FTC Enforcement Authority in the Modern Era: A Commission in Crisis?

This note provides a brief history of the Federal Trade Commission (FTC)’s enforcement authority before analyzing the U.S. Court of Appeals for the seventh Circuit’s circuit-splitting decision in FTC v. Credit Bureau Center, LLC. As the Supreme Court prepares to tackle questions surrounding authority to seek monetary relief, I contextualize how enforcement authority has historically been derived before analyzing how the issue may be resolved. Doing so involves engaging several cases that may prove consequential in determining the outcome and outlines potential legislative solutions to the battle over restitution. Before arriving at the most likely scenarios, a view of the budding relationship between consumer protections giants the FTC and Consumer Financial Protections Bureau (CFPB) provides potential for a synergistic solution, but uncertainty surrounding both institutions indicates a murky outlook on a purely administrative resolution. This in-depth dive, breaking down various aspects of the administrative predicament, details the common law history of traditional restitution authority in the FTC, examines challenges facing the FTC and CFPB, and explores how similar issues facing the Securities and Exchange Commission (SEC) may affect FTC enforcement authority

The Digital Millennium Copyright Act: The Future of the Safe Harbor Provision

Inspired by the current federal case, Viacom v. YouTube, this discussion delves into the history and creation of the Digital Millennium Act (DMCA), the court cases which set the foundation for the ongoing Viacom v . YouTube case, and an in-depth discussion on the growth of technology and the Internet with how it is affecting copyright holders. This article culminates with an analysis on how the DMCA is applied to the current Internet landscape and offers potential solutions to solve the battle between Internet Service Providers and copyright holders

Homophobia and the \u27Mathew Shepard Effect\u27 in Lawrence v. Texas

This paper explores the significance of shifting cultural understandings of gay men and lesbians in the Supreme Court\u27s majority, concurring and dissenting opinions in the landmark sodomy case Lawrence v. Texas. By examining the legal authorities in which the case\u27s various opinions are grounded, the article shows that the differing positions taken by the Court reflect radically diverging views on the significance of homosexuality in contemporary culture. Beyond the rather easy observation that the Supreme Court justices are speaking different languages in the Lawrence opinion, the article contends that the rhetoric of the majority and dissent converge on at least one critical point: both acknowledge that sodomy prohibitions do not simply outlaw certain acts, but profoundly affect groups of people, that is, bisexuals, lesbians, and gay men. This notion was, until recently, hotly contested. But the article shows that the moment for the status/conduct debate about homosexuality seems to have passed, and that even those in favor of allowing states to proscribe gay sex concede that such laws uniquely resonate for a specific subset of the citizenry. This new-found consensus makes sense of Justice Kennedy\u27s far-reaching majority opinion, but complicates enormously the dissent. The article argues that Justice Scalia\u27s dissent is undone by its own position - once it acknowledges the existence of homosexuals, it becomes almost impossible to explain how gay-specific sodomy statutes are not an affront to their dignity. The essay also suggests that the majority opinion is suffused with an implicit but unacknowledged understanding of anti-gay prejudice. Contending that direct acknowledgment of the pernicious effects of racist bigotry was a crucial component in Brown v. Board of Education to which Lawrence has been compared, the essay argues that Lawrence cannot be similarly sea-changing if it is not also understood to introduce the concept of homophobia to the Court and to the larger public

Help Was Not on the Way: Intellectual Property Liability Relief in a Pandemic Era

On January 21, 2020, the United States recorded its first case of COVID-19. By April of that same year, numerous hospitals across the nation had exhausted entire reserves of personal protective equipment (PPE), with looming uncertainty as to when they would be replenished. As infection numbers increased exponentially, global demand for some types of PPE increased by 1000%. Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From creating cloth masks to ventilator pistons, nonprofits and everyday citizens were able to partially alleviate a need that neither the private sector nor the government could address adequately. Extensive potential intellectual property (IP) infringement liabilities exist for these well-meaning volunteers. For example, using open-source, freely-dispersed blueprints could in fact be an unwitting violation of an obscure, pre-existing invention whose patent is buried deep within the unwieldy database of the U.S. Patent and Trademark Office. Moreover, the threat of liability extends beyond micromanufactuers to include also distributors, distribution facilitators, and those who circulate patented plans or copyrighted ideas. Currently, no defenses to such infringement exist, dissuading would-be heroes from assisting during a great time of need. As one recent commentary notes, “[t]he threat of infringement also dampens the ability to innovate under conditions of emergency, intensifying the tension between the protection of IP and the protection of human lives.” Defendants could, however, look to other legal doctrines. In analogizing intellectual property to the common law, one might argue for a Good Samaritan doctrine or to the necessity defense to trespass from tort law. As in landlord-tenant law, to the extent that rents for real property have been deferred during the time of the pandemic, perhaps certain instances of intangible property “rent seeking” by the owners of patents and copyrights might be justifiably put on hold as well. Defendants in IP lawsuits could also look to creative applications of existing exceptions in patent law such as march-in rights and the Defense Protection Act. Using this PPE and medical device production dilemma as a case study, this Article will consider the logistical and legal obstacles to accommodating public interest uses of intellectual property. My analysis will recommend a procedure that would limit or defer liability and provide appropriate remedies, and also would incentivize crucial and well-meaning acts in times of pandemic