Law Commons^™

Cyber Security Active Defense: Playing With Fire Or Sound Risk Management, Sean L. Harrington

Richmond Journal of Law & Technology

“Banks Remain the Top Target for Hackers, Report Says,” is the title of an April 2013 American Banker article. Yet, no new comprehensive U.S. cyber legislation has been enacted since 2002, and neither legislative history nor the statutory language of the Computer Fraud and Abuse Act (CFAA) or Electronic Communications Privacy Act (ECPA) make reference to the Internet. Courts have nevertheless filled in the gaps—sometimes with surprising results.

It’S Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous

Richmond Journal of Law & Technology

Throughout history, pornography and technology have enjoyed a symbiotic relationship, each playing a significant role in the growth and widespread success of the other. From the VCR and camcorders to the Polaroid camera and the Internet, the pornography industry has always accelerated the growth of new technologies, paving the way for these new services to be introduced into mainstream society. Most of these new technologies were appealing to creators and consumers of pornography because the new technologies brought an increased sense of privacy. For example, much of the success of the Polaroid camera is said to come from the fact …

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is pleased to present the first issue of the Twenty-First Volume. With its first publication in 1995, JOLT became the world’s first law review to be published exclusively online. It was with that original publication that JOLT established itself as one of the leading publications in the legal technology field. Today, JOLT has continued the bold tradition of publishing articles to further scholarship in areas of new and emerging fields that fall at the intersection of technology and the law.

The Reasonable Information Security Program, Peter Sloan

Richmond Journal of Law & Technology

Our information inhabits a perilous world. Cyber theft, cyber extortion, mobile device loss, misappropriation of confidential business information, and unauthorized disclosures of protected information are real and present dangers for organizations of all sizes and across all industries.

Clapper V. Amnesty International And Data Privacy Litigation: Is A Change To The Law “Certainly Impending”?, John L. Jacobus, Benjamin B. Watson

Richmond Journal of Law & Technology

On December 19, 2013, the retailer Target announced that unauthorized third parties had gained access to its customer payment information. While Target originally estimated that the security breach affected 40 million of its customers, a subsequent investigation revealed that anywhere from 70 to 110 million people—almost one in three Americans—may have had their sensitive payment information stolen. In response, the retailer offered free credit monitoring services and assured affected customers that they would not be responsible for fraudulent charges made with their payment information.

High-Frequency Trading: A Regulatory Strategy, Charles R. Korsmo

University of Richmond Law Review

No abstract provided.

Reclaim This! Getting Credit Seller Rights In Bankruptcy Right, Lawrence Ponoroff

University of Richmond Law Review

No abstract provided.

Why Wynne Worries Me, Edward A. Zelinsky

Articles

No abstract provided.

The Anomaly Of Entrapment, Jessica A. Roth

Articles

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Success And Failure In Adr: A Dialogue Between Partners, Lela P. Love, Joseph B. Stulberg

Articles

Love and Stulberg critically discuss policy, scholarly, and practice developments in four areas of program development in the area historically referenced as alternative dispute resolution (ADR): the range of process options; the impact of court procedures on ADR program development and practice; the nature of ADR scholarship and training; and the general public's receptiveness to or rejection of the normative principles that structure ADR collaborative processes. Their concluding remarks suggest that the promise of ADR, particularly of the mediation process, remains inspiring to many, even if its effective implementation remains uneven.

Rethinking Online Privacy In Canada: Commentary On Voltage Pictures V. John And Jane Doe, Ngozi Okidegbe

Articles

This article problematizes the use of the bona fide case standard as the legal standard for a court to order a third party Internet Service Provider ("ISP") to disclose subscriber information to a copyright owner in online piracy cases. It argues that ISP account holders have a reasonable expectation of privacy in their subscriber information. It contends that the current bona fide case standard affords a relatively low threshold of protection for Internet users’ subscriber information. The reason for which the article takes this position is that the bona fide case standard can be met solely by IP address evidence, …

Does Tort Law Empower?, Anthony J. Sebok

Articles

No abstract provided.

Why Answer?, Anthony J. Sebok

Articles

No abstract provided.

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …

The Copyright/Patent Boundary, Viva R. Moffat

University of Richmond Law Review

No abstract provided.

Synthetic Cdos, Conflicts Of Interest, And Securities Fraud, Jennifer O'Hare

University of Richmond Law Review

No abstract provided.

Lighting A Fire Under Free Speech: The Fda's Graphic Attempts To Reduce Smoking Rates, Ashley Peterson

University of Richmond Law Review

No abstract provided.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and …

Organizational Responsibility For Workplace Racial And Sexual Harassment: The Stories Of One Company's Workers, Cheryl L. Wade

Faculty Publications

(Excerpt)

I begin this Article with the testimony of an African-American man who, along with hundreds of African-American coworkers, brought a race discrimination suit against an industrial construction and fabrication limited liability company ("LLC") doing business in Texas and Louisiana. The company, Turner Industries ("Turner"), rigorously defended itself against the allegations, and rather than settle the case, Turner and ten of the plaintiffs went to trial in October 2012. A jury awarded two of the ten plaintiffs in the 2012 Bellwether trial $2 million each in damages, but the plaintiff whose testimony I include above lost at trial and was …

Do I Have A Bridge For You: Fiduciary Duties And Investment Advice, Francis J. Facciolo

Faculty Publications

(Excerpt)

The debate about financial advice in the United States has taken a wrong turn. Instead of focusing on particular practices and the potential that these practices raise for conflicts of interest between advisers and their clients, the debate has focused recently on whether brokers, advisers to municipal and state issuers, and advisers to employee benefit plans regulated by ERISA should be held to a fiduciary duty standard. A fiduciary standard implies, in the words of Justice Cardozo, that “[a] trustee is held to something stricter that the morals of the market place. Not honesty alone, but the punctilio of …

Intent In Fair Use, Eva E. Subotnik

Faculty Publications

This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would serve copyright’s utilitarian …

A Eulogy For The Eula, Miriam A. Cherry

Faculty Publications

(Excerpt)

Rakoff shook his brightly dyed red hair as he shivered alongside the others waiting for the bullet train. It was a miserably cold morning, but Rakoff's fellow passengers didn't seem to mind. Most of those standing on the platform were taking their spare moments to work in the global workspace. It looked like they were talking to themselves, typing on invisible keyboards, or blinking, but in fact they were working, completing crowdsourcing tasks. Other waiting passengers were interacting with business contacts by projecting their avatars out into the virtuality. It was cold, but there was not long to wait …

Dilution At The Patent And Trademark Office, Jeremy N. Sheff

Faculty Publications

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …

Can Cost-Benefit Analysis Help Consumer Protection Laws? Or At Least Benefit Analysis?, Jeff Sovern

Faculty Publications

Cost-benefit analysis is often troubling to consumer advocates. But this Article argues that in some circumstances it may help consumers. The Article gives several examples of supposed consumer protections that have protected consumers poorly, if at all. It also argues that before adopting consumer protections, lawmakers should first attempt to determine whether the protections will work. The Article suggests that because lawmakers are unlikely to adopt multiple solutions to the same problem, one cost of ineffective consumer protections is a kind of opportunity cost, in that ineffective consumer protections might appear to make adoption of effective ones unnecessary. Ironically, such …

Bankruptcy Court Jurisdiction After Executive Benefits Insurance Agency V. Arkison, Keith Sharfman, G. Ray Warner

Faculty Publications

(Excerpt)

Bankruptcy law has been struggling for several years now with the so-called "Stern problem”—the jurisdictional cloud of doubt that has been cast by the Supreme Court's decision in Stern v. Marshall over much of the work that bankruptcy courts have done routinely for decades. Since Stern was decided, bankruptcy courts and the litigants who appear before them cannot be confident that it is constitutional for non-Article III bankruptcy judges to adjudicate various matters over which there is clear statutory jurisdiction, such as avoidance actions against third party transferees who are not otherwise involved or participating in the bankruptcy …

The Law And Economics Of Corporate Social Responsibility And Greenwashing, Miriam A. Cherry

Faculty Publications

In this symposium article, I explore the link between corporate social responsibility (CSR) and the threat of greenwashing. In the first part of the article, I start with first principles, examining the origins of greenwashing, structuring its definitions, and identifying the economic incentives that lead firms into the practice. The second part of this article examines the legal structure that allows greenwashing to occur, and with it, explores the pervasiveness and extent of greenwashing. The third part of this article articulates the harms of greenwashing. Intuitively, greenwashing involves deception, falsity, and hypocrisy that reflexively seem problematic. Identifying the actual harm …

Ready, Set, Go To Federal Court: The Hague Child Abduction Treaty, Demystified, Jennifer Baum

Faculty Publications

(Excerpt)

The Hague Convention on the Civil Aspects of International Child Abduction may sound intimidating, but is easily demystified. Since 1980, signatory nations have agreed that parents should not be permitted to forum shop among countries when it comes to custody of their children. The Hague Convention requires the prompt repatriation of children under 16 years of age who were wrongfully removed by a parent from the country in which they had been living, except in certain very limited circumstances (some of which are discussed in more detail, below). The Convention does not address or permit the alteration of custody …

Hedge Funds In Bankruptcy, Keith Sharfman, G. Ray Warner

Faculty Publications

(Excerpt)

Hedge funds and other professional and institutional investors are playing an increasingly important role in bankruptcy cases. As buyers of financially distressed securities, they provide a valuable outlet for holders of such securities who wish to exit those markets. They also facilitate the consolidation of distressed securities into the hands of owners who are well-equipped to press for outcomes in Chapter 11 cases that maximize the value of those securities. At the same time, the active participation of hedge funds in the bankruptcy process at times gives them access to nonpublic information that may afford them an undue advantage …

When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg

Faculty Publications

(Excerpt)

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, “Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement.” Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest …