Notes

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November 19, 2010 0

She Take My Money When I’m in Need: Arguments in Favor of Retaining the Willfulness Requirement in the Lanham Act’s Monetary Relief Provision by G. Ian Peng

Introduction Section 35(a) of the Lanham Act[1] addresses monetary remedies for trademark infringement and false designation claims.[2] Before 1999, this section entitled the plaintiff-trademark owner to potentially receive the defendant’s profits, damages sustained by the plaintiff, and the costs of the action, if there is a violation under § 43(a) of the Lanham Act (concerning false designations and descriptions of goods or services),[3] subject to principles of equity.[4] Most jurisdictions followed the rule that the defendant’s conduct had to be willful for the plaintiff to receive a monetary award.[5] The Trademark Amendments Act of 1999 revised § 35(a) by replacing “a violation under section 43(a)” with “a violation under section 43(a), or a willful violation under section 43(c)” (which deals with trademark dilution and tarnishment) as qualifying for monetary awards.[6] By including the word “willful” for § 43(c)—but not for § 43(a)—courts were left divided on whether the amendment extinguished the willfulness requirement for infringement and false designation claims.[7] This note argues that willful deception should be a prerequisite to an award of profits or damages for trademark infringement and false designation claims.  It considers, in turn, the meaning of “willfulness”, the text and legislative history of the Trademark Amendments [read more]
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November 19, 2010 1

Ending Gender Discrimination in the Workplace by Sarah Chon

Two recent Supreme Court decisions highlight some obstacles still impeding the goal of achieving of full gender equality in the workforce through the judicial system.  Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex in the workplace but in two recent cases, the Supreme Court narrowed the efficacy of Title VII as a remedial statute.  Congress has already taken action to overturn the first of the two cases but has not overturned the second.  Accordingly, significant barriers remain for female employees bringing Title VII discrimination cases.  Further, the cases establish a troubling precedent implying that pregnancy discrimination does not actually constitute sex discrimination. In the first case, Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that Lilly Ledbetter could not bring her pay discrimination claim against Goodyear because more than 180 days had passed since the alleged discriminatory act.[1] In 2009, Congress overturned the Ledbetter decision by amending Title VII to say that an unlawful employment practice occurs each time an individual is affected by the application of a discriminatory compensation decision.[2] The second case, AT&T v. Hulteen, involved a group of female employees at AT&T who took pregnancy leaves [read more]
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November 19, 2010 0

Beyond the Veil of Federalism: Protecting the Consular Rights of Foreign Nationals in United States Courts by Adisada Dudic

I. Introduction The United State of America must comply with the decisions of the International Court of Justice (ICJ).  This obligation comes from Article 94 of the United Nations Charter, ratified in 1945.[1] In Medellín v. Texas, the US Supreme Court said that the Supremacy Clause of the US Constitution does not require Texas to follow or enforce an ICJ decision.[2] This decision not only threatens American nationals travelling abroad, but it also threatens to deprive US nationals, individuals and businesses alike, of workable dispute resolution procedures that treaties provide.  Such a result is unacceptable and unsound policy in the modern world where the scope of commerce and trade is increasingly international. II. Vienna Convention on Consular Relations (VCCR) The VCCR protects the rights of individuals arrested, detained, or imprisoned in foreign nations and grants them the right to access their own consulate.[3] Under Article 36, member states have an obligation to inform detained or arrested foreign nationals of their consular notification rights and the arresting authorities must notify the appropriate consulate of such arrests.[4] The US, upon advice and consent of the Senate,[5] ratified the VCCR without reservation in 1969, understanding its provisions to be entirely self-executing and prevailing [read more]
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November 19, 2010 0

Fighting Justices: Personal Animosity and Decision-Making on the United States Supreme Court by Catherine Suh

I. Introduction Judicial conflict on the United States Supreme Court is not new.[1] The term “dissenter” carries rich historical meaning, reminding us of Supreme Court Justices such as Justices Oliver Wendell Holmes, Charles Evan Hughes, Louis D. Brandeis, and John Marshall Harlan.  The dissenter has traditionally been viewed with skepticism, scorned for challenging the collective thinking of the Court.  The worry is that dissent may impair the legitimacy of judicial decisions by reducing public respect for the Court’s rulings.  However, dissent could also be a function of productive debate since in the modern era of ideological polarization and partisan divide, it is not realistic to expect all nine Justices to hold similar views on each case.  If dissent is viewed in this way, it is simply a reflection of the individuality of the Justices. The right to dissent has nevertheless become an accepted part of the judicial process and a necessary form of expression for Supreme Court Justices serving on a dynamic Court.[2] The remaining puzzle is to explain the increasing frequency of dissent, not to engage in a normative debate over its impact.  Even more specifically, what happened to the norm of consensus?  What accounts for the dramatic rise [read more]
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November 19, 2010 0

Selling Art to Save Art: The Call for Judicial Recognition of Financial Hardship in Deaccession Disputes by Ya Li

I.  INTRODUCTION The recent economic crisis that downed banks and other industry players did not leave the art world untouched.  Newspapers report that financially strained museums are resorting to the sale of artwork in order to remain viable.[1] One high-profile case centers on the Rose Museum at Brandeis University in Massachusetts.[2] Another case, although not initially due to the recession, focuses on the Stieglitz Collection at Fisk University in Tennessee.[3] These examples raise recurring questions about the extent of donor control over gifts and benefited institutions.  Given the restricted status of many donated works, is a museum’s decision to sell art barred by donor intent?  Would the recession count as an event “impracticable” or “impossible” enough to justify a departure from donor intent? This Note explores these issues in the context of the Rose Museum and the Stieglitz Collection and suggests that courts should take the state of the economy into account when deciding whether to override donor intent to allow deaccession, or the sale of art.  Judicial recognition of the financial difficulty facing museums may in turn lessen the legislative desire to interfere, à la New York state bill A06959, in a field that is properly self-regulatory. II.  THE [read more]
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November 19, 2010 0

Conflicting Rights in the Castle Doctrine by Matthew Benner

I. Introduction “I’ve got a shotgun; do you want me to stop them?”[2] The words are those of Joe Horn, a Texas resident who called 911 after witnessing a robbery next door.[3] Moments later, he decided to act and went outside and shot both Hispanic robbers dead.[4] Horn was later brought before a Texas grand jury but was not indicted.[5] His actions made national headlines and reignited debates over self-defense and race relations.[6] As a result of the incident, he became a polarizing figure.  Some believe he is a hero—a community member who stood up to crime.[7] Others believe he is a criminal, and wonder whether he would have tried to stop the robbery or used deadly force if the burglars had been white.[8] Recent expansions of the Castle Doctrine, which gives individuals the right to use deadly force on their property against an intruder regardless of reasonableness and the duty to retreat,[9] may have disturbing consequences for certain minority groups.  This is because there is evidence that the average American is more likely to consider the use of deadly force appropriate when faced with an African-American assailant.[10] II. The Castle Doctrine Castle Doctrine laws create a rebuttable presumption that [read more]
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November 19, 2010 0

Forums and Foxholes: Garb Statutes and the First Amendment by Candice Andalia

It is an oft-quoted tenet, originating with the U.S. Supreme Court’s holding in Tinker v. Des Moines Indep. Cmty. Sch. Dist.,[1] that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] However, this sweeping language, an avowal that once provided educators with broad protections, is now nothing but a carcass constructed of empty words. And although American courts frequently invoke this noble lineage, Tinker’s promises, starkly juxtaposed with the rotting state of First Amendment jurisprudence, ring hollow. Nowhere is this chicanery more apparent than in Nichol v. Arin Intermediate Unit 28,[3] where the District Court for the Western District of Pennsylvania upheld the constitutionality of the Pennsylvania Garb Statute,[4] which criminally sanctions teachers who wear religious emblems or insignia in the classroom. This law, which openly punishes only symbolic, religious speech, discriminates against a particular viewpoint. Despite being facially discriminatory, the Pennsylvania court, like others that have heard constitutional challenges to similar statutes, upheld the statute because it determined that the legislature’s goal of preserving “an atmosphere of religious neutrality”—preemptively curing an Establishment clause violation— met the compelling state interest standard.[5] However, the court did not finish the necessary inquiry by requiring [read more]
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November 19, 2010 1

Charting The Supreme Court’s Burden-Shifting Jurisprudence in Employment Discrimination Cases Through Gross v. FBL Services, inc. by Jeff Weber

I. Introduction “[I]t has become evident in the years since . . . that [the] burden-shifting framework is difficult to apply. . . . Thus, even if [the burden-shifting framework were] doctrinally sound, the problems associated with its application have eliminated any perceivable benefit from extending its framework to ADEA claims.”[1] With this sweeping language, Justice Thomas punctuated the Supreme Court’s repudiation of mixed-motive burden-shifting for employment discrimination claims brought under the Age Discrimination in Employment Act (ADEA)[2] and set age-related employment discrimination claims on a decidedly different track from its counterparts under Title VII of the Civil Rights Act of 1964 (Title VII).[3] In doing so, the Supreme Court halted the inchoate development toward a uniform approach concerning the burden of persuasion in employment discrimination claims and, for now, instituted the coexistence of two separate analytical frameworks for allocating the burden of persuasion in employment discrimination cases. While ostensibly procedural and esoteric, the degree to which courts will ease the evidentiary burden on plaintiffs in employment discrimination cases has enormous practical significance and is an important reflection of current policy preferences. Because employers often control much of the evidence relevant to adverse employment actions, employees face significant obstacles in [read more]
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November 19, 2010 0

An Assessment of California’s Watershed Governance: A Perspective on Environmental Justice in Land Use Planning and Development by Valerie Escalante

Southern California faces unique challenges for land use and development.  With more than 50% of the state’s population and receiving less than 2% of the state’s rain fall per year,[1] water has become one of its main challenges.  Furthermore, as a result of Southern California’s varied demography and economic state, environmental justice[2] has emerged as a serious factor in its water challenges.  This note asserts that California’s system of watershed governance[3] in land use planning and development is essential to address these challenges.  This note considers California’s watershed governance scheme and assesses its efficacy as it relates to water concerns in land use planning and development for disadvantaged communities.  As a case study, this note focuses on the Inland Empire region of Southern California.[4] Currently, the existing dire state of the land, infrastructure, and water quality in many disadvantaged[5] Inland Empire cities casts doubt on the efficacy of California’s scheme for watershed governance, but poses a unique opportunity for improvement. This study assesses California’s watershed governance infrastructure on both the state and local level and analyzes watershed governance’s implementation in planning and development with respect to the improvement of disadvantaged watershed communities.  It considers the state of the law for [read more]
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November 19, 2010 0

Innocent After Proven Guilty: The Developing Role of Actual Innocence in Habeas Corpus Jurisprudence by Phillip Weiss

Introduction The death penalty is a punishment that is unique in its severity and finality.  There is no other punitive measure within our criminal system that can truly deprive an individual of their “last chance” like the ultimate penalty, being put to death.  The question whether there should be a death penalty in this country is a hotly debated topic.  However, there is one point which should seem clear to any reasonable mind: if this country does continue to allow capital punishment, it must be administered in a manner that will prevent wrongfully convicted, innocent defendants from being executed. Strangely, our criminal justice system has no clearly defined method for dealing with convicted defendants who claim that newly discovered facts can establish their innocence.  In recent years, however, courts have begun to grant certain types of relief to defendants who can convincingly demonstrate their innocence.  This note will track the development of the innocence claim as a means of post conviction relief. A. The rise of the actual innocence claim: The history through case law. In 1977, the Supreme Court, in Wainright v. Sykes,[1] held that a federal court cannot hear a habeas corpus claim that could have been made [read more]

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