5033 research outputs found
Sort by
Obama\u27s Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights
Get PDFThis essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working within a broader professional and political culture that respects the role of other branches of government, including the prerogative of the courts to interpret the laws. To illustrate these insights, this essay examines the Obama administration’s shift in position on the federal Defense of Marriage Act (DOMA) and its subsequent articulation of a theory of equality that encompasses same-sex marriage. This episode should be understood, in part, as an act of presidential leadership over individual rights, though presidentially-instigated rights differ from judicially-derived ones. Recognizing this model of leadership doesn’t require embracing executive supremacy, but it does suggest we ought to emphasize institutional dynamics over party politics or social movements in explanations of constitutional change
The Costs of Trademarking Dolls
Get PDFProfessor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s “refusal to register” determination, it did so because it said Disney’s mark is a conceptually weak source indicator of “Disney” for dolls. This leaves open the possibility that Disney could build a stronger association between its mark and its dolls and eventually monopolize the term “Cinderella” as a mark for princess dolls. Professor Curtin’s article argues that leaving this opportunity open would be bad policy and should be precluded under a proper application of trademark law
Taxing & Zapping Marijuana: Blockchain Compliance in the Trump Administration Part 2
Get PDFLegalization of marijuana burdens the States with the responsibility of (a) monitoring the physical flows of marijuana through the supply chain (making sure the marijuana does not enter inter-state commerce; making sure it stays out of the hands of minors, etc.), and (b) monitoring the fiscal flows (making sure the proceeds of marijuana production do not end up in criminal hands).
The type of controls favored by the states are track and trace (TAT), or seed-to-sale (STS) systems. These systems are reasonably complex, as well as technology-intensive. Nevertheless, there are questions about whether they are adequate to the enforcement needs. Neither TAT nor STS fully satisfy the enforcement needs of the State. Simply stated, these systems leak at both ends, and in the middle. There are four basic fraud vectors open to criminal organizations seeking to exploit the standard marijuana supply chain. They are: • Front-end frauds – exploiting openings at point; • Cyber-attacks on the main commercial chain; • Sales suppression fraud; and • Back-end frauds.
We will develop these frauds and explore their prevention in sequence. This part considers the front-end frauds. This is the only section where the fraud prevention mechanisms are not derived primarily from VAT regimes
Basic (Non-Technical) Requirements – Electronic Monitoring Agreement for Zappers, Phantomware, and Other Sales Suppression Devices Appendix A
Get PDFThe State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0 is the State of Washington’s first judicially resolved case involving an automated sales suppression device. Months of negotiations led to a plea agreement and the State’s first electronic sales monitoring agreement (August 30, 2017). The taxpayer violated RCW 82.32.290 (4)(a) by knowingly possessing, and knowingly using a Zapper to suppress sales.
The penalties in this case were severe. Not only were all taxes, penalties, and interest lawfully due required to be paid, but as a Class C felony incarceration of up to 5 years, a $10,000 fine, or both were possible. An even a more severe penalty for the taxpayer involved prohibited her from participating in any business unless she:
… entere[d] into a written agreement with the department for the electronic monitoring of the business\u27s sales, by a method acceptable to the department, for five years at the business\u27s expense.
The Electronic Monitoring Agreement in this case is comprised of two parts – the basic agreement (Appendix A), and the technology requirements (Exhibit 1). This paper concerns Appendix A. Exhibit 1 was considered in an earlier article. This paper examines the provisions of the agreement, sets out the arguments and analysis of both sides, and offers suggestions that might be useful to others engaged in similar negotiations of this kind
The Search for Protection for Stateless Refugees in the Middle East: Palestinians and Kurds in Lebanon and Jordan
Get PDFMost Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in their territories. The Palestinian refugee/statelessness problem has been both the main driver and the main obstacle to the policies governing refugees in the region, so understanding how the Middle East deals with refugees who are also stateless requires a knowledge of the history and legal trajectory of Palestinian refugees in their host territories. The Middle East States that host the majority of Palestinian refugees are persistent objectors to the Refugee and Statelessness Convention norms for historical reasons; yet certain regional norms have developed that are consistent with these and they could provide more robust frameworks for providing protection to the significant populations of stateless refugees. This article examines the two main protracted cases, the Palestinians and the Syrian Kurds, to illustrate the problem and possibilities of the double jeopardy in which stateless refugee populations find themselves: neither recognized as stateless nor as refugees, with durable solutions and national status remaining out of reach for generation after generation
Greeted with a Shrug: The Impact of the Community Design System on United States Law
Get PDFIn an era of increased harmonization of intellectual property laws worldwide, the United States’ treatment of product design looks like an anomaly. Since the European Community Design System went into effect in 2002, advocates in the US have urged Congress to follow suit and adopt sui generis design protection, particularly for fashion. The US Congress, however, has resisted the call and left design protection to the existing standards of trademark, copyright and design patent law.
This Chapter explores some of the reasons that the Community Design System has had so little purchase in US debates over design. The rejection of design rights has resulted from both substantive and pragmatic concerns. The substantive concerns include the utilitarian tradition of US intellectual property law, with its ostensible preference for competition over exclusivity; as a practical matter, definitional problems, enforcement concerns, and political economy considerations have also played a role.
The absence of sui generis design protection does not, however, mean an absence of legal protection for design. Despite its practical and theoretical hurdles, there is broad intuitive appeal to the notion that creative designers deserve some form of protection against copying. At times, this has led courts to find outlets for design protection under copyright and trademark/unfair competition law. Design patent law, moreover, which saw little action through the twentieth century, has recently emerged as a popular form of protection for certain types of design. These developments have reduced the perceived urgency of the call for sui generis rights; together with the philosophical and practical concerns discussed above, they help to explain why the calls for a US version of the Community Design System have gone unanswered
The Law Officer (LO) and Compliance Officer (CO): Status, Function, Liabilities, and Relationship
Get PDFThe rise of Compliance officers (COs) has raised questions about their status in institutions and comparisons to the Legal Officers (CLOs). While both officers deal with law and its enforcement, their functions and positions differ in fundamental ways. And while LOs position is recognized, the status of COs is evolving. However, these differences are slowly becoming clearer.
1. While the LO’s function is to provide legal advice to the institutional client, the CO’s function is to (i) evaluate the institution’s activities before violations take place and (ii) help prevent violations of the law by the institution. The CO should detect and help prevent institutional violations, avoiding the need to defend the client. Therefore, COs and LOs might focus on different issues and provide different advice to clients
Research Handbook on Behavioral Law and Economics
No full textThe field of behavioral economics has contributed greatly to our understanding of human decision making by refining neoclassical assumptions and developing models that account for psychological, cognitive, and emotional forces. The field’s insights have important implications for law. This Research Handbook offers a variety of perspectives from renowned experts on a wide-ranging set of topics including punishment, finance, tort law, happiness, and the application of experimental literatures to law. It also includes analyses of conceptual foundations, cautions, limitations and proposals for ways forward.
The leading scholars of law, economics, and psychology featured in this Research Handbook use their insights to synthesize and contribute to the extant research at the intersection of behavioral economics and key areas of law, and to demonstrate methods for effective original research. With synthetic literature reviews and original research, conceptual overviews and critical perspectives, as well as topic-specific chapters, it provides a strong overview of this burgeoning field.Law and economics scholars, behavioral law scholars, and behavioral economists and psychologists dealing with law, judgement and decision-making will appreciate this Research Handbook’s dedication to applicable research, and judges, lawmakers, policy advocates and regulators will note its important practical implications for law and public policy.https://scholarship.law.bu.edu/books/1034/thumbnail.jp
Four Principles for Digital Expression (You Won\u27t Believe #3!)
Get PDFAt the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.”
Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized.
Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives - politics, child-rearing, work, health, shopping, and sex - involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom.
This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information.
We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley
Taming Title IX Tensions
Get PDFThe appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through the federal Department of Education (“DOE”), has historically been a critical player in defining Title IX obligations. However, Title IX has become increasingly politicized, with its enforcement largely dependent on who is in power in the Executive Branch. In this changing environment, where litigation from both victims and accused students is increasing, educational institutions must look beyond politics to determine how to develop disciplinary systems that fairly balance these two sets of competing rights. First, this Article distills the procedural due process case law and the actual protections it provides to accused students. It then argues that educational institutions should prioritize four key principles in order to create fair disciplinary systems: 1) The educational context must determine the scope of the procedural due process rights; 2) Sexual assault is not a sui generis disciplinary problem; 3) Educational institutions must calibrate the system to its remedies; and 4) Title IX must be factored in as a governmental interest. This Article proposes an Investigator/Board model that would satisfy these four principles and provide educational institutions with the tools to design and implement fair systems that are compliant with both Title IX and procedural due process