3722 research outputs found
Sort by
Solving Solar: How Past Policy Collides With Future Technology
Get PDFThis Comment discusses the importance of developing a solar waste management plan. Specifically, this Comment presents the argument that the United States should not create a large federal regulatory framework that includes expansive subsidies for solar panel recycling, but instead should invest in solar recycling technologies that offer solar recyclers the opportunity to profitably recycle junk panels. Ultimately, the federal government’s role should be limited to one of investment and support as states craft solar waste management systems that work for them.
In support of this argument, this Comment explores the history and future of solar panel development, the current state of solar production and recycling, and the magnitude of the threat solar waste presents. Additionally, this Comment discusses how nations outside the United States are addressing the solar waste problem, the advent of new solar recycling technologies, how Congress may adapt the existing Resource Conservation and Recovery Act to include solar panels and encourage recycling of junk panels, the success story of lead-acid battery recycling, and what the solar recycling network of the future may look like.
Ultimately, this Comment concludes that given recent advancements in recycling technology, with proper planning, encouragement, and investment from both state and federal governments, the private sector will be incentivized to recycle used solar panels without burdensome government intervention while sustaining a profitable business. Such a result will create a truly clean and renewable source of energy and relieve American taxpayers from bearing the cost of expensive solar recycling subsidy programs
Reconceiving Argument Schemes as Descriptive and Practically Normative
Get PDFWe propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call practically normative assessments. We distinguish this practical normativity from the rationally or universally normative assessment that might be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be subject to rational critique, and the scheme avoids the is/ought fallacy. We ground our theoretical discussion and observations in an empirical study of US district court opinions resolving legal questions about copyright fair use and the lawyers’ briefs that led to them, instantiating our definition of argument scheme in the “argument for classification by precedent.” Our definition addresses some criticisms the argument-scheme construct has received. For example, using our data, we show that a minimally well formed instance of this type of argument does not shift any conventional burden from the proponent of the argument to its skeptics. We also argue that these argument schemes need not be seen as dialogical
Mass E-Carceration: Electronic Monitoring as a Bail Condition
Get PDFOver the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects on individuals’ economic stability, relationships with family and their community, and physical and mental health.
Pretrial electronic monitoring should be severely limited if decisionmakers follow the inquiries required by the Eighth Amendment, Due Process Clause, and state law and require the government to prove that the bail condition is the least restrictive condition that could mitigate the risks of flight and to public safety. This Article examines those standards in depth and observes that electronic monitoring provides an opportunity to clarify some of the uncertainty that has surrounded these inquiries when previously applied primarily in the context of monetary bail
“In These Times of Compassion when Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization, and Support Vulnerable Persons in the Legal Process
Get PDFThis Article considers the extent to which caselaw has—either explicitly or implicitly—incorporated the precepts of therapeutic jurisprudence (“TJ”), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that with these principles as touchstones, TJ can be an effective tool—perhaps the most effective tool—in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestic and international)—a review that, to the best of my knowledge, has never previously been undertaken—suggests that an incorporation of TJ principles is by no means a sure thing.
First, I briefly consider the creation and dynamic growth of therapeutic jurisprudence over the past 30 years, looking specifically at the interplay between TJ and values of dignity and compassion. Then, I assess the role of TJ in dealing with issues most central to this Article: bias, polarization, and vulnerability. I next review court decisions—both domestic and from other nations—in which TJ is explicitly mentioned (and in some cases, relied upon). Following this, I look at some other relevant caselaw in which (1) TJ implicitly helped bring about a solution that minimized bias or polarization, or offered support to vulnerable persons or classes; (2) the failure to employ TJ led to decisions that reinforced bias and ignored the needs of those who are vulnerable; or (3) a determination of one’s perspective is needed to determine if one sees the case as “pro-TJ” or “anti-TJ.” I then, in conclusion, offer some modest suggestions as to how TJ can best be employed to ensure decisions that are, optimally, bias free via approaches that improve therapeutic functioning and do not sacrifice civil liberties
Redressing Sustainable Fashion Practices: Upcycling as a Defense to Trademark Infringement
Get PDFUpcycling is a fashion trend that has recently gained popularity because it is a more sustainable option for those seeking to purchase new pieces for their wardrobes. Upcycling involves deconstructing pre-owned pieces of clothing, jewelry, and accessories and using the deconstructed materials to create “new” fashion items. While this practice is popular among those looking to make environmentally conscious shopping choices, it is incompatible with our current trademark statutes and common law doctrines. Under the Lanham Act, it is considered trademark infringement to use another’s trademark when it is likely to cause confusion among consumers. In most instances, the use of upcycled materials that bear another brand’s trademark would likely cause confusion among consumers. This Comment proposes an amendment to the Lanham Act to create an affirmative defense for upcycling
An Imperfect Solution: The Due Process Case for Providing Court-Appointed Interpreters for Pro Se Plaintiffs
Get PDFA federal law, the Court Interpreters Act, provides litigants with complimentary access to a qualified or professionally certified interpreter in actions instituted by the United States. The majority of pro se civil litigation in federal courts is initiated by the United States, and thus, those pro se litigants who speak little-to-no English need not pay for access to an exceptional interpreter. Indeed, federal courts offer interpreters proficient in a multitude of languages, and the courts work hard to ensure adequate interpretation in proceedings brought by the United States.
However, those limited-English-proficient pro se plaintiffs initiating their own lawsuits face a steep climb to vindicate their private rights against nongovernmental defendants. Beyond the inherent challenges associated with filing and proceeding absent legal counsel, these litigants further proceed absent the language skills necessary to understand the meaning and effect of a court’s hearings. The Court Interpreters Act effectively ignores this class of litigants. While federal district judges have the power to appoint interpreters for civil litigants on a discretionary basis, district judges do not always exercise this power. Anything short of a mandate to provide interpretation services to the small group of non-English-speaking pro se plaintiffs overlooked by the Court Interpreters Act risks continued denial of their right of meaningful access to the courts.
In this Comment, I argue that under both common sense and the procedural due process Mathews factors, language access is a material component of a litigant’s right to be heard. Our judicial system works hard to accommodate pro se litigants while also denying those pro se litigants who lack adequate English skills access to an interpreter. To remedy this flagrant unfairness, I propose that the Administrative Office of the United States Court should amend its Policy Guidance so that pro se plaintiffs pleading a colorable cause of action receive interpretation services as needed
Trademarks
No full textTrademarks are one of the most economically valuable intangible business assets and most traders seek to market their products beyond national borders. However, the legal protection of trademarks remain territorial so to resolve the tension between the need to trade products across borders and the principles of territoriality and national sovereignty, national trademark laws have been largely harmonized through several multilateral treaties. This entry to the Encyclopedia on Comparative Law offers a summary of the most relevant treaties in this area, which are administered today by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). In particular, it elaborates on the trademark provisions of the Paris Convention for the Protection of Industrial Property (Paris Convention), the Agreement on Trade-Related Aspects to Intellectual Property Rights (TRIPS), and the WIPO-administered post-TRIPs international legal instruments. This short paper also describes the current international framework of the substantive standards and administrative requirements utilized to facilitate national trademark registrations
Two Decades of TRIPS in China
Get PDFThis chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the changing Chinese intellectual property landscape has altered developing countries’ coalitional dynamics within the WTO
A Public Technology Option
Get PDFPrivate technology increasingly underpins public governance. But the state’s growing reliance on private firms to provide a variety of complex technological products and services for public purposes brings significant costs for transparency: new forms of governance are becoming less visible and less amenable to democratic control. Transparency obligations initially designed for public agencies are a poor fit for private vendors that adhere to a very different set of expectations.Aligning the use of technology in public governance with democratic values calls for rethinking, and in some cases abandoning, the legal structures and doctrinal commitments that insulate private vendors from meaningful transparency and accountability requirements. This Article offers three suggestions to achieve this realignment: reducing protections for trade secrecy, enhancing whistleblower protections, and developing a “public option” to compete with private domination
Silencing Litigation Through Bankruptcy
Get PDFBankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use of bankruptcy. Whereas the current literature largely discusses mass tort bankruptcy from a doctrinal, constitutional, or economic perspective, this Article examines how bankruptcy proceedings like these cause direct harms to survivors, to public trust in the justice system, and to the corporate economy. It traces the evolution of defendants’ use of bankruptcy to resolve mass torts from asbestos, IUD, and breast implant product liability litigation to its present-day use in controversies involving the Catholic Church, Purdue Pharma, the Weinstein Companies, USA Gymnastics, the Boy Scouts of America, Alex Jones’s Infowars, and Johnson & Johnson. The Article shows how the prior use of reorganization for mass torts created the necessary conditions to allow defendants to use bankruptcy to silence people and facilitate cover-ups in a wider variety of onslaught litigation. It concludes with a normative proposal for the narrow circumstances in which courts should allow bankruptcy to be used to deal with onslaught litigation, while still preserving the voices of those harmed