JACQUELINE D. LIPTON, Case Western Reserve University School of Law
Email: jdl14@case.edu

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with others’ trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on advertisements. To avoid trademark liability, most clickfarmers and cybersquatters utilize personal names, geographic and cultural indicators, and generic terms as domain names. The application of current regulations to these practices is unclear, largely because of the lack of a coherent policy basis for domain name regulation. This article develops a new model for domain name regulation. It incorporates trademark policy within a broader theoretical framework incorporating aspects of restitution and property theory. The author suggests that a broader theoretical approach to domain name regulation would facilitate the development of more coherent domain name rules in the future. This discussion is particularly timely in light of the forthcoming implementation of a new generic Top Level Domain (gTLD) application process.

JANICE NADLER, Northwestern University School of Law, American Bar Foundation
Email: jnadler@law.northwestern.edu
J. D. TROUT, Loyola University of Chicago
Email: jtrout@luc.edu

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen’s consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers’ language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current Fourth Amendment jurisprudence assumes that the authority of armed police officers simply vanishes when they pose their desire to search as a question. We discuss empirical evidence suggesting that people are afraid to decline police officer requests to search, and conclude by discussing the social and psychological cost of the widespread use of consent searches.

RICHARD BILDER, University of Wisconsin Law School
Email: rbbilder@wisc.edu
UNIVERSITY OF WISCONSIN LEGAL STUDIES RESEARCH PAPER SERIES, University of Wisconsin Law School
Email: sawatske@wisc.edu

This article addresses questions of U.S. international legal and space policy arising from current proposals of the U.S., Russia, China and India to establish national bases on the Moon, in part with the purpose of mining and bringing to Earth Helium-3 (He-3). He-3 is an isotope of helium that is available in quantity only on the Moon and could, as an ideal fuel for nuclear fusion reactors, furnish humanity a virtually unlimited source of safe, non-polluting energy for centuries to come. For example, it is estimated that 40 tons of liquefied He-3 brought from the Moon to the Earth – about the amount that could comfortably fit in the cargo bays of two of the existing U.S. space shuttles – would provide sufficient fuel for He-3-based fusion reactors to meet the full electrical needs of the U.S. – or a quarter of the entire world’s electrical needs – for an entire year. However, there is as yet no international consensus on whether, or how, any nation or private enterprise can exploit or acquire title to He-3 or other lunar resources. The article calls attention to what may become a “race to the Moon� to obtain He-3 and discusses: (1) the technical and economic prospects for the development of He-3-based energy; (2) the present legal situation concerning the exploitation of lunar resources such as He-3; and (3) policy options for the U.S. regarding the establishment of an international legal regime capable of avoiding conflict in the exploitation of He-3 and other lunar resources and facilitating the broad scale development of He-3-based energy.

ANN BARTOW, University of South Carolina - School of Law
Email: bartow@law.sc.edu

Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to defend otherwise defenseless people whose reputations have been sullied on the Internet Of course these companies charge a fee and place particular emphasis on women who they recognize as potential clients. This article raises three concerns about these businesses. First, these companies have economic incentives to foster conditions online that perpetuate acts of online harassment, as the more harassment there is online, the greater the number of potential clients. These companies are also incentivized to create fora with hostile climates and to stir up trouble themselves. Second, these companies have economic incentives to oppose legal reforms that might enable online defamation and harassment victims to seek recourse from law enforcement agencies or through the courts. And finally, though they cloak themselves in the mantel of protectors of the innocent, their real agenda is to sell their services to wealthy corporations and individuals for far more nefarious purposes: to help bad actors hide negative information about themselves. This practice creates information asymmetries that can harm anyone who detrimentally relies on what they incorrectly assume to be the best available information and can lead to increases in the sorts of financial losses and personal vulnerability that access to unmanipulated Internet search results might otherwise reduce.

COREY RAYBURN YUNG, The John Marshall Law School
Email: coreyrayburnyung@gmail.com

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a 'war' on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act ('AWA') in combination with other sex offender laws triggered a transition to a criminal war on sex offenders? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped? By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

MAURITS BARENDRECHT, Tilburg University - Law School
Email: j.m.barendrecht@uvt.nl

This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through ‘justice transactions,’ including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however. Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, stimulating ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice.

More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services. These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms. Such policies are relevant for any justice system, but in particular for legal empowerment of the poor and for stimulating microjustice.

DR. MAYA STEINITZ, Columbia Law School
Email: maya.steinitz@gmail.com

From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM�), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional� states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal courts to prepare indictments of war criminals. This development within the legal community is connected to changes in the scope and ambition of the “corporate responsibility� initiatives of many multinational corporate clients of the firms leading the internationalization of pro bono services.

Private law firms are hardly unique as third-party participants in the highest levels of inter- and intra-sovereign processes. Certainly, it is well known that foreign government assistance, inter-governmental organizations such as the UN or World Bank, and non-governmental organizations play a large role in the social and economic development of poorer countries. Less light has been shed, however, on the role those same entities play in the fundamental sovereign processes of formation, dissolution, war, and peace, and no discussion at all exists regarding the new role of law firms in such weighty international affairs. A close look at the way law firms operate in that rarefied space provides an illuminating contrast to the behavior of other actors.

The entry of law firms and multinational corporations into the ‘market’ of global affairs - long the exclusive domain of governments and inter-governmental organizations - offers many advantages to clients in developing and post-conflict countries, but also poses dangers which can and should be mitigated. One of the foremost benefits private law firms offer is their unique ability to ensure - even to guarantee - local ownership of the process and its content due to the strict requirements of the attorney-client relationship. These include attorneys’ obligations to follow the directives of their clients, to keep the confidences of the client and to act independently of any third party. Unlike other players in the field of international aid such as foreign donor governments, inter-governmental organizations (IGOs), non-governmental organizations (NGOs), and private foundations, private lawyers providing pro bono services do not receive donations, do not have “mandates� other than those dictated by the client (bounded, of course, by ethical regulations), and do not have real or imagined “constituencies� to which they are accountable, other than the client. Yet the enforceability of the ethical code that gives rise to those advantages is questionable in a transnational representation. A lack of regulation raises questions about legitimacy and accountability, and may suggest a specter of legal imperialism.

A practical approach to mitigating those disadvantages can be gleaned from the novel work of an increasing number of scholars writing within the Global Administrative Law (“GAL�) paradigm. GAL scholars have analyzed the myriad ways in which disparate national administrative standards have been synchronized, though not necessarily harmonized, in various contexts (e.g., environmental concerns, accounting standards). A key concept in GAL scholarship is that of transnational networks - patterns of regular and purposive relations (and institutions) among like regulatory bodies working across borders dividing countries and demarcating the “domestic� from the “international.� The article will draw on this and other concepts and principles identified by GAL scholars proposing ways to bring a measure of accountability to transnational pro bono activities (indeed to transnational lawyering, generally) that respect the domestically self-regulated legal profession and which cannot (and should not) be harmonized across jurisdictions. Rather, the article suggests that regulation of global pro bono service should graduate from “accidental distributed administration� to “deliberate transnational network administration.� Without some attention paid to the way law firms operate in this arena, there is a risk that the ethical obligations of attorneys will become little more than a cover for advancing Western corporate interests.