Right now, if executives in California and Virginia each pay a competitor’s disloyal employee to copy a trade secret from the competitor’s servers, under the federal Computer Fraud and Abuse Act (CFAA) the Government can charge one executive but not the other. These cases and many others get decided differently due to the ever-widening circuit split over the CFAA term “without authorization,” currently boasting up to five separate tests. Recent scholarship has endorsed trespass as a framework for resolving this split. But scholarship has not begun the work to pull principles, tests, and facts from trespass treatises and historical cases. Nor has it applied trespass precedent to the fact patterns that regularly recur in CFAA cases. This Article starts that process. It first looks at the existing circuit approaches and finds that trespass precedent forecloses several and focuses others. It next looks at individual scenarios that arise repeatedly in CFAA litigation and applies trespass law to suggest how courts should resolve them. Despite the new technologies involved, when we look closely, we see that over centuries working with trespass law, society has confronted these issues before. The same theories were debated. The same scenarios were encountered. Instead of reinventing the wheel as the courts have done thus far, we need only understand the lessons learned. As Samuel Warren and Louis Brandeis once said in their famous privacy article: “[T]he common law provides [us] with [a weapon], forged in the slow fire of the centuries, and today fitly tempered to [our] hand.”
The role of patents in facilitating the exchange of information during the innovative process is highly contextual. Although numerous factors can affect the function of patents in encouraging disclosure, including the nature of the technology involved, most of the scholarship in this area has focused on two industries—biotechnology and software. To provide a richer description of the role of patents in the innovative process, this project evaluates the existing literature and sets forth examples drawn from a series of interviews conducted with medical device professionals from small and medium-sized firms. Although a small number of large corporations dominate the medical device landscape in terms of revenue, most truly innovative devices originate with small to mid-sized medical device companies. These emerging companies often depend on patent protection to help foster communication with investors and negotiate the alliances necessary to commercialize their inventions. By providing a descriptive timeline of the innovative process through a closer examination of the largely-overlooked medical device industry, this Article sets forth a more complete account of the role of patents in the larger narrative of innovation.
The debate over whether the President, the Senate, or the Congress has primacy in treaty termination remains unsettled. Professor Curtis Bradley incorrectly argues that custom supports a presidential authority to terminate treaties independently. This paper argues that a fuller view of custom, combined with the Intent of the Framers and functional considerations, shows treaty termination is a shared executive-legislative power.
The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market. This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.
The prohibition on the use of force is the central pillar of the international system of peace and security, and yet contemporary conflicts continue to stretch and pressure this foundational rule. This article examines how international law applies to the use of force in the territory of another state for the purpose of preventing a resurgence of violence after a conflict has ended. In the absence of consent or UN Security Council authorization, can self-defense be a justification for a state to use force to prevent the resurgence of conflict? In January 2018, the United States announced an intended policy of maintaining military forces in Syria after the end of the conflict with ISIS, in order to prevent the resurgence of conflict, prevent Syria from being a platform for jihadists, and prevent Iran from extending a sphere of influence in the area. The backdrop to this decision is the well-accepted determination that the United States decision to pull out of Iraq at the end of 2011 created space for ISIS to emerge as a reconstituted version of al Qaeda in Iraq. The strategic and policy decision to maintain a military presence so as to prevent a rebirth or reconstitution of one of the most brutal terrorist groups of recent decades appears straightforward. A more complicated question, however, is how to assess the lawfulness of the use of force in the territory of another country in order to prevent the re-emergence of violence. This article addresses a series of issues that stem from the broader question of whether a state can use force to prevent the recurrence of conflict, including whether the meaning of armed attack remains constant regardless of whether it is assessed in the absence of conflict or immediately following the end of a conflict, and how necessity and proportionality apply to such uses of force in accordance with the foundational tenets of the international law of self-defense. The first section addresses introductory issues, including a brief explication of the international law of self-defense, the meaning of the term “use of force” in international law, and the ways in which different types of conflicts end and how to define or identify such endings. The second section analyzes the proper trigger for the right of self-defense, an armed attack or imminent armed attack, and explores whether and how the definition of and threshold for an armed attack might differ in post-conflict scenarios. For example, the nature of the enemy may produce different perspectives on whether and when certain acts constitute an armed attack in this phase between the end of a conflict and a potential re-emergence of violence, as could the location of the acts, the types of acts, or even the manner in which the conflict ended. Finally, the third section queries how necessity and proportionality, the key criteria for the use of force in self-defense, apply or should apply to this proposed scenario. Understanding the scope and parameters of necessity and proportionality demands an inquiry into the legitimate aims of self-defense, as well as a nuanced look at how necessity and proportionality operate and what these two essential criteria are designed to achieve and safeguard.
