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Clark Memorandum: Fall 2017
Get PDFAscending the Mountain: A Story of the People of the Great Hill (Michalyn Steele) Unlocking Potential: How a Law Degree Amplifies Your Ability to Bless the World (Jane Mitchell) The EU Apple Case: Who Has a Dog in the Fight? (J. Clifton Fleming, Jr.)https://digitalcommons.law.byu.edu/clarkmemorandum/1061/thumbnail.jp
Software\u27s Copyright Anticommons
Get PDFScholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has not been viewed as a significant source of anticommons problems. But this Article argues that copyright is an increasingly significant cause of anticommons concerns in the software context for at least two related reasons. First, the increasingly collaborative nature of much modern software innovation means that any given software resource is subject to dozens, hundreds, or even thousands of distinct copyright interests, each of which can ultimately hamper use of the software resource. While collaborative innovation licensing models help reduce the threat of any given copyright holder restricting use of the software resource, these licensing models do not altogether eliminate such risks and, in fact, actually create risks of holdup and underuse that have previously received less attention than they are due. Second, interoperability needs in the growing “Internet of Things” and “cloud” economies demand sharing and reuse of software for these ecosystems to work. Yet because these technological ecosystems implicate thousands of different parties with distinct copyright interests in their software, the threat of any one of those parties ultimately using its rights in ways that inhibit the successful development and use of the Internet of Things and cloud economies looms large. In order to illustrate some of these anticommons problems in practice, this Article examines a recent high-profile software copyright dispute between Oracle and Google.As a possible solution to these types of problems, this Article assesses the merits of more explicitly adapting copyright’s fair use defense to the collaborative and interconnected nature of modern software innovation. The Article concludes by arguing that copyright disputes in other fields of creativity characterized by collaborative, interconnected development may also merit such fair use adaptations. Otherwise, anticommons problems may increasingly affect those fields as well
A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics
Get PDFCorpus linguistics is more than just a new tool for legal interpretation. Work in corpus linguistics has generated new ways of thinking about word meaning and about the interpretation of words in context. These insights challenge the assumptions that lawyers and judges generally make about words and their meaning. Although the words that make up a sentence are generally regarded as the basic units of meaning, corpus analysis has shown that in many cases, the meaning of a word as it is used in a given context is a function, not of the word by itself, but of the word’s interaction with that context. In the many instances in which that is the case, it will often make sense to regard the basic unit of meaning as a multi-word expression that includes not only the word in question but also the relevant parts of the context. That basic insight, which grew out of work on the world’s first dictionary based on an electronic corpus, opens the door to new ways for lawyers and judges to analyze issues of word meaning. This Article begins by contrasting two themes that run through legal interpretation: on the one hand, the view that word meanings are clearly delineated abstract entities that exist independently of the use of the word in context, and on the other hand, the view that word meanings exist only in context. (The Article comes down strongly in support of the latter view.) After setting out these two competing themes, the Article introduces the phenomenon of collocation—the tendency of certain words to co-occur disproportionately with certain other words. The study of collocation served as the starting point for the work that ultimately generated the new insights into the nature of word meaning.The Article then describes the development of that work, much of which was done as part of creating the first corpus-based dictionary. The Article summarizes some of the findings that were made by the lexicographers, and the conclusions about word meaning that followed from those findings. Some of those conclusions may strike readers as radical, since they call into question many widely held assumptions about word meaning. Finally, in order to demonstrate how the new approach can be used in legal interpretation, the Article undertakes a corpus analysis of the issue in the well-known case of Muscarello v. United States: whether driving to the site of a drug deal with a gun in the glove compartment constitutes “carrying a firearm.
Ordinary Meaning and Corpus Linguistics
Get PDFThis Article discusses how corpus analysis, and similar empirically based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to underscore the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Because ordinary meaning must in some sense be generalizable across contexts, it would seem to be subject in some way to the empirical verification that corpus analysis can provide. We demonstrate the potential of corpus analysis through the study of two rather infamous cases in which the reviewing courts made various general claims about language meaning. In both cases, United States v. Costello and Smith v. United States, the courts made statements about language that are contradicted by corpus analysis. We also demonstrate the potential of corpus analysis through Hart’s no-vehicles-in-the-park hypothetical. A discussion of how to approach Hart’s hypothetical shows the potential but also the complexities of the kind of linguistic analyses required by such scenarios. Corpus linguistics can yield results that are relevant to legal interpretation, but performing the necessary analyses is complex and requires significant training in order to perform competently. We conclude that while it is doubtful that judges will themselves become proficient at corpus linguistics, they should be receptive to the expert testimony of corpus linguists in appropriate circumstances
Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record
Get PDFThis Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. 2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied. 3. The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision. These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called “triangulation.
Trading Safety for Innovation and Access: An Empirical Evaluation of the FDA’s Premarket Approval Process
Get PDFCongress created the premarket approval process (PMA) to provide a rigorous safety evaluation of high-risk medical devices before they may be sold on the U.S. market. Evaluating a PMA application requires the Food and Drug Administration (FDA) to conduct a lengthy, complex, and costly assessment of the extensive data a manufacturer must submit. But other policy concerns, notably a fear of hampering innovation and a desire to assure timely access to new technologies, have led Congress to relax some of the rigorous data requirements the PMA process imposes on manufacturers. Congress mandates that the FDA employ the “least burdensome” approach to regulation that allows a reasonable assurance of safety. The FDA has interpreted this as permitting it, among other things, to approve high-risk devices based on small, short-duration clinical trials the designs of which fall short of the most rigorous scientific standards. Congress also created “PMA Supplement” pathways that allow manufacturers to modify their PMAapproved devices with only limited supporting data. And Congress included several provisions in the recently-enacted 21st Century Cures Act that further tip the balance away from ensuring device safety. Scholars writing in the medical literature have raised concerns that the standards for PMA approval have become too relaxed, potentially compromising device safety. But most empirical studies have focused on the less rigorous 510(k) pathway, which is designed for low- and medium-risk devices. These studies provide limited evidence about how frequently PMA-approved devices fail. And no empirical work has examined whether these failures are related to the statutes and regulations through which Congress and the FDA have attempted to balance safety against innovation and access. This Article begins such an examination, presenting the results of a new empirical study of PMA-approved devices. The study finds that under a best-case scenario at least 4.6%–6% of PMA-approved devices will fail in such a way as to threaten death or serious and permanent harm. Complex cardiovascular devices and devices that have been frequently and rapidly modified through certain PMA supplements are most likely to fail. Based on the concerns that have been raised and on the findings of this study, this Article suggests that Congress and the FDA should take steps to readjust the balance between safety on one hand and innovation and access on the other. The FDA should insist on scientifically rigorous, longer-duration clinical trials before approving PMA applications. Further, the FDA should limit the number of significant modifications that manufacturers of certain devices are permitted to make to a device through PMA supplements before a thorough safety assessment is required, and should limit how soon after one significant modification is approved that a second modification will be considered. Finally, Congress should amend the 21st Century Cures Act to avoid further tipping the balance between safety, innovation, and access away from the FDA’s primary mission of ensuring medical device safety
The Agreements Between Church and State: The Italian Perspective
Get PDFThis Article explores the recent approach of the Italian Constitutional Court regarding agreements between the Italian State and religious denomination, which regulate matters of common interest. The Italian approach is compared to the contemporary approach of the Spanish legal system. The Italian approach grants strong discretion in favor of the Government in this context, but by doing so, it risks inadequately protecting the religious freedom of religious denominations in light of current jurisprudence. Moreover, the broad discretion given to the Italian government seems not to be in line with the current jurisprudence of the European Court of Human Rights in defense of collective religious freedom
THOMAS G. MARTIN, M.D., Plaintiff-Appellant, v. THE UNIVERSITY OF UTAH; THE UNIVERSITY OF UTAH COLLEGE OF PHARMACY; THE UTAH POISON CONTROL CENTER; BARBARA CROUCH; in her official and individual capacities; DIANA BRIXNER, in her official and individual capacities; ERIK BARTON, in his official and individual capacities; STEPHEN HARTSELL, in his individual and official capacities; SAMUEL FINLAYSON, in his official and individual capacities; HEIDI THOMPSON, in her official and individual capacities; PAULA PEACOCK, in her official and individual capacities, and DOES 1-10, in their official and individual capacities. Defendants-Appellees. : Brief of Appellant
Get PDFBRIEF OF APPELLANT
Appeal from the Third Judicial District CourtIn and for Salt Lake County, State of UtahThe Honorable Andrew H. Stone
ORAL ARGUMENT REQUESTE
LABOR COMMISSION Plaintiff-Appellant, v. DEREK PRICE, Defendant-Appellee. : Brief of Appellant
Get PDFOPENING BRIEF OF APPELLANT LABOR COMMISSION
Appeal from the Final Order of the Third Judicial District Court inand for Salt Lake County, Honorable Su J. ChonNo. 12691863