Rules Of Statutory Interpretation Research Articles

Overlapping and Sequential Copyright, Patent, and Trademark Protections: A Case for Overruling the Per Se Bar

Should extant or expired copyright or patent designs (such as those featuring Mickey Mouse, Wonder Woman, and the Coca-Cola bottle) be eligible for trademark or trade dress protection? Or, should they enter the public domain upon expiration of the copyright or patent without regard for their source-indicating capacity? The law is in conflict on this question. Early Supreme Court precedent imposed a per se bar precluding trademark or trade dress protection for designs of extant or expired copyrights or patents. Yet, later Supreme Court and regional appellate court cases deviated from that precedent, creating conflicting jurisprudence and promoting marketplace conditions that undermine trademark law’s purpose and policy ofmaintaining a fair and ordered marketplace.
 Disallowing trademark protection for nonfunctional source-indicating designs because of their current or past copyright or patent status sets up the possibility for consumer confusion, deception, and fraud in the marketplace. This is precisely the type of marketplace disorder that trademark law is designed to prevent. This Article offers normative justifications for the eligibility of copyright or patent protected designs to receive overlapping and sequential trademark protection, as well as a path for resolving the conflicting jurisprudence.
 This Article addresses the conflict in overlapping intellectual property protections at the patent/trademark interface and the copyright/trademark interface. At the patent/trademark interface, the per se bar is unnecessary because trademark law’s functionality doctrine properly resolves the concerns with overlapping IP rights, asfunctional designs are categorically ineligible for trademark protection. Unfortunately, the Supreme Court and regional appellate courts use different tests for assessing functionality, yielding inconsistent and conflicting results that are impractical in the new economy. This Article proposes a single functionality test that is more comprehensive than the plethora of existing and conflicting tests currently in use. The proposed test assesses a design’s use in relation to the product and the design’s function in a manner that is less conceptual and more specific to a particular application of the design. At the copyright/trademark interface, the per se bar is also unnecessary for two reasons. First, trademark law’s functionality doctrine resolves the conflict for useful articles. A modified version of the functionality test applied to useful articles precludes trademark-ineligible designs from protection. Second, for character designs and music, it is their specific use that would determine their eligibility for trademark protection. Therefore, the proposed use test would examine that specific use to determine whether the design is being used as a source indicator or as an unlawful attempt to extend copyright protection. The proposedtests at the patent/trademark and the copyright/trademark interfaces provide processes for identifying both functional designs and uses of character designs and music that would be ineligible for trademark protection, further demonstrating that a per se bar is unnecessary.
 Courts have attempted to ground their reasoning for the per se bar in the copyright and patent law policy that grants the public a right to exploit the subject matter of expired copyrights and patents. This Article posits that trademark law’s public policy for maintaining a fair and ordered marketplace preempts the per se bar’s public policy of a right to copy, rendering the bar inapplicable in the trademark context. There is a presumption running through current jurisprudence that trademark rights must yield to the public’s right to copy, but copyright and patent law are already deemed acceptable incursions on that right. The rules of statutory interpretation, as well as the natural law origin of the right to copy, debunk the presumption that trademark protection must be denied purely because of copyright or patent status. Since there is simply no basis in law or policy for a per se bar of trademark protection, the time has come for Congress or the Court to end the per se bar and resolve the conflict in jurisprudence.

Taxing the Sale of Software: Revisiting the Definition of ‘Royalty’ Under the DTAAs

The characterization of payments, for taxation, in the hands of, non-resident payees arising out of a cross-border sale of software, has always remained controversial in India. While the Revenue, contends that such payments are ‘Royalties’ for Licensing of, Copyrights, the taxpayers argue that these payments are merely, Proceeds on the Sales of Copyrighted Articles. There have been, several conflicting decisions by different Income Tax Tribunals, and High Courts that have legitimized each of these characterizations., While the Courts and Tribunals led by the Delhi, HC held for the taxpayers by characterizing these payments as, Proceeds of Sales, the Courts and Tribunals led by the, Karnataka HC held for the Revenue. Therefore, albeit in, different jurisdictions within the country, a dichotomy persisted. In an attempt to resolve this dichotomy, the Government, of India introduced a clarificatory amendment to the Indian, Income Tax Act, 1961 in 2012. However, the conflict persisted, as the amendment did not clarify and could not have, clarified the status of these payments under the Double, Taxation Avoidance Agreements (DTAAs) As a result, the, dichotomy, now limited to Non-Resident Payees whose resident, jurisdiction has a DTAA with India, still prevailed. These, jurisdictions include several Commonwealth nations such as the, UK, Australia, Malaysia, Canada, etc. and Ireland, which is, the most preferred jurisdiction to operate from for almost all the, tech corporations in the world. Therefore, this dichotomy still, affects the tax liability of the residents of these jurisdictions and, their ease of doing business with India. In this article, the author will highlight that the dichotomy,, though existent, has no basis in law. The author will, highlight that the characterization of these payments as has been, contended by the Revenue is the only legitimate characterization., This characterization not only draws support from the, established Rules of Statutory Interpretation but also promotes, the ease of doing business in India. Agreement, Consideration, Copyright, Double-Tax, Income Tax, Licensing, Literary, Payment, Royalty, Resident

Rehaif v. United States: Once Again, a Gun Case Makes Surprising Law

Gun cases often make surprising law, and the U.S. Supreme Court’s June 2019 decision in Rehaif v. United States is no exception. Rehaif involved a defendant convicted of violating 18 U.S.C. § 922(g), which makes it a crime for certain persons to possess a firearm or ammunition in or affecting interstate commerce. For decades, there was judicial consensus that the statute did not require proof that defendants were aware of the status that caused them to fall within the statute’s purview. Nevertheless, in Rehaif, a divided Supreme Court held that the government must prove a defendant’s knowledge of such status to prevail in a Section 922(g) prosecution. Given the number of Section 922(g) cases brought each year, Rehaif is a highly consequential decision, even if limited to its immediate context. But it is also surprising for a variety of reasons. Not only did the Supreme Court hear the case in the absence of a circuit split, but the alignment of the Justices was also unusual. Most importantly, in a first for the Court, the opinion relied on the Model Penal Code’s default rules of statutory interpretation to hold that a statutorily prescribed mens rea term applied to all material elements of the offense. Whether Rehaif signals a stealth mens rea revolution of broader scope remains to be seen, but in any event the opinion is a fascinating study in statutory interpretation that seems destined for law school textbooks.

Interpretación de la Ley en los Códigos Civiles: Literalismo Sudamericano y Blackstone

William Blackstone, the renowned English legal scholar of the eighteenth century, directly influenced the drafting of the rules of statutory interpretation of the Louisiana Civil Code, and indirectly the rules on the same subject of the Chilean Civil Code (1855). The Chilean rules were later borrowed in South America by the drafters of the Civil Codes of Ecuador (1858), Venezuela (1862), Uruguay (1868) and Colombia (1887). I argue that Blackstone’s influence was significant and marked differences with the civil tradition which, in turn, determined certain similitudes with the literalism of English law of the nineteenth century. However, South-American literalism in statutory interpretation was not a copy but a creative response to local political realities. From the research into this topic South-American drafters of legislation emerge as both creative and critical users of legal ideas from an amazingly wide range of sources, unexpectedly including Anglo-American ones. What is more, the South-American political context of mid-nineteenth century suggests that in the subject of statutory interpretation comparative law arguments, up to a certain extent, were only rhetorically used.

The Methodology Used to Interpret Customary Land Tenure

Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

Deriving Rules of Statutory Interpretation from the Constitution

In an article appearing earlier in this volume, Professor Manning argued that the original understanding of the constitutional structure fits more tightly with the now settled faithful agent theory than with the background English tradition of equitable interpretation. Professor Eskridge replied, also in this volume, that the founding debates and early state and federal cases support various atextual practices that derive from the English tradition. Here, Professor Manning contends that much of their disagreement is attributable to methodological differences. First, focusing on the classification of various interpretive norms, he argues that many early practices cited by Professor Eskridge are consistent with the faithful agent theory and textualism, properly understood. Second, Professor Manning questions the probativeness of state cases in assessing the original understanding of federal judicial power. Third, he argues that scattered and often oblique remarks in the founding debates should carry little weight. Fourth, examining the way early Americans implemented the federal judicial power, Professor Manning stresses that the Marshall Court established an explicit and lasting commitment to what we now call the faithful agent theory.

Vindicating the right to bodily security of the incapable in research – Part 2

<p>The Mental Capacity Act 2005 generally exhibits a stronger ethos of protecting the incapable in intrusive research than the last but one version of the Bill. However, sections 31(5) and 6 of the Act replicate clauses 31(4) and 31(5) of that version. As I noted in Part 1 of this article, these clauses are difficult to reconcile with the primary principle. Here I examine what effect, if any, they will have both on the process of authorising research projects involving intrusive research upon the incapable adult and on the ultimate use of the incapable adult in such research. This will involve analysis of the Act’s provisions in the light of both ordinary rules of statutory interpretation and the interpretative obligation imposed by section 3 of the Human Rights Act 1998.</p>

Textualism and Transnational Securities Law: A Reappraisal of Justice Scalia's Analysis in Morrison v. National Australia Bank

In 2010 the Supreme Court issued its opinion in Morrison v. National Australia Bank, which almost certainly effectively wiped out forty years of case law that addressed transnational issues under the U.S. securities laws in a powerful opinion by Justice Scalia, establishing a “transactional” test requiring a securities purchase on a U.S. exchange or otherwise within U.S. territory to recover. More recently, in late 2012, Justice Scalia, along with a co-author, published Reading Law: The Interpretation of Legal Texts. Reading Law purports to be an analysis of statutory interpretation, an update of older treatises on statutory interpretation as well as a comprehensive summary of the various canons and other rules of statutory interpretation. Interestingly, with respect to Morrison, Justice Scalia and his co-author have a separate section addressed specifically to the presumption against the extraterritorial application of statutes, the principal concern of Morrison. In addition, Justice Scalia states his views on what he (and others) call “purposivism” which is also critical to the reasoning of Morrison. Other sections of Reading Law also shed new light on Morrison. In short, Reading Law gives greater insight into the Morrison opinion, and its history and critique of the “conduct” and “effects” test that had held sway for over 40 years in transnational litigation involving the securities laws. In particular, the analysis of the presumption against extraterritoriality in Reading Law can be viewed as an attempt to bolster one of the key, but weaker, sections of the Morrison opinion. Thus, a reappraisal of the textual analysis of Morrison in light of Justice Scalia’s later work is enlightening. Further, his recent attack in Reading Law on “purposivism” and his linking it straightforwardly to the presumption against extraterritoriality is significant. Whether Justice Scalia’s use of the concept of statutory “focus” is a species of his own purposivist views is considered. Similarly, his attack on the technique of interpretation (a species of purposivism) that asks what Congress “would have meant” informs his strident attack on Judge Henry Friendly’s jurisprudence in the extraterritorial area. Unspoken is the unarticulated rejection of the possibility of “concurrent” jurisdiction or other alternative weighing of multi-jurisdictional interests in the contemporary international system although Justice Scalia had previously endorsed that, at least partially, in his plurality opinion in Hartford Fire. Finally, this article attempts to give a close reading to the opinion analyzing and critiquing its use of prior case law, including the “in connection with” body of case law under Section 10(b) of the Securities Exchange Act of 1934 (hereinafter “the ’34 Act”), which is a key intellectual pivot point in Morrison.

The Methodology Used to Interpret Customary Land Tenure

Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure.Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010.This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

Jurisdictional Quandaries: A Way Forward

From the founding, the authority of Congress to delineate the jurisdiction of the federal courts occasioned debate. And for good reason. The power to define jurisdiction is the power to determine which categories of cases will or will not be heard by the federal courts. And it turn it is the power to determine which laws will be enforced and which rights protected. It has long been recognized that Congress may regulate jurisdiction, not only by specifying the particular categories of cases that federal courts may hear, but also by regulating the manner and timing in which those cases come before the federal courts. Whether or not Congress intended a particular precondition to suit to operate jurisdictionally is not always clear, however, and the Supreme Court’s method of interpretation has fluctuated wildly. The early Court adopted in effect a presumption in favor of jurisdictional treatment and dismissed nonconforming cases. In a one-hundred-and-eighty-degree shift, the current Court has adopted a presumption against finding a precondition to suit to be jurisdictional. As the Court now has it, a precondition is jurisdictional only where Congress so “clearly states.” This sea-change in approach has led to a sea-change in outcome with the Court finding that it has jurisdiction in nearly every recent case. The Court’s new method for interpreting preconditions to suit has significant practical and theoretical implications. As a practical matter, the single most important question in a lawsuit is whether the court has jurisdiction. For a jurisdictional bar is absolute: It may not be waived, meritorious excuses are irrelevant, and courts must consider the question sua sponte. The theoretical question is just as important, implicating foundational separation of powers issues. The Supreme Court’s current thumb on the scale in favor of federal court jurisdiction results in an expansion of Art. III and intrudes upon Congress’s Art. I power to define jurisdiction. This Article argues for a return to first principles of statutory interpretation. Part I analyzes the Supreme Court’s treatment of preconditions to suit. The approaches taken by the Marshall, Taney, and current Courts are examined in detail. Part II considers the doctrinal and theoretical underpinnings of the Court’s current approach and concludes that the approach is wrong-headed. First, the Court’s use of the claims processing, substantive, and jurisdictional labels are unhelpful and divert the Court from the proper question of congressional intent. Second, the Supreme Court’s occasional application of stare decisis and purpose creates significant tension with the clear statement rule. Finally, the Court’s clear statement rule lacks theoretical justification. Given that such substantive canons alter the ordinary rules of statutory interpretation and impose a clarity tax on Congress, they are ordinarily reserved for weighty constitutional concerns. Yet the only justification proffered for the Court’s current clear statement approach is efficiency. Efficiency is an insufficient ground upon which to expand Article III jurisdiction. Moreover, the constitutional concerns cut in the opposite direction; within constitutional limits, it is for Congress to determine the federal courts’ jurisdiction. The Court’s clear statement approach, however, requires federal courts to load the dice in favor of their own jurisdiction rather than engage in more ordinary statutory interpretation. Part III thus proposes a way forward in interpreting preconditions to suit and identifies key factors in determining whether such preconditions are in fact jurisdictional. Part III also demonstrates that the mode of interpretation matters, applying a proper jurisdictional analysis to recent Supreme Court cases and to the Anti-Injunction Act with surprising results.

The International Criminal Court and "Internationally Recognized Human Rights": Understanding Article 21(3) of the Rome Statute

AbstractArticle 21(3) of the Rome Statute requires that the law applied by the ICC be interpreted and applied in accordance with "internationally recognized human rights." Notwithstanding its paramountcy over other sources of law, Article 21(3) has yet to receive satisfactory consideration and analysis by the Court. In constructing a principled framework for how international human rights should operate within the applicable law of the Court, certain principles serve as important guideposts: rules of statutory interpretation, the complementarity principle, the structure of international human rights law, and principles of international legal personality. Relying on these principles, the Court's jurisprudence and the Statute's travaux préparatoires, it is possible to map out some of the features of Article 21(3). The Article is not merely a rule of interpretation, but is generative of powers and remedies that would otherwise not be available. However, in order to be applied rationally, the scope of "internationally recognized human rights" should be contingent on which state would ordinarily exercise jurisdiction over a prosecution. The institutional relationships between The Court, state parties, and other bodies that interpret and apply human rights norms should also influence how the Court applies these principles, with decisions of international human rights courts being prima face binding in certain circumstances.

The Legislature Strikes Back: The Effect of Ontario’s Bill 152 on the Statutory Duty of Care in the Peoples Decision

In this article, the author critically analyzes the Supreme Court of Canada’s decision in Peoples Department Stores Inc. v. Wise. This decision interpreted s. 122(1) of the Canada Business Corporations Act in a way so as to declare that it was “obvious” that the duty of care placed on directors and officers is owed to a broad range of beneficiaries, including creditors. The author argues that the decision, while defensible, was neither “obvious” nor was it appropriate. The amendments to the Ontario Business Corporations Act may come closer to the intentions of Parliament in passing the Canada Business Corporations Act. Furthermore, the rules of statutory interpretation are employed to demonstrate that the broadened duty of care found by the Supreme Court may actually cause directors and officers to be more self-interested, rather than putting the interests of the corporation ahead of their own. Such a change in approach may lead to statutory absurdity or a violation of the presumption against tautology. Therefore, a narrower duty of care, owed only to the corporation, as enacted by the Ontario legislature, should be recognized.

Lord Bingham: Of Swallows and International Law

This paper forms part of a festschrift on the retirement of Lord Bingham as the Senior Law Lord of the United Kingdom's House of Lords. The focus lies with the contribution made by Lord Bingham to the jurisprudence of international law and to its application in English law. Lucid judgments, economy of style and rigorous assessment of the law have been characteristic of Lord Bingham's contribution as a jurist. He has adopted a restrained approach to the exercise of judicial power and deep respect for parliamentary sovereignty and the rules of statutory interpretation. As a national judge, Lord Bingham has influenced our understanding of the role of international law in domestic law. His judgments on sovereign immunity, waging aggressive war, extraterritorial application of national human rights legislation, derogations from treaty obligations and admission of evidence obtained by torture provide a scholarly body of international legal research that will influence the development of the law in the future. Lord Bingham's leading judgment in the Belmarsh cases in 2005, for which he is arguably best known to the public, shows a commitment to human rights and a willingness to consider the principles of international law to identify the domestic rule. Other decisions, such as Jones and Saudi Arabia, confirm that Lord Bingham has not been a judicial activist. Rather, he has insisted upon credible evidence of any purported rule. Lord Bingham's legacy to international law lies in his breadth of scholarship, methodology for identifying the rule and clarity of judicial thinking.

A Fine Line Between Legal Access And Circumvention

The High Court of Australia's decision handed down on 6 October 2005 was a finely reasoned analysis concerning the fine balance within Australian copyright law and the rules of statutory interpretation. The Court sided with the appellant, Mr Stevens, when it held that his mod chip was not a circumvention device within the meaning of the Copyright Act 1968 (Cth) (the Act) as it did not function to overcome a technological protection measure as defined in s10(1) of the Act. Combined with its rejection of Sony's arguments relating to temporary copies in RAM, it would appear that this decision was a great victory for groups such as the Australian Digital Alliance. Nevertheless, with the signing of the Australia-US Free Trade Agreement (AUS-FTA), this victory is likely to be temporary at best.

Deriving Rules of Statutory Interpretation from the Constitution

In an article appearing earlier in this volume, Professor Manning argued that the original understanding of the constitutional structure fits more tightly with the now settled faithful agent theory than with the background English tradition of equitable interpretation. Professor Eskridge replied, also in this volume, that the founding debates and early state and federal cases support various atextual practices that derive from the English tradition. Here, Professor Manning contends that much of their disagreement is attributable to methodological differences. First, focusing on the classification of various interpretive norms, he argues that many early practices cited by Professor Eskridge are consistent with the faithful agent theory and textualism, properly understood. Second, Professor Manning questions the probativeness of state cases in assessing the original understanding of federal judicial power. Third, he argues that scattered and often oblique remarks in the founding debates should carry little weight. Fourth, examining the way early Americans implemented the federal judicial power, Professor Manning stresses that the Marshall Court established an explicit and lasting commitment to what we now call the faithful agent theory.