- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
To state the obvious, we live in a world that is awash in information. Discoveries of new scientific information occur daily in the laboratories of the world. The Facebook accounts of millions of teenagers contain information about the love lives of their friends. Google traces the search information of its subscribers. Supermarkets use personalized discount cards to trace the purchasing preferences of their customers. The National Security Agency (NSA) has been building a one-million-square-foot data and supercomputing center in Utah, which is expected to intercept and store much of the world’s Internet communication for decryption and analysis. States maintain driver, tax, and voter records. All of these records contain information that can yield profit for some and embarrassment for others.
The First Amendment to the U.S. Constitution dictates access to and dissemination of this information, whereas the Fourth Amendment limits such access and dissemination. Additionally, common-law doctrines of privacy, publicity, and defamation apply to this information, as do copyright, patent, and trademark law. State and federal legislatures race to regulate the collection, storage, and dissemination of this data and information in the public interest. This Article will review recent developments in the constitutional treatment of access to data and information, will comment on an illustrative group of statutory and common-law developments, and will discuss a number of current noteworthy controversies. . . .
Much of the scholarly literature critical of the Supreme Court’s decision in Citizens United rings true to people predisposed to view corporate power and free markets with suspicion. In this Article, I seek to reach a different audience—people who believe in the power of free markets to promote social welfare. To do so, I maintain that corporate political expenditures are inconsistent with the principles of classical liberalism and against the interests of the corporations that make the expenditures.
I also pose solutions consistent with classical liberalism. If corporate political spending so threatens the system that preserves liberty and the efficient operation of a free-market society, it is reasonable, under classical liberalism, to permit the state to set rules to preserve its limited role. It also follows that if corporate spending on independent political expenditures is not in the interests of corporations or shareholders, managers should voluntarily limit them by entering industry-wide agreements, or, at minimum, adopt policies requiring full disclosure of the expenditures. . .
On the surface, trademark law protects trademarks, defined as any “word, logo or package design, [or some combination thereof,] used by a manufacturer or merchant to identify its goods [or services] and distinguish them from others.” Typical trademark infringement cases involve a “senior” trademark owner seeking to prohibit a subsequent, “junior” user from using the same or similar mark. On a deeper level, however, trademarks also serve as objective, goodwill symbols of consumer satisfaction, representing and reinforcing to the public a distinctive good or service. “In trademark law, the question is always of consumer perception in the marketplace rather than judicial perception in the courtroom.”
The Lanham Act (the Act) governs federal trademark protection, providing for nationwide protection of a trademark against threats, such as the unauthorized reproduction or imitation of a trademark that is “likely to cause confusion, or to cause mistake, or to deceive,” and creates two statutory bases for any confusion-based causes of action. Under the Act, a trademark is “any word, name, symbol, or device . . . used by a person, or . . . which a person has a bona fide intention to use in commerce . . . to identify and distinguish his or her goods . . . from those manufactured or sold by others and to indicate the source of the goods . . . .” Case law and the Act identify four categories of terms that reflect a mark’s eligibility for trademark registration and its deserved amount of protection. Regardless of the amount of protection a mark is eligible to receive, however, the fundamental question under confusion-based infringement actions is “whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.”
Globalization is an intricate economic, political, cultural, and geographic process during which the movement of resources, organizations, ideals, discourses, and peoples become progressively global or transnational. Pure economic globalization theory recognizes the market as the sole, legitimate institution and the only logical path to growth and prosperity. Women play a major economic role in driving globalization, mainly because they participate in worldwide agriculture, small and micro-enterprises, and export-processing industries. Without including household labor and informal economic activity, women encompass 854 million workers of the global workforce. . . .
Many common agricultural crops have developed through human tinkering; alteration and experimentation have given rise to food species whose existence depends entirely on humans. The development of these crops has generated specific, traditional knowledge associated with particular species, and this potent combination of genetic material and phenotypic value creates a modern-day treasure trove of valuable commercial material. Individual and corporate parties have increasingly sought to collect such indigenous knowledge and capitalize on its value through existing intellectual property patent protections. This practice, known as “biopiracy,” evades easy definition; by common consensus, the practice may best be characterized as a form of biological theft, in which plants identified and cultivated by indigenous communities are collected and patented by noncommunity members without granting property protection to the original cultivators. Biopiracy is also viewed as the appropriation of biodiversity from its original owners and innovators through the creative definition of seeds, medicinal plants, and associated medical knowledge as nature, thereby removing the plant materials from patent eligibility. This definition combines a variety of loosely associated but poorly defined notions of biopiracy, demonstrating the difficulty in identifying the practice. The derivation of genetic and biochemical materials is both scientifically and commercially valuable, and companies attempt to patent these materials to “justify legal ownership through intellectual property law.” Additionally, the lack of agreement over the actual subject matter of the patent, namely the plant versus the traditional knowledge with which it is associated, further confuses the issue. “Biodiverse” developing countries have accused their developed Western counterparts of removing genetic resources and the traditional knowledge with which they are associated and patenting these resources in their original forms or in the form of derived inventions. . . .
Democracy is founded upon the principle that no one is above the law. International law nevertheless permits diplomats to escape liability for crimes or civil wrongs they commit in the country where they are being hosted. Some scholars estimate that, each year, individuals with diplomatic immunity commit thousands of crimes around the world. Another abuse of diplomatic privilege is found in the form of “deadbeat diplomats” who avoid paying spousal and child support by claiming immunity from jurisdiction of the courts. . . .
The cover of John Lennon’s 1968 record Two Virgins shocked the world by showing Lennon and Yoko Ono naked, which was an unheard of act of controversy for a popular celebrity at the time. Today, however, public nudity in the context of protest has become prevalent around the world. This trend holds true in the United States as well, as there are numerous examples of protesters utilizing nudity as a method of protest. Many groups have recognized that the utility of and prominent reasons for protesting nude include the ways in which it immediately garners attention, fosters discussion in the media, and places the protesters’ messages into the public sphere.
The recent phenomenon of protesting nude raises legal questions concerning conduct as protected speech and freedom of expression. The Supreme Court has recognized that not all forms of expressive conduct are protected as “speech” under the First Amendment to the U.S. Constitution. The act of protesting nude, however, is likely not protected under the First Amendment. Several court decisions have highlighted that utilizing nudity in protest is only protected under the First Amendment if the protester’s message is intertwined with the conduct itself. While protesting nude is likely not protected under the First Amendment that does not mean it is not otherwise protected. . .
The Sixth Amendment to the U.S. Constitution provides criminal defendants with one of the country’s most basic criminal law principles–the right to confront one’s accusers–by prohibiting prosecutors from using a witness’s adverse testimony against the accused without prior opportunity for cross-examination. Determining what types of witness statements require the opportunity for confrontation has undergone dramatic change in recent years. In United States v. James, the Second Circuit considered these changes and held that the Confrontation Clause is not violated when autopsy and toxicology reports are admitted against a defendant, and medical examiners are allowed to testify about them despite not authoring the reports themselves.
Through the patent system, inventors are rewarded for their ingenuity with a limited monopoly to practice their inventions at the exclusion of all others for a finite period of time. The grant of a monopoly is not taken lightly in the United States, resulting in a careful construction by the courts of limiting doctrines, including the patent-exhaustion (first-sale) doctrine and the related repair-reconstruction doctrine, to prevent overreaching on the part of the patent owner. In Bowman v. Monsanto Co., the Supreme Court addressed the issue of how the patent-exhaustion doctrine and post-sale restrictions apply to patented seeds, which by their very nature self-replicate when planted and create new seeds that are genetically similar to the original patented seed. The Court determined that Monsanto’s rights are not exhausted after the first sale of its patented seeds, solidifying the exception to the first-sale doctrine created by the United States Court of Appeals for the Federal Circuit. . .