Emory Law Journal

Volume 60Issue 5

The Hacker’s Aegis

Derek E. Bambauer & Oliver Day | 60 Emory L.J. 1051 (2010)

Intellectual property (IP) law stifles critical research on software security vulnerabilities, placing computer users at risk. Researchers who discover flaws often face IP-based legal threats if they reveal findings to anyone other than the software vendor. This Article argues that the interplay between law and vulnerability data challenges existing scholarship on how intellectual property law should regulate information about improvements on protected works, and suggests weakening, not enhancing, IP protections where infringement is difficult to detect, lucrative, and creates significant negative externalities. The Article concludes by describing other areas, such as physical security, where it may be useful to reform how law coordinates IP improvements.

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Beyond Context: Social Facts as Case-Specific Evidence

Gregory Mitchell, Laurens Walker & John Monahan | 60 Emory L.J. 1109 (2010)

Experts often seek to apply social science to the facts of a particular case. Sometimes experts link social science findings to cases using only their expert judgment, and other times experts conduct case-specific research using social science principles and methods to produce case-specific evidence. This Article argues against expert judgment as the means of linking general social science to specific cases, and for the use of methodologically rigorous case-specific research to produce “social facts,” or case-specific evidence derived from social science principles. We explain the many ways that social fact studies can be conducted to yield reliable case-specific opinions, and we dispel the view that litigation poses insurmountable barriers to the conduct of case-specific empirical research. Social fact studies are feasible for both plaintiffs and defendants, and they provide much sounder conclusions about the relevance of social science to a litigated case than does linkage via expert judgment.

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Compulsory [Mis]Joinder: The Untenable Intersection of Sovereign Immunity and Federal Rule of Civil Procedure 19

Ross D. Andre | 60 Emory L.J. 1157 (2010)

Federal Rule of Civil Procedure 19 defines circumstances in which a court can (and must) override the plaintiff’s party structure to ensure that so-called necessary and required parties are before the court, as complete justice requires. Sovereign immunity protects classes of sovereigns and their political arms from accountability in other nations’ court systems. Although seemingly unrelated, conflict between these doctrines is increasingly precipitating incongruous outcomes in federal courts—as evident in a recent Supreme Court decision—eviscerating the goals of compulsory joinder and unreasonably enlarging the ambit of sovereignty’s protections to shield nonsovereign parties. The failure of courts to work solutions to the Rule 19/sovereign immunity conundrum risks recreating the systemic failures of the original version of Rule 19—foregoing the Rule’s intended pragmatism in favor of doctrinal adherence to labels and categorizations.

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Immigration Detention Reform: No Band-Aid Desired

Sarah Gryll | 60 Emory L.J. 1211 (2010)

The United States is a land of immigrants. Yet the United States has adopted laws and policies to prevent mass migrations to this country. Despite these efforts, millions of illegal immigrants currently reside in the United States and more enter every year. An intense public debate about how to treat such immigrants has been at the forefront of the political forum for decades. In recent years, a new vigor for reform has fueled the debate. The Obama Administration vowed to enact comprehensive immigration reform and, in its first year, unveiled a number of reforms meant to address the deteriorating conditions of the immigration detention system. In a political climate ripe for immigration reform, this Comment proposes a more comprehensive approach to immigration detention reform.

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