Science and Technology Law Commons^™

Confronting Big Data: Applying The Confrontation Clause To Government Big Data Collection, Chad Squitieri

Scholarly Articles

When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause. Similar to lab analysts who submit test results of cocaine samples or blood alcohol levels, this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment.

Who's The Vandal? The Recent Controversy Over The Destruction Of 5pointz And How Much Protection Does Moral Rights Law Give To Authorized Aerosol Art?, Susanna Frederick Fischer

Scholarly Articles

This paper considers the extent to which federal moral rights law protects authorized graffiti and aerosol art against destruction, in the context of the controversy over the destruction of 5Pointz. 5Pointz, a sprawling complex of warehouse buildings in Queens, was a Mecca for aerosol art. The buildings’ owners ordered the demolition of 5Pointz after the November 2013 order by New York federal district judge Frederic Block denying the artists a preliminary injunction to stop destruction under the federal moral rights statute, the Visual Artists Rights Act (VARA). This paper argues that Judge Block erred in finding that the transient nature …

The Ip Transition And The Need For Common Carrier Regulation, Nicholas Kokkinos

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Section 10 Forbearance: Asking The Right Questions To Get The Right Answers, George S. Ford, Lawrence J. Spiwak

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

The Telecommunications Act of 1996 aimed to “provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans….” Key to the Federal Communication Commission’s ability to satisfy this deregulatory mandate is Section 10 of the 1996 Act which provides the agency with express legal authority to forbear from enforcing certain portions of the Communications Act. In this paper, we use the agency’s Phoenix Forbearance Order as a template for outlining how the Commission can improve its forbearance analysis. Our analysis focuses on forbearance from the …

The Procrustean Problem With Prescriptive Regulation, Maureen K. Ohlhausen

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

The Evolution Of Innovation And The Evolution Of Regulation: Emerging Tensions And Emerging Opportunities In Communications, Larry Downes, John W. Mayo

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Sowing The Seeds Of Protection, Elizabeth I. Winston

Scholarly Articles

Seeds are chattel. As such, seeds are protectable by the same tapestry of public and private ordering as other forms of chattel. However, the distinguishing characteristic of seeds, their method of propagation, and the history of seeds-traditionally viewed as a public good rather than chatteldistort that tapestry. The model of seed distribution thus needs to be refrained in light of the often disparate interests of innovators, producers, and consumers. As with all chattel, there is no single, correct model for distributing seeds, but law and contract may be woven together to strike a balance.

Applying Bioethics In The 21st Century: Principlism Or Situationism?, George P. Smith Ii

Scholarly Articles

After an examination of the four cardinal bioethical principles which define Principlism — autonomy, beneficence, non maleficence and justice — an explication of Joseph Fletcher’s theory of Situationism is undertaken.

The conclusion of this Article is that when an ethical dilemma arises and is “tested” as to its moral efficacy, rather than judge the acts in question in order to determine whether they are in conformance with one of the four bioethical principles, it is more humane and practical to determine the ethical propriety of questioned conduct by use of a situation ethic which in fact is more sensitive. This …

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston

Scholarly Articles

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose, …

A Patent Misperception, Elizabeth I. Winston

Scholarly Articles

Antitrust and intellectual property laws promote innovation and competition. As long as the costs of promotion do not exceed the benefit to society, then the laws act in harmony. Discord arises when patent holders use public and private ordering to restrain competition, restrict downstream trade, prevent the development of competing products and limit output by competitors. Using the Patent Act and the misperception of antitrust immunity to create a parallel and under-regulated legal system allows a small number of patent holders to coordinate their behavior to maximize profits and minimize competition. The Patent Act provides no shield to prosecution for …

The Momentum Of Posthumous Conception: A Model Act, Raymond C. O'Brien

Scholarly Articles

This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days-a time suggested by some statutes-after the death of the gamete provider. The embryo may result from in vitro fertilization or from a woman being artificially inseminated with the sperm of a deceased male gamete provider. And of course the woman could have predeceased too and left a viable ova, that was then fertilized with the sperm of a living or a deceased male to create an embryo, which was then placed into a …

Policy Making And The New Medicine: Managing A Magnificent Obsession, George P. Smith Ii

Scholarly Articles

Scientific issues become - inevitably - political issues because of one principal fact: they put in focus the extent to which the government can restrict private medical research undertakings - either in the name of generational safety, morality or the public good. The multiple and varied concerns of applying the New Medicine, derived as such from the New Biology, conduce - essentially - to a suspicion continued reductionism in the biological analysis of humans will erode the notions of autonomy, dignity and personal integrity that have traditionally justified the constitutional protection of civil liberties. Driven by painful technologies and sciences, …

Re-Evaluating The Freedom Of Scientific Inquiry Through Biotechnology And Human Rights, George P. Smith Ii

Scholarly Articles

No abstract provided.

Setting Limits: Medical Technology And The Law, George P. Smith Ii

Scholarly Articles

The allocation and rationing of health care resources is, no doubt, one of the most pressing issues confronting contemporary society. These issues considered from a micro and a macro level of economic analysis are linked inextricably to utilitarianism which, in turn, relies upon a cost-benefit analysis which balances reasonable individual needs against the availability of medical resources within the larger community. From an ethical viewpoint, the cost-benefit approach to the distribution of health care resources is impractical because it seeks to reduce (or convert) all health benefits to dollar amounts, thereby seeking very awkwardly to convert quality of life benefits …

Judicial Decision-Making In The Age Of Biotechnology, George P. Smith Ii

Scholarly Articles

The major premise, minor premise, and conclusion of this Article are one and the same - for, they conduce to an acceptance of the fact that the social constructs and legal tools necessary for the modern judiciary to meet head-on and deal with the contentious issues of bioethics and biotechnology are already in place. To resolve problems arising from these potential quagmires, perhaps the major concern is for the courts to remain forever vigilant to the interlinking relationships or synergistic forces found in law, science, ethics, and medicine. Without vigilance and enhanced awareness of the dynamic and fluid situation here, …

Bioethics And The Administration Of Justice, George P. Smith Ii

Faculty Books

This essay is divided into five parts. The first will examine, in broad-brush, bioethics as a discipline, language and political movement. The second explores the politics of morality and the role bioethicists have in assisting with the tasks of judicial decision making. Part three tackles the feasibility of promoting a deliberative democracy within the New Age of Biotechnology. Part four considers forensic or scientific evidence. And, the final section of this essay considers how Elizabeth Taylor, Reva Shane Lewis of the CBS soap opera, "The Guiding Light," Thomas Donaldson and the sheep, "Dolly," shape the contours of this new age …

Harnessing The Human Genome Through Legislative Restraint, George P. Smith Ii

Scholarly Articles

The awesome predictive power of genetic medicine promises great advancements in not only the treatment of identifiable conditions but the prevention of their pathological manifestations. At the same time, the release and dissemination of this genetic or medical information poses a distinct risk of loss of privacy and stigmatization to carriers of genetic disorders. In order to safeguard the individual right of autonomy, privacy, confidentiality and informed consent-yet accommodate the legitimate interests of employers and insurers to obtain medical information relevant to their professional needs and economic responsibilities a balance must be struck legislatively at the federal and state levels …

Toward An International Standard Of Scientific Inquiry, George P. Smith Ii

Scholarly Articles

The late Professor Thomas Emerson, a great civil libertarian, cautioned in 1976 that one of the hard problems of the First Amendment would soon be acknowledged as the extent to which the state could recognize scientific research. As he observed sagely, "It is hard to predict where these issues will lead." This essay will explore the pathway where these issues are leading in contemporary society.

The World Of Law, Science And Medicine, According To George P. Smith, Ii, Raymond C. O'Brien

Scholarly Articles

No abstract provided.

The New Reproductive Technologies And The Law: A Roman Catholic Perspective, William J. Wagner

Scholarly Articles

In the next several years, the new reproductive technologies will, for better or worse, affect the civil law governing society's most basic relationships and the rights and duties that accompany them. As lawmakers deliberate over the social choices required by technological developments in human reproduction, the soundness of their decisions will depend on their understanding of the good that is at risk, and on their commitment to the law's role in defending it. In view of the fundamental nature of the societal relationships implicated, who will deny that much currently depends on the quality of lawmakers' decisions?

This article draws …

Biotechnology And The Law: Social Responsibility V. Freedom Of Scientific Inquiry?, George P. Smith Ii

Scholarly Articles

At American University in Washington, D.C., on November 20, 1973, Julius Stone presented the tenth annual Mooers Lecture, entitled, "Knowledge, Survival, and the Duties of Science."' The central question and thesis that he propounded could and, indeed, should be raised anew today; they form the very core of the province and function of law, science, and medicine. In our brave new world they point to the leeways of choice and patterns of discourse that exist in grappling with the central issue of social responsibility in scientific inquiry. Perhaps they will assist in forging a consensus opinion for a subsequent course …

The Province And Function Of Law, Science And Medicine: Leeways Of Choice And Patterns Of Discourse, George P. Smith Ii

Scholarly Articles

On November 20 1973 Julius Stone presented the tenth annual Mooers Lecture, entitled, "Knowledge, Survival, and The Duties of Science", at American University in Washington, D.C.' The central question and theses which he propounded then, could and indeed, should be raised anew today - for they form the very core of the province and function of law, science and medicine in our brave new world of today and tomorrow and they point also to the leeways of choice and patterns of discourse that exist in grappling with this central issue and possibly forging a consensus opinion for a subsequent course …

Cryonic Suspension And The Law, George P. Smith Ii, Clare Hall

Scholarly Articles

Three central problems which adversely affect the intriguing use, development, and perfection of the cryonic suspension of individuals are analyzed: the extent to which a physician may be guilty of malpractice in assisting with a suspension - owing to present weaknesses in defining death and coordinate criminal liability attaching theretofor murder; the need for a recognition of suspension; and the present effect of the law's anachronistic treatment of estate devolution upon a cryon - or one undergoing suspension. To meet these difficulties, a partnership is proposed between law and medicine which would respond to challenges to this type of new …

Electronic Tracking Devices And The Fourth Amendment: Knotts, Karo, And The Questions Still Unanswered, Clifford S. Fishman

Scholarly Articles

This article will examine the Knotts and Karo decisions, analyze the unanswered questions relating to the use of electronic tracking devices, and outline legislation that might best resolve those questions and strike a proper balance between the often conflicting values of individual privacy and effective law enforcement.

Eugenics And Family Planning: Exploring The Yin And The Yang, George P. Smith Ii

Scholarly Articles

n order to combat genetic disease, genetic engineering may (and frequently does in fact) rely upon eugenics, the science that deals with the improvement of heredity. Stated simply, a positive eugenics program seeks to develop superior qualities in man through the propagation of his superior genes; with the positive eugenists seeking to produce a 'new breed' with keener and more creative intelligence. Contrariwise, a negative eugenics program attempts only to eliminate genetic weaknesses. When seen in application, positive eugenics programs encourage the fit and 'proper' individuals to reproduce, while negative eugenics programs discourage the less fit and those with inheritable …

The Iceperson Cometh: Cryonics, Law And Medicine, George P. Smith Ii

Scholarly Articles

The "New Biology" has already made profound impact on the law. Cryonics and genetic engineering represent technological triumphs. The natural, organic process of dying is being replaced by a humanly engineered technological process for living. The dying phase of lite is prolonged until biological knowledge is available to reverse the dying phase and restore the living phase. Both cryonics and genetic engineering in their attempts to replace the organic process with the technological process disturb the delicate balance of the triad of lite which each individual experiences-faith, health, and justice. Since law is a basic tool to achieve justice among …

Pen Registers And Privacy: Risks, Expectations, And The Nullification Of Congressional Intent, Clifford S. Fishman

Scholarly Articles

In United States v. New York Telephone Co. the Supreme Court first ruled that an ordinary search warrant sufficed to authorize law enforcement use of a pen register. Additionally, the Court ruled that a federal district judge possessed the authority to include within the search warrant an order compelling a telephone company to assist the government by installing a pen register on the targeted telephone.

In Smith v. Maryland, the Court considered the legality of pen register surveillance conducted by a telephone company pursuant to an informal police request, that is, without a warrant or other court order. In holding …