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Reforming Trademark Laws Approach to Intermediary Liability
No full textThis chapter suggests that courts have gone wrong in defining the underlying direct infringement in secondary liability cases in trademark. “Some courts, concerned about protecting consumers against unscrupulous intermediaries, have reshaped direct infringement into what I have called a ‘roving unfair competition law’ that lacks the limits of traditional infringement doctrine. Rather than limiting direct infringement to parties who create confusion through their own product sales, these courts have allowed claims based on general search engine practices, or on ‘dual-use’ policies that enable both infringing and non-infringing third-party conduct.” The proposal in this chapter encourages “courts [to] restore coherence to trademark law by reinstating the longstanding distinction between direct infringement and derivative forms of liability, such as contributory infringement.” That is, direct infringement for purposes of secondary trademark liability should require “ (a) a use of the mark by the defendant, in connection with the sale or advertising of its own goods or services, (b) in a way that creates a likelihood of confusion between its goods and services and the trademark holder.
Hey, Hey! Ho, Ho! These Mass Arrests Have Got to Go! : The Expressive Fourth Amendment Argument
Get PDFThe racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment protections, as conceived by its Framers. The first part of this Essay provides an account of mass arrests during the George Floyd protests in Los Angeles, the city with the largest number of reported arrests in the initial demonstrations. The second part of this Essay begins by briefly reviewing the Expressive Fourth Amendment, a doctrine the author previously introduced, which posits that the Framers designed the Fourth Amendment to protect freedom of expression, in addition to the prevailing understanding of its safeguard of bodily integrity. The Expressive Fourth Amendment shields from government overreach individuals engaged in political expressive conduct. Here, this Essay expands upon this doctrine by querying how this protection should apply to mass arrests during protests and ultimately concludes that courts should demand both that a police officer establish probable cause for each protester swept up in a mass arrest and that judges positively weigh an individual’s expressive conduct when determining whether an arrest was reasonable in the totality of the circumstances
Decision-making in Arbitration
No full textTo celebrate the academic and professional career of Prof. Giorgio Bernini, this volume is a collection of essays in the subjects he has long taught and practiced: contract law and international trade together with arbitration in all its meanings: internal , international, commercial and investment matters. The contributions are written by world-renowned specialists: Yves Derains, Lise Bosman, Maria Beatrice Deli, Antonio Fraticelli, Guido Alpa, Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Roberto Ceccon, Gabriele Crespi Reghizzi, Abdel Hamid El Ahdab, H . Ercüment Erdem, Marcel Fontaine, Roy Goode, Kaj Hober, Ernst-Ulrich Petersmann, Fausto Pocar, Stefano Azzali, Ronald A. Brand, Sergio M. Carbone, Dominique Carreau, Claudio Consolo, Giorgio De Nova, Donald Francis Donovan
What Would it Mean to Codify Roe v. Wade?
No full textLinda McClain, a BU School of Law professor of law and the Robert Kent Professor of Law, discusses what it would mean to codify Roe v. Wade, after Texas enacted one of the most restrictive abortion laws in the country. McClain also talks about previous attempts to codify Roe v. Wade, the Women’s Health Protection Act, and the future of abortion access in this country
Long Overdue: Fifth Amendment Protection for Corporate Officers
Get PDFThe Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people.One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination.
“Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating—but never directly holding— that corporations are not protected by the Self-Incrimination Clause.
But the fact that a corporation cannot invoke the Fifth Amendment does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction among the “person[s]” it protects; everyone is protected—citizens and noncitizens. And the amendment certainly does not distinguish among “person[s]” depending on where they work or whether they are employed. Indeed, because the Justices agree, as Justice Scalia once noted, that “[a]ll the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears,” an individual who works for a corporation—for example, the president or treasurer—is protected by the Fifth Amendment when forced to produce corporate records that will personally incriminate him.
Yet despite the plain text of the Fifth Amendment, the Court has concluded otherwise. According to the Justices, a person may be compelled simply because he is a corporate custodian to perform a testimonial act that will personally incriminate him. This is because the Court has fused the person with the corporation. Even the sole shareholder who runs a small business as his alter ego can be compelled to provide incriminating testimonial evidence due to his status as a corporate officer.
This Article examines and challenges the Court’s long-standing view that an individual who works for or joins an organization is not protected by the Fifth Amendment when compelled to produce incriminating records that ostensibly belong to the organization. Known as the “collective entity” or “artificial entity” rule, the Court has described this rule as having “a lengthy and distinguished pedigree.” To be sure, the collective entity rule dates back to the start of the twentieth century. But there is nothing “distinguished,” and little to celebrate, about the rule. That is, unless one believes that certain persons, based on employment status or membership in an organization, should be compelled to give the government incriminating testimony.
The collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents, which unmistakably establish that one’s employment status does not diminish the protection provided by the Fifth Amendment or the ability to invoke it
Patent Fake News
Get PDFComplaints about the patent system are legion. Critics complain that it is too easy to get a patent, that it is too easy to challenge an existing patent, that many patent denials are rationally inexplicable, that aggressive enforcement of patents stifles innovation, that patent trolls abuse the system to extort money from innocent users of widespread technology, and that inventors leverage modest modifications of existing patents to extend the patent period beyond intended legislative limits. While Janet Freilich’s forthcoming article, Ignoring Information Quality, may not reveal the root of all patent evil, it illuminates an important problem in the U.S. patent system, namely that patent examiners rely on low quality information to make their ever-important decisions on patentability. This, according to Professor Freilich, leads examiners to grant patents based on dubious claims that undercut, rather than further, patent law’s purpose of encouraging useful innovation and to reject deserving patents based on an incorrect understanding of background information
Trust and For-Profit Philanthropy: from Surrey’s Private Foundation to Zuckerberg’s Limited Liability Company
No full textWe trace the Grand Bargain’s decline to developments in tax policy designed to enhance transparency that, in no small irony, can in turn be traced to the Grand Bargain itself. The tax expenditure budget that grew out of the Tax Reform Act of 1969 may have doomed the Grand Bargain simply by clearly and publicly tallying its costs. That lost innocence transformed philanthropy from a shared act of faith into a transaction, with the Chan Zuckerberg Initiative as its logical conclusion
Executive Pay Clawbacks and Their Taxation
Get PDFExecutive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax offset regime is most in keeping with the evolving rationales for clawbacks, with consistent treatment of executives subject to clawbacks, with encouraging even-handed implementation of clawbacks, and with minimizing clawback induced distortions and other unintended consequences associated with a tax regime that would not provide full offsets. But the tax treatment of clawback payments has been uncertain, and the enactment of the Tax Cuts and Jobs Act adds to that uncertainty. Meanwhile, adoption of legislation to ensure that executives are fully compensated for taxes previously paid on recouped compensation is probably a political non-starter. Given that, this Article argues that the IRS and courts should interpret the relevant tax laws liberally to maximize recovery of taxes paid on clawed back compensation
Standard Racism: Trying to Use “Crisis Standards of Care” in the COVID-19 Pandemic
Get PDFLowering the standard of care in a pandemic is a recipefor inferior care and discrimination. Wealthy whitepatients will continue to get “standard of care” medi-cine, while the poor and racial minorities (especiallyblack and brown people) will get what is openlydescribed as substandard care rationalized by the asser-tion that substandard care is all that we can deliver tothem in a crisis. (IOM 2009) Paul Farmer’s experiencein responding to the Ebola outbreak in West Africa is ashocking, if extreme, example of how dangerous topatients this practice is. White patients were treatedwith the US standard of care, including transfer to theUS for treatment, black (local) patients were often givenlittle no medical care at all (on the premise that it wastoo dangerous for caregivers to touch them or to placeIVs to hydrate them). The standard of care for the localpopulation, in Farmer’s words, “in many cases didn’tresemble care at all.” (Farmer 2020) As COVID-19 hastaught us, structural racism in healthcare is not just aproblem in West Africa, and does not just manifestitself in a pandemic