Law Commons^™

Application Of The Ada To Websites: Congress Should Rely On The Standards Created By The World Wide Consortium, Mara'd A. Smith

Mara'D Smith

Congress created the Americans with Disabilities Act (ADA) in 1990 to assure equality of opportunity and independent living to those with physical or mental abilities. Although the roots of the Internet were growing rapidly when Congress passed the ADA, the World Wide Web did not become popular until the mid 1990s. Congress has not yet updated the ADA to clearly cover websites, and the current regulations that ensure access for disabled persons to physical locations do not clearly apply to websites. This paper argues that Congress should rely on the World Wide Web Consortium standards when revising the ADA to …

Virtual Parentalism, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Parents, not Laws, ultimately protect children both online and offline. If legislation places adults at legal risk because of the presence of children in virtual worlds, adults will exit those worlds, and children will be isolated into separate spaces. This will not improve safety for children. Instead, this Article suggests that Congress enact measures that encourage filtering technology and parental tools that will both protect children in virtual worlds, and protectfree speech online.

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 …

Investigating Impacts Of Legal Practice Management System On The Employee Productivity Of The Small Thai Law Firm, Onanong Pilun-Owad

Onanong Pilun-owad

This paper focuses on the study and investigation of the impacts in the implementation of a software package to support the operation and management of legal practice, which is referred to as the Legal Practice Management System (LPMS), on employee productivity. This implementation is considered the Information Technology-enabled business process and organization change of a small law firm in Thailand. The focal organization is a law firm in Thailand employing thirty-two people, which has been facing various business challenges from both internal and external factors; for example, increasing clients’ expectations, local and foreign competitors, poor financial performance, slow responses to …

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 …

The Problem Of Internalization Of Social Costs And The Ideas Of Ronal 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 andd 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 …

Ids Practice After Therasense And The Aia: Decoupling The Link Between Information Disclosure And Inequitable Conduct, Arpita Bhattacharyya, Michael R. Mcgurk

Arpita Bhattacharyya

An essential element of filing and prosecuting a patent application in the United States is the duty to disclose material information to the United States Patent and Trademark Office (“Patent Office”) under 37 C.F.R. § 1.56 (Rule 56). The failure to disclose information can result in a later ruling of inequitable conduct and unenforceability of the patent. The Federal Circuit’s en banc decision in Therasense heightened the “materiality” and “intent” standards for finding inequitable conduct, but there has been much uncertainty in the patent community regarding the future of the duty of disclosure under Rule 56. The majority in Therasense …

Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin

Brittani N. Baldwin

No abstract provided.

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

Law Practice Technology: A Law School Course?, Charles H. Oates

Charles H Oates

Technology is transforming the practice of law, but law schools are being left behind. Until relatively recently and only to a very limited extent, law school curricula have not reflected the revolutionary changes in the ways that technology is altering the practice of law. Today’s law students, unlike their predecessors, are comfortable with technology, but anxious about entering a severely competitive profession. For most lawyers, economic survival will depend upon their ability to utilize technology to maximize efficiencies and comply with court-mandated applications of technology. With the pervasiveness of technology in all areas of law practice today, a course in …

Managing Content In Virtual Environments: From Music To Machinima, Tamiko R. Franklin

Tamiko R Franklin

Developing an effective rights management strategy in virtual environments requires a close review of current case law especially with respect to ongoing clarifications of mentioned statutory provisions under copyright laws. It is also helpful to be aware of the peculiarities that involve copyright protected content created for use in virtual spaces such as issues involving publication and making available across multiple jurisdictions. There are differences in international systems of protection that affect the intellectual property rights in content; particularly so if the content in question is a work of visual art like a photograph or digital representation of a painting, …

Direct And Enhanced Disclosure Of Researcher Financial Conflicts, Roy G. Spece Jr.

Roy G Spece Jr.

Abstract of DIRECT AND ENHANCED DISCLOSURE OF RESEARCHER FINANCIAL CONFLICTS OF INTEREST: THE ROLE OF TRUST In earlier writing I recommended direct disclosure of a major researcher financial conflict of interest, per capita funding—i.e., providing a fixed sum per subject recruited and enrolled in a study. This article adds a recommendation for enhanced direct disclosure. The enhancement in the disclosure is a summary of why per capita and excess payments are being discussed. The reason they are being discussed is because of their risk of introducing bias into researchers’ decisions regarding study design, implementation, and interpretation as well as concerning …

Broadcasting Licenses: Ownership Rights And The Spectrum Rationalization Challenge, J. Armand Musey Cfa

J. Armand Musey, CFA

This Article examines the showdown between television broadcast- ers and the government in light of the FCC’s plan to reallocate cur- rently licensed broadcast spectrum to signifcantly higher value mobile broadband use. The government seeks to do so in an economically, socially and legally effcient manner, and has indicated that it seeks a reallocation process that is voluntary for broadcasters. Nonetheless, any spectrum reallocation proceeding raises the question of whether, and to what extent, television broadcasters ultimately possess rights to licensed spectrum, and what type of compensation, if any, they would be owed if the FCC takes their spectrum licenses …

Beyond Einstein And Edison: Claiming Space For Non-Faculty Inventors In Technology Transfer, Jennifer Carter-Johnson

Jennifer Carter-Johnson

The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by licensing. Many scholars have debated the effectiveness of university implementation of this requirement, and indeed, the low rate of disclosure of inventions by academic researchers to the university is often a bottleneck in technology transfer process. Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole requirements have explored faculty-inventor motivations. Similarly, many university intellectual property (IP) policies are drafted specifically toward incentivizing faculty-inventors to comply with invention disclosure requirements. However, in most cases, university inventions are …

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Patenting Isolated Human Enhancer Elements And The Utility Requirement Problem, William B. Mcconnell

William B. McConnell

No abstract provided.

Humans And Humans+: Technological Enhancement And Criminal Responsibility, Susan W. Brenner

Susan Brenner

This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less. The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed …

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 …

Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt

Arlen W Langvardt

MISTAKE-PROOFING MEDICINE: LEGAL CONSIDERATIONS

AND HEALTHCARE QUALITY IMPLICATIONS

Authors: John R. Grout, John W. Hill, Arlen W. Langvardt (corresponding author).

Abstract

In 1999, the Institute of Medicine estimated that approximately 98,000 deaths resulted annually from medical errors. This shocking number does not appear to have lessened during the intervening years. Although mistake-proofing techniques similar to those that have proven useful in the product liability context hold great promise for reducing the number of medical errors, the adoption of such techniques in healthcare settings has not occurred to the extent it should have.

This article examines potentially useful mistake-proofing techniques, explores …

It's About Time: Privacy, Information Life Cycles, And The Right To Be Forgotten, Meg Leta Ambrose

Meg Leta Ambrose

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content …

Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao

Marina Lao

The core of the gathering antitrust case against Google seems to be that it favors its own or its affiliates’ content over that of its competitors in ancillary markets in the unpaid search results. Seeking the competitive advantages inherent in integration, which is what preferential treatment of one’s own property is about, is usually not unlawful. This paper examines whether “essential facilities” and the duty-to-deal nonetheless provide a basis for prohibiting this practice, as some have suggested, and concludes that they do not.

On the threshold monopoly power issue, most assume, based on Google’s high percentage of general search queries, …

The Large Immortal Machine And The Ticking Time Bomb, Susan Landau

Susan Landau

The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires that digitally switched communications networks carrying voice be designed to accommodate (legally authorized) wiretaps. Since the law's passage, there have been a number of breaches in networks with CALEA-type switches. Despite the fact that CALEA is an "architected security breach," the Federal Communications Commission, whose role it is to promulgate CALEA requirements, the agency does not require any type of security testing or threat modeling for the switches. In this paper, I discuss the implications of the law to switch design, the breaches that have occurred, and what changes the …

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 …

Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese

Alex Reese

Parties in patent lawsuits that are going to trial face a crucial choice: who is the best witness to explain the often complex or scientific technology behind an invention or an accused product? Often, the parties will select an employee witness such as an engineer, scientist, or a named inventor of the patent-in-suit to offer this key testimony rather than a hired expert. Many litigants have found that there are benefits to choosing an employee witness who can testify based on first-hand experience with the technology in question rather than a hired expert, who must prepare an expert report and …

Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich

Janet Freilich

This article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Over the last decade, privacy theorists have begun to understand that a consideration of context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the …

Does The Communications Act Of 1934 Contain A Hidden Internet Kill Switch?, David W. Opderbeck

David W. Opderbeck

A key area of debate over cybersecurity policy concerns whether the President should have authority to shut down all or part of the Internet in the event of a cyber-emergency or cyber-war. The proposed Cybersecurity Act of 2009, for example, contained what critics derided as an Internet “kill switch.” The current iteration of a comprehensive cybersecurity reform bill, the Cybersecurity Act of 2012, opts for a soft public-private contingency plan model instead of a kill switch. But the kill switch may yet live. Sponsors of the present legislation have argued that Section 606 of the Communications Act of 1934 already …

Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel

Joshua M. Koppel

With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.

The federal courts …

Copyright Lawmaking And The Public Choice: From Legislative Battles To Private Ordering, Yafit Lev-Aretz

Yafit Lev-Aretz

On January 18th, 2012, the Web went dark in the largest online protest in history. Two anti-piracy Bills – The Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA) – attracted waves of opposition from the Internet community, which culminated on January 18th into an unprecedented 24-hour Web strike, followed by a decision to shelve the Bills indefinitely. This Article argues that the SOPA/PIPA protest created a new political reality in copyright lawmaking, with the tech industry becoming a very influential actor on the one hand, and social networks lowering mobilization costs of individual users on the other …

The Paradox Of Legal Equivalents And Scientific Equivalence: Reconciling Patent Law’S Doctrine Of Equivalents With The Fda’S Bioequivalence Requirement, Janet Freilich

Janet Freilich

Contrary to popular perception, generic drugs often enter the market before the patents covering their brand-name counterparts have expired by making slight changes the drug to avoid the brand-name patent. These generics face a paradox: the FDA requires that the generic “not show a significant difference” from the reference product while patent law requires that the generic have “substantial differences” as compared to the reference product. The generic must be bioequivalent but not legally equivalent to the brand-name drug. This paradox occurs frequently in the courts but has never been discussed in the literature. This article analyzes every case involving …