bluuebunny/crossref_metadata_2025 huggingface dataset:
Speech-Facilitating Conduct
Authors: Campbell Jud
Published: July 2018

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray. This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases—including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees—is now out of step with current doctrine.
Yellow Flag Fever: Describing Negative Legal Precedent in Citators
Authors: Kirschenfeld Aaron
Published: July 2018

This study analyzes the accuracy with which descriptions of subsequent negative treatment are applied by online citators. A system making use of a hierarchical controlled vocabulary applying these descriptions appears marginally more accurate, but the citator’s traditional role in legal research must be reconceptualized.
To Bioprint or Not to Bioprint
Authors: Tran Jasper L.
Published: July 2018

North Carolina Journal of Law and Technology, Vol. 17, p. 123, 2015
Abstracting About "Abstract Idea"
Authors: Tran Jasper L.
Published: July 2018

Iowa Law Review Bulletin, Vol. 102, p. 60, 2016
Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge
Authors: Katz Ariel
Published: July 2018

In this Article, written for a symposium on the future of libraries in the digital age, I present and challenge two common views about the scope of the first-sale doctrine, or exhaustion: namely, that the doctrine applies only to the transfer of tangible copies of works but not to the transfer of digital files, and that copyright owners can circumvent exhaustion by characterizing transactions as “licenses” rather than “sales”, or by contracting out of it. The law on digital exhaustion is anything but settled. As codified, the “first sale” doctrine it may limit only the distribution right, but its statutory presence might merely affirm a broader principle of exhaustion—one of the several principles in copyright law that limit the copyright owner’s powers. The principle of exhaustion can apply, and at times has been applied, beyond the distribution right.Likewise, the notion that copyright owners can circumvention exhaustion by characterizing transactions as “licenses” rather than “sales”, or by using contracts to exercise downstream control is hardly a foregone conclusion. Established precedent and sound legal principle indicate that while the law recognizes some scope for contracting around exhaustion, courts will not necessarily uphold any private reordering of the respective legal entitlements of copyright owners and users.While these observations and conclusions apply to exhaustion generally, they apply most demonstrably in the case of libraries. Libraries occupy a privileged space in the copyright system. Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence. History is part of the legislative history of statutes, and it constitutes part of the context that informs the interpretation of current statutes.Therefore, if not false, then the view that the current legislation does not allow digital exhaustion is at least questionable.The Article was published in 13(1) I/S: A Journal of Law and Policy for the Information Society 81 (2016).
Miranda's Demise
Authors: Clymer Steven D.
Published: July 2018

30 Cornell Law Forum 3 (2003)Miranda v. Arizona has been a prominent fixture of the American criminal justice system, as well as police television shows and movies, for more than a third of a century. And when, amid considerable fanfare, the Supreme Court in June 2000 announced its decision in Dickerson v. United States, it appeared that Miranda would retain that status for the foreseeable future. In Dickerson, a surprisingly large 7–2 majority settled a long-standing debate about the constitutional legitimacy of Miranda, holding that the Miranda rules are firmly grounded in the Fifth Amendment’s self-incrimination clause.But now, a mere three years later, Miranda’s fortunes have shifted dramatically. In May of this year, a divided Supreme Court cast doubt on whether Miranda imposes an obligation on police when they question arrested suspects. And, in the coming Term, the Court will decide two cases that further will determine whether Miranda will continue to play a significant role in regulating police interrogation practices. There is a good chance that by this time next year, with tacit approval from the Court, many police departments will spend more time and energy devising methods of circumventing the Miranda rules than following them.
Contrasts in Innovation: Pittsburgh Then and Now
Authors: Madison Michael J
Published: July 2018

Assessments of the relationship among law, innovation, and economic growth often begin with one or more propositions of law or law practice and predict how changes might affect innovation or business practice. This approach is problematic when applied to questions of regional economic development, because historic and contemporary local conditions vary considerably. This paper takes a different tack. It takes a snapshot of one recovering post-industrial economy, in Pittsburgh, Pennsylvania, USA. For most of the 20th century, Pittsburgh's steelmakers were leading examples worldwide of American economic prowess. Pittsburgh was so vibrant with industry that a late 19th century travel writer called Pittsburgh "hell with the lid taken off," and he meant that as a compliment. In the early 1980s, however, Pittsburgh's steel economy collapsed, a victim of changing worldwide demand for steel and the industry's inflexible commitment to a large-scale integrated production model. As the steel industry collapsed, the Pittsburgh region collapsed, too. Unemployment in some parts of the Pittsburgh region peaked at 20%. More than 100,000 manufacturing jobs disappeared. Tens of thousands of residents moved away annually. Over the last 30 years, Pittsburgh has slowly recovered, building a new economy that balances limited manufacturing with a broad range of high quality services. In 2009, President Barack Obama took note of the region's rebirth by selecting the city to host a summit of the Group of 20 (G-20) finance ministers. The paper describes the characteristics of Pittsburgh today and measures the state of its renewal. It considers the extent, if any, to which law and the legal system have contributed to Pittsburgh's modern success, and it identifies lessons that this Pittsburgh case study might offer for other recovering and transitioning post-industrial regions.
Inside the Arbitrator's Mind
Authors: Franck Susan D. , van Aaken Anne , Freda James , Guthrie Chris , Rachlinski Jeffrey J.
Published: July 2018

66 Emory Law Journal 1115 (2017)Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never demonstrably worse than, national judges analyzed in earlier research. There may be reasons to prefer judges to international arbitrators, but the quality of judgment and decision making, at least as measured in these experimental studies, is not one of them. Thus, normative debates about global dispute resolution should focus on using structural safeguards and legal protections to enhance quality decision-making, regardless of decision maker identity or title.
Constitutional Avoidance in the Executive Branch
Authors: Morrison Trevor W.
Published: July 2018

106 Columbia Law Review (2006) When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary, or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context. Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?This Article explores executive use of the avoidance canon along both these dimensions. As to theoretical justification, Professor Morrison shows that whether constitutional avoidance is appropriate in the executive branch turns on whether one accepts the conventional account of the canon, which sees it as serving values specific to the federal judiciary, or an alternative account, which views it as serving a set of broader norms not confined to the courts. As to interpretive context, Professor Morrison shows that because executive officials often have better access to and knowledge of statutory purpose than do the courts, some facially ambiguous texts may in fact be entirely unambiguous to the executive interpreter. In those circumstances, the avoidance canon has no role to play.
The Employment Contract
Authors: Ayres Ian , Schwab Stewart J.
Published: July 2018

8 Kansas Journal of Law & Public Policy (1998-1999)This article consists of Professors Ian Ayres and Stewart Schwab 's presentation given at the Economic Analysis of State Employment Law Issues Symposium. Following the presentation, audience members and the presenters participated in a discussion concerning employment contracts. The Journal staff and Professors Ayres and Schwab compiled and edited some of these questions and responses.
Public Key Infrastructure and Digital Signature Legislation: Ten Public Policy Questions
Authors: Biddle C. Bradford
Published: July 2018

Following the lead of the State of Utah, numerous states and several foreign countries have enacted “digitalsignature” legislation aimed at promoting the development of a public key infrastructure (PKI). While PKIlegislation has acquired significant momentum, it is not clear that lawmakers have carefully considered thepublic policy implications and long-term consequences of these laws. This article surveys ten public policyissues implicated by digital signature legislation.
The Quintessential Law Library and Librarian in the Digital Age
Authors: Cadmus Femi
Published: July 2018

Law Libraries and the profession of librarianship are evolving in a rapidly changing technological era.
Review of The Law of Treaties: An Introduction
Authors: Keele Benjamin John
Published: July 2018

Benjamin J. Keele, Review of The Law of Treaties: An Introduction, 45 International Journal of Legal Information 65 (2017)
Social Software, Groups, and Governance
Authors: Madison Michael J
Published: July 2018

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, things, and stories.
The Great Failure of the IPXI Experiment: Why Commoditization of Intellectual Property Failed
Authors: Steele Merritt Leigh
Published: July 2018

102 Cornell L. Rev. 1115 (2017)The modern U.S. patent system is plagued with high transaction costs, secrecy, and legal risks. Due to these pitfalls, many innovators simply do not have the resources to participate in the intellectual property market. In 2008, the Intellectual Property Exchange International, Inc. (IPXI) was organized to develop a new model for licensing intellectual property based on “transparency, price discovery, efficiency, and liquidity.” IPXI sought to replace costly bilateral licensing negotiations with a more accessible “market-based trading platform” for patent licensing rights. IPXI sought to standardize and commoditize patent licenses in order to facilitate trading on these licensing rights on an open market. The model created a standard, non-exclusive contract called a Unit License Right (ULR), which could be traded on the exchange. This new innovative model garnered support from leading companies such as Ford, JP Morgan Chase, Sony, and even notable research institutions. Despite this promising beginning, the IPXI experiment ended only two years after its first offering. This Note seeks to determine why this market-based model failed and what it means for the U.S. patent system.IPXI executives have publicly attributed the failure of the world’s first electronic financial exchange for patent licensing rights to the refusal of licensees to engage in negotiations until they face legal action by licensors. In a public statement about its closing, IPXI lamented, “IPXI’s business model offered fairness and transparency and relied upon patented technology users to be good corporate citizens. In the end, potential licensees made it clear that the only way IPXI would really get their attention was through litigation, and that’s exactly what our business model tried to overcome.” This Note evaluates whether the great failure of the IPXI business model truly stems from licensors refusing to engage in good-faith licensing agreements as claimed. Professor Jorge Contreras has previously grappled with this question from a FRAND perspective. However, this Note employs an economic analysis of ex ante and ex post licensing to examine this question. Part I outlines problems with traditional patent licensing and then describes how the IPXI business model proposed to fix these problems. Next, Part II proceeds to deconstruct the IPXI business model to highlight why the commoditization of patents is problematic. Part III offers direction for potential future initiatives to encourage good-faith licensing negotiations. Finally, this Note concludes by discussing what the failure of IPXI means for the U.S. patent system.
Emerging Technologies and Dwindling Speech, 16 U. Pa. J. Const. L. 1235 (2013)
Authors: Roig Jorge R.
Published: July 2018

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.
The Politics of Botched Executions
Authors: Lain Corinna Barrett
Published: July 2018

In this symposium essay, I explore the politics of botched executions, discussing state responses to the latest round of executions gone wrong and the ways in which those responses matter. Part I recounts four botched executions in 2014 and the state responses that accompanied them. Part II makes three observations about those responses-one about states' fealty to the death penalty, one about backlash politics and the scope of the public relations problem, and one about the changing cultural construct of lethal injection in the United States. Part III explores how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection itself. In the end, the recent spate of botched executions may prove true the old adage about politics making strange bedfellows. The inept executioner may prove the abolitionist's best friend.
Congressional and Presidential War Powers as a Dialogue: Analysis of the Syrian and ISIS Conflicts
Authors: Tiefer Charles , Clark Kathleen
Published: July 2018

Cornell International Law Journal: Vol. 49 : No. 3 , Article 4Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President’s powers under Article II of the Constitution, and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This Article instead focuses on the process of dialogue between Congress and the President prior to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. response to Syrian President Assad’s use of chemical weapons in 2013, and the rise of ISIS since 2014. By examining the specifics of how the political branches interact, we can assess whether the exercise of war powers is democratic and legitimate. We see that Congress and the President take part in substantive consultation and dialogue, and through that dialogue, Congress and the public become more informed about the interests at stake and the available options. The nation benefits from war powers dialogue between the two political branches.
The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again
Authors: Yale-Loehr Stephen W.
Published: July 2018

18 Georgetown Immigration Law Journal (2003-04)Naomi Schorr, and Stephen W. Yale-LoehrWe wrote this article to address one question: Should a J-2 nonimmigrant exchange visitor be subject to the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act (INA) if the J-1 principal is so subject? In trying to answer that question, the authors confronted additional issues that seem to have gone unresolved for close to half a century. If a J nonimmigrant is subject, be it J-1 or J-2, where can he fulfill the foreign residence requirement: in the country of his nationality or the country of his last residence? Does he have a choice? Where does a J-2 fulfill? In her J-1 spouse's country of nationality or last residence or her own? Can she combine periods that she spends in both? And how can she fulfill it? Do any periods of stay in the foreign residence count, or must there be a certain quality to periods spent in the foreign country? If a J-1 fulfills the two-year rule overseas but the J-2 remains in the United States, is the J-2 still subject? If so, why? And finally, who gets to decide if the alien is even subject in the first place?The article is intended to serve several purposes: (1) to lead to an understanding of how J-2 nonimmigrants became subject to the foreign residence requirement; (2) to sort out where and how the two-year obligation may be fulfilled; and (3) to provide the legal rationale and justification for a new regulatory scheme that would render the J-2 exempt from the two-year foreign residence requirement. Our research found that there is very little in the legislative history and nothing in the INA that compels the conclusion that a J-2 is subject to the two-year foreign residence requirement. In fact, a strong argument exists that the J-2 is clearly not subject. For these reasons, we recommend that the State Department and the U.S. Citizenship and Immigration Services (CIS) change their current interpretations to exempt J-2s from the two-year foreign residence requirement.We decided to write this article after listening to the remarks of a senior State Department official at a recent immigration law conference. That official was very clear in his view that the foreign residence requirement should not be imposed on J-2 nonimmigrants.This article looks at the legal premises and processes we engage in, examines the legislative history of the exchange visitor program, reviews the questions about J-2s that have been raised in liaison meetings between the American Immigration Lawyers Association (AILA) and the Department of State and the United States Information Agency (USIA), provides excerpts from some of the statements about fulfillment issues that have been made by representatives of those governmental agencies at a variety of AILA conferences since 1998, and analyzes case law, legal opinions, and relevant regulations. In so doing, it necessarily takes a long, hard look not just at the J-2 classification, but also the status to which it appends, the J-1.
Illuminating Innovation: From Patent Racing to Patent War
Authors: Shaver Lea
Published: July 2018

Patent law assumes that stronger protection promotes innovation, yet empirical evidence to test this “innovation hypothesis” is lacking. This Article argues that historical case studies hold unique promise to provide an empirical foundationfor modern patent policy. Specifically, this Article uses the history of patents surrounding the light bulb to examine a recently articulated theory of “patent racing” as a justification for patent protection. Thomas Edison’s experience confirms that Mark Lemley’s racing model has substantial descriptive merit. Yet thiscase study also reveals the limits of the patent racing model. Looking past the initial finish line of patent filings to later litigation, the competition looks less like a race and more like a war.
Unpacking Patent Assertion Entities (PAEs)
Authors: Cotropia Christopher A
Published: July 2018

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we provide a brief conclusionCo-authored with Jay Kesan and David Schwartz
Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets
Authors: Jones D.R.
Published: July 2018

Jones, D.R., Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets, 56 South Texas L. Rev. 313 (2014). In several lawsuits, publishers sued law firms for copyright infringement. The lawsuits focused on making unlicensed copies of scholarly articles to file with patent applications, including copies for the firms’ internal use and for the firms’ clients. In two of these cases, lower court judges determined that the making of unlicensed copies was fair use. The decisions hinged on transformative use, focusing on the defendant’s purpose for using the works. There was no alteration or change in the works. The judges found fair use, despite the possible availability of licensing.These patent application cases fit within a larger category of cases involving the use of copyrighted works in judicial and quasi-judicial proceedings. This article uses these cases as a vehicle to review the use of purpose in fair use analysis. It advocates that the review of the character and purpose of a use should include a deeper examination of the policies and societal interests underlying the use. This broader consideration is especially important if a plaintiff asserts the presence of a ready market for the payment of fees for use of a copyrighted work. This article explores the determination of a fair use market as a way to support the unlicensed use of copyrighted works although a ready market exists for the payment of fees. These cases offer an excellent model for the analysis necessary to determine a fair use market.
Review of Patent Reform in the 112th Congress: Innovation Issues
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2012). Review of Patent Reform in the 112th Congress: Innovation Issues.Government Information Quarterly 29(1), 113.
The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification
Authors: Royer Caisa E.
Published: July 2018

102 Cornell Law Review 1401 (2017)One primary goal of criminal law is to produce justice. In order to obtain justice, the citizens of a republic delegate power to representatives, who then create a system of rules and punishment that ensure a predictable and fair scheme of justice. Although the citizens willingly give over this power to receive the benefits of a structured society, this exchange does not mean that the democratic government must function unchecked by its people. Within the criminal justice system, the jury serves as one protection against government overreach and as a safeguard to ensure that true justice is done. In order to produce that justice, sometimes the jury must abandon the strict rules of the legal system. This behavior is referred to as jury nullification and generally occurs when jurors vote to acquit a defendant despite believing that the defendant is guilty under the law and that the prosecution has proved its case beyond a reasonable doubt. Because jury deliberations are secret, jurors have the inescapable power to nullify. Nevertheless, in Sparf v. United States, the Supreme Court held that there is no right to jury nullification and, thus, a judge does not have to instruct the jury about their ability to judge the law.
From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism
Authors: Heise Michael
Published: July 2018

117 Columbia Law Review 1859 (2017).When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.
Reconstructing the Software License
Authors: Madison Michael J
Published: July 2018

This article analyzes the legitimacy of the software license as a institution of governance for computer programs. The question of the open source license is used as a starting point. Having conducted a broader inquiry into the several possible bases for the legitimacy of software licensing in general, the article argues that none of the grounds on which software licensing in general rests are sound. With respect to open source software in particular, the article concludes that achieving a legitimate institutional form for the goals that open source proponents have set for themselves may require looking beyond licensing as such.
Felix Gonzales-Torres on Contracts
Authors: Kee Joan
Published: July 2018

26 Cornell Journal of Law and Public Policy (2017)Contracts involving the sale or transfer of artworks generally aspire to rationalism. Parties sign them in order to maximize gain and minimize risk. In the art world, the contract is closely associated with a zero-sum mentality that emphasizes the relationship between artists, gallerists, institutions, and other owners as one marked by compromise, if not outright antagonism. In many cases, the very use of contracts implies that no one will get everything he, she, or it wants. When the artist is famous, the contract is a matter of take-it-or-leave-it, and negotiation is not possible. In such a case, the owner is more likely to treat the prospective purchase as a unique good for which no acceptable substitution exists.
The Modern Travelling Merchant: Mobile Communication in International Contract Law
Authors: Schroeter Ulrich G.
Published: July 2018

Contratto e impresa/Europa (2015), pp. 19-43The use of mobile communication devices like mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today’s business world. However, whenever mobile communications are used for purposes of contract formation, i.e. the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, e-mail or SMS can be dispatched and received at virtually any place on earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary.The present article addresses the legal difficulties and uncertainties that cross-border mobile communication raises under international rules of law, covering both conflict of laws rules and substantive law rules. It elaborates on the traditional role of the place of communication in this context before scrutinizing how ‘mobility-friendly’ the provisions of the relevant conventions developed by the United Nations, the Hague Conference for Private International Law and other organisations are. In doing so, it critically discusses in particular Article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of Article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts or with Article 3(2) of the Hague Convention on the Law Applicable to International Sales of Goods of 1955), and proposes appropriate solutions.
Obama's National Security Exceptionalism
Authors: Setty Sudha N.
Published: July 2018

Published: Sudha Setty, Obama's National Security Exceptionalism, 91 CHI.-KENT L. REV. 91 (2016).This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the rule of law when it comes to national security matters.
Fordham Builds A New Home: Fordham Law School's New Building Houses Its Entire Community Under One Roof In the Heart of Manhattan
Authors: Melnick Todd
Published: July 2018

Description of the planning and building of Fordham Law School's state-of-the-art, designed by Pei Cobb and Associates.
Making the Leap to Management: Tips for the Aspiring and New Manager
Authors: Cadmus Femi
Published: July 2018

As the result of innate ability, a fortunate few are able to effortlessly transition from line positions to management positions. However, most of us need to plot the path to management astutely and with deliberation. Library professionals might also become "accidental" managers, finding themselves thrust into an unplanned and perhaps unwanted managerial position for which they were not prepared. This is particularly true in the current climate of constrained budgets characterized by restructurings, job freezes, and layoffs.
The Politics of Legal Empirics: Do Political Attitudes Predict the Results of Empirical Legal Scholarship?
Authors: Rachlinski Jeffrey J.
Published: July 2018

Empirical legal scholarship has emerged as a dominant trend in legal scholarship. At its best, empirical scholarship subjects assertions about the effect of legal rules to a neutral test. But is empirical inquiry truly neutral? The validity of an empirical study should rest on the reliability of the methods used, rather than the political implications of its conclusions. Scholars might choose targets of inquiry, sources of data, or methods of analysis that support their political allegiances. This paper tests this thesis by matching the political beliefs of authors of empirical legal scholarship with the results of their research. The political allegiances of authors mildly correlate with the results of empirical inquiry in legal scholarship.
Law Libraries as Publishers: Counting Things, with Citations and Downloads
Authors: Keele Benjamin John
Published: July 2018

Keele, Benjamin J. (2015). Law Libraries as Publishers: Counting Things, with Citations and Downloads. ALL-SIS Newsletter, 35(1), 2-3.
When “Creeping Jurisdiction” Goes Awry: The Social Action Litigation to Ban Surrogacy
Authors: Kalantry Sital
Published: July 2018

Significant scholarly attention has focused on the strong role played by the Supreme Court in the Indian constitutional democracy. Exercising its powers of judicial review, the Court will invalidate legislation if determines it to be in violation of the constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the Court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishaka case, in which it created guidelines on sexual harassment.
An Open Access Distribution Tariff: Removing Barriers to Innovation on the Smart Grid
Authors: Eisen Joel B.
Published: July 2018

This Article proposes that the Federal Energy Regulatory Commission (FERC) consider promulgating an Open Access Distribution Tariff (OADT) to open the nation's electric grid to new products and services at the consumer (distribution) level. Design of the OADT would be comparable to the Open Access Transmission Tariff that the FERC has used previously to open the nation's transmission wires. This Article argues that an OADT is necessary to create a smart electricity network that would be national, multimodal, and interactive. There is no smart electricity network at present, and there are numerous barriers to the development of open networking, such as obstacles to open access, lack of consumer demand for such a network and its products, resistance of incumbent utilities, and a variety of other factors. An open access principle will likely be necessary, but the timing of such regulation is of critical importance. This Article argues that regulatory establishment of an open access principle will eventually be necessary-and to assess when open access might be desirable, this Article examines the revolutionary transformations that took place in three regulated industries: telecommunications, electricity restructuring, and finance.This Article examines key near-term and long-term questions involving an OADT's timing and development by analyzing these regulated industries using three criteria: (1) signifiers of when a transition would be necessary and conditions that might make open access more desirable to industry actors, (2) regulatory prerequisites necessary in the near term, and (3) risks involved in drawing lessons from the specific regulatory transformation (including federalism concerns). This Article concludes that rather than waiting for an organic transformation of the electric grid and evolution of open networking, a deliberate path of preparatory work will best set the foundation for open access.
Notes on a Geography of Knowledge
Authors: Madison Michael J
Published: July 2018

Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.
Greenleaf's 'Asian Data Privacy Laws': A Key Resource for U.S. And International Privacy Scholars
Authors: Li Tiffany
Published: July 2018

As of publication date, University of New South Wales Law Professor Graham Greenleaf’s Asian Data Privacy Laws: Trade and Human Rights Perspectives is the only comprehensive book available that examines and aggregates the privacy laws of countries across Asia. This is important because on an international level, Asian privacy law is relatively underdeveloped when compared with the privacy law of other regions including the Americas and Europe. With the rise of Asia as an economic and technological powerhouse, Asian privacy laws are becoming increasingly crucial to any serious study of international privacy law. Understanding the current status of privacy laws in Asia is also essential for any U.S. or international entity that seeks to influence or adapt to the future direction of privacy law both in Asia and, by extension, the world.This Article reviews Greenleaf's treatise, providing an overview of the book, as well as highlighting significant areas of mention. Ultimately, the Article gives a positive recommendation of this treatise and its use for privacy practitioners and scholars.
The Diverging Dictionaries of Science and Law
Authors: Chin Jason
Published: July 2018

Scientific evidence is easily misunderstood. One of the most insidious instances of misunderstanding arises when scientific experts and those receiving their evidence assign different meanings to the same words. We expect scientific evidence to be difficult to understand. What is unexpected, and often far more difficult to detect, is the incorrect understanding of terms and phrases that appear familiar. In these circumstances, misunderstandings easily escape notice. We applied an evidence-based approach to investigating this phenomenon, asking two groups, one with legal education and one with scientific education, to define five commonly-used phrases with both lay and scientific connotations. We hypothesized that the groups would significantly diverge in the definitions they provided. Employing a machine learning algorithm and the ratings of trained coders, we found that lawyers and scientists indeed disagreed over the meanings of certain terms. Notably, we trained a machine learning algorithm to reliably classify the authorship of the definitions as scientific or legal, demonstrating that these groups rely on predictably different lexicons. Our findings have implications for recommending avoidance of some of these particular words and phrases in favour of terminology that promotes common understanding. And methodologically, we suggest a new way for governmental and quasi-governmental bodies to study and thereby prevent misunderstandings between the legal and scientific communities.
Predictability and KSR's Fundamental Change to Nonobviousness in Patent Law
Authors: Cotropia Christopher A
Published: July 2018

In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed "Type I predictability" )-whether the inventor used the prior art in a predictable manner to create the invention-and predictability of the result (hereinafter termed "Type II predictability")-whether the invention produced a predictable result-both as a means for proving obviousness. Although Type I predictability is easily explained as part of the flexible approach endorsed by KSR, Type II predictability represents a potentially radical shift in the nonobviousness doctrine. Instead of focusing on whether reasons already existed to create the invention, like Type I predictability does, a Type II predictability analysis takes the invention's creation as a given and examines instead the invention's operation. Type II predictability moves the analysis away from the gap between the prior art and the invention to the invention only. The United States Patent and Trademark Office ("USPTO"), the Federal Circuit, and lower courts are using Type II predictability fairly extensively after KSR. The problem with this usage is that Type II predictability runs counter to statutory language, introduces hindsight bias, discriminates against certain technologies, and conflicts with basic patent theory. Accordingly, the USPTO and courts need to reconsider the use of Type II predictability and their interpretation of KSR.
Commons at the Intersection of Peer Production, Citizen Science, and Big Data: Galaxy Zoo
Authors: Madison Michael J
Published: July 2018

The knowledge commons research framework is applied to a case of commons governance grounded in research in modern astronomy. The case, Galaxy Zoo, is a leading example of at least three different contemporary phenomena. In the first place Galaxy Zoo is a global citizen science project, in which volunteer non-scientists have been recruited to participate in large-scale data analysis via the Internet. In the second place Galaxy Zoo is a highly successful example of peer production, sometimes known colloquially as crowdsourcing, by which data are gathered, supplied, and/or analyzed by very large numbers of anonymous and pseudonymous contributors to an enterprise that is centrally coordinated or managed. In the third place Galaxy Zoo is a highly visible example of data-intensive science, sometimes referred to as e-science or Big Data science, by which scientific researchers develop methods to grapple with the massive volumes of digital data now available to them via modern sensing and imaging technologies. This chapter synthesizes these three perspectives on Galaxy Zoo via the knowledge commons framework.
Cyber Attack Exception to the Foreign Sovereign Immunities Act
Authors: Anderson Paige C.
Published: July 2018

102 Cornell L. Rev. 1087 (2017) In December 2013, holiday shoppers at Target became the second-largest group of consumers in history to have their data stolen in a cyber attack. Up to 110 million shoppers’ credit and debit card numbers, phone numbers, and email addresses comprised the stolen information. During the fallout, consumers and banks held Target alone responsible for the breach. Target settled with the consumers and created a fund of $10 million to compensate those whose data had been compromised. The banks’ class-action lawsuit against Target concluded when the U.S. Court of Appeals for the Eighth Circuit dismissed the appeal, thereby affirming the settlement.