Law Commons^™

The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, Robert W. Gomulkiewicz

Articles

The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie the creation and …

Revisiting The Thames Formula: The Evolving Role Of The International Maritime Organization And Its Member States In Implementing The 1982 Law Of The Sea Convention, Craig H. Allen

Articles

Despite the findings that marine casualty rates have "plummeted" and the safety record of the oil transport industry has "significantly improved," high visibility pollution incidents in the last decade like those involving the tankers Erika and Prestige off the coast of Europe, together with the chronic problems of illegal and unregulated fishing and dismal labor conditions for many seafarers led a United Nations-chartered consultative group of leading international organization representatives to conclude that there is an "urgent" need to improve State performance in the implementation and enforcement of the international maritime legal regime.

There is less agreement, however, in how …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

Are "Better" Security Breach Notification Laws Possible?, Jane K. Winn

Articles

This Article will evaluate the provisions of California's pioneering security breach notification law (SBNL) in light of "better regulation" or "smart regulation" criteria in order to highlight the costs of taking a narrowly focused, piecemeal approach and the benefits of taking a more comprehensive perspective to the problems of identity theft and information security. Just as the basic structure of SBNLs was borrowed from environmental law, this Article will borrow from decades of analysis of the impact of environmental regulation to evaluate the likely impact of SBNLs.

Just as environmental laws can be used to reduce externalities created through the …

Globalization And Standards: The Logic Of Two-Level Game, Jane K. Winn

Articles

The emergence of a global information architecture has fueled regulatory competition among nations and regions to set information and communication technology (“ICT”) standards. Such regulatory competition can be thought of as a two level game: level one is competition to set ICT standards within a nation or region; level two is competition to set the global ICT standards with reference to local standards.

The United States and the European Union are global leaders in setting ICT standards, and compete to set global ICT standards based on different local regulatory cultures: the U.S. is a “liberal market economy” (“LME”) within which …

Defusing The "Atom Bomb" Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckeeson Et Al., Sean M. O'Connor

Articles

The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office's Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then.

This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of materiality and …

China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh

Washington International Law Journal

In August 2007, China enacted an Anti-Monopoly Law, becoming one of roughly ninety nations to establish a comprehensive regulatory regime governing competition. Since the advent of China’s economic reform program beginning three decades ago, China has been moving to integrate its economy within the global trading system. This article provides an overview of China’s Anti-Monopoly Law (“AML”) emphasizing key areas of significant apparent divergence from U.S. antitrust policy. The article addresses the evolution of anti-monopoly policy in China and the United States, observing that, where differences exist, China’s AML frequently reflects principles similar to those once embedded in U.S. antitrust …

Electronic Pitfalls: The Online Modification Of Ongoing Consumer Service Agreements, Ben Casady

Washington Journal of Law, Technology & Arts

This Article examines the procedure for online modification of an ongoing consumer contract. It reviews the relevant case law, including Douglas v. U.S. District Court, a recent Ninth Circuit decision that calls into question the validity of changing contractual terms by merely posting the changes on the service provider’s Web site. The Article also examines the discrete components found in an effective online contract modification and provides practical pointers for contract drafters.

Standardization In The European Information And Technology Sector: Official Procedures On The Verge Of Being Overhauled, Patrick Van Eecke, Maarten Truyens

Washington Journal of Law, Technology & Arts

As the European Commission pushes for a reform of traditional procedures in the Information and Communications Technology (“ICT”) sector, the standardization process is intensely debated on the European Union level. This Article provides a concise overview of the past and future European Union policies on ICT standardization and the issues such policies raise.

Redefining Motherhood: Discrimination In Legal Parenthood In Japan, Rachel Brehm King

Washington International Law Journal

Due to Japan’s decreasing population numbers and low birth rate, the country’s legal forces and social norms put tremendous pressure on women to have children. To meet these expectations, Japanese women frequently turn to new forms of medical assistance called Assisted Reproductive Technology (“ART”) to increase their ability to become mothers. ART includes such procedures as artificial insemination, in vitro fertilization, and surrogacy. Although several of these methods are accepted by Japanese law and society, other forms of ART, including certain forms of artificial insemination and surrogacy, are strongly disapproved. Japan’s current legal framework prevents women from accessing the full …

Getting Facts Straight (And Writing Well Too), Mary Whisner

Librarians' Articles

Librarians who provide information need to ensure that they are providing the best information and that they are communicating it as accurately as possible. Ms. Whisner reviews some situations where things can go wrong and ways to make sure that they don't.

Mattress Tags And Pillow Cases, Mary Whisner

Librarians' Articles

A simple question about the origins of the law prohibiting the removal of mattress tags led Ms. Whisner on a whirlwind tour of state and federal law, regulations, and history. In the end she not only found the answer, she also learned a few new lessons about legal research.

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

Tax Shelters And Statutory Interpretation: A Much Needed Purposive Approach, Shannon Weeks Mccormack

Articles

Few are unaware that the Tax Code and Regulations provide a detailed, complex (and lengthy) set of rules. It is hardly surprising (or new) that taxpayers attempt to avoid these rules to lower their taxes. Courts and lawmakers have long grappled to identify abusive transactions and strip taxpayers of the associated tax savings. The transactions have, however, changed dramatically over the last decade making the task much more challenging. The rapid proliferation of aggressive and diverse tax shelters has created what many refer to as a tax shelter war. In general, tax shelters refer to transactions carefully designed to fit …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …

Hiding Behind "Tradition"? Should U.S. Vessel Traffic Centers Exercise Greater Direction And Control Over Vessels In Their Areas?, Craig H. Allen

Articles

In the alermath of the 2007 COSCO BUSAN allision and oil spill, some asked whether United States Coast Guard Vessel Traffic Service (VTS) operators monitoring the developing incident should have intervened explicitly to wam the vessel or even order it to take avoiding action.

The controversy called to mind a speech by a former IMO secretary-general in which he suggested that those resisting greater shore-based control were "hiding behind tradition." In its investigation of the COSCO BUSAN incident, the National Transportation Safety Board (NTSB) urged the Coast Guard to better define its expectations regarding the exercise of VTS control authority …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

Articles

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low.

Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, …

Worst Case And The Worst Example: An Agenda For Any Young Lawyer Who Wants To Save The World From Climate Chaos, William H. Rodgers, Jr., Anna T. Moritz

Articles

Wherever you turn with regard to climate change, you'll hear about the worst, and the worst of the worst, and the worst that will happen after that. Young lawyers should put themselves in the right frame of mind to tackle all these "worsts" that are headed our way.

In the interest of keeping it simple, we would suggest a personal strategy for every young lawyer that would entail: (I) Honoring Knowledge and Learning; (II) Protecting Your Institutions and Loving Your Country; (III) Planning and Conducting Your Personal War on Bad Law; and (IV) Rejecting Defeatism and Impossibility Theorems.

Let's consider …

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

Articles

This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

Answering Brief For The United States - United States V. Washington, Docket No. 08-35794 (593 F.3d 790 (9th Cir. 2009) (As Amended Jan. 10, 2010))

United States v. Washington, Docket No. 08-35794 (593 F.3d 790 (9th Cir. 2009) (as amended Jan. 10, 2010))

No abstract provided.

Uwlaw, Fall 2008, Vol. 58

Alumni Magazines

No abstract provided.

Trading Information For Safety: Immigrant Informants, Federal Law-Enforcement Agents, And The Viability Of Non-Deportation Agreements, Colleen Melody

Washington Law Review

Federal law-enforcement agents use informants to help guide investigations. Immigrants sometimes possess valuable information about organized crime connected with their home countries. To persuade an immigrant to divulge such information, federal agents and prosecutors often promise to reward cooperation with permission to stay in the United States. Non-deportation is a persuasive enticement to an informant who might otherwise be unwilling to help; criminal groups would likely harm a known informant returning home. After deciding to cooperate, many immigrants are placed in deportation proceedings notwithstanding their deals. This Comment discusses the persistent legal conundrum faced by immigrant informants after the U.S. …

The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein

Washington Law Review

This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic …

Four-Factor Disaster: Courts Should Abandon The Circuit Test For Distinguishing Government Speech From Private Speech, Lilia Lim

Washington Law Review

A recent addition to First Amendment jurisprudence, the government-speech doctrine was developed by the Supreme Court to insulate government speech from certain First Amendment challenges. Broadly, the doctrine rests on the notion that when the government speaks for itself, it may say what it wishes. Recently, government entities facing claims of viewpoint discrimination against speech have asserted a government-speech defense, claiming that their viewpoint-based actions were justifiable because they were not regulating private speech but speaking for themselves. Several federal courts deciding these cases have applied a circuit-developed, four-factor test to determine whether the speech at issue was private speech …

Disability, Vulnerability, And The Limits Of Antidiscrimination, Ani B. Satz

Washington Law Review

Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to the social …

"Everybody Is Making Love Or Else Expecting Rain": Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin

Washington Law Review

One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures. As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal-justice system: who may be incompetent to stand trial; who have been found incompetent …

Federal Tax Consequences Of Virtual World Transactions, G. Martin Bingisser

Washington Journal of Law, Technology & Arts

This article discusses the tax consequences of transactions involving Massive Multiplayer Online Role Playing Games (“MMORPGs”). MMORPGs have recently grown in popularity and developed significant economic activity. Virtual goods used in these games are traded for both real and virtual currency. While few dispute that a sale of virtual goods for real currency is a taxable event, more complex tax issues arise concerning transactions that occur solely within virtual worlds. This article analyzes the tax consequences and policy issues surrounding such transactions.

Age Verification As A Shield For Minors On The Internet: A Quixotic Search?, Francoise Gilbert

Washington Journal of Law, Technology & Arts

This article examines the issues raised by the use of the Internet by minors and children. In addition to being an outstanding source of information and a tool for connecting people in numerous affinity networks, the Internet has a dark side. Its resources may be abused for many bad deeds, including cyber bullying or facilitating encounters with child predators. One way to protect minors is to ensure that their age and identity is verified. However, this is not technically feasible without infringing on the privacy of these children as well as that of the adults who might have to be …

Ethical Duties To Prospective Clients Who Send Unsolicited Emails, Nicole Lindquist

Washington Journal of Law, Technology & Arts

Recent Iowa and Massachusetts ethics opinions declared that an attorney may owe ethical obligations to prospective clients who send the attorney just a single email regarding legal assistance. These ethics opinions are part of a trend whereby jurisdictions are extending the duty of confidentiality to prospective clients who send unsolicited emails to attorneys, when those persons reasonably believe that the conveyed information will be held in confidence. These opinions highlight the importance for all attorneys to disclaim duties of confidentiality and representation, particularly when advertising online. This article discusses ethical opinions regarding prospective clients who send unsolicited emails and concludes …

Myspace Or Yours? The Impact Of The Myspace-Attorneys General Agreement On Online Businesses, Chelsea Peters

Washington Journal of Law, Technology & Arts

On January 14, 2008, social networking Web site MySpace.com announced an agreement with the Attorneys General of forty-nine states and the District of Columbia aimed at increasing the safety of children online. MySpace.com and the Attorneys General created a “Joint Statement on Key Principles of Social Networking Sites Safety,” which sets forth various principles and goals for improving online safety for children through new online safety tools, design and functionality changes, education tools, and law enforcement cooperation. This article closely examines the agreement between MySpace.com and the Attorneys General and attempts to determine whether any best practices have emerged regarding …