Law Commons^™

Finding Freedom For The Thoughts We Hate, John M. Greabe

Law Faculty Scholarship

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship …

Comments To The Federal Trade Commission On The Can-Spam Rule Review, 16 C.F.R. Part 316, Project No. R711010, Roger Allan Ford

Law Faculty Scholarship

These comments respond to the Federal Trade Commission’s request for public comment on the CAN-SPAM Rule, 16 C.F.R. Part 316.

The CAN-SPAM Act set a minimum baseline for consumer protections that senders of unsolicited commercial email must respect. These protections have been largely effective at giving consumers the ability to manage how a large group of companies uses their email addresses for marketing. At the same time, the Act has had little effect on the volume of unsolicited commercial email or on the amount of email sent by scammers and fraudsters. The Act and its implementing Rule, then, have been …

The Trump Presidency And The Press, John M. Greabe

Law Faculty Scholarship

[Excerpt] "It is not difficult to understand why presidents frequently voice frustration with the press. Imagine being subjected to critical analysis 24/7 by reporters, bloggers and pundits who often lack complete and accurate information but face competitive pressure to publish quickly."

Can President Trump 'Open Up' The Libel Laws?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Libel and slander are branches of the law of defamation. Defamation law authorizes remedies for reputational harm caused by some false statements of fact. A libel is a defamatory statement that is printed or written; a slander is a defamatory statement that is spoken.

During the 2016 presidential campaign, candidate Donald Trump suggested that, if elected, he would "open up our libel laws" to facilitate lawsuits by public officials against news organizations."

Bibliography, Editorial Board

The University of New Hampshire Law Review

This bibliography is a comprehensive list of all of Professor Calvin Massey’s scholarship. Unless otherwise indicated, each title was written exclusively by Professor Massey. We have not, however, included every edition of each title; rather, where multiple editions were published, we reference only the first edition. We have also omitted supplements written by Professor Massey to his own casebooks.

Contextual Healing: What To Do About Scandalous Trademarks And Lanham Act 2(A), Megan M. Carpenter

Law Faculty Scholarship

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners.

In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a …

Podia And Pens: Dismantling The Two-Track System For Legal Research And Writing Faculty, Kristen K. Tiscione, Amy Vorenberg

Law Faculty Scholarship

At the 2015 AALS Annual Meeting, a panel was convened under this title to discuss whether separate tracks and lower status for legal research and writing (“LRW”) faculty make sense given the current demand for legal educators to better train students for practice. The participants included law professors, an associate dean, and a federal judge.2 Each panelist was asked to respond to questions about the “two-track” system—a shorthand phrase for the two tracks of employment at many law schools whereby full-time LRW faculty are treated differently than tenured and tenure-track faculty. The panelists represented differing views on the topic. This …

The Changing Discourse Of The Supreme Court, Stephen M. Johnson

The University of New Hampshire Law Review

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style.

There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing …

Kingswood Lake Management Plan, Sarah Martina Tierney

Honors Theses and Capstones

High water quality and natural buffers exist on Kingswood Lake located in Brookfield, New Hampshire. A comprehensive lakes inventory (CSI) was recorded and health of the land, wildlife, and waterways were observed. Educational outreach was taken to inform the local community and to instruct them on proper stewardship of the land. A completed watershed management plan was constructed including key recommendation of limiting nitrogen loading in the area, checking septic systems for leaching, stabilizing shoreline from erosion, and establishing man-made rain gardens to help preserve water quality. The Kingswood watershed management plan acts as a guide for the town of …

The Aftermath Of Aftermath: The Impact Of Digital Music Distribution On The Recording Industry, Michael Mccubbin

The University of New Hampshire Law Review

[Excerpt] “This article will address the impact the shift from hard-copy recordings to digital music distribution has had on the recording industry. Specifically, it will apply F.B.T. Productions v. Aftermath Records, which correctly held that a label’s relationship with third-party-digital-music-providers is that of licensor-licensee, to the modern music industry. Based on this holding, record labels need to reconsider their relationships with artists, and create new business models that rely on licensing music, rather than the traditional sale-based distribution model. The decision in Aftermath will lead to increased royalties for artists in the Digital Age. This article will analyze the impact …

Calling Bulls**T On The Lanham Act: The 2(A) Bar For Immoral, Scandalous, And Disparaging Marks, Megan M. Carpenter, Kathryn T. Murphy

Law Faculty Scholarship

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services. However, Section 2(a) of the Lanham Act prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. …

London, Libel Capital No Longer? The Draft Defamation Act 2011 And The Future Of Libel Tourism, Thomas Sanchez

The University of New Hampshire Law Review

[Excerpt] “In the past decade, London emerged as the forum of choice for “libel tourists”—strategic, often foreign, plaintiffs who bring defamation actions in a jurisdiction with plaintiff-friendly libel laws, even if they and the defamatory material at issue lack a substantial connection with that jurisdiction. England’s defamation laws and procedures make it significantly easier for claimants to commence and prevail in libel actions than do the laws and procedures of many other countries, particularly the United States. As a result, English courts have entertained several high-profile defamation cases involving foreign parties who have only tenuous connections to England, such as …

Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter

Law Faculty Scholarship

Music sharing is one of the most controversial topics in copyright law. And mix tapes have been the classic, iconic form of music sharing for the last 30 years. Even in the face of technological development so rapid and far-reaching as to remove the literal “tape” from “mix tape,” there are nonetheless modern incarnations that crop up on a regular basis, from mix CDs to mix-sharing websites. Social norms permit and even encourage the creation of these modern mix tapes for such diverse reasons as wedding favors and birthday gifts.

If copyright law is meant to promote creativity and proscribe …

Internet Defamation As Profit Center: The Monetization Of Online Harassment, Ann Bartow

Law Faculty Scholarship

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 …

The Rhetoric Of Predictability: Reclaiming The Lay Ear In Music Copyright Infringement Litigation, Austin Padgett

The University of New Hampshire Law Review

[Excerpt] “Some things cannot be described. This is the theory that recent literary criticism has placed as its cornerstone. Philosopher-critic Roland Barthes identified this trend in his Mythologies, stating that critics often “suddenly decide that the true subject of criticism is ineffable, and criticism, as a consequence, unnecessary. Unfortunately, this view has become singular within the legal academy whenever an author discusses music copyright infringement analysis. It seems that scholars fear the thought of trusting a jury with such an “ineffable” subject as music and must propose alternatives, such as expert testimony, specialized courts, or mechanical analysis, that will diminish …

The True Colors Of Trademark Law: Green-Lighting A Red Tide Of Anti Competition Blues, Ann Bartow

Law Faculty Scholarship

The elevation of color to stand-alone trademark status illustrates the unbounded nature of trademarks within the judicial consciousness. The availability of color-alone marks also facilitates the commoditization of color in ways that complicate the development and distribution of products and services that use color for multiple purposes conterminously. The economic case for color-alone trademarks is severely undermined by careful observation of the ways that colors are actually deployed in commerce, which makes it clear that the trademarks of multiple goods and services can utilize the same color to telegraph the same message without confusing anyone or diluting the commercial power …

Sold Downstream: Free Speech, Fair Use, And Anti-Circumvention Law, R. Terry Parker

The University of New Hampshire Law Review

[Excerpt] “Here’s a hypo. Living in Asia, I purchased a shameful amount of music and movies, all legit purchases through reputable stores, HMV and Tower Records, but little of which will get reissued. I wanted to preserve my collection but software in the discs prevented me from ripping backup copies to my computer. Lacking the technological savvy to get around this software myself, I purchased and used a product to help me circumvent these controls. Discuss.

Courts agree that copying the music and movies here is infringement but that fair use may provide a defense. However, courts do not agree …

Practicing Civility In The Legal Writing Course: Helping Law Students Learn Professionalism, Sophie M. Sparrow

Law Faculty Scholarship

This Article suggests some concrete ways to teach civility— one component of professionalism—to law students. Professionalism certainly includes much more than civility, incorporating the concepts of ethics, morals, public service, life-long learning, personal integrity, professional identity, and a commitment to selfdevelopment. This Article begins with a brief overview of civility in Part I. Part II provides a few of the many arguments for why we should teach law students to be civil. Part III explores some concrete ways in which we can teach civility within individual classes, using the dynamics of student engagement in the classroom as an opportunity to …

Videoconferencing In Immigration Proceedings, Aaron Haas

The University of New Hampshire Law Review

[Excerpt] “When there is mention of a legal trial, a certain picture naturally comes to mind. One sees a judge in his black robe sitting on a raised bench. Lawyers are stationed at tables on either side of the courtroom, prepared to present their arguments to the court. A jury box may sit off to the side, holding a cross-section of citizens culled from the population to perform their ancient duty. The courtroom is made of fine wood and polished marble, and it is adorned with the accouterments of justice—American flags, seals, paintings of honored jurists—which let an observer know …

What’S The Hang Up? The Future Of Voip Regulation And Taxation In New Hampshire, Kate Winstanley

The University of New Hampshire Law Review

Alice in Austria wishes to call her friend Bob in Boston, using a Boston area code to avoid charges for an international call. Using VoIP, Alice may initiate her call from any location in Austria where she may find Internet access. Once Alice connects to the Internet, she can transmit her call with the aid of a VoIP service provider, such as Skype. In order to hear and communicate with Bob, Alice can rely on a microphone and a headset that she can plug into her computer. Through VoIP, not only may Alice carry on a telephone conversation, but most …

Some Dumb Girl Syndrome: Challenging And Subverting Destructive Stereotypes Of Female Attorneys, Ann Bartow

Law Faculty Scholarship

This Essay considers ways in which female attorneys confront sexism and stereotyping in the legal profession and in life, and strongly endorses embracing feminism, and wearing comfortable shoes.

Preemption Of State Spam Laws By The Federal Can-Spam Act, Roger Allen Ford

Law Faculty Scholarship

Unsolicited bulk commercial email is an increasing problem, and though many states have passed laws aimed at curbing its use and abuse, for several years the federal government took no action. In 2003 that changed when Congress passed the CAN-SPAM Act. Though the law contains many different restrictions on spam messages, including some restriction of nearly every type that states had adopted, the Act was widely criticized as weak. Many of the CAN-SPAM Act's provisions are weaker than corresponding provisions of state law, and the Act preempts most state spam laws that would go farther, including two state laws that …

Women In The Web Of Secondary Copyright Liability And Internet Filtering, Ann Bartow

Law Faculty Scholarship

This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem …

Message Deleted? Resolving Physician-Patient E-Mail Through Contract Law, Michael Mccann

Law Faculty Scholarship

This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Significantly, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a tool for improving the quality of health care …

Using A Civil Procedure Exam Question To Teach Persuasion, Sophie M. Sparrow

Law Faculty Scholarship

Studies show that learners master new material more effectively when it builds upon what they already know. By revisiting assignments from a previous semester, students can focus their efforts on persuading, rather than learning new doctrine or facts. Turning a predictive discussion into a persuasive argument demonstrates that making an argument requires the same rigorous thinking as predicting a result. One way to do this is to assign students to write an argument based on their fall Civil Procedure exam.

The Breast Implant Controversy: A Prism For Reform, Benson Yang

RISK: Health, Safety & Environment (1990-2002)

The author argues that regulatory blunders and the litigation explosion pertaining to breast implants highlight defects in U.S. administrative and tort law systems.

Publishers' Rights And Wrongs In The Cyberage, Thomas G. Field Jr.

Law Faculty Scholarship

The author argues in favor of a continued role for traditional publishing in the context of the rise of the Internet.

A Case Study Of Health Risk Communication: What The Public Wants And What It Gets, Jeannette M. Trauth

RISK: Health, Safety & Environment (1990-2002)

Dr. Trauth presents a content analysis of 40 years of coverage of a major local source of air pollution by a Pittsburgh newspaper. She also summarizes the results of a survey conducted to determine the extent to which citizens of most likely affected communities, e.g., understand health risks and desire further information.

Book Review, Juanita V. Field, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Review of: WESLEY A. MAGAT & W. KIP VISCUSI, INFORMATIONAL APPROACHES TO REGULATION. (MIT Press 1992) [274 pp.] Appendices, endnotes, illustrations, index, list of titles in the Regulation of Economic Activity series, list of tables and figures, preface, series foreword. LC 91-29483; ISBN 0-262-13277-X. [$32.50 cloth. 55 Hayward Street; Cambridge MA 02142.]