New developments in the law of passing off: misrepresentation by silence

The High Court recently held that misrepresentation by silencecan constitute an actionable misrepresentation. A trader maymake a misrepresentation by failing to correct a self-inducedmistaken belief of a customer, where the trader takes advantageof that mistaken belief. Failure of a trader to disabuse customersof the impression that they are dealing with the brand ownermay be sufficient to constitute passing off. Brand owners welcomethis decision as it provides protection against new entrantsto the market who seek to piggyback on the success of theirbrand or trade mark.     

Between Disability and Terror: Handicapped Parking Space and Homeland Security at Fenway Park

In the United States, handicapped parking spaces tether the social construction of need to the legal assurance of equality of accessibility. However in places such as Fenway Park in Boston, the threat of terror distorts the intention of these spaces by politically reconfiguring their presence and meaning. As a result, our public interest is legally manipulated and socially challenged to preference the abstraction of threat over real life in even the most ordinary of places. This paper was originally written for an Independent Study with Laura Jensen, Political Science, University of Massachusetts Amherst, and entitled “Categories of Legitimacy” and presented at the New England Political Science Association Meeting in Portsmouth, New Hampshire, May 5, 2006. A later draft was presented at the International Roundtable for the Semiotics of Law at the Universite du Littoral, Bolougne sur Mer, France, May 22, 2006. Many many thanks are due Laura Jensen and John Brigham for their encouragement, continued enthusiasm and support. Much appreciation is also due the Department of Political Science, UMass/Amherst, for their engagement and suggestions offered at the Fall 2006 Colloquium series and to Kate Longley and Maria Koinova for their generous ideas for revision.     

An Experimental Analysis of Rent Seeking Under Varying Competitive Conditions

We test several predictions of Gradstein's(1995) rent seeking model using anexperimental design that includes avariable number of participants, costheterogeneity, and an entry fee. Consistentwith theoretical predictions, costheterogeneity and the entry fee decreasethe number of participants. Overall,participation is much lower than predicted. Also consistent with Gradstein's model, wefind that rent seeking expendituresincrease with the number of competitors anddecrease with the addition of an entry fee. Experimental results do not support theprediction that cost heterogeneitygenerally decreases expenditures in rentseeking contests.     

A New Method for the Characterization of the Degree of Fire Damage to Gypsum Wallboard for Use in Fire Investigations

A new method to characterize the degree of fire damage to gypsum wallboard is introduced, implemented, and tested to determine the efficacy of its application among novices. The method was evaluated by comparing degree of fire damage assessments of novices with and without the method. Thirty-nine “novice” raters assessed damage to a gypsum wallboard surface, completing 66 ratings, first without the method, and then again using the method. The inter-rater reliability was evaluated for ratings of damage without and with the method. For novice fire investigators rating degree of damage without the aid of the method, ICC(1,2) = 0.277 with 95% CI (0.211, 0.365), and with the method, ICC(2,1) = 0.593 with 95% CI (0.509, 0.684). Results indicate that the raters were more reliable in their analysis of the degree of fire damage when using the method, which support the use of standardized processes to decrease the variability in data collection and interpretation.     

Background Levels of Salivary-α-amylase Plus Foreign DNA in Cases of Oral Intercourse: a Female Perspective

Saliva plus DNA from a suspect is commonly encountered in sexual assault cases on bodily swabs. However, without background knowledge, the weight of this evidence is unknown. It may indicate the presence of saliva resulting from cunnilingus, or it may represent indirect transfer. In this study, females who refrained from cunnilingus donated 43 items of underwear and 19 vaginal swabs. The samples were subjected to Phadebas^®, RSID^™-Saliva and mRNA profiling and were subsequently DNA-profiled to determine the prevalence of background saliva in the female population. The results report that 15.8% of females who refrained from cunnilingus were positive for saliva and a further 10.5% also had DNA from unknown source(s). These findings of the rate of indirect transfer were evaluated with the Bayesian approach, and it was found that the evidence of saliva plus a high foreign DNA source adds moderately strong support to the allegation of cunnilingus.     

Recovery of DNA from Latent Fingerprint Tape Lifts Archived Against Matte Acetate

This study was driven by court order to examine methods to remove, extract, and STR‐type potential DNA entrapped between latent fingerprint lifting tape and matte acetate that was collected from a 1977 crime scene. Results indicate that recovery of appreciable quantities of DNA is more challenging once adhesive is attached to matte acetate cards and even more difficult when fixed following black powder enhancement. STR amplification of extracts from entrapped fingermarks collected following the dusting/lifting procedure did not produce robust profiles, and extraneous peaks not expressed by print donors were detected for some samples. A hearing was set to argue whether there was DNA remaining to be tested, and if so, whether that DNA could be exculpatory in this postconviction matter. The studies herein provided the basis for the court's decision to not require the testing.     

Incomplete Inclusion: Legal Violence and Immigrants in Liminal Legal Statuses

Although US political discourse suggests otherwise, no simple dichotomy separates “documented” from “undocumented” immigrants. By examining the integration prospects of immigrants in “liminal” legal standings beyond undocumented status but short of permanent residency, we demonstrate that even when they are legally present, the implementation practices of a multilayered immigration policy regime may cause them harm. Our analyses draw on 108 qualitative interviews with immigrants who have been granted humanitarian relief, including U Visa holders, beneficiaries of the Violence against Women Act provisions, political asylees, and Temporary Protected Status recipients. As a result of “legal violence,” these legally present immigrants remain vulnerable to blocked mobility, persistent fear of deportation, and instability, confusion, and self‐blame.     

Saving Private Hegel — Australian Liberalism and the 1914–1918 War

In this essay I explore the pamphlet literature and related sources, in order to assess the effects of the 1914–1918 War on liberal political ideas in Australia. The main focus of the study is the WEA intellectuals in Sydney and Brisbane, and the core group of Deakinite liberals in Melbourne as represented by the overlapping membership of the Boobooks Club and the Round Table. Themes of compulsion, Progressivism, industrial relations, citizenship, and internationalism are examined. In particular the tension which wartime experiences produced within the high idealism of Kantian and Hegelian new liberal political philosophy is investigated. The bitterness caused by the war and the doubts raised about German philosophy help us to understand the decline of statist and idealist elements within liberal thought in Australia. It seems impossible, during the present war, to write any book or to deliver a sermon or an address which does not in some way refer to the war. H.B. Higgins, Socrates, the State and War, p.7     

Lightning Deaths: A Retrospective Review of New Mexico's Cases, 1977–2009

To better understand lightning deaths, a retrospective review of electronic records from New Mexico's Office of the Medical Investigator database was performed between 1977 and 2009 to update and assess current risk factors. Information on demographics, circumstances, autopsy, and death certificates were collected and analyzed. Fifty‐four decedents were identified, ages 2–71 years old (mean 34 years old), 42 males and 12 females. Common racial/ethnic groups were non‐Hispanic Whites and American Indians (together comprising 72% of all cases). Physical findings were often related to the heat carried by the electrical current including clothing alterations (29.6%) and burning of skin (53.7%). Most deaths occurred on weekend afternoons in summer months, associated with recreational activities or agricultural work, and rural locations (77.8%). Utilizing the demographic information, clustered events, and associated outdoor activities will assist in creating public awareness and provide a framework to support targeted warnings in an attempt to prevent future deaths.