Law Commons^™

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

Deliberative Democracy On Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Akilah N Folami

Radio, once the vibrant center of deliberative democracy, is now widely regarded as a commercialized wasteland. As the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves, many scholars and media reformists attribute the commercial marginalization of radio to deregulation, and the resulting consolidation in radio ownership and homogenization of radio content. They argue for more local news and public affairs programming as a remedy to this problem. This article builds on such arguments but further posits that local music and popular cultural …

Interoperability: Intellectual Property Vs. Anti-Trust, Kevin W. Reckamp

Kevin W Reckamp

In the past few years, the European Union and the United States have taken differing paths in the name of consumer welfare. The European courts recently struck Microsoft with the largest fine ever for violating the EU competition laws, because Microsoft had refused to release proprietary codes to rival companies that would allow the rivals to make their products “interoperable” with Microsoft’s dominate system. The Microsoft decision is the latest in a line of cases that goes down a path of stripping intellectual property rights from an individual or company that becomes too successful. The United States has been much …

Untapped Inventive Potential In U.S. Communities, Michael Meehan

Michael Meehan PhD

This paper combines the 2000 U.S. Census data and the National Bureau of Economic Research’s (NBER) Patent Citation Data File in order to analyze how certain community-level population and community factors correlate with overall patenting and relative rates of assigned and unassigned patenting. Among the interesting findings discussed are that, in addition to the fact that overall patenting increased with higher populations of employed people, higher populations of people with either terminal undergraduate or master’s degrees, and higher median income, the overall rates of patenting decreased, and did not merely remain the level, as the other sectors of a communities’ …

Flipping Daubert: Putting Climate Change Defendants In The Hot Seat, Ryan A. Hackney

Ryan A Hackney

Can climate change plaintiffs use Daubert challenges to exclude defense expert testimony? Although Daubert challenges have traditionally favored defendants, the strong evidence for climate change may allow plaintiffs to exclude or restrict defense testimony. My paper considers actual claims put forth by climate change skeptics to see how climate change plaintiffs can use Daubert challenges in four ways: challenge the witness, challenge reliability, challenge relevance, and challenge conclusions. The paper suggests that Daubert challenges can be an effective tool for plaintiffs in climate change litigation, and that challenges in this context may provide a blueprint for plaintiffs to follow in …

Responding, Rather Than Reacting To, Race In Biomedical Research: A Response To Professors Caulfield And Mwaria, Michael J. Malinowski

Michael J. Malinowski

This Commentary is part of a colloquy on race-based genetics research.

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline Lipton

Jacqueline D Lipton

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

A Case For Internationally Adopting A Modified Us-Style Approach To Claim Construction, Ronald S. Fernando

Ronald S Fernando

Despite the rhetoric about the harmonization of intellectual property rights under TRIPS, it remains challenging to obtain and enforce respective patent rights for the same invention in a number of different countries. One challenge stems from the fact that claim construction principles have not been internationally standardized. Consequently, the realizable scope of protection may vary from one country to the next because how the scope of a claim is determined often varies from one country to the next. The variability creates uncertainty that stifles the type of socially beneficial economic activity patent systems are trying to encourage. This paper provides …

Subcutaneous Radio Frequency Identification Tagging Of Employees, David Keene

David Keene

First, the article provides an introduction to RFID technology, explaining how it works, in what environments it is used, and for what purposes it is currently used. The article then examines federal and state laws and pending legislation concerning RFID technology, specifically from a labor and employment law perspective. This examination concludes that almost all of the current laws and legislative proposals fail to address labor and employment issues that will surely arise with the growing use of RFID technology. The article continues by creating a hypothetical whereby a corporate president demands that the company’s workforce be implanted with RFID …

Artificial Agents And The Contracting Problem: A Solution Via An Agency Analysis, Samir Chopra, Laurence Frederic White

Samir Chopra

The increasing use of artificial agents such as bots, automated trading systems, and the like, in e-commerce and financial markets, has sparked a lively doctrinal debate in the legal academy and amongst international legislative bodies about the legal standing of the contracts that such agents might enter into during the course of their activities. In this article, we examine some putative solutions to the “contracting problem” and argue that its most satisfying resolution—along the legal and economic dimensions—lies in granting artificial agents a limited form of legal agency. Such a move is not only prompted by the ever-increasing autonomy and …

To © Or Not To ©? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Jacqueline D Lipton

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP’s negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Poised On The Precipice: A Critical Examination Of Privacy Litigation, Andrew B. Serwin

Andrew B. Serwin

A collection of factors has caused the United States to be poised on the precipice of a new wave of litigation—litigation arising from the improper use or collection of information. Public concern over privacy is ever increasing while, and some would say because, information has become critical to our everyday existence. In what is now a self-reinforcing cycle, increased public concern has caused an exponential increase in regulations, and the new regulations have caused increased attention and public concern because many of the new laws require public disclosure of security breaches, which increases societal concerns over privacy. Security breach laws, …

Increasing Certainty And Harnessing Private Information In The U.S. Patent System: A Proposal For Reform, Michael Meehan

Michael Meehan PhD

Nearly half of litigated patents are invalidated. Because of this, and in order to reduce the number of “bad patents,” commentators and industry members have called for reforms to increase certainty in the patent system. Many have also proposed reforms that meet the varied needs of different industries. This paper responds to these prior proposals. The paper also suggests reforms to the patent system that are designed to meet the varied needs of different industries, primarily using pharmaceutical and computer industries as examples. The four reforms proposed are: allowing varied amounts of scrutiny in patent examination, pre-litigation claim scope hearings, …

Dubai's New Intellectual Property-Based Economy: Prospects For Development Without Dependency, Amir Khoury

Amir Khoury

The Emirate of Dubai has, as a result of deliberate policy actions, been able to reinvigorate, indeed to reinvent, its Intellectual Property Potential. That is to say Dubai has boosted its ability to be the originator (and creator) of intellectual property subject-matter, rather than merely a consumer thereof. Dubai has achieved the two conditions through which an intellectual property régime becomes a valuable national asset for a country with an initially low Intellectual Property Potential; namely a structured regulatory framework coupled with effective infrastructure-related action. Dubai's undertakings in the intellectual property sphere go to show that even a country that …

Single Firm Opportunism And The Ftc's Rambus Defeat: Implications For Section 2 Of The Sherman Act, Norman Christopher Hardee

Norman Christopher Hardee

Traditional monopolization principles – focusing on whether conduct is nakedly exclusionary or has an anticompetitive effect – do not provide a good fit for analyzing exclusionary deception in the standard-setting context. Because determining whether there has been an antitrust violation turns, even under the most aggressive enforcement approach, largely on the underlying duties imposed on participants in standard-setting organizations rules, going beyond those clearly defined duties risks an ad hoc, vague definition of antitrust obligations. Individual cases, such as Rambus, provide strong temptations to loosely analyze those duties and to construe them in a way that provides a remedy for …

The Need For Better Analysis Of High Capacity Services, George S. Ford, Lawrence J. Spiwak

GEORGE S FORD

In 1999, the Federal Communications Commission (“FCC”) began to grant incumbent local exchange carriers (“LECs”) pricing flexibility on special access services in some Metropolitan Statistical Areas (“MSAs”) when specific evidence of competitive alternatives is present. The propriety of that deregulatory move by the FCC has been criticized by the purchasers of such services ever since. Proponents of special access price regulation rely on three central arguments to support a retreat to strict price regulation: (1) the market(s) for special access and similar services is unduly concentrated; (2) rates of return on special access services, computed using FCC ARMIS data, are …

Theft, Transformation, And The Need Of The Immaterial: A Proposal For A Fair Use Digital Sampling Regime, Reuven Ashtar

Reuven Ashtar

Theft, Transformation, and the Need of the Immaterial:

A Proposal for a Fair Use Digital Sampling Regime

ABSTRACT

At its inception, American copyright law had a clear purpose: to incentivize creativity. To this end, the Framers reluctantly granted monopolies to authors. This paper examines the extent to which their original intention has been forgotten, and their granting of monopolies abused, in contemporary practice. It does so through the examination of a specific case: that of sampling—the process of manipulating pre-existing sound recordings and incorporating them in one’s music. While licensing is an expensive and demanding process, imaginative unlicensed borrowing is …

Incentivize Me!—How Incumbent Carriers In The United States Attempt To Extract Greater Deregulation And Incentives In Exchange For Making Next Generation Network Investments, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage …

Why Have Developers Been Powerless To Develop Ocean Power?, Sarah Mcquillen Tran

Sarah Tran

This Article suggests that regulation by the Federal Energy Regulatory Commission (FERC) offers a robust alternative to regulation by the Mineral Mining Service (MMS) for those alternative energy projects located between three to twelve nautical miles from the U.S. shore. The paper briefly illustrates the ocean’s immense potential to provide this nation with clean, sustainable, and cost-effective energy from ocean waves, tides, and currents. The paper then shows how a heated territorial dispute between FERC and MMS for control over these green energy projects obstructed the research and development necessary to make them viable as the administrative conflict generated immense …

International Harmonization Of Regulation Of Nanomedicine, Gary E. Marchant, Douglas J. Sylvester, Kenneth W. Abbott, Tara Lynn Danforth

Gary E. Marchant

Nanomedicine holds enormous promise for the improved prevention, detection and treatment of disease. Yet, at the same time, countervailing concerns about the potential safety risks of nanotechnologies generally, and nanomedical products specifically, threaten to derail or at least delay the introduction and commercial viability of many nanomedicine applications. All around the globe, national governments are struggling with balancing these competing benefits and risks of nanotechnology in the medical and other sectors. It is becoming increasingly clear that reasonable, effective and predictable regulatory structures will be critical to the successful implementation of nanotechnology. The question examined in this paper is whether …

International Harmonization Of Regulation Of Nanomedicine, Gary E. Marchant, Douglas J. Sylvester, Kenneth W. Abbott, Tara Lynn Danforth

Gary E. Marchant

Nanomedicine holds enormous promise for the improved prevention, detection and treatment of disease. Yet, at the same time, countervailing concerns about the potential safety risks of nanotechnologies generally, and nanomedical products specifically, threaten to derail or at least delay the introduction and commercial viability of many nanomedicine applications. All around the globe, national governments are struggling with balancing these competing benefits and risks of nanotechnology in the medical and other sectors. It is becoming increasingly clear that reasonable, effective and predictable regulatory structures will be critical to the successful implementation of nanotechnology. The question examined in this paper is whether …

Of Mice And Men: Why An Anticommons Has Not Emerged In The Biotechnological Realm, Chester J. Shiu

Chester J Shiu

In 1998 Michael Heller and Rebecca Eisenberg posited that excessive patenting of fundamental biomedical innovations might create a “tragedy of the anticommons.” A decade later, their dire predictions have not come to pass, an outcome which calls much of the legal scholarship on the topic into question. This Article proposes that legal commentators’ theoretical arguments have largely ignored two very important factors. First, the National Institutes of Health (NIH)—the single most important actor in the biomedical research industry—has played an active role in keeping the biomedical research domain open. In particular, regardless of what the current patent regime may theoretically …

Zippo-Ing The Wrong Way: How The Internet Has Misdirected The Federal Courts In Their Personal Jurisdiction Analysis, Catherine Ross Dunham

Catherine Ross Dunham

ZIPPO-ING THE WRONG WAY: HOW THE INTERNET HAS MISDIRECTED THE FEDERAL COURTS IN THEIR PERSONAL JURISDICTION ANALYSIS

ABSTRACT

In 1997, the Federal District Court for the Western District of Pennsylvania evaluated one in a line of emerging personal jurisdiction cases that raised the question of whether Internet-based contacts with citizens of the forum state can alone establish the defendant purposefully established contacts with the forum state. In this unlikely watershed case, Zippo Mfg. Co. v. Zippo Dot Com, the District Court wrangled with the new concept of purposeful availment through electronic contact with the forum state. The court viewed Zippo …

Daubert V. Merrell Dow Pharmaceuticals And The Local Construction Of Reliability, Robert R. Robinson

Robert R Robinson

Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. In this article I critique this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance—even given the dicta—on what constitutes “good science.” When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert’s …

Biofuels, Subsidies, And Dispute Settlement In The Wto, Bryant Walker Smith

Bryant Walker Smith

The first WTO panels to tackle a biofuels dispute under the Agreement on Subsidies and Countervailing Measures will navigate a murky sea of conflict, gridlock, and uncertainty that the subsidies agreement did not contemplate and that the failed Doha round did not resolve. This article charts these waters. It identifies both the values that the panels will confront and the interpretive tools that they will wield. It further argues that dispute settlement may become the primary driver of an otherwise stagnant regime, and it sketches three competing visions for protecting the “legally binding security of expectations” that underscores that regime.