Yale Journal of Law & Technology
Volume 6, 2003-2004
Balancing the Scales: The Ford-Firestone Case, the Internet, and the Future Dispute Resolution Landscape
By Orna Rabinovich-Einy
6 Yale J.L. & Tech. 1
The author discusses the Internet's potential equalizing effect on dispute resolution institutions. The emergence of online dispute resolution (ODR) mechanisms and virtual courts are the clearest manifestation of the Internet's influence on dispute resolution, but its influence extends beyond the immediate online environment, as is demonstrated throughout the Article by analyses of various examples and the specific case study of the Ford-Firestone debacle. The Ford-Firestone story provides a rich case study for the positive potential as well as the pitfalls of resolving disputes in the nascent Internet society, and it is especially useful for dispelling the notion that the Internet will only affect technology-related disputes. The author analyzes dispute resolution institutions (courts and ADR mechanisms) as they currently exist and as they are likely to develop in the future. The Article's prediction and main thesis is that as a result of the introduction of new technologies, traditionally disempowered disputants could potentially experience greater equality in the dispute resolution institutions of the Internet society. The Article concludes with a demonstration of how disputes similar to the Ford-Firestone case study will be played out in the landscape of the future.
What's Really Wrong with Genetic Enhancement: A Second Look at Our Posthuman Future
By Daniel L. Tobey
6 Yale J.L. & Tech. 54
This Article presents the case against genetic enhancement. It begins with a critique of uyama's highly publicized work on enhancement. It then reconstructs the case for regulation, arguing that enhancement will undermine the most basic and universal sources of meaning and well-being in human life. The Article pays special attention to the law and economics scholarship, holding that the economic method will not detect certain types of harm to the human genome. The essay concludes with a policy solution that will preserve the benefits of genetic therapy while avoiding the harms of genetic enhancement.
ThinkPiece - Using WYSH Computer Programs to Model the Alien Tort Claims Act
By Eric Allen Engle
6 Yale J.L. & Tech. 161
This paper argues that an artificial intelligence algorithm can model some of the principles of civil procedure. The binary conditionals used in civil procedure - e.g., personal jurisdiction exists/does not exist - correspond closely to the Boolean logic used by computers. Modeling procedural rules on a computer is thus possible and possibly useful. To illustrate this thesis, this paper applies the WYSH computer programming language to the Alien Tort Claims Act and Torture Victim Protection Act.
Article - Mapping the Information Environment: Legal Aspects of Modularization and Digitization
By Andrea Ottolia & Dan Wielsch
6 Yale J.L. & Tech. 174
The Article highlights the language of the digital and the principle of modularization as the basic concepts which the further development of the information environment will have to pivot around, regardless of how conflicts between freedom and control are temporarily solved. Perceiving both the computer and the Internet as complex systems, the authors look at how modular design of these systems freed the functionality of applications from the physicality of infrastructures, describe the evolutionary gains adhering to modularity, and how to preserve them - elaborating on the issues of access to the cable platform for broadband Internet and to virtual networks for computer technology. Their second focus shows how digitalization of information makes possible the merger of content and its protection. Especially through the use of DRM systems, private actors can create right enforcement mechanisms independent of the State. The legal system therefore faces new and more complex relations between private will and public sovereignty. In such a merged system it is harder to maintain freedom - much like in the fusion of function and infrastructure.
Article - Deconstructing Code
By Jay P. Kesan & Rajiv C. Shah
6 Yale J.L. & Tech. 277
This Article deconstructs code using case studies and shows that code is not neutral and apolitical but instead embodies the values and motivations of the institutions and actors building it. The term "code," as we use it, consists of the hardware and software components of information technologies. Code is increasingly being sought as a regulatory mechanism in conjunction with or as an alternative to law for addressing societal concerns such as crime, privacy, intellectual property protection, and the revitalization of democratic discourse. Our analysis examines how societal institutions, such as universities, firms, consortia, and the open source movement, differentially influence the production of code. Relying on four case studies, we analyze how institutions differ in structure and motivation, and how they are affected by different social, political, economic, and legal influences. We then analyze how these societal institutions, which all approach code creation differently, influence the technical and social characteristics of the code that is developed by them. For example, code developed by a university is likely to contain different values and biases, regarding societal concerns such as privacy, than code developed by a firm. This analysis provides a crucial first step in understanding how society shapes these new technologies. Ultimately, this work may assist policymakers in proactively shaping the development of code to address societal concerns.
Article - The Great Spectrum Debate: A Commentary on the FCC Spectrum Policy Task Force's Report on Spectrum Rights and Responsibilities
By John S. Leibovitz
6 Yale J.L. & Tech. 390
Under the Chairmanship of Michael Powell, the FCC has begun to reexamine the basic structure of federal radio regulation that has persisted since the early part of the twentieth century. In 2002, Powell formed the Spectrum Policy Task Force (SPTF) to conduct a systematic review of existing policy and potential alternative approaches. The SPTF engaged a raging academic debate about the basic theoretical models available to the FCC as it thinks about spectrum management. It identified and evaluated three regulatory approaches that have gained currency among scholars and policy leaders: command-and-control, exclusive rights, and open spectrum. This essay examines the SPTF's formulation of the "Great Spectrum Debate." Part I examines the SPTF's conceptual framework in light of its larger historical and intellectual context. Part II evaluates the normative implications of this framework and identifies some limitations. Ultimately, the essay concludes that although the SPTF's framework is a useful tool for making sense of radically different approaches to spectrum management, theoretical deficiencies prevent it from reaching its full potential.