Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses

Abstract

Software companies would like to be able to control what their customers and reviewers can say about them and their software. To this end, many include in their license agreements “DeWitt” or “gagwrap” clauses which purport to prevent written reviews or disclosure of benchmark test results involving the software without the manufacturer's consent. While the courts have recognized the enforceability of software licenses to protect manufacturers, they have so far not addressed the enforceability of gagwrap clauses. This article examines gagwrap clauses and examines them in a public policy framework arising from contract and First Amendment jurisprudence. It proposes a test for the enforceability of the clauses that leaves in place many agreements not to speak but renders gagwrap clauses suspect on public policy grounds.     

If Brain Scans Really Detected Deception,Who Would Volunteer to be Scanned?

Abstract: Recent neuroimaging studies investigating the neural correlates of deception among healthy people, have raised the possibility that such methods may eventually be applied during legal proceedings. Were this so, who would volunteer to be scanned? We report a “natural experiment” casting some light upon this question. Following broadcast of a television series describing our team’s investigative neuroimaging of deception in 2007, we received unsolicited (public) correspondence for 12 months. Using a customized template to examine this material, three independent assessors unanimously rated 30 of an initial 56 communications as unequivocally constituting requests for a “scan” (to demonstrate their author’s “innocence”). Compared with the rest, these index communications were more likely to originate from incarcerated males, who were also more likely to engage in further correspondence. Hence, in conclusion, if neuroimaging were to become an acceptable means of demonstrating innocence then incarcerated males may well constitute those volunteering for such investigation.     

Challenging DNA: Assessment of a range of genotyping approaches for highly degraded forensic samples

It is common in forensic casework to encounter highly degraded DNA samples from a variety of sources. In this category bone and teeth samples are often the principal source of evidential material for criminal investigations or identification of long-deceased individuals. In these circumstances standard STRs are prone to fail due to their long amplicon sizes (since DNA becomes progressively more fragmented as it degrades). To successfully resolve such cases alternative markers can be used and until recently the only other tool available was mitochondrial DNA, which despite being more resistant to degradation, is much less informative. A rapidly developing approach to analyzing degraded DNA is the typing of loci from short-amplicon PCR products based on markers such as mini-STRs and autosomal SNPs. We have performed an analysis of several cases with naturally degraded DNA using established STRs plus mini-STRs and autosomal SNPs in order to make an objective comparison of the performance of each method using challenging DNA. The main aim was to establish the benefits and drawbacks of each marker set to help the practitioner choose the DNA analysis method most suited to the circumstances of each case.     

Compensation for industrial accidents and incentives for prevention: a theoretical and empirical perspective

This paper examines the compensation systems for industrial accidents in Belgium, Germany and Great Britain, thereby taking into account some recent empirical data on industrial accident rates and (although hardly available) amounts of compensation paid out to employee victims. The key question of this paper, derived from past research in law and economics, is whether these particular compensation systems include elements that may contribute to the prevention of industrial accidents. While the three countries examined here all have at least some incentive-based elements, notably in the way those systems are financed, there appears to be room for improvement both in Belgium and Great Britain. The German case study leads to the proposition that giving an organisation the responsibility for both compensation and prevention may have a beneficial effect on the accident rate.     

Rent seeking and hidden in-kind resource distortion: Some empirical evidence

We wish to thank John Jackson, Robert Hebert, Gordon Tullock and an anonymous referee for helpful comments on earlier draft of the paper.