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Emergency Bylaws: An Underutilized Tool for Corporate Operation During an Emergency
Get PDFEmergency bylaws are an underutilized tool for corporate governance whose importance has been highlighted by COVID-19. Emergency bylaws can be included within corporations’ bylaws and only operate during an “emergency” as defined by state statutes. These provisions usually give boards more agency to act during an emergency through mechanisms such as looser quorum and notice requirements. These provisions will be increasingly important during future pandemics, wars, and global warming. However, few corporations have these bylaws, and the current hodgepodge of state statutes hinders their adoption. The current state of emergency bylaws regulation and implementation raises some questions about shareholder rights and disclosure requirements. States should look to the newly updated Delaware Corporate Code provisions for a better model of regulation, and corporations should adopt provisions tailored to their needs
Endorsing After Death
Get PDFAn endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a highly paid celebrity endorser even though she died almost sixty years ago and her “estate” is controlled by individuals without any personal connection to her.
This Article closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property (IP) scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this Article shows that posthumous endorsement rights pose unique and largely unaddressed concerns.
First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent, to their heirs, to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the “official” voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market.
Nonetheless, there are some important reasons for IP laws to recognize at least some form of posthumous endorsement rights. Marketing scholarship has shown that posthumous endorsements are often material to consumers, and there is a shared interest among the decedent, their fans, and their families in shutting down false suggestions that a good or service received the decedent’s blessing. Accordingly, this Article proposes that courts only recognize posthumous endorsement rights where there is both “privity and power.” An entity can only meaningfully endorse goods or services on behalf of a decedent—or affirmatively disclaim their approval—when they (1) own the image, word, or symbol that is signaling endorsement and (2) are empowered to make legal decisions on the decedent’s behalf. Only when an individual is empowered to step into the shoes of a decedent, and required to act in the decedent’s best interests, can the individual fairly and accurately speak for the dead
Making Hazelwood Age-Appropriate: How Viewpoint Neutrality and Recontextualizing the Age-Appropriate Standard Might Save School-Sponsored LGBT Speech
Get PDFYounger people are identifying as lesbian, gay, bisexual, or transgender (henceforth “LGBT”) more than any previous generation. Likewise, there has been a proliferation of free-speech litigation involving student speech that discusses LGBT issues. Beyond just LGBT speech in school, there has been a recent resurgence in the discussion around the relationship between parents, students, school administrators, and school boards when it comes to regulating school-sponsored speech.
Besides the growing number of students identifying as LGBT, protecting LGBT speech in school is of particular importance because the manner in which a school deals with LGBT speech directly influences the mental health and safety of LGBT students. Furthermore, LGBT students face heightened levels of marginalization that manifests through discrimination and harassment from other classmates, school administrators, and educators during school.
This Note will argue that, when dealing with school-sponsored speech, the standard of “age-appropriateness” can be used to wrongfully silence and condemn LGBT student speech and content. Specifically, the Supreme Court should (1) read a requirement of viewpoint neutrality into school-sponsored speech decisions; (2) find that LGBT student speech is not presumptively age-inappropriate; and (3) find that suppression of school-sponsored LGBT speech is presumptively viewpoint discrimination, requiring strict scrutiny analysis, and as such is likely unconstitutional infringement on student speech.
This abstract has been taken from the author\u27s introduction
Currents of Change in Climate Litigation in Australia
Get PDFOnly a fraction of cases in Australia ever appear in authorized law reports. Hundreds of significant court decisions are overlooked, amid growing concern in several common law jurisdictions that the courts at the highest level may be becoming increasingly aligned with the governments of the day. In tort law, the currents of change can take years and many decisions at various levels before taking hold as established law. In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment, a single judge of the Federal Court of Australia, Justice Mordecai Bromberg, held that the Federal Minister for the Environment, in determining whether to approve the extension of a coal mine, owed a duty of care to avoid causing harm to Australian children from carbon emissions. The Court did not grant the injunction sought by the children, and the Minister subsequently approved the extension. On appeal, the Full Court overturned the Federal Court’s decision. The focus of this Article is on the importance of Justice Bromberg’s decision, as the first case in Australia to recognize that a government official can owe a duty of care to avoid the risk of harm from the effects of climate change. It is a remarkable decision for this and other reasons, as this Article explains
Disability Diversity and Identity Capitalism
Get PDFI first read Professor Nancy Leong’s compelling book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality when I was asked to provide a pre-publishing peer review. I was equal parts captivated and troubled by the numerous examples of identity capitalism (and its counterpart, identity entrepreneurialism) that I had never thought about, and perhaps even acquiesced in.
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But in all honesty, I was troubled after my initial review of the manuscript because I had the sense that Leong was suggesting that diversity itself is bad, or at least that concentrating on diversity is bad. Upon my review of the published book, I was happy to see that my concerns were unwarranted. In the published book, Leong takes care to argue that it is not diversity itself that is bad—it is the fact that people and institutions capitalize on that diversity in a way that benefits the institution and harms the members of the groups that are supposed to be the beneficiaries of diversity efforts.
Accordingly, with that concern addressed, my second read of this book highlighted a different issue—what about disability? And, more specifically, what does it mean to include disability as part of diversity initiatives? I will use this essay to address that issue. But first, I will briefly summarize the book in Part I and provide my thoughts and impressions of the arguments Leong makes. Then in Part II, I will explore what identity capitalism means for disability diversity.
This abstract has been taken from the author\u27s introduction
International Bridges to Justice in Geneva, Switzerland
No full textAbi Grand [1L] will spend the summer with International Bridges to Justice\u27s global headquarters in Geneva, Switzerland working to protect basic legal rights of individuals in developing countries. Working with a large network of local and international lawyers, IBJ works to promote the right to competent legal representation, the right to a fair trial and protection from cruel and unusual punishment
In-Lieu Fee Program Case Studies: Lessons Learned for Potentially Expanding In-Lieu Fee Habitat Coverage in Virginia
Get PDFThis white paper contains case studies of coastal ILF [in-lieu fee] programs across the United States: Maine Natural Resources Conservation Program (“MNRCP”), Northwest Florida Water Management District (“NWFWMD”) ILF Program, Keys Restoration Fund (“KRF”), Sacramento District California ILF Program, Maryland Department of the Environment ILF Program, and Virginia Aquatic Resources Trust Fund (“VARTF”). The Conclusion will provide general recommendations and questions to consider in deciding whether and how to implement an in-lieu fee program for wildlife habitats in Virginia. Each program has a unique regulatory structure and method for selecting projects on which to spend their funds. The programs do tend to face similar challenges and provide similar benefits. Common challenges include securing buy-in from private landowners and completing the state and federal permit processes for mitigation projects by the third growing cycle after selling credits. Despite these frequent hurdles, program sponsors have observed that the programs streamline the permitting process for developers, which reduces the cost of building new projects. ILF programs allow for larger, more impactful mitigation projects, instead of proceeding by a piecemeal approach where the permittees must compensate for only their own environmental impacts.
This abstract has been taken from the authors\u27 introduction
Getting Back to “Normal”: Jury Trials in the Post-COVID Era
No full textWhen COVID-19 first disrupted jury trials in March 2020, most commentators anticipated that state and federal courts would return to business as usual shortly after an effective vaccine became widely available—an expectation that proved to be wildly optimistic as two years later the Omicron variant produced the highest rates of infection yet. It is still not clear when state and federal courts will resume “normal operations,” but when they do, trial attorneys may encounter changes in jury operations and jury trials that were introduced over the past two years. Smaller jury panels, more diverse jury pools, constraints on attorneys’ use of peremptory challenges, and civil-justice reforms are some of the changes that are most likely to persist.
This abstract has been taken from the body of the article
Eliminating Shadows and Ghosts: Findings from a Study of Inclusiveness, Representativeness, and Record Accuracy in Master Jury Lists and Juror Source Lists in Three States
No full textIn 2021, the National Center for State Courts (NCSC) obtained grant funding from the State Justice Institute to assess the inclusiveness, representativeness, and accuracy of the juror source lists for Missouri, New Jersey, and Tennessee and the resulting master jury lists for Missouri and Tennessee. Each jurisdiction volunteered to be part of the project. For its analyses of inclusiveness, the NCSC compared the total number of records on the master jury list with the total number of adult residents in each county reported by the U.S. Census Bureau on the 2020 Census. To assess the accuracy of address records generally for different types of juror source lists, the NCSC contracted with Anchor Computer, Inc. (Anchor), an NCOALink Full Service Provider, to verify the accuracy of mailing addresses. For the assessment of representativeness, the NCSC employed the jurisprudential framework outlined in Duren v. Missouri. Specifically, it measured the absolute and comparative disparities of distinctive racial and ethnic groups between the jury-eligible population and the master jury list.
This abstract has been taken from the authors\u27 introduction