http://stlr.stanford.edu/ en Copyright 2009 Sat, 14 Nov 2009 07:00:00 -0800 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases. I tried to balance jurors’ likely positive response to the perceived characteristics of this evidence—vivid, objective, quantifiable, advanced—with their likely negative response to the use of this evidence in such cases (reflecting their prejudice, hostility, and hatred toward insanity pleaders)—and concluded that I was “not at all sure that the pizzazz of neuroimaging testimony—not withstanding its colorfulness and its propensity to reductionism—will trump these deep-seated attitudes.” In short, I sought to make the point that the science of neuroscience has to be assessed in the sociopolitical context of the specific question of law that is central to the specific case before the court. Again, as I stressed in my earlier article, the reality is that neuroimaging is fraught with uncertainties, that the steps used in the production and presentation of neuroimaging evidence are “[n]ot only . . . not standardized, they are easily manipulated by a person with knowledge of the technology.” Some researchers characterize neuroimaging evidence as “indistinct.” Amanda Pustilnik, by way of example, concludes that “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality. http://stlr.stanford.edu/2009/11/and_i_see_through_your_brain_a.html http://stlr.stanford.edu/2009/11/and_i_see_through_your_brain_a.html 2009 Symposium Sat, 14 Nov 2009 07:00:00 -0800 It is not alarmist to say that the Internet is the first truly panoptic system of the mind. Dumbfoundingly dense databanks can—and do—gorge themselves on one’s every move across a webpage. Web tools monitor every specific article a visitor reads, how she was referred to that article, and how long she spent reading it. These tools allow website owners to compile a comprehensive set of statistics about visitors to their websites, including how often they visit, their domains and countries of origin, what pages they view the most, and the operating system and web browser they use to access the website. This surveillance is omnipresent, all-knowing, and perfectly concealed. Some sites go even further and require completion of a registration process that involves relinquishing a zip code, email address, and full name. Compared to the non-wired world, the increase in monitoring capability in these circumstances is exponential. The extent of this information gathering is not only annoying, but also increasingly relevant as more and more government data mining programs, some of which rely on information gathered by private companies, are revealed to the public. http://stlr.stanford.edu/2009/04/note_the_mind_gangsters_why_we.html http://stlr.stanford.edu/2009/04/note_the_mind_gangsters_why_we.html Student Notes Thu, 09 Apr 2009 09:29:07 -0800 In exchange for granting inventors a limited monopoly, the patent laws require inventors to “enable” the public to make and use their invention. In Liebel-Flarsheim Co. v. Medrad, Inc., Automotive Technologies International, Inc. v. BMW of North America, Inc., and Sitrick v. Dreamworks, L.L.C., the Federal Circuit made it far easier to show that patents are invalid based on lack of enablement in the predictable arts. These decisions rely on the enablement doctrine to invalidate claims that appear to be far broader in scope than what the written description of the patents suggests. http://stlr.stanford.edu/2009/03/rethinking_enablement_in_the_p.html http://stlr.stanford.edu/2009/03/rethinking_enablement_in_the_p.html Feature Articles Mon, 23 Mar 2009 06:20:12 -0800 INTRODUCTION Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of the human will. Jean-Dominique Bauby authored the memoir after suffering from a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, he blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that she had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides the gripping detail of what it means to have full mental capacity and lack freedom of action to express one’s thoughts, desires, emotions, and expressions of humanity. That he could share his story is at once extraordinary and tragic that anyone should suffer the fate of such obstacles to effectuating his will. http://stlr.stanford.edu/2009/02/the_interface_between_freedom.html http://stlr.stanford.edu/2009/02/the_interface_between_freedom.html 2009 Symposium Tue, 24 Feb 2009 09:12:42 -0800 Teneille Brown and Emily Murphy, the Symposium's first speakers, will be presenting their arguments against using neuroscientific evidence in courts. Panelists Michael Saks and David Faigman will be commenting. See below to read the abstract. -- In this paper we will demonstrate that functional brain images should not be admitted into courts to prove criminal mental states. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when introduced to prove a defendant’s past mental state, and almost certainly more prejudicial than probative on balance. Functional images are also neither generally accepted nor scientifically valid for this purpose. So, given that functional brain images do not meet any of the relevant evidentiary standards, why would they be admitted at all during the guilt phase to prove mental states? Possible answers to this question range from the ordinary human error and legal bias, to improper authentication of the images and commercial scientists pushing their wares. Put simply, the adversarial process may not always work properly to keep the junk out. In Section I of this article, we laid out the terrain of how exactly functional brain imaging is being used in courts to negate mens rea and what this means for the criminal law. In Section II, we will look closely at the science behind functional neuroimaging, specifically functional magnetic resonance imaging (fMRI). In so doing we will critically examine the complex and unobvious steps required to produce the colorful brain images. In Section III we will apply the rules of evidence to the scientific findings from Section II, and will reveal why any marginal probative value may be substantially outweighed by the potentially prejudicial effects of brain images, even if other admissibility hurdles are cleared. In the event that the technology advances such that its prejudicial value can be sufficiently mitigated, in Section IV we will suggest some guidelines for properly assessing its evidentiary value. http://stlr.stanford.edu/2009/02/through_a_scanner_darkly_using.html http://stlr.stanford.edu/2009/02/through_a_scanner_darkly_using.html 2009 Symposium Wed, 18 Feb 2009 22:49:26 -0800 On October 30, 2008, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) issued a decision that has potentially significant implications for innovation in many fields, but particularly in the online commerce and the software industry. Indeed, with the issuance of In re Bilski, the Federal Circuit has substantially changed its position regarding the criteria for the patentability of a claim to a process and, thus, has reconsidered its own precedent, State Street Bank & Trust Co. v. Signature Financial Group, Inc. http://stlr.stanford.edu/2009/02/is_in_re_bilski_a_deja_vu.html http://stlr.stanford.edu/2009/02/is_in_re_bilski_a_deja_vu.html Perspectives Mon, 16 Feb 2009 21:06:02 -0800 I. THE ROLE OF INTENTION IN ASSESSING RESPONSIBILITY IN LAW AND MORALS The concept of an intention lies at the heart of the attribution of both moral responsibility and legal liability in the law of torts and of crimes. It does so in two ways. The first is as a marker (arguably the marker) of serious culpability in the doing of wrongful actions. As both the law of crimes and of torts recognize, doing some wrongful action because one intended to do it merits greater blame and more severe sanctions than does doing that same wrongful action recklessly or negligently. This implication of intention for responsibility is learned early on by children, who frame serious accusations of others in terms of their doing things “on purpose.” As Justice Holmes famously put it, “even a dog knows the difference between being stumbled over and being kicked.” Criminal law shares with dogs and children this emphasis on intention as essential to serious blame. As the U.S. Supreme Court once put it, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is…universal and persistent in mature systems of law…[and] is almost as instinctive as the child’s familiar exculpatory, ‘But I didn’t mean to’…” The second way in which intention figures into attributions of responsibility has to do with wrongdoing rather than culpability. To do wrong is to act in a way that morality or the law prohibit, and intentions are at the root of action and agency. The very possibility of persons doing actions depends on persons having intentions. The old way of putting this was to say that “every action must be intentional under some description of it.” A more modern rendition is to say that every action begins with an intention, in the sense that intentions must be the immediate cause of those bodily movements through which persons act, for those movements to be actions at all. http://stlr.stanford.edu/2009/02/intention_responsibility_and_t.html http://stlr.stanford.edu/2009/02/intention_responsibility_and_t.html 2009 Symposium Mon, 02 Feb 2009 09:07:19 -0800 Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of the Copyright Clause’s limits as free speech limits, giving them the force of an individual right. http://stlr.stanford.edu/2009/01/a_free_speech_theory_of_copyri.html http://stlr.stanford.edu/2009/01/a_free_speech_theory_of_copyri.html Feature Articles Mon, 05 Jan 2009 07:07:56 -0800 Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented. The cause of these problems, however, is less clear. I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray. http://stlr.stanford.edu/2009/01/historic_perspectives_on_law_a.html http://stlr.stanford.edu/2009/01/historic_perspectives_on_law_a.html Feature Articles Fri, 02 Jan 2009 10:11:05 -0800 Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates the prototypical “marketplace of ideas” than do warring politicos duking it out on the op-ed pages or, for that matter, in opposing briefs. However, the very features that make the internet fertile ground for cultural and political discourse—anonymity and pseudonymity; intellectual symbiosis and parasitism; fractal sprawl, audience dispersal and many-to-many architecture—render it a treacherous landscape for its custodians. In recognition of that fact, Congress in 1996 passed the Communications Decency Act, which nearly eliminated the liability that website administrators face for third-party generated content. http://stlr.stanford.edu/2008/12/a_regulatory_proposal_for_digi.html http://stlr.stanford.edu/2008/12/a_regulatory_proposal_for_digi.html Student Notes Tue, 09 Dec 2008 22:18:13 -0800 In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs. Armed with information about the time-varying cost of electricity residential and commercial customers are expected to reduce energy usage and/or shift their usage to non-peak, less costly, hours. Such shifts, even absent reductions in overall consumption, will reduce the likelihood of energy brown and black outs and provide direct savings to consumers. Technologies to enable the demand response system, including advanced metering research and development [OpenAMI] and sensor and control technologies development [DRETD], are under development. These technologies will be coupled with a communication and network infrastructure that supports the multicast of real-time pricing information, and the aggregation of energy usage and billing information. http://stlr.stanford.edu/2008/02/taking_the_long_view_on_the_fo.html http://stlr.stanford.edu/2008/02/taking_the_long_view_on_the_fo.html 2007 Symposium Symposium Articles Sat, 02 Feb 2008 00:22:09 -0800 The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to modern privacy concerns by extending Constitutional protection to situations that satisfy the reasonable expectation of privacy test. While imperfect, the evolved Search clause has kept the protections of the Fourth Amendment relevant in an age of digital evidence, ubiquitous communication networks, and increasingly sophisticated and invasive surveillance capabilities. http://stlr.stanford.edu/2008/01/the_olmsteadian_seizure_clause.html http://stlr.stanford.edu/2008/01/the_olmsteadian_seizure_clause.html 2007 Symposium Symposium Articles Mon, 28 Jan 2008 17:42:00 -0800 The ACLU of Northern California has been a leader in generating public and legislative attention to the privacy, personal safety, and financial security risks associated with the use of Radio Frequency Identification (RFID) technology in government-issued identification documents, such as drivers' licenses and student ID cards. http://stlr.stanford.edu/2008/01/rfid_technology.html http://stlr.stanford.edu/2008/01/rfid_technology.html 2007 Symposium Symposium Articles Working Papers Fri, 25 Jan 2008 17:45:07 -0800 Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in the context of modern communications. Significantly, courts have required that communications media be virtually invulnerable before affording them Fourth Amendment protection. http://stlr.stanford.edu/2007/06/a_first_principles_approach_to.html http://stlr.stanford.edu/2007/06/a_first_principles_approach_to.html 2007 Symposium Symposium Articles Mon, 18 Jun 2007 22:06:00 -0800 Pharmaceutical sales constitute a $600-billion-per-year global industry. Less well-known is that more than half of the drugs listed in the U.S. Pharmacopoeia contain a class of compounds known as chiral molecules as the active pharmaceutical ingredient. Chiral molecules have special chemical and pharmacological properties that raise questions as to their patentability. When chiral molecules are synthesized in the laboratory, two distinct mirror-image molecules are formed called “enantiomers.” Although each enantiomer may have different levels of therapeutic activity and toxicity, technical challenges to separating the enantiomers caused most early chiral drugs to be sold as mixtures of the two molecules, or racemic mixtures. http://stlr.stanford.edu/2007/02/the_patentability_of_enantiome.html http://stlr.stanford.edu/2007/02/the_patentability_of_enantiome.html Feature Articles Tue, 27 Feb 2007 03:19:43 -0800