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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