Law Commons^™

The Sunset Of Quality Control In Modern Trademark Licensing, Irene Calboli

Faculty Scholarship

Historically, based on the premise that trademark protection is about consumer welfare, trademark law has allowed trademark licensing only as long as licensors control the quality of the products bearing the licensed marks. Ever since its adoption, however, this rule has been difficult to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legal context: quality control. Unsurprisingly, the consequence has been inconsistent case law and much uncertainty as to what represents valid licensing. In addition, in the past decades, courts have proven increasingly reticent to strictly apply this rule and have declared …

The Increased Use Of Reconciliation In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern, Cynthia Alkon

Faculty Scholarship

This statement sums up the challenges lawyers, courts, legislatures, and other policymakers face when discussing mediation, reconciliation, or the use of other process alternatives in criminal cases in Central Asia. First, many people in the legal community of Central Asia have different understandings about the types of criminal cases appropriate for referral to alternative processes in lieu of criminal prosecution. Second, many people in the Central Asian legal community have attitudes about victims, defendants, and certain types of crimes that differ significantly from the attitudes held by the legal communities in other countries of the world. For instance, in Central …

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Faculty Scholarship

Since the Gilmer decision in 1991, the vast potential from using arbitration to resolve statutory employment discrimination has expanded into a burgeoning reality. Although employers rushed in to adopt so-called mandatory pre-dispute agreements to arbitrate statutory discrimination claims, advocates for employees criticized these agreements as being unfair and primarily because the agreements were made before any dispute arose. Employers could use their bargaining power to require as a condition of employment that employees opt out of the jury trial system allowing compensatory and punitive damage awards by requiring arbitration before knowing anything about an actual dispute. Because of continuing criticism …

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

Crimes That Count Twice: A Reexamination Of Rico's Nexus Requirements Under 18 U.S.C. §§ 1962(C) And 1964(C), Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeering Influenced and Corrupt Organizations Act makes it difficult to determine when “ordinary” crimes spill over into RICO violations. This Article examines and synthesizes various “nexus” requirements that courts have devised to separate non-RICO crimes from full-blown RICO violations. The Article concludes with a discussion of the United States Supreme Court’s recent holding in Anza v. Ideal Steel Supply Corporation, 126 S. Ct. 1991 (2006), which sharply limits certain types of civil RICO claims.

Has India Addressed Its Farmers' Woes? A Story Of Plant Protection Issues, Srividhya Ragavan, Jamie Mayer O'Shields

Faculty Scholarship

The paper examines issues relating to establishing breeders rights in developing nations by taking India as an example. At the outset, the paper examines the international obligations relating to protecting plant breeder’s rights by examining the requirements under Article 27.3 of the TRIPS agreement. In doing so, the paper examines analyzes what amounts to an effective sui generis system as required under TRIPS.

Further, the paper analyzes the constituents of the models currently touted by developed nations and outlined under the Union for Plant Variety Protection (UPOV, 1991) to determine the model’s ability to fulfill the TRIPS requirement. In determining …

From Federal Rules To Intersystemic Governance In Securities Regulation, Robert B. Ahdieh

Faculty Scholarship

In this brief essay, prepared as part of a symposium on The New Federalism: Plural Governance in a Decentered World, I explore the regulatory dynamics at work: (1) in the operation of Securities Exchange Act Rule 14a-8, (2) in the interventions of then-Attorney General Eliot Spitzer in the national securities markets, and (3) in recent steps by the Securities and Exchange Commission to reconcile U.S. and international accounting standards. In each case, a distinct dynamic of regulatory interaction - what I term intersystemic governance - can be observed. In such cases, overlapping jurisdiction combines with various sources of interdependence to …

The International Enclosure Movement, Peter K. Yu

Faculty Scholarship

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

Reimposable Discounts And Medieval Contract Penalties, James P. George

Faculty Scholarship

Penalty damages in contract -- contrary to Anglo-American law since the late Middle Ages -- ironically are common as reimposed discounts in modern consumer contracts. The reimposable discount is a late-twentieth-century sales scheme that combines legal puffery with illegal penalties. These pitches are used to sell furniture, appliances, cell phones, cars, to rent apartments, and to promote elective eye surgery. The offers are tempting and often heavily marketed in the media.

The common premise is that if the buyer acts now, the seller will discount the good or service by reducing the price, or by postponing the first payment and …

Vessels Of Reproduction: Forced Pregnancy And The Icc, Milan Markovic

Faculty Scholarship

In an important victory for both women and the cause of human rights, the International Criminal Court (ICC) has criminalized forced pregnancy. The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law." Although the concept of a forced pregnancy crime is relatively new, "forced impregnation" has been used throughout history as a tool of assimilation or subjugation of the enemy, minority, or slave populations." There is some evidence that the ancient Athenians used it as …

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Faculty Scholarship

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

Reflections Of A Community Lawyer, Luz E. Herrera

Faculty Scholarship

In May 2002, I opened a law office in one of the most underserved communities in Los Angeles County. Many questioned the sanity of such a career path when evaluating my financial stability and the personal toll that such a career path can exact. Given that I graduated from some of the best universities in the country, my friends, family, and strangers were even more perplexed at my choice. I cannot say that my decision to build a law practice in Compton, California, has been easy. However, time and time again, I found myself rejecting more secure and prestigious job …

News Media As Mediators, Carol Pauli

Faculty Scholarship

Journalism thrives on conflict, a classic "news value," which can make a story newsworthy. As a result, the normal routines of reporters and editors tend to emphasize extreme voices and combative themes, triggering the criticism that news coverage of an event is "more likely to escalate a conflict than to pacify it."

Even so, journalism has made some legendary journeys into conflict resolution. In 1977, for example, CBS news anchor Walter Cronkite conducted separate interviews with Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin, which led directly to Sadat's historic visit to Jerusalem. In 1985, Ted Koppel, in …

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Trademarks And The Internet: The United States' Experience, Glynn S. Lunney Jr

Faculty Scholarship

This article is divided into three sections: (II) The past; (III) The Present; and (IV) The Future. Part II will focus on the early judicial decisions applying trademark law to the Internet. It will examine the Internet's frontier period, discuss some of the early cases and their fact patterns, and attempt to show how the courts re-wrote various doctrinal elements of trademark law so they could reach the bad actors before them. While this period is characterized more by the predominantly bad faith nature of the defendants than by a calendar, it runs for approximately five years, from the first …

Conflict Of Laws (2007), James P. George, Anna K. Teller

Faculty Scholarship

State and national laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from state and federal courts during the Survey period from October 1, 2005, through November 30, 2006. The article excludes cases involving federal-state conflicts, intrastate issues, such as subject-matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going, Robert B. Ahdieh, Zhu Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Faculty Scholarship

The focus of this panel is incrementally shifting from the previous panel. Whereas the previous was looking at public/private issues and issues relating to incentivizing innovation in the subject countries, we're going to take a focus more on, I think it's safe to say, from an external perspective looking at these countries and issues that are confronted by businesses who our either planning to deal with the four subject countries or are concerned about their technologies being used in their four subject countries.

We have four panelists, and each of them is going to speak to one of the four …

Ten Common Questions About Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational.

This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human …

My Brilliant Career, Susan Ayres

Faculty Scholarship

How do we balance work and motherhood? This creative piece is a meditation on juggling parenthood and work as a scholar-teacher. Inspired by the autobiographical scholarship of Elizabeth Bartholet, it offers a humorous and honest insight into some of the challenges faced in this struggle for balance.

Might The Fact That 90% Of Americans Live Within 15 Miles Of A Wal-Mart Help Achieve Universal Health Care?, William M. Sage

Faculty Scholarship

The subject of this Essay is the retail medical clinic movement. Retail medical clinics-a few hundred exist at the time of this publication-are typically located in national or regional chains of discount stores, pharmacies, and supermarkets. 1 News articles describing this new phenomenon in American health care tend to examine its viability as a business. The symposium for which this Essay was prepared is devoted to the "Massachusetts Health Plan," that state's pioneering effort (in the current political cycle) to achieve near-universal health insurance for its residents. Accordingly, this Essay situates the retail medical clinic movement in overall "health policy," …

The Dialectical Regulation Of Rule 14a-8: Intersystemic Governance In Corporate Law, Robert B. Ahdieh

Faculty Scholarship

In recent years, Rule 14a-8 of the Securities Exchange Act - first adopted more than sixty years ago to increase shareholder participation in corporate governance - has been the subject of a flurry of litigation, scholarly analysis, and SEC rulemaking. Most recently, following several years of debate, the SEC issued a significant clarification of the rule, reversing the Second Circuit's hotly contested interpretation of it in AFSCME v. AIG. For the most part, the debates surrounding Rule 14a-8 - including in the latter case - have focused on the scope of the rule's exceptions. This paper, selected for reprinting in …

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Faculty Scholarship

Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …

Some Principles Require Principals: Why Banning “Conflicts Of Interest” Won’T Solve Incentive Problems In Biomedical Research, William M. Sage

Faculty Scholarship

This Article seeks to bring greater discipline to the analysis of conflicts of interest in biomedical research, and by doing so to reveal trends and tensions in the research enterprise that require a more deliberate and longer term response. By comparing tensions in biomedical research to those affecting indisputably "relational" professionals such as lawyers, this Article concludes that "conflict of interest" is the wrong language to describe most of these situations, and leads to the wrong solutions. Conflict of interest analysis in law derives from an image of professional obligation running directly from expert agent to dependent principal. Because a …

In Defense On Online Intermediary Immunity: Facilitating Communities Of Modified Exceptionalism, H. Brian Holland

Faculty Scholarship

In the ten years since its enactment, Section 230 of the Communications Decency Act of 1996 (CDA) has become perhaps the single most significant statute in the regulation of online content, and one of the most heavily criticized. Many early commentators criticized both Congress, for its apparent inability to craft the more limited statute it intended, and the courts, for interpreting the statute broadly and failing to limit its reach. Later commentators focus more clearly on policy concerns, contending that the failure to impose liability on intermediaries fails to effectuate principles of efficiency and cost avoidance.

This article takes the …

Can Lawyers Be War Criminals, Milan Markovic

Faculty Scholarship

This Essay will use the Torture Memo to illustrate how lawyers might find themselves implicated in war crimes. I will explore the contention that the Torture Memo is not only flawed legal advice but potential evidence of criminal conduct.

In Part I, I will address the flawed and reckless reasoning employed in the Torture Memo. I argue that whether or not Yoo and Bybee wrote the memorandum in good faith, the enterprise in which they were involved—providing legal cover for the abuse of detainees—was morally hazardous. I argue that there are some ends toward which lawyers should not direct their …

News Media As Mediators (Cardozo J. Conflict Resol.), Carol Pauli

Faculty Scholarship

This paper explores journalism as a potential method of conflict resolution. Part I compares the norms and practices of journalism to those of facilitative mediation. Part II draws additional parallels between some aspects of journalism and two other forms of dispute resolution: transformative mediation and adjudication. Part III suggests some areas for encouragement and some areas for caution as peace journalists import conflict resolution techniques into news reporting and writing.

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Faculty Scholarship

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …

Why Are Demonstrations Of Comprehensive Malpractice Reform So (At All) Controversial, William M. Sage

Faculty Scholarship

We are currently coming to the end of what I have described as the first malpractice crisis of the 21st century. Malpractice crises, which are defined by shrinking liability coverage and/or rising premiums, occur periodically. The insurance crisis that now seems to be ebbing was different in certain ways from its 20th century predecessors, but will almost certainly not be the last such period to arise. As interest in "solving" this crisis wanes for various reasons, we have to ask what we have learned from the last five years. In my opinion, this crisis has produced strong arguments for testing …

"Waterlocked": Public Access To New Jersey's Coastline, Timothy M. Mulvaney, Brian Weeks

Faculty Scholarship

This Article addresses the public trust doctrine as applicable to waterways and their shores, with a particular focus on emerging trends in the state of New Jersey. Several disparate factors have aggravated disputes between competing visions for waterfront areas. The U.S. population has increased much more in coastal than inland areas. The decline in heavy industry along with dramatic increases in real estate values have led to intensive development and redevelopment in waterfront areas, including the re-opening of areas functionally closed to the public for well over one hundred years. As communities have discovered the values of attractive waterfront areas, …