Law Commons^™

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …

Reforming Surveillance Law: The Swiss Model, Susan Freiwald, Sylvain Metille

Susan Freiwald

Reforming Surveillance Law: The Swiss Model

Susan Freiwald & Sylvain Métille

As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform EPCA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.

This article is the first to analyze …

The Law Of The Zebra, Andrea Matwyshyn

Andrea Matwyshyn

At the dawn of internet law, scholars and judged debated whether a “law of the horse” – a set of specific laws addressing technology problems – was ever needed. Time has demonstrated that, in some cases, the answer is yes. However, today courts are inherently confused regarding the trajectory for contract law in technology contexts: a technology-centric analysis is threatening to subvert traditional contract law and the future of entrepreneurship: circuit splits have emerged in what might be called an undesirable “law of the zebra.” Do contracts that involve technology indeed require exceptional contract rules? In particular, does the use …

Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer

Parker Tresemer

Since the end of World War II, federally funded universities and private companies have been an integral part of continued American innovation and technological production. However, like most rational economic actors, universities and private companies are only willing to invest in federally funded technologies if they are guaranteed some sort of exclusive return on their investment. By granting federal contractors exclusive patent rights to their employee’s federally funded inventions, the Bayh-Dole Act provided the necessary incentives for private sector investment in federally funded technologies. However, case law subsequent to Bayh-Dole’s enactment has significantly undermined the system of incentives Congress intended …

Reforming The Universal Service Fund For The Digital Age, Daniel Lyons

Daniel Lyons

The marketplace and technological changes that have occurred since the last major revision of the Communications Act in 1996 have rendered existing law and policy woefully outdated, if not obsolete. In the past fifteen years there has been a switch from analog to digital services, from narrowband to broadband networks, and, most importantly, from a mostly monopolistic to a generally competitive environment. In Communications Law and Policy in the Digital Age: The Next Five Years, some of the nation's most eminent scholars explain why communications law and policy should be changed in response to these profound marketplace transitions. And, as …

Aiming At The Wrong Target: The Audience Targeting Test For Personal Jurisdiction In Internet Defamation Cases, Sarah H. Ludington

Sarah H. Ludington

No abstract provided.

Customary International Law 2.0, Scott Sullivan

Scott Sullivan

Throughout history, customary law has been legitimized as an instrument to put the power of law behind the aggregated, collective judgment of citizens. Technological advances in communication have created a world where such collective judgments are easier to identify and apply than ever before. Unfortunately, the current regime design of customary international law formation is tethered to a fiction of state consent that is subjecting the system to creeping anachronism.

This Article offers an alternative theoretical “version” for understanding and justifying the creation of customary international law norms. Consistent with the software versioning invoked in the title, this rethinking of …

Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people and things with rich virtual experiences. As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that …

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren Bartholomew Chik Asst. Prof. Of Law

Warren Bartholomew Chik

This article examines the User-Generated Content (UGC) phenomena and the significance of re-inventions in the context of an increasingly user-centric Internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the Internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from …

Net Neutrality: Applying (And Expanding) Nondiscrimination Norms In Cyberspace, Daniel Lyons

Daniel Lyons

The article discusses the regulations to promote net neutrality in the broadband industry by the Federal Communications Commission (FCC. It focuses on the term unreasonable discrimination taken from Section 202 of the Communications Act that restricts telephone companies and telecommunications providers. Details on benefits offered by tiering approach such as a more intelligent Internet traffic management and greater competition among broadband providers are discussed.

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products and is arranged as follows. After this Introduction, this Article describes the present …

The Rise Of The Common Law Of Federal Pleading: Iqbal, Twombly And The Application Of Judicial Experience, Henry S. Noyes

Henry S. Noyes

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is "real" to them. The …

Putting The Gene Back In The Bottle: Why California Needs Stronger Protection Of Genetic Privacy In The Wake Of Affordable Dna Testing, Farid Zakaria

Farid Zakaria

In recent years, many “direct-to-consumer” genetic testing companies have started offering a DNA analysis service to the public. Based on the analysis of the DNA contained in saliva, these companies are able to inform the customer about his or her likelihood of having certain traits and of developing a number of diseases. Given the sensitive nature of this kind of information, this paper considers whether it is sufficiently protected under the current legal and regulatory framework. Specifically, the paper studies whether current federal, state, and common law that protects medical and private information also guarantees the privacy of genetic information. …

Out With A Bang: The Collapse Of Yucca Mountain Signals The Rise Of The New U.S. Cooperative Federalism Nuclear Reprocessing Model, Stefani C. Norrbin, Faye E. Jones

Faye E Jones

This Article argues that after the collapse of Yucca Mountain, the U.S. should move away from direct disposal by creating a new government backed, state-run corporation modeled after France’s Areva, to implement nuclear reprocessing in the U.S. This new model will help address the currently bankrupt nuclear waste system in the U.S. by using the money from the Nuclear Waste Fund that was collected for Yucca Mountain to provide financial support to states for nuclear reprocessing projects. Further, by working together, we can promote competition and innovation through state-run corporations backed by federal funding. In order to make the initial …

Undermined Norms: The Corrosive Effect Of Information Processing Technology On Informational Privacy, Richard Warner

Richard Warner

Informational privacy is a matter of control; it consists in the ability to control when one’s personal information is collected, how it is used, and to whom it is distributed. The degree of control we once enjoyed has vanished. Advances in information processing technology now give others considerable power to determine when personal information is collected, how it is used, and to it is whom distributed. Privacy advocates sound the alarm in regard to both the governmental and private sectors. I focus exclusively on the later. Relying on the extensive privacy advocate literature, I assume we should try to regain …

The Broadcasters’ Transition Date Roulette: Strategic Aspects Of The Dtv Transition, James E. Prieger, James Miller

James E. Prieger

The analog to digital “DTV transition” completed in June 2009 was a technological event unprecedented in scale in the broadcast television industry. The final analog cutoff for TV stations culminated more than ten years of complex regulatory decisions. Facing concerns that costs and revenue could change dramatically, stations chose when to transition in response to both market and regulatory forces. The history of broadcasting reveals a continual interplay between consumer demand, technological change, and regulation. This article describes the various forces that influenced the DTV transition, and empirically examines the stations’ decisions regarding when to switch. The economic and strategic …

A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Exploring The Ethicality Of Firing Employees Who Blog, Sean Valentine, Gary Fleischman, Robert Sprague, Lynn Godkin

Robert Sprague

This exploratory study evaluates the ethical considerations related to employees fired for their blogging activities. Specifically, subject evaluations of two employee-related blogging scenarios were investigated with established ethical reasoning and moral intensity scales, and a measure of corporate ethical values was included to assess perceptions of organizational ethics. The first scenario involved an employee who was fired because of innocuous blogging, while the second vignette involved an employee who was fired because of work-related blogging. Survey data were collected from employed college students and working practitioners. The findings indicated that the subjects’ ethical judgments that firing an employee for blogging …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …