Law Commons^™

Minimum Contacts In A Borderless World: Voice Over Internet Protocol And The Coming Implosion Of Personal Jurisdiction Theory, Danielle Keats Citron

Danielle Keats Citron

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident’s “minimum contacts” with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state’s exercise of sovereignty over her. At the same time, the nonresident’s “purposeful availment” of opportunities within the state is seen as implying her agreement to that state’s jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number’s area code. Voice over Internet Protocol (“VoIP”) …

Technological Due Process, Danielle Keats Citron

Faculty Scholarship

Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required agencies to provide individuals notice and an opportunity to be heard. Agencies could foreclose policy issues that individuals might otherwise raise in adjudications through public rulemaking. One system allowed focused advocacy; the other featured broad participation. Each procedural regime compensated for the normative limits of the other. Both depended on clear statements of reason.

The dichotomy between these procedural regimes has become outmoded. This century’s automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. …

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

Race-Specific Patents, Commercialization, And Intellectual Property Policy, Shubha Ghosh

Buffalo Law Review

No abstract provided.

Science On Trial, Valerie P. Hans

Cornell Law Faculty Publications

The increasing complexity of both criminal and civil jury trials raises a host of issues for lawyers and judges. For the litigator, the first question is whether a jury can be trusted with a case that turns on highly technical evidence. For the trial judge, there are decisions about the admissibility of expert testimony, whether it is based on sound science, and whether a jury is likely to be misled by scientific claims. Should the judge permit jury innovations such as note taking, question asking, and juror discussions of evidence during the trial, hoping to increase jury comprehension of the …

Agenda: Securing Environmental Flows On The Colorado River In An Era Of Climate Change: Issues, Challenges, And Opportunities, Western Water Policy Program, University Of Colorado Boulder. Natural Resources Law Center, Nature Conservancy (U.S.), Trout Unlimited, Environmental Defense (Organization), Western Water Assessment (Program), Western Resource Advocates, United States. Bureau Of Reclamation

Securing Environmental Flows on the Colorado River in an Era of Climate Change: Issues, Challenges and Opportunities (March 21)

The Colorado River is the primary surface water resource of the Southwest, providing water to approximately 30 million residents. Studies and policy decisions associated with a recently completed EIS point to an ever-tightening water supply due to longstanding growth pressures exacerbated by significant climate change impacts. Given these trends, how can the river’s environmental needs be satisfied?

On March 21st, the Center’s Western Water Policy Program brought together four leading Colorado River experts along with an audience of approximately 70 water professionals to discuss “Securing Environmental Flows on the Colorado River in an Era of Climate Change: Issues, Challenges, and …

Mtic (Carousel) Fraud: Twelve Ways Forward; Two Ways 'Preferred' - Has The Technology-Based Administrative Solution Been Rejected?, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a co-ordinated strategy to improve the fight against fiscal fraud [COM(2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with MTIC (Missing Trader Intra-Community) or carousel fraud. To this end the Commission hosted a conference: Fiscal Fraud - Tackling VAT Fraud: Possible Ways Forward. The March 29, 2007 conference was constructed …

Zappers: Tax Fraud, Technology And Terrorist Funding, Richard Thompson Ainsworth

Faculty Scholarship

"Zappers," or automated sales suppression devices, have brought unheard of efficiencies and economies of scale to a very simple tax fraud - skimming cash sales at point of sale (POS) terminals (electronic cash registers). Until recently the largest tax fraud case in Connecticut, also the "largest computer driven tax-evasion case in the nation," was a zapper case. Stew Leonard's Dairy in Norwalk Connecticut skimmed $17 million in receipts and hid the cash in St. Martin (a Caribbean island). Talal Chahine and his wife, Elfat El Aouar, owners of the La Shish restaurant chain in Detroit Michigan have the dubious honor …

Tales From The Crypt: Scientific, Ethical, And Legal Considerations For Biohistorical Analysis Of Deceased Historical Figures, Lori B. Andrews, Jordan K. Paradise

All Faculty Scholarship

Biohistorical analysis involves using historic specimens of human remains or human material extracted or derived from historical artifacts to gather evidence about specimens that are identifiable or at least attributed to a historic figure at the time of the research. Biohistorical studies are being undertaken for myriad reasons, such as identification and authentication of remains, investigation into alleged criminal behavior, investigation into medical or psychological conditions, and even for purposes of commercialization. This article analyzes federal statutes, case law, and codes and guidelines from twenty-six professional organizations and societies informative to the field of biohistory. We surveyed the field, identified …

The Uneasy Relationship Between Science And Law: An Essay And Introduction, Lawrence Solan, Margaret Berger

Faculty Scholarship

No abstract provided.

Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale

Faculty Scholarship

No abstract provided.

A U.S.-China Partnership To Protect Our Climate, Thomas P. Lyon

Michigan Law Review First Impressions

Climate change is an environmental problem of global dimensions, but we lack a system of international law that can impose a coordinated response. Bilateral agreements between key nations may present a solution. A partnership between the United States and China to develop technology for carbon capture and sequestration offers hope for mitigating the climate impacts of China’s rapidly growing number of coal-burning electric power plants.

The General Public License Version 3.0: Making Or Breaking The Foss Movement, Clark D. Asay

Michigan Telecommunications & Technology Law Review

Free and open source software (FOSS) is a big deal. FOSS has become an undeniably important element for businesses and the global economy in general, as companies increasingly use it internally and attempt to monetize it. Governments have even gotten into the act, as a recent study notes that FOSS plays a critical role in the US Department of Defense's systems. Others have pushed for the adoption of FOSS to help third-world countries develop. Given many of its technological and developmental advantages, FOSS's use, adoption, and development are only projected to grow.[...] The FSF created the most popular version of …

When Mobile Phones Are Rfid-Equipped - Finding E.U.-U.S. Solutions To Protect Consumer Privacy And Facilitate Mobile Commerce, Nancy J. King

Michigan Telecommunications & Technology Law Review

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers' privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the …

The Need For Speed (And Grace): Issues In A First-Inventor-To-File World, Margo A. Bagley

Faculty Articles

“One is the loneliest number that you’ll ever do.” This lyric applies to the United States which, since 1998, stands alone among the world’s patent systems in awarding patents to the first person to invent a claimed invention (first to invent, or “FTI”) as opposed to the first inventor to file an application claiming the invention (“FITF”). But its lonely days may soon be over: a provision in pending patent reform legislation will (if passed) move the United States from FTI to FITF and end its solitary stance.

Some argue that the U.S. already has a de facto FITF system, …

Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner

All Faculty Scholarship

Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …

The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache

Articles in Law Reviews & Other Academic Journals

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …

Child Pornography's Forgotten Victims, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims. It will then trace factors that may have contributed to the perception that possession of child pornography is a victimless offense. The first factor is the dual nature of the child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears attenuated because the possessor is not involved in the acts of sexual abuse inherent in producing …

La Protection Des Données À Caractère Personnel Dans Le Contexte De La Construction En Piliers De L'Union Européenne, Franck Dumortier, Yves Poullet

Franck Dumortier

Dans son arrêt du 30 mai 2006, la Cour de justice des Communautés européennes (CJCE) a annulé la décision de la Commission constatant la protection adéquate des données PNR par les Etats-Unis et la décision du Conseil approuvant la conclusion d'un accord sur leur transfert vers ce pays, estimant que ces décisions n’étaient pas fondées sur une base juridique adéquate.

La question fondamentale posée à la Cour en cette occasion était celle des critères de distinction entre piliers appliqués à la protection des données à caractère personnel. Dans son arrêt, la CJCE à réaffirmé le principe selon lequel c’est bien …

Foreword, Michele L. Mekel

Michele L Mekel

Foreword for the book "Nanotechnology, Ethics, and Society"

What Is 'Private' Data?, Karen Mccullagh

Karen McCullagh

The development of a frontier-free Internal Market and of the so-called 'information society' have resulted in an increase in the flow of personal data between EU Member States. To remove potential obstacles to such transfers data protection legislation was introduced. One of the underpinning principles of Directive 95/46/EC is the protection of privacy. Yet, the legislation does not provide a conclusive understanding of the terms ‘privacy’ or ‘private’ data. Rather, privacy protection is to be achieved through the regulation of the conditions under which personal data may be processed. An assessment of whether, 10 years after the enactment of the …

Regulatory Data Protection Under Trips Article 39(3) And Article 10bis Of The Paris Convention: Is There A Doctor In The House?, Christopher Wadlow

Christopher Wadlow

Article 39 of the WTO TRIPs Agreement has attracted much attention for the protection its final paragraph affords for regulatory data in the pharmaceutical and agrochemical industries, but the literature has tended to treat Article 39(3) in individual isolation. This is to ignore one of the most striking features of Article 39, which is that in contrast to every other substantive provision of TRIPs, it expressly defines its entire scope of application by reference to a pre-existing treaty, the Paris Convention for the Protection of Industrial Property, and specifically Article 10bis of the latter, dealing with unfair competition. This article …

Legal And Technological Normativity: More (And Less) Than Twin Sisters, Mireille Hildebrandt

Mireille Hildebrandt

Within science technology and society studies the focus has long been on descriptive micro-analyses. Several authors have raised the issue of the normative implications of the findings of research into socio-technical devices and infrastructures, while some claim that material artifacts have moral significance or should even be regarded as moral actors. In this contribution the normative impact of technologies is investigated and compared with the normative impact of legal norms, arguing that a generic concept of normativity is needed that does not depend on the intention of whoever designed either a law or a technology. Furthermore this contribution develops the …

Open Code Governance, Danielle Keats Citron

Faculty Scholarship

Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person’s eligibility for public benefits. Computer systems store sensitive personal information. These systems’ closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program’s source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In this survey, we discuss electronic contracting cases decided between July 1, 2007 and June 30, 2008. In addition to cases adding to the literature on the enforceability of online contracts, this survey includes cases discussing modification of online contracts, incorporation by reference, and unconscionability. We conclude that our common law is developing nicely to address the issues presented by internet contracting.

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Journal Articles

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

The Curse Of "Copying", 7 J. Marshall Rev. Intell. Prop. L. 296 (2008), Kenneth R. Adamo, Ryan B. Mccrum, Susan M. Gerber

UIC Review of Intellectual Property Law

The concept of “copying” has long been involved with various aspects of intellectual property law, particularly in regard to patents and trademarks. In the absence of legally determined exclusive rights, “copying” is permitted, and is in fact, encouraged. However, because the term “copying” carries an undercurrent of disapproval and unfavorable practices, it is a favorite of patentees looking to portray an accused infringer in the most negative light, especially before a jury. Hence, the curse of “copying.” This article will review the current state of “copying” by addressing the substantive precedent in areas where “copying” has traditionally had a substantive …

Feca Matter: An Epic Copyright Infringement Trial, Congressional Interference, And The Diminution Of Moral Rights In The United States Of America, 7 J. Marshall Rev. Intell. Prop. L. 376 (2008), Jacob Armstrong

UIC Review of Intellectual Property Law

Film directors suffered a setback in their collective efforts to maintain the integrity of their films after they are released to the public. In 2005, Congress passed the Family Entertainment Copyright Act, which contained the Family Movie Act, a piece of safe harbor legislation designed to save certain businesses and business practices from ongoing litigation. This Act was not only legislative interference with an ongoing trial, but also served to remove the topic of moral rights from public dialogue. Repealing the Family Movie Act would be a step towards affording directors the ability to prevent misattribution and mutilation of their …

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, 7 J. Marshall Rev. Intell. Prop. L. 412 (2008), Peter K. Yu

UIC Review of Intellectual Property Law

Commentators have attributed China’s piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities. They have also cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country’s rapid economic transformation and accession to the WTO. This provocative essay advances a third explanation. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top …

Making A Federal Case For Copyrighting Stage Directions: Einhorn V. Mergatroyd Productions, 7 J. Marshall Rev. Intell. Prop. L. 393 (2008), Jennifer J. Maxwell

UIC Review of Intellectual Property Law

To date, no court has ruled on whether stage directions are copyrightable. Einhorn v. Mergatroyd Productions is the most recent case to directly address the copyrightability of stage directions and blocking scripts. However, the court was unable to decide the copyright issue because both parties to the suit failed to address a series of questions necessary to the resolution of the claim. Nonetheless, the Einhorn decision gives hope to future directors because it highlights the issues crucial to proving a case of copyright infringement of stage directions. This comment advocates for the copyright protection of stage directions that fulfill the …