Texas A&M Law Review最新文献

{"title":"Confrontation’s Multi-Analyst Problem","authors":"P. Rothstein, R. J. Coleman","doi":"10.37419/lr.v9.i1.4","DOIUrl":"https://doi.org/10.37419/lr.v9.i1.4","url":null,"abstract":"The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128206438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sales, Acquisitions, and Mergers of Direct-to-Consumer Genetic Testing Companies","authors":"Alyssa K McLeod","doi":"10.37419/LR.V8.I2.5","DOIUrl":"https://doi.org/10.37419/LR.V8.I2.5","url":null,"abstract":"Direct-to-consumer genetic tests have become increasingly popular in the United States within the last few years. However, these tests pose many risks to the consumer, most notably privacy risks. A subset of these privacy risks involves the issue of company mergers, acquisitions, and sales. Many companies in the direct-to-consumer genetic testing market have privacy policies that contain a variation of a “business transfer” clause. These clauses specify that in the event the company goes through a business transition such as a sale, merger, or acquisition, the consumer’s personal information—including the consumer’s DNA—will be among the assets transferred. This Article explores the risks associated with these business transfer clauses as they relate to the consumer, and presents a solution to mitigate said risks. The solution lies in FTC v. Toysmart, wherein a toy company that filed for bankruptcy was restricted in selling its assets—which included its customers’ personal data— only to entities with the same interests as the toy company. This Article urges that the default interpretation standard of business transfer clauses track similarly such that a direct-to-consumer genetic testing company may only be sold to, merged with, or acquired by a company with the same or like interests.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126241619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intellectual Property's First Sale Doctrine and the Policy Against Restraints on Alienation","authors":"Lorie Graham, Stephen M. McJohn","doi":"10.37419/lr.v7.i3.1","DOIUrl":"https://doi.org/10.37419/lr.v7.i3.1","url":null,"abstract":"The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) of the painting to the public and to distribute copies to the public. However, the first sale doctrine provides that the owner of an authorized copy may display or distribute that particular copy without infringing. The distribution right and display right no longer apply; these rights are “exhausted.” Permission from the copyright owner is not required to resell copyrighted works or to display them. First sale permits a broad swath of activity. Used bookstores, libraries, swap fests, eBay, students reselling casebooks, and many more may rely on first sale to protect their distribution of copyrighted works. Museums, galleries, archives, bookstores, and more can likewise display their copies of copyrighted works without infringing under first sale. First sale (more commonly called “exhaustion” in patent law) also applies to patented products. Someone who buys a patented product (such as a pharmaceutical, computing device, or printer cartridge) can use or resell that product without infringing the patent, even though the patent owner has the rights to exclude others from using or selling the invention. First sale enables markets for resale or lease of patent products, from printer cartridges to airplanes.\u0000\u0000First sale has its limits. In copyright, it applies only to the rights to distribute and to display the work. The copyright owner also has the exclusive right to make copies, to adapt the work, and to perform the work publicly, which are not subject to first sale. The painting buyer would potentially infringe if the buyer made a copy of the painting or adapted it into another artwork, but the buyer could not infringe the performance right, because one cannot perform a painting. The owner of a copy of a musical work may infringe if she performs it in public, which is why bars need licenses to play copyrighted music, even using copies they have purchased. The owner of a copy of a movie may infringe if she adapted the movie, such as making a sequel—or even dubbing the movie in another language. In patent, first sale likewise would not authorize the purchaser of a product to make additional copies. Similarly, first sale in patent would authorize the buyer of a patented item to use it or resell it, but not to make another one.\u0000\u0000First sale is long-established, by statute in copyright and by judicial interpretation in patent.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122487685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Loans and Marketing Guarantees in Athlete Agent Recruiting","authors":"Joshua Lens","doi":"10.37419/lr.v7.i3.2","DOIUrl":"https://doi.org/10.37419/lr.v7.i3.2","url":null,"abstract":"Athlete agents use various means to recruit prospective clients. Controversial yet common methods include offering loans and marketing guarantees to prospective clients. In each transaction, the agent provides his client with money, in some cases amounting to millions of dollars. The agent typically expects repayment of the loan whereas the marketing guarantee is an advance on future marketing income that the agent will arrange for the athlete. While both National Football League Players Association (“NFLPA”) agent regulations and state athlete agent laws prohibit agents from offering inducements to prospective clients, neither authority considers loans or marketing guarantees illicit or prohibits them.\u0000\u0000This Article details the use of loans and marketing guarantees in the football agent recruiting process. The Article also explores both NFLPA and state athlete agent law, which is based on the Uniform Athlete Agents Act or its revised version’s prohibitions on athlete agents providing inducements to prospective clients. It describes the fiduciary relationship between athlete agents and their clients and the duties that result under agency law. Next, the Article applies agency law to the provision of loans and marketing guarantees by athlete agents to their clients, determining that agency law seeks to prohibit such transactions. The Article then discusses the application of attorney ethics regulations to attorneys who serve as athlete agents and provide loans and marketing guarantees, finding that attorney-agents who engage in this activity violate ethics regulations. The Article concludes by explaining why both athlete agents and athletes should be leery of these dealings and by urging the NFLPA and individual states to expressly prohibit them.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124697469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constraining Strickland","authors":"Michael D. Cicchini","doi":"10.37419/lr.v7.i2.2","DOIUrl":"https://doi.org/10.37419/lr.v7.i2.2","url":null,"abstract":"When a convicted defendant pursues an ineffective assistance of counsel (“IAC”) claim on appeal—for example, by alleging that the defense lawyer failed to call an important witness at trial—the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.\u0000\u0000The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.\u0000\u0000Strangely, however, courts have dramatically expanded Strickland’s two-part test beyond its original purpose. In addition to using it to analyze defense counsel’s performance, courts also use it to blame defense counsel for prosecutorial and judicial misconduct. When a prosecutor cheats or a judge is incompetent, courts turn Strickland’s two-part test on the defense lawyer to answer for the failure to object to the prosecutor’s misconduct or to educate the judge on the spot, in the middle of trial. Strickland, in effect, now requires the defense lawyer to do three jobs in one: his or her own, the prosecutor’s, and the judge’s.\u0000\u0000This bizarre expansion of Strickland is not supported by law or logic, and it creates serious problems for defense lawyers. Further, by viewing acts of prosecutorial and judicial misconduct through Strickland’s lens—a framework that was never intended to protect prosecutors and judges from their own misdeeds—courts are also harming defendants’ chances on appeal and damaging the integrity of the criminal justice system.\u0000\u0000This Article demonstrates how courts have improperly expanded Strick- land, explains the resulting harms, and advocates for clear, simple, and theoretically sound legal reform. That is, courts must hold prosecutors and judges accountable for their own misconduct, rather than diverting blame to the defense lawyer through Strickland’s ill-suited IAC framework.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115304699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fifth Indifference","authors":"Derek Warden","doi":"10.37419/lr.v7.arg.1","DOIUrl":"https://doi.org/10.37419/lr.v7.arg.1","url":null,"abstract":"The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123354826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unintended Consequences, Loopholes, and Gibberish","authors":"Brian Elzweig","doi":"10.37419/LR.V7.I1.4","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.4","url":null,"abstract":"This Article examines Congress’s decades-long attempt to ensure that securities class action lawsuits of national importance are litigated in federal courts. The intent is limiting strike suits. Congress attempted to curtail strike suits through the enactment of the Private Securities Litigation Reform Act (“PSLRA”). The PSLRA required heightened pleading requirements to ensure the validity of federal securities class actions. Instead of solving the dilemma, plaintiffs circumvented the PSLRA by bringing fraud cases as state law claims. To combat the circumvention of the PSLRA, Congress enacted the Securities Litigation Uniform Standards Act (“SLUSA”). SLUSA federally preempted state law claims based on alleged misrepresentations, untrue statements, or omissions of material facts, requiring them to be brought in federal court. However, SLUSA did not address the concurrent jurisdiction provision of the Securities Act of 1933. This created an anomaly whereby many federal claims under the 1933 Act were brought in state courts, while state fraud claims were required to be brought in federal court. Congress could have addressed this enigma when it enacted the Class Action Fairness Act (“CAFA”). Instead, CAFA, which reformed class actions generally, exempted most securities class actions from its rules. In 2018, the Supreme Court decided Cyan v. Beaver County and allowed 1933 Act claims covered by SLUSA to continue to be brought in state courts. The Court was silent on non-covered securities. This Article recommends how Congress can accomplish its goal of forcing important securities class actions into federal courts.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123672685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The EU’S Struggles with Collective Action for Securities Fraud","authors":"D. Morrissey","doi":"10.37419/LR.V7.I1.3","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.3","url":null,"abstract":"Notwithstanding the apparent exit of the United Kingdom, the European Union (“EU”) has grown in membership and power since its modest beginnings after World War II, now rivaling the U.S. in economic strength. With the goal of promoting the security and prosperity of all the citizens of the countries that belong to it, the EU is pressing ahead to adopt laws that will promote their political and financial integration. Along those lines, it has also recently acknowledged a deficiency in the legal systems of its member states when it comes to allowing collective actions for victims of various types of economic harm. To address that, the EU is now developing guidelines for such procedures that can redress those injuries.\u0000\u0000In the area of securities fraud, establishing such measures has taken on more importance after both a spate of financial frauds by European companies and a significant decision from the United States Supreme Court, Morrison v. National Australia Bank. That ruling cut back on the jurisdiction of American courts to adjudicate these claims against foreign defendants—even when a significant amount of the wrongdoing has occurred in the U.S.\u0000\u0000This EU initiative to develop a collective jurisprudence to redress securities fraud also supports another goal that would foster European economic well-being. It would promote a shift in the financing of businesses there from debt to equity. That would particularly help small- and medium-size firms by giving confidence to investors in those enterprises that if they were cheated they would have an effective means to remedy that wrong.\u0000\u0000As it is now, such stock frauds can typically involve a large number of investors, many of whom have relatively small holdings. Individual actions in those situations are not only too expensive to maintain but are often inadequate to compensate all their victims and deter future misconduct. The availability of effective collective remedies would help Europeans overcome their reluctance to make equity investments and therefore provide more flexible capital structures to businesses.\u0000\u0000The European Commission10 (“Commission”) is therefore trying to fashion legal tools to address that problem. This involves enhancement of the EU’s mechanisms for stockholder litigation—what one commentator defines as “an umbrella term for various forms of suit and a range of claims brought by shareholders against the company in which they hold shares or against its directors and officers.”\u0000\u0000The EU’s proposals in that regard seek to encourage what it calls “collective actions,”—its analog to U.S. class actions—where many stockholders with small claims can join together and adjudicate them in one suit. Without such a corrective mechanism, the costs of litigation would be too great for those individuals, and they would not be able to counter the substantial resources that the defendants typically have.\u0000\u0000The EU’s proposals, however, lack features that have made American class actions so effective","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134105999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Genetic Data Privacy Solutions in the GDPR","authors":"Kristi Harbord","doi":"10.37419/LR.V7.I1.6","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.6","url":null,"abstract":"The intersection of healthcare and technology is a rapidly growing area. One thriving field at this intersection involves obtaining, processing, and storing genetic data. While the benefits have been great, genetic information can reveal a great deal about individuals and their families. And the information that can be conveyed from genetic data appears limitless and is constantly growing and changing. Many entities have begun storing, processing, and sharing genetic data on a very large scale. This creates many privacy concerns that the current regulatory framework does not account for. The line between patient data and consumer data is blurred; many entities are interested in obtaining genetic data with varied interests. In the direct-to-consumer genetic testing market, consumers pay to send private companies their DNA samples in exchange for a trivial amount of information about their ancestry and health risks. But health data obtained and processed by a company are subjected to far less stringent privacy regulations than health data obtained and processed at a doctor’s office or hospital. This Comment summarizes some of the current genetic privacy problems in United States laws and examines the EU’s recently adopted GDPR for a possible solution. A GDPR-style regulation could provide more consistency, give individuals more control, and protect against future unknown uses.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"221 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116361249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sharkfests and Databases","authors":"Kay L. Levine, R. Wright, N. King, M. Miller","doi":"10.37419/LR.V6.I3.3","DOIUrl":"https://doi.org/10.37419/LR.V6.I3.3","url":null,"abstract":"In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position to measure empirically the actual effects of crowdsourcing (either by audience or by database) on the rate or substance of pleas. Instead, we use anecdotal data to discuss how crowdsourcing techniques might affect party behavior and alter the balance of power among prosecutors, defenders, and judges when it comes to plea deals.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134006300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}