Reviewing the Law Reviews
Youngdale, Elizabeth M., Defense Counsel Journal
Law Review Highlights: Technology
The growth of technology poses a constant challenge to the law and its application as new forms of communication and software make their way into the day-to-day lives of people. Three articles examine how different areas of law--evidence, products liability, and torts--are responding to the question of how to integrate these technologies into a changing legal landscape. In the article Twenty-First Century Pillow Talk: Applicability of the Marital Communications Privilege to Electronic Mail, Mikah K. Story looks at the way e-mail between spouses fits into the existing rules on marital communications privilege. (1) Starting with an overview of the history of the privilege, the article moves into a discussion of whether such privilege should continue to exist and how communication through ISPs affects the analysis of the communications privilege. Ultimately, the author concludes that marital communications privilege should not cover electronic mail because a spouse who communicates through web-based e-mail has involved a third-party in the exchange. Therefore, the confidentiality of the communication is lost.
In a student note, Matthew R. Lindblom, considers how products liability law might be used to refine copyright law in regards to the burgeoning business of file-sharing applications on the Internet. (2) The author suggests that rather than continuing to apply the inducement rule where there are questions of indirect liability in copyright infringement, courts should instead take into account the harm done to copyright owners by the designers of file-sharing software. By looking at file-sharing infringements through the lens of products liability, the author posits that courts will be more likely to provide an appropriate remedy for wrongs done to copyright owners.
A third article, Virtual Espionage: Spyware and the Common Law Privacy Torts, analyzes the potential application of tort law to the invasive spyware software that hides itself on computers, often to the severe detriment of the computer owner. (3) Don Corbett proposes that privacy tort claims against companies that employ this software may provide courts with an effective means of protecting the privacy rights of individuals who have been victims
of this technology. While the author acknowledges that there will be difficult challenges to overcome with such a view of these spyware suits, he suggests that there is a need to see this problem through a different prism than exists with current law dealing with spyware encroachment.
The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.
U.S. and International
Ronan Avraham, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 55 DEF. L.J. 711 (2006).
Charles Calleros, Punitive Damages, Liquidated Damages, and Clauses Penales in Contract Actions: A Comparative Analysis of the American Common Law and the French Civil Code, 32 BROOK. J. INT'L L. 67 (2006).
Natasha Dasani, Note, Class Actions and the Interpretation of Monetary Damages Under Federal Rule of Civil Procedure 23(b)(2), 75 FORDHAM L. REV. 165 (2006).
Sara Drake, Scope of Courage and the Principle of "Individual Liability" for Damages: Further Development of the Principle of Effective Judicial Protection by the Court of Justice, 31 EUR. L. REV. 841 (2006).
Hugh Alexander Fuller, Note, Immigration, Compensation and Preemption: The Proper Measure of Lost Future Earning Capacity Damages After Hoffman Plastic Compounds, Inc. …