This Article reflects on the codes of conduct the United States has devised, and has improvised, during the last ten years of the Twilight War. As the polemics have subsided and policies are regularized for the long haul, I focus only on two major issues—codes for interrogating enemy captives and the code for defining the enemy. As “legal realists” have observed, legal doctrines rarely emerge from classrooms and often not even from courts. This is then a personal history of how these legal policies took shape and evolved. But one of the most important insights to take away from this historical episode was that the advocates for the radically new codes of conduct framed the issue as a legal question—substantively and bureaucratically. Instead of framing the question around what “should” be done, carefully inventorying prior U.S. and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what “can” be done. If it does nothing else, this episode should reveal the dangers implicit in this habit of thought.
The Essay also underscores the policy and even management value of well-defined, politically sustainable guidelines for secret operations to kill enemies and deal with captives. Because the government must entrust intelligence operatives with exceptional power, a fundamental social contract forms. Such a social contract is an essential foundation to granting intelligence agencies and military departments, with thousands of employees conducting many operations around the world, extraordinary powers to intercept communications, break laws in other countries, and even use lethal force to defend the country—all in secret. When the contract is broken, trust breaks down and all sides will lose.
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this overlooked issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms under certain conditions would better reflect the basic tenets of harm-based retributivism—the theory at the heart of many sentencing schemes. The Article acknowledges some of the concerns that considering these harms raises and argues that a proximate causation analysis is essential to limit the harms considered in sentencing while acknowledging the full array of harms caused by criminal conduct. This notion of “proximate retribution” is necessary to rein in criminal liability under the theory.
Across numerous areas of the law—including family law, criminal law, labor law, health law, and other fields—when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, however defined, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept of maturity in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.
Markers of maturity in the law frequently occur at different points in time. An examination of key indicators of maturity under the law reveals that the law is inconsistent, not only across issues but also within the same issues. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work or contract), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places).
In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked—cultural conceptions of maturity. Thus, this Article seeks to bring cultural perspectives on maturity into the dialogue. Ultimately, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.
The death knell for print journalism has tolled ominously for fifteen years. Although newspapers have been the source of daily news for most of the world since the early seventeenth century, the immediate and widespread acceptance of the Internet and online news has likely sounded the inevitable end for newspapers. This is evidenced by the radical decline in newspaper revenues, which has caused many newspapers to go out of business and others to cut their staffs significantly.
Newspaper companies contend they are losing business to news “aggregators” who do not expend resources gathering and reporting the news, and instead distill a newspaper’s newly published content and republish it on their own websites. Consumers may then read the stories on aggregators’ websites, rather than the newspaper’s website. Several commentators and the Federal Trade Commission have suggested that the “hot news” doctrine be used to prevent the further decay of the print journalism industry, and the Second Circuit Court of Appeals recently reaffirmed the survival of the hot news tort in Barclays Capital Inc. v. Theflyonthewall.com.
This Comment argues that because the hot news doctrine provides the originator of factual information with the exclusive right to disseminate that information, the doctrine is incompatible with traditional intellectual property law and the First Amendment. As consumers and advertisers turn to the Internet for interest-focused content, the doctrine will not protect newspapers from facing financial difficulty. It, therefore, does not justify the restraint it places on the dissemination of truthful information. The potential exists for drastically better journalism in the digital world because the consumer can interact, comment, and seek out the information that is of interest to him. The courts should not hinder this development by providing newspapers with rights that were never meant to be within their power.
According to pollution-haven hypothesizers, as environmental regulations increase in First World countries and raise costs of production, pollution-intensive industries will migrate into developing countries with less-stringent regulation. This occurrence is also known as the “race to the bottom” or “industrial flight.” The result is an ironic causal chain where developed countries’ measures on behalf of sustainability become a catalyst for the exploitation of lesser protected areas and peoples.
There is much reason to believe that environmental regulation will increase in the developed world, particularly in the United States, exacerbating the potential for industrial flight and its resultant scenarios. Added attention to global warming and other environmental issues continue to spur the adoption of new regulations and standards that industries must adhere to. Resultantly, businesses worry about the effect of mounting controls on their market competition. The fear is that many corporations will move their operations overseas to countries that prioritize the benefit of economic development over the cost of environmental degradation.
While there is a heavy amount of literature on industrial flight, international environmental injustice, and redress for environmental harms, much less exists that ties these concepts together. Additionally, recent developments merit an update into the examples and obstacles of the subject. This Comment will thus provide a comprehensive investigation of pollution havens from their originating circumstances to their resulting environmental atrocities and discuss the limitations of recovery for foreign victims, as well as potential solutions to these problems.
In 1990 the Fourth Circuit held that the copyright misuse doctrine constitutes a valid affirmative defense against claims of infringement. This doctrine prohibits copyright holders from impermissibly expanding the scope of their copyrights. However, the courts have been hesitant to allow this defense in situations where copyright holders license primarily to restrict resale of copyrighted software or to prohibit third-party use of software licensed to a customer, even for general computer-servicing purposes such as trouble shooting and software maintenance. This Comment reviews the purpose of the copyright misuse doctrine and its application by the Federal Appellate Courts. It argues that in two specific scenarios the copyright misuse doctrine should be a viable defense against claims of copyright infringement.
The first scenario occurs when a copyright holder licenses its software primarily to restrict resale in the secondary market. Such licenses are simply sales disguised as licenses. Moreover, they exclusively benefit the copyright holder and entirely disregard the primary policy behind copyright law of securing for the public the benefits derived from the copyright worked. If all copyright holders began utilizing these types of licenses it could very easily lead to the demise of secondary markets, such as used book and software stores.
The second scenario occurs when a copyright holder prevents third parties from servicing a customer’s computer using software licensed to the customer. Such practices risk giving copyright holders an absolute monopoly on the service market associated with their software. While copyright law encompasses many rights, control of the service market for the copyrighted work is not one of these rights.
By providing and analyzing data about the appellate process, this study aims to help lawyers understand the types of cases that are most often reversed and the most common reasons for reversal in the Texas courts of appeals. For practitioners formulating a post-judgment strategy, this study is meant to provide a starting point toward a reasoned, accurate evaluation of the potential appeal and a tool to use in selecting the points deserving of the greatest emphasis on appeal. The study found that the statewide reversal rate in civil appeals is 36%. The study also found that the courts of appeals reverse judgments entered on jury verdicts at a higher rate than summary judgments, reflecting a recent shift toward reversing judgments entered on jury verdicts and a shift away from reversing summary judgments. Over the nine-year period since the study was last conducted, tort plaintiffs have responded to an increasingly difficult litigation climate by filing fewer cases, taking fewer cases to judgment, and appealing fewer cases to the courts of appeals. But even though tort and DTPA plaintiffs have been “picking their battles” more selectively, they have not experienced any greater success on appeal.
In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (Festo II), the Supreme Court addressed the role of prosecution history estoppel as a limitation on the doctrine of equivalents. The Court announced three specific situations where a narrowing amendment related to patentability does not trigger prosecution history estoppel. One such situation occurs when the rationale behind a patentee’s narrowing amendment bears “no more than a tangential relation to the equivalent in question.” Nine years after Festo II, there is still no consistent definition for when a narrowing amendment is tangential.
This Comment provides the necessary framework to discern whether a tangential limitation triggers prosecution history estoppel. A narrowing amendment contains a tangential limitation when two conditions are met: (1) the patentee argues during prosecution that it made the narrowing amendment solely to distinguish its invention from a feature found in prior art; and (2) the purpose behind the narrowing amendment was to clarify a feature different from the one the patentee is asserting has been infringed under the doctrine of equivalents. Additionally, this Comment argues a limitation found in a narrowing amendment is never tangential if it specifies a limited physical range, so the patentee cannot argue something falling outside that limited range infringes under the doctrine of equivalents.
Environmental concerns pose real problems for the manufacturing industry. Not only do producers face constrained access to natural resources, but they are also under pressure from environmental action groups to reform wasteful processes. To remain competitive, manufacturers can either fashion cheaper, more disposable products or they can design products to promote repair, remanufacturing, and repurposing. But the latter solution both increases manufacturing costs and diverts potential revenue to third party remanufacturing companies. Without means of recovering these costs, manufacturers will be dissuaded from employing environmentally conscious solutions.
The patent system allows inventors to internalize research and development costs without worrying about unencumbered competition in the market for the patented item. By doing so, the patent system provides incentives to invent, disclose, and innovate. It can also provide an incentive to design for remanufacturing. Implementation of an ancillary system for tracking claims of environmental improvement within the overall body of an existing patent allows the Patent Office to offer a simple means for recovering front-end investments in environmentally conscious manufacturing. Quantitative methods already exist to classify these environmental design improvements. Patent examiners would only need to verify the improvement level of a given design process against these methods in allowing the claims. In an issued patent, remanufacturing claims would offer a defense to the doctrine of exhaustion, allowing a company to retain limited use rights in the refurbishment of its product.
The Internet—both its bright and dark sides—poses challenges not previously faced by copyright law. Adding still more provisions to an already complex Copyright Act is not the best way to respond. Rather, Congress should simplify and reconstruct the Act around five principles: (1) Copyright law should promote copyright commerce; (2) Copyright law should extend exclusive rights into every corner where they have value, except where transaction costs of harm to fundamental values outweigh the value of market transfers; (3) Copyright law should promote, not discourage, innovation in reducing transaction costs; (4) Copyright should not extend exclusive rights where the resulting harm to fundamental values outweighs the value of market transfers; and (5) A copyright statute should promote fidelity to copyright law.
Trademark: Today and Tomorrow
Words are the prototypical regulatory subjects for trademark and advertising law, despite our increasingly audiovisual economy. This word-focused baseline has continuing consequences for the Lanham Act, which often misconceives its object, resulting in confusion and incoherence.
The paper explores some of the ways courts have attempted to fit images into a word-centric model, while not fully recognizing the particular ways in which images make meaning.
Trademark: Today and Tomorrow
The functionality doctrine serves a unique role in trademark law. It is one of very few doctrines that can claim the mantle of a true defense: unlike virtually every other doctrine, a functionality finding can trump consumer understanding (or so it seems, at least in mechanical functionality cases). But despite the potential power of the doctrine, it is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine is ultimately reducible to a determination of the effect of exclusive rights on competition. And it is even worse with respect to aesthetic functionality: courts often resist applying the doctrine where it seems called for, and some even reject the concept outright. I argue that the problems with functionality are largely intractable because they reflect a much bigger problem: trademark law lacks a sufficiently robust theory of competition against which particular actions can be judged “unfair.” Courts have long struggled, for example, to determine whether patent law sets the competitive baseline with respect to functional product features such that trademark law must stay clear, or whether, instead, courts should inquire into competitive need on a case-by-case basis. And they have long simply assumed that access to mechanically useful features is much more competitively important than access to aesthetic or ornamental features, even where the evidence points rather strongly to the opposite conclusion. This Essay suggests that the functionality doctrine remains muddled because it reflects these underlying tensions, and that none of the debates can be resolved simply by reference to economics. Each view reflects a normative judgment about the “natural” structure of a competitive market.
Trademark: Today and Tomorrow
Trademark law’s goal seems, at first, wonderfully straightforward. It prevents the deception of consumers regarding the source of products and services. This, in turn, leads to an important associated benefit: investments in the quality of products and services designed to bolster trademark goodwill.
Yet when we explore contemporary trademark jurisprudence, a cast of entirely foreign commitments bedevilling this core logic confronts us. This Essay identifies four “daemons” of trademark jurisprudence, four alternative inner animi that motivate the actions of courts considering trademark cases. They are: the daemon of creativity, the daemon of identity, the daemon of
efficiency, and the daemon of fair use.
All of these daemons are well-intentioned creatures, yet none of them serve the foundational function of trademark law. Instead trademark’s daemons threaten the integrity of its mission. Accordingly, I propose that they be rooted out and exiled from the domain of trademark.
Trademark: Today and Tomorrow
Surprisingly, we still lack basic information concerning trademark application “grant rates” (i.e., the percentage of trademark applications that result in registration) at the U.S. Patent and Trademark Office. We thus lack data that are crucial to assessing, among much else, overall “trademark quality” at the PTO (i.e., the reliability of trademark registration status at the PTO as an indication of actual trademark validity). Working from a previously unstudied dataset covering U.S. federal trademark applications since the late nineteenth century, this paper reports and analyzes U.S. federal trademark application grant rates along a variety of dimensions, including by year and basis of application, by type of mark, by country of applicant, and by industry category and goods and services classification. The paper focuses in particular on the 27-year period from 1981 to 2007, during which the PTO received some 4.2 million applications for trademark registration and with respect to which the dataset’s data appear to be especially reliable.
Trademark: Today and Tomorrow
Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) “knockoffs,” in which design attributes have been copied but trademarks have not. Toward that end, as a normative matter the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible for Lanham Act protection. With enough advertising, any product feature can acquire distinctiveness. Only the assertive deployment of functionality bars by courts can prevent the illegitimate and costly construction of trademark-based product monopolies.
The purported trademark related harms that stem from the production and distribution of noncounterfeit knockoffs are, in reality, the effects of legitimate competition based on attributes such as price, quality, consumer appeal, and availability, with which trademark law should not interfere. Repressing or illegalizing knockoffs illegitimately prevents lower income people from procuring and enjoying goods with aesthetic attributes that are not properly monopolized through trademark law, and probably perversely increases the demand for counterfeit items.