November 2012 Vol. 111 No. 2 THE REVIEW
ARTICLES

Information Escrows

Ian Ayres & Cait Unkovic

A variety of information escrows—including allegation escrows, suspicion escrows, and shared-interest escrows—hold the promise of reducing the first-mover disadvantage that can deter people with socially valuable private information from disclosing that information to others. Information escrows allow people to transmit sensitive information to a trusted intermediary, an escrow agent, who only forwards the information under prespecified conditions. For example, an allegation escrow for sexual harassment might allow a victim to place a private complaint into escrow with instructions that the complaint be lodged with the proper authorities only if the escrow agent receives at least one additional allegation against the same individual. We assess the benefits and costs of allegation escrows and discuss how they might be applied to a variety of claims, including sexual harassment, date rape, adultery, and corporate and public whistle-blowing. We also show how analogous shared-interest escrows might be used in workplace dating and adoption contexts to facilitate the discovery of parties' mutual interest when unintermediated expressions of interest might themselves be harassing.

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Outsourcing Regulation: How Insurance Reduces Moral Hazard

Omri Ben-Shahar & Kyle D. Logue
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NOTES

The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits

Sean B. Karunaratne

Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the John Does, it contacts them with a settlement demand. But often before such discovery is granted, the anonymous defendants have been improperly joined, and the lawsuit has been filed in a court that lacks personal jurisdiction over the defendants. This presents no problem to the plaintiff because the plaintiff does not intend for the lawsuit to go to trial. However, the defendants effectively have no choice but to succumb to the plaintiff's settlement demand because settling will be less costly than fighting the action. This Note argues that courts should not grant expedited discovery in such procedurally deficient lawsuits. To rein in these mass lawsuits, this Note argues that mass copyright infringement suits should meet certain minimum joinder and personal jurisdiction requirements before courts grant expedited discovery.

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Graffiti Museum: A First Amendment Argument for Protecting Uncommissioned Art on Private Property

Margaret L. Mettler
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