8353 research outputs found
Sort by
Beyond Trademark: The Washington Redskins Case and the Search For Dignity
Get PDFIn her pioneering book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, Professor Bernadette Atuahene employs a detailed ethnographic study of South Africa’s land restitution program to develop the concept of a dignity taking. This article extends the application of Atuahene’s theory to the taking of intangible property arguing that the misappropriation of cultural identity and imagery for use as a federal trademark can also constitute a dignity taking in certain cases. Perhaps no effort has received more public attention than the longstanding battle over the Washington NFL football team’s name and its federally registered “Redskins” trademarks. The team’s trademarks have been the subject of organized protest and litigation for decades. The Supreme Court recently invalidated the trademark law’s prohibition on disparaging marks in another case leading to the dismissal of the longstanding challenge by the Native petitioners. This article looks beyond the challenge under federal trademark laws and explores whether the appropriation and commodification of the racial slur “redskins” and associated cultural imagery by the continued federal registration of the Washington team’s trademarks should be deemed a dignity taking. This article first argues that the continued federal registration and use of these trademarks by the team constitutes both a direct and indirect taking of property sanctioned by the state. The federal registration sanctions a misappropriation of the identity, cultural rights, and personhood of Native people. This article then argues that the federal property right granted as a result of the taking of this racial slur and its associated cultural imagery has led to cognizable harms to the dispossessed Native population. The article uses first-person narratives to demonstrate that Native self-esteem, self-confidence, and self-identity are degraded by the federally sanctioned misappropriation of these names and mascots. The pervasive use and commodification of this particular slur fosters an environment causing the Native community to experience forms of infantilization and dehumanization. Atuahene’s dignity takings framework provides a useful lens and a jumping-off point to further theorize the fundamental right of dignity, this particular takings controversy and other disputes involving harms caused by the misappropriation of both tangible and intangible forms of cultural property
A Canadian Lens on Third Party Litigation Funding in the American Bankruptcy Context
Get PDFThis Article offers two major recommendations to expand the use of third party litigation funding (“TPLF”) into the U.S. insolvency context. As seen in the Canadian context, courts have accepted the use of litigation funding agreements fitting within certain parameters. If U.S. courts follow suit, friction against the implementation of TPLF can be mitigated. Alternatively, regulation may occur through legislative and regulatory models to govern and set out precisely what types of arrangements are permitted. Involving entities such as the SEC may expedite the acceptance of TPLF, but special attention is necessary not to intermingle notions of fiduciaries into the discussion of TPLF, as there are contentious definitional elements present. Ultimately, a framework wherein regulation coupled with judicial oversight presents the best opportunity for the United States to adopt TPLF in the insolvency context to ensure maximum delivery of benefits to vulnerable parties
Market Organisations and Institutions in America and England: Valuation in Corporate Bankruptcy
Get PDFCourts in England and the United States have traditionally adopted different approaches to the question of valuation in debt restructuring cases. In England, courts have tended to determine whether to approve the allocation of equity in a debt restructuring by reference to the amounts creditors would have received if no debt restructuring had been agreed. The company has typically argued that if no debt restructuring had been agreed either the business or the assets would have been sold. Typically, some evidence of exposure of the business and assets to the market will be submitted to identify the value which would have been achieved in this “counterfactual scenario.” This contrasts with the approach in the United States, where bankruptcy courts have typically avoided reaching decisions on value based on exposure to the market and have relied on the views of the parties’ valuation experts expressed using traditional valuation methodologies.
One benefit of the U.S. approach has been that the uncertainty of the outcome of the valuation litigation has incentivised the parties to bargain, arriving at a consensual deal. However, this paper argues that changes in the organisational and institutional structure of financial and non-financial markets have fundamentally affected the utility of this “bargaining and litigation” model. It argues that changes in the informal rules, norms and beliefs held by market participants make bargaining less likely, and increase the prospects of litigation. It suggests that this insight has implications for the reform of debt restructuring procedures in the United Kingdom, Europe and the United States
Treating Employees Like Widgets: The Legal Impact of Workforce Management Systems on Contingent Workers
Get PDFDignity Takings in Gangland’s Suburban Frontier
Get PDFThis paper engages the evolving dignity takings framework, first developed by Bernadette Atuahene, in the context of contemporary American street gangs (e.g. Crips, Bloods, Latin Kings, etc.). Contrary to most popular accounts, it starts with a reimagined and complicated notion of street gangs that emphasizes not their secondary or tertiary violence and criminality but their primary function as corporate institutions engaged in the sustained, transgressive creation of alternative markets for the creation of the types of property interests that scholars have associated with the development and pursuit of identity and “personhood.” From this perspective, the paper applies the dignity takings analysis to public nuisance abatement actions (commonly known as gang injunctions), which have become standard tools in the national gang strategy. These civil mechanisms enjoin the conduct and activities of the gangs, prohibiting named individuals from engaging in a panoply of otherwise legal activities: e.g. displaying gang symbols, wearing clothing or colors associated with a gang, possessing tools or objects capable of defacing real or personal property (e.g. pens), and appearing in public view with a known gang member. Through qualitative analyses of interviews, court documents, and political hearings, the paper demonstrates that the dispossession of identity property associated with suburban gang injunctions depresses self-esteem, erodes self-confidence, damages identity and feelings of community worth, and dehumanizes enjoined individuals in a way that deprives them of their fundamental right of dignity, constituting a clear example of a dignity taking
Dignity Takings and Dehumanization: A Social Neuroscience Perspective
Get PDFDehumanization is an important element of legal theorizing about property confiscation by state or governmental authorities that result in dignity takings. Psychologists have theorized about dehumanization for decades, yet have only been able to subject the topic to empirical examination over the last 15 years or so. Moving the topic from the armchair to the laboratory has revealed a number of surprises to lay theories about dehumanization. First, everyone is capable of dehumanizing another person. Second, the social context determines when dehumanization takes place. Third, dehumanization does not always lead to negative behavior. Fourth, dehumanization is functional, allowing the completion of a task at hand. Fifth, dehumanization avoids empathy exhaustion. Here, I will summarize the state of the psychological literature on dehumanization, and explain the impact of dehumanization in a legal context by reviewing the few such studies in the literature. I will then review how each of the five scientific discoveries regarding dehumanization applies to the concept of dignity takings, as discussed in the other papers in this review. I will also consider a distinction in the use of the concept of dehumanization regarding dignity takings compared to the psychological literature. Finally, I will conclude by discussing further implications for property, labor, health-care, and education law regarding dehumanization and dignity takings
Creating the Urban Educational Desert through School Closures and Dignity Taking
Get PDFClosures of urban open-enrollment neighborhood schools that primarily serve students of color are intensely controversial. Districts seeking to economize often justify closures by pointing to population shifts in historically densely populated urban areas. They argue that net reductions in a neighborhood’s school-aged population result in underutilized schools, which do a disservice to students at higher cost to districts. Students and their families and communities counter, pointing to histories of district neglect of their schools and recent school expansions in more affluent neighborhoods of similar population density as belying district claims of utility-based downsizing. In this article, I use a critical discourse analysis (CDA) of Chicago Public Schools’ (CPS) school closure hearings process for William H. King Elementary School to show how affected communities experience formal process-driven school closure as an “abnormal justice” moment, characterized by “misrecognizing” community-based notions of property, “misrepresenting” these interests in how they characterize the school’s value, and “maldistributing” the physical school property through closure. I argue that closing schools in this manner compounds the physical property loss with a “dignity taking” that leaves an “educational desert” in its aftermath, with implications for laws on educational property interests
Damaged Bodies, Damaged Lives: Immigrant Worker Injuries as Dignity Takings
Get PDFGovernment data consistently affirms that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled with state-sanctioned hostility towards immigrants, creates an environment where immigrant workers are deemed to be sub-persons, and where employer impunity abounds. Drawing upon data gleaned from a research study of immigrant day laborers in northern Virginia, the article describes a range of practices by employers in cases of workplace accidents, noting the circumstances that are indicative of dehumanization, and thus, dignity takings
