Author(s): Peter S. Menell Year: 2013 Abstract: As the Cold War commenced, George Orwell famously warned of a dystopian future in which government authorities pervasively surveil their citizens as part of an insidious system of public mind control. While leaks of the National Security Administration’s clandestine PRISM mass electronic data mining program have reignited fears […]
2014: Brand Totalitarianism
Taming the Mongrel: Aligning Appellate Review of Claim Construction with its Evidentiary Character in Teva v. Sandoz
Author(s): Peter S. Menell Year: 2014 Abstract: In its seminal Markman decision, the Supreme Court sought to usher in a more effective, transparent patent litigation regime through its ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In the aftermath of this […]
Land Recording and Copyright Reform
Author(s): Molly S. Van Houweling Year: 2013 Abstract: The high information costs associated with the contemporary copyright system are widely acknowledged and lamented. Anxiety regarding the inadequacy of information about copyright is manifest, for example, in policy debates about the status of “orphan works” whose owners cannot be identified and located. The ultimate concern is […]
Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State
Author(s): Kenneth A. Bamberger Year: 2006 Abstract: Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk – from financial, data and homeland security risk to the risk of conflicts of interest – increasingly mandates broad policy outcomes and accords regulated parties […]
Technologies of Compliance: Risk and Regulation in a Digital Age
Author(s): Kenneth A. Bamberger Year: 2009 Abstract: Legal scholarship has been silent about a phenomenon with profound implications for governance: the automation of compliance with laws mandating risk management. Regulations – from bank capitalization rules, to Sarbanes-Oxley’s provisions on financial fraud and misrepresentation, to laws governing information-privacy protection – frequently require regulated firms to develop […]
Chevron’s Two Steps
Author(s): Kenneth A. Bamberger Year: 2008 Abstract: Contrary to a suggestion by Professors Matthew Stephenson and Adrian Vermeule (“Chevron has Only One Step,” forthcoming in Va. L. Rev.), Chevron v. NRDC’s model for judicial review of agency interpretations of regulatory statutes involves two “steps” – and for good reason. The two-step analysis provides a framework […]
This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age
Author(s): Peter S. Menell Year: 2014 Abstract: This article calls attention to the dismal state of copyright’s public approval rating. Drawing on the format and style of Ira Glass’s “This American Life” radio broadcast, the presentation unfolds in three parts: Act I – How did we get here?; Act II – Why should society care […]
Atomism and Automation
Author(s): Molly S. Van Houweling Year: 2013 Abstract: Imagine: A budding amateur photojournalist captures the aftermath of a devastating storm using his mobile phone. He then uses the phone to enter a few terms that describe the photo (“hurricane,” “flood”), checks a box to indicate that he wants the photo to be displayed to the […]
Clinic Submits Comments to U.S. Department of State on Electronic Passports on behalf of Eight Leading Computer Scientists and Engineers
Type: Comments Year: 2005 The Samuelson Clinic submitted comments on behalf of eight computer scientists and engineers to the Office of Passport Policy, Planning and Advisory Services at the U.S. Department of State in response to the Department’s February 18 Notice of Proposed Rulemaking on Electronic Passports. In their comments, these leading cryptology and security […]
New Report Recommends Audit Procedures to Improve Elections
Type: Report Year: 2007 The Samuelson Clinic has co-authored with the Brennan Center for Justice at NYU School of Law the first comprehensive review of state laws and academic research on audits designed to check the integrity of electronic voting systems. The report, “Post Elections Audits: Restoring Trust in Elections,” finds that most states are […]