Author Archives: lawtermpapers-com

Celebrity Privacy and the Paparazzi

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By most accounts, it is the annoying photojournalist, Paparazzo, in the 1960 film La Dolce Vita who gave his name to annoying photographers everywhere.   The term paparazzi refers mainly to celebrity photographers who seem to have no heart and will do anything to get a shot.

There are certain laws that govern the paparazzi.  In California, they are prohibited from trespassing on private property,using telephoto lenses to survey private property and from pursuing their subject matter in automobiles.  The punishment meted out on those who break these laws – usually just stiff fines – is worth the risk since media outlets pay so handsomely for photos of celebrities. And – the more demeaning or scandalous the shot a paparazzi can get, the more he will get paid.

Conflict arises when celebrities value their privacy and resent the ever present paparazzi.  The most infamous and tragic episode involving a celebrity and the paparazzi is the story of Princess Diana.  Diana was hounded by the paparazzi throughout her married life and ultimately met her death in a high speed attempt at escaping the paparazzi.

Diana’s fragile demeanor made her particularly vulnerable to the intrustions of the paparazzi, but perhaps a modicum of acceptance on her part may have somewhat lessened the angst between herself and the paparazzi.  Celebrities, elected officials and high-powered businessmen all rely on the media to promote and define them – for better or for worse.  Therefore it seems that celebrities know going in that they must trade their privacy for fame.

If, in fact, it does seem that the paparazzi overstep their welcome into celebrity privacy, perhaps it is the magazine-buying, tv-watching public that should question their own insatiable desires for celebrity dirt that keep the paparazzi in business.

The Life, Career and Legal Views of Judge Clarence Thomas

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The boy who would grow up to be U.S. Supreme Court Justice Clarence Thomas began life in a poverty-stricken family in coastal Georgia in 1948.  When his mother could no longer afford to raise him, Thomas was sent to live with his grandfather in nearby Savannah.  Influenced by his grandfather to seek a career in the ministry, young Clarence Thomas began seminary, but dropped out when he overheard a classmate making fun of the assassination of Dr. Martin Luther King, Jr.

Thomas then moved north to attend Holy Cross College in Massachusetts and subsequently, Yale Law School.  It was here that the man who would become Judge Clarence Thomas began to adopt conservative political views.  After graduating from law school, Thomas served a stint with the District Attorney of Missouri before moving to Washington and rising in the ranks with several appointments by Ronald Reagan – the most notable being the appointment to chair of the Equal Employment Opportunity Commission in 1982.

When Thurgood Marshall, the first African American U.S. Supreme Court Justice, announced his plans to retire, President George Bush sought to appoint Clarence Thomas to his seat.  The hearings that ensued were marred not only by opposition to Thomas’s conservative views, but mostly by the Anita Hill affair.  Anita Hill had accused Thomas of sexually harassing her when the two had worked together at the Department of Education.

Unable to garner enough proof, Anita Hill’s allegations failed to achieve the desired results and Clarence Thomas became the second African-American U.S. Supreme Court Justice in 1991.  Since then, Thomas has often sided with fellow conservative justice, Antonin Scalia, opposing decisions in favor of affirmative action and speaking out against Roe vs. Wade.  It is clear from Judge Clarence Thomas’s speeches and decisions that he is in favor of a limited government.

 

History and Purposes of the Trademark Law

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Beyonce and Jay-Z have applied for a trademark for “Blue Ivy”, the name of their already famous baby.  At first blush, it sounds as if they were attempting to prevent other parents from imitating their dubious choice in baby names, but no.  The trademark law only applies if you are trying to make money using someone else’s logo, name, phrase or other identifying characteristic.  And making money is what it’s all about as Beyonce and Jay-Z contemplate using “Blue Ivy” as a trademark for all sorts of baby paraphernalia.

Though trademarks are perhaps the oldest identifiers of intellectual property, there were no official trademark laws until the late 19th century.  Trademark history annals suggest that the term “trademark” comes from the mark with which blacksmiths in the Roman Empire would brand their swords to forever herald their maker.  So it is perhaps no coincidence that our modern word “brand” has a dual meaning.

Perhaps the oldest claimant in trademark history is Lowenbrau, who claims to have held the famous lion trademark since 1383.  But it was not until very modern times when trademarks began to be imposed upon and trademark law became a necessity.

The purpose of trademark law is to prevent consumers from being confused about who is offering a particular product or service.  Infringements of trademark law can happen when someone tries to “pass-off“ their product as coming from an officially registered trademark company, or when another business entity tries to develop a trademark that comes too close to one that is already established.

Though the purpose of trademark law is to prevent confusion, the laws, uses and infringements of trademark law can be very complicated, but are needed in today’s world where infringement on intellectual property extends from books, to ideas, products, and even entertainment and software piracy.

Chemical Castration Law

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Castration has been a form of punishment meted out on sexual offenders for all of history, but as the 20th century dawned, enlightened minds determined that physical castration was cruel and unusual punishment.  The first chemical castration occurred around the mid-20th century.  Since then, chemical castration law and the drugs used to that effect have evolved and changed over the years.

Chemical castration involves the use of hormone altering drugs that diminish the libido, sexual fantasies, and the desire for sexual deviancy.  These drugs have been proven effective in clinical trials.  Unlike castration, chemical castration is not permanent and is therefore technically not castration at all, but does produce the desired effect of keeping society protected, while keeping repeat sexual offenders out of jail.

The American Civil Liberties Union heads up the list of entities that oppose chemical castration laws.  They assert that chemical castration is also cruel and unusual punishment, and while the libido-reducing effects may not be permanent, other physical conditions can occur.  While it is true that the hormone-altering drugs used in chemical castrations can cause weight-gain, loss of bone density and gynecomastia, one wonders if these “punishments” are really cruel in the light of the horrible atrocities committed by sex offenders in acts of rape and pedophilia.

Another outrageous censure against chemical castration is the idea that the treatment violates the Fourteenth Amendment by failing to offer “equal protection” under the law.  By some unusual means of logic, these critics have determined that the fact that chemical castration affects more men than women is something that the authors of the Fourteenth Amendment would have had in mind when they wrote it.  Never mind that 99% of all sex crimes are committed by males.  When accounting for all the facts, and weighing the crime with the punishment, chemical castration really doesn’t seem like a bad rap for repeat sex offenders.

The Family and Medical Leave Act

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Before 1993, companies granted leave to their employees as they saw fit.  Most larger corporations granted a certain amount of medical leave and six to eight weeks of maternity leave as fringe benefits to attract the most eligible job applicants.  Then came President Bill Clinton and his agenda-topping Family and Medical Leave Act. 

The Family and Medical Leave Act, which took effect in 1993, forced companies with 50 or more employees to allow workers to take up to 12 weeks of job-protected leave for reasons such as the birth, adoption, or foster-care placement of a child, serious illness of self, spouse, parent or child, and even up to 26 weeks of leave related to the serious injury or illness of a parent, spouse, child, or next-of-kin in the military.

While the Family and Medical Leave Act gave peace of mind to workers nationwide, company owners received only heartburn, especially after states such as Minnesota, Vermont and Washington used the Family and Medical Leave Act as a spring board.  The problem with many laws like the Family and Medical Leave Act is that they set precedences and leave the door wide open for more and more legislation.  Liberal states took the liberty, based on the Family and Medical Leave Act, to lower company size of those affected by the law from 50 to as low as 10.  Some states expanded eligibility to grandparents, grandchildren, in-laws and domestic partners, while others tacked on additional occassions eligible for legal employee absences.

Now that the Family and Medical Leave Act is fully entrenched into America’s list of entitlements, grasping hands are clamoring for more.  As the Family and Medical Leave Act currently stands, employers are required to save a position for the worker for the 12- or 26-week period, and they are required to continue to pay the employer’s contribution on any health insurance the employee was receiving prior to his leave, but they are not required to pay the worker’s salary while they are absent from work.  If lobbyists have their way, however, companies may soon have to grant extensive paid leaves of absence. 

These types of requirements on American business adversely affect the economy when companies have to curtail productivity because they either can’t afford to hire more workers because of all the government regulations, or the workers they do hire don’t have to work because the government gives them a free pass.  Another unexpected economic outcome of the Family and Medical Leave Act is that, since women’s roles have not changed as much as some would like to think – that is, they are still the primary caretakers of both children and aging parents - laws like the Family and Medical Leave Act make women more expensive to hire.

The Pros and Cons of the Insanity Defense

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The insanity defense is not a modern creation, but has been around at least since Greek and Roman times.  However, in our modern day legal environment, many are beginning to debate the pros and cons of the insanity defense. 

If a person is declared “not guilty by reason of insanity”, they are excused from incarceration because it was deemed that at the time they committed the crime, they were unable to realize that what they were doing was wrong, they were unable to appreciate why it was wrong, or they were unable to stop themselves even if they did know or think it was wrong.

The insanity defense is now coming under fire because it seems too easy to escape justice by claiming insanity.  I mean, would we really consider anyone who commits a heinous murder, mutilation, torture or rape sane?  But the insanity defense all boils down to mens rea, or criminal intent.

Some legal thinkers would like to replace the insanity defense all together with a law to prove mental defect or mistaken belief.  Testimony from qualified witnesses may be used to point to previous instances of a defendant’s delusional episodes.  It is a lot more difficult, in an insanity defense,  to prove that someone was NOT insane.

One other problem with the insanity plea is the “irresistible impulse” clause.  This is a case where a defendant might claim that he was aware his crime was wrong, but he was unable to stop himself from committing it.  This type of defense could be potentially overused and abused.

Indeed, there is a potential for abuse of the insanity defense, but as of yet in America very few defendants get excused by reason of insanity.  In fact, many are convicted despite documented proof of suffering from such verifiable mental illnesses as schizophrenia and manic depression.  This is because most American jury members still hold to the values of personal responsibility and retribution.

Software Piracy

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Software piracy is a term that refers to the illegal copying and/or selling of software.  Like books, music and movies, computer software is considered intellectual property and is protected under the copyright laws of most countries.  Softlifting, OEM-unbundling, and counterfeiting are just a few of the several ways that software piracy can be effected.

Most of us have probably benefited from a CD burned from a friend’s iTunes playlist.  Like music piracy, softlifting is simply sharing computer software with friends, family or colleagues.  It seems harmless, but is no less illegal.  It is doubtful whether any of the average cases of softlifting have been prosecuted, but a company who buys software intended for one to three computers and installs it on 100 may be subject to some stiff penalties for pirating software.

OEM-unbundling is another type of software piracy.  OEM stands for “original equipment manufacturer”.  One example of OEM-bundling is when a computer comes with Microsoft Office already installed or in a separate package in the box.  If the retailer or end user tries to sell or distribute the software separately, he would be guilty of software piracy.

Though plenty of folks have at least thought about installing their roommate’s software onto their own laptop, there is a flip side to software piracy.  The consumer may become the victim when he unwittingly purchases counterfeit software.  Perhaps paying as much, or nearly as much, for the counterfeit software as he would have for the real thing, the consumer may find viruses or bugs in his new software that may cause his entire system to crash.  Not only that, he will be ineligible for any support, upgrades or training from the original manufacturer.

In an effort to protect consumers and themselves from the negative effects of software piracy, many software companies attempt to educate consumers to look for a Certificate of Authenticity – or COD – on any software they may be about to purchase.  The COD amounts to a sticker on the box, pictures of which can be found on the Internet.  Other deterrents to software piracy are jail time for convicted pirates or stiff fines for each instance of piracy up to a maximum of $150,000 per instance in the United States.

The Fight Against Money Laundering

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For as many ways as there are to obtain ill-gotten gain, there must be as many more to clean up that dirty money.  Money obtained from all kinds of evils like drugs, arms trade and prostitution rings, and even white-collar crimes like embezzlement, has to be hidden in order for criminals to avoid prosecution and taxes, while they’re at it.  This process is known as money laundering. 

Money laundering can be accomplished in a number of ways with varying layers of complications.  Money is deposited in off-shore banks, deposited along with legal cash obtained from a cash intensive business, or hidden behind trusts or shell companies.  Legal gambling outlets like casinos provide a prime outlet for money laundering when criminals buy chips, play awhile, and then cash in their chips.  The money can then be claimed as gambling winnings.

Aside from empowering criminal rings, how does money laundering hurt the rest of us?  One way is by destroying the business reputations of banking institutions that accept dirty money.  If strong legal entities shun these houses of ill-repute, the banks may fail and the innocent individual depositor is the victim.

On a world-wide scale, however, it is the economy that is hurt the most by money laundering.  Huge influxes of cash money crossing over the borders of nations causes instability in the demand for cash, and in interest and exchange rates.  These result in high inflation, where again, the innocent individual attempting to feed a family is the one who suffers.

Since money laundering is a world-wide problem, government agencies around the world have teamed up in the fight against money laundering.  The United Nations has decreed money laundering to be illegal and in 1989, the G-7 instituted the Financial Action Task Force, which now has 34 member jurisdictions around the world.  And with dirty money funding global terrorist activities, individual countries have ramped up their anti-money laundering programs with renewed vigor.

DNA Fingerprinting and Forensic Science

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DNA fingerprinting and forensic science are fascinating topics as evidenced by the many successful television shows and movies that feature forensic investigations.   “CSI” – in various big cities in the United States, “NCIS”, and a host of shows featuring pathologists as the main characters, such as “Bones” and “Body of Proof”, keep us glued to the set as we watch the characters set to work in the crime lab.  We can’t wait to find out how DNA fingerprinting and forensic science will be used to catch the criminal.

The really exciting thing is that DNA fingerprinting and forensic science are used in real life, too, not only to catch criminals, but also to set innocent people free.  The Innocence Project is an organization dedicated to freeing people who were wrongly convicted of a crime before DNA evidence was used in criminal investigations.

DNA fingerprinting and forensic science are also used in other applications such as matching donors and recipients for organ transplants, establishing paternity and other family relationships, and even verifying the authenticity of valuable products like caviar and wine.

Though DNA fingerprinting and forensic science have many viable uses, there are some ethical components to consider.  Ethicists warn that DNA evidence should never be used to predict the propensity an individual has for criminal behavior or susceptibility to disease.  Just think of the implications this could have on a person’s ability to get a job or to obtain insurance.

Gattaca, a not-too-futuristic movie made 15 years ago, highlights how society could “advance”, based on DNA fingerprinting and forensic science, in a history-repeating scenario a la India’s caste system.  Individuals are categorized based on their genetic profiles at birth.  Gattaca’s protagonist was able to overcome being genetically profiled as suitable for only menial labor by the use of his sharp mind, but the rest of us might not be so lucky if Big Brother some day decides that our DNA is our destiny.

 

Legal Issues in Affirmative Action Law

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The problem with instituting any new law into a government that has already gotten too big, is that once it’s on the books it takes a literal act of Congress to remove it.  Case in point – affirmative action.  In 1961, as the country writhed and undulated under the strain of all kinds of civil rights issues, President John F. Kennedy signed into effect Executive Order 10925 which established what would become the Equal Employment Opportunity Commission.  This was the beginning of the affirmative action push.  And so it was very much needed at the time.  Racial, religious and gender discrimination abounded in a country experiencing coming-of-age growing pains.

Half a century later, many regard affirmative action laws as an unnecessary 10:00 p.m. curfew on a nation that has grown up.  America has outgrown her need for such strict guidance from the nanny state.  Though there will always be fringe elements of racial bigotry, misogyny, or religious intolerance, by and large America has grown into a country that values employees, students, and club members by their own personal merit and not by “race, gender, religion or national origin”.  America has outgrown her need for affirmative action laws.

Besides that, quota-based hiring and college acceptance guidelines based on affirmative action laws, have resulted in reverse discrimination cases.  In these cases, members of a majority group have felt discriminated against when they have lost jobs or a spot in a university to a less-qualified member of a minority group. 

Quota systems are technically illegal, but may be hard to circumvent when corporations must prove they are adhering to affirmative action laws.  The bottom line is that, though we live in an imperfect world, employers and college admission staffs must turn a blind eye to race, gender, religion and national origin and must, as affirmative action laws and moral obligation demand, provide opportunity to those who most qualify based on individual merit.