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Big Data Legal Scholarship: Toward a Research Program and Practitioner’s Guide
by Frank Fagan
20 Va. J.L. & Tech. 1 (2016)   View PDF

This Article seeks to take first steps toward developing a research program for big data legal scholarship by sketching its positive and normative components. The application of big data methods to descriptive questions of law can generate broader consensus. This is because big data ... [show]
This Article seeks to take first steps toward developing a research program for big data legal scholarship by sketching its positive and normative components. The application of big data methods to descriptive questions of law can generate broader consensus. This is because big data methods can provide greater comprehensiveness and less subjectivity than traditional approaches, and can diminish general disagreement over the categorization and theoretical development of law as a result. Positive application can increase the clarity of rules; uncover the relationship between judicial text and outcome; and comprehensively describe judicially-determined facts, the contents of legislation and regulation, or the contents of private agreements. Equipped with a normative framework, big data legal scholarship can lower the costs of judging, litigating, and administrating law; increase comparative justice and predictability; and support the advocacy of better rules and policies. In addition to sketching theoretical foundations, this Article seeks to take first steps toward developing the core components of successful praxis. Handling and analyzing big data can be cumbersome, though the newcomer can avoid common pitfalls with care. Accordingly, there exist best practices for preprocessing, converting, and analyzing the data. Current analytical techniques germane to law include algorithmic classification, topic modeling, and large-dimension regression analysis. First steps, by definition, are incomplete. The contours of big data legal scholarship and practice will undoubtedly shift over time to reflect new techniques and prevailing normative questions. This Article merely aspires to generate a conversation about how big data can enhance our understanding of law — what it is, and what it should be. [hide]


Traditional Knowledge Rights and Wrongs
by Sean A. Pager
20 Va. J.L. & Tech. 82   View PDF

International delegates at the World Intellectual Property Organization (WIPO) are nearing completion of a pair of ambitious treaties that would provide for exclusive rights in traditional knowledge and traditional cultural expression, respectively. This Article provides the first detailed analysis and critique of the draft ... [show]
International delegates at the World Intellectual Property Organization (WIPO) are nearing completion of a pair of ambitious treaties that would provide for exclusive rights in traditional knowledge and traditional cultural expression, respectively. This Article provides the first detailed analysis and critique of the draft treaties. Proponents of such intangible heritage rights often invoke rationales of both cultural integrity and economic justice to justify them. Yet, pursuing these distinct rationales dictates conflicting imperatives. To resolve this conflict, this Article argues for greater differentiation between the draft treaties based on subject matter. Just as patents and copyrights receive very different protection in conventional intellectual property regimes, so too, the WIPO treaties should differentiate much more sharply between technical knowledge and cultural expression. This Article provides a blueprint for disaggregating the normative interests most salient in each context and tailoring protections accordingly. [hide]


An Analysis of Post-Grant Review and Inter Partes Review: Who is a “Privy” or a “Real Party in Interest” and What Constitutes “Reasonably Could Have Raised” Estoppel?
by Vivek Krishnan
20 Va. J.L. & Tech. 201   View PDF

The estoppel provisions related to post-grant review (PGR) and inter partes review (IPR) before the PTAB raise interesting concerns where real parties in interest and privies are involved. One of the critical questions in evaluating the preclusive effects of a final determination at the ... [show]
The estoppel provisions related to post-grant review (PGR) and inter partes review (IPR) before the PTAB raise interesting concerns where real parties in interest and privies are involved. One of the critical questions in evaluating the preclusive effects of a final determination at the PTAB is — who qualifies as a real party in interest or a privy of the petitioner? The PTAB has applied a control test for assessing this question that apparently merges the definition of real party in interest and privy. In multi-defendant litigations, some Federal district courts have tackled the ambiguity of these terms by conditioning litigation stays (pending the outcome of PGR or IPR) on an agreement that non-petitioner defendants be bound by such an outcome. Other courts have recognized it may be unfair to hold a non-petitioner defendant to the same statutory estoppel provisions as a petitioner defendant. Another critical question is — what is the scope of "reasonably could have been raised" estoppel? This estoppel provision creates some uncertainty that potentially undercuts the value of relying on the PTAB as an effective forum to resolve disputes on validity. Limiting the preclusive effects of a final determination to grounds that were actually raised would eliminate such concerns. [hide]




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