Zombie Deer: Slowing the Spread of CWD

February 18, 2022
Administrative Law, Agriculture, Animal Law, Environment, Environmental Law, Public Lands

Warren Sexson, MJLST Staffer

Minnesota is one of the premier states in the Union for chasing whitetails. In 2020, over 470,000 licenses were purchased to harvest deer. As a hunter myself, I understand the importance of protecting Minnesota’s deer herd and habitat. The most concerning threat to whitetail deer in the state is Chronic Wasting Disease (CWD). CWD alters the central nervous system, similar to “mad cow disease,” causing deer to lose weight, stumble, drool, and behave similarly to an extra on The Walking Dead. It was first discovered in 1967 in Colorado mule deer and is transmissible to other ungulates such as moose, elk, red deer, black-tail deer, Sitka deer, and reindeer. It is 100% fatal in animals it infects and there is no known treatment or vaccine. While it currently poses no threat to humans, Canadian researchers have shown eating the meat from infected animals can infect hungry macaques, prompting the CDC and the World Health Organization to recommend against consumption of CWD positive animals. Luckily, in Minnesota there were only a handful of cases last season. Challenges still remain, however, and the Minnesota Department of Natural Resources (DNR) and the state legislature have tools at their disposal to combat the spread.

The DNR currently has a comprehensive response plan. In order to get a deer hunting license, the hunter has to pick what “zone” he or she will be hunting in. Minnesota is divided up into zones based off of the deer population and geography. Each zone has different guidelines for how many licenses will sell to the public. Some are “limited draw,” meaning a lottery system where only a certain number of applicants are selected, others are “over-the-counter,” meaning anyone who wants a license in that unit may buy one. Within the zoning system, the DNR has three “CWD Zone” classifications that restrict harvesting deer depending on the risks of the disease—surveillance, control, and management zones. Surveillance zones are where CWD has been found in captive deer or in wild deer in an adjacent zone. Control zones border the management zones, and management zones take up most of the south-eastern portion of the state, where CWD is highly concentrated. The restrictions in each type of zone vary, with surveillance zones being the least restricted and management zones being the most. Hunters have a key role in slowing the spread of CWD. Reducing deer populations in CWD ridden areas helps to reduce contact among deer and lower infection rates. However, there are other ways to further Minnesota’s commitment to slowing the spread of CWD.

The DNR can use emergency actions; it has done so recently. In October of 2021, the DNR temporarily banned moving farmed deer into and within the state through emergency action. Farmed deer (deer raised in captivity for use in trophy hunting) are a main vector of transmission for CWD. The ban was lifted in December but could have lasted longer. The DNR has emergency authority under Minn. Stat. § 84.027 Subd. 13(b) and (g). By enacting emergency declarations, the DNR can continue to use proven measures to slow the spread: requiring testing in high risk areas, banning movement between deer farms, increasing legal limits, and requiring hunters who desire a big buck to first harvest does in so called “Earn-a-Buck” programs. But, such emergency authority can only be 18 months at the longest. While limited in time, emergency orders provide the DNR the flexibility it needs to combat the disease’s spread.

The agency could also attempt to regulate by standard rulemaking authority as laid out in Chapter 14 of Minnesota’s statutes. The agency likely has authority to regulate deer hunting rules relating to CWD and recently has gained concurrent authority over deer farms along with the Board of Animal Health. However, if the DNR attempted to ban deer farming or imposed severe regulatory requirements, industry and interest groups would likely respond with legal challenges to the rulemaking process. In previous attempts to severely restrict deer farms, the Minnesota Deer Farmers Association has filed lawsuits attempting to block restrictions.

While the DNR likely can regulate deer hunting to slow the spread, the legislature is the best option for stopping deer farming as a whole. It is not necessarily a one-sided issue; a bi-partisan coalition of hunters and environmentalistswish to see the practice banned. State Rep. Rick Hansen (DFL) who chairs the House Environment and Natural Resources Finances and Policy Committee has discussed ending the practice and buying out all existing operators. Craig Engwall, head of the Minnesota Deer Hunters Association has additionally called for such a ban. State legislation would be the most comprehensive way to slow the spread of CWD.

State legislators should also consider funding more research for potential vaccines and treatments for CWD. Funding is beginning to pick up; Canadian researchers have begun working on potential vaccines. Additionally, Rep. Ron Kind’s (D-WI) bill, the Chronic Wasting Disease Research and Management Act passed the House of Representatives with Bipartisan support and awaits a vote in the Senate. While this is encouraging, more can be done to support scientific research and protect deer herds. If Minnesota wants to lead the United States in solving such a global issue, the bipartisan support exists to help tackle the largest threat to deer hunting in the U.S. and the state.

CWD threatens the state’s large and historic deer hunting tradition. The DNR and the state legislature have the tools at their disposal to impose meaningful reform to combat the spread of “zombie-deer,” so the population can thrive for generations to come.

Social Media Influencers Ask What “Intellectual Property” Means

February 18, 2022
Copyrights, Data, Intellectual Property, Internet, Social Media, Trademark Law

Henry Killen, MJLST Staffer

Today, just about anyone can name their favorite social media influencer. The most popular influencers are athletes, musicians, politicians, entrepreneurs, or models. Ultra-famous influencers, such as Kylie Jenner, can charge over 1 million dollars for a single post with a company’s product. So what are the risks of being an influencer? Tik Tok star Charli D’Amelio has been on both sides of intellectual property disputes. A photo of Charli was included in media mogul Sheeraz Hasan’s video promoting his ability to “make anyone famous.” The video featured many other celebrities such as Logan Paul and Zendaya. Charli’s legal team sent a cease-and-desist letter to Sheeraz demanding that her portion of the promotional video is scrubbed. Her lawyers assert that her presence in the promo “is not approved and will not be approved.” Charli has also been on the other side of celebrity intellectual property issues. The star published her first book In December and has come under fire from photographer Jake Doolittle for allegedly using photos he took without his permission. Though no lawsuit has been filed, Jake posted a series of Instagram posts blaming Charli’s team for not compensating him for his work.

Charli’s controversies highlight a bigger question society is facing, is content shared on social media platforms considered intellectual property? A good place to begin is figuring out what exactly intellectual property is. Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” Social media platforms make it possible to access endless displays of content – from images to ideas – creating a cultural norm of sharing many aspects of life. Legal teams at the major social media platforms already have policies in place that make it against the rules to take images from a social media feed and use them as one’s own. For example, Bloggers may not be aware what they write may already by trademarked or copyrighted or that the images they get off the internet for their posts may not be freely reposted. Influencers get reposted on sites like Instagram all the time, and not just by loyal fans. These reposts may seem harmless to many influencers, but it is actually against Instagram’s policy to repost a photo without the creator’s consent. This may seem like not a big deal because what influencer doesn’t want more attention? However, sometimes influencers’ work gets taken and then becomes a sensation. A group of BIPOC TikTok users are fighting to copyright a dance they created that eventually became one of biggest dances in TikTok history. A key fact in their case is that the dance only became wildly popular after the most famous TiKTok users began doing it.

There are few examples of social media copyright issues being litigated, but in August 2021, a Manhattan Federal judge ruled that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright. In reaching this decision, the judge rejected the “server test” from the 9th Circuit, which holds that embedding content from a third party’s social media account only violates the contents owner’s copyright if a copy is stored on the defendant’s serves. .  General copyright laws from Congress lay out four considerations when deciding if a work should be granted copyright protection: originality, fixation, idea versus expression, and functionality. These considerations notably leave a gray area in determining if dances or expressions on social media sites can be copyrighted. Congress should enact a more comprehensive law to better address intellectual property as it relates to social media.

A New Sheriff in the Wild West: How the Cryptocurrency Industry’s Failure to Neutralize Hacking Threats Has Rendered Federal Regulation a Necessity

February 16, 2022
Uncategorized

Dan O’Dea, MJLST Staffer

In today’s financial world, few things are more captivating than the rapidly evolving cryptocurrency space. It has been a wild twelve months for the cryptocurrency industry, and specifically for Bitcoin owners. Bitcoin doubled its value in 2021 and peaked at just over $68,000/coin, only to erase nearly all of those gains when the crypto market crashed in January 2022. The crash was largely prompted by fears that the Federal Reserve would withdraw stimulus from the market by raising interest rates. In the process, the crypto market lost over $1 trillion in market value, and an asset class that many have called a “hedge opportunity” for investors against inflation crashed down with the stock market as a whole.

But extreme market volatility is not the only risk investing in cryptocurrency poses for its some 300 million investors. Hackers and thieves have been wreaking havoc on the Decentralized Finance (De-Fi) industry, with their latest exploit coming in the form of a $320 million theft of Ethereum from Wormhole, one of the most popular bridges linking the blockchains of the popular Ethereum and Solana coins. These blockchains are of great use, as they are capable of developing “smart contracts” to replace banks and lawyers in certain business transactions. Blockchain “bridges” like Wormhole are important facilitators for these contracts. Unfortunately, in the process, bridges like Wormhole have become a target for cyberattacks due to fundamental limits on their security as they house hundreds of millions of dollars of assets in escrow. This latest theft on Wormhole is not even the largest in the De-Fi crypto space’s history, where a $600 million theft from a platform called Poly Network takes the cake. Interestingly, the hacker’s goal in that theft was simply to open a dialogue with the platform about security issues on the blockchain, and ultimately all funds were returned. Attacks have not been limited to the platform level, as smaller-time thieves have turned to phishing scams and SIM Swap schemes (in which an individual misrepresents their identity to your cell phone provider in an effort to intercept dual-factor authentication messages and gain access to your crypto accounts) to steal from individual investors. Unfortunately, victims of the vast majority of cryptocurrency thefts are extremely unlikely to recoup their funds once they have been stolen, due to the anonymity afforded to wallet holders on the blockchain, who in some cases can reveal no identifiable details about themselves while transacting cryptocurrency.

It is important to note that when a cryptocurrency platform loses money, it is not the platform alone that incurs a loss. Rather, the clients whose accounts were pillaged by hackers bear the entire loss, or, if the platform collapses from the theft and liquidators are appointed, every user on the platform will bear the loss to some degree. So what recourse do the victims of cryptocurrency theft have? While Cryptocurrency platforms such as Coinbase attempt to educate users about the types of scams they may encounter, if a theft occurs, victims are usually on their own. While state prosecutor’s offices and federal enforcement agencies like the FBI will investigate and prosecute identifiable criminals, and individual plaintiffs can bring private civil actions against them, the largest challenge faced by victims of cryptocurrency theft is identifying the thieves in the first place. In an effort to identify perpetrators, both the FBI and private parties with deep pockets have begun to contract with private tech firms specializing in tracking down stolen crypto, such as CipherTrace. While working with a crypto-tracking firm gives an aggrieved individual the best chance of tracking down their thieves, it is still unlikely that the parties will ever be identified and funds ever recouped.

Security requirements are far from standardized across the crypto industry—true to its nickname, the “Decentralized Finance” (De-Fi) industry, operates essentially free from regulatory constraints in the United States. The Financial Industry Regulatory Authority (FINRA) has cautioned investors of the risks posed by cryptocurrency investments relating to hacking and volatility, but because the space is not subject to federal securities regulation requirements, investors often enter the world of cryptocurrency investing underinformed as to its true risks. The U.S. Securities and Exchange Commission (SEC) has begun to wade into the fray of regulating cryptocurrency platforms, most recently with the introduction of a proposal that some are calling a “trojan horse” regulatory tool to be wielded against the crypto industry. The proposal contains an expansive definition of the term “treasury platforms” that would likely allow the SEC to issue protocols for cryptocurrency and De-Fi platforms. The trojan horse notwithstanding, the SEC has been vocal about its plans to introduce formal regulatory guidelines and procedures for the cryptocurrency industry in the long term. Even the White House has waded into the crypto regulatory waters, with the Biden administration set to release an executive order designed to create a government-wide strategy to regulate the cryptocurrency industry that could release as soon as mid-February, 2022. The proposal comes on the heels of the FTC’s release of data showing cryptocurrency scams have skyrocketed, and as concern levels over crypto money laundering schemes rise.

While many have scoffed at the idea that the decentralized finance industry should be regulated, it is likely that the prospect of federal regulation actually represents a good thing for a cryptocurrency market that has been referred to as “The Wild West,” and that has drawn comparisons to the late 2000s subprime mortgage market. Federal regulation of the cryptocurrency industry will prompt new protocols for its platforms designed to enhance risk disclosures made to prospective crypto investors and strengthen the security measures protecting investments. Further, regulation is likely to prompt registration and reporting requirements that will make it easier to catch crypto thieves by providing greater information to law enforcement agencies. The crypto industry continues to prove it cannot protect itself from the threat of hacking, and investors are largely bearing the costs of these failures. Just as the SEC stepped in to protect investors from being burned by highly speculative and worthless securities in the 1930s, aiding its regulatory hand to the cryptocurrency industry in a non-burdensome manner should again provide investors with a new set of protections in 2022.

Legal Personhood and Cocaine Hippos: Animals as “Interested Persons” and Their Rights in Court

February 16, 2022
Uncategorized

Douglas Harman, MJLST Staffer

On October 15, 2021, a federal magistrate judge ruled that a group of hippos in Colombia can be recognized as “interested persons” per federal statute for the purposes of deposing two Ohio Wildlife experts. These hippos are the descendants of hippos illegally imported to Colombia by drug kingpin Pablo Escobar. When Escobar was killed, the hippos were not relocated and were left to their own devices in Colombia. Since then, the hippos have multiplied and present significant environmental challenges. The issue in the US arose from litigation in Colombia concerning the fate of the hippos, which resulted in a request to depose the two Ohio experts. These hippos will be referred to as the “cocaine hippos” because that seems to be the term most commonly associated with them (and, quite frankly, it’s amusing).

This decision, though hailed by animal rights groups as groundbreaking, is likely more a technicality than a guiding precedent. Specifically, the ruling comes because Colombia treats animals as “sentient beings” with certain rights. Because the suit by the hippos is permitted in Colombia, US law treats the hippos as “interested persons” for the purposes of deposing US experts on ethical sterilization methods. Regardless of the breadth or technicality of the decision in question, it nonetheless represents a significant step to affix the title of “person” to a non-homosapien, and it has not happened in a US court before, despite repeated efforts by animal rights organizations. However, other countries do recognize various degrees of animal sentience.

The Legal Concept of Non-Human “Personhood”

The issue of whether animals should be considered “persons” has a variety of scientific, psychological, and philosophical elements. This blog post is not here to debate whether animals should be considered persons in terms of political theory or philosophy; plenty of ink has been spent in that pursuit elsewhere. This discussion focuses on how non-persons may receive limited rights to sue in court and perform certain legal functions as if they were persons, like the deposition of experts in the matter of the cocaine hippos.

 The implications of animal consciousness are relevant because growing understanding of animal cognition and consciousness has informed a discussion of whether animals, and other non-humans like trees or natural areas, should be allowed to have their own rights vindicated in court. That is to say, there are a number of ongoing legal discussions about obligations owed to non-humans that governments are obligated to respect, and how those rights are allowed to be vindicated in court. It is this narrower, legal version of non-human “personhood” that was granted to Colombia’s cocaine hippos in the present action.

History of Non-Human “Personhood” Debate in the US

Although the court ruling in the cocaine hippos matter is the first time a US court has attached “person” status to an animal, it is not the first time the issue has been discussed. Attempts to give animals legal status and treat them as “persons” in certain legal areas developed from the animal rights movement, which has a long history in the US and Great Britain. In the last several years, several courts have referred to animal legal rights in the context of personhood, albeit rather obliquely at times. One of the biggest ongoing debates concerns the rights of Happy the Elephant; animal rights activists are pursuing a writ of habeas corpus for Happy, arguing she deserves to be treated as a person in the eyes of the law.

Non-human personhood is not without precedent. Courts have allowed corporations to be considered “artificial persons” in limited circumstances in court since the 1600s. Jurisprudence has since developed in the United States towards increasing “personhood” of corporations, referring to a railroad as a person for the purposes of the 14th amendment in 1886. Today corporations have near-total personhood, including the right to make religious objections to laws and practice free speech.

There is also some precedent for inanimate objects holding “personhood” status under the law. Every law student (and a great many other Americans, it is to be imagined) have discussed or at least heard of the Tree that Owns Itself (while it almost certainly does not own itself as a technical matter, it certainly does in the public mind and in the official statements of the local government). Additionally, Justice William O. Douglas in his dissent in Sierra Club v. Morton argued that standing doctrine should be amended to allow organizations to sue on behalf of inanimate things, including land, rivers, trees, etc. This opinion essentially lays out an idea of legal personhood for inanimate objects, and would presumably also extend with relative ease to animals.

As a factual matter, the reality of non-human personhood, while remarkably developed for corporations in the United States, has relatively little real applications to animals today. This is one of the main reasons that the attachment of the “interested persons” label to the Colombian hippos felt significant to many in the animal rights movement.

Recognition of Non-Human “Personhood” in Other Countries

While animals have not commonly been granted legal rights in the United States, they do in many other countries. Spain recognized animals as “sentient beings” and have greater standing than inanimate objects. In doing so, it joined about 32 other countries that do the same, including France, the U.K., the Netherlands, Sweden, New Zealand, and Tanzania. South Korea is doing something similar in granting animals legal status.

South America is also moving on the front on non-human rights. In 2014, a court in Argentina recognized the basic rights of Sandra the Orangutan, and agreed that she was being detained illegally in the Buenos Aires Zoo. Additionally, Colombia, the state in which the cocaine hippos case originates, has vested portions of the Amazon Rainforest with legal rights, and, as mentioned, recognizes animal sentience and limited legal rights.

What This Means for Colombia’s Cocaine Hippos (and Other Animals)

In the immediate term, the magistrate judge’s recognition of the cocaine hippos as “interested persons” has allowed for the expert deposition sought by the Colombian lawyers advocating on the hippos’ behalf. Effort is now under way to chemically sterilize the hippos, rather than cull or surgically castrate them.

More broadly, there appears to be more references to the inherent rights of animals in American jurisprudence, rather than simply their function as property. The act of classifying the hippos as “interested persons” did not rock the legal boat (in fact, the magistrate judge remains quite well regarded by her colleagues). Those interested in animal rights will doubtless be heartened by increased use of personhood and rights language used with respect to animals. Hopefully, the treatment of Pablo Escobar’s rogue cocaine hippos in US court is indicative of progressive trend in the law’s treatment of animals.

The Mysterious Disappearance of Deference: What Is the Supreme Court’s Current Relationship to Federal Agencies?

February 7, 2022
Administrative Law, Bioethics, Copyrights, Regulatory, Uncategorized

Carly Michaud, MJLST Staffer

The Supreme Court has had no shortage of administrative law cases in the (possibly) final sessions of one of the Court’s administrative law scholars, Justice Stephen Breyer. Yet, Breyer has found himself and his ideological compatriots in the opposition on the topic in which he situates his expertise. In the recent case regarding OSHA’s ability to require COVID-19 vaccines, Breyer’s dissent repeated discusses the proper deference an agency’s determination should be given by the Supreme Court.

Notably absent from the case is any mention of the previous key to the relationship between the courts and federal agencies: Chevron deference. In fact, Chevron U.S.A., Inc. v. National Resources Defense Council, was, (as of a 2014 analysis in the Yale Journal on Regulation) the “Most Cited Supreme Court Administrative Law decision”. While previously considered a niche area, administrative law is now so ubiquitous in practice that as of July 2021, 55 law schools require students take a course in administrative law or one of its mainstays: legislation or statutory interpretation.

In spite of this, Chevron appears nowhere in the discussion of OSHA’s vaccine mandate, nor in the court’s earlier revocation of the CDC’s eviction moratorium. This absence suggests that perhaps this Court has become a body of health experts, relying on their own understanding of COVID-19 to determine whether these agency-created regulations are effective in their mission. Both cases center on whether an agency action to prevent the spread of COVID-19 is within the purview of their empowering statute, and, despite the broad statutory authorities of these agencies to protect the health of Americans, both actions were deemed beyond that authority.

But back to Chevron, has it been abandoned as a standard? Not yet, although there was some discussion of this proposition during the oral argument of American Hospital Association v. Becerra last November. The Court has not released an opinion yet on this case, however the Court of Appeals had previously upheld HHS’s ability to set reembursement rates, per its statutory authority.

In a final thrust of irony, the death knell for Chevron deference may come from a case challenging the very statute and the very agency whose decision-making was at issue in Chevron: the EPA and the Clean Air Act. This is particularly ironic as the EPA administrator whose decision-making was being challenged in Chevron was Anne Gorsuch, the mother of Supreme Court justice and noted antagonist of agency authority: Neil Gorsuch. Yes, in a tale mirroring Hamlet, Neil Gorsuch seems determined to destroy the administrative state that had entangled his mother in various administrative scandals. The latest edition of this showdown between the Gorsuchs and EPA is scheduled for Monday February 28, which will see the Supreme Court hearing arguments in West Virginia v. EPA and its consolidated cases.

This behavior by the Court belies a grave concern both about the continued disempowerment of federal agencies—which have been empowered directly by Congress—at the hands of the unelected judiciary. Further, the most cynical of us may see this as a direct assault on the authority of agencies that some justices may politically disagree with, further disregarding the knowledge of learned experts to push their own political agendas.

The Uniform Domain Name Dispute Resolution Policy (“UDRP”): Not a Trademark Court but a Narrow Administrative Procedure Against Abusive Registrations

December 22, 2021
Internet, Trademark Law

Thao Nguyen, MJLST Staffer

Anyone can register a domain name through one of the thousands of registrars on a first-come, first-serve basis at a low cost. The ease of entry has created so-called “cybersquatters,” who register for domain names that reflect trademarks before the true trademark owners are able to do so. Cybersquatters often aim to profit from cybersquatting activities, either by selling the domain names back to the trademark holders for a higher price, by generating confusion in order to take advantage of the trademark’s goodwill, or by diluting the trademark and disrupting the business of a competitor. A single cybersquatter can cybersquat on several thousand domain names that incorporate well-known trademarks.

Paragraph 4(a) of the UDRP provides that the complainant must successfully establish all three of the following of elements: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) that the registrant has no rights or legitimate interests in respect of the domain name; and (iii) that the registrant registered and is using the domain name in bad faith. Remedies for a successful complainant include cancellation or transfer to the complainant of the disputed domain name.

Although prized for being focused, expedient, and inexpensive, the UDRP is not without criticism, the bulk of which focuses on the issue of fairness. The frequent charge is that the UDRP is inherently biased in favor of trademark owners and against domain name holders, not all of whom are “cybersquatters.” This bias is indicated by statistics: 75% to 90% of URDP decisions each year are decided against the domain name owner.

Nonetheless, the asymmetry of outcomes, rather than being a sign of an unfair arbitration process, may simply reflect the reality that most UDRP complaints are brought when there is a clear case of abuse, and most respondents in the proceeding are true cybersquatters who knowingly and willfully violated the UDRP. Therefore, what may appear to be the UDRP’s shortcomings are in facts signs that the UDRP is fulfilling its primary purpose. Furthermore, to appreciate the UDRP proceeding and understand the asymmetry that might normally raise red flags in an adjudication, one must understand that the UDRP is not meant to resolve trademark dispute. A representative case where this purpose is addressed is Cameron & Company, Inc. v. Patrick Dudley, FA1811001818217 (FORUM Dec. 26, 2018), where the Panel wrote, “cases involving disputes regarding trademark rights and usage, trademark infringement, unfair competition, deceptive trade practices and related U.S. law issues are beyond the scope of the Panel’s limited jurisdiction under the Policy.” In other words, the UDRP’s scope is limited to detecting and reversing the damages of cybersquatting, and the administrative dispute-resolution procedure is streamlined for this purpose.[1]

That the UDRP is not a trademark court is evident in the UDRP’s refusal to handle cases where multiple legitimate complainants assert right to a single domain name registered by a cybersquatter. UDRP Rule 3(a) states: “Any person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” UDRP cases with two or more complainants in a proceeding are possible only when the complainants are affiliated with each other as to share a single license to a trademark,[2] for example, when the complainant is assigned rights to a trademark registered by another entity,[3] or when the complainant has a subsidiary relationship with the trademark registrant.[4]

Since the UDRP does not resolve a good faith trademark dispute but intervenes only when there is clear abuse, the respondent’s bad faith is central: a domain name may be confusingly similar or even identical to a trademark, and yet a complainant cannot prevail if the respondent has rights and legitimate interests in the domain name and/or did not register and use the domain name in bad faith.[5] For this reason, the UDRP sets a high standard for the complainant to establish respondent’s bad faith. For example, UDRP provides a defense if the domain name registrant has made demonstrable preparations to use the domain name in a bona fide offering of goods or services. On the other hand, the Anticybersquatting Consumer Protection Act (“ACPA”) only provides a defense if there is prior good faith use of the domain name, not simply preparation to use. Another distinction between the UDRP and the ACPA is that the UDRP requires that complainant prove bad faith in both registration and use of the disputed domain to prevail, whereas the ACPA only requires complainant to prove bad faith in either registration or use.

Such a high standard for bad faith indicates that the UDRP is not equipped resolve issues where both parties dispute their respective rights in the trademark. In fact, when abuse is non-existent or not obvious, the UDRP Panel would refuse to transfer the disputed domain name from the respondent to the complainant.[6] Instead, the parties would need to resolve these claims in regular courts under either the ACPA or the Latham act. Limiting itself to addressing cybersquatting allows the UDRP to become extremely efficient in dealing with cybersquatting practices, a widespread and highly damaging abuse of the Internet age. This efficiency and ease of the UDRP process is appreciated by trademark-owning businesses and individuals, who prefer that disputes are handled promptly and economically. From the time of the UDRP’s creation until now, ICANN has not shown intention for reforming the Policy despite existing criticisms,[7] and for good reasons.

 

[Notes]

[1] Gerald M. Levine, Domain Name Arbitration: Trademarks, Domain Names, and Cybersquatting at 102 (2019).

[2] Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (FORUM Dec. 28, 2003) (treating the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names.)

[3] Golden Door Properties, LLC v. Golden Beauty / goldendoorsalon, FA 1668748 (FORUM May 7, 2016) (finding rights in the GOLDEN DOOR mark where Complainant provided evidence of assignment of the mark, naming Complainant as assignee); Remithome Corp v. Pupalla, FA 1124302 (FORUM Feb. 21, 2008) (finding the complainant held the trademark rights to the federally registered mark REMITHOME, by virtue of an assignment); Stevenson v. Crossley, FA 1028240 (FORUM Aug. 22, 2007) (“Per the annexed U.S.P.T.O. certificates of registration, assignments and license agreement executed on May 30, 1997, Complainants have shown that they have rights in the MOLD-IN GRAPHIC/MOLD-IN GRAPHICS trademarks, whether as trademark holder, or as a licensee. The Panel concludes that Complainants have established rights to the MOLD-IN GRAPHIC SYSTEMS mark pursuant to Policy ¶ 4(a)(i).”)

[4] Provide Commerce, Inc v Amador Holdings Corp / Alex Arrocha, FA 1529347 (FORUM Jan. 3, 2014) (finding that the complainant shared rights in a mark through its subsidiary relationship with the trademark holder); Toyota Motor Sales, U.S.A., Inc. v. Indian Springs Motor, FA 157289 (FORUM June 23, 2003) (“Complainant has established that it has rights in the TOYOTA and LEXUS marks through TMC’s registration with the USPTO and Complainant’s subsidiary relationship with TMC.”)

[5] Levine, supra note 1, at 99; see e.g., Dr. Alan Y. Chow, d/b/a Optobionics v. janez bobnik, FA2110001967817 (FORUM Nov. 23, 2021) (refusing to transfer the <optobionics.com> domain name despite its being identical to Complainant’s OPTOBIONICS mark and formerly owned by Complainant, since “[t]he Panel finds no evidence in the Complainant’s submissions . . . [that] the Respondent a) does not have a legitimate interest in the domain name and b) registered and used the domain name in bad faith.”).

[6] Swisher International, Inc. v. Hempire State Smoke Shop, FA2106001952939 (FORUM July 27, 2021).

[7] Id. at 359.

Holy Crap: The First Amendment, Septic Systems, and the Strict Scrutiny Standard in Land Use Law

December 22, 2021
Administrative Law, Constitutional Law, Discrimination, Environmental Law, First Amendment

Sarah Bauer, MJLST Staffer

In the Summer of 2021, the U.S. Supreme Court released a bevy of decisions favoring religious freedom. Among these was Mast v. City of Fillmore, a case about, well, septic systems and the First Amendment. But Mast is about so much more than that: it showcases the Court’s commitment to free exercise in a variety of contexts and Justice Gorsuch as a champion of Western sensibilities. It also demonstrates that moving forward, the government is going to need work harder to support that its compelling interest in land use regulation trumps an individual’s free exercise rights.

The Facts of Mast

To understand how septic systems and the First Amendment can even exist in the same sentence, it’s important to know the facts of Mast. In the state of Minnesota, the Pollution Control Agency (MPCA) is responsible for maintaining water quality. It promulgates regulations accordingly, then local governments adopt those regulations into ordinances. Among those are prescriptive regulations about wastewater treatment. At issue is one such ordinance adopted by Fillmore County, Minnesota, that requires most homes to have a modern septic system for the disposal of gray water.

The plaintiffs in the case are Swartzentruber Amish. They sought a religious exemption from the ordinance, saying that their religion forbade the use of that technology. The MPCA instead demanded the installation of the modern system under threat of criminal penalty, civil fines, and eviction from their farms. When the MPCA rejected a low-tech alternative offered by the plaintiffs, a mulch basin system not uncommon in other states, the Amish sought relief on grounds that the ordinance violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). After losing the battle in state courts, the Mast plaintiffs took it to the Supreme Court, where the case was decided in their favor last summer.

The First Amendment and Strict Scrutiny

Mast’s issue is a land use remix of Fulton v. City of Philadelphia, another free exercise case from the same docket. Fulton, the more controversial and well-known of the two, involved the City of Philadelphia’s decision to discontinue contracts with Catholic Social Services (CSS) for placement of children in foster homes. The City said that CSS’s refusal to place children with same-sex couples violated a non-discrimination provision in both the contract and the non-discrimination requirements of the citywide Fair Practices Ordinance. The Supreme Court didn’t buy it, holding instead that the City’s policy impermissibly burdened CSS’s free exercise of religion.

The Fulton decision was important for refining the legal analysis and standards when a law burdens free exercise of religion. First, if a law incidentally burdens religion but is both 1) neutral and 2) generally applicable, then courts will not ordinarily apply a strict scrutiny standard on review. If one of those elements is not met, courts will apply strict scrutiny, and the government will need to show that the law 1) advances a compelling interest and 2) is narrowly tailored to achieve those interests. The trick to strict scrutiny is this: the government’s compelling interest in denying an exception needs to apply specifically to those requesting the religious exception. A law examined under strict scrutiny will not survive if the State only asserts that it has a compelling interest in enforcing its laws generally.

Strict Scrutiny, RLUIPA, and Mast

The Mast Plaintiffs sought relief under RLUIPA. RLUIPA isn’t just a contender for Congress’s “Most Difficult to Pronounce Acronym” Award. It’s a choice legal weapon for those claiming that a land use regulation restricts free exercise of religion. The strict scrutiny standard is built into RLUIPA, meaning that courts skip straight to the question of whether 1) the government had a compelling government interest, and 2) whether the rule was the least restrictive means of furthering that compelling government interest. And now, post-Fulton, that first inquiry involves looking at whether the government had a compelling interest in denying an exception specifically as it applies to plaintiffs.

So that is how we end up with septic systems and the First Amendment in the same case. The Amish sued under RLUIPA, the Court applied strict scrutiny, and the government failed to show that it had a compelling interest in denying the Amish an exception to the rule that they needed to install a septic system for their gray water. Particularly convincing at least from Coloradan Justice Gorsuch’s perspective, were the facts that 1) Minnesota law allowed exemptions to campers and outdoorsman, 2) other jurisdictions allowed for gray water disposal in the same alternative manner suggested by the plaintiffs, and 3) the government couldn’t show that the alternative method wouldn’t effectively filter the water.

So what does this ultimately mean for land use regulation? It means that in the niche area of RLUIPA litigation, religious groups have a stronger strict scrutiny standard to lean on, forcing governments to present more evidence justifying a refusal to extend religious exemptions. And government can’t bypass the standard by making regulations more “generally applicable,” for example by removing exemptions for campers. Strict scrutiny still applies under RLUIPA, and governments are stuck with it, resulting in a possible windfall of exceptions for the religious.

How the Biden Administration Has Made Offshore Wind a Priority

December 22, 2021
Climate Change, Energy Law

Max Meyer, MJLST Staffer

Since coming into office in January of 2021, the Biden Administration has made fighting climate change and reducing domestic greenhouse gas (GHG) emissions a priority. In particular, the Biden Administration set a goal of doubling the nation’s offshore wind capacity in Executive Order 14008. Reaching this goal would result in 30 Gigawatts (GW) of offshore wind capacity. Developing offshore wind energy will help states reach their clean and renewable energy goals as many sates on the coast do not have large wind energy resources on land. Since the issuance of Executive Order 14008, the Department of the Interior (DOI) has taken several steps towards reaching that goal.

Statutory Authority

Under the Outer Continental Shelf Lands Act (OCSLA) (codified at 43 U.S.C. ch. 29), passed in 1953, the Secretary of the Interior is charged with the administration of mineral exploration and development of the Outer Continental Shelf (OCS). The OCS is defined as “all submerged lands lying seaward of state coastal waters (3 miles offshore) which are under U.S. jurisdiction.”

In the Energy Policy Act of 2005 (EPAct), Congress created the OCS Renewable Energy Program to be administered by the DOI. Under this authority, the DOI in 2009 promulgated regulations for leases, easements, and rights-of-way for renewable energy development in the OCS. The Bureau of Ocean Energy Management (BOEM), under the DOI, is the agency tasked with overseeing the renewable energy development program.

Regulatory Authority

The BOEM renewable energy development program is broken into four steps: (1) planning, (2) leasing, (3), site assessment, and (4) construction and operations. During the first step, BOEM identifies Wind Energy Areas (WEAs) which are “locations that appear most suitable for wind energy development.” After WEAs have been identified, BOEM issues a public notice to gauge the interest in leasing land in the WEA. Depending on the interest received from BOEM, leasing is done through either a competitive or noncompetitive leasing process.

After leasing is completed, the lessee must submit a Site Assessment Plan (SAP) to BOEM. The purpose of the SAP is for the lessee to provide documentation so that BOEM can evaluate whether the project will comply with applicable regulations. The agency can either approve, approve with modification, or disapprove the SAP. Finally, the lessee must produce a Construction and Operations Plan (COP). As the name suggests, this submission includes a “detailed plan for the construction and operation of a wind energy project on the lease.” BOEM reviews the COP, including environmental review, and can either approve, approve with modification, or disapprove the COP.

Recent Offshore Wind Developments

In May 2021, the DOI approved the COP for the Vineyard Wind project located near Martha’s Vineyard and Nantucket. This is the first large-scale, offshore wind project in the United States. The project will have 800 Megawatt (MW) of energy capacity which is enough to power 400,000 homes and businesses. Construction of the project began in November 2021. One of the first steps in the construction process will be placing two transmission cables to transmit electricity from the Vineyard Wind project to the mainland.

Also in November 2021, the DOI approved the COP for the South Fork Wind making it the second large-scale, offshore wind project in the United States. This project off the coasts of New York and Rhode Island will have a capacity of 130 MW which is enough to power approximately 70,000 homes.

In addition to granting final approval of several projects, BOEM has also taken action in the earlier steps of the OCS renewable energy process. For the Carolina Long Bay WEA, located off the coast of the Carolinas, the BOEM began taking public comments on a proposed lease. In October, BOEM received the COP for the Mayflower Wind project. This project would also be located near Martha’s Vineyard and Nantucket and would have an energy capacity of more than 2 GW. If approved, the Mayflower Wind project would be one of the largest offshore wind projects in the United States. BOEM also published a Call for Information and Nominations to gauge commercial interest in wind energy development in the Gulf of Mexico.

BOEM has also taken steps to advance offshore wind in the Pacific Ocean in 2021. In July, BOEM published a Call for Information and Nominations to determine commercial interest in the Morro Bay Call Area East and West Extensions, a portion of the Morro Bay WEA. This WEA is located off the coast of Central California. Finally, BOEM designated the Humboldt WEA off the northern coast of California moving closer to the leasing process in this area.

Despite heavy support from the Biden Administration, offshore wind does face opposition. The commercial fishing industry has emerged as a strong opponent of these projects. The industry is concerned that the turbines will impact fish and hinder access to fishing grounds. The Biden Administration could face legal challenges to offshore wind development, particularly under the National Environmental Policy Act (NEPA), from the fishing industry. One such challenge in Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021) has proven unsuccessful for the fishing industry.

While the DOI and BOEM have taken many actions to further develop offshore wind in the United States, much more will have to be done to reach the Biden Administration’s goal of 30 MW of offshore wind capacity by 2030. Nonetheless, offshore wind is an important resource for coastal states looking to decarbonize their energy generation and for reaching the Biden Administration’s decarbonization goals.

Reconsidering Roe: Has the Line of Fetal Viability Moved?

December 18, 2021
Constitutional Law, Family Law, Health, Privacy, Reproductive Health

Claire Colby, MJLST Staffer

After the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health on December 1, legal commentatorsbegan to speculate the case could be a vehicle for overturning Roe v. Wade. The Mississippi statute at issue in Dobbs bans nearly all abortions after 15 weeks. In questioning Mississippi Solicitor General Scott Stewart, Justice Sonia Sotomayor asked about the “advancements in medicine” that have changed the lines of viability since the Court last considered a major challenge to Roe with Planned Parenthood v. Casey in 1992. “What has changed in science to show that the viability line is not a real line…?” she asked.

Roe v. Wade was a 1973 landmark decision in which the Supreme Court adopted a trimester framework for abortion. During the first trimester, the Court held that “the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman’s attending physician.” The court held that states could adopt regulations “reasonably related to maternal health” for abortions after the first trimester, and held that in the third trimester, upon viability, states may “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgement for the preservation of the life or health of the mother.” In 1992, the Court rejected this “rigid trimester” framework in Planned Parenthood v. Casey. In Casey, the Court turned to a viability framework and found that pre-viability, states may not prohibit abortion or impose “a substantial obstacle to the woman’s effective right to elect the procedure.” The Court adopted an “undue burden” standard to determine whether state regulations of pre-viability abortion are unconstitutional.

In Casey, the court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” So when do medical professionals consider a fetus viable? The threshold has moved to earlier in the gestation period since the 1970s, but experts disagree on where to draw the line. According to a journal articlepublished in 2018 in Women’s Health Issues, in 1971, fetal age of approximately 28 weeks was “widely used as the criterion of viability.” The article said that until recently, 24 weeks of gestation was the “widely accepted cutoff for viability in the highest acuity neonatal intensive care units.” According to the article, babies born as early as 22 weeks of gestation had an “overall survival rate of 23%” with “the most aggressive medical management available.” The article rebuked the idea of tying abortion restrictions to viability at all: “Tying abortion provisions to the word viability today is as misguided as it was to tie it to a specific trimester in 1973,” the article stated. “There was no true definition of viability then, and as long as medicine strives to treat every patient uniquely, there will never be one.”

A 2017 practice alert published in the official journal of the American College of Obstetricians and Gynecologists defined “periviable” births —births occurring “near the limit of viability” —as births occurring between 20 and 26 weeks gestation.

According to a 2020 New York Times article, determinations on the gestational age at which a baby is likely to survive outside of the womb are “in a complex moment of transition.” Though technology has improved, “even top academic institutions disagree about the right approach to treating 22- and 23-week babies.” The article reported that the University of California, San Francisco “a top-tier, high resource hospital,” is “transparent about its policy of offering only comfort care for babies that are born up to the first day of the 23rd week, down to the hour.”

In June 2020, a baby born at the Children’s Hospital and Clinics of Minnesota set the world record for the world’s most premature baby to survive, the Washington Post reported. He was born at 21 weeks and two days gestation.

Several medical developments help to explain this earlier period of viability.

According to a 2020 Nature article, “the biggest difference to survival came in the early 1990s with surfactant treatment.” Surfactant is a “slippery substance” that prevents airways from collapsing upon exhalation. According to Kaiser, premature babies with underdeveloped lungs often lack the substance. “When premature lungs are treated with surfactant after birth, the infant’s blood oxygen levels usually improve within minutes.”

A 2018 study published by the Journal of the American Medical Association, administering prenatal steroids to mothers between 22 and 25 weeks gestation prior to delivery led to a “significantly higher” survival rate, but “survival without major morbidities remains low at 22 and 23 weeks.”

The Dobbs ruling is not expected until this summer, when the Court tends to release its major decisions. Even if the Court maintains the viability standard set forth in Casey, recent medical advances may warrant more consideration about where to draw this line.

Build Back Better Act: A Request for Transparency of a Clearly Visible Issue

December 10, 2021
Healthcare, Healthcare Reform, Pharmaceuticals

Sara Pistilli, MJLST Staffer

On November 19, 2021, the House of Representatives voted to pass the “Build Back Better Act” which includes several provisions aimed at ever-rising healthcare prices. In trying to combat this concern, Congress included mandatory reporting provisions for pharmacy benefit managers (PBM) who bill Medicare and Medicaid insurance programs. PBMs will be required to provide reports every six months that include data on copays, dispensed drugs, rebates, and total out of pocket spending for patients. Speaker Nancy Pelosi states these provisions are aimed at “providing transparency regarding drug costs in private health plans” but is transparency helpful or even necessary when the effects PBMs have on healthcare costs are well known?

What is a PBM?

PBMs are third-party administrators that manage prescription drug benefits on behalf of both private and public healthcare payers. They have significant power to manipulate the healthcare market by acting as middlemen between payers (insurance companies), drug manufacturers, and dispensers (pharmacies). Originally, PBMs were meant to lower healthcare costs by streamlining transactions and attempting to create fair payment systems for dispensing pharmacies.Instead, PBMs have secretly contributed to increasing healthcare costs by inflating drug costs while concurrently decreasing pharmacy reimbursement rates leading to huge windfall profits for PBMs at the patients’ expense.

How do PBMs make millions in profits each year?

While some patients pay cash for medications, most are covered by Medicare, Medicaid, or private insurers. PBMs are paid by these insurers to determine how much a healthcare plan pays for a medication and in turn, how much the pharmacy gets reimbursed for the dispensed medication. For example, Bob receives a new prescription from his doctor for drug A. The pharmacy buys a bottle of drug A for $7. When Bob comes to pick up his prescription for drug A, his health insurer’s PBM pays $8 to reimburse the pharmacy, allowing them to gain a profit of $1. Concurrently, the PBM bills the health insurer $18 for the price of drug A, allowing them to make $10 in profit on Bob’s prescription. This practice, called spread pricing, results in PBMs making millions of dollars in profits each year.

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Picture: “The Secret Drug Pricing System Middlemen Use to Rake in Millions

How does PBM spread pricing increase healthcare costs for patients?

PBM spread pricing affects healthcare costs in two distinct ways: increased insurance premiums and decreased access to care. As PBMs continue to inflate the cost of prescription drugs, insurers are billed more and more by their PBMs. These expenses directly fall on the shoulders of the government and the healthcare companies, who represent the public and private payer sector. In turn, to keep up with increased billing, public and private payers turn to their beneficiaries to help them pay the PBMs via increased healthcare plan premiums, decreased coverage, and larger copays. Concurrently, as the PBMs reimburse pharmacies less and less for medication dispensing, pharmacies, especially independent ones, try to operate on thinner profit margins. Over time, the low reimbursement rates culminate in decreased clinical services or, in the worst case, pharmacies closing permanently.

What does the Build Back Better Act do to help?

Egregious billing practices by PBMs have been in the spotlight for several years now. In 2018, Ohio’s Department of Medicaid released a report showing that PBMs charged the state of Ohio $224 million in hidden spread pricing. The audit results led to Ohio terminating all PBM contracts with the Department of Medicaid and converting to a single-PBM system where spread pricing could be monitored better. Another report, this time in Utah, showed that PBM’s received $1.5 million from spread pricing in 2018. Similarly in 2019, a Kentucky report found that PBMs retained $123 million in spread pricing in that state. Several states have enacted laws targeting PBM spread pricing as the federal government continues to skirt around the issue. For example, Louisiana prohibits all PBMs from using spread pricing unless a PBM provides written notice of the practice to the health insurer and the policy holder. Louisiana also enacted a law stating that PBMs could not reimburse pharmacies at a lower rate than they do their affiliated pharmacies. This directly targets suspicions that CVS Caremark reimburses CVS pharmacies more to eliminate competition and steer patients towards filling their medications at CVS pharmacies. Like Louisiana, Maine enacted a law stating that PBMs could not participate in spread pricing without proper notice to the state. On October 1st, 2021, North Carolina’s Senate Bill 257 will take effect. This bill requires PBMs to apply for business licenses with the Commissioner of the Department of Insurance, subjecting them to more spread pricing regulations and threats of restitution to pharmacies they reimburse unfairly. While the states’ efforts are not perfect solutions, they are necessary efforts to regulate PBMs more. The federal government’s efforts to increase transparency is unnecessary due to the public recognition of PBM spread pricing. Every state audit that shows gross spread pricing is transparent enough to alert the federal government that PBMs pose a widespread problem to our healthcare system without greater restrictions. PBMs need to be controlled directly through regulations targeted towards preventing and prohibiting spread pricing, rather than asked to report every six months just how much they profit off their deceptive billing practices.

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