to IT governance; …

"Resq"Ing Patent Infringement Damages After Resqnet: The Dangers Of Litigation Licenses As Evidence Of A Reasonable Royalty, Layne S. Keele

Layne S. Keele

Almost everyone agrees that, when a patent owner seeks a reasonable royalty as patent infringement damages, prior patent licenses are useful in determining the reasonable royalty. But the use of licenses arising out of the settlement of litigation— “litigation licenses”—has met with mixed acceptance, with some courts admitting litigation licenses into evidence and other courts excluding the licenses under Rules 402, 403, or 408. Recently, some district courts have concluded that the Federal Circuit’s 2010 decision, ResQNet.com, Inc. v. Lansa, Inc. resolves this question in favor of the use of these litigation licenses. This article shows, first, that this conclusion …

Global Taxation Of Cross Border E-Commerce Income, Rifat Azam Dr.

Rifat Azam Dr.

Amazon sells tangibles, intangibles and services worldwide that totaled $34 Billion USD in 2010. At eBay.com more than 97 million active users globally meet to sell and buy online in total amount of $62 Billion USD in 2010. Global clicks at Google.com contributed substantially to its $10.5 Billion USD revenues in Q4 2011. In the year 2010 Americans spent around $173 billion USD shopping online. Global e-commerce turnover is expected to grow up to $963 Billion USD in 2013. These figures illustrate the importance of e-commerce in the global economy today and tomorrow. The taxation of e-commerce as well is …

Data Protection: Idealisms And Realisms, Rebecca Wong Dr

Dr Rebecca Wong

Following proposals to consider revising the Data Protection Directive 95/46/EC (DPD) in 2011, have the changes addressed the main areas of concern that have been the focus of much discussion? The areas of concern include the application of the Directive in the online age, particularly to social networking sites and cloud computing; the minimum/maximum standard approach by the EU Member States to data protection; the relevance and application of the data protection principles. These are some of the issues that were considered in the recent Art. 29 Working Party’s Opinion on the Future of Privacy. The article will use this …