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On the Development of the Local Criminal Legal Systems in Puerto Rico & American Samoa
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Panel 2: Trademark Law
Get PDFBut that\u27s because, you know, trademark law has interpreted the concept of confusion quite broadly to include, among other things, a notion of sponsorship confusion that might make you think it\u27s a licensed product. All right. And then, in a somewhat circular way, it was decided that the existence of licensing markets is enough to show the way in which consumers are going to be confused about licensing. So that\u27s the theory that Jack Daniel\u27s brings. One of two theories. So that was one of two theories. The other one was a dilution, and in particular dilution by tarnishment, claiming that after you\u27re exposed to the product on the right, particularly its references to poop, that you\u27re going to have a kind of visceral disgust reaction, a visceral disgust reaction that will in some ways translate to how you feel about the Jack Daniel\u27s brand, even if you\u27re perfectly well aware that the product on the left has nothing to do with the product on the right. Okay. So those were the two theories brought by Jack Daniel\u27s-two theories that, you know, were met with some success in the course of litigation. But they were ultimately found by the Ninth Circuit in some sense not to matter because the Ninth Circuit says, Yeah, but there\u27s something different going on here. This isn\u27t an ordinary product. We\u27ll come back to that, maybe, about whether that\u27s true or not, but it\u27s not an ordinary product. You know, the product on the right can take advantage of the fact that it\u27s expressive, and because it\u27s expressive, we need a different kind of test here.
And, in particular, we can use what\u27s known as the Rogers test. Okay. The Rogers test comes from the Second Circuit case of Rogers v. Grimaldi, involving the movie Ginger and Fred. It was called Ginger and Fred, and Ginger Rogers sued, saying, I had nothing to do with this movie, and yet somehow my name is being invoked. But the Second Circuit said, Okay, but it\u27s the title of a movie, and movie makers should have a kind of leeway to title their movies because that\u27s part of the expression in the movie. Right? And, as a result, we shouldn\u27t use an ordinary test for likelihood of confusion. Instead, we should apply some more kind of speech-protective test. I won\u27t go into the details of, you know, exactly what the test is. Okay. And so, in this case, Bad Spaniels says the same thing: We\u27re being expressive, and we should be able to take advantage of a kind of more speech-protective test, the one that has been previously applied to works of artistic expression. That\u27s how the courts think about it. And the Ninth Circuit said, Yes, that\u27s right. So this is enough of a kind of work of artistic expression, or at least enough of an expressive work here, that you can use that more defendant-friendly test.
That was as for the infringement claim. And as for the dilution claim, the idea here is that previous cases have suggested that titles of works or the content of the work certainly are non-commercial speech under the First Amendment and that, so long as it\u27s non-commercial speech, it falls within what\u27s known as the non-commercial use exception to dilutions
The Constitutional Bind: How American Came to Idolize a Document That Fails Them
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Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall
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Colonizing by Contract
Get PDFSince 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.
This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This Article maps out the general contours of what it terms the “territorial criminal legal system.” That system allows Congress to intervene in local criminal affairs to a far greater degree than it could in any state. At the same time, the system imposes administrative constraints on local prosecutorial actions and poses an existential threat to the existence of local criminal systems. Further, in 2010, federal and local prosecutors in Puerto Rico signed a Memorandum of Understanding that funneled more cases into federal court, subjecting a growing number of Puerto Ricans to federal laws and procedures they had no say in creating. Sharing insights from over a dozen interviews, this Article uncovers how federal prosecutors circumvent protections embedded in Puerto Rican local law and constitutional text. Indeed, while the U.S. government may have granted Puerto Rico a greater semblance of home rule, colonial dominance has never left the Island
The Right to Inequality: Conservative Politics and Precedent Collide
Get PDFThe “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.
The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural extension of SFFA and decades of conservative caselaw hostile to remedial reform.
That sentiment is understandable. But it misreads the caselaw and overlooks a striking irony. The Supreme Court’s fifty-year war on affirmative action culminated in SFFA. But the same caselaw that precipitated affirmative action’s premature demise condones colorblind remedies—the precise conduct a right to inequality would preclude. To enshrine such a right, sitting conservative Justices would have to abandon their own principles and precedent. This includes longstanding disregard for theories of equality that center groups and outcomes—both of which animate the right to inequality lawsuits. This means that conservative litigants, should they prevail, would benefit from concerns long associated with progressive causes. One question, therefore, is whether a right to inequality—because it attends to disparate impacts—could re-empower racial justice advocates to challenge colorblind policies that conservative Justices have long shielded from legal scrutiny
Keynote Address: Attacking and Defending the Administrative State
Get PDFAt the beginning of this semester I told my students at Boston University that this is the most interesting time to take administrative law since I started teaching it nearly forty years ago. Doctrines that seemed settled just a few years ago have been questioned and significant change seems to be on the horizon. Don\u27t get me wrong, we\u27ve been here before. In the 1970s and 1980s there were a few Supreme Court decisions on separation of powers1 that indicated the possibility of big changes, but ultimately it fizzled out into the administrative law revolution that wasn\u27t.
Things feel a bit different now, but it\u27s still unclear if anything major will happen. Back then, there was a group of generally conservative Supreme Court Justices who were somewhat interested in reform, but, other than Justice Scalia, none were really focused on administrative law. Now we have a group of Justices, especially Justices Kavanaugh and Gorsuch, whose identity has been or is becoming bound up with administrative law reform. We also have rumblings from the Republicans in Congress and the Federalist Society, and we have a cadre of recently appointed lower court federal judges who seem anxious to feed the Supreme Court the cases necessary to accomplish fundamental reform.
To put this in perspective, in 2018, in an Article I called, The Never-Ending Assault on the Administrative State,2 written in what might be viewed as the early days of the current assault, I proclaimed The administrative state was designed by Congress and has been resoundingly approved by the Supreme Court of the United States.... Substantive regulatory power has also been resoundingly approved by the Supreme Court, perhaps even more firmly than the structural aspects of the administrative state
Privacy Nicks: How the Law Normalizes Surveillance
Get PDFPrivacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death./= / \u3e/= / \u3ePrivacy nicks come from the proliferation of cameras and biometric sensors on doorbells, glasses, and watches, and the drift of surveillance and data analytics into new areas of our lives like travel, exercise, and social gatherings. Under our theory of privacy nicks as the Achilles heel of surveillance law, invasive practices become routine through repeated exposures that acclimate us to being vulnerable and watched in increasingly intimate ways. With acclimation comes resignation, and this shift in attitude biases how citizens and lawmakers view reasonable measures and fair tradeoffs./= / \u3e/= / \u3eBecause the law looks to norms and people’s expectations to set thresholds for what counts as a privacy violation, the normalization of these nicks results in a constant re-negotiation of privacy standards to society’s disadvantage. When this happens, the legal and social threshold for rejecting invasive new practices keeps getting redrawn, excusing ever more aggressive intrusions. In effect, the test of what privacy law allows is whatever people will tolerate. There is no rule to stop us from tolerating everything. This article provides a new theory and terminology to understand where privacy law falls short and suggests a way to escape the current surveillance spiral
Florida Offers the Blueprint for Trump\u27s War on Education
No full textIn this episode, the #RaceClass Podcast explores Trump’s relationship with higher education. On the one hand, independent universities present a threat to Trump and his authoritarian ambitions. On the other hand, universities can aid Trump by voluntarily ceding power or otherwise providing cover for his antidemocratic aims. To preview how Trump might try to break and capture the nation’s universities, we look to Florida as a blueprint for Trump’s incoming war on higher education. We also discuss how universities and democratic leadership have already played into rightwing campaigns to their own detriment
The Twelfth Amendment and the ERA
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