Law Commons^™

What Happens If We Call Discrimination A Tort?, Anthony J. Sebok

Online Publications

Sandra Sperino’s Let’s Pretend Discrimination is a Tort, 75 Ohio St. L.J. 1107 (2014), argues that if the United States Supreme Court is really serious about treating Title VII and other federal anti-discrimination laws as nothing more than extensions of tort law, then the current Supreme Court’s anti-plaintiff approach is insupportable. Sperino does not hide her personal disapproval of the current trend to “tortify” federal anti-discrimination law (especially Title VII), but she recognizes that the fight against discrimination may have to be fought “through any means necessary” (to quote Malcolm X, not Sperino). So her article is a bit …

Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert

Articles

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that …

The Precarious Fate Of Homosexual Emojis, Margaret Mary Ochner

AELJ Blog

Shigetaka Kurita had a goal in mind when he set out to create the emoji: to invent a quick and simple way to express emotion without words. Emojis are defined as “[a] small digital pictograph used in electronic communication to express a wide range of emotion and ideas” and are based on Japanese characters. In the past several years, emojis have become popular on many platforms, such as Apple and Android phones, as well as social media sites like Twitter and Facebook. Recently, users have embraced Apple’s decision to add new emojis, such as those depicting different races and homosexual …

Government Regulation Of Daily Fantasy Sports Is On The Way: On The Heels Of The Employee Scandal Within Draftkings And Fanduel, Nevada Rules That Betting On Daily Fantasy Sports Is Gambling, Leo Ernst

AELJ Blog

On Thursday, October 15, Nevada regulators took the plunge to combat Daily Fantasy Sports (“DFS”) sites like DraftKings and FanDuel and ruled that DFS gaming is a game of chance rather than a game of skill. As such, the Nevada Gaming Control Board has mandated that DFS sites obtain gambling licenses in order to operate in Nevada.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 24, 2015. The original post can be accessed via the Archived Link button above.

Forever 21 Under Fire Again… This Time By H&M!, Heather Brodsky

AELJ Blog

Merely a few weeks ago we discussed a trademark infringement suit initiated by Adidas against Forever 21. Forever 21 had allegedly copied Adidas’s famous three-stripe trademark. The infamous fast fashion company is now in trouble with a brand that many consider a close competitor: H&M.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 24, 2015. The original post can be accessed via the Archived Link button above.

Reply Brief For Plaintiff-Appellant Guy Zappulla, Betsy Ginsberg

Amicus Briefs

Betsy Ginsberg filed a Reply Brief for Plaintiff-Appellant Guy Zappulla.

Leaked Sony Emails And The Nfl’S Continued Suppression Of Concussion Dangers, Kenneth Costa

AELJ Blog

At the beginning of September, Sony Pictures Entertainment released a trailer for Concussion, a movie that paints a scathing picture of how representatives of the National Football League (NFL) attempted to cover-up and discredit the research of Dr. Bennet Omalu, who discovered chronic traumatic encephalopathy (CTE).

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 6, 2015. The original post can be accessed via the Archived Link button above.

Inter Partes Reviews The New Investment Strategy?, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Texas hedge fund manager and founder of Hayman Capital Management, J. Kyle Bass, has riled up the pharmaceutical industry. Bass formed the Coalition for Affordable Drugs, an organization that is the lead petitioner in several challenges to Orange Book-listed patents—a list of approved drug products with therapeutic equivalence evaluations (i.e. generic drugs)— which he believes have little value other than to drive up the prices of prescription drugs. Bass and the Coalition filed 36 Inter Partes Review (IPR) petitions by challenging patents and betting against the company’s stocks. The patent reviews were created by the 2011 America Invents Act as …

Looted Cubaism: Premature Hopes Of Restitution Thanks To Détente In Cuban American Hostilities, Diana Poussin

AELJ Blog

Recent claims of conciliatory Cuban-American relations have dominated the news and the illusions of those with personal or commercial hopes for the island. This new dialogue has led families harmed and impoverished by the looting and nationalization of property after the Cuban Revolution of 1959 to seek legal advice concerning the restitution of their stolen treasures.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 6, 2015. The original post can be accessed via the Archived Link button above.

Patent Markets: A Framework For Evaluation, Michael J. Burstein

Articles

Patents have become financial assets, in both practice and theory. A nascent market for patents routinely produces headline-grabbing transactions in patent portfolios, and patent assertion entities frequently defend themselves as sources of liquidity essential for a patent market to function. Much of the discourse surrounding these developments assumes that a robust, liquid market for patents would improve the operation of the patent system. In this Essay, I challenge that assumption and systematically assess the cases for and against patent markets. I do so by taking seriously both the underlying innovation promotion goal of the patent system and the lessons of …

Are Threats Made On Social Media A True Threats Exception To The First Amendment?, Elana Herzog

AELJ Blog

As the popularity of social media continues to grow, people are increasingly using it to express themselves. While expressing oneself on social media sites is a documented right as per the First Amendment, what is less clear is whether threats made on social media are permitted under the First Amendment, or whether they constitute the “true threats” exception that serves as a limitation on First Amendment rights. Put differently, at what point are threats made on Facebook no longer a rant, but a true threat that is not covered by one’s First Amendment rights?

This post was originally published on …

Initial Interest Confusion Is Still Kicking In The Ninth Circuit, Kerrijane Wennberg

AELJ Blog

It looks like Amazon.com (Amazon) and Multi Time Machine (MTM) may be going to trial, as the Court of Appeals for the Ninth Circuit recently reversed a district court’s summary judgment in a trademark infringement suit against Amazon. In a split decision, the appeals court found that a jury could conclude the online marketplace has created a likelihood of confusion based on the theory of initial interest confusion. This decision is a controversial one, as a number of legal scholars, not to mention courts, have rejected the initial interest confusion doctrine.

This post was originally published on the Cardozo Arts …

Forever 21, Forever Problematic: Forever 21 Is Slammed With Yet Another “Copycat Design” Trademark Infringement Lawsuit, Sherry Wilson

AELJ Blog

Adidas recently filed a lawsuit against Forever 21, Inc. and Central Mills, Inc., in which Adidas claims that Forever 21 and Central Mills allegedly infringed Adidas’s famous three-stripe trademark. The lawsuit was filed in federal district court in Portland, Oregon, where the German sportswear giant’s North American headquarters are located.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 12, 2015. The original post can be accessed via the Archived Link button above.

Acus - And Administrative Law - Then And Now, Michael Herz

Articles

The Administrative Conference of the United States (ACUS) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ACUS 2.0 …

The Supreme Court's Civil Assault On Civil Procedure, Alexander A. Reinert

Articles

No abstract provided.

Brief For Plaintiff-Appellant Guy Zappulla, Betsy Ginsberg

Amicus Briefs

Betsy Ginsberg filed a brief on behalf of Appellant Guy Zappulla.

Reply Brief For Plaintiff-Appellant, Alexander A. Reinert

Amicus Briefs

Plaintiff-Appellant Daniel McGowan submits this reply in response to the Brief for Defendants-Appellees United States of America and Tracy Rivers (“Defs.’ Br.”). Defendants concede that Plaintiff was placed in solitary confinement without any statutory or regulatory authorization and solely because he authored a blog post, speech protected by the First Amendment. Nonetheless, Defendants maintain that there is no remedy for this violation of Mr. McGowan’s constitutional and common law rights. None of the reasons offered by Defendants for their position is compelling or supported by relevant law. When one steps back and considers Defendants’ brief as a whole, it is …

Al Warafi’S Active Hostilities, Deborah Pearlstein

Online Publications

As Marty Lederman’s earlier post explains, a D.C. district court is now considering the habeas petition of Guantanamo detainee Mukhtar Yahia Naji al Warafi, found in an earlier habeas case to be a member of the Taliban’s armed forces, who argues that because “hostilities” between the United States and the Taliban have ceased, the domestic statute (the AUMF) on which the United States has relied no longer authorizes his detention. Marty and I are, I believe, in substantial agreement about most aspects of the case. (And thanks to Marty for the link to my article, where I’ve written about the …

Greenpeace[Ful?] Harm To Cultural Property, Whitney Bren

AELJ Blog

The Nazca lines are a celebrated example of cultural property. Located in the Nazca Desert in southern Peru, the Nazca lines are a series of ancient designs called “geoglyphs” that were created by removing small, reddish pebbles to expose the white ground underneath. These designs were created by the Nazca culture between 400 and 650 AD, and were recognized as a UNESCO World Heritage Site in 1994. The designs include animals, trees, and flowers. Moreover, the unique climate of the Nazca Desert has allowed for the natural preservation of these early forms of art: since the area is relatively isolated …

Shoulder Surfing: A Fourth Amendment Violation, Nicole Pozzi

AELJ Blog

With the advent of social media, people have taken their personal lives online. With photos, wall posts, “likes,” and friend requests, a plethora of information detailing the innermost thoughts of a person are available with just a username and password.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 24, 2015. The original post can be accessed via the Archived Link button above.

Motion And Brief Of Civil Procedure Law Professors As Amici Curiae In Support Of Petitioner, Alexander A. Reinert

Amicus Briefs

Amici curiae are scholars with expertise in civil procedure who have an interest in the proper interpretation of federal pleading standards following Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Amici file this brief because the decision by the Court of Appeals for the Ninth Circuit in this case cannot be squared with proper pleading doctrine and goes far beyond any reasonable interpretation of this Court’s holdings in Twombly and Iqbal. Certiorari is warranted to correct the Ninth Circuit’s application of these cases and to clarify the rampant confusion …

Google Autocomplete And The Potential For Defamation, Kacy Popyer

AELJ Blog

Autocomplete is a feature provided by many search engines that uses an algorithm to automatically display search suggestions to fill queries as information is inputted. These search suggestions are based on a user’s search history, popular search queries, and a number of other objective factors. Autocomplete is an extremely useful search tool, as it may accelerate and refine searches in ways users would not expect. However, despite its benefits, autocomplete has been the subject of controversy. Autocomplete can be potentially defamatory if your name or company is autocompleted with something negative. Even assuming the negative information is false, the suggestion …

Food Plating And Trade Dress: Can A Chef Claim Trademark Protection For A Signature Dish?, Cathay N. Smith

AELJ Blog

In America’s burgeoning foodie culture, food is increasingly being embraced as art. At many high-end restaurants, food is intricately created, carved and designed, and placed with artistic precision and perfection on each plate before being delivered to diners. Color combinations, along with textures, layering, and placement are all considerations a chef uses to create artistically designed dishes. Recently, The Drawing Center in Soho, New York City exhibited the work of Ferran Adria, chef of famed Spanish restaurant El Bulli, demonstrating that Adria’s work at El Bulli had “transcended mere hospitality” and that Adria had achieved the status of artist. But …

Collective Bargaining And Student Athletes, Zachary Beal

AELJ Blog

Recently, Edward O’Bannon, at the age of forty-one and working as a car salesman in Las Vegas, recognized himself in a video game. He became distressed and concerned that his likeness was being used without his consent—and without any form of compensation. Mr. O’Bannon is a former student-athlete who led the University of California, Los Angeles (“UCLA”) to victory in the 1995 National Collegiate Athletic Association (“NCAA”) championship in his senior season. Mr. O’Bannon was considered a fantastic player in the tournament and a “consensus all-American.” In turn, he was drafted ninth by the New Jersey Nets, but his professional …

Why The Current Trademark Disparagement Analysis Needs To Be Revamped, Stella Silverstein

AELJ Blog

In June 2014, the Trademark Trial and Appeal Board (TTAB) shocked football fans everywhere when it granted a petition to cancel six Washington Redskins trademark registrations. Filed by Navajo Amanda Blackhorse and four other Native Americans, the petition sought to cancel the registrations on the grounds that they disparaged the Native American people; all six of the registrations included the term “redskin”, and two included the team’s logo (a Native American chief).

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 7, 2015. The original post can be accessed via the Archived Link …

Congrats To The New Aelj Editorial Board For Volume 34!, Cardozo Arts & Entertainment Law Journal

AELJ Blog

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 24, 2015. The original post can be accessed via the Archived Link button above.

“Woman In Gold”: Hollywood Explores The Restitution Of Nazi-Stolen Art, Erica Wolf

AELJ Blog

The Nazi art confiscations and forced sales that occurred during World War II have been described as “the greatest displacement of artwork in human history.” It has been estimated that between the years of 1933-1945, German forces, along with other Nazi agents, seized or forced the sale of approximately one-fifth of all Western art that was in existence at the time, a total of nearly 650,000 works then worth approximately $2.5 billion. Today, the looted art is valued at approximately $20.5 billion, with more than 100,000 works of art still unaccounted for.

This post was originally published on the Cardozo …

Use Of Copyright Law To “Take Down” Revenge Porn, Maria Orellana

AELJ Blog

The past year has shown that for many female celebrities, privacy in their personal photos and videos might be one of the few luxuries that they cannot afford. In late August of last year, hundreds of nude images of alleged household names, such as Jennifer Lawrence, were released on the Internet without the women’s permission. But celebrities are not the only targets of this severe invasion of privacy. Every year, tens of thousands of non-celebrities around the world have had their private photos posted on the Internet without their permission. Though undeniably a terrifying and absolutely devastating experience for most …

The U.S. Is Net-Neutral. The Rest Of The World? Maybe Not So Much., Michael Bernstein

AELJ Blog

Last month, the Federal Communications Commission (“FCC”) voted to regulate Internet service as a public utility. This move helps ensure that Internet service providers do not block content or divide the web into fast lanes for Internet and media companies that can afford it and slow lanes for everyone else.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 20, 2015. The original post can be accessed via the Archived Link button above.

Patent Troll Loses Twice In Court; Meanwhile, A Patent Reform Bill Is Reintroduced, Ellii Cho

AELJ Blog

The phrase “patent troll” has been an Internet buzzword for almost a decade but the search for and implementation of effective tools to curb patent trolling is undoubtedly an ongoing endeavor. This blog post surveys current efforts to restrain patent trolling by the courts, lawmakers, and regulators.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 16, 2015. The original post can be accessed via the Archived Link button above.