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 …

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 …

Building Bio-Based Supply Chains: Theoretical Perspectives On Innovative Contract Design, A. Bryan Endres, Jody M. Endres, Jeremy J. Stoller

A. Bryan Endres

By 2030, the United States will consume over 300 million tons of forest and agricultural feedstocks for energy production. The supply chain necessary to provide unprecedented quantities of new “bioenergy crops,” however, is fraught with uncertainty. The vertically integrated model the nascent sector currently uses may have limited opportunity for expansion to meet renewable energy mandates. A hybrid structure is likely to emerge as the industry evolves, in which end-users closely cooperate with a large number of heterogeneous producers through long-term contracting rather than as direct owners or operators of biomass farms. This “vertically coordinated” industry model is dependent on …

Evading Emergency: Strengthening Emergency Response Through Integrated Pluralistic Governance, Lance Gable

Lance Gable

This Article examines the significant governance challenges that arise during responses to public health emergencies and proposes a new multifaceted strategy—integrated pluralistic governance—to address these challenges. Emergency preparedness is an inherently complex problem that entails the integration of scientific and medical expertise, good logistical planning, and clear laws and policies. The governance function has particular import for public health emergencies because pandemics, hurricanes, and other disasters can have profoundly divisive social and political consequences. Moreover, recent disasters like Hurricane Katrina and the BP Deepwater Horizon Oil Spill revealed an emergency preparedness and response infrastructure in the United States that was …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

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

William B. McConnell

No abstract provided.

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

Crowdsourcing Indie Movies

Henry H. Perritt, Jr.

Abstract

Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

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 Flaws Of Stem Cell Legislation: Sherley, Brustle, And Future Policy Challenges Posed By Induced Pluripotent Stem Cells, Nicholas J. Diamond

Nicholas J Diamond

In this article, I first contextualize the origins of disagreement over the nature and extent of human embryonic stem cell (hESC) research regulation. By analyzing two key pieces of hESC legislation as considered in two landmark court decisions—one from the United States and one from the European Union—I argue that current stem cell policies are deeply flawed. After surfacing the flaws of these policies, I examine novel challenges for policymakers posed by the newest advancement in stem cell science, induced pluripotent stem cells. In view of these novel challenges, I contend that current policies, which are hESC-focused and deeply flawed, …

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 …

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

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 …

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 …

Prometheus And The Natural Phenomenon Doctrine: Let’S Not Lose Sight Of The Forest For The Trees, Samantak Ghosh

Samantak Ghosh

The Supreme Court’s recent decision on patentable subject matter, Mayo Collaborative Services. v. Prometheus Laboratories, has come in for a lot of criticism from the biotechnology industry. Whenever the Supreme Court renders a judgment that is a significant departure from the past and arguably gets it wrong, the voices questioning the underlying principle behind the decision become stronger. Unfortunately, Prometheus was a poor vehicle for recalibrating a doctrine that has been untouched for the past three decades. However, it is important to dissociate the specific opinion from the principle animating the opinion, the natural phenomenon doctrine. If the natural phenomenon …

Rationalizing Risks To Cultural Loss In Resource Development, Sari M. Graben

Sari M Graben

Abstract In this article, I consider the implications of culture for valuation of cultural loss in cost benefit analysis. I argue that rational choice models have a difficult time quantifying cultural values because they have yet to grapple with the way experts tasked with cost benefit analysis translate knowledge about cultural worldviews for the purposes of comparison. This translation can alter the valuation of the risk so as to undermine the representation of a loss, rather than identify it. However, instead of rejecting the consideration of cultural loss in cost-benefit analysis outright, I build on dialogical approaches to governance that …

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, …

Crowdsourcing A Trademark: What The Public Giveth, The Courts May Taketh Away, Llewellyn Joseph Gibbons

Llewellyn Joseph Gibbons

There is a long tradition of trademark holders relying on the public to create designations that they then adopt as trademark. Historically, this has been a long slow process. From the individual’s use of the term, to the acquisition of secondary meaning could take years. Web 2.0 social media has the potential to speed up this process. Frequently, these are nicknames for well-known brands, so they are potentially quite valuable. Trademark law is ambiguous regarding who owns a designation created by the public, if the individual claiming the mark have not appropriated the mark by actually using it in commerce. …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

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, …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

Will Fda Data Exclusivity Make Biologic Patents Passé?, Vincent J. Roth Esq

Vincent J Roth Esq

Much controversy has ensued over the current 12 year data exclusivity period afforded biosimilars pursuant to the Biologics Price Competition and Innovation Act of 2009 (the “BPCI”) that was recently enacted in March 2010, as part of President Obama’s Patient Protection and Affordable Care Act (the “PPACA”), to create a biosimilar market in the US. In fact, the BPCI, itself, has been controversial and just barely survived judicial scrutiny when the US Supreme Court upheld the PPACA on June 28, 2012 in a 5-4 vote. Many commentators speculate whether data exclusivity will overtake patents as the preferred method of intellectual …

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven J. Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

Consumers: The (Still) Missing Piece In A Piecemeal Approach To Privacy, Clark Asay

Clark Asay

U.S. consumers have little actual control over how companies collect, use, and disclose their personal information. This paper identifies two specific instances of this lack of control under U.S. law related to third-party disclosures, what I call the Incognito and Onward Transfer Problems. It then identifies the types of privacy harms that result and examines the advantages and possible drawbacks of a model law aimed at addressing these specific problems. The model law is based on a system of consumer notice and choice, the predominant method used in the U.S. to provide consumers with control over their information. Up until …

Will Fda Data Exclusivity Make Biologic Patents Passé?, Vincent J. Roth Esq

Vincent J Roth Esq

Much controversy has ensued over the current 12 year data exclusivity period afforded biosimilars pursuant to the Biologics Price Competition and Innovation Act of 2009 (the “BPCI”) that was recently enacted in March 2010, as part of President Obama’s Patient Protection and Affordable Care Act (the “PPACA”), to create a biosimilar market in the US. In fact, the BPCI, itself, has been controversial and just barely survived judicial scrutiny when the US Supreme Court upheld the PPACA on June 28, 2012 in a 5-4 vote. Many commentators speculate whether data exclusivity will overtake patents as the preferred method of intellectual …