Trademarks as a System of Signs: A Semiotic Look at Trademark Law

This essay attempts to explore trademark law and the marks themselves from a semiotic viewpoint to provide a deeper understanding to (trademark) law as a system of signs. Although the language of trademark law may suggest slightly different meanings, for the purpose of this essay “trademark” will refer to an area of law (unless otherwise indicated) and “mark” will refer to the individual sign. The first part of this essay will provide a brief overview of semiotics. Second, it will outline a general look at trademark law as set forth in the Lanham Act. The third section is a semiotic approach to provide a deeper understanding of trademark law. Finally, the essay will analyze a seminal trademark case whilst using semiotics to address legal meaning within the case. Semiotics teaches that no absolute meaning can be found. This essay, then, attempts to secure at least one particular meaning of the Qualitex case and what it means in trademark law today.     

Cyber terrorism: a clear and present danger, the sum of all fears, breaking point or patriot games?

Over the past two decades there has developed a voluminous literature on the problem of cyber terrorism. The themes developed by those writing on cyber terrorism appear to spring from the titles of Tom Clancy’s fiction, such as Clear and Present Danger, The Sum of All Fears and Breaking Point, or somewhat more cynically, Patriot Games. This essay examines both the gap between the presumed threat and the known cyber terror behaviors and the continuing literature which suggests an attack is imminent. It suggests that at least part of the explanation lies both in the continuing failure to distinguish between what Denning (Activism, hacktivism, and cyber terrorism: The internet as a tool for influencing foreign policy, 1999) referred to as hactivism and cyberterrorism and also the failure to distinguish between the use of digital means for organizational purposes (information, communication, command and control) and the use of digital communications to actually commit acts of terror.     

The Contrived Defense and Deterrent Threat Doctrines: A Reply to Professors Finkelstein & Katz

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction.     

Rational choice attitudinalism?

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.     

The imaginary of ethical business practice

This essay aims to contribute to an unobtrusive criminology of organisation. In particular its focus is on organisational imagineries of ethical business practice. The essay thus is about organisational imageries and imagination, as well as about the connections between those and what might roughly be called organisational justice. This essay tries to find out whether the imaginery of specific organisations holds come clues as to the boundaries (of imagination) within which textual or practical forms of organisational justice may take shape. This essay is part of a broader, though fairly recent research agenda that deals with the role and impact of imagination in organisational life.     

Access to medical care for HIV-infected individuals under the Americans with Disabilities Act: a duty to treat.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). This Note examines the legislative history of the ADA and uncovers Congress's intent to impose a duty on health care providers to treat people with disabilities unless an individual poses a "direct threat" to the health or safety of others. This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on health care providers to give care to people infected with HIV who qualify under the statute. This Note concludes that while the "direct threat" exception may lessen the impact of the ADA, those infected with HIV should enjoy greater access to health care than ever before.     

International Criminal Law vs State Sovereignty: Another Round?

This is a review of five recent works which deal with internationalcriminal law. By an analysis of those works, the essay querieswhether the relationship between international criminal lawand state sovereignty is always accurately conceptualized. Internationalcriminal lawyers often see sovereignty as the enemy of internationalcriminal law, though frequently failing to discuss in any depththe nature and malleability of sovereignty. Although internationalcriminal law does involve some challenges to sovereignty, italso needs, and in some ways empowers, that sovereignty too.The works under review tend to pay less attention to the substantiveaspects of international criminal law than its institutionalpart. This is unfortunate, as some of the most interesting interactionsbetween international criminal law and sovereignty occur atthis level. The essay finishes with some broader reflectionson how the works under review conceptualize the internationallegal order, regrets the absence at times of engagement withrelevant constructivist scholarship but notes that the answerto the question of the precise relationship between internationalcriminal law and sovereignty is unlikely to be agreed upon soon.     

The political morality of convergence in contract

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its moral impetus as one that should underwrite contract law in all states, especially liberal states. But the essay argues that the legitimate contours of the formal right are contingent on tenets of political culture that vary across Member States. Similarly, substantive regulation of contract is morally compulsory and serves universal interests; the essay takes regulation of permissible work and remuneration for work as examples. But the rules and standards that best advance those moral interests depend on economic facts specific to individual political communities. The essay concludes by arguing that contract law is a poor tool by which to accelerate political and economic convergence.     

The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998

This essay gives more detailed content to the widespread viewthat the Human Rights Act 1998 (HRA) has changed the traditionalrole of parliamentary intention in statutory interpretation.It begins by outlining the various ways in which legislativeintent has featured in traditional (pre-HRA) statutory interpretation.This is followed by an examination of the interpretive principlesdeveloped by the senior judiciary under the HRA case-law, focusingon the extent to which they seem to depart from traditionalprinciples. It is argued that although the traditional roleof parliamentary intention is partly preserved post-HRA, theinterpretive obligation under s 3(1) HRA nonetheless shiftsthe interpretive focus away from what Parliament originallyintended in enacting the legislation under HRA scrutiny, towardsfulfilling the overriding goal of achieving compatibility withConvention rights. The final sections of the essay attempt toprovide an account of what is involved in this shift.     

Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920

This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.     

Hart's Rule of Recognition and the United States

Abstract. This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the "ultimate" rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. Some of these possibilities pose genuine difficulty for Hart's basic theory and help illuminate the relation of conventional and normative elements in an adequate account of law, a subject addressed in the final section of the essay.     

Medicare program; scope of Medicare benefits and application of the outpatient mental health treatment limitation to clinical psychologist and clinical social worker services--HCFA. Final rule

This rule addresses requirements for Medicare coverage of services furnished by a clinical psychologist or as an incident to the services of a clinical psychologist and for services furnished by a clinical social worker. The requirements are based on section 6113 of the Omnibus Budget Reconciliation Act of 1989, section 4157 of the Omnibus Budget Reconciliation Act of 1990, and section 147(b) of the Social Security Act Amendments of 1994 (SSA '94). This rule also addresses the outpatient mental health treatment limitation as it applies to clinical psychologist and clinical social worker services. This final rule also conforms our regulations to section 104 of the Social Security Act Amendments of 1994. Section 104 provides that a Medicare patient in a Medicare-participating hospital who is receiving qualified psychologist services may be under the care of a clinical psychologist with respect to those services, to the extent permitted under State law. In addition, this final rule requires that clinical psychologists and clinical social workers use appropriate diagnostic coding when submitting Medicare Part B claims.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

Strict Liability and the Paradoxes of Proportionality

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement can be circumvented.     

AIDS, employment, and the direct threat defense: the burden of proof and the circuit court split

This Note examines disability-related discrimination in light of the protections afforded by the Americans with Disabilities Act (ADA) and in the context of an HIV- or AIDS-infected employee. Under the ADA, an employer may legally fire a worker who poses a direct threat to the individuals around him or her. It is unclear, however, whether the burden of proving or disproving the claim that an individual is a direct threat lies with the employer or the employee. This Note analyzes the circuit split over which party bears the burden of proof under the direct threat standard in light of prospective HIV-related litigation.     

Victor’s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros’s The Ends of Harm – namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment.     

论特定范围内的无限度正当防卫

本文分析了现行刑法第20条第3款的称谓——特定范围内的无限度正当防卫、适用条件、与防卫过当的关系及其价值取向,指出特定范围内的无限度正当防卫符合当前客观形势的需要,在秩序优先的前提下,兼顾了公平,是刑法效益观与公平观的和谐统一。针对立法上的缺陷,笔者提出一些建议,以期对理论和实践有所帮助。     

Medicare program; offset of Medicare payments to individuals to collect past-due obligations arising from breach of scholarship and loan contracts--HCFA. Final rule

This final rule sets forth the procedures to be followed for collection of past-due amounts owed by individuals who breached contracts under certain scholarship and loan programs. The programs that would be affected are the National Health Service Corps Scholarship, the Physician Shortage Area Scholarship, and the Health Education Assistance Loan. These procedures would apply to those individuals who breached contracts under the scholarship and loan programs and who-- Accept Medicare assignment for services; Are employed by or affiliated with a provider, Health Maintenance Organization, or Competitive Medical Plan that receives Medicare payment for services; or Are members of a group practice that receives Medicare payment for services. This regulation implements section 1892 of the Social Security Act, as added by section 4052 of the Omnibus Budget Reconciliation Act of 1987.     

Individual and situational determinants of police force: An examination of threat presentation

This study is based on previous research denoting the primary factors that influence officer decisions regarding the use of differing levels of force in police-citizen encounters. Using a totality of the circumstance approach, primary emphasis is directed toward explaining those factors that contribute to officers’ estimation of the perceived level of threat inherent in police-citizen encounters. Officers’ perceived level of threat presented by a suspect or the situational context of an encounter is important because in 1989, the Supreme Court in theGraham v. Conner decision mandated that the appropriate amount of force that can be utilized depends on the following four primary factors: the threat, offense severity, actual resistance offered, and whether the suspect is trying to escape custody. These criteria were tested and placed into a predictive model along with other indicators the literature has found to be correlated with situations in which police force is used more often. The findings suggest that while the threat presented to officers is important and related to the level of force that is deemed appropriate by the police profession, many additional elements must be taken into consideration when interpreting if an officer used force correctly.