Yale Journal of Law & Technology

Yale Journal of Law & Technology is a magazine specializing in Law topics.

Articles

Vol. 15, No. 2, Spring

A Modest Defense of Mind Reading
TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF THE PHYSICAL-TESTIMONIAL DIVIDE II. REASSESSING THE DOCTRINE: A COMMUNICATION-BASED VIEW OF "TESTIMONY" A. Pardo's Substantive View of "Testimony" B. Allen and Mace's Substantive View of "Testimony"...
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The Role of Switching Costs in Antitrust Analysis: A Comparison of Microsoft and Google
TABLE OF CONTENTS INTRODUCTION I. THE ECONOMICS OF SWITCHING COSTS A. Switching Costs and Competitive Analysis B. Types of Switching Costs II. THE CENTRALITY OF HIGH SWITCHING COSTS, INHERENT AND STRATEGIC, TO THE MICROSOFT BROWSER CASE AND...
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Innovation and Litigation: Tensions between Universities and Patents and How to Fix Them
C. Benefits to the Proposed Statutory Amendment The legislative proposal presented above recognizes several important premises. First, many universities--which, unlike for profit companies, primarily owe allegiance to taxpayers when it comes to...
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Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010)
TABLE OF CONTENTS INTRODUCTION I. OVERVIEW OF THE SUPREME COURT'S CITATION TO WEBSITES II. LINK ROT & DEAD LINKS A. Link Rot Generally B. How Link Rot Affects Law Generally C. How Link Rot Is Related to Legal Citation D. How Link Rot Affects...
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Vol. 15, No. 1, Fall

Reverse Engineering Informational Privacy Law
TABLE OF CONTENTS INTRODUCTION I. FRAMEWORK : LAW AND TECHNOLOGY II. LEGISLATIVE TECHNIQUES FOR A DIGITAL ENVIRONMENT A. Technology-Neutral Legislation B. Considerations and Justifications 1. Flexibility 2. Innovation 3. Harmonization...
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Anonymity, Disclosure and First Amendment Balancing in the Internet Era: Developments in Libel, Copyright, and Election Speech
TABLE OF CONTENTS INTRODUCTION I. BEFORE THE INTERNET: THE DEVELOPMENT OF THE ANONYMOUS SPEECH DOCTRINE--RATIONALES AND LIMITS II. UNMASKING ONLINE SPEAKERS IN LIBEL CASES: AN EMERGING CONSENSUS III. COPYRIGHT INFRINGEMENT: A BALANCING TES ...
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Moving from Nixon to NASA: Privacy's Second Strand -a Right to Informational Privacy
TABLE OF CONTENTS INTRODUCTION I. A BARE AND CONFUSING DOCTRINE A. The Supreme Court Pre-2011 1. Whalen v. Roe 2. Nixon v. General Services Administrator B. The Supreme Court Speaks After Thirty Years in NASA v. Nelson II. The Nature...
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Best Mode Trade Secrets
TABLE OF CONTENTS INTRODUCTION I. THE TRADE SECRET-PATENT DICHOTOMY AND BEST MODE BEFORE AIA II. BEST MODE IN THE AIA III. CONCURRENT PATENT AND TRADE SECRET RIGHTS AFTER THE AIA A. Could Concurrent Protection Become Common? B. The Costs and...
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Vol. 14, No. 2, Spring

Rationales for and against Regulatory Involvement in Resolving Internet Interconnection Disputes
TABLE OF CONTENTS INTRODUCTION I. FOUR PHASES IN THE DEVELOPMENT OF THE INTERNET ECOSYSTEM A. Phase 1: Incubation B. Phase 2: Privatization C. Phase 3: Commercialization D. Phase 4: Diversification II. THE LEVEL 3-COMCAST DISPUTE...
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A Political History of DRM and Related Copyright Debates, 1987-2012
IV. DMCA REFORM Especially in light of the Felten and Sklyarov cases, the budding SFU coalition quickly came to see the DMCA as an extremely objectionable law in need of reform. The stories of programmers who had been harassed and even jailed quickly...
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Therasense V. Becton Dickinson: A First Impression
TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Case B. The En Banc Opinion II. LAW AND POLICY ISSUES RAISED BY THERASENSE A. A Patent Handout B. Implications for Patent Quality C. Implications for Patent Litigation ...
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Vol. 14, No. 1, Fall

Cherry-Picking Memories: Why Neuroimaging-Based Lie Detection Requires a New Framework for the Admissibility of Scientific Evidence under FRE 702 and Daubert
ABSTRACT Neuroimaging techniques have been in heavy rotation in the news lately. Increasingly, companies have used neuroimaging techniques--specifically, functional magnetic resonance imaging (fMIRI)--in an attempt to determine whether an individual...
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The Bramble Bush of Forking Paths: Digital Narrative, Procedural Rhetoric, and the Law
ABSTRACT This Article explores ways to harness the persuasive and narrative power of computer games for practical legal purposes. The mental experiences we have when we play computer games relate to what attorneys do every day. Playing computer...
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Enforcement of Open Source Software Licenses: The MDY Trio's Inconvenient Complications
ABSTRACT The Federal Circuit's ruling in Jacobsen v. Katzer finally settled the question of whether open source licenses are enforceable. Unfortunately, three recent cases from the Ninth Circuit have complicated matters. I call this trio of cases...
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Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral
ABSTRACT In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules...
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Vol. 13, Annual

28 U.S.C. (Section) 1498(a) and the Unconstitutional Taking of Patents
ABSTRACT Eminent domain requires a showing of two elements: a property right, and a proper venue to bring suit against the government. 28 U.S.C. [section] 1498(a) grants patent owners the right to sue the United States for the unauthorized use of...
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The Problem with Intellectual Property Rights: Subject Matter Expansion
ABSTRACT This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide...
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Information Overload at the U.S. Patent and Trademark Office: Reframing the Duty of Disclosure in Patent Law as a Search and Filter Problem
ABSTRACT The United States Patent and Trademark Office (USPTO) receives more prior art submissions by patent applicants than its patent examiners have the capacity to process. Although applicant prior art submissions are highly likely to contain...
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Licensing as Digital Rights Management, from the Advent of the Web to the iPad
ABSTRACT This Article deals with the Digital Millennium Copyright Act's anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under...
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Evolving Entertainment Technology: Can New Types of Fun Lead to New Types of Liability?
ABSTRACT The proliferation of mass-market entertainment in the late 20th century saw the emergence of "violent-entertainment cases"--claims alleging that producers of entertainment have some type of duty to prevent the consumers of their violent...
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Vol. 12, Annual

The Citation of Wikipedia in Judicial Opinions
ABSTRACT Wikipedia has been cited in over four hundred American judicial opinions. Courts have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content....
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The Individual Inventor Motif in the Age of the Patent Troll
ABSTRACT The individual inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the individual inventor's image and, in turn, caused Congress, the United States Patent...
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Death of the Revolution: The Legal War on Competitive Broadband Technologies
ABSTRACT This Article examines the role that law has played in entrenching incumbents in the communications industry, with a particular focus on broadband services. Earlier this decade, several new "revolutionary" broadband technologies threatened...
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E-Book Transactions: Amazon "Kindles" the Copy Ownership Debate
ABSTRACT The Amazon Kindle is revolutionizing the way we buy and read books. But according to Amazon, Kindle books are not sold at all. Rather, they are licensed under surprisingly aggressive terms. This may surprise Kindle users. Amazon's promotional...
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Vol. 11, Annual

Warranties and Disclaimers in the Electronic Age
ABSTRACT This article reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website...
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Controlling Patent Trolling with Civil RICO
ABSTRACT The modern patent system is incapable of policing extensive .fraud. This inability to control fraudulent activity has created a system susceptible to abuse. The current remedies offered by the courts to counterbalance fraudulent conduct...
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Tort Made for Hire - Reconsidering the CCNV Case
ABSTRACT It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term "employee" in the context of "work...
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Government Data and the Invisible Hand
INTRODUCTION If President Barack Obama's new administration really wants to embrace the potential of Internet-enabled government transparency, it should follow a counter-intuitive but ultimately compelling strategy: reduce the federal role in presenting...
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Technology Policy, Internet Privacy, and the Federal Rules of Civil Procedure
Technology policy, while perhaps not as high-profile as the war in Iraq or health care, was an important issue in the 2008 presidential campaign. Though technology policy is a broad field that encompasses everything from broadband proliferation to...
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A National Technology Agenda for the New Administration
While the presidential race primarily focused on the economy, the Iraq war, and the rising cost of health care, President Barack Obama must now show that he is ready to set the technology policy agenda of the United States for the next four years because...
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The Future According to Google: Technology Policy from the Standpoint of America's Fastest-Growing Technology Company
As the fastest-growing technology company in the United States, (1) Google has been at the center of some of the most contentious technology policy disputes of recent years. In the federal courts, these disputes focus on the fair or noncommercial use...
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The Constitution and the NSA Warrantless Wiretapping Program: A Fourth Amendment Violation?
ABSTRACT The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between...
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The Doctrine of Equivalents in Various Patent Regimes - Does Anybody Have It Right?
ABSTRACT The doctrine of equivalents is arguably one of the most important aspects of patent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds...
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Patent and Contribution: Bringing the Quid Pro Quo into eBay V. MercExchange
ABSTRACT In eBay, Inc. v. MercExchange, L.L.C., the Supreme Court declared that an injunction granted to stop and prevent patent infringement is like any other injunction, and therefore should only issue after consideration of traditional equitable...
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Vol. 10, Fall

Trademark Externalities
ABSTRACT This Article investigates two particularly intriguing aspects of evolving theories of intellectual property. The first is how well new theories mesh with traditional theories. Externality, theory from this decade recapitulates public goods...
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Surfin' Safari - Why Competent Lawyers Should Research on the Web
ABSTRACT The easy availability of information on the internet has drastically changed the way that lawyers conduct legal research and has also affected the standards .for competency to which lawyers are held. This Article explores the ways in which...
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Digital Searches, General Warrants, and the Case for the Courts
ABSTRACT Translating Fourth Amendment rules designed to regulate searches and seizures of physical property into rules that regulate digital investigations raises numerous questions. This Note seeks to address one narrow subset of the issues digital...
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Private Legal Systems: What Cyberspace Might Teach Legal Theorists
ABSTRACT One of the most pervasive and recurrent issues that legal theory has had to deal with is the very concept of law. And one of the most puzzling questions that cyberspace lawyers have been facing is where and in which form law is to be found...
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Copyright Distributive Injustice
ABSTRACT Copyright law is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm claim that copyright law should be based upon redistribution, rather than efficiency. Redistributive...
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Vol. 9, Spring-Fall

The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance
TABLE OF CONTENTS INTRODUCTION I. FOREIGN INTELLIGENCE SURVEILLANCE: A BRIEF OVERVIEW II. CHANGING BASE CONDITIONS A. THE CHANGING NATURE OF THE THREAT AND THE SHIFT TO PREEMPTION B. THE NEED FOR SURVEILLANCE C. THE DISSOLVING...
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Exploit Derivatives & National Security
ABSTRACT Critical infrastructures remain vulnerable to cyber attack despite a raft of post-9/11 legislation focused on cyber security in critical infrastructures. An emerging discipline known as the "economics of information security" may provide...
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Of Fire Ants and Claim Construction: An Empirical Study of the Meteoric Rise of the Eastern District of Texas as a Preeminent Forum for Patent Litigation
ABSTRACT Forum shopping by patent litigants is nothing new. However, in recent years, there has been an increase in forum shopping by patentee plaintiffs. Because of this forum shopping phenomenon, the Eastern District of Texas, a technological...
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Everything New Is Old Again: Brain Fingerprinting and Evidentiary Analogy
Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. J. Cardozo (1) Whatever produces the judge's hunches makes the law. Jerome Frank (2) ABSTRACT Brain Fingerprinting...
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Experimental Study on the Hindsight Issue before the Supreme Court in KSR V. Teleflex
ABSTRACT For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of...
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Where Antitrust Ends and IP Begins - on the Roots of the Transatlantic Clashes
ABSTRACT U.S. antitrust enforcers see little scope for antitrust policy to mitigate the consequences of imperfect IP policies. They are reluctant to intervene in what is perceived to be the sphere of IP policy and take the view that any competitive...
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Pervasive New Media: Indecency Regulation and the End of the Distinction between Broadcast Technology and Subscription-Based Media
TABLE OF CONTENTS INTRODUCTION I. BROADCAST REGULATION AND THE FIRST AMENDMENT II. THE CASE FOR ELIMINATING THE CABLE/BROADCAST DISTINCTION A. EXPLICATING THE CABLE/BROADCAST REGULATORY DISTINCTION B. CABLE AS A PERVASIVE MEDIUM...
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Vol. 8, Spring-Fall

Toward an Ecology of Intellectual Property: Lessons from Environmental Economics for Valuing Copyright's Commons
ABSTRACT The "fair use" defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential "effect...
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The Rise of the OECD as Informal 'World Tax Organization' through National Responses to E-Commerce Tax Challenges
ABSTRACT This paper assesses national and international responses to tax challenges presented by cross-border electronic commerce. Ten years after these challenges were first identified, a survey of national government reactions shows that many...
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Search Engine Bias and the Demise of Search Engine Utopianism
ABSTRACT Due to search engines' automated operations, people often assume that search engines display search results neutrally and without bias. However, this perception is mistaken. Like any other media company, search engines affirmatively control...
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Regulating Search Engines: Taking Stock and Looking Ahead
"To exist is to be indexed by a search engine" (Introna & Nissenbaum) TABLE OF CONTENTS I. INTRODUCTION II. A BRIEF (AND CASUAL) HISTORY OF SEARCH ENGINES III. SEARCH ENGINE REGULATION: PAST AND PRESENT A. OVERVIEW OF SEARCH ENGINE-RELATED...
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Challenges to Authority, Burdens of Legitimization: The Printing Press and the Internet
ABSTRACT The Internet is often regarded as a challenge to the nation-state's ability to regulate flows of finance, information, and symbols. Rather than examining whether it is possible to enforce regulation on such a media, this paper addresses...
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Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing-Of Music in the United Kingdom
ABSTRACT This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression...
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Law as a Network Standard
The problem of global information flows via computer networks raises issues of competition, interoperability, and standard-setting parallel to those in the analysis of technical standards. Uniform standards, whether technical or legal, give rise to...
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Vol. 7, Annual

Architectural Regulation and the Evolution of Social Norms
I. INTRODUCTION II. COMPARING LEGAL RULES AND ARCHITECUTRAL REGULATION A. DIFFERENTIATING LEGAL RULES AND ARCHITECTURAL REGULATION B. COMPARING THE CAREERS OF LEGAL RULES AND ARCHITECTURAL REGULATION 1. LEGAL RULES...
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Transborder Search: A New Perspective in Law Enforcement?
I. TRANSBORDER SEARCH AND THE GORSHKOV-IVANOV CASE II. LEGAL PERMISSIBILITY OF "TRANSBORDER SEARCHES" A. TRANSBORDER SEARCHES IN THE CASE OF GENERALLY ACCESSIBLE DATA B. TRANSBORDER SEARCHES IN THE CASE OF NOT FREELY ACCESSIBLE DATA ...
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The Fourth Amendment Unplugged: Electronic Evidence Issues & Wireless Defenses
I. INTRODUCTION A. NOVEL ELECTRONIC EVIDENCE ISSUES B. HYPOTHETICAL FACTS II. ELECTRONIC EVIDENCE AND PRIVATE SEARCHES A. EVOLUTION OF FOURTH AMENDMENT JURISPRUDENCE B. TECHNOLOGY'S IMAPCT ON THE FOURTH AMENDMENT C. WARRANTLESS SEARCHES ...
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Launch on Warning: Aggressive Defense of Computer Systems
I. INTRODUCTION There has been a growing interest in "self help" mechanisms to counter Internet-mediated threats. Content providers such as record labels and movie studios have favored proposed federal legislation that would allow them to disable...
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Real World Problems of Virtual Crime
I. THE CASE OF THE SNOOPING STAFFERS AND PEEKING POLITICO II. THE CASE OF THE PARENTAL NIGHTMARE III. THE CASE OF THE WIFI SPOOFER IV. CONCLUSION Theoretical debates about how best to address cybercrime have their place, but, in the real world,...
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Technology, Security and Privacy: The Fear of Frankenstein, the Mythology of Privacy and the Lessons of King Ludd
I. PRELUDE II. INTRODUCTION III. SOME ASSUMPTIONS IV. FRANKEN-TECH: THE FEAR OF TECHNOLOGY V. THE PRIVACY NORM PROSELYTIZERS: A FETISH FOR SECRECY VI. PRIVACY INTERESTS AT STAKE A. THE CHILLING EFFECT B. THE SLIPPERY SLOPE C....
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Vol. 6, Annual

Balancing the Scales: The Ford-Firestone Case, the Internet, and the Future Dispute Resolution Landscape
The author discusses the Internet's potential equalizing effect on dispute resolution institutions. The emergence of online dispute resolution (ODR) mechanisms and virtual courts are the clearest manifestation of the Internet's influence on dispute...
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What's Really Wrong with Genetic Enhancement: A Second Look at Your Posthuman Future
This Article presents the case against genetic enhancement. It begins with a critique of Fukuyama's highly publicized work on enhancement. It then reconstructs the case for regulation, arguing that enhancement will undermine the most basic and universal...
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Using WYSH Computer Programs to Model the Alien Tort Claims Act
This paper argues that an artificial intelligence algorithm can model some of the principles of civil procedure. The binary conditionals used in civil procedure--e.g., personal jurisdiction exists/does not exist--correspond closely to the Boolean logic...
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