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Deconstructing Shanzhai - China\u27s Copycat Counterculture: Catch Me If You Can
Get PDFWhat is a “Chinese copy”? And why does China have a reputation as the quintessential “copycat culture,” where nimble knock-offs of virtually any article are in the daily news and respect for and protection of the intellectual property owned by others is widely perceived to be either weak or non-existent? Are copying and creativity diametrical opposites, two sides of the same coin, or unrelated to one other? Are wildly successful imitators uncreative? Does the charge that “the Chinese are the masters of copying” reflect something unique about China’s traditions and culture? Do China’s cultural traditions (particularly Confucianism) foster copying or suppress creativity? Is copying the works of others so embedded in Chinese culture that the copyists are totally unconcerned about the fact that what they are doing is copying? Or are they engaged in a new kind of innovation and social commentary
Shaken Baby Syndrome as Felony Murder in North Carolina
Get PDFThis Article argues that the North Carolina criminal law’s treatment of Shaken Baby Syndrome should be reformed. Rather than leaving in place a legal regime that allows the state to prosecute all Shaken Baby Syndrome cases as first-degree murder, the law should distinguish between accidental and purposeful killings. If the state wishes to punish Shaken Baby Syndrome cases with special severity, the General Assembly should make this policy choice explicit. In making this argument, this Article proceeds in three parts. First, this Article examines how and why North Carolina subjects all Shaken Baby Syndrome deaths to prosecution as first-degree murder. Part I examines the two rules that, when combined, achieve this result: North Carolina’s felony murder rule, and the State’s codification of the crime of felonious child abuse. Second, this Article digs deeper into the felony murder doctrine, arguing that North Carolina’s felony murder rule is indefensible in the Shaken Baby Syndrome context. Finally, this Article’s conclusion suggests reform of the way the North Carolina criminal law treats Shaken Baby Syndrome cases. This Part argues for legislative and judicial reform that would limit North Carolina’s felony murder rule in child abuse cases. If the State wishes killing children to be punished more severely than killing an adult, the General Assembly should make that policy choice explicit. In the absence of such reforms, prosecutors should take it upon themselves to exercise sound discretion. Prosecutors should bring first-degree murder charges only in those Shaken Baby Syndrome cases that involve a defendant who acted with the premeditated design to kill or with knowledge that death would result from his actions
In Praise of Pension Reform
Get PDFThis article will examine the current state of the law as compared to the situation that existed prior to the passage of ERISA. An exhaustive analysis of the intricate details of ERISA is not intended. Nevertheless, a comparison of some of the most salient provisions of pre-ERISA and post-ERISA law will reveal that things were not all that good before September 2, 1974, and they are not all that bad now
Constitutional Law - Confronting Accused with Evidence Against Him as Interrogation Within the Meaning of Miranda
Get PDFHundreds of cases have grappled with the application of the United States Supreme Court\u27s decision in Miranda v. Arizona. Many of those cases have dealt with the question of what constitutes custodial interrogation requiring Miranda warnings by law enforcement officers before statements elicited from a defendant may be used against him. In State v. McLean, the North Carolina Supreme Court held that, under the facts of that case, confronting a defendant with evidence against him does not constitute interrogation. Therefore, statements made by the defendant properly were admitted against him even though he had not been advised of his rights under Miranda
Installment Land Contracts in North Carolina
Get PDFAn installment land contract is a fairly simple conveyancing device, somewhat analogous to a conditional sales contract for personal property and is the most commonly used substitute for the purchase money mortgage or deed of trust. The vendor agrees to convey the described premises upon payment by the purchaser of a specified purchase price and upon performance of any other obligations outlined in the contract. The down payment is generally minimal, with the balance of the purchase price to be paid in installments at regular intervals over an extended period. Like a mortgage, installments are applied to principal and interest and the debt may extend over relatively short periods or for periods exceeding twenty years. Commonly, the vendor retains legal title until the final payment is made, at which time the deed is delivered to the purchaser, sometimes under an escrow arrangement made simultaneously with the installment contract. Some land sale contracts call for a deed to the purchaser after a certain percentage of the purchase price has been paid, at which time the purchaser delivers to the vendor a purchase money mortgage or deed of trust to secure payment of the balance. The purchaser usually takes possession at the time the installment contract is executed and assumes responsibility for taxes and upkeep of the property
Change to the Best Mode Requirement in the Leahy-Smith America Invents Act: Why Congress Got It Right
Get PDFThe Leahy-Smith America Invents Act (AIA), signed into law on September 16, 2011, represents the most significant overhaul of the United States Patent system since the Patent Act of 1952. In addition to making the United States a “first-to-file” system, which is more in line with the patent law of other countries, the act institutes numerous other changes aimed at ensuring that the United States “maintains its competitive edge in the global economy.” One of these changes eliminates failure to disclose the best mode as a defense in patent infringement litigation. Proponents applaud the change for the positive effect it will have on patent litigation, specifically, reducing the time and cost of litigation by eliminating pre-trial discovery associated with trying to ascertain what the inventor knew when the patent application was filed. The critics bemoan the change, arguing that the law removes the only enforcement mechanism to ensure that the inventor will fully disclose the invention to the public. This Comment explores the reasons for making the change, the practical effect those changes will have on best mode disclosure, and why the new law will not have the undesirable effect of reducing best mode disclosure
The Elusive Marketplace in Post-Bilski Jurisprudence
Get PDFThe Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine