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A Tale of Two Cases: The Supreme Court\u27s Uneasy Position on the Proper Allocation of Authority to Decide Whether to Concede A Client\u27s Guilt in A Criminal Case, 43 J. Legal Prof. 53 (2018)
No full textCorporate Ethics: Approaches and Implications to Expanding the Corporate Mindset of Profitability, 49 Loy. U. Chi. L.J. 637 (2018)
Get PDFThis Article discusses the convergence of law and ethics in the context of corporations. It begins by detailing past attempts at and limitations on regulating corporate conduct. It then explores the business judgment rule in the context of ethical conduct. Finally, it considers the growing influence of millennials and social investing on corporate conduct, and concludes by cautioning corporate directors to adopt ethical practices in order to remain relevant in the marketplace
Informed Consent: No Longer Just What the Doctor Ordered? Revisited, 52 Akron L. Rev. 49 (2018)
Get PDFThe law of informed consent in medicine has evolved from the original doctrine which required the physician\u27s disclosure of the risks, benefits, and complications of (and alternatives to) a proposed procedure or treatment. The doctrine now implicates the disclosure of matters personal to the physician. Questions regarding the breadth of the doctrine in other respects have developed as well. This paper represents the author\u27s second examination of the unconventional aspects of the law of informed consent
The Balances of Two Trademark Rights: Generation Systems in Japan\u27s Trademark Laws, 17 J. Marshall Rev. Intell. Prop. L. 608 (2018)
Get PDFThis article consists of 6 sections. In Section I, the article mainly introduces the basic theory of a trademark right as a private right and its purpose. A trademark right as a private right is purposeful to protect goodwill of trademark users, which is their labor fruits during trademark use in the course of business. A trademark right generated by use is called a right subsisting upon use (RSUU) system, which is mainly adopted in common law countries. A trademark right generated by registration is called a right subsisting upon registration (RSUR) system, which is mainly adopted by civil law countries including Japan. In Japan’s judicial practices, goodwill protected by RSUR is broken down into 3 functions, the function of indicating origin and ownership; the quality guarantee function and an advertising function. In Section II, this article analyzes why the RSUR system, instead of the RSUU system, is adopted in many countries. Because of ambiguous, varied and untouchable goodwill generated in trademark use, RSUU is itself difficult to be grasped and respected by third parties. Therefore, in most civil law countries including Japan, the RSUR system is adopted, by which trademark rights are generated upon registration instead of use in business. The RSUR system is more transparent, stable and predictable than the RSUU system because the content and boundary of rights are statutory, which includes the exclusive right to use and the right to prohibit use, and infringements of RSUR are statutorily categorized. The RSUR system is preferential to efficiency of right protection and implementation. But in some situations, the efficiency-preferential RSUR system is inconsistent with the purpose of the TMA. These inconsistencies can be categorized into two groups, internal inconsistencies and external inconsistencies. Internal inconsistencies refer to inconsistencies caused by the RSUR system to be resolved by the TMA itself; and external inconsistencies refer to inconsistencies caused by the RSUR system that are to be resolved by laws other than the TMA, such as the UCPA and Civil Code. The internal inconsistencies mainly include: (1) trademark registration for banking purposes; (2) trademark registration in conflict with prior user’s goodwill; and (3) no protection for goodwill of registrants spilled out of registered trademarks. The external inconsistencies mainly include (1) no protection in the TMA for goodwill on unregistered indications; (2) no protection in the TMA for goodwill spilled out of registered defensive trademarks; and (3) abuses of registered trademark rights. Section III of the article discusses different meanings of well-known/famous trademarks in different contexts and their backup policies. The institutional functions of well-known/famous trademark protection in the TMA are to protect goodwill of trademark users from usurpation by registered trademark right holders. The goodwill worthy of protection in different context is different. Therefore, the meanings of well-known trademarks are different accordingly, which includes regional well-known, national well-known and international well-known marks. There is no famous trademark concept in the TMA, but famous indications exist in the UCPA, The article summarizes typical measures to cure internal inconsistencies in Section IV. They are: (1) cancellation of trademark registrations for banking purposes; (2) registration prevention for protection of prior goodwill; (3) registration prevention of agents who maliciously violate trust relationships between principals and agents; (4) preventing usurpation of honest users’ goodwill; (5) expanding protection for spilled goodwill by registered defensive trademarks; and (6) adoption of the trademark use doctrine. Measures to cure external inconsistencies are discussed in Section V. The first external inconsistency is the loophole of goodwill protection in the TMA. In three situations, goodwill is not protected in the TMA. The first is goodwill enshrined on not-registered trademarks; the second is goodwill enshrined on non-registrable indications; and the third is goodwill spilled out of scope of registered trademarks including registered defensive trademarks. The loopholes of goodwill in these three situations are made up by protection of well-known and famous indication protections in the UCPA. The second external inconsistency is abuse of RSUR, (i.e. registered trademark right holders abuse the right for purposes other than goodwill protection), which are considered unfair. In judicial practices, Japanese courts prohibit such abuses of registered trademark rights according to Art. 1 of Civil Code. The relevant cases could be summarized into 4 types, abuse of right with illicit purpose; abuse of right for market exclusion; abuse of right for unfair purpose; and abuse of right in parallel imports. And Section VI is the conclusion
Chasing Results from the Chasing Arrows: Strategies for the United States to Stop Wasting Time and Resources When it Comes to Recycling, 52 UIC J. Marshall L. Rev. 147 (2018)
Get PDFThe United States is a leader when it comes to creating waste, but not when it comes to disposing of that waste in environmentally conscious ways, such as through recycling. While other countries boast recycling rates over 60 percent, the United States’ recycling rate is an unimpressive 25 percent. Even amidst a “zero waste” movement, there are few national efforts to increase our recycling rate. Some state and local communities have picked up the slack, implementing a variety of strategies to boost their recycling output and reduce waste. These initiatives, such as automatic curbside recycling, landfill bans, mandatory recycling, container deposit laws, and Pay-As-You-Throw programs can be applied nationally to reduce the United States’ waste output and increase its recycling rate. This comment explains the Federal Government’s authority to regulate recycling, why it should do so, and the options available to achieve results
The Rise and Fall of Fear of Abuse in Consumer Bankruptcy: Most Recent Comparative Evidence from Europe and Beyond, 96 Tex. L. Rev. 1327 (2018)
Get PDFPrepared for a symposium celebrating the groundbreaking career of Jay Westbrook, this Article examines recent evidence of fear of abuse of the benefits of consumer bankruptcy and the gradual abatement of that fear in modern consumer insolvency law reform. It marshals evidence of a recent and accelerating retreat in both the judicial discretion that Westbrook attributed to lawmakers\u27 fear of abuse and other more direct techniques to avoid abusive recourse to consumer discharge. Fear of abuse appears to be diminishing with accumulated experience as indicated by recent liberalizing reforms in Denmark, Slovakia, Poland, Austria, Russia, and Romania. At the same time, evidence from countries that have only begun to develop policies on personal insolvency and discharge - Croatia, Bulgaria, China, and Saudi Arabia - indicate that fear, or at least resistance to discharge relief, clearly persists