Category: Notes

Take My Likeness, Please: Threats to the Right of Publicity in Light of State Farm Mutual Automobile Insurance Co. v. Campbell – Note by Hillel Michael Elkins

From Volume 78, Number 5 (July 2005)
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Celebrities were recently deprived of a valuable asset. This time, however, the perpetrator was not an Internet hacker, a supermarket tabloid, or an unscrupulous business manager. It was the United States Supreme Court. Although State Farm Mutual Automobile Insurance Co. v. Campbell concerns the constitutionality of punitive damages, it may have the unintended effect of limiting celebrities’ nationwide rights of publicity.

The right of publicity affords an individual an interest in the use of that individual’s name, likeness, photograph, voice, and other personal characteristics in connection with commercial exploitation and the marketing of goods and services. It is the “inherent right of every human being to control the commercial use of his or her identity… and recover in court damages and the commercial value of an unpermitted taking.” Although this body of law has its roots in privacy rights, such as those concerning public disclosure of embarrassing facts, the right of publicity is an explicit recognition of the commercial injury caused by the use of a person’s identity.

As of early 2003, eighteen states recognized common law rights of publicity and seventeen states had statutory provisions. While there is some overlap, as some states recognize both statutory and common law rights of publicity, twenty-two states do not recognize any such right at all.

 

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Federal Funding of Human Embryonic Stem Cell Research: An Institutional Examination – Note by Ryan Fujikawa

From Volume 78, Number 4 (May 2005)
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Stem cells present an intriguing dilemma. They tantalize with their boundless medical potential, but challenge with equally limitless questions about their ethical consequences. If not for this ethical challenge, the question of federal funding for stem cells would be simple: How much funding and to whom? Instead, ethical objections, closely related to other highly controversial political issues, sweep stem cell policy into a political vortex. In recent years, this storm has reduced science’s role in the equation – transforming the issue from a tangible question of science and technology into an abstract debate setting ethical catastrophes against as yet undiscovered miracle cures. Given the political firestorm, government actors have treaded carefully, implementing halfway measures and justifying them by obscuring portions of the real debate from the public. The resultant policy, culminating in President George W. Bush’s August 2001 limitation on federal funding to existing stem cell lines, is driven by a blend of outdated legislation and imperfect institutional arrangements – a combination that, admittedly, handicaps the nation’s ability to explore the potential benefits of human embryonic stem cells (“hES”). More importantly, the policy fails to address the fundamental problem that purportedly justifies its existence: the ability to control the issue’s controversial ethical dilemmas.

 

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Pleading Around the Private Securities Litigation Reform Act: Reevaluating the Pleading Requirements for Market Manipulation Claims – Note by Damian Moos

From Volume 78, Number 3 (March 2005)
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In 1995, Congress enacted the Private Securities Litigation Reform Act of 1995 (“PSLRA”) to address the serious flaws in the private securities litigation system. Courts, Congress, and many commentators agreed that the chief evil plaguing the system was strike suits, suits “based on no valid claim, brought either for nuisance value or as leverage to obtain a favorable or inflated settlement.” Strike suits prevailed in private securities claims because, irrespective of the merits of the claim, it was usually less costly for defendants to settle than fight the allegations. Plaintiffs’ attorneys realized that defendants would settle and took advantage of the situation, sometimes filing claims based on bad news rather than evidence of wrongdoing. Congress stepped in to put an end to these abusive strike suits by enacting the PSLRA, which, among other things, raised the pleading standards for private securities claims, stopped plaintiffs from abusing the discovery process to force settlements, and made the threat of sanctions under Federal Rule of Civil Procedure 11 (“Rule 11”) more imposing.

In an attempt to avoid the PSLRA, plaintiffs began filing their securities claims in state courts. The shift to state courts undermined the PSLRA’s goal of deterring strike suits, because the safeguards of the PSLRA only applied to federal claims. In response, Congress passed the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) to stop the movement to state courts. The SLUSA preempted state law causes of action for securities fraud and market manipulation and made securities class actions brought in state courts removable to federal courts. Thus, Congress slammed shut the state court back door.

 

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Doin’ Time in God’s House: Why Faith-Based Rehabilitation Programs Violate the Establishment Clause – Note by Douglas Roy

From Volume 78, Number 3 (March 2005)
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On December 24, 2003, the Governor of Florida, Jeb Bush, attended a special Christmas Mass at a state correctional facility about forty miles north of Gainesville, Florida. More than just celebrating the Christian holiday with the prison’s almost 800 inmates, Governor Bush was attending a milestone in modern American criminal rehabilitation. He was there to dedicate the Lawtey Correctional Institution (“Lawtey”) as the nation’s first completely faith-based prison.

The conversion of Lawtey to a faith-based format is one of the most recent examples of the growing political trend to allow more open participation of religious organizations in government supported and funded social welfare programs. This trend is in line with the much talked about charitable choice provision, which allows religious groups access to federal welfare funds without having to establish a secular service provider component. The provision also allows religious groups to incorporate their religious message into social programs and to consider religion when hiring and disciplining employees.

 

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Corporate Inversions: A Symptom of a Larger Problem, the Corporate Income Tax – Note by James Mann

From Volume 78, Number 2 (January 2005)
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A corporate inversion is a paper transaction in which an American corporation reincorporates in a foreign nation without moving any of its operations to that country. The principle reason that a corporation will invert is to save money on taxes, in some cases as much as $60 million annually. Politicians, believing these companies are reincorporating in a foreign country to evade taxes, have introduced numerous bills to try to stop these companies from moving overseas. Senator John Kerry, the 2004 Democratic presidential nominee, stated that he plans to stop inversions within 500 days of his election to office. These corporations, however, have demonstrated that they will not give up these tax savings without a fight. Leucadia National Corp., a company that underwent an inversion in 2002, has hired a high-priced lobbying firm to block congressional efforts to stop inversions.

Members of Congress, believing that inverted corporations should be punished for renouncing their citizenship and their executives should be taxed for making this unpatriotic decision, have proposed complex legislation designed to close this tax loophole. Unfortunately, these solutions will not work. In reality, inversions are only a symptom of a much larger problem: American corporations are uncompetitive in foreign nations because of the corporate income tax. Today, the United States taxes corporate earnings at a rate of approximately 35%. Of sixty-nine countries surveyed as of January 2004, only Japan had higher corporate tax rates. These higher tax rates have yielded an inefficient result: some companies have committed transactions with the sole purpose of reducing their tax liabilities.

 

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Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution – Note by David Nelson

From Volume 78, Number 2 (January 2005)
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“We are at a moment in our history at which the terms of freedom and justice are up for grabs.” Every major innovation in the history of communications – the printing press, radio, telephone – saw a brief open period before the rules of its use were determined and alternatives were eliminated. “The Internet is in that space right now.”

The technology of the Internet has revolutionized communication and information distribution throughout the world. The direction of this revolution, however, will be determined in large part by how the law chooses to regulate this new medium.

Currently, one of the most important debates over the Internet involves the future of copyright law. The outcome of this debate will likely determine whether, as Stanford Law School Professor Paul Goldstein argues, property rights will extend “into every corner in which people derive enjoyment and value from literary and artistic works” with “a price tag attached to each use,” or whether, as Thomas Jefferson advised, ideas will “freely spread from one to another over the globe.”

This Note examines the issue of copyright as it pertains to recorded music and demonstrates that copyright protection for recorded music can no longer be justified as necessary for the promotion of artistic creation.

 

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Out of Joint: Replacing Joint Representations with Lawyer-Mediation in Friendly Divorces – Note by Avi Braz

From Volume 78, Number 1 (November 2004)
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Joint client representation is a practice that is fundamentally important to the legal system. The cost of obtaining private legal services has been rising over the past decade. This trend poses a serious problem: while the cost of these services has skyrocketed, the ability of large segments of the population to pay for them has not matched pace. Often times, due to the economic constraints faced by an ever-growing segment of our society, parties in need simply cannot afford to obtain independent legal representation. To these individuals, joint representation constitutes one of the most viable and accessible methods of obtaining adequate legal representation.

Divorce litigation is one area where an overwhelming demand for legal representation exists and where the problem of unmet legal needs is particularly pervasive. One particular subset of divorce cases, the so-called friendly divorce, appears to be an ideal candidate for joint representation. In these cases, the couple has reached agreement on the majority of marital settlement issues and requires only limited legal assistance.

 

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E-nuisance: Unsolicited Bulk E-mail at the Boundaries of Common Law Property Rights – Note by Jeremiah Kelman

From Volume 78, Number 1 (November 2004)
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E-mail, the most revolutionary advancement in communication since the printing press, has now become the single most important means of intrusion into our daily lives. Because of its inherent convenience and efficiency, e-mail facilitates an unprecedented level of constant, unchecked disturbances from unsolicited bulk messages, also known as spam. As a result of the Internet’s decentralized architecture and flawed technical underpinnings, consumers and businesses face daily mass invasions via e-mail. These continuous transmissions of low value unsolicited e-mails are invasions to property interests. In sum, spam is nuisance.

This Note will analyze the extent to which nuisance law can be applied to the unwanted intrusion of unsolicited bulk e-mail. To date, no adequate legal or technical remedy has been fully tested or put into place to properly protect the inbox from unwanted intrusions. The computer industry has lagged in organizing the massive task of implementing wide scale changes to the e-mail system and currently available technical remedies have done little to stem the enormous tide of spam. Legal solutions applied thus far (via the U.S. Congress and courts) have suffered from confusion, ineffectiveness, and poor tailoring to the core problem. Although a few tough, potentially effective anti-spam laws have been enacted in states such as California, they have since been largely preempted by the recently passed, and widely criticized, Federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”). Significant steps, however, have been made in utilizing the common law in fighting senders of spam (“spammers”). Several cases have been successfully brought against spammers under the common law doctrines of trespass to chattels or personal property. While these trespass arguments continue to be experimented with by courts, the law of nuisance may be an alternative and possibly preferable avenue of redress that has yet to be fully explored in the context of spam.

 

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