Uncategorized

May 15, 2017 0

Lessons in Diversity Jurisdiction from the First Circuit

The importance of subject-matter jurisdiction is axiomatic in federal courts. Parties must either get to federal court via a federal question or on the basis of diversity of citizenship. Given the centrality of subject-matter jurisdiction, Federal Rule of Civil Procedure 12(h)(3) mandates that cases that lack subject-matter jurisdiction must be dismissed. Even when issues of subject-matter jurisdiction are thought to be settled, new concerns can be raised at any time and force the court to reverse itself. Such was the case in an April 27, 2017 case from the First Circuit. Rule 12(h)(3) enables litigants to raise challenges to the court’s subject-matter jurisdiction at any time. As the First Circuit recently found in Hearts with Haiti, Inc. v. Kendrick, “any time” can even mean after the trial and during the pendency of an appeal. The case’s subject-matter jurisdiction was predicated on the diversity of citizenship, as it raised state tort law issues, rather than a federal question. In the underlying action, the founder of an orphanage in Haiti brought suit against Paul Kendrick for defamation claiming that Kendrick had falsely accused him of sexually abusing the boys in the orphanage. Kendrick further accused Hearts with Haiti—a non-profit charity raising funds [read more]
February 8, 2017 0

Common Sense ‘Slants’ in Favor of Creative Freedom in Trademark Protection

What’s in a name? Early this year, the Supreme Court considered this question in Lee v. Tam. The US Patent & Trademark Office (PTO) denied Simon Tam and his band, The Slants, a trademark for the name of the band. Citing the anti-disparagement clause of the Lanham Act, the PTO found that the name could be “disparaging” to people of Asian-American descent. The US Court of Appeals for the Federal Circuit, a specialized court with jurisdiction over intellectual property matters, recently ruled en banc in the case. There, the Court found that the anti-disparagement clause constitutes unconstitutional viewpoint discrimination. During oral arguments, the Supreme Court appeared to agree with the Federal Circuit Court’s thinking. Justice Kagan echoed this sentiment in her question to the Government’s lawyer:   “The point is that I can say good things about something, but I can’t say bad things about something. And I would have thought that that was a fairly classic case of viewpoint discrimination.”   The Justices seem posed to rule in Tam’s favor, ending a six-year battle with the PTO over the name of the band.   In the case of the arts, this result seems just. It stamps out bureaucratic oversight [read more]
February 1, 2017 0

Protecting Patents from the Looming 3D Printing Storm

The current state of U.S. patent infringement law does not meet the challenges of 3D printing technology. 3D printing is a process in which a printer produces a physical three-dimensional object from a “CAD” file, which is an image file formatted for computers. Owners of the printer merely have to upload the CAD file onto the printer to reproduce the desired object. Although 3D printing has yet to gain broad use and appeal, the law may need to catch up with the technological advancement. Data indicate that 3D printing could be mainstream in even five years. The federal statute controlling the area of patent infringement (including 3D printing) is 35 U.S.C. § 271. The statute explains both direct and indirect patent infringement. Direct infringement is the act of making, using, selling, offering, or importing into the U.S., any patented invention, without permission. Indirect infringement, is any act that is not direct infringement, but which requires some knowledge and intent regarding the actual infringement. The federal statute protects against infringement in the most basic sense. In Bauer & Cie. v. O’Donnell, the Supreme Court ruled that physically reproducing a patented invention is the same as “making” a patented invention (direct infringement). [read more]
October 23, 2016 0

Court of Arbitration for Sport: Flawed but Essential

By: Karli Cozen The Court of Arbitration for Sport (CAS) has played an active role in the international sporting arena since its inception in 1984. CAS is an independent quasi-judicial body with arbitral jurisdiction to resolve both commercial and disciplinary sport-related disputes. It was developed to provide an outlet to resolve disputes in response to the growing number of international sporting disputes. CAS has been implemented by the International Olympic Committee (IOC) and many International sporting federations as the chosen method of recourse in dispute resolution. Most recently, in Maria Sharapova v. International Tennis Federation, CAS reduced professional tennis player Maria Sharapova’s two-year ban from professional competition to 15 months of ineligibility on an appeal from a ruling of the International Tennis Federation’s (ITF) appointed independent tribunal. Sharapova is a Russian-born tennis superstar with an impressive resume that includes formerly holding the number one rank in the world and five grand slam championships. In January 2016, at the Australian Open, Sharapova tested positive for taking Melodonium. Melodonium is a drug that was added to the list of banned substances in the World Anti-Doping Code as of January 1, 2016. Sharapova took Melodonium for ten years prior due to a magnesium [read more]
October 23, 2016 0

What to Do with the Minimum Wage: Pro Arguments (Part One)

By Daniel Sperling Is the minimum wage high enough today? Increasing the minimum wage could decrease poverty, benefit company productivity, and boost the economy. But is increasing the minimum wage really that simple? In 1938, the United States Congress passed 29 U.S. Code § 201, otherwise known as the Fair Labor Standards Act (FLSA), which effectively shaped the history of United States labor law and regulation. The legislation introduced many characteristics of the work force that still exist today, including the minimum wage requirement. The minimum wage is the base level that an employer can pay its employees as regulated on a federal and state/local government level. In 2007, the Fair Minimum Wage Act of 2007 was passed which gradually increased the federal minimum wage from $5.15 to $7.25 over two years.  Currently, twenty-nine states have minimum wage legislation that ensures wages hirer than the federal standard, fourteen states have minimum wage legislation equivalent to the federal government, and five states have no minimum wage legislation. Two states, Wyoming in Georgia, have minimum wage laws that actually guarantee an amount less than the federal government, meaning that employees not covered under the FLSA are subject to the lower wage, which [read more]
October 23, 2016 0

Physician-Assisted Suicide: Legislatures Should Take Action

By: Karli Cozen When a terminally-ill person with only a few months to live is experiencing great pain and suffering, shouldn’t the law empower them to end that suffering and die on their own terms? The Supreme Court addressed the issue of physician-assisted suicide in Washington v. Glucksberg. In this 1997 case, the Supreme Court recognized that there is no constitutional right to physician-assisted suicide, but left the door open for state legislatures to enact laws on this matter. Since that time, five states including Oregon, Washington, Vermont, Montana, and California, have passed “aid-in-dying” laws which permit physicians to help terminally ill patients end their lives under certain conditions. Additionally, countries around the world such as Canada and the Netherlands have legalized physician assisted death. Most recently, the California End of Life Option Act went into effect on June 9, 2016. This law allows California residents over the age of eighteen who have a terminal illness with less than six months to live to request to their attending physician a prescription for an “aid in dying drug.” To be eligible under this act, the patient must be competent to make medical decisions for themselves and must be able to self-administer [read more]
March 15, 2016 0

Follow the Crowdfunding

By Dan Ovadia What is Crowdfunding? Crowdfunding is the process by which a business raises a relatively small amount of capital from a large number of funders. Crowdfunding networks rely on social media to get the word out about their product while attracting a broad base of supporters. The crowdfunding concept has arguably existed as far back as the 1700s, but the modern incarnation started in the late 1990s and began building serious momentum in the mid/late 2000s. The global crowdfunding industry continues to grow exponentially with $2.7 billion raised in 2012 and $5.1 billion raised in 2013; experts project that the global market could exceed $90 billion in 2025.   Reward-Based v. Equity-Based Crowdfunding Within the crowdfunding industry, there are two primary funding models: rewards–based and equity–based. Reward based crowdfunding sites like Kickstarter allow companies to offer funders rewards/products in exchange for their support – essentially serving as a presale website. In contrast, equity-based crowdfunding allows funders to take an equity position in the venture. Historically, equity-based crowdfunding was conducted following Rule 506 of Regulation D. Rule 506 provides an exemption from §5 of the Securities Act of 1933 and thus allows companies to fundraise privately from accredited investors (those [read more]
March 11, 2016 0

NFL & Concussions: Should the League Be Liable?

By: Alyssa Jones Football is ingrained in American culture. This has been evidenced by the fact that professional football has been voted as America’s favorite sport for thirty years straight. Furthermore, the recent Super Bowl 50 garnered 111.9 million television viewers. And the National Football League (“NFL”) grosses over seven billion dollars annually. Yet, despite our country’s attraction to the game, there are some serious dangers that lurk in the background. Football is a physical sport and with this physicality comes many associated health risks. Besides the long-recognized risk of broken bones and torn ligaments, recently, the risk of long-term cognitive problems have become a salient issue. A few months ago, the movie Concussions was released, starring Will Smith, which further shed light on this matter.   The NFL has even admitted that “it expects nearly a third of retired players to develop long-term cognitive problems and that the conditions are likely to emerge at ‘notably younger ages’ than in the general population.” For example, the NFL’s report found that “[f]ormer players between 50 and 59 years old develop Alzheimer’s disease and dementia at rates 14 to 23 times higher than the general population of the same age range.” Furthermore, the [read more]
No Picture
December 10, 2015 0

Do Not Pass Go

In the wake of the Paris attacks, much of the debate concerning refugees has resurfaced. There have been many talks centered on governors and other state officials trying to block Syrian refugees from entering their respective states.  A majority of polled Americans want to block these refugees from coming to America. One interesting thing to note though is that governors may speak loudly, but they cannot block refugees from entering their states. President Obama has the federal law on his side, where he can admit refugees based upon humanitarian concerns. However, constitutionally speaking, governors do not have to aid President Obama in settling refugees into their respective states because the 10th Amendment limits the federal government’s power over the states. Additionally, Congress could enact new legislation to stop refugees from entering the United States. There is a fear that terrorists may try to infiltrate the United States through the refugee program, but that fear is misguided because many people do not know how the vetting process for refugees works. The first step for anyone seeking to resettle in another country as a refugee involves a lengthy application process with the United Nations High Commissioner for Refugees. The UNHCR is an [read more]
October 31, 2015 0

Farmworker Overtime Across the States

Across the United States today, well over a quarter of a million farmworkers go without any federal guarantee of overtime pay. For the majority of these workers, this lack of protection can result in laboring for fifty-five or sixty hour workweeks at straight pay. With no reform to farmworker overtime on the horizon in Congress, labor advocates have brought their overtime reform efforts to state capitols across the country. This article surveys the rights to agricultural overtime pay as they currently exist at state law in California, Minnesota, Hawaii,  New York, and Massachusetts. These six statutory frameworks illustrate the spectrum of agricultural overtime policies in place across the country. *** In 1938, in the midst of the New Deal, President Franklin Roosevelt signed the Fair Labor Standards Act (FLSA) into law. The legislation, which is still in force today, focuses on protecting the average American worker—it provides for a national minimum wage and requires overtime pay for those working beyond forty hours per week. Placed into the FLSA, however, is a provision excluding agricultural workers from the legal right to receive overtime pay. Since passing the FLSA, Congress has not removed that exclusion. Therefore, for American farmworkers, the legal right [read more]

Copyright © 2024 | MH Purity lite WordPress Theme by MH Themes