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Trump Really Is Too Small: The Right to Trademark Political Commentary
Get PDFCan you register a famous person’s name as your trademark? The Lanham Act seems to say no, and the PTO interprets this to mean, no, never, no matter what. The Federal Circuit says, “yes, you can,” at least as applied to marks containing political commentary. 15 U.S.C. § 1052(c) provides, in pertinent part, that the PTO must deny federal registration to a trademark if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent….” Earlier this year the Federal Circuit declared this law unconstitutional in violation of the First Amendment, at least as applied to a mark that criticizes defeated former President Donald Trump by announcing, “TRUMP TOO SMALL.” Under Supreme Court precedent, the court was undoubtedly correct, and likely should have gone further to declare the provision facially invalid as overbroad. The government now suggests that section 2(c) is necessary to protect free speech, because granting applicants trademarks in political commentary interferes with others seeking to say such things. This fear is unfounded and does not save the constitutionality of the provision. In fact, section 2(c) fails to address the real First Amendment concerns with the Lanham Act: the potential for politicians themselves to monopolize speech critical or complimentary of themselves through trademark registration. Indeed, Section 2(c) results in de facto viewpoint discrimination because it allows politicians to veto marks containing their names that lodge criticism, while registering marks containing their names of which they approve. These free speech issues with trademark registration highlight the limitations of the Supreme Court’s, rigid, categories-based First Amendment jurisprudence, which focuses myopically on the negative rights of the speaker, without weighing the way in which enforcement of those rights may burden the free speech of others and result in less free speech in society. This problem is particularly odious in the context of intellectual property, where speakers are not only asserting the right to speak, but also the exclusionary right to prevent others from saying the same thing. A solution to the problems with trademarking political speech already lurks in our trademark laws and can be implemented without offending the First Amendment: the “failure to function” doctrine. Political slogans, no matter who wields them, and no matter whether they are critical or complimentary, do not function primarily as source indicators. There is no reason grounded in legitimate trademark policy to protect such marks. The fact that they are protected now is yet further indication that the Lanham Act has evolved far beyond its intended purpose as a consumer protection and fair-trade statute into a species of intellectual property that threatens free speech by granting ownership in mere words
Standing in the Age of Data Breaches: A Consumer-Friendly Framework to Pleading Future Injury and Providing Equitable Relief to Data Breach Victims
Get PDFData breaches have rapidly increased in volume in the United States since the beginning of the twenty-first century. As entities across the United States have increasingly stored personally identifiable information (PII) in online databases, cybercriminals have developed tools to steal and sell stolen PII. This note explores the devastating consequences felt by data breach victims and the uphill battles victims often face in finding legal remedies. Although data breach victims may be at risk of identity theft, they are often barred from taking legal action against the entity that breached their data due to the “injury in fact” requirement under Article III of the Constitution. Data breach victims who have been notified of a breach but do not have proof that their PII has been used by a third-party must plead future injury as the result of the breach, which is an incredibly difficult task. In 2021, in McMorris v. Carlos Lopez & Assocs., LLC., the Second Circuit Court of Appeals adopted a three-factor test in which data breach victims could plausibly plead a claim for future injury as the result of a breach. However, the court’s decision still puts significant restrictions on data breach victims, and alarmingly, there is no federal data breach notification legislation in place in the United States. This note argues that the test adopted in McMorris must be modified, and federal data breach notification legislation must be implemented in order to give data breach victims a fair chance of being granted standing and a fair chance of recovery. A modified, more rigid test that considers the type of data that has been breached, whether the breach was a targeted attack, whether data has already been misused, and the amount of time that data has been exposed would accurately gauge whether victims are at an increased risk of future harm and help ensure more equitable grants of standing for future injury claimants. Moreover, federal data breach notification legislation that allows for recovery of reasonable expenses incurred while attempting to protect oneself from future injury would allow data breach victims to recover for preventative actions taken after being notified of a breach even if they may not ultimately be granted standing to sue
Inherently Unequal: The Effect of Structural Racism and Bias on K-12 School Discipline
Get PDFStructural racism is deeply rooted in our nation\u27s history and often manifests as discrimination and inequality in critical facets of life in the United States, including education. This Article explores the impact of structural racism and bias on discipline in the K-12 public school setting. Discriminatory bias-based decision-making and school discipline policies have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. US Department of Education data shows that Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as white students in the same grade. In Brown v. Board of Education, the Supreme Court held that separate educational facilities are inherently unequal and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. When Black students are disciplined more harshly than their white counterparts, this too is inherently unequal and violates the constitutional right to an equal education
Enough Excuses on Drug Importation: A New Transnational Paradigm for FDA Regulation and Lower US Drug Prices
Get PDFThe US Food and Drug Administration (FDA), which enforces drug safety laws, asserts that under most circumstances the importation of prescription drugs is illegal. Yet because of high drug prices in the United States, over the past couple of decades, tens of millions of Americans have imported prescription drugs for personal use. For many, this was their only way to afford them. A unique array of federal laws, regulations, and policies, including the de facto decriminalization of the practice of personal drug importation, have in effect permitted personal drug importation. The same exceptions, however, are not available for commercial drug importation, also called wholesale or parallel importation. While personal drug importation has helped many people afford prescription drugs and could help even more with the correct use of executive authorities and public support, a longer-term solution to high drug prices in the US may require larger, commercial-scale drug importation. Specifically, legislative reforms to allow for the importation of prescription drugs for commercial use from the European Union (EU) would lead to much lower prices on patented, brand-name drugs with no additional risk to public health. That is because drug prices are far lower in Europe than in the United States and the EU’s drug supply is safer. The FDA and the pharmaceutical industry are vehemently opposed to such a policy. They wrongly conflate the importation of lower-cost drugs with counterfeit drugs and rogue online pharmacies and perpetuate the notion that the FDA remains the world’s regulatory “gold standard” in drug safety and that any drug without FDA approval or outside the US drug supply chain is unsafe. These are the primary excuses used to stop drug importation. The focus today among importation proponents is on state-based Canadian wholesale drug importation programs, which are permissible under current law, but the FDA has yet to approve them. They could help, but Canada is too small for large-scale drug importation. Drug regulatory scholars Thomas J. Bollyky and Aaron S. Kesselheim propose using importation to alleviate generic drug shortages, which can also help prevent generic price spikes, but they do not address the biggest problem: high patented drug prices. Such proposals are captive to the prevailing regulatory paradigm of drug safety that the FDA’s traditional role must be maintained to ensure the safety of the US drug supply. The novelty of this Note rests in its demonstration that the FDA’s mission is better served by a new regulatory paradigm that relies on the international harmonization of drug standards, and recognition that the EU and European Medicines Agency may have eclipsed the FDA’s “gold standard” as a new “platinum standard” for drug safety. It recommends ending the pharmaceutical industry’s distribution monopoly that causes a captive marketplace that keeps domestic drug prices high
Good Intentions with Bad Consequences: Post-Bruen Gun Legislation in New York
Get PDFIn response to a changing landscape for firearm licensing, New York State adopted training requirements for handgun ownership and sensitive place laws. Prior to obtaining a handgun license, training requirements ensure that applicants will be able to safely use a firearm. Upon obtaining a firearm license, sensitive place laws limit where a licensed individual may or may not bring their firearm, as a preventative measure. A violation of a sensitive place law could not only bring revocation of one’s license to carry a firearm, but also felony charges. Although well-intentioned by New York State, unintended consequences attach. This Note explores in depth the ways through which training requirements and sensitive place laws will have detrimental impacts on racial minority individuals, along with those in low-income communities. After exploring the dangers that training requirements and sensitive place laws pose, this Note suggests modifications to the laws. These modifications entail decriminalizing the act of bringing a firearm into a sensitive place and lowering the costs for completing the training requirements, utilizing government subsidization and remote lectures to make training more accessible financially
In the Duty Wars, I\u27m Switzerland
Get PDFThe “duty wars” have been raging among tort scholars for some time, sparked by the Third Restatement’s deflationary approach to the duty element of the negligence cause of action. Defenders of the traditional approach to duty insist that it is necessary to ensure that tort law stays on the right side of the boundary between public and private law insofar as the negligence tort recognizes a relational conception of rights owed among individuals. The worry is that negligence shorn of the duty element becomes an instrument of efficiency or deterrence rather than recognizing obligations. Relatedly, the approach pioneered by the California Supreme Court, starting in the 1960s, using open-ended policy factors to determine the existence of a duty, has led to an expansionary trend in tort liability. Working with Aaron Twerski in our Torts casebook, including the incorporation of several recent and important cases, has forced me to reckon with my view on the duty wars. In this Article, I acknowledge the foundational significance of the moral relationship between injurer and victim, as emphasized by private law theorists, but argue for a way of understanding the content of duties among the parties in a way that reflects societal interests as well as the interests of the parties to the dispute. In this way, I suggest a middle ground or stance of neutrality in the duty wars
The Constitutional Claim to Individuation in Tort — A Tale of Two Centuries, Part 2
Get PDFThis Article—drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School—draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who “had their feet firmly planted in two different centuries—one foot in the nineteenth century and the other in the twenty-first century.” This Article takes inspiration from Twerski’s “two centuries” metaphor to examine the rise of constitutional objections by defendants to certain doctrinal innovations that attempt to adapt tort law to modern ways of causing, identifying, and redressing harm. Many of these objections can be understood as claims that defendants are constitutionally entitled to a body of tort law that remains anchored in the nineteenth century, notwithstanding some judges’ desire to drag tort into a more modern, regulatory modus operandi. For reasons stemming from tort law’s distinctive role in our classical liberal system of government, this Article argues that courts should decline defendants’ invitation to lock tort law in anachronistic amber
Out of Captivity: Preventing Captive Audience Meetings in the Age of National Labor Relations Board Flip-Flopping
Get PDFCaptive audience meetings are one of the most effective tools available to companies fighting union campaigns. This tactic, despite being inherently coercive, is currently legal. In April 2022, the General Counsel of the National Labor Relations Board released a memorandum stating that the Board intends to consider these mandatory meetings illegal, arguing that the right to refrain embraced by the anti-labor Taft-Hartley Act should be applied here in a pro-labor context. While this ban would be a positive shift in policy for labor rights, due to frequent flip-flopping by the Board, it would almost certainly be undone by the next anti-union administration. This Note explores the futility of banning captive audience meetings through agency action in an era of frequent, politicized policy reversals. As these meetings post a direct threat to a worker’s right to choose whether or not to unionize, a solution with more staying power is warranted. In lieu of action by the Board, this Note proposes a legislative ban on captive audience meetings that would not be easily reversed under an administration less friendly to labor