Past JLTP Abstracts - Volume 2005 Issue 1


Shopping for Privacy Online: Consumer Decision-Making Strategies and the Emerging Market for Information Privacy

James P. Nehf


In this Article, I argue that encouraging the posting of privacy policies without regulating their content is likely to result in suboptimal privacy practices—that is, privacy practices that give consumers substantially less information privacy than an efficient market would produce. To support the argument, I examine research on consumer decision strategies and behavioral economics. I first describe rational choice theory in the context of a market for personal information online. I then explore whether the assumptions underlying the theory are supported by social science research concerning consumer behavior and decision-making patterns. The evidence is conflicting but, I believe, reconcilable, and troubling for those who put their faith in market solutions to privacy problems.

Block Me Not: How "Essential" Are Patented Genes?

Shamnad Basheer


If the patented gene is not absolutely essential for use by a downstream researcher, in that there are substitutes available to work with or ways in which the patent in question could be circumvented, clearly the patented gene will not block the downstream researcher. In this sense, while the first part of the title, “Block Me Not,” expresses the blocking concern in general (the thousand-mile journey), the latter part, “How ‘Essential’ Are Patented Genes?,” is the more specific question that this Article seeks to address (the first step in this long and arduous journey).

Intercarrier Compensation and Consumer Welfare

Jerry Ellig


The FCC now has the opportunity to deliver additional consumer benefits through comprehensive intercarrier compensation reform. Given the complexity of the issues, any reform effort undoubtedly will involve significant further rulemaking and litigation. In the din of competing interests, it may be difficult to remain focused on what is arguably the most important goal: promotion of consumer welfare.16 Even if reform incorporates other goals, decision makers need a solid analysis of consumer welfare so they can understand when other goals might conflict and identify tradeoffs.

This Article examines the impact on consumer welfare of the current system and several major elements of proposed reforms. Part II assesses the extent to which the current system may enhance consumer welfare by addressing a genuine market failure. Part III identifies the distortions and inefficiencies created by the current system. Part IV assesses elements of proposed reforms, and Part V concludes by offering some recommendations based on that assessment. If regulators, courts, and (dare we hope) interested parties can keep this analysis in mind, the ultimate result may yet make consumers better off.


Click the Mouse and Bet the House: The United States' Internet Gambling Restrictions Before the World Trade Organization

Jonathon Schwartz


Similar to the attempts to combat alcohol during Prohibition and narcotics during the War on Drugs, the U.S. prohibition of Internet gambling has resulted in significant adverse consequences. Gambling institutions that likely would not be licensed in the United States, had the country been willing to regulate rather than prohibit Internet gambling, now have control over billions of American consumers’ dollars. As the recent World Trade Organization (WTO) dispute between the United States and Antigua and Barbuda illustrates, the U.S. prohibition of Internet gambling fuels tensions in international trade relations. By regulating rather than prohibiting Internet gambling, the United States would stand a better chance of having its concerns heard both by nations licensing the Internet gambling operations and by the Internet gambling operations themselves.


Is Interoperability Just for Those Who Can Hack It? The Application of the DMCA Interoperability Exceptions in the Consumer Electronics Industry

James L. Davis


Why Cyber lawyering Fails: What Remedies Are or Should Be Available to Those Harmed from Relying on "Self-Help" Legal Software

Brent L. Barringer