Volume 2011 — Issue 2

More than thirty years ago, the Supreme Court adopted a two-part constitutional framework for defamation claims. Although public figures and officials are required to demonstrate actual malice, private figures are not. In the years since, the media has evolved tremendously. Monopoly information sources such as newspapers and television stations have shrunk, and smaller, independent Internet sites have flourished. Moreover, the rapid growth of the Internet has blurred the distinction between public and private figures.

These technological changes have rendered the public/private distinction unworkable and unfair. This Article proposes that courts require a demonstration of actual malice for all defamation claims, eliminating the public/private dichotomy. A requirement of actual malice in all cases still provides sufficient safeguards for the plaintiff in the types of cases that defamation law has long been intended to address.

The increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.

The question of whether damages or an injunction should remedy patent infringement is a highly controversial issue that has been discussed at length in the academic literature. Traditionally, injunctions have been the presumptive remedy for infringement, but this presumption increases holdouts and inefficiency. However, scholars fear that granting damages instead of an injunction will reduce incentives for innovation. In eBay v. MercExchange, the Supreme Court attempted to solve the problem by giving lower courts permission to grant damages instead of an injunction based on equitable principles. However, five years after eBay, lower courts overwhelmingly continue to grant injunctions, in part because they lack a framework under which to decide when damages would be appropriate.

I propose using nuisance law from real property to create a framework where judges balance the harm to the patentee and the utility of the infringer's invention to decide whether to award damages or an injunction. A nuisance model for patent law would fit with the Supreme Court's mandate but would also provide more concrete guidance for lower courts. The article sets out a theoretical model for nuisance in patent law and then describes how the model might be applied in practice by discussing how harm and utility should be defined. Additionally, I show that a nuisance system in patent law is feasible by demonstrating how the life sciences industry has, in some circumstances, used a nuisance-type calculus to inform their decisions about whether to license or seek an injunction on a patent.

The relative anonymity of individual subscribers forces copyright owners to increasingly seek to hold Internet Service Providers ("ISP") liable for the misconduct of their subscribers. ISP vicarious liability, however, also has limitations and disadvantages. There is no consensus about the scope of such liability, and ISPs are not in a good position to deter copyright infringement effectively in all contexts. Additionally, because ISP vicarious liability increases the price of Internet access, it may have an inevitable tradeoff between preventing copyright infringement and the market distortions it causes. Potential vicarious liability may drive out law-abiding subscribers as well as copyright infringers. In this situation, regulation of copyright infringement may be an appealing alternative. The purpose of the article is to provide academics and policymakers with a consistent framework for evaluating the relative desirability of ISP liability and regulation of copyright infringement. By taking China as an example, I discuss the four determinants of the framework in detail.