Law Commons^™

Beyond Trademark Use, Stacey Dogan

Faculty Scholarship

For several years now, the question of “trademark use” has taken center stage in the debate over trademark liability of online intermediaries. Doctrinally, the debate addresses whether the Lanham Act places any limit on the types of “use” of trademarks that can subject one to a claim of infringement. The real conflict, however, has occurred at the normative level: whatever the Lanham Act says or does not say about trademark use, should trademark law limit the definition of infringement to situations in which the defendant has used the mark to brand its own products?

The Second Circuit appears to have …

Cyber Warfare And Precautions Against The Effects Of Attacks, Eric Talbot Jensen

Faculty Scholarship

Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and …

The Pornographic Secondary Effects Doctrine, John Fee

Faculty Scholarship

No abstract provided.

Evil Has A New Name (And A New Narrative): Bernard Madoff, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Objectives And Principles Of The Trips Agreement, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement.

Presented at the 2009 Santa …

Virtual Intermediaries Ii - Canadian Solutions (Drop Shipments) Compared With Us, Japanese & Eu Approaches, Richard Thompson Ainsworth

Faculty Scholarship

Virtual travel agents are opportunistic internet-based travel agents. They are intermediary businesses that create mutually beneficial three-party transactions that secure accommodations for a traveler that: (a) meet the basic needs of the traveler (at a discount), (b) fills vacant room for accommodation retailers with guests that pay below market, but above standard costs, and (c) profit from the extra cash, the margin in the transaction.

The virtual intermediary’s eye is always on the discount and the cash flow. One of the things that catches their attention are the accommodation taxes which they collect from the traveler in advance and remit …

Copyright For A Social Species, Robert E. Suggs

Faculty Scholarship

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry.

The expressive culture that copyright protects …

Testimony On H.R. 1924, The Tribal Law And Order Act Of 2009 Before The Subcommittee On Crime, Terrorism And Homeland Security United States House Of Representatives, 111th Congress, 1st Session (December 10, 2009), Barbara L. Creel

Faculty Scholarship

Professor Creel testifies that incarceration alone cannot address the problem of crime in Indian Country and advocates for additional funding and greater access to effective substance abuse treatment programs, education and job training, and culturally-based re-entry programs. Creel's testimony also emphasizes that Native American defendants in tribal court should be afforded the right to counsel, including the right of court appointed counsel, and due process of law. Tribal Law and Order Act 2009: Hearing on H.R. 1924 Before the Subcomm. on Crime, Terrorism and Homeland Security, 111th Cong. (2009) (statement of Barbara Creel, Assistant Professor of Law, University of New …

Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge

Faculty Scholarship

Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.

Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …

The New Concept Of Loyalty In Corporate Law, Andrew S. Gold

Faculty Scholarship

No abstract provided.

When Immigration Borders Move, Huyen Pham

Faculty Scholarship

With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws, enacted at all levels of government, that require proof of legal immigration status in order to obtain a driver's license, a job, rental housing, government need-based assistance, and numerous other essential benefits. Unlike the fixed physical border, these laws require proof of immigration status at multiple, moving points within the country's interior and are triggered through everyday transactions; if unable to prove her legal status, a person is denied the restricted benefit. If a person is denied access to multiple essential benefits, then she …

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Faculty Scholarship

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

A Bright Idea From The Black Canyon: Federal Judicial Review Of Reserved Water Right Settlements, Reed D. Benson

Faculty Scholarship

Under the reserved water rights doctrine, lands the federal government has designated for a particular purpose have rights to sufficient water to fulfill that purpose. Reserved water rights are also known as Winters rights after the doctrine's foundational case, in which the United States Supreme Court held that Congress must have intended to reserve sufficient water to irrigate an Indian reservation although the treaty establishing that reservation said nothing about water.

How Placebo Deception Can Infringe Autonomy, Adam J. Kolber

Faculty Scholarship

No abstract provided.

An Information Prescription For Prescription Drug Regulation, Anita Bernstein, Joseph Bernstein

Faculty Scholarship

No abstract provided.

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Midnight Deregulation, Jack M. Beermann

Faculty Scholarship

Research has revealed a significant increase in regulatory activity in the last quarter of the final year of U.S. presidential administrations, with a great deal of regulatory activity occurring in the period between the election and the inauguration of the new president. Despite the expressed intent to minimize midnight regulation, the volume of regulatory activity at the end of the administration of George W. Bush spiked in a magnitude similar to that of other recent transitions. There was, however a difference. While the end of the administrations of Jimmy Carter and Bill Clinton exhibited the issuance of new regulations that …

Law's Expressive Value In Combating Cyber Gender Harassment, Danielle K. Citron

Faculty Scholarship

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they should be sexually assaulted and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experience, deeming it harmless teasing that women should expect, and tolerate, given the Internet’s Wild West norms …

Another Interdisciplinary Collaboration—This Time With A Professor Of German!, Antoinette M. Sedillo Lopez

Faculty Scholarship

The University of New Mexico International Studies Institute has a relationship with the German government in which the Institute runs a summer program at a castle near Dusseldorf known as Schloss-Dyck. In summer 2010, I am going to have the privilege of teaching in the program with a Jason Wilby, a UNM visiting Professor of German. We put a joint proposal together. He will teach about the culture, political environment and constitutional framework right after the Weimar Republic was created as a result of WWI. I will teach about the Nuremberg trials, with a particular focus on the trial of …

The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson

Faculty Scholarship

The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

No abstract provided.

Patent Examination Priorities, Michael J. Meurer

Faculty Scholarship

Measures that discourage excessive patenting and claiming, propose shared examination responsibilities, and increase staffing all have potential to raise examination quality and alleviate the patent application backlog. So far these measures have been too limited to have much impact, and there is insufficient evidence to reliably judge their effectiveness. In this Article, I consider a different approach to examination reform. I take as given a significant scarcity of examiner time, and I ask how the PTO should set examination priorities. In other words, how much of their eighteen hours should examiners devote to the various tasks they are expected to …

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven Dean

Faculty Scholarship

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

The Costs Of Liquidity Enhancement: Transparency Cost, Risk Alteration, And Coordination Problems, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Decision Of The Corporate Special Litigation Committees: An Empirical Investigation, Minor Myers

Faculty Scholarship

No abstract provided.

Plausibly Pleading Personal Jurisdiction, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

Pecuniary Reparations Following National Crisis: A Convergence Of Tort Theory, Microfinance, And Gender Equality, Anita Bernstein

Faculty Scholarship

No abstract provided.

Originality, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

2009 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.