bepress Legal Repository
Not a member yet
645042 research outputs found
Sort by
Trial by Trademark: Why the Trademark System Needs to Stand on Its Own Two Marks
No full textWhile IP-intensive industries continue to produce a significant portion of the American economy, trademarks consistently remain a substantial portion. Given trademarks’ increasingly pivotal role in the global economy, the complexities and nuances of trademark law demand a specialized approach. In examining the current trademark landscape, many scholars have underscored the paradox of its fractured nature, despite its fundamental role in the economy. Currently, trademark law suffers from a lack of uniformity across the various circuits in critical areas of the law itself, as well as vulnerabilities in forum shopping and confusion for businesses.
Rather than endorsing the conventional approach to uniformity through centralization under the Federal Circuit, this Note asserts the need for a paradigm shift, advocating for the implementation of inferior courts exclusively dedicated to trademark. Such a transformative approach promises to bring a more coherent, consistent, and specialized expertise to trademark jurisprudence, aligning it with the economic significance it holds in the contemporary landscape
A “RULE MAKING” CLASS: THE FEDERAL TRADE COMMISSION’S EXPANSIVE PER SE BAN ON NONCOMPETE CLAUSES: AUTHORITY, ENFORCEABILITY, AND THE NEED FOR CONGRESSIONAL ACTION
No full textA non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act
Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights
No full textAligning the Stars: Institutional Convergence as Social Change
No full textIn a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the only thing that ever has.” One group of scholars has even put a number on the percentage of a population that must be engaged with an issue to bring about change: 3.5 percent. In recent decades, mostly following the U.S. Supreme Court’s landmark decision in Brown v. Board of Education and the laws passed in the 1960s as a result of the advocacy of the civil rights movement, legal scholars have sought to understand the “puzzle” of social movements: what role such movements have played in influencing not just the passage of legislation and the transformation of legal institutions, but also the understanding of the U.S. Constitution itself. In legal scholarship, as one scholar has declared, it is “the moment of social movements.
Avoiding Rejection: Studying When and Why State Courts Decline Certified Questions
No full textIn December 2018, the U.S. Court of Appeals for the Sixth Circuit declared Tennessee’s punitive damages cap statute unconstitutional under the state’s constitution. Nearly five years later, however, Tennessee state courts are still reducing punitive damage awards under the statute—and they must, because the Tennessee Supreme Court has never addressed the statute’s constitutionality. See, the Sixth Circuit’s decision was merely an Erie guess as to how Tennessee courts would resolve the unsettled state law issue, and the Tennessee Supreme Court has since indicated that it would reach the opposite conclusion. But the Tennessee high court had already had an opportunity to do so explicitly in the very case in which the Sixth Circuit refused to enforce the punitive damages cap. The federal district court had certified questions about the statute’s constitutionality to the Tennessee Supreme Court, which kept the case on its docket for seven months only to decline the questions. Given this response, the Sixth Circuit understandably opted against a second attempt at certification on appeal. As a result, under the current state of the law in Tennessee, plaintiffs who receive identical punitive damage awards from juries in federal and state courts could ultimately recover drastically different amounts.
This Tennessee example well illustrates some of the difficulties that federal courts and litigants face when state supreme courts decline certified questions of unsettled state law: the risk of an incorrect Erie guess that creates inconsistent results in federal and state courts, the potential for months-long delays while the case lingers before the state court, and the resulting reluctance of federal courts to certify in the future. Further, because few states articulate criteria for accepting or declining certification and no state’s certification scheme requires the state court to explain its reasons for declining certified questions, those seeking certification are left with little guidance as to how to avoid these dreaded rejections by state high courts. To provide that guidance, this Article studies certification practices in the three jurisdictions in which certified questions were declined most frequently over the last two decades and identifies patterns in when and why state courts decline certification. The Article then proposes procedural solutions, including a presumption mechanism for the acceptance of certified questions in appropriate cases, to reduce the frequency of certification denials and better equip federal courts and litigants to predict which certified questions state courts are likely to answer
“Improve Your Privileges While They Stay”: A Guide to Improve the Privileges of U.S. Citizenship for Everybody
No full textIn 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men to improve: “Caress, redeem each moment, which with haste / Bears on its rapid wing Eternal bliss.” Years later, Wheatley showed white Bostonians how to improve their privileges by her own example, when she secured her place as the John Milton of the American Revolution. In order to improve her privileges in this way, she had to print her books in England and import them into America for sale. After Wheatley’s revolutionary successes, the framers of the Patent & Copyright Clause, James Madison and James Wilson, seemed to take preexisting author owned copyrights in America for granted. But without Wheatley’s specific fashion of improving her own privileges internationally, there really was no such thing as preexisting common law (i.e., author owned) copyrights in England. Phillis Wheatley was the first to redeem Milton’s poetry by claiming it for the side of heaven in the United States. The lords and judges of England guessed at the basis for common law in the attestation of an author’s name, but their common law theories were all desolated by the House of Lords in 1774. Also, the printers of Boston likely would not have invited Wheatley to print as the owner of her own works so she sought an international deal. Luckily for all, Wheatley managed to print and export her books from London to America before 1774. Eventually, the privileges of the arts and sciences were opened to women and Black people respectively throughout the United States under the auspices of Wheatley’s original copyright. Many gradually inherited the privileges of the few, and Wheatley intende
Importance Of Mediation In The Workplace
No full texthttps://larc.cardozo.yu.edu/flyers-2023-2024/1134/thumbnail.jp
Truth Bounties: A Market Solution to Fake News
No full textFalse information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.
This Article presents an alternative for fighting misinformation that avoids many pitfalls of regulation: truth bounties. We develop a contractual mechanism that would enable individuals, media, and others to pledge money to support the credibility of their communications. Any person could claim the bounty by presenting evidence of the falsity of the communication before a dedicated body of private arbitrators. Under the system we envision, anyone consuming information on the internet would know immediately ifa given communication had a bounty attached, whether the communication had been challenged, and whether the challenge succeeded orfailed. As John Stuart Mill recognized, we can trust our grasp of the truth only by putting it to the fire of challenge. Truth bounties open the challenge to all