Yale Journal of Law & Technology
Volume 9, 2006-2007 Spring Issue
The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance
By K. A. Taipale
9 Yale J.L. & Tech. 128
Exploit Derivatives & National Security
By Micah Schwalb
9 Yale J.L. & Tech. 162
Critical infrastructures remain vulnerable to cyber attack despite a raft of post-9/11 legislation focused on cyber security in critical infrastructures. An emerging discipline known as the "economics of information security" may provide a partial solution in the form of a hypothetical market that trades "exploit derivatives," a modified futures contract tied to cyber security events. This paper argues that such a market could serve to predict and prevent cyber attacks through the operation of the efficient capital market hypothesis, but only after changes to the present regulatory environment. Specifically, I argue that a statutory safe harbor would allow the creation of a pilot market focused on vulnerabilities in Internet protocol version six, an emerging communications standard that China hopes to deploy throughout its national network before the 2008 Olympics. Indeed, such a safe harbor would align the interests of military and civilian policymakers on the common goal of protecting critical infrastructure from a computer network attack originating in China, whether instigating by the People's Liberation Army or so-called "black-hat" hackers.
Of Fire Ants and Claim Construction: An Empirical Study of the Meteoric Rise of the Eastern District of Texas as a Preeminent Forum for Patent Litigation
By Yan Leychkis
9 Yale J.L. & Tech. 193
Forum shopping by patent litigants is nothing new. However, in recent years, there has been an increase in forum shopping by patentee plaintiffs. Because of this forum shopping phenomenon, the Eastern District of Texas, a technological backwater, is on pace to become the leading patent docket in the United States. This Article empirically analyzes the reasons for the popularity of the Eastern District among patentee plaintiffs and considers a number of possible legislative solutions to the problem of forum shopping gone awry.
Everything New Is Old Again: Brain Fingerprinting and Evidentiary Analogy
By Alexandra J. Roberts
9 Yale J.L. & Tech. 234
Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how fact-finders perceive and evaluate unfamiliar types of proof. When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. This Note explores the ways in which evidentiary analogy may insidiously shape how courts treat novel forms of scientific evidence.