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Amann presents at Trinity College Dublin
No full textRegents\u27 Professor of International Law & Woodruff Chair in International Law Diane Marie Amann presented “Child-Taking Justice and Forced Residential-Schooling of Indigenous Peoples” at the Trinity Centre for Constitutional Law and Governance as part of the TriCON Seminar series in Dublin, Ireland, during November
Systemic Failures in Health Care Oversight
Full text linkHospitals are intentionally shirking their duty to identify and report incompetent medical practitioners, and it is causing catastrophic injuries to patients. Why are hospitals doing this? Two decades of health care reforms have changed the way physicians and hospitals interact in the U.S. health care system, and as a result, the traditional health care oversight tools no longer work to ensure physician competence. With three out of four physicians now employees of hospitals or health care systems, hospitals have become the guardians of both the internal and external warning systems designed to flag incompetent practitioners. As the guardians, hospitals are required to report incompetent practitioners to the National Practitioner Data Bank (NPDB), the main quality control tool used to identify and weed out incompetent physicians. Hospitals, however, are intentionally circumventing their reporting requirements to avoid institutional embarrassment, medical liability, and physician alienation. This negatively impacts the ability of the more than 24,000 entities that query the NPDB to effectively determine whether a practitioner is competent for purposes of licensing, hiring, and credentialing. This Article offers a solution—switch the data bank from a blacklist of incompetent providers to a database of the employment and hospital affiliation histories for all medical providers. Have the NPDB or private accreditation organizations require hospitals complete a mandatory questionnaire for all practitioners during the credentialing process. Implementing this solution will achieve three salient objectives: (1) improve the process whereby hospitals investigate whether a medical practitioner is competent to practice medicine prior to hiring or offering the practitioner privileges; (2) pave the way for state-based tort claims to hold hospitals accountable for inaccurate disclosures regarding a practitioner’s competence to practice medicine; and (3) eliminate the stigma associated with being listed in the NPDB which causes practitioners to practice defensive medicine and avoid admitting mistakes
Challenging the Criminalization of Undocumented Drivers Through a Health-Justice Framework
Full text linkStates increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens to the weaponization of no-license laws against noncitizens will both catalyze new legal challenges and create momentum for coalition building and policy reforms
Marking the Metaverse: The Implication of NFTs on Trademark Law
Full text linkWithin the last decade, internet users have witnessed the birth, rise, and mainstream popularity of the Non-Fungible Token, or “NFT.” Nearly ten years after the creation of the first NFT, there is now a wave of first impression litigation surfacing which questions the implications of NFTs on intellectual property law. This Note analyzes the intersection of Non-Fungible Tokens and trademark law in the United States.
Until recently, it has been unclear whether Non-Fungible Tokens are eligible to be protected under long-standing federal trademark laws. This includes allegations of NFTs infringing upon existing trademarks, as well as trademarked NFTs being infringed upon. In January of 2022, luxury fashion brand Hermès filed a lawsuit alleging infringement of its famous Birkin handbag trademark by an NFT. A federal court found the two-prong test form Rogers v. Grimaldi appropriate for evaluating such claims of trademark infringement in artistic works. The court applied this precedent in a case later that year where the creator of the well-known Bored Ape Yacht Club NFT collection alleged infringement against an artist selling similar digital works.
This Note concludes that reliance on Hermès International v. Rothschild and its interpretation of the Rogers test appears to be the current approach favored by courts, as supported by Yuga Labs v. Ripps. This newfound precedent in both categories suggests that NFTs are not only eligible for Lanham Act protection, but also works capable of infringing trademarked works in other mediums. NFT creators and brands looking to expand into the metaverse should take note of this first wave of litigation to ensure they take advantage of all available legal avenues to protect their works
Closing Remarks
Full text linkClosing remarks for the 36th annual Red Clay Conference by University of Georgia School of Law Assistant Professor Adam Orford
Legal Accountability and Judicial Review During the COVID-19 Pandemic in Aotearoa New Zealand
Full text linkThe government in Aotearoa New Zealand, like other governments elsewhere, exercised significant and unprecedented power during the COVID-19 pandemic in order to combat the virus and to protect its people. The breadth and depth of the public health response also caused monumental interference in people’s lives. This Article discusses the way judicial review of administrative action was used to hold the government accountable in law for its public health response and provided an avenue for people to pursue grievances. The key phases of the public health response are described, and the types of power exercised are identified. The nature and outcome of the judicial review challenges to that response are then explained. The Article concludes by reflecting on insights this unusual set of cases reveal about the process of legal accountability in New Zealand and the methods used by judges when supervising decisions made by government
Redmon featured in USA Today
No full textClinical Assistant Professor & Prosecutorial Justice Program Director Melissa D. Redmon was featured in USA Today regarding prosecutorial strategy. The article titled “Judge upholds guilty plea of Trump co-defendant Kenneth Chesebro in Georgia election case” was written by Josh Meyer and published 12/13/24
The Art of NFTs: Copyright, Contracts, and the Fallacy of Ownership
Full text linkWith cryptocurrency Bitcoin’s prices continuing to hit record highs, overall public interest in NFTs will likely increase significantly as it ordinarily has in the past. But before purchasing an NFT, it is important that consumers understand exactly what they are buying. Many assume their purchase will include the associated art that is shown in the individual NFT marketplace listing, whether it be a CryptoKitty, a Bored Ape, or a single video clip from an NBA game. However, in reality, most buyers are getting little more than a few lines of code on the blockchain.
What explains these misconceptions, especially when some NFTs are being sold for over a million dollars? More often than not, it is due to a combination of misunderstandings relating to technology, copyright law, and contracts. Complicating matters is that an NFT does not fit within a single existing legal framework, whether it be property law, copyright law, or contract law. Additionally, there are significant differences between NFT marketplaces, each one with its own set of contractual terms and conditions. Furthermore, individual artists and sellers on these sites invariably have their own agreements that often define how, if at all, the NFT buyer may utilize the artwork linked to the NFT. Lastly, but especially problematic, is how difficult it is to locate these contractual provisions, often requiring a consumer to essentially go on a virtual scavenger hunt to try to find the terms and conditions that purportedly control.
Accordingly, in this article, I advocate for increased transparency to ensure consumers have an adequate opportunity to identify what rights they may or may not have in the underlying artwork. This is necessary not just to avoid disappointment but to prevent purchasers from opening themselves up to potential legal liability, including copyright infringement. A possible NFT buyer should be able to discern whether reproducing, distributing, or otherwise commercially exploiting a work is permitted to calculate the true cost of an NFT purchase.
This Article begins in Section II by discussing the technical aspects of NFTs. Next, Section III studies the fundamental copyright rights, doctrines, and limitations pertinent to NFTs. Additionally, the Section provides a real-life example of how confusion over copyright rights can lead to very costly mistakes. Section IV explores how methods of contract formation have evolved in response to technological advancements, including the increased use of “clickwrap” and “browsewrap” agreements in the digital age. Section V examines the problematic ways NFT contractual terms are presented to consumers by studying the actual listings of several NFTs currently offered for sale and detailing the copious number of steps a user must take to locate the agreement that supposedly controls the parties’ transaction. These provisions are then analyzed and compared to illustrate the extent to which an NFT seller may or may not choose to provide the purchaser with rights to any digital artwork associated with the non-fungible token. Lastly, Section VI provides recommendations for improving transparency in the NFT marketplace