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Intellectual property in the circular economy
No full textIt is no revelation that we are on our way to exhausting the limited resources of our planet. We have known it for a long time, even though it has taken decades for the urgency of efforts to reduce the pace and dimension of over-exploitation to be broadly realized. Moreover, the need to prepare for the transition into a more sustainable, circular form of the economic system became part of official policy programmes only recently
Breaking the NCAA\u27s Two-Tiered System: Attaining Full Scholarships for Equivalency Sport Athletes
Get PDFIn June of 2021, the Supreme Court released the Alston decision, invalidating NCAA restrictions on educational-related benefits for Division I football, men’s basketball, and women’s basketball student-athletes. Alston laid the groundwork for future challenges to NCAA rules, with Justice Kavanaugh explicitly encouraging further challenges to NCAA rules in his concurring opinion. This Comment reviews NCAA rules limiting the number of scholarships below the number of scholarship roster spots for certain sports. If these rules were challenged under the Alston framework, they likely would not stand up under the antitrust review for NCAA rules established by Alston.
Furthermore, this Comment suggests that the limits on scholarships below the amount of scholarship roster spots should be removed, while the number of scholarship roster spots should remain. Additionally, no school would be forced to add more scholarships to these programs, and individual conferences could choose to impose scholarship limits if they felt it was necessary to preserve competitiveness within the conference. These changes would allow equivalency sport athletes to receive full scholarships while ameliorating some of the financial and competitive challenges resulting from this kind of change
Forum Fights and Fundamental Rights: Amenability’s Distorted Frame
Get PDFFraming—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum. Even within the biased frame, the test generally works, if not in the trial court at least on appellate review. But exceptions stand out—the English manufacturer that structures its sales to evade United States jurisdiction for injuries in New Jersey where it shipped the defective machine. Not only do a few high-profile cases underscore the test’s failure, there’s a larger concern of the framed analysis in cases that do not come to light, the lower-damage cases in close-call fact patterns that can be routinely dismissed with no appeal or a rubber stamp affirmance. Defendant’s due process thumb on the scale no doubt has at least the same effect in those cases, which are unmeasurable but no doubt occur with at least the frequency as the McIntyre evasions. The framed amenability test is contrary to forum-access rights dating to at least the Twelfth Century, expressly adopted by the American colonies, incorporated in Article III and six constitutional clauses, reflected in case law apart from the amenability test, but ignored over the last half-century of International Shoe’s development. Recent Supreme Court opinions suggest that changing times and technology require a new look at jurisdiction. Based on the considerable history offered here, that revision should focus on the parties and analyze rights versus rights, eliminating or reducing the ill-defined governmental interest analysis
Bending the Rules of Evidence
Get PDFThe evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary rules are typically rigid, leaving little room for judicial discretion. When unforgiving rules require exclusion of evidence that seems essential to a case, courts face a Hobson\u27s choice: stay faithful to the rules, or instead preserve the integrity of the factfinding process. Frequently, courts have found a third way, claiming nominal fidelity to a rule while contorting it to ensure the evidence’s admissibility.This Article identifies and explores this bending of the rules of evidence. After tracing rule bending across many evidence doctrines, the Article explores the normative roots of the problem. Codification has ossified evidence law, effectively driving judges underground in the search for solutions to their evidentiary dilemmas. Rather than trying to suppress rule bending, we advocate legitimizing it. Specifically, the Article proposes a residual exception that would enable trial courts to admit essential evidence in carefully defined circumstances. Such an exception would bring rule bending out of the shadows and into the light with benefits to transparency, legitimacy, and accountability. And perhaps most importantly, it will re-establish trial courts as a partner in the development of evidence law
Reclaiming Regulatory Intermediation for the Public
Get PDFManagerial governance is often operationalized through outsourcing the regulatory function from public institutions—for example, administrative agencies—to private organizations. In virtually any sector, it is possible to identify private “regulatory intermediaries” that step between public agencies and regulated parties to perform tasks traditionally played by government actors—for example, the development of regulatory standards, auditing, compliance assurance, enforcement, and more. Although this reliance on private regulatory intermediaries may in some cases be highly advantageous to government institutions since it may sometimes allow government agencies to do more regulatory work than their own resources and capacity might allow—it comes at significant costs of runaway managerialism and a gradual withering away of public values in regulatory governance. As independent organizations operating in the twilight between public regulatory agencies and regulatory targets and beneficiaries, private regulatory intermediaries have both the incentives and the discretion to facilitate an undiluted managerial ethos in the regulation of entire sectors of industry.This article argues that it is time for the public to reclaim regulatory intermediation from managerialism and redirect it towards public values—that is, those shared by the broader community rather than by some organization or industry sector within the community. However, even if this is a worthy goal, there are deeply rooted institutional challenges to realizing it, including a lack of consensus about what is in the public interest. If managerialism is to be curbed in private regulatory intermediation, it will have to be through institutional and procedural reforms that open contestatory spaces within regulatory intermediation where managerialism’s hegemony can be checked by competing value structures advanced by the public.Building on case studies drawn from regulatory intermediation in the energy sector, I argue here for two reforms that could redirect regulatory intermediation away from managerial imperatives and toward the public interest. First, I suggest that the government pass a Private Administrative Procedure Act (PAPA) requiring private regulatory intermediaries to provide certain processes that afford the public an opportunity to engage with and contest regulatory intermediaries’ actions, much as they would have a chance to do if regulation was conducted by government instrumentalities. Second, following on the lead of the Federal Energy Regulatory Commission’s new Office of Public Participation, I suggest that the government create a new trans-substantive agency—an Office of the Public Interest—that would be charged with imposing and enforcing process reforms and promulgating minimum standards of public care for organizations engaged in regulatory activities, whether private or public
A Crazy Quilt: Infanticide in the United States
Get PDFThis chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust and irrational approach that ignores women’s vulnerabilities and fails to acknowledge the patterned nature of these cases
Crypto in Real Estate Finance
Get PDFBlockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected to use the NFT as collateral to fund their purchase, rather than obtaining a traditional mortgage. Proponents of this novel structure insist that it yields cheap, fast, and secure real estate transfers, disrupting a sector infamous for its high costs, delays, and labyrinthine bureaucracy. This Article offers the first exhaustive examination of crypto real estate transactions. We reveal that the NFT financing model is not a mere technological upgrade, but rather transports parties out of the domain of traditional mortgages and into secured transactions law, with significant legal and policy implications. Most worryingly, it exposes borrowers to swift and irreversible home liquidations in case of default, robbing them of the protections historically afforded to homeowners. As foreclosures already impact minorities disproportionately, crypto real estate transactions risk hurting society’s most vulnerable. Our proposed normative framework seeks to address these flaws. We contend that the law should look past technological mechanisms and focus on substance. These dealings are still real property purchases financed with a loan, so courts should offer those in default the same safeguards available under traditional mortgages. Robust public policies on ownership must be upheld, and fair protections for the family home cannot be sacrificed at the altar of innovation
Policing Protest: Speech, Space, Crime, and the Jury
Get PDFSpeech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, and manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others.
To address these concerns, this Feature makes two critical normative claims. First, scholars and courts alike have failed to prioritize access to spaces properly. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence, at times, is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant’s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech
Clerical-Collar Crime: How Church Members Deal When Church Leaders Steal Church Property
Get PDFChristian churches will lose an estimated $59 billion worldwide to embezzlement in 2022. Embezzlement and other white-collar crimes are property theft crimes characterized by the violation of another’s trust. This Comment names white-collar crimes committed exclusively by church leaders or officials “clerical-collar crimes.” Distinguishing clerical-collar crime from white-collar crime gives weight to and promotes future consideration of the unique problems that arise when church leaders and officials commit clerical-collar crime.Although clerical-collar crime is subject to civil and criminal liability, this Comment focuses solely on victims’ experiences in bringing civil claims against perpetrators of clerical-collar crime in Texas and leaves clerical-collar crime prosecution and punishment to future study. This Comment begins by examining three reasons why churches are uniquely vulnerable to clerical-collar crime. Then, this Comment describes three civil claims church members can bring against perpetrators of clerical-collar crime, two challenges church members face in bringing those claims in Texas, and the difficulty of recovering stolen property due to the judgment-proof problem. This Comment concludes by making several recommendations to protect churches from clerical-collar crime and mitigate victims’ losses
