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  • The Next, Small, Step For Mankind: Fixing the Inadequacies of the International Space Law Treaty Regime to Accommodate the Modern Space Flight Industry

    Since man’s first foray into space flight in 1958, the world has greatly changed. Early space law treaties were created for a world where nations looked to travel to the moon and beyond, two hostile superpowers gave rise to the danger of a weaponized outer space, and space travel was too expensive for anyone but the world’s richest governments. This article argues that the current space law treaty regime, negotiated in the late 1960s and early 1970s, is inadequate to handle the challenges of space flight in the next decade. These challenges include commercial space flight and its attendant concerns, space tourism, orbital crowding, and most importantly, the proliferation of dangerous orbital debris. The article then critiques proposed solutions to some of these problems, and suggests a direction for future space law developments.

  • Daubert v. Merrell Dow Pharmaceuticals and the Local Construction of Reliability

    Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. In this article I critique this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance—even given the dicta—on what constitutes “good science.” When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert’s essential ambiguity leads to what I call “local constructions of reliability,” disparate and often competing conceptions of what constitutes reliable expert evidence. What is considered reliable in one area of expert testimony, such as medical causation, will be quite different from what is required for another, such as handwriting expertise.
    If Daubert leads to such variation among different spheres of expert testimony, how can we generalize or predict judicial decision-making? I argue that admissibility decisions can and should be modeled empirically. Viewing judges as goal-oriented actors, I transform likely goals for judges making Daubert decisions into relevant variables for empirical modeling. These goals include attention to the quality of expert testimony (if not always under the Daubert dicta), maintaining institutional stability and judicial autonomy when faced with controversial scientific claims, and advancing judicial policy preferences. I intend this discussion to serve as a template for further empirical work on Daubert.

  • Biotechnology Industry Organization v. District of Columbia: A Preemptive Strike Against State Price Restrictions on Prescription Pharmaceuticals

    Truvada, a medication used to treat AIDS, costs nearly $900 or more for 30 tablets. The same quantity of Abilify, a psychotropic used to treat schizophrenia, can cost over $500. An Advair Diskus for long-term treatment of asthma costs $180. A syringe of Enbrel, a medication to reduce the symptoms of rheumatoid arthritis, has a staggering price of more than $2,000.

  • An Avatar’s Parody: Considering a First Amendment Right to Parody Real World Trademarks in a Three-Dimensional Virtual World

    Parody is a social and literary criticism that has significant value as free speech under the First Amendment. For trademark purposes, the First Amendment protects parodies of marks against trademark law, provided that the parody is successful. A successful parody “must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody.” In addition to the second requirement, the parody must “communicate some articulable element of satire, ridicule, joking, or amusement.” A successful parody minimizes potential liability under trademark law because consumers are less likely to be confused as to the source of the mark being parodied. Where a parody is effectively conveyed, reducing the likelihood of consumer confusion, United States courts have held parodies of trademarks are protected under the First Amendment.

  • Using fMRI as a Lie Detector – Are We Lying to Ourselves?

    At this moment, the technology exists to read your mind. If you are like most people, this may come as a shocking concept, but it is a true statement, in a manner of speaking. Specifically, several companies and academics are researching technologies that will read the activity of your brain and attempt to correlate this with deception. While the potential benefits of this technology are obvious to the legal profession, it also raises several thorny ethical and moral questions. Among these are: what are the privacy implications of such a technology, and does the social benefit that might result from the use of this technology justify what could arguably be the most intimate invasion of personal integrity possible? While wrestling with these and other issues, one must note that the technologies being developed as lie detectors are not one hundred percent accurate. The question becomes: how should the data from these tests be used in light of the fact that they are not one hundred percent accurate? These technologies all assume that brain activity correlates with actual thought, but our current knowledge is insufficient to know this for certain. As a result, brain imaging technologies must be critically examined before they become an accepted means of determining truth from lie.

  • Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime

    From their inception in American copyright law, monopolies have been lamented as “the greatest nuisances in Government” and yet, in the same breath, recognized for promoting ingenuity. Digital sampling, the process of manipulating pre-existing sound recordings and incorporating them in one’s music, highlights their shortcomings. A practice that should be burgeoning due to a cultural and technological revolution, sampling is being smothered—with Congressional and judicial fiat—by opportunistic rights holders who are seldom the authors of the protected works. Creative samplers are branded as thieves under legislation that has been incoherent from the outset. Reform is sorely needed.

  • DNA Databases and the Fourth Amendment: The Time has Come to Reexamine the Special Needs Exception to the Warrant Requirement and the Primary Purpose Test

    If you were to poll law enforcement officers as to what has been the single most important advancement in the past twenty years in their profession, the response would almost certainly be the advent of computerized DNA databases. Through a process known as a “cold hit,” police are able to identify suspects by matching DNA left at a crime scene to DNA profiles contained in a known offender database. The use of searchable, computerized databases has become almost universal in assisting law enforcement solve crime and ha s become ingrained in American popular culture through its portrayal in television shows like CSI.

  • Securitization of Patents and its Continued Viability in Light of the Current Economic Conditions

    The United States Constitution states that “Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Through its constitutional grant of power to promote the progress of science and the useful arts, Congress created the Patent Act, which outlines the patent granting process and the rights possessed by patent holders. Thus, a patent is really a statutory creation by the federal government, granting an inventor “the right to exclude others from making, using, offering for sale, or selling . . . or importing” the claimed invention or pro ext/javascript"> t/javascript"> cess. When this right to exclude is combined with commercial success it can create enormous financial value.

  • The Impact of Government-Mandated Public Access to Biomedical Research: An Analysis of the New NIH Depository Requirements

    On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008. The bill, which became Public Law 110-161, contained a new requirement that manuscripts developed through funding by the National Institutes of Health (NIH) be made available to the public, free of charge, within one year after publication. This new mandatory requirement struck a compromise position between the existing pay-to-access model of private journal publishers and the potential free-for-all of the public domain. But did it go far enough? Should Congress have adopted a more aggressive policy of opening access to research? Alternatively, did Congress go too far, and as a result have we crippled scientific publishing?

  • Will Video Kill the Trial Courts’ Star? How “Hot” Records Will Change the Appellate Process

    Recent innovations in technology have allowed appellate courts unprecedented access to information from the lower courts that previously was not available. While this access can allow appellate judges to connect to the record on a deeper, more thorough level, it also leaves them open to charges that they are overstepping their traditional deference to the lower courts’ factfinder function. What happens to such deference when the appellate courts have access to a “multimedia” record that mimics the first-hand experience of the trial judge? Should traditional appellate deference to cold records be ignored in an age of hot records? Or should such evidence be more appropriately introduced before a jury acting as the factfinder?

  • Rambus, N-Data, and the FTC: Creating Efficient Incentives in Patent Holders and Optimizing Consumer Welfare in Standards-Setting Organizations

    This paper analyzes the Federal Trade Commission’s (“FTC”) actions in regards to standards-setting organizations (“SSOs”). After documenting the FTC’s actions in the cases of In re Dell Computer Corporation, In re Rambus, Inc., and In re Negotiated Data Solutions, LLC, I provide a law and economics analysis and present recommendations concerning two of the biggest issues in SSOs: RAND commitments and patent disclosure. The former can be dealt with using contract law, while the latter can be dealt with using contract law and patent pools overseen by the FTC. The FTC should choose enforcement mechanisms that will incentivize SSO members to act in a socially optimal manner. The FTC should generally limit itself to the use of anti t/javascript"> trust powers, and make sure to give a meaningful limiting principle if unfair competition powers must be used.

  • YouTubing Down the Stream of Commerce: Eliminating the Express Aiming Requirement for Personal Jurisdiction in User-Generated Internet Content Cases

    The past few years have seen an explosion in the popularity of online social networks and availability of user-generated Internet content. The growing pervasiveness of user-generated Internet content combined with its potential to cause harm has created an urgent need for courts to reexamine the requirements for personal jurisdiction in Internet cases. Many courts require express aiming to the forum state to uphold personal jurisdiction in cases of harmful online communication. Under an express aiming requirement, the defendant must have purposely directed the harmful activity to the forum state. The unique nature of the Internet, however, gives instant access to potentially harmful communication anywhere in the world. Requiring express aiming in the context of user-generated Internet content does not adequately account for the technological reality that anyone can access the Internet from anywhere. Therefore, due process may allow personal jurisdiction in the forum state without express aiming of Internet content.

  • Considerations for the Off-Label Use of Medications in Oncology

    Practicing at the VA, one of our roles there is to really assess for the off-label use of medications whether or not there is enough evidence to support allowing a prescription to go through and reach a patient. And so we’re often in that situation where we’re trying to make a decision about a physician who would like to treat a patient with a medication that’s not indicated and we’re kind of the barrier. We’re one of the final people who are able to review that before allowing it to go through the system. So it’s definitely an issue that we deal with on a regular basis.

  • Industry and Physicians, the Good, the Bad and the Ugly

    One of the things when you get to be my age is you remember things, and one of the things that I remember quite well is the original spaghetti cowboy movie or western, which was called The Good, Bad and the Ugly with Clint Eastwood. Looking at industry and physicians interaction there’s a perception this is a drug industry issue. It’s not. We live in an environment where the device manufacturers are also involved. And while we tend to think more of drugs, this is not the only part. When I arrived over at Albany Med about a quarter to six this morning, I saw one of the device reps getting out of his van and bringing in a whole pile of things. He was going to the operating room to help somebody to implant some device. I won’t tell you what I thought it was, but it was something that you would all recognize.

  • Off-Label Drug Use: Pros and Cons

    What I’m going to do is talk about how the FDA got its start, what labeling means, what off-label means, give you some examples of some of those off-labeled uses, and then give, from my perspective, some of the pros and cons of off-label drug use. I admit I do not have all the answers by any means, but at least hopefully I’ll have some food for thought. And then if we have the time I’ll talk about some specific off-label uses of drugs that we use in our endocrinology practice without really thinking too much about it because it just makes so much sense to do.