Articles

Brain Imaging for Legal Thinkers: A Guide for the Perplexed

Owen D. Jones
Joshua W. Buckholtz
Jeffrey D. Schall
Rene Marois

It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This Article offers some general guidelines to legal thinkers about how to understand brain imaging studies—or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary. Read more about Brain Imaging for Legal Thinkers: A Guide for the Perplexed

“And I See Through Your Brain”: Access To Experts, Competency To Consent, And The Impact Of Antipsychotic Medications In Neuroimaging Cases In The Criminal Trial Process

Michael Perlin

Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases.... Read more about “And I See Through Your Brain”: Access To Experts, Competency To Consent, And The Impact Of Antipsychotic Medications In Neuroimaging Cases In The Criminal Trial Process

Rethinking Enablement in the Predictable Arts: Fully Scoping the New Rule

Bernard Chao

In exchange for granting inventors a limited monopoly, the patent laws require inventors to “enable” the public to make and use their invention. In Liebel-Flarsheim Co. v. Medrad, Inc., Automotive Technologies International, Inc. v. BMW of North America, Inc., and Sitrick v. Dreamworks, L.L.C., the Federal Circuit made it far easier to show that patents are invalid based on lack of enablement in the predictable arts. These decisions rely on the enablement doctrine to invalidate claims that appear to be far broader in scope than what the written description of the patents suggests.... Read more about Rethinking Enablement in the Predictable Arts: Fully Scoping the New Rule

A Free Speech Theory of Copyright

Steven J. Horowitz

Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech.... Read more about A Free Speech Theory of Copyright

Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home

Deirdre K. Mulligan
Jack Lerner

In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs.... Read more about Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home

The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property

Paul Ohm

The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to modern privacy concerns by extending Constitutional protection to situations that satisfy the reasonable expectation of privacy test.... Read more about The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property

Rights "Chipped" Away: RFID and Identification Documents

Nicole A. Ozer

The ACLU of Northern California has been a leader in generating public and legislative attention to the privacy, personal safety, and financial security risks associated with the use of Radio Frequency Identification (RFID) technology in government-issued identification documents, such as drivers' licenses and student ID cards.... Read more about Rights "Chipped" Away: RFID and Identification Documents

First Principles of Communications Privacy

Susan Freiwald

Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in the context of modern communications. Significantly, courts have required that communications media be virtually invulnerable before affording them Fourth Amendment protection.... Read more about First Principles of Communications Privacy

The Patentability of Enantiomers: Implications for the Pharmaceutical Industry

Jonathan J. Darrow

Pharmaceutical sales constitute a $600-billion-per-year global industry. Less well-known is that more than half of the drugs listed in the U.S. Pharmacopoeia contain a class of compounds known as chiral molecules as the active pharmaceutical ingredient. Chiral molecules have special chemical and pharmacological properties that raise questions as to their patentability.... Read more about The Patentability of Enantiomers: Implications for the Pharmaceutical Industry

Pages