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The First Sale Doctrine and Foreign Sales: The Economic Implications in the United States Textbook Market
Full text linkThis Article investigates the impact of the Kirtsaeng decision. After discussing the first sale doctrine, this Article presents the issues around implementing a worldwide first sale doctrine. International treaties attempt to ensure that authors can benefit from their work by affording them similar protections in different jurisdictions. But a worldwide first sale exhaustion limits the ability of copyright holders to profit from their work because it allows the author to compete with its own work that had been priced differently in different jurisdictions. Finally, this Article tests whether, in the United States, the price of textbooks has been affected by the Kirtsaeng decision and finds that the price of textbooks increased between 2001 and 2018 but not more rapidly or slowly after the decision. In other words, the decision may not have had any effect (yet)
Perils of the Reverse Silver Platter Under U.S. Border Patrol Operations
Full text linkIn the face of expanding U.S. Border Patrol operations across the country, that agency often acquires evidence during its searches that is unrelated to immigration or other federal crimes but may involve state crimes. States are then faced with the question of whether to accept such evidence for state prosecutions when it was lawfully obtained by federal agents consistent with federal law but in violation of the state’s own search and seizure provisions. Sometimes referred to as “reverse silver platter” evidence, states have come to widely varying conclusions as to the admissibility of federally obtained evidence that would clearly have been inadmissible had it been obtained by state actors. This Article explores the approaches and rationales employed by states on this question and the legal implications thereof, particularly in light of sometimes constitutionally dubious Border Patrol activities, the “border search exception” to the Fourth Amendment to the U.S. Constitution, and the broader significance of states choosing to sacrifice their own constitutional principles and rights of their citizens in the interest of prosecutorial convenience
How to Expand Rape by Deception and Protect Consent
Full text linkThe trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not be overbroad, and that self-protection is not an entirely feasible strategy. Moreover, rape by deception can in some circumstances produce the same core harms that distinguish forcible rape from other assaults. The problems raised by the critics of rape by deception can be avoided by adopting a test under which rape by deception is expanded to cover situations where a party has been made aware that the truth of an ascertainable representation relating to their person at the time of sexual intercourse is a prerequisite of consent to sexual intercourse and willfully deceives as to that representation with the intent of engaging in sexual intercourse. In recognizing the challenges surrounding such an expansion of criminalized rape by deception, a narrower test focused on core harms such as unwanted pregnancy and sexually transmitted infection is also offered
Failing to Learn the Lessons of Madoff: Problems with Applying Iqbal to Fraud Claims
Full text linkThe Iqbal standard requires all civil actions filed in federal courts to provide detailed proof at the pleading stage for the claim to proceed. Under this standard, cases are adjudicated without the aid of discovery or deposition of witnesses. Cases are decided at the pleading stage based on the documents and statements provided by the one accused of fraud. The tools to uncover deception are not available at this stage. This article argues that the Iqbal pleading standard fails to allow civil courts to adequately detect and adjudicate fraud claims. This article explores fraudulent financial schemes, the Iqbal standard, the standard of plausibility, and the requirement of proof at the pleading stage. This article then analyzes the problems presented by Iqbal when applied to cases of financial fraud. Finally, this article discusses how, rather than learning from the mistakes of the SEC in the Madoff investigation, our civil court system created a framework for adjudication of fraud cases that generates the same risk for misevaluation as was present during the Madoff investigation. This risk for misevaluation is still present because of the courts’ typical process of accepting the words of those accused of fraud, rewarding the falsification of records, misplacing its assessment of credibility, and making determinations based on limited records. Given the problems associated with adjudicating fraud claims under the Iqbal standard, a review of the Iqbal standard is essential to provide victims of fraud with proper recourse and justice
A Procissão de Corpus Christi no Espaço e no Tempo. Rio de Janeiro (1759-1828)
Full text linkRESUMO: O objetivo do artigo é captar as mudanças e as permanências no espaço e no tempo da procissão de Corpus Christi da cidade do Rio de Janeiro entre 1759 e 1828, com ênfase no espaço. Para essa finalidade, analisa sobretudo os editais, as tabelas do episcopado e os editais do Senado da Câmara. Em função dos documentos disponíveis, a ênfase é nos roteiros da procissão antes e depois da transferência da corte para a cidade (1808), que permitem sublinhar alterações no poder local ao longo daquele período. Além disso, os roteiros da procissão de Corpus Christi e de São Sebastião são traçados num mapa coevo para reforçar a especificidade do primeiro ritual.
PALAVRAS-CHAVE: Corpus Christi; Espaço; Procissão; Poder; Cidade.
ABSTRACT: The objective of the article is to capture the changes and permanencies in space and time of the Corpus Christi procession in the city of Rio de Janeiro between 1759 and 1828, with emphasis on space. The purpose is to analyse above all the edicts, the tables of the episcopate and the edicts of the municipal council. In accordance with the available sources, the emphasis is on the procession routes before and after the transfer of the court to the city (1808), which allows us to underline changes in local power throughout that period. In addition, the procession routes of Corpus Christi and São Sebastião are drawn on a coeval map to reinforce the specificity of the former ritual.
KEYWORDS: Corpus Christi; Space; Procession; Power; City
Introduction
Full text linkLegal educators increasingly use the classroom to import expertise from scientists and social scientists to better prepare law students to engage in specialized and collaborative fields of practice. Indeed, this project grew out of a paper course on Scientific Evidence in Civil and Criminal Cases offered during the spring 2006 semester at the law school. Students heard from accident reconstruction experts, DNA scientists, forensic pathologist and medical malpractice experts. In February 2006, Dr. Aaron Lazare, Dean and Chancellor at the University of Massachusetts, addressed the law school on a cutting-edge legal theory from his recently published book, “On Apology.” Stimulated by this flow of information from scientists and social scientists, the journal staff invited articles from various scientific and non-scientific disciplines in an effort to identify new forensic theories and consider their relevance and possible application to the law
Computer Programs Under the United States Intellectual Property System: Sui Generis Legislation is Needed
Full text linkSection I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law
Federalist Society’s Intellectual Property Practice Group and its Stanford Law School present a debate on Open Source and Intellectual Property Rights
No full textTranscript of the Federalist Society’s Intellectual Property Practice Group and its Stanford Law School Chapter debate on Open Source and Intellectual Property Rights with panelists Professor Lawrence Lessig from Stanford University and Professor F. Scott Kieff from Stanford University and moderated by Professor G. Marcus Cole from Stanford Law School. This debate took place on Wednesday, March 30, 2005 in Palo Alto, California
Discharging Student Loans via Bankruptcy: Undue Hardship Doctrine in the First Circuit
Full text linkStudent loans are presumptively non-dischargeable through bankruptcy, but the undue hardship doctrine provides an equitable “safety valve” for the indigent. To date, the United States First Circuit Court of Appeals has yet to select a single legal test for determining undue hardship under the United States Bankruptcy Code (“Bankruptcy Code”). Within the jurisdiction of the First Circuit, bankruptcy courts are free to choose an approach to evaluate undue hardship. In an effort to ensure consistency throughout the bankruptcy courts within the First Circuit, it would be ideal if the First Circuit would choose one of the undue hardship tests. However, until the First Circuit changes its position, the concept of undue hardship will be left open to judicial interpretation. This note explores the various undue hardship tests available to the First Circuit, and provides examples of how those tests have been applied by different courts. The two dominant tests in the First Circuit, the Brunner test and the Totality of the Circumstances test, will be explored in depth