Subrogation has been called a “sleepy, although significant subject,” and perhaps consequently, many articles treating the topic begin with a prefatory example (either real or abstract) of the potential entanglements it can create. In line with this established tradition, this Note begins with two such examples.
Roy Block was injured in an automobile accident caused by another person. Like roughly 23 million other people in California, Block belonged to a managed care organization (“MCO”). His MCO agreed to pay for the treatment of his injuries on the condition that he agree to reimburse it from any eventual tort recovery. This might seem fair since Block might otherwise recover twice for his injuries; first when the MCO paid for his treatment and then again when he recovered from the tortfeasors. Yet, what if Block was not able to recover for all of his injuries, economic or otherwise? For example, what if he suffered a total of $10,000 in damages, half of which was for medical expenses, but was forced to settle for $7,000? Should his MCO still be allowed to recover its full $5,000 claim first, even if this leaves him uncompensated for $3,000 in pain and suffering and lost wages? How should a court interpret MCO contracts that provide for this very contingency? This is one of the problems discussed in this Note.
Ten years after the Family and Medical Leave Act (“FMLA”) was signed into law, paid family leave emerged as the new focal point in the family rights movement. Paid family leave legislation has been proposed in twenty-eight states and momentum is growing. In September 2002, advocates of paid family leave celebrated their first victory. California became the first state in the nation to enact legislation guaranteeing pay to employees taking leave to care for an ill family member. This legislation propelled paid family leave into the national spotlight, sparking debate on both sides of the issue.
Paid family leave advocates argue that the benefit is a necessary response to demographic and cultural changes in the United States. Labor force participation of women with young children has increased dramatically in the past few decades. In 1998, 62% of women with children under three were working, compared to 34% in 1975. Further, the number of children living in single-parent families rose from 12% in 1970 to 28% in 1998. These changes have resulted in a declining share of children living with a parent who is available to care for them full-time. By 1998, only a quarter of all children had one parent staying at home while the other worked. As a result, balancing the demands of work and family has become more challenging, and advocates argue that paid family leave is of increasing importance for working Americans.
On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.
The design of the tax system and substance of tax laws have an effect on nearly every economic decision made by individuals. Whether to invest or consume, buy or sell, and what forms of consumption or savings in which to engage are all issues that are influenced by the design of the tax system and the substance of tax laws. The tax treatment of debt in the U.S. hybrid-based income tax system generates inequities and inefficiencies that result from both an inconsistent base and failures in timing. Americans with high net wealth and sophisticated tax advisors can strategically use the inconsistent base and timing problems associated with debt to avoid, delay, or shift tax burdens. Unfortunately, for lower- and middle-class Americans without the benefit of tax advisors, the inconsistent base and timing problems associated with debt in our tax system can be economically detrimental.
The U.S. Patent and Trademark Office (“PTO”) issues over 170,000 patents a year. Unfortunately, the PTO makes mistakes and issues some invalid or “bad” patents that do not meet the statutory requirements of novelty and nonobviousness. The simplest approach to eliminating bad patents is to subject applications to stricter scrutiny by the PTO. A recent article, however, has questioned the efficiency of spending more resources at the examination stage. Aside from the patent prosecution procedure, federal patent law allows administrative reexaminations, either ex parte or inter partes. Nevertheless, the effectiveness of this approach is undercut by the low number of reexaminations actually requested.
This Note takes a more indirect route to improving patent quality. A major problem with the patent litigation system is that it is often cheaper for individual defendants to settle than to litigate, even if the patent is clearly invalid. The current system allows patentees to profit from bad patents and, therefore, creates an incentive to file bad patents. Further, patentees strategically sue small companies, knowing that they lack the resources to challenge patent validity effectively.
When the Internet allows Mexican consumers to buy infringing U.S. sneakers made in Korea, which nation’s trademark laws should apply?
Throughout the 1970s, the Bronx borough of New York City was perceived as a microcosm of desolate American urban hopelessness. Within this economically barren wasteland, the city’s culture cultivated a colorful new form of musical art, organically sown from the seeds of the past. What was born as a fringe musical movement has evolved into an American cultural mainstay. Today, hip-hop music experiences tremendous mainstream success, both as a credible art form and as a business. Yet the success and proliferation of this genre has largely relied on the use of samples of past funk, rock, and soul compositions.
Copyright law was established as a mechanism for the promotion of innovation. In the realm of digital sampling, however, its role remains somewhat unclear. It is obvious that unauthorized copying of original compositions should be unlawful, but the extent of this protection remains a doctrinally elusive concept when applied to small or manipulated fragments of music. Specifically, the issue of digital sampling suffers from a lack of clear judicial guidance. Although sampling can clearly be translated into standard copyright doctrine, its exact fit has yet to be definitively declared by the judiciary. District courts have only sporadically tackled the topic, deterring potential litigants who fear the consequences of inconsistent doctrinal application.
Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.
The United States has been the pioneer of democratic values on the stage of world history for over two hundred years. The foundation of a democracy is the right of the governed to elect their political leaders. As President Lyndon B. Johnson told Congress in 1965, Americans have “‘fought and died for two centuries’” to defend the principle of “‘government by consent of the governed.’”
Despite these democratic values, one particular group in our country is governed but has lost the right to vote – noncitizen legal permanent residents (“LPRs”). Noncitizen LPRs are legal immigrants. They are foreign-born individuals who have been granted legal permanent resident status by the U.S. government. This status allows them to live and work in the country indefinitely. Noncitizen LPRs pay taxes at the local, state, and federal levels, they can serve in the military and are eligible for the draft, and they are subject to all the laws of the United States. Although they have all the political, social, and military obligations of citizens, noncitizen LPRs are no longer allowed to vote in any state due to the recent amendments of state constitutions, which have disenfranchised noncitizens and limited the franchise to U.S. citizens. Prior to this disenfranchisement, noncitizens legally voted in local, state, and national elections for over one hundred years.
The United States raises revenue through a variety of taxes that are fragmented or “disaggregated” into multiple components. Although most Americans think of taxes primarily in terms of the income tax, its lesser known cousin, the payroll tax, produces nearly identical revenues while falling disproportionately on the poor and middle-class. Disaggregating the tax system into several component taxes thus conceals the true aggregate tax burden on taxpayers. This misleading effect is exaggerated because the media and politicians focus on the income tax while ignoring the equally significant payroll tax.