Law Commons^™

The U.S. Is Net-Neutral. The Rest Of The World? Maybe Not So Much., Michael Bernstein

AELJ Blog

Last month, the Federal Communications Commission (“FCC”) voted to regulate Internet service as a public utility. This move helps ensure that Internet service providers do not block content or divide the web into fast lanes for Internet and media companies that can afford it and slow lanes for everyone else.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 20, 2015. The original post can be accessed via the Archived Link button above.

Patent Troll Loses Twice In Court; Meanwhile, A Patent Reform Bill Is Reintroduced, Ellii Cho

AELJ Blog

The phrase “patent troll” has been an Internet buzzword for almost a decade but the search for and implementation of effective tools to curb patent trolling is undoubtedly an ongoing endeavor. This blog post surveys current efforts to restrain patent trolling by the courts, lawmakers, and regulators.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 16, 2015. The original post can be accessed via the Archived Link button above.

The Api Copyright Saga Seems Likely To Continue, Katherine Dineen

AELJ Blog

Two massive giants in tech, Google, Inc. (“Google”) and Oracle America, Inc. (“Oracle”), have been duking it out on different judicial stages. The fight is over Google’s use of Java API packages in the creation of the Android operating system. The Java API packages, first developed by Sun Microsystems, Inc. (“Sun”) in the mid-nineties, were owned by Oracle pursuant to their acquisition of Sun in 2010. It is important to note that the Java programming language is not at issue in this dispute.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 12, …

New Wine, Old Bottles, And A Do-Nothing Congress, Michael E. Herz

Online Publications

The Rivers and Harbors Act of 1899 was adopted to protect against hazards to and interference with navigation. It prohibited “creation of any obstruction to the navigable capacity of any of the waters of the United States” or altering or filling navigable waters (§10) and also made it unlawful “to throw, discharge, or deposit . . . any refuse matter” into navigable waters “whereby navigation shall or may be impeded or obstructed,” although the Corps of Engineers could permit such a discharge if “anchorage and navigation will not be injured thereby” (§13). For two-thirds of a century, those provisions operated …

Criminal Athletes: The Expanding Necessity To Create Uniform Punishments In Professional Sports, Maria Kefalas

AELJ Blog

On February 19, 2014, Ray Rice, star running back for the Baltimore Ravens, assaulted his then-fiancée, Janay Palmer, in a hotel elevator in Atlantic City, New Jersey. This incident brought an increased level of scrutiny towards professional athletes and their organizations by shining a spotlight on egregious personal indiscretions that had previously been overlooked. The four major North American professional sport organizations (Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League) have all have dealt with incidents of violence and criminal activity on and off the field, yet there have not been any …

Your Samsung Smart Tv May Not Be Spying On You, But Here’S Why You Should Still Be Careful, Jessica Zeichner

AELJ Blog

Samsung has come under fire more than once in recent weeks. In one incident, owners of its Smart TVs have been complaining that Samsung is inserting Pepsi ads during the playback of their own locally stored movies. Samsung initially tried to sell ads on its Smart TVs, but quietly stopped the distribution of paid apps for its Smart TVs and connected Blu-ray players about a year ago because it realized that most people simply didn’t want to pay for TV apps. This isn’t a huge surprise, considering that publishers generally prefer subscription models such as Netflix that allow them to …

Creating A Safe Haven In The Online-Dating Community, Rachel Schwartz

AELJ Blog

Internet dating websites have become an increasingly popular way for people to meet their significant others. These websites provide an easily accessible way to engage in the dating world, in a time when lifestyles have become jammed packed with other obligations. Safety concerns accompany this increased usage because of the nature of these websites. Member profiles only provide a glimpse of the potential partner, and often times are false or misleading. A user may unknowingly be communicating with a sex offender, and not even know it. This interaction has the potential of leading to a sexual offense.

This post was …

What Happens To A Person’S “Digital Assets” When They Die?: A Legislative Proposal, Jessica Preis

AELJ Blog

The Internet has become an expansive virtual world users around the world are exploring, annexing, and defining, just as they always have always done in terra firma, or the natural physical world. With the click of a mouse, anybody has the ability to purchase digital books, movies, and music. People are also using the Internet to communicate with others. We create online accounts, paving digital footprints, trails of data from our Internet usage, and building pseudo-homes within the terrains of the World Wide Web on social media sites. It is undeniable that social media use is booming. According to Pew …

Women’S World Cup ‘Turf War’ Is Over, Nicole Mannello

AELJ Blog

This past October, a group of professional women’s soccer players, including stars Abby Wambach and Nadine Angerer, filed a lawsuit alleging gender discrimination against FIFA and the Canadian Soccer Association (the “CSA”) in the Ontario Human Rights Tribunal. The suit arose from the CSA’s and FIFA’s decision to use artificial turf instead of real grass for the 2015 women’s World Cup. All previous world cup tournaments and the upcoming men’s World Cup in Russia (2018) and Qatar (2022) have been played and will be played on natural grass.

This post was originally published on the Cardozo Arts & Entertainment Law …

Under The Prison Litigation Reform Act's So-Called Three Strikes Provision, When Does A Dismissal Count As A Strike: Coleman V. Tollefson (13-1333), Betsy Ginsberg

Articles

The Prison Litigation Reform Act of 1996 amended the federal in forma pauperis statute to include, among other provisions, what has become known as the “three strikes provision.” Under this provision, prisoners who have accumulated three strikes—three dismissals of cases that were frivolous, malicious, or failed to state a claim—are no longer permitted to proceed in forma pauperis unless they can show immediate danger of serious physical injury. This case asks the Court to determine whether a dismissal by the district court immediately counts as a strike or whether it does not count until any appeal of the dismissal has …

3d Printing And Patent Liability, J. T. Gaskill

AELJ Blog

Dr. Hideo Kodama developed the first three-dimensional printing technology, called Rapid Prototyping (“RP”), in 1980. Kodama developed his RP technology for creating industrial prototypes. Kodama unfortunately failed to file the full patent specification before the oneyear deadline. Six years later, the United States Patent Office issued Charles Hull the first patent for his stereolithography apparatus (“SLA”), constituting the genesis of modern 3D printing technology. Numerous new 3D printing methods were developed and patented between the 1980s and early 2000s. Within the past ten years, the 3D printing sector has settled into two distinct emphases.

This post was originally published on …

Cardozo Bmi Networking Reception, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Please RSVP here by February 27.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 17, 2015. The original post can be accessed via the Archived Link button above.

Suggestions For Bitcoin Regulation, Gabriela Wong

AELJ Blog

Bitcoin is widely relevant. Just look at the variety of Bitcoin-related accounts on Instagram, including one where a family of four is travelling around the United States using only Bitcoins. Bitcoin has also been introduced to mainstream consumers across the world as pre-paid gift cards. Walk into a convenience store in South Korea or Taiwan and buy yourself some Bitcoins on the spot. Similarly, Bitcoins have real-world implications since major retailers such as Overstock have begun to accept Bitcoins as an alternative form of payment.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on …

That Facebook Hoax Explained, Amy Delauter

AELJ Blog

“Better safe than sorry right. Channel 13 news was just talking about this change in Facebook’s privacy policy. Better safe than sorry. As of January 3rd, 2015 at 11:43am Easter standard time. I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, or posts, both past and future. By this statement I give notice to Facebook it is strictly forbidden to disclose, copy, distribute or take any other action against me based on this profile is private and confidential information. The violation of privacy can be punished by law (UCC 1-308-11 308-103 and …

3d Printing And Beyond Seminar: Emerging Ip Issues With 3d Printing And Additive Manufacturing, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Cardozo Arts and Entertainment Law Journal hosted its Spring Symposium on Monday, February 2nd, 2015. The heavy precipitation and frigid temperatures did not stop practitioners, scholars, and students alike from coming together in impressive numbers to engage in a discussion about the intellectual property issues surrounding 3D printing.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 7, 2015. The original post can be accessed via the Archived Link button above.

Getting Up To Speed: The Disconnect Over Municipal Broadband, Kenneth Eng

AELJ Blog

Since the inception of the Internet, users have demanded faster download and upload speeds in order to quickly access and share webpages, news, photos, and videos. During the 1990s, most Internet users accessed the web through “dial-up” modems, where access was limited to 56 kilobits per second (Kbps). Today, technological progression allows some users to access the Internet at speeds of up to 1000 megabits per second (Mbps), but the average download speed in the United States hovers around 32 Mbps. This dramatic increase in Internet speeds has allowed users to peruse and explore the web in a significantly different …

Crowdfunding An Independent Film Project, Matthew Strong

AELJ Blog

Crowdfunding describes the collective cooperation, attention and trust by individuals who network and pool their money via a preferred Internet platform to support efforts initiated by other people or organizations. The “crowd” in crowdfunding is comprised of online donors from a web platform. Though crowdfunding crosses the lines of commercial, political and non-profit campaigns, it’s been most notable as a haven for philanthropic opportunity, namely the broad area we call “the arts.”

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on January 14, 2015. The original post can be accessed via the Archived Link …

2015-2016, Benjamin N. Cardozo School Of Law

Student Handbooks

No abstract provided.

Are Physician-Patient Communications Protected By The First Amendment?, Martha Swartz

Cardozo Law Review de•novo

In the past several years, a number of states have enacted laws restricting physicians’ rights to speak freely with their patients. These laws go beyond informed consent laws enacted in most states in the 1960s and 1970s. While the informed consent laws require physicians to provide certain categories of information to patients prior to invasive treatment—such as the nature of the risks and benefits entailed—these new laws either prohibit physicians from discussing certain topics or mandate that they provide specific information to their patients that is only questionably supported by medical evidence. In the past several years, a number of …

The Compensation Conundrum In Partial Takings Cases And The Consequences Of Borough Of Harvey Cedars, Brittany Harrison

Cardozo Law Review de•novo

This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods …

Information Privacy And Data Security, Lauren Henry

Cardozo Law Review de•novo

Legal academic and policy discourse generally presumes that information privacy and data security are interchangeable goals. The conventional wisdom is that data security is a handmaiden of information privacy, and so what serves data security will serve information privacy. However, this view is an oversimplification of the relationship between the two fields. This Essay aids law and policy development in both fields by correctly defining their relationship to one another. Data security has separate objectives from information privacy that can be agnostic or even in opposition to information privacy. The law should acknowledge information privacy and data security as separate …

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Introduction: Data Breaches: Moving Forward, Practically, Cindy E. Zuniga

Cardozo Law Review de•novo

Cardozo Law Review de•novo’s online symposium: Data Breaches: Moving Forward, Practically focuses on proactive steps that policymakers, regulators, the judiciary, and businesses can take to address the array of issues arising from data breaches. The online symposium features articles from Lauren Henry, Adam Lamparello, Peter Yu, and David Thaw.

Data Breach (Regulatory) Effects, David Thaw

Cardozo Law Review de•novo

Breach notification laws have been a major driver of data protection efforts in U.S. organizations for more than a decade. This form of disclosure-based regulation exists in 47 of 50 U.S. states, as well as four other U.S. jurisdictions, but has yet to be adopted as a law of general applicability at the federal level.

This Essay considers the effects the structure of existing disclosure-based cybersecurity regulation has on the efficacy of U.S. firms’ cybersecurity measures. Drawing on previous empirical work and analysis of firm incentives, it suggests two modest conclusions about the most efficacious legal structures: (1) that any …

Religious Freedom: Why States Are Unconstitutionally Burdening Their Own Citizens As They “Lower” The Burden, Jason Goldman

Cardozo Law Review de•novo

Part I of this Note traces the development of the Supreme Court’s First Amendment precedent, including a discussion of Congress’s enactment of Federal RFRA. Part II introduces the states’ legislative efforts with regard to free exercise statutes, culminating with the problematic “burden” RFRA movement. Part III outlines a brief history of both the Establishment Clause and Separation of Powers doctrine, and analyzes how “burden” RFRAs are unconstitutional in light of each, respectively. Part IV discusses the implications of this progressive trend, specifically focusing on the boundless government litigation, civil rights concerns, and the health and safety issues that have resulted. …

Rethinking Standing In Patent Challenges, Michael J. Burstein

Articles

No abstract provided.

Redressing Hiv/Aids Discrimination In Nigeria: The Implications Of The Anti-Discrimination Act Of 2015, Ngozi Okidegbe

Articles

No abstract provided.

Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles

Articles

The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …

Cost-Benefit Analysis As A Commitment Device, Matthew Wansley

Articles

Cost-benefit analysis does not age well. As scientific understanding of health, safety, and environmental risks accumulates over time — and as the technology to mitigate those risks becomes more affordable — the assumptions underlying a rule’s cost-benefit analysis obsolesce. Yet because of agency inaction, rulemaking ossification, and inattention to priority setting, outdated rules persist. In order to combat obsolescence, agencies should use cost-benefit analysis as a commitment device. When an agency analyzes a rule, it should precommit to subsequently adopting a more stringent rule than the one it initially promulgates, if and when a private actor credibly demonstrates that the …