Touro College: Digital Commons @ Touro Law Center
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Protection in a Virtual Reality: The Dire Need for Trademark and Copyright Law Expansion to Encompass Digital Content Within the Metaverse
Get PDFThe Metaverse has gained much popularity in recent years, leaving some people with a feeling of uncertainty, but all the while intriguing many others. The multifaceted interactions and activities that take place within the Metaverse have made it a virtual world fertile for not only creative expression but also infringement of existing trademark and copyright protected works. Hand-in-hand with the development of the Metaverse has come the fast-growing interest in buying and selling virtual goods, properties, and non-fungible tokens. To preserve their reputation, avoid costly litigation, and ultimately uphold the exclusive rights allotted to them as intellectual property owners, trademark and copyright holders should seek protection within the Metaverse, even if they have not yet entered the realm. Alongside this business tactic, there is a dire need for expansion upon existing trademark and copyright law to expressly encompass virtual goods and services, as well as for a modernized understanding of how trademark and copyright law should be interpreted and applied
Interpreting Ethics Rules
Get PDFThis Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a rule that appears clearly articulated but, if applied as stated, would defy the similarly clear purpose of the rule, while Rule 8.4(g) has elicited sharply contrasting approaches to the interpretation and application of broadly articulated ethics rules. The Article concludes that, while divisions over the interpretation of ethics rules may not prove inherently problematic, the relative lack of attention to the examination of interpretive approaches to ethics rules remains striking, particularly in light of the central role of the rules both in the regulation of lawyers and as expressions of the ethical norms of the legal profession. Thus, without expecting or proposing uniformity, the Article represents an effort to promote further discussion and consideration of interpretive attitudes and approaches to ethics codes and ethics rules, encompassing issues of vital importance to the legal community
Trustless Trust and Antitrust: A Synthesis
Get PDFAuthors have written of antitrust law’s demise in the face of blockchain, which, seemingly, achieves the pro-competitive ends of the law through technology and private ordering. Permissionless blockchains in particular are said to offer a vision of radical disinter mediation and a break with the platform economy troubling the regulators today. At the same time, blockchain supposedly presents challenges to antitrust doctrine, from the most basic of concepts to the viability of enforcement and remedies. Finally, blockchain community governance is said to allow for private ordering of antitrust, i.e., enforcement of rules attempting to protect competition, which are at the same time illegal; not coming from the courts or agencies, they constitute competition wrongs themselves. This Article argues that all three claims are overstated and proposes a synthesis of law and code. The legal doctrine can be modified to tackle the novel technological landscape quite easily, with adoption of novel legal fictions. This is necessary since blockchains—both public and even more so private ones—while ingenious, do not remove a need for the law to protect the market from anticompetitive conduct. Indeed, even public ledgers have power structures allowing for abuse, while private blockchains may, in fact, allow for its proliferation. The law needs to find a regulatory access point to the ledgers. This is not an easy task; however, cooperation of blockchains with the law, and encoding of antitrust rules on the ledgers themselves, offers a possibility of a reconciliation between the law and the code. At the same time, this lends legitimacy to pro-competitive actions of those cyberspace communities and ensures a preservation of the rule of law. This is the blockchain antitrust synthesis
Second Amendment: Incompatible Methodologies and the Bruen and Heller Opinions\u27 Underlying Misalignment
Get PDFIn its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. Heller’s inconsistent, selective application of incompatible methodological approaches had altered the step one outcome and the subsequent step two reasoning. If Heller’s step one reasoning had applied the methodological approach described in Bruen, then that would have resulted in an opposite step one interpretation that in turn would have required different step two reasoning. This Article recommends a reasonable change that the Supreme Court should make to correct the current material misalignment between Bruen’s characterization of Heller’s reasoning and Heller’s actual reasoning and to eliminate Heller’s practice of impacting an outcome through selective, inconsistent use of incompatible methodological approaches when interpreting a constitutional sentence
Opening Up The In-House: A Model for Collaborative Holistic Services and Education in Law School Clinical Programs
Get PDFIndividual in-house clinics too commonly operate autonomously behind separate walls. These barriers impair the meaningful holistic representation of clients and the educational opportunities of clinic students. This article provides an argument and framework for opening the doors between clinics to enrich clinic student education and enhance client representation. Part I identifies the benefits of holistic inter-clinic collaboration for both clinic students and the clients they serve. Part II shares a model for how to integrate education and client service across practice areas of clinical programs. A forthcoming article, published separately, will further describe how clinical programs can be improved by removing silos in evaluation and creating unified programmatic-level clinical student and course assessment tools, which can in turn also illustrate the essential value of clinic to legal education
The Mad Hatter’s Quip: Looking for Logic in the Independent State Legislature Theory
Get PDFThe Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. If the Court rules in favor of the theory—as some recent scholars urge them to do—then historically undemocratic state legislatures would be free to engage in all manner of devious disenfranchisement tactics, with little to no redress in state courts
