Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties—and limitations—that govern social media snooping. Even further, the peculiar challenges created by social media amplify ambiguities in the existing framework of ethics rules and highlight the need for additional guidance for the bench and bar.
This article offers an in-depth analysis of the soundness and shortcomings of the existing legal ethics framework, including the 2013 revisions to the American Bar Association’s model rules, when dealing with novel issues surrounding informal social media discovery. It analyzes three predominant ethics issues that arise: (1) the duty to investigate facts on social media, (2) the no-contact rule and prohibitions against deception, and (3) the duty to preserve social media evidence. While the first two issues can be adequately addressed under the existing framework, the rules fall short in dealing with the third issue, preservation duties. Further, even though the existing ethics rules can suffice for the most part, non-binding, supplemental guidelines, or “best practices,” should be created to help practitioners and judges navigate the ethical issues created by new technology like social media.
Carrie A. Laliberte
This Comment examines the relationship between the National Oceanic and Atmospheric Administration’s (NOAA) newly proposed shark finning rule and existing state shark finning legislation. Specifically, the analysis concludes that the NOAA rule should not be adopted as proposed because it would effectively weaken existing state laws, which are essential to protect the environment as well as sharks. In the alternative, this Comment maintains that cooperative federalism should be employed, as it has been for environmental laws in the past, to allow for a coexistence of federal and state law.
Matthew L.M. Fletcher
Two theories of tribal government authority under federal Indian law—territory-based authority and consent-based authority—are at war. No theory is acceptable to either tribal governance advocates or their opponents. The war plays out most dramatically in conflicts over tribal authority over nonmembers.
The Supreme Court’s own precedents on whether tribes may exercise civil jurisdiction over nonmembers on tribal lands are in deep conflict. Ironically, while the Court has expressed serious concerns about the ability of tribes to guarantee fundamental fairness to nonmembers in general, the Court’s common law procedure for analyzing tribal jurisdiction makes irrelevant any evidence regarding the success or failure of tribal procedural guarantees.
I propose a two-part common law test that first acknowledges a presumption in favor of tribal jurisdiction on tribal lands, where tribal authority is at its apex. The presumption, however, may be rebutted in federal or state court by nonmembers challenging jurisdiction, allowing the parties to litigate whether the tribe has actually protected nonmember rights to fundamental fairness. This proposal unifies the territorial and consensual theories, and brings much needed realism to tribal jurisdictional questions.
This article helps lay the foundation for a new field of international law—International Law and Technology—and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can trigger a barrage of international legal responses, ranging from trade bans and WTO disputes to international regulatory regimes and barriers to patenting. Agricultural biotechnology triggered all of these legal flashpoints, while the cellphone, a technology that grew up alongside it, triggered none. Why?
Understanding when a new technology will provoke an international legal firestorm is important to policymakers, business leaders, and lawyers. International controls on a new technology constrain state sovereignty and may impede or catalyze the development of an emerging technology. Technologies likely to generate international controversy bode poorly for regulatory harmonization regimes as contemplated by the new transatlantic trade talks. At a minimum, they require sensitive handling.
This article offers a framework of core geopolitical factors that can help predict the international acceptability of an emerging technology and its likelihood of triggering a plethora of international legal issues. The framework can help decision-makers avoid global technology conflicts and better manage these conflicts once they arise. The first factor is whether the technology is “a big- or a small-tent technology” from a global perspective, as reflected (1) in the innovative space, (2) in the marketplace, and (3) in the sphere of benefit sharing. To illustrate the analysis, the article presents original empirical patent data for the cellphone and agricultural biotechnology over three decades. This comparison highlights the importance of global innovative activity to international technology comity.
Reid Peyton Chambers
I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me over the past two decades for coming to listen to me once again, particularly in this context where I get to talk uninterrupted for an hour and they can only speak during the question period.
Lastly, I want to thank Judge Canby for several things. First, for your continuing scholarship in Indian law during your busy and long tenure on the Ninth Circuit. Your American Indian Law in a Nutshell volume is something most teachers of seminars in Federal Indian Law recommend to their students, as I do at Georgetown. You have also written an excellent article setting forth errors the Supreme Court has made in Indian law decisions, stretching back into the nineteenth century. I want to add two decisions you did not mention, cases in which the Court reversed decisions you wrote. In both cases, I believe you got it right and the Supreme Court got it wrong.
This article explores the evolution of the federal government’s civil asset forfeiture practices from the war on drugs in the 1980s and 1990s to the currently escalating war on intellectual property piracy. I argue that recent developments in the war on piracy provide strong proof that legislative reform of the federal civil forfeiture system in 2000, which was intended to make the system fairer to property owners and less prone to abuse by law enforcement agents, did not substantially succeed in achieving either goal. The constitutional problems that remain in the federal civil forfeiture system are most acute with respect to the ex parte seizure of property alleged to facilitate crime—so-called facilitation property. Within that category, Internet domain names allegedly tainted by copyright crime present unique problems. “Property” is the pigeon hole into which domain names have been stuffed, but they are different from physical property in ways for which civil forfeiture law should account. Under a straightforward application of existing Supreme Court precedents, their ex parte seizure by federal agents fighting online copyright crime offends both due process and the First Amendment. To achieve deterrent effects that are transitory at best in the online environment, the ex parte seizure and civil forfeiture of Internet domain names exacts disproportionately high constitutional costs and undermines the legitimacy and accountability of law enforcement.
On September 29, 2013, over ten million people viewed the series finale of AMC’s Emmy Award winning hit, Breaking Bad.1 The series followed Walter White, a high school chemistry teacher in New Mexico, and his family.2 When Walter is diagnosed with stage III lung cancer and is given less than two years to live, his desire to provide for his family after his death drives him to use his chemistry background to produce methamphetamine. By the end of the series he and his partner, Jesse Pinkman, are the largest methamphetamine producers in the southwestern United States. In the series finale, both the cancer and the police are closing in on Walter, and he is struggling to find a way to leave his methamphetamine fortune to his family without having it confiscated. Left with no other option, he forces his old college friends and former colleagues Gretchen and Elliot Schwartz, who own a very lucrative corporation known for its philanthropy, to create a fund for his family using his drug money. As the series finale comes to an end, all loose ends in the story are neatly tied up except for one. Assuming that Walter laundered the money properly, a record breaking 10.3 million viewers were left guessing whether Walter’s family would receive his fortune tax free.
The alphabet soup of federal and state statutes and rules regulating the purchase and sale of property can quickly become overwhelming. Nevertheless, parties to commercial and residential real estate transactions ignore such laws at their own peril: failure to comply with these regulations, whether intentional or not, can impose serious costs on ...
Christopher D. Thomas
Few statutes bedevil experienced litigators as often as the federal Superfund act, the Comprehensive Environment Response, Compensation, and Liability Act (“CERCLA”). Although CERCLA practice is now into its third decade, the statute’s chronic drafting flaws and the absence of definitive judicial resolution of numerous fundamental issues continue to create uncertainty. This ...
Patrick J. Paul & Christopher P. Colyer
As activity on the real estate transactional front continues to gain momentum, real estate practitioners need to increasingly be aware of due diligence requirements necessary to minimize or avoid liability under federal law—namely, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”). Performing the required ...