Digital Commons Network^™

From Trademarks To Brands, Devin R. Desai

Florida Law Review

The business world has moved from using trademarks—simple symbols identifying products—to brands—rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. These changes are the future of commerce. But trademark law has not kept pace with either.

This Article argues that because brands are governed by trademark law, the full realization of brands as information resources is hindered. Current trademark law is blinkered and confused, and …

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Florida Law Review

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons …

How To Think About Errors, Costs, And Their Allocation, Ronald J. Allen

Florida Law Review

There is an ongoing, robust debate about the structure of litigation, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all the people so that people may present claims that their rights have been violated has dominated academic discourse and has, perhaps, significantly influenced the structure of litigation. This conventional view—that the courts should be freely open to all—was dealt a blow by the Iqbal and Twombly decisions, which imposed greater gatekeeping responsibilities on the federal district courts. These decisions predictably provoked a storm of …

Pleading, Discovery, And The Federal Rules: Exploring The Foundation Of Modern Procedure, Martin H. Reddish

Florida Law Review

This Article provides a foundational structural analysis underlying the federal procedural system and explores the implications of that normative framework for the proper shaping of the federal system’s pleading and discovery rules. By analyzing and synthesizing the different elements of this underlying “litigation matrix,” the Article concludes that the Supreme Court’s “plausibility” test for pleading under Rule 8(a) of the Federal Rules of Civil Procedure represents an appropriate balance of the competing deep structural elements by imposing on a defendant the risks of unnecessarily burdensome pretrial discovery processes only when the complaint includes enough facts to suggest the viability of …

Is There Ever A Reason To Know? A Comparison Of The Contributory Liability "Knowledge" Standard For Websites Hosting Infringed Trademarked Content Versus Infringed Copyrighted Content, Rachel N. Agress

The Journal of Business, Entrepreneurship & the Law

The doctrines of contributory copyright liability and contributory trademark liability are both based on the confluence of basic tort liability and the policy goal of encouraging innovation and commerce. Because the two concepts sometimes conflict, courts have struggled to create a comprehensive body of law to reach a reconciliation. The doctrine of contributory copyright liability evolved through a rich body of case law that was subsequently supplemented by the legislatively enacted Digital Millennium Copyright Act (DMCA). In contrast, the doctrine of contributory trademark liability is a purely common law doctrine and has not witnessed legislative intervention. This article posits that …

Printing The Impossible Triangle: The Copyright Implications Of Three-Dimensional Printing, Brian Rideout

The Journal of Business, Entrepreneurship & the Law

Three-dimensional printing (3D printing), which allows users to digitize and replicate objects, is emerging as the next potentially disruptive technology. It is now possible to “print” intricate objects from furniture to food to human organs. Because 3D printing relies on computer-based blueprints in order to create physical objects, digital copyright infringement can now impact the physical world. The first example occurred in February 2011, when the world's first Digital Millennium Copyright Act (DMCA) takedown notice for a 3D printed object was sent. This article describes how 3D printing works in relation to copyright law, first by discussing this DMCA takedown …

Grave Consequences For Economic Liberty: The Funeral Industry's Protectionist Occupational Licensing Scheme, The Circuit Split, And Why It Matters, Lana Harfoush

The Journal of Business, Entrepreneurship & the Law

This article examines a current circuit split regarding the constitutionality of restrictive occupational licensing schemes that exist only for protectionist purposes. The Sixth Circuit in Craigmiles v. Giles and the Tenth Circuit case Powers v. Harris, are cases that revolve around similar facts but reach opposite outcomes. The two cases profile state funeral industry licensing restrictions. In both cases, the plaintiffs were penalized for selling caskets without state-issued licenses. Though licensing restrictions in the funeral industry affect most Americans as consumers, the scope of this circuit split reaches into nearly every industry. When businesses lobby governments to enact legislation, they …

A New Look For The Fashion Industry: Redesigning Copyright Law With The Innovative Design Protection And Piracy Protection Act (Idpppa), Brittany West

The Journal of Business, Entrepreneurship & the Law

Introduced in Congress in August 2010, the Innovative Design Protection and Piracy Prevention Act (IDPPPA) would amend 17 U.S.C. § 1301 to extend copyright protection to unique, distinguishable, non-trivial, and non-utilitarian fashion designs. The fashion industry in the United States is currently a $200 billion industry which is afforded limited intellectual property protection compared to foreign markets. This article explores the applicability of the existing Copyright Act to fashion designs and argues that the IDPPPA takes a narrow approach to eliminate ambiguity present in former bills attempting to amend copyright law. The IDPPPA would incentivize innovation, the ultimate goal of …

Violence Is Never The Answer, Or Is It? Constitutionality Of California's Violent Video Game Regulation, Laura Black

The Journal of Business, Entrepreneurship & the Law

In 2011, the United States Supreme Court ruled that the California law proscribing the sale of violent video games to minors violated the First Amendment and was, therefore, unconstitutional. Because this is the first video game case to be heard by the Supreme Court, the decision marked a significant milestone for the video game and entertainment industries. The beginning of this note will review the history leading up to the passage of the law as well as examine previous attempts by other states to regulate the distribution of violent video games to minors. Most importantly, this note will explore the …

Both A License And A Sale: How To Reconcile Self-Replicating Technology With Patent Exhaustion, Douglas Fretty

The Journal of Business, Entrepreneurship & the Law

Too many authorities view the transfer of patented self-replicating technology (SRT) as either a pure license or a pure sale. If a pure license exists, the patentee can impose post-transfer restrictions on the product's use, frustrating the policy goals of limited monopoly and free alienability of chattels. If a pure sale is triggered, however, the patentee loses all rights through patent exhaustion, allowing the purchaser to replicate the chattel at will. Sensitive to this latter argument, several courts have enforced Monsanto Company's “bag tag” seed licenses, which require Monsanto's farmer customers to destroy all second-generation seed. Urging a middle path, …

It Looks Like A Sale; It Quacks Like A Sale…But It's Not? An Argument For The Application Of The Duck Test In A Digital First Sale Doctrine, Matthew J. Turchyn

The Journal of Business, Entrepreneurship & the Law

What are you purchasing when you buy a print of Picasso's Guernica? The piece of paper it is printed on, several courts have replied. In these instances, courts have created a pragmatic legal fiction that allows for the transfer of a copy of a work while the author retains his or her rights and privileges under copyright law. Therefore, the purchaser of the Guernica print could resell his or her legally created print of the painting on the secondary market. This is the essence of the First Sale Doctrine of the U.S. Copyright Act. This practice breaks down, however, when …

The Praise Of Silly: Critical Legal Studies And The Roberts Court, James F. Lucarello

Touro Law Review

This Comment demonstrates that the Supreme Court is lying to you in its opinions. Why is it lying? The short answer to this question is quite simple: It is being silly.

There is nothing inherently wrong with being silly. In fact, some praise silliness, as a heightened and healthy understanding of the indeterminate world that incorporates our reality. Silliness, how ever, is only praise-worthy when it is understood and utilized purposefully. The silliness of most of the Justices on the Supreme Court, on the other hand, is a product of self-delusion and fundamentalism, which makes their silliness not silly at …

Counterparts In Modern Policing: The Influence Of Corporate Investigators On The Public Police And A Call For The Broadening Of The State Action Doctrine, Sean James Beaton

Touro Law Review

This Comment first provides an overview of the constitutional concerns that arise when the private police interact with criminal defendants, and the even graver issues that are present when this interaction also involves governmental law enforcement. Part III presents an in depth look at private police, with some detail focused specifically on corporate investigators who work in conjunction with public law enforcement. After assessing this ubiquitous group, Part IV harmonizes the private police and the state action doctrine. Because the state action doctrine has been classified as not being a "model of consistency" and a "conceptual disaster area," the analysis …

The Psychotherapist And The Attorney/Client Privileges As They Arise In Civil Rights Disputes, Lewis M. Wasserman

Touro Law Review

This article briefly reviews the elements of the psychotherapist-patient and attorney-client privileges and how these privileges may be waived in the context of federal civil rights litigation.

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Touro Law Review

The last Term of the Supreme Court addressed the constitutionally protected rights of criminal defendants not only at trial but at the post-conviction stage as well. The Court dealt with the defendant's rights to a speedy trial and effective assistance of counsel in Vermont v. Brillon; the claim was that these constitutional protections were substantially frustrated by underfunded public defender offices, thereby leaving the defendant improperly incarcerated for three years. The Court also considered a case wherein the State had utilized a jailhouse snitch to elicit inculpatory statements from a defendant in violation of his Sixth Amendment right to counsel. …

Federal Governmental Power: Preemption From The October 2008 Term, Eileen Kaufman

Touro Law Review

In a stunning trifecta, the Supreme Court ruled in favor of consumers and held that federal law did not preempt state consumer claims. The three cases concerned patients injured by drugs, smokers misled by false advertising, and borrowers victimized by predatory lending practices. These cases represent the latest battle in the ongoing war between consumer advocates and business entities over whether federal laws should be interpreted to erect barriers against state consumer protection laws.

Wyeth v. Levine raised the issue of whether approval of a drug by the F.D.A. preempts a state tort claim based on failure to warn. Altria …

Federal Governmental Power: The Voting Rights Act, Michael C. Dorf

Touro Law Review

No abstract provided.

Employment Discrimination Decisions From The October 2008 Term, Drew S. Days Iii

Touro Law Review

Several employment discrimination decisions were handed down this Term. They were Ricci v.DeStefano (Title VII); Gross v.FBL Financial Services, Inc. (Age Discrimination in Employment Act); AT & T Corp. v. Hulteen (Pregnancy Discrimination Act); and 14 Penn Plaza L.L. C. v. Pyett, which concerned the impact of arbitration agreements upon the reach of federal employment discrimination laws.

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Touro Law Review

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional.

The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court. But when you start looking for …

Section 1983 Litigation: Post-Pearson And Post-Iqbal, Karen M. Blum

Touro Law Review

The Supreme Court's decision in Pearson v. Callahan marked a significant change in the structure of the analysis to be performedin the adjudication of the qualified immunity defense in§ 1983 litigation. Prior to Pearson, the Court required a mandatory two-step approach for the qualified immunity analysis. Whenever qualified immunity was raised in response to an alleged constitutional violation, the lower courts were instructed that the disposition of the qualified immunity issue required the court to first address the merits question. Under Saucier v. Katz, the courts were required first to decide whether the complaint stated a violation of a constitutional …

A Passion For Justice, Charles A. Reich

Touro Law Review

What makes a good judge or justice? The public has a need to know. But simplistic labels, such as "activist," "liberal" and "conservative," are both meaningless and misleading. Perhaps aformer law clerk can offer a different perspective.

I served with David J. Vann as law clerk to Justice Hugo L.Black during the momentous 1953 Term of the Supreme Court. This was the year when Brown v. Board of Education was decided. It was also the year when Chief Justice Vinson died and was replaced by the Governor of California, Earl Warren. And it was also a year in which the …

Table Of Contents

Touro Law Review

No abstract provided.

Masthead

Touro Law Review

No abstract provided.

“From Concern To Caring: A Journey To Understanding Biblical Charity”, Charles Froh

Theological Symposia

Dr. Froh presents what the Biblical Charity Institute is and what it does.

Justice As Welcome, Kurt Crays

Theological Symposia

Lutheran Immigration & Refugee Services makes a presentation on what they do and who they are trying to help.

Cost Efficiency Estimations And The Equity Returns For The Us Public Solar Energy Firms In 1990–2008, Chris Kuo

Faculty Publications and Presentations

This paper provides a direct estimate of the cost efficiencies of firms in the US solar energy industry. It suggests that the cost efficiency in the industry is associated with the risk-bearing behaviour of firms. Less efficient firms maintain low price-cost margins and high labour–capital ratios in order to compete with their efficient peers. The study then establishes the linkage between cost efficiency and stock returns. It shows that the change in cost efficiency, rather than cost efficiency itself, possesses a stronger explanatory power for stock returns. A buy-and-hold strategy for stock portfolios of different efficiency levels is then analysed. …

Life Lessons From Finance Guru Leon Cooperman, Jill Rodrigues

Featured News Story

Wall Street legend shares the secrets of his success at Roger Williams University Leadership Institute lecture.

Phoenix, 2012-09-19, Student Life

Phoenix

The Phoenix is a student newspaper published at Governors State University since August 2002. The newspaper features student reporting, opinions, news, and photos.

Aramark Praises Winthrop Food Service Director For Her Management Style, Winthrop University

Winthrop News 2012

• At Winthrop, Yurkovic oversees the managers and employees who work in Thomson Café, Markley’s food court, Starbucks, Einstein’s Bagels, Subway, Eagle Express, concessions and catering.
• ARAMARK officials praised Yurkovic for challenging her management team for providing quality service to her Winthrop clients and for her work in adding Camp Thunderbird as a new client in February.

The Daily Egyptian, September 19, 2012, Daily Egyptian Staff

September 2012

No abstract provided.