Trademark Licensing: A Once Concerning Mechanism for Transfer Faces New Certainty Under Mission Product Holdings, Inc. v. Tempnology, LLC

2019, Current Issue, Online, Volume 51 (2019) Issue 3 (Fall)
Hilary Weaver. Long-term trademark licensing agreements are inherently risky transactions for licensees. Consider the risks facing a hypothetical business owner who licenses rights in the trademark of an up-and-coming business under a long-term, exclusive licensing agreement. If the licensed trademark loses popularity over time, the license’s value could plummet and cause the licensee to suffer a financial loss. On the other hand, if the licensor’s brand becomes exponentially more popular, market demand for products under the licensed mark could increase and generate large profits for the licensee. Under the latter scenario, securing long-term rights under the licensing agreement could even empower the licensee to feel comfortable hiring additional employees, leasing a larger manufacturing space, or making other long-term investments in reliance upon the continued use of the mark. Full Article
Read More

Burnt Lands, Dry Lakes, and Empty Pockets: Emergency Water Takings and Wildfires

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Alexander Ronchetti. After weeks of endless meetings and memos, Doc finally arrived at his family’s upstate farm for some rest and relaxation. After settling in, he grabbed a chair and walked down the path to the lake where his family stored the farm’s water supply. On the drive up, Doc had heard about the wildfires that were moving their way across the state, but he had paid no attention to them because the fires were reportedly still hundreds of miles away and outside his water basin. After a little while he started smelling smoke and hearing helicopters in the distance. Alarmed, he looked up and saw that a wildfire was heading his way. Suddenly, over the tree line, a U.S. Forest Service helicopter rapidly approached and then stopped, hovering directly…
Read More

In the Field or in the Courtroom: Redefining the APA’s Military Authority Exception in the Age of Modern Warfare

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
James D. Cromley. Journalism can be a dangerous business. In 2017 alone, forty-eight journalists were killed worldwide. When the news of Washington Post reporter Jamal Khashoggi’s death at the hands of Saudi officials broke, American congressional leaders were quick to condemn the Saudi government. Watching these events with morbid detachment, most American citizens feel confident that the United States government would never use extrajudicial killing against one of its own. However, Bilal Abdul Kareem, an American citizen, claimed the United States government tried to kill him on five separate occasions. Full Article
Read More

Land Development: A Super-Wicked Environmental Problem

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Blake Hudson. Hurricane Harvey dropped fifty-two inches of rainfall in the Houston, Texas area over only a few days in the summer of 2017 (the average annual rainfall in Houston is forty-five inches ). This was a record for any single storm event in the United States. At one point, a foot and a half of water covered seventy percent of Harris County, and one-third of the city of Houston was under water. So much water covered the region that it depressed the earth’s crust two centimeters. Ten thousand people were rescued from their homes as the floodwaters rose. Over 203,000 homes were damaged, with over 12,000 homes completely destroyed. 2017 was the third year in a row that Houston had suffered a “500 year flood”—floods in 2015 and 2016…
Read More

Professionally Responsible Artificial Intelligence

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Michael Hatfield. A young mother visited her obstetrician, hoping for help losing weight. Her doctor turned to a computer program to determine what should be prescribed. The prescription killed the mother. Is this a case of professional irresponsibility? Or is it a case of product liability? Who is at fault: the doctor or the program developers? The New Jersey courts are deciding. Full Article
Read More

Fighting Overcharged Bills from Predatory Hospitals

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Frank Griffin. Hospitals routinely expect patients to pay different prices for the same services and often ask the most vulnerable patients to pay ten to twenty-five times as much as the hospital routinely accepts as payment in full. For a service that the government allows participating hospitals to charge its patients $117 in 2019 dollars, some hospitals may charge patients up to $3254 for the same service, and most hospitals charge almost $500 for that same $117 service. Excess hospital charges or “markups” pose a significant financial burden (including frequent bankruptcies) on uninsured and out-of-network patients and cause some people to avoid necessary emergency or urgent care leading to unnecessary deaths and disabilities. Vulnerable patients in times of crisis enter a hospital believing they are in a safe haven—similar to…
Read More

International Arbitration and Attorney-Client Privilege—A Conflict of Laws Approach

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Susan D. Franck. International arbitration is a lynchpin of international economic activity. Yet concerns linger about the integrity of international arbitration and recent critiques cast doubt on whether it properly provides rule of law adjudication or whether arbitrators engage in improper decision-making. Despite the enhanced public scrutiny, international arbitration is nevertheless on the rise for the resolution of commercial and investment disputes. Full Article
Read More

The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Robert T. Anderson. This essay tells the story of the struggle by upper Ahtna people to protect their way of life and their access to a traditional fishery in modern Alaska. Because of the perseverance of Katie John, Doris Charles, other Ahtna people, and the larger Alaska Native community, their right to fish at a traditional fishing site survives. It is a battle that continues to this day––after nearly thirty-five years of litigation in various forums and in successive related cases that illustrate the complex legal and political issues. The rich history, culture, and modern activism of the Ahtna people motivate the litigation to protect an important local fishery, and along with it, the subsistence fishing rights of all rural Alaska Natives. The latest legal chapter is centered on a…
Read More

Counterfactual Causation

2019, Current Issue, Print, Volume 51 (2019) Issue 3 (Fall)
Hillel J. Bavli. Factual causation is the element of a legal claim that requires a plaintiff to link the defendant’s conduct to the plaintiff’s injury—to show that the former did not merely coincide with the latter but rather produced it. It is intended to reflect “natural” or “actual” cause and effect, a “scientific” causal connection between conduct and injury. It aims to capture “our common understanding of causation” and “deep-seated intuitions about causation and fairness in attributing responsibility.” Developing an appropriate standard, or even definition, of causation is a perennial problem across many areas of the law. Strangely, however, although courts frequently look to statistics and the sciences for evidence of causation—sometimes even requiring such evidence to prove causation—the law has rarely looked to these fields for guidance in developing…
Read More

Arizona State Legislature v. Arizona Independent Redistricting Commission and the Future of Redistricting Reform

2019, Past Issues, Print, Volume 51 (2019) Issue 2 (Summer)
David Gartner In 2018, voters in five different states passed successful initiatives that made it harder for politicians to choose their own districts and easier for independent voices to shape the redistricting process. This unprecedented transformation in the redistricting process would not have happened without the Supreme Court’s decision in Arizona Legislature v. Arizona Independent Redistricting Commission. That decision confirmed the constitutionality of Arizona’s own Independent Redistricting Commission and created an outlet for citizens frustrated with dysfunctional governance and unresponsive legislators to initiate reforms through the initiative process. All of these 2018 initiatives created or expanded state redistricting commissions which are to some degree insulated from the direct sway of the majority party in their respective legislatures. Full Article
Read More