Volume 41, Issue 1
The Greatest Source of Wealth: Washington State's Response to Prenatal Substance Abuse
Rommel P. Cruz
Contesting the Incontestable: Reforming Trademark's Descriptive Mark Protection Scheme
Jason K. Levine
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This article examines current United States trademark law as it pertains to descriptive marks and argues the current level of protection afforded these marks fails the goals of trademark law and must be reformed to better guard small businesses, consumers, and the public domain. Presently descriptive marks may essentially be warehoused for over three years before receiving registration on the Principal Register. Nevertheless, these marks may display the ® symbol, giving the impression of having received stronger protection than they have actually been afforded. Further, some descriptive marks, despite never acquiring secondary meaning are granted the ability to prevent other marks from being registered on the Principal Register. Moreover, the first applicant to successfully register a descriptive mark on the Supplemental Register finds their mark elevated to a position that has become increasingly difficult for competitors to climb, despite failing to be inherently distinctive.
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The article suggests that the scheme as currently constituted may endanger commerce as well. Both the widespread commercial use of the internet and a number of recent decisions may soon enable a single mark holder, likely a larger business or corporation, to reserve for itself the use of a descriptive term against all others via the use of a domain name, thus stifling competition.
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Accordingly, the author suggests a means to preserve descriptive marks and simultaneously rebalance the playing field in favor of the public domain, enhanced competition, the smaller mark owner, and the consumer. He recommends reversing both the legislative and judicial mechanisms that allow the over protection of descriptive marks before they have achieved secondary meaning. The article seeks to reform a system that now skews too far towards the interests of only the largest firms, thereby removing from the public a valuable tool in making the myriad of product choices that are integral to our daily lives.From Public Use to Public Purpose: The Supreme Court Stretches the Takings Clause in Kelo v. City of New London
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In today's heated tort reform debate, the solutions proposed by the political Right and Left fail to account for the complexity of the American system of personal injury compensation. Existing flaws in today's system are best solved by a solution that can uniquely take account of the operational interdependence of first-party insurance and third-party tort liability insurance. The neo no-fault, or "early offers" model is a balanced and carefully configured answer to the challenge of tort reform, capable of achieving beneficial change in terms of efficiency, deterrence, compensation and equity.
Thou Shalt Not Speak: The Nondisclosure Provisions of the National Security Letter Statutes and the First Amendment Challenge
Brett Shumate
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Little is known about the government's authority to use National Security Letters ("NSL") in international terrorism and intelligence investigations. What little that is known is consistently misunderstood or mischaracterized. The primary function of this article is to remove the veil of secrecy that cloaks NSLs. The author explains the current status of NSLs and traces their development through the USA PATRIOT Act. Particular attention is paid to the nondisclosure provisions of the national security letter statutes that prohibit NSL recipients from disclosing their existence. After explaining a recent decision holding a nondisclosure provision unconstitutional, the author discusses the appropriate framework that should be used to analyze First Amendment challenges to nondisclosure provisions. The author concludes that the nondisclosure provisions should be analyzed under intermediate scrutiny and should be found constitutional.
From Public Use to Public Purpose: The Supreme Court Stretches the Takings Clause in Kelo v. City of New London
Brent Nicholson and Sue Ann Mota
In one of its most controversial and far-reaching decisions of the 2004 term, the United States Supreme Court held that the Takings Clause of the Fifth Amendment permitted the City of New London, Connecticut to appropriate the private property of one party for purposes of economic development of the property by another private party. Holding that such a taking was within a reasonable interpretation of the Constitutional requirement that governmental use of its power of eminent domain be for a "public use", a sharply divided Court continued its expansive view of the public use requirement, leaving such determinations almost entirely to the discretion of the appropriating entity.
This article begins with a selective examination of the case law background of the public use requirement over the last one hundred years. Particular focus is applied to the two Supreme Court precedents relied on by the five member majority in Kelo: Berman v. Parker, and Hawaii Housing Authority v. Midkiff. The article then provides a detailed examination of the majority and dissenting opinions in Kelo and concludes with a discussion of the implications of the decision.
Neo No-Fault Early Offers: A Workable Compromise between First and Third Party Insurance
Jeffrey O'Connell and John Linehan
Volume 41, Issue 2
The Dilemma of the Remote Tippee
Kathleen Coles
Making State Law in Federal Court
Benjamin C. Glassman
Contesting Collaboration and Modeling: Reconsidering "Non-directive" Orthodoxy in CLinical Legal Education
Harriet N. Katz
Clearing the Murky Waters of the Sargasso Sea: The Supreme Court's Upholding of Acquittals as Final in Smith v. Massachusetts
Mike Staskiews
Discriminatory Intent Requirement: The "Separate but Equal" Doctrine of the Twenty-first Century? A Critical Examination of Felon Disenfranchisement Laws and Related Government Practices in the United States
Cecilia Zhang Stiber
Volume 41, Issue 3
Endangered Species: A Plea for the Preservation of NOLO CONTENDERE in Alaska
Jana L. Kuss
Dammed if You Do, Damned if You Don't: FERC's Tribal Consultation Requirement and the Hydropower Re-licensing at Post Falls Dam
Christy McCann
Contact and Concepts: Educating Students at Jesuit Law Schools
Andrew F. Moore
Readers' Expectations, Discourse Communities, and Effective Bar Exam Results
Denise Riebe
Taxation Unchecked and Unbalanced: The Supreme Court's Denial of Certiorari in Sorrentino
Kenneth H. Ryesky
Abstracts Volume 41