The Virtual Magistrate (“VMAG”) project was the first pioneer to grapple with notions of a fully virtual private court, but it was unsuccessful in attracting interested disputants or in achieving its goal of serving as a conflict resolution portal for the online community. Will the Michigan Cyber Court end up as just another quirky footnote in the history of online dispute resolution (“ODR”), or can it play a substantive and valuable role in the development of fully virtual courts? The answer to this question depends largely upon whether or not the pilot program can attract enough litigants so that the pilot can collect sufficient data to provide useful insights into the advantages and disadvantages of a fully virtual court.

This article will examine the proposed objectives and procedures for Michigan’s public virtual courtroom project, including a review of the enacting legislation and the new draft rules of Cyber Court practice. By revisiting the failed VMAG project, this article will consider some of the issues that its demise poses for the nascent Michigan Cyber Court. This article will summarize some of the main barriers facing the new Cyber Court that may stymie its efforts to serve as a public laboratory for virtual court technologies. Finally, this article will conclude with recommendations on how Michigan’s pilot program might overcome initial reluctance to use its services and promote party participation in the Cyber Court.

Cite as 4 N.C. J.L. & Tech. 51 (2002) | Download PDF

An estimated 2.3 billion spam electronic messages (emails) are sent daily. An average Internet user is likely to receive approximately 1,500 spam e-mails by 2006. Spam e-mail has increased an incredible 450% in the year between summer 2001 and summer 2002. According to a recent European Union study, the cost to consumers and businesses of unsolicited e-mail is between eight and ten billion dollars annually, and other damages include decreased productivity, time taken to delete unwanted messages, server crashes, and the higher cost of Internet access. Money spent to combat spam is estimated to reach $88 million this year, a cost that is expected to double by 2006.

With the costs of spam rising rapidly, North Carolinians might be heartened to know that the North Carolina General Assembly passed a fairly comprehensive anti-spam statute in 1999 aimed at protecting average e-mail users and Internet service providers (“ISPs”) from spam. Yet, in the two and one half years since the passage of the North Carolina anti-spam statute, no cases have been fully litigated under the Act.

This note will take an in-depth look at the North Carolina anti-spam statute, compare relevant parts of the statute with similar provisions in other state statutes, explore remedies and pitfalls brought to light by case law, and address why the North Carolina law’s substantive strength does not bear on its actual use. The North Carolina anti-spam statute will likely withstand challenges under the First Amendment and the dormant Commerce Clause but will, nonetheless, remain ineffective due to the lack of state enforcement resources, a scarcity in individual lawsuits, the management decisions of ISPs, and spammers’ ingenuity.

Cite as 4 N.C. J.L. & Tech. 93 (2002) | Download PDF

Conflicting standards of claim construction confuse patent practitioners and the patent holders they represent about the scope of the patent’s protection. In particular, claim construction canons establishing the relationship between the claims and the written description in determining the scope of protection are unclear. In a recent case, Teleflex, Inc. v. Ficosa North America Corp., the Federal Circuit articulated a comprehensive standard that resolves this conflict and provides the appropriate amount of protection to a patentee while providing adequate incentive for innovation.

This Recent Development first explores how the standard developed by the court in Teleflex provides a logical framework for claim construction. Second, it describes why the Teleflex approach provides certainty to claim construction and why it will lead to even greater certainty in claim construction over time. Finally, this Recent Development addresses potential criticisms of the Teleflex standard.

Cite as 4 N.C. J.L. & Tech. 121 (2002) | Download PDF

It is becoming increasingly difficult to find a grocery store where consumers can take advantage of special discounts without first handing over a frequent shopper card for scanning. While many may consider this grocery store technology a new form of coupon clipping, few stop to consider the privacy implications. Grocery store technology, like technology in other areas, allows for the consolidation and dissemination of personal information in ways never before possible. As grocery stores install ever more sophisticated methods to track what we buy, what we are willing to pay, and which grocery aisles are our favorites, additional state privacy protections modeled after the California Supermarket Club Card Disclosure Act of 1999 and the Connecticut Consumer Discount Cards law are necessary.

This article investigates privacy implications stemming specifically from the use of discount shopping cards in the supermarket industry. The first part of this article will describe shopper card technology. The second part will investigate consumers’ current rights to privacy, both from disclosure to the government and from sale of personal information to private third parties. The third part will explore the privacy protections offered by the California and Connecticut Acts and the implications of those laws for supermarket shoppers across the country. This article will conclude by discussing whether the California and Connecticut Acts could serve as models for protecting consumers’ privacy in other states.

Cite as 4 N.C. J.L. & Tech. 143 (2002) | Download PDF

Since the peak of the NASDAQ in March of 2000, many technology companies have found either that they cannot raise enough capital to implement their business plans or that they have an untenable business plan. Some have simply shut their doors and gone out of business, while others have filed for bankruptcy. Either way, these companies have left many unsatisfied creditors. For example, Webvan.com was a start-up company in the late 1990’s that raised over $1.2 billion in equity, $375 million of which came from an IPO in November 1999. It had very ambitious business plans to build a series of warehouses and deliver groceries to fulfill customer orders placed over the Internet. Webvan.com, however, faced a number of challenges, including a downturn in the economy, and quickly ran through its capital. Webvan.com filed for Chapter 11 bankruptcy protection in July 1999 and reported that it owed $106 million to creditors. By January 2002, it reported that the value of its liquidated assets totaled only $25 million, leaving its creditors to receive pennies on the dollar and its investors to receive little or nothing for their $1.2 billion investment in the company.

Like Webvan.com, the majority of technology companies have few tangible assets of the type that the Federal Bankruptcy Code (“Code”) was originally designed to handle, as technology companies often have little equipment, inventory, or real property. Many technology companies pride themselves on being virtual companies, not tied down with the brick-and-mortar assets of traditional companies. They do have assets, however. Their assets are predominantly intellectual property and other general intangible assets, including human capital. A technology company’s balance sheet does not show many of these assets, and special care must be taken not only to identify all the assets of a technology company but also to preserve their value in bankruptcy. As one author put it, “The challenge lies not in the quantity of the assets but rather in the difficulty one faces in liquidating these non-traditional assets.” Some of this property is deemed property of the bankruptcy estate as defined by the Code, while some is not. Using fire-sale or straight liquidation procedures under the direction of a bankruptcy trustee, the bankrupt technology company’s assets and their associated value rapidly disappear because their worth is very much dependent on the people within the business and the continued operation of the bankrupt business. Value to creditors can be maximized, however, to the extent that a business can be held together and then sold in discrete units or segments, while also retaining the support and loyalty of the people associated with each unit.

Cite as 4 N.C. J.L. & Tech. 169 (2002) | Download PDF

The Bureau of Justice Statistics reports that in the United States, at the end of 2000, 6.5 million people were either on probation, parole, or in jail or prison. This figure represents 3.5 percent of the population. Of these 6.5 million people, nearly 1.4 million resided in prison. The United States, one of the world’s largest incarcerators, also leads the way in the development of state of the art prisons, known by several names6 but frequently called Supermaxes. One figure puts the number of Supermax prisoners between 25,000 and 100,000. Undoubtedly, these technologically advanced Supermax prisons represent one of the newest approaches to incarceration. However, they also may represent a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment and foretell of an impending constitutional crisis behind prison walls. According to the United States Supreme Court, “[i]t is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Correspondingly, technologically advanced Supermax prisons, and the unique conditions they create, must be subjected to a rigorous Eighth Amendment examination, an examination they will likely fail if courts faithfully apply the current test for Eighth Amendment violations.

Cite as 4 N.C. J.L. & Tech. 191 (2002) | Download PDF