We stand at the threshold of a major change in legal education. Recognizing the extent to which law students and lawyers alike rely on the Internet in both their professional and personal lives, the American Bar Association (“ABA”) has approved new standards for the J.D. curriculum which will greatly expand the opportunities for law students and lawyers to use the Internet to learn at a distance. Under these standards, students can earn up to twelve law school credits through asynchronous courses, by taking up to four credits a semester, after they have completed 28 credits (roughly the first year of law school). To date, few law schools have taken the plunge into distance education, although a handful have gotten wet toes. As the Director of the Health Law and Policy Program at Pace University Law School, I had the chance to swim in the deep end.

Through my experience in developing Pace’s innovative distance education program, I have learned some critical lessons about the potential and perils of providing legal education via the Internet. In the belief that my experiences are generic, not dependent on a particular law school’s context, I offer these observations to assist others who seek to launch distance education initiatives in the not-for-profit sector. The following is an account of my life as an educational entrepreneur.

Cite as 6 N.C. J.L. & Tech. 41 (2004) | Download PDF

Many believe that cyberspace was born out of a world of no regulation. And many believe that the future of dispute resolution lies in the absence of the state. The general view of online dispute resolution (“ODR”) follows from these beliefs: it is a new and promising form of dispute resolution, and it takes place in cyberspace; consequently it should be left to self-regulation. It is this view that I want to challenge.

My article moves in two parts, the first descriptive, the second prescriptive. Part I provides that confidence is hardly present in the absence of control. I begin with an examination of the confidence problem ODR faces. I then propose a solution to that problem: control. The lack of control induces a lack of confidence in ODR. Control of ODR needs to be established. This entails setting in place an architecture of control of ODR in order to increase confidence. Only then will it be utilized on a large scale. Part II maintains that this control should be in the hands of the government. People will trust ODR only if the government controls it. My claim does not follow the ethical argument that only the government provides a real guarantee of certain fundamental values or that government intervention would make ODR fairer. Although I believe such an argument is true, I rather take a realist approach and argue that government intervention simply would be the best way to increase confidence in ODR. Part III finally illustrates how the government could construct an architecture of control for ODR. This shows, incidentally, from a structural perspective, how the government could regulate ODR. Before these issues are addressed, it is helpful to reflect on what ODR actually consists of: a dispute resolution process that operates mainly online. This encompasses both online versions of alternative dispute resolution (“ADR”) and cybercourts, the former being dominant. In other words, ODR relates to negotiation, mediation, arbitration, and court proceedings, whose proceedings are conducted online. Disputes submitted to ODR are mainly, but not exclusively, e-commerce business-to-consumer (“B2C”) disputes.

Cite as 6 N.C. J.L. & Tech. 71 (2004) | Download PDF

The Sinfonia is part of a new breed of virtual orchestra instruments designed to faithfully recreate the sound of a traditional full-size orchestra from a single computerized console. Thus far, the technology has been used in over thirty productions across the country, including the national tours of Annie and Miss Saigon, as well as the Cirque du Soleil. Unlike a traditional orchestra, however, which is composed of numerous musicians playing traditional acoustic instruments, the Sinfonia is operated by a single keyboardist who is responsible for playing standard keyboard parts and manipulating pre-recorded orchestral samples in real-time.

Since the Sinfonia’s introduction several years ago, the American Federation of Musicians (“AFM”) has fought vigorously to prevent this technology from being used in musical theatre productions. Union members view the Sinfonia as a threat to professional musicians’ jobs and an illegitimate form of live performance art. At the same time, producers and composers have embraced the unique creative and financial opportunities presented by the instrument.

This Recent Development examines the National Labor Relations Board’s decision in the Realtime charge and argues that the General Counsel erred when he upheld the Regional Director’s decision to sustain the contract between Local 802 and OCB as negotiated.

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In its decision in Ashcroft v. ACLU, the Supreme Court held that the Attorney General had not convincingly rebutted the contention of plaintiff Internet content providers that filtering software was less restrictive and just as effective as the legislation Mr. Ashcroft sought to defend. The Supreme Court was correct to uphold the preliminary injunction against the Child Online Protection Act5 (“COPA”), but the Court, by reading the legal issue narrowly, left the American public with the lesser of two evils instead of a genuine solution. While the holding is correct in a strictly legal sense, the decision does very little to protect either children or the First Amendment.

This Recent Development traces Congress’ reaction to Internet pornography, using Ashcroft v. ACLU as a case study to illustrate the pattern Congress traditionally follows: tailoring subsequent legislation to the specifications of Supreme Court decisions. This Recent Development argues that following Congress’ pattern in this case will only lead to further litigation because filters, the solution proposed in Ashcroft, along with any national solution, will have a negative impact on free speech rights. This Recent Development concludes that in order to protect both children and the First Amendment, the Internet pornography industry must be treated as just that: an international industry. By urging the Internet pornography industry to accept “best practice guidelines,” the United States government will be protecting children and the guarantees of the First Amendment.

Cite as 6 N.C. J.L. & Tech. 139 (2004) | Download PDF

When drafting a patent application, inventors or their legal representatives must carefully choose the language and terms employed in the claims section. A particular problem arises in a granted patent when a term with multiple definitions creates ambiguity in the interpretation of the claims and the scope of protection provided therein. How should courts determine which definition controls? Which authorities should be consulted, and if multiple authorities are consulted, how much weight should each carry respectively? These are some of the questions that the Federal Circuit seeks to address in its en banc rehearing of Phillips v. AWH Corp.

The outcome of Phillips will significantly affect both the drafting of future patent applications and the interpretation of all patents, including those granted prior to this case. This Recent Development reviews the basic tenets of claim construction and considers whether the Federal Circuit should continue to favor, as it has increasingly been inclined to do, a formalistic method of interpretation that focuses on how dictionaries define terms in the claim. After considering the impact an adoption of such formalism may have on patent drafting and fair competition, this Recent Development argues that the Federal Circuit should retreat from this position upon rehearing Phillips.

Cite as 6 N.C. J.L. & Tech. 153 (2004) | Download PDF

If Scott Peterson had been stuck in traffic on a congested highway in Los Angeles, driven to a local bank, or taken a transcontinental road trip to West Orange, New Jersey, police in Modesto, California would have known. Indeed, the police department’s surveillance was precise, perpetual, and nearly invisible. It was also electronic. Shortly after Peterson’s wife, Laci, disappeared in December 2002, police in Modesto, California secretly placed Global Positioning System (“GPS”) tracking units on four of his vehicles. Peterson, who has since been convicted of killing his wife, did not know his every move was being recorded by an electronic device and his actions were providing evidence of his guilt. Specifically, Peterson repeatedly visited a marina on the San Francisco Bay, in what prosecutors alleged was an effort to make sure that his wife’s body had not surfaced. While we cannot be sure whether Peterson would have been convicted if not for the GPS evidence, one thing is certain: Law enforcement officers are constantly employing new, more effective means of tracking their suspects, and the rapid technological developments that characterize American society fuel their efforts.

This Comment examines the means by which law enforcement officials can use an individual’s technology against him, focusing on how the government can track people who use certain commercially available products and the laws meant to regulate such conduct. Part II highlights various products that the government can and has used to track people. Part III examines the judiciary’s efforts to regulate such conduct and details how the laws we currently depend on to safeguard us from government surveillance actually provide little or no protection. Part IV proposes ways in which the courts might counter this electronic invasion of privacy.

Cite as 6 N.C. J.L. & Tech. 165 (2004) | Download PDF

The current structure of the Copyright Act has failed to create a fair market system that is an effective vehicle for ensuring the progress of the arts. Federal District Courts have adopted inconsistent approaches to sampling law, precluding a legal consensus on business practices in a national music industry. Digital sound editing and compositional technology is developing at an unprecedented rate. Meanwhile, sample-based music and the marketing associated with it continue to carve out an increasingly significant niche in the national economy.

The time is right for Congress to revisit the Copyright Act. This Comment examines the current situation in sampling law from constitutional, judicial, and economic perspectives. It argues that Congress should take the opportunity provided by the nexus of legal dissonance and public salience to modify the Copyright Act in a way that accommodates transformative, sample-based, musical productions. In the interest of progress, this action must facilitate the broadest use of recordings in order to further creative expression. It must also continue to protect the financial interests of artists in their works. This Comment proposes that the most effective way to ensure a proper balance of these issues is to modify the mechanical licensing provision of the Copyright Act19 and include a compulsory licensing system for the use of samples in transformative works.

Cite as 6 N.C. J.L. & Tech. 187 (2004) | Download PDF