Past JLTP Abstracts - Volume 2010 Issue 1


ARTICLES

Privacy Invasive Geo-Mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws
by Mark Burdon
 

Online technological advances are pioneering the wider distribution of geospatial information for general mapping purposes. The use of popular web- based applications, such as Google Maps, is ensuring that mapping based applications are becoming commonplace amongst Internet users which has facilitated the rapid growth of geo-mashups. These user-generated creations enable Internet users to aggregate and publish information over specific geographical points. This article identifies privacy invasive geo-mashups that involve the unauthorized use of personal information, the inadvertent disclosure of personal information and invasion of privacy issues.

Building on Zittrain's Privacy 2.0, the author contends that first generation information privacy laws, founded on the notions of fair information practices or information privacy principles, may have a limited impact regarding the resolution of privacy problems arising from privacy invasive geo-mashups. Principally because geo-mashups have different patterns of personal information provision, collection, storage and use that reflect fundamental changes in the Web 2.0 environment. The author concludes by recommending embedded legal, organizational technical and social solutions to minimize the risks arising from privacy invasive geo-mashups that could lead to the establishment of guidelines to assist courts and regulators with the protection of privacy in geo-mashups.


The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts
by Casey R. Fronk
 

Since the early 1960s, computerized legal research technology has enabled judges and their law clerks to access legal information quickly and comprehensively. Particularly for appellate judges, who rely on wide-ranging legal research when writing opinions, this technological change has had special resonance. This Article attempts to quantify the effects of computer- assisted legal research on the federal judiciary by empirically analyzing citation patterns over the past fifty years. The results of this analysis suggest that the digitization of legal research has had statistically significant effects on the amount and style of citation in judicial opinions. Although the average number of cases cited in opinions has doubled between 1957 and 2007, the number of cases cited only in string citations has decreased by nearly the same percentage. This Article argues that such results can be explained by a basic economic theory of judicial citation in which judges respond to the decreasing cost of opinion production by discarding string citation for more effective communicative techniques.


Law and the Healthcare Crisis: The Impact of Medical Malpractice and Payment Systems on Physician Compensation and Workload as Antecedents of Physician Shortages Analysis, Implications, and Reform Solutions
by John W. Hill, Angela N. Aneiros, and Paul Rayford Hogan
 

The U.S. faces a healthcare crisis of monumental proportions with myriad facets including issues of access, quality, and affordability. Medical malpractice liability is often alleged to play a role in this crisis through its impact on physician compensation and shortages. This study goes beyond the rhetorical arguments in exposing the root causes of the crisis to be the structure of healthcare delivery and physician compensation systems, in part using pooled data we develop. These systems greatly increase the cost of healthcare, lead to far too many medical errors, and skew the distribution of physicians across specialties, in part because the current compensation structure provides inappropriate treatment incentives. Rather than simplistic tort reform solutions such as direct caps on damages, we argue that the real answer to the healthcare crisis resides in new and evolving models of healthcare delivery and reimbursement that hold promise of improving the quality of care and decreasing the number of medical malpractice cases. At the same time, these new systems present new challenges for an already deficient regime for resolving malpractice claims which needs to be reformed to complement the new delivery and reimbursement systems.

We propose pragmatic changes to the current malpractice regime predicated on five pillars: (1) mandated price and quality disclosure of healthcare services, (2) a focus on enterprise liability in which the medical entity responsible for care is the defendant as opposed to individual physicians, (3) mandated disclosure of medical errors to patients, (4) mandated, non-binding mediation the function of which is to avoid costly, protracted trials and long delays in patient compensation whenever possible, and (5) mandated disclosure of medical errors in settled cases. We argue that this approach will provide appropriate incentives to allow for needed systemic change that discourages under treatment and better serves the needs of tort victims.

 

NOTES


Privacy at a Price: Direct-To-Consumer Genetic Testing & the Need for Regulation
by Molly C. Novy

While genetic testing has been used in many different ways for years, direct-to-consumer ("DTC") testing is a more recent phenomenon. Lending to DTC testing popularity is the fact that consumers can test for many things, from "single-gene disorders, such as cystic fibrosis, to tests for predisposition to complex, multifactorial diseases." DTC genetic testing allows an individual to take a genetic test at home, with results sent to them directly, bypassing any direct contact between physician and patient. According to the National Institute of Health ("NIH"), "this form of testing, which is also known as at-home genetic testing, provides access to a person's genetic information without necessarily involving a doctor or insurance company in the process." The FDA and CDC, among others, feel that these genetic tests should only be performed by trained individuals.

Currently, there is a patchwork of state laws and only weak federal regulation of DTC testing in the United States. This Note will discuss the issues surrounding DTC genetic testing primarily conducted via the Internet and its regulation. Part II will discuss the background of genetic testing, the current technology, and current events in the field. Part III will present and analyze benefits and drawbacks of DTC testing, as well as the current legal framework. It also presents possible solutions to the issue of regulation, or lack there-of. Part IV gives a recommendation for resolving the legal issue. Part V will offer some concluding remarks on this concern going forward.


White Open Spaces: Unlicensed Access to Unused Television Spectrum Will Provide an Unprecedented Level of Interconnectivity
by Kathryn A. Watson
 

Before high-definition and hundreds of channels, there once existed a world in which the knob on the front of the television switched between local broadcast channels. In between episodes of M*A*S*H and the local news were "snowy" channels that disrupted the steady flow of channel surfing. Those loud, fuzzy channels have the potential to provide revolutionary new wireless services and extraordinary technological advances in the field of wireless technology.

Recent developments surrounding the broadcast television spectrum have opened up a world of innovation, competition, and debate. On November 4, 2008, the Federal Communications Commission (FCC) adopted a Second Report and Order that establishes new rules for allowing the operation of new, sophisticated wireless devices in the broadcast television spectrum at locations where that spectrum is not being used by licensed services. These unused portions of the television spectrum are known as television "white spaces".

This Note explores the FCC's regulations regarding unlicensed white space devices, as well as the effect the FCC's decision will have on incumbent licensees of the television spectrum. Part II of this Note discusses the broadcast television spectrum and how the FCC allocates use within the spectrum. Part II also discusses the FCC's digital transition initiative, originally scheduled to take place in February of 2009, and the effect this plan has had and will have on the broadcast spectrum. In addition, Part II outlines the conceptual use of white spaces and how the opposition has responded. Part III discusses the new FCC rules regarding white spaces, and evaluates the basic framework under which white space devices must operate. Moreover, Part III analyzes how the rules respond to interference concerns raised by the opposition. Part IV outlines the benefits the FCC's decision will have and proposes legal and regulatory safeguards that should be adopted which will allow this new area of wireless broadband technology to be utilized for the good of society as a whole. Finally, Part V offers concluding thoughts on the future of unlicensed white space devices operating on the dynamically changing spectrum and on how America should anticipate a level of interconnectivity never before imagined.


The Obsolete Second Amendment: How Advances in Arms Technology Have Made The Prefatory Clause Incompatible With Public Policy
by John Zulkey
 

In June 2008, the Unites States Supreme Court handed down the highly controversial D.C. v. Heller, the Court's first decision interpreting the Second Amendment in almost seventy years. Heller gained great attention for its adoption of the individual rights view of the Second Amendment and its potential impact on the states. But perhaps the most intriguing part of the opinion was its dismissal of the Amendment's prefatory clause ("[a] well-regulated militia, being necessary to the security of a free state . . .") -- a dismissal necessitated by advances in arms technology.

Part II of this Note will explore the background of the limited jurisprudence on the Second Amendment in light of advances in arms technology. Part III will examine the militaristic prefatory clause, the Heller Court's justification for eviscerating it, and the various failed constructions that have been posited to resolve the prefatory clause with public policy. Finally, part IV will suggest that the conflict between the prefatory clause and the dictates of sound public policy require the most radical of solutions: an amendment to the Second Amendment.


RECENT DEVELOPMENTS


"Design Patent Infringement: Post- Egyptian Goddess
by Marta Kowalczyk

The United States Court of Appeals for the Federal Circuit overturned design patent precedent in its en banc decision in Egyptian Goddess, Inc. v. Swisa Inc. Prior to Egyptian Goddess, courts had been applying a two-prong test to determine design patent infringement. Egyptian Goddess eliminated one of those prongs: the point of novelty test.

This recent development discusses the rejection of the point of novelty test and the modification of the ordinary observer test in Egyptian Goddess. Part II briefly overviews design patent law prior to Egyptian Goddess, focusing on the evolution of the two-prong test of design patent infringement. Part III discusses the facts and analysis of Egyptian Goddess. Part IV reviews case law post-Egyptian Goddess and comments on the effects of Egyptian Goddess on design patent infringement law. Part V provides concluding remarks on the future of design patent law post-Egyptian Goddess.