Vol. 102 Issue 6

While the NFL likely welcomes the long wait for the results of these and other studies, not everyone is so patient. By the beginning of 2012, over one thousand former NFL players (Players) had filed individual lawsuits against the League stemming from the concussion-related injuries they sustained playing football. The League moved to consolidate the cases pursuant to 28 U.S.C. § 1407, which allows for the transfer of cases involving common questions of fact to a multidistrict litigation (MDL) in a single district court for the purpose of coordinated or consolidated pretrial proceedings. The United States Judicial Panel on Multidistrict Litigation granted the League’s motion, resulting in the transfer to the District Court for the Eastern District of Pennsylvania every civil action filed by former NFL players against the League dealing with the League’s treatment of concussions.

This Note will address the unanswered preemption issue raised in the League’s motion to dismiss. It will argue that, because adjudication of the Players’ claims would require interpretation of the CBA, the claims would be preempted and the League’s motion to dismiss would be granted.31 Part I discusses Section 301 of the LMRA and the Supreme Court cases addressing Section 301 preemption. Part II argues that the Players’ claims would not be preempted under one prong of the preemption test because the League’s duty to them arises out of the common law rather than out of the CBA. Part III argues that the Players’ claims are nevertheless preempted under the second prong of the preemption test because they require interpretation of the CBA. Part IV rejects the notion that the Players’ fraud claims should survive a preemption chal- lenge even if their other tort claims do not. Part V raises possible alternatives to litigation given the League’s likely success in raising a preemption defense.

This Article argues that commercial sellers’ growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. This Article first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a third-party’s tortious behavior. It finally flips the analysis to consider how the uncertainty caused in part by changing liability could actually drive companies to further embrace this proximity.

Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers fell, individuals engaged with copyrighted work as never before. Business-to-business and business-to- consumer models of industrial copyright faltered and, in some cases, failed. Industries were forced to reorganize, and the foundations of copyright were reexamined. This Article assesses a prime example of the next phase of digitization: 3D printing and its implications for intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While 3D printers will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will compel firms to rethink their business practices and courts to reconsider not only patent law but also long-established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and-takedown rules of the Digital Millennium Copyright Act to websites that host software enabling 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.

“It has been said that arguing against globalization is like arguing against the law of gravity.”

The effects of globalization are indisputable. With the growth of international commerce, private business relationships cross borders now more than ever. Along with the expansion of the global economy, however, disputes arising from private international business transactions have also increased significantly in the last twenty years. Acknowledging the need for “an international legal regime that provides certainty” to private parties in international transactions, the international community came together in 2005 to complete negotiations on the Hague Convention on Choice of Court Agreements (the Convention). The Convention is a treaty that sets rules for the enforcement of private-party agreements on forum selection clauses, as well as the enforcement and recognition of foreign judgments in domestic courts.

In 2009, the United States became a signatory to the Convention, but the United States will not become a party to the Convention until the U.S. Senate gives its advice and consent and the Convention is ratified. Supporters of the Convention have focused on the need for increased certainty and uniformity in an international business environment. Much has been written on the benefits of uniformity and the arguments for ratification of the Convention. This Note, however, focuses on the effects ratification of the Convention would have on both state and federal court jurisdiction and addresses different approaches of implementation.

This Note will argue that, because the Convention deals with issues traditionally left to the states, the Convention should not be implemented through federal legislation only. This Note concludes that cooperative federalism is the most viable approach to implement the Convention. Cooperative federalism is a balanced form of government in which both the states and the federal government share regulatory authority. The states can implement regulations through state law but within a framework set out by the federal government.

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforce- ment should develop the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement—large-scale police actions that are not based on individualized suspicion—and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not considered a search or seizure, using fusion centers, camera surveillance, drone flights, and the NSA’s metadata program as examples. Part III mines current administrative law principles to show how the rationale underlying the nondelegation doctrine—if not the (supposedly moribund) doctrine itself—can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the executive branch.

It’s great to be here with all of you. This symposium actually has its origins in a sort of technology: I was on a flight to Silicon Valley, and despite living thousands of miles away from him, bumped into Professor Desai. We got to talking about disruptive technology, and ultimately began spinning out thoughts on 3D printing. Soon thereafter The Georgetown Law Journal asked for ideas for their symposium, and thus this fantastic event was born.

Disruption: In the past two decades, the concept has gone from theory, to buzz word, to the captivation of the popular imagination. Disruptive innovation goes beyond improving existing products; it seeks to tap unforeseen markets, create products to solve problems consumers don’t know that they have, and ultimately to change the face of industry. We are all the beneficiaries of dis- ruption. Every smartphone carrying, MP3-listening, Netflix-watching consumer is taking advantage of technologies once unimaginable, but that now feel indispensable. Silicon Valley’s pursuit of disruption will continue to benefit and delight a world of consumers. But where disruption may once have been the secondary result of innovation, disruption has become a goal in and of itself. Today, I want to urge a cautionary note: The tech community’s solipsistic focus on disruption, to the exclusion of human and legal values, can be problematic. We can see these potential problems in the development of three areas: mass surveillance, 3D printing, and driverless cars.