Volume 14, Issue 2 (Spring 2013)

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    The Admission of Scientific Evidence in a Post-Crawford World
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Nielson, Eric
    The goal of this Note is to evaluate the requirements for admitting scientific evidence in criminal cases. Part I discusses Confrontation Clause case law since Ohio v. Roberts, ex-amines the standards for the admission of scientific evidence, and considers the weaknesses of cross-examination and eye-witness testimony. Part II discusses actions that can be taken to improve the quality of scientific information available to defense attorneys, prosecutors, the courts, and the public. This Note concludes that holding scientific evidence to the Daubert v. Merrel Dow Pharmacueticals, Inc. standard, coupled with public disclosure, facilitates the just and effective operation of our criminal justice system.
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    Two More Problems and Too Little Money: Can Congress Truly Reform Forensic Science?
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Maloney, Eric
    The goal of this Note is to analyze how the Forensic Science Reform Act would have improved forensic science nationwide, and whether a top-down approach from Congress can appropriately deal with essentially localized situations. Part I examines the current state of federal regulation on this issue, the 2009 report by the National Academy of Sciences "Strengthening Forensic Science in the United States: A Path Forward", new legislation, and the reasons why misconduct has occurred and continues to occur in forensic laboratories. Part II then takes a critical look at the Act and examines where it may succeed in leading to true reform and where it does not, then lays out other regulatory reforms that may be better suited to ensuring that we can have confidence in the findings of our forensic laboratories. In the end, this Note concludes that the Act does make several important improvements over our current regulatory system, but there is still a long way to go before our forensic science system truly meets traditional scientific standards and ensures confidence in the results obtained by forensic professionals.
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    EME Homer City Generation, L.P. v. EPA: The Search for Meaningful Regulation of Interstate Pollution Under the Clean Air Act
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Dooley, Bryan
    EME Homer City Generation, L.P. v. EPA illustrates the difficulty the EPA faces as it attempts to formulate effective and efficient regulation of cross-border environmental harm within the boundaries created by the Clean Air Act. The decision imposes new limitations on the EPA’s ability to enact and enforce regional solutions to what is a fundamentally regional problem. Meanwhile, downwind states continue to bear the public health and regulatory burdens resulting from upwind contributions to poor air quality. This Comment analyzes the implications of EME Homer City Generation for future attempts at meaningful regulation of interstate air pollution. Part I briefly examines the historical failures of federal regulation to adequately address the problem and recent attempts to regulate under the Act. Part II discusses the Cross-State Air Pollution Rule, the EME Homer City Generation decision, and prospects for future regulation in detail. This Comment concludes that the EPA should appeal the decision to the Supreme Court and it should be overturned. If the decision is allowed to stand, amendment of the Clean Air Act is necessary to allow regulation of interstate air pollution that is effective and not unnecessarily burdensome.
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    The Preemptive Power of Federal Patent Law: A Framework for Analyzing State Antitrust Challenges to Pay-for-Delay Settlements
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Marsili, Caroline
    Since the passage of the Hatch-Waxman Act (the Act) in 1984, patent litigation in the pharmaceutical industry has generated a troubling breed of settlement agreements wherein the payment goes from patentee plaintiffs to allegedly infringing defendants, resulting in anticompetitive effects. The provisions of the Act, though intended to promote innovation and lower drug prices while expediting infringement litigation, tend to incentivize reverse payments, or pay-for-delay settlements. The settlements are often challenged by the Federal Trade Commission (FTC) and by private parties for violation of antitrust law. Thus, pay-for-delay settlements illustrate a tension between patent law and antitrust law. Since the adoption of the Act, courts have struggled to harmonize the two bodies of law with regard to pay-for-delay settlements, as evidenced by the widely divergent rulings on the legality of these settlements among regional circuit courts. In December 2012, the Supreme Court granted a writ of certiorari to review Federal Trade Commission v. Watson Pharmaceuticals, Inc., an Eleventh Circuit case favoring the pharmaceutical companies, and should enunciate the proper legal standard to apply to pay-for-delay settlements.
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    Scientific and Legal Developments in Fire and Arson Investigation Expertise in Texas v. Willingham
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Dioso-Villa, Rachel
    The forensic sciences, as a form of professional knowledge, are changing with new advancements in technology and continuing research and development. With the National Academy of Science’s recent call for more research and testing of the forensic sciences, the criminal justice system is faced with the challenges of handling cases where convictions are based on outdated or discredited evidence. In light of technological advancements in the field, this article examines the evolution of fire- and arson-investigation knowledge over the course of a highly publicized capital murder case. The history of arson investigation is discussed, as is the legal admissibility of such expert testimony. Arson investigation expertise stems from non-scientific or experience-based origins, yet is conveyed in court as scientific fact. The article identifies the dangers of admitting such testimony into court without scrutiny. The lack of scientific validation of investigative methods, overreaching scientific claims based on case facts and witness statements, and fire investigators’ susceptibility to contextual bias are discussed. The article raises questions as to whether and how the legal system has propagated the misuse of arson investigation testimony and how outdated understandings of evidence may impact the identification of future miscarriages of justice.
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    Standardized Terms and Conditions For Open Patenting
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Maggiolino, Mariateresa; Montagnani, Maria Lillà
    After providing a legal characterization of the open patenting phenomenon and discussing many of the empirical and theoretical experiences that relate to both Open Innovation and defensive patenting, this paper suggests standardized terms and conditions that a patent license should contain in order to foster both the free movement of patented knowledge and its business applications.
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    Can an Inference of Intent to Induce Infringement of a Patent be Drawn Where Other Reasonable Inferences Exist? An Examination of the Use of Circumstantial Evidence to Prove Inducement of Infringement
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Gross, Roy
    This Article examines the type of evidence that can be used to prove if an alleged infringer is liable for inducement of infringement. Specifically, this article focuses on examining whether an inference based on circumstantial evidence can show whether the alleged infringer has the requisite state of mind to induce infringement and compares inferences and intent to induce infringement against intent in other areas of patent law.
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    Trademark Unraveled: The U.S. Olympic Committee Versus Knitters of the World
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) David, Marcella
    A cease-and-desist letter is a tool commonly used by corporations in their efforts to vindicate the rights they hold in protected words and symbols associated with their business and reputation. Some defend the use of cease-and-desist letters as an effective vehicle. to quickly address legitimate claims of infringement. Others complain that the legitimate use of cease-and-desist letters is increasingly encroached upon by letters that grossly overstate legal claims in an effort to achieve results through intimidation. The proponents and detractors of the use of cease-and-desist letters likely would agree that the rights such letters seek to protect, the law interpreting those rights, and the use of the letters in protection of those rights are complicated by the exponential growth of e-commerce, and that the rise in do-it-yourself e-commerce only compounds the challenges.This article examines the consequences of a notorious and controversial cease-and-desist letter from several perspectives. The letter is a helpful mechanism to understand a specialized grant of trademark rights associated with the Olympic Games, and how those rights might fail to protect the varying interests of the trademark holders, commercial actors, and the public; some modest suggestions explore alternative ways of conceptualizing and vindicating the rights at stake. The article concludes by assessing the letter and subsequent controversy for helpful lessons on lawyering, including the benefits of careful advocacy and creative business approaches, particularly in an e-commerce environment.
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    Applying the Fragmented Literal Similarity Test to Musical-Work and Sound-Recording Infringement: Correcting the Bridgeport Music, Inc. v. Dimension Films Legacy
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Carter, Mark
    Copyright law simultaneously protects recorded music in two distinct ways: as a musical work (i.e. composition) and as a sound recording. Copyright law protects all copyrightable works against unapproved reproduction (i.e., copying). Normally, the substantial similarity standard tests reproduction infringement. A sound-recording sample may be so short as to lack substantial similarity to the musical-work and thus not infringe it. But Bridgeport Music, Inc. v. Dimension Films chucked substantial similarity to hold that the same sample, however short, necessarily infringes the sound-recording reproduction right. This disparate copyright protection between musical works and sound recordings of the same sample has led to the “mashup problem.” Substantial similarity can be broken into two basic types: comprehensive nonliteral similarity and fragmented literal similarity. This paper proposes a framework for applying the fragmented literal similarity test to both musical-work and sound-recording reproduction infringement. First, it describes the framework for musical works based on the innate discretization of musical works as notes. Second, it describes breaking sound recordings into sound snippets and weighs the copied snippets’ quantitative and qualitative values to the copyrighted recording. Third, it outlines applying the framework to Swirsky v. Carey, Bridgeport, and Girl Talk’s sampling recordings.
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    Localizing Climate Change Action
    (Minnesota Journal of Law, Science and Technology, 2013-07-01) Dellinger, Myanna
    Waiting for national- and supranational-level actors to reach a broadly based and substantively effective agreement on climate change mitigation is like waiting for Godot—unlikely to happen, at least at a substantively early enough point in time. The December 2012 negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) umbrella yet again demonstrated the problem in seeking widely accepted action from close to two hundred nations with widely divergent interests in climate change and the related underlying issues. This article adds new value to existing scholarship by conducting original research into select climate initiatives at the sub-national, sub-state level in order to find out whether it is worth pursuing climate change action at this level instead. The article posits that in times with little or severely delayed climate change action by national and supranational actors, it is worth pursuing climate change action at the local—but not the purely private—level. After identifying what “success” means in the climate change arena, the article analyzes the potential for both substantive and procedural success presented by select local initiatives. Some of these feature traditional adversarial enforcement methods, some feature modern collaborative-style enforcement, some feature no enforcement at all, and one is a reporting program with mandatory implications. This article demonstrates how action at the scaled-down level can be effective whether traditional adversarial, or more collaborative goal enforcement methods are applied, and perhaps even if no enforcement methods are applied at all. The article builds on the author’s parallel project, An Unstoppable Tide: Creating Environmental and Human Rights Law from the Bottom Up. This article analyzes bottom-up, polycentric developments within national and international environmental and human rights law in general. It argues that bottom-up, polycentric action presents viable alternatives to traditional top-down action within these areas and presents a set of guidelines for the development and enforcement of law that apply to action within climate change and thus to this article as well.