Category: Notes

The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

From Volume 79, Number 4 (May 2006)
DOWNLOAD PDF

America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.

 

79_945

Rxxx: Resolving the Problem of Performer Health and Safety in the Adult Film Industry – Note by Maria de Cesare

From Volume 79, Number 3 (March 2006)
DOWNLOAD PDF

No matter how much fascination it may provide to the lives of the lonely, the curious, the adventurous, or the ordinary, it is undeniable that pornography poses problems. This statement is not startling or revolutionary; no other industry has unfailingly produced equal parts astounding revenue, excitement, shame, and fear among every echelon of society. For decades, the adult film industry has operated a thriving worldwide empire centered in Southern California, generating billions of dollars in revenue and producing thousands of films per year. Notwithstanding its status as one of the largest industries in a heavily regulated state, the adult film industry has flourished for decades without a discernible trace of government oversight. In recent years, however, a particularly insidious problem within the industry has perched itself precariously at the threshold of the public consciousness and has threatened to end the government’s historical indifference toward the industry’s practices.

In the spring of 2004, a spate of HIV infections among performers in the Southern California adult film industry induced a panic when it was discovered that over sixty performers had been exposed to the disease. In response to the potential outbreak, several major pornography companies voluntarily halted production for several weeks, and over fifty performers who had been identified as having sexual intercourse with the infected performers agreed to place themselves on a “quarantine list,” ceasing all adult film work while awaiting their HIV test results. Although the industry’s proactive response managed to contain the infection’s spread, the crisis sharply called into question the adequacy of current screening and testing procedures in the adult film industry, and underscored the need for increased preventative measures.

 

79_667

Dealing in Debt: The High-Stakes World of Debt Collection After FDCPA – Note by Lauren Goldberg

From Volume 79, Number 3 (March 2006)
DOWNLOAD PDF

Judi Norwood graduated from Arizona State University in the late 1990s. Due to the downturn in the economy, Judi was unable to find a job and consequently defaulted on the relatively small amount of money due on her MBNA credit card, about $2000. After pursuing Judi for months, the credit card company abandoned its efforts. Believing the bad situation was behind her, Judi moved to Florida, married a surveyor, had a son, and began her current job as a waitress. In the subsequent years, the small family saved $5000 to put toward a down payment on a home. Less than a week before the deal was set to close, Judi was targeted by an attorney at Asset Acceptance, a consumer small-debt-buying company, hoping to collect her old MBNA debt. Without presenting adequate information about the debt’s validity, the attorney threatened suit in small-claims court unless Judi immediately paid her debt, which Asset Acceptance claimed had risen to nearly $7000. This amount far exceeded the original debt and was equivalent to nearly twice the credit limit on the card. Because Judi was unaware that she was not legally obligated to pay an arguably time-barred debt, she felt cornered and settled the suit for significantly more money than she originally owed to MBNA.

 

79_711

Social Ties in the Boardroom: Changing the Definition of Director Independence to Eliminate “Rubber-Stamping” Board – Note by Rachel A. Fink

From Volume 79, Number 2 (January 2006)
DOWNLOAD PDF

The new millennium ushered in a parade of corporate scandals. The succession of scandals, which began with the collapse of Enron, revealed a deep-seated pattern of disregard for shareholders’ interests. In response to these events and the widespread public outcry that ensued, Congress examined corporate board structure and senior management and passed the Sarbanes-Oxley Act (“SOX”) in 2002 to try to remedy problems of accountability. Even after SOX was passed, corporate governance experts continued to study the role of a board of directors and how that role may be modified in order to prevent future scandals and to protect shareholders adequately. They have analyzed many aspects of the board, ranging from the size, to whether the chief executive officer (“CEO”) should be the chairman, to the importance of truly independent directors.

True director independence is the critical inquiry. An independent director is a type of gatekeeper, providing a check on the CEO’s power, evaluating and criticizing business decisions, and ultimately protecting shareholders’ interests. All of the companies involved in the recent corporate scandals shared one characteristic – they had directors who were not truly independent.

 

79_455

Partial Preemption Under the Health Insurance Portability and Accountability Act – Note by Grace Ko

From Volume 79, Number 2 (January 2006)
DOWNLOAD PDF

The landmark Health Insurance Portability and Accountability Act (“HIPAA”), which President Bill Clinton signed into law on August 21, 1996, was enacted in response to advances in information technology and their dramatic impact on the health care industry. Until recently, most medical records were paper-based, but technological developments have made it increasingly efficient to collect, retain, transmit, and exchange health care data. Title II of HIPAA includes the Administrative Simplification provisions, which mandate the promulgation and adoption of national standards for electronic transactions, thereby encouraging the use of electronic data systems.

Electronic data transmission has sped the delivery of care and the processing of claims, improved systems for identifying and treating those at risk for disease, facilitated medical research, and helped to detect fraud and abuse. But at the same time, by reducing the logistical obstacles to dissemination that had previously helped to preserve the confidentiality of hard-copy records, shifting from paper-based to electronic information systems has increased the risk that sensitive information may become vulnerable to inappropriate uses and disclosures.

Consequently, with the shift to electronic data management, there has been a concomitant increase in concerns about the confidentiality and privacy of medical information. These concerns have been compounded by changes in the health care delivery system, including the rise in integrated and managed-care networks, which have resulted in more entities maintaining and exchanging information. Increasing numbers of individuals and organizations, including some not even affiliated with physicians or health plans, now have access to medical records

 

79_497

Judging the Three-Judge Panel: An Evaluation of California’s Proposed Redistricting Commission – Note by Nicholas D. Mosich

From Volume 79, Number 1 (November 2005)
DOWNLOAD PDF

A movement to reform the method of drawing state legislative and U.S. congressional districts has been slowly spreading across the country for decades. The movement’s goal: to revoke state legislatures’ control over redistricting and cede it to independent redistricting commissions. Spurred by progressively less competitive elections for the U.S. House of Representatives and state legislatures, and by the increasing success of partisan and bipartisan gerrymanders in manipulating the outcomes of those elections, calls for change have recently attracted national attention. Following the 2004 elections – the results of which revealed some of the least competitive races for state legislative and congressional seats in American history and exposed two of the most effective and egregious political gerrymanders ever accomplished – these calls rose to a fever pitch.

In February 2005, California Governor Arnold Schwarzenegger responded to this outcry. He backed an initiative that, if passed, would have created an independent redistricting commission in California and he joined forces with nonpartisan organization Common Cause to advocate for the establishment of such commissions across the country. Commentators foresaw a “Redistricting Revolution.” The efforts of Governor Schwarzenegger and Common Cause met early success as campaigns to reform redistricting were launched in twelve states. Additionally, initiatives to establish redistricting commissions in California and Ohio qualified for the ballots during those states’ next elections. The calls for reform were echoed in Washington, D.C., as two bills were introduced in the House of Representatives that would require every state to use an independent redistricting commission for redrawing congressional districts.

 

79_165

The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington – Note by Jeanine Percival

From Volume 79, Number 1 (November 2005)
DOWNLOAD PDF

A woman calls 911 and says, “Please. I need an ambulance. My husband just attacked me and I’m eight months pregnant. He hit me in the stomach and I’m bleeding. I think I’m losing the baby.” The home is located outside a small town. When the police and ambulance arrive after some time, the wife is unconscious at the bottom of a staircase and the woman’s husband is there, claiming to have just arrived home to find his wife in this condition.

The wife has bruises all over her body and the baby is lost, but shortly after being admitted to the hospital and regaining consciousness, she flees and is nowhere to be found. There are no witnesses, and the husband insists the wife fell down the stairs. The husband has no prior domestic violence convictions, but the wife’s medical history reveals a number of other “accidental injuries.” The wife has no friends and has not spoken to her family since the couple married two years ago. Her coworkers can testify that they suspected the husband was abusive. They can also testify that the wife was not allowed to drive, spend money, or attend social events.

Prior to the Supreme Court’s March 2004 decision in Crawford v. Washington, the wife’s 911 call would likely have been admitted in court under a hearsay exception and used to secure the husband’s conviction. But following Crawford, if the wife could not be brought into court, the statement would be inadmissible. Given that there is no evidence besides the 911 call that directly implicates the husband as the cause of the wife’s injuries, prosecutors would be unlikely even to file a case against the husband, let alone convict him.

 

79_213

Third-Party Visitation Statutes: Why Are Some Families More Equal than Others? – Note by Natalie Reed

From Volume 78, Number 6 (September 2005)
DOWNLOAD PDF

Over the last quarter-century, the definition of the American family has transformed from a clearly defined image of mother, father, and natural offspring to a kaleidoscopic vision of adoptive families, extended families, gay and lesbian families, stepparent families, and single-parent families. Although a vast body of law limits the state’s ability to impinge on the parental decisionmaking of intact, biological families, nontraditional families are finding that their legal right to select the persons with whom their children associate is far less protected and even subject to state court review.

The family, which was once a standardized structure, has diversified substantially because of liberal no-fault divorce rules, social acceptance of nonmarital sexuality and cohabitation, and tolerance of same-sex relationships. Detractors assert that America is in the midst of a social breakdown; however, the structure of the American family, rather than disintegrating, is merely evolving into something new.

 

78_1529