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The Commodity Futures Trading Commission (“CFTC”) obtained an important court win and boost to its regulatory authority over Cryptocurrencies this month. A federal district court in Massachusetts recently issued a decision in CFTC v. My Big Coin Pay Inc. which affirmed the CFTC’s position that all virtual currencies are commodities and subject to CFTC jurisdiction. The opinion follows another recent district court opinion in New York, CFTC v. McDonnell, in which a court also interpreted the Commodity Exchange Act (“CEA”) to find that cryptocurrencies constitute a commodity under the CEA. CFTC Chairman Giancarlo in a speech last week in Minneapolis further emphasized the CFTC is continuing to increase civil enforcement actions with 83 having been filed in the last CFTC fiscal year resulting in over $900 million in civil penalties. The current political efforts to dismantle the Dodd Frank Act apparently have done little to slow down the CFTC Division of Enforcement, in particular when it comes to regulating cryptocurrencies.
In January 2018, the CFTC Division of Enforcement brought suit against My Big Coin Pay Inc. (“Big Coin”). The case arose from an alleged fraudulent scheme in which Big Coin sold “fully functioning” virtual currency it claimed was backed by gold and could be used anywhere where Mastercard was accepted. The CFTC alleged that once bought, the coins could not be traded or sold except through a Ponzi scheme run by Big Coin. To hide this fact, the CFTC alleges, the Big Coin operators would, among other things, artificially change the coin “price” on the “exchange” to make it appear as a functioning market. In its Complaint, the CFTC alleged that under the CEA it had authority to regulate cryptocurrencies like Big Coin contending that cryptocurrencies constitute a “commodity”.
In challenging the lawsuit, the defendants claimed that the CFTC lacked jurisdiction to bring the case arguing that Big Coin was not a commodity as it did not underlie a futures contract, and that there was no market manipulation that the CFTC could regulate. The court rejected the defendants’ arguments finding that Big Coin was a commodity under the CEA because cryptocurrencies are goods “in which contracts for future delivery” are dealt. In doing so, the court rejected the contention that each cryptocurrency must be considered separately based on its own merits to determine application of the CEA and instead chose to look at cryptocurrencies as a whole. The court pointed to the CEA’s broad definition of “commodity” and found that courts focus on categories – not specific items – when determining whether the “dealt in” clause of the CEA applies. Whether Big Coin was traded or not was not a determinative factor for the court’s analysis. According to the court, because some cryptocurrencies, such as bitcoin, are used for futures trading, cryptocurrencies as a whole are commodities. Since Big Coin is a cryptocurrency, and cryptocurrencies in general are commodities, the court found this sufficient for Big Coin to be considered a commodity under the CEA. The court analogized this situation to natural gas – noting that it is well settled that just because one particular type of natural gas does not get traded on a futures market does not mean that it is not a commodity, since natural gas as a whole fits within the definition of a commodity. The court held that the same legal reasoning should be applied to cryptocurrencies. It dismissed the argument that whether a particular cryptocurrency is traded as not determinative whether it is a commodity under the CEA.  The court further rejected the defendant’s argument that the CFTC did not have enforcement jurisdiction because there was a lack of “market manipulation” surrounding Big Coin and found the CEA has provisions prohibiting fraud even when there is no market manipulation.
CFTC Chairman Giancarlo has made clear that CFTC enforcement activities will continue at an aggressive pace. The recent district court opinion in CFTC V. My Big Coin, Inc. has further reinforced the CFTC’s firepower under the CEA to regulate cryptocurrencies. In the meantime, other governmental agencies, including the SEC and state attorneys general, are also looking at ways to flex their regulatory authority over cryptocurrencies. The political efforts to dismantle Dodd – Frank are having little effect on enforcement activity when it comes to cryptocurrencies. As more courts weigh in on this nascent fintech industry, it can be expected that the winners in court will be the regulators, as they continue to assert their authority over the new economic landscape.
 Commodity Futures Trading Comm’n v. My Big Coin Pay, Inc. (“My Big Coin”), No. CV 18-10077-RWZ, 2018 WL 4621727 (D. Mass. Sept. 26, 2018).
 Commodity Futures Trading Comm’n v. McDonnell, 287 F. Supp. 3d 213 (E.D.N.Y.).
 J. Christopher Giancarlo, Chairman, Commodity Futures Trading Comm’n, Remarks at the Economic Club of Minnesota: Regulatory Enforcement & Healthy Markets: Perfect Together! (Oct. 2, 2018) (transcript available at https://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo56).
 Complaint for Injunctive and Other Equitable Relief and for Civil Monetary Penalties Under the Commodity Exchange Act and Commission Regulations (“Complaint”), Commodity Futures Trading Comm’n v. My Big Coin Pay, Inc., 2018 WL 4621727 (D. Mass. Jan. 16, 2018) (No. 63).
 My Big Coin at *3.

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New Prime v. Oliveira (US Supreme Ct 01/15/2019) [PDF] held that an interstate truck driver does not have to arbitrate his wage and hour claim – even though he signed an arbitration agreement.
This could have a big effect on lawsuits between Uber and their drivers. It probably turns on whether the drivers are IN interstate commerce.
Emailed click box did not suffice to show assent to employer's arbitration agreement.
We live in a digital age. What must an employer do to obtain digital agreement to its arbitration policy? Here is one case that gives one answer.
The New Jersey Appellate Division reversed the trial court's order compelling arbitration of a claim of religion discrimination. The court applied Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) to find that there had not been an "explicit, affirmative agreement that unmistakably reflects the employee's assent." Skuse v. Pfizer (New Jersey Ct App 01/16/2018) [PDF].
The employer emailed to its workforce what it called a "training module" which described the company's mandatory arbitration policy. There was a link to the full text of the policy. In the module, employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.
The court held that the employee "never expressed in written or electronic form her explicit and unmistakable voluntary agreement to forego the court system and submit her discrimination claims against her former employer and its officials to binding arbitration." She clicked a box to indicate that she acknowledged receipt of the arbitration agreement, but nothing indicated she agreed to it. Compliance with the Leodori case requires that the click box contain the word "agree" or "agreement."
The court rejected the employer's argument that the employee was "deemed" to be bound by the arbitration policy because she continued to work for more than sixty days after receiving the arbitration agreement. "Such a proclamation of 'consent by default' is legally insufficient, however, to satisfy the requirements of explicit and unmistakable employee assent prescribed by Leodori."
Some pundits were surprised that the Court would issue a "pro-worker," "anti-arbitration" decision, failing to understand that the Justices all do their best to be faithful to the words Congress puts into its statutes.
The Federal Arbitration Act (FAA) directs courts to compel arbitration, but §1 says that "nothing" in the Act "shall apply" to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
The Supreme Court held that the trial court – not the arbitrator – must first decide whether FAA §1 excludes Oliveira. This is because the contract's delegation clause (which is merely a specialized type of arbitration agreement) can be enforced only if the FAA applies in the first place.
The Supreme Court also held that FAA §1 excludes Oliveira. The FAA's term "contract of employment" refers to any agreement to perform work. At the time of the FAA's adoption in 1925, the phrase "contract of employment" was not a term of art, and dictionaries tended to treat "employment" more or less as a synonym for "work." Contemporaneous legal authorities provide no evidence that a "contract of employment" necessarily signaled a formal employer-employee relationship.
The US Supreme Court has held – unanimously – that courts must enforce an arbitration delegation clause even if the merits appear to be "wholly groundless." Henry Schein v. Archer & White (US Supreme Ct 01/08/2019) [PDF]. This is Justice Kavanaugh's first Supreme Court opinion. Eight pages.
[This is not an employment law case, yet it will have an impact on employment agreements that contain an arbitration clause.] Archer & White Sales sued Henry Schein alleging antitrust violations and seeking both money damages and injunctive relief. Schein moved to compel arbitration, citing an arbitration clause in the parties' contract. Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part, and the arbitration agreement had an exception for injunctive relief. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator – not the court – should decide whether the arbitration agreement applied. Lower courts held that the argument in favor of arbitration was "wholly groundless," and so the trial court could – and did – decide that the arbitration agreement did not cover this dispute. The US Supreme Court unanimously reversed.
The US Supreme Court held that the "wholly groundless" exception to arbitrability is inconsistent with the Federal Arbitration Act (FAA) and the Court's precedent. Under the FAA, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The parties may agree to have an arbitrator decide not only the merits of a particular dispute, but also "gateway" questions of arbitrability. Therefore, when the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. "[A] court may not 'rule on the potential merits of the underlying' claim that is assigned by contract to an arbitrator, 'even if it appears to the court to be frivolous.'"
Fired for having a firearm in his truck in the employer's parking lot, an employee is reinstated by an arbitrator - with generous help from the 7th Circuit. Part of a series - Employment Law Case of the Week - by Ross Runkel.

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“marijuana” as that term is used in the Compassionate Use Act of 1996?
“marijuana” as that term is used in the Compassionate Use Act of 1996.
Oakland Cannabis Buyers’ Cooperative (2001) 532 U. see People v. 1160-1162. anorexia. 753.App.5 provides: “(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.) The federal law contains no medical necessity exception.4th 409. Mower.4th 748. 28 Cal. 486. subd. Peron (1997) 59 Cal.5 “creates an exception to California laws prohibiting the possession and cultivation of marijuana. AIDS. or any other illness for which marijuana provides relief. 412. glaucoma. Mower (2002) 28 Cal.4th 1147. People v. (a). 471-474. 235. Mower. Bianco. 2.” (Ibid. chronic pain.) The measure added section 11362. 93 Cal.” (§ 11362. People v. 486. supra. 2. (People v.4th at pp. supra. Rigo (1999) 69 Cal. fn.) “These prohibitions no longer apply to a patient or his primary caregiver who possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician.S. supra. People v. People v. migraine. spasticity. Young (2001) 92 Cal. 463. 483. Galambos (2002) 104 Cal.). 1387.” (United States v. Oakland Cannabis Buyers’ Cooperative. 1996. (United States v..App. an initiative statute authorizing the medical use of marijuana.S.5’s reference to “marijuana” includes concentrated cannabis or hashish. 28 Cal.4th 457. supra.App.4th at p. the voters of California adopted Proposition 215.) 2 03-411 . We conclude that it does. at p. arthritis. § 801 et seq.4th at p.App.) Section 11362.App. 532 U.C. 751. Section 11362. People v. People v.S. Lungren v.4th 229.)2 We are asked to determine whether section 11362. fn. 465. 1 All references hereafter to the Health and Safety Code are by section number only.5 to the Health and Safety Code1 and entitled the statute the “Compassionate Use Act of 1996.4th 1383. ANALYSIS On November 5. Bianco (2001) 93 Cal. 2 The possession and distribution of marijuana remain unlawful under the federal Controlled Substances Act (21 U.5. (People ex rel.App. “(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: “(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer.
‘primary caregiver’ means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing. relating to the cultivation of marijuana. “(d) Section 11357. or to a patient’s primary caregiver. or denied any right or privilege. “(c) Notwithstanding any other provision of law. “(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” Although section 11362. mixture. who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. the resin extracted from any part of the plant. “(e) For the purposes of this section. nor to condone the diversion of marijuana for nonmedical purposes. and every compound.. shall not apply to a patient. whether growing or not. relating to the possession of marijuana.5 does not define the term “marijuana.” the statute is part of the California Uniform Controlled Substances Act (§§ 11000-11651. or safety of that person. “Act”).5 uses only the term “marijuana” and contains no direct reference to “concentrated cannabis” or “hashish. manufacture. oil or cake made from the seeds of the plant. or preparation of the plant. the seeds thereof. which contains the following definition of marijuana in section 11018: “ ‘Marijuana’ means all parts of the plant Cannabis sativa L. its seeds or resin. and Section 11358. no physician in this state shall be punished. manufacture. fiber produced from the stalks. any other compound. “(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. mixture.” Section 11362. “(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others. It does not include the mature stalks of the plant. 3 03-411 . derivative. salt. for having recommended marijuana to a patient for medical purposes. derivative. salt. health.
Rigo. The quality.3d 572.3d at pp. 4 03-411 . 621). “[u]nless the context otherwise requires” (§ 11001). 46 Cal. 105 Cal. supra. 1151-1152.” (See People v. obtained from marijuana. Fisher (2002) 96 Cal. 579). supra.5. People v. supra. (5th ed.C. at pp.4th at p. or preparation of the mature stalks (except the resin extracted therefrom). depend upon a number of different factors.3d 900. “Concentrated cannabis” is defined for purposes of the Act.5. People v. Van Alstyne (1975) 46 Cal.App. 810 F.App. 963-964.) We are informed that the THC level of ordinary marijuana varies widely from 5 to 60 percent. we find that subdivision (d) provides the operative terms of the statute.” Federal law has a similar definition of marijuana. see People v.App. 717-719. 909-911. Hamilton (1980) 105 Cal. relating to the cultivation of marijuana. Schultz (S.5. 717-718 [312 So. (21 U. including hashish. 714. 46 Cal. as defined in section 11006. People v. or the sterilized seed of the plant which is incapable of germination. State (1975) 54 Ala. U. People v. which is commonly defined as “[a] form of cannabis that consists largely of resin from the flowering tops and sprouts of cultivated female plants” (Stedman’s Medical Dict. 917. Rigo. (See People v.) “Unless the context otherwise requires” (§ 11001). it may range up to 70 percent. whether crude or purified. 233. State Personnel Board (1980) 111 Cal. 69 3 Accordingly.S. Hamilton.App.3d 113.App. 116. 230. and strength of ordinary marijuana and concentrated cannabis. the definition of marijuana found in section 11018 controls our interpretation of section 11362.2d 961.3d at pp. Haynes v. 105 Cal. 116-117. Van Alstyne. (People v. United States v. relating to the possession of marijuana.S.3d at pp. If a patient or caregiver “possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. cf.4th at p.3d at p. 69 Cal. 1982). supra.Supp. Haynes v. supra. 1976) 527 F. supra. State. and Section 11358. 910. 115-116. Hamilton.D. 93 Cal.App. 916. supra.2d 406].2d at pp. 413. Schultz.) Returning to the language of section 11362.” two statutes do not apply to the patient or caregiver: “Section 11357. § 802(16). supra. U. 751. p. Bianco. purity. we will treat concentrated cannabis and hashish as being equivalent for purposes of our analysis. 312 So. v.” Concentrated cannabis “includes hashish” (Hooks v.Supp.5: “ ‘Concentrated cannabis’ means the separated resin. or cake.4th 1147.App.App. People v. oil. for concentrated cannabis. Kelly (9th Cir. 231-234.3 Tetrahydrocannabinol (“THC”) is marijuana’s most active pharmacological ingredient. in section 11006. v. supra.S.App. Ohio 1992) 810 F.App. fiber.App. Van Alstyne. People v.
“(b) Except as authorized by law. 412.4th at p.5 grams of marijuana other than concentrated cannabis. is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100)). upon the grounds of. other than concentrated cannabis. every person under the age of 18 who possesses not more than 28.5 grams of marijuana. “(d) Except as authorized by law. People ex rel. Trippet (1997) 56 Cal. any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500). every person who possesses not more than 28. People v. every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500).App.4th 1532. every person who possesses more than 28. or by both such fine and imprisonment.) Section 11357 states: “(a) Except as authorized by law. or within.5 grams of marijuana. upon the grounds of. or within. . any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: “(1) A fine of not more than two hundred fifty dollars ($250). or by both such fine and imprisonment. upon a finding that a first offense has been committed.App. or shall be punished by imprisonment in the state prison. or by imprisonment in the county jail for a period of not more than 10 days.Cal. supra. “(c) Except as authorized by law. 1550. Lungren v. other than concentrated cannabis.4th at pp. 5 03-411 . every person 18 years of age or over who possesses not more than 28. . shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500).App. Peron. other than concentrated cannabis. 59 Cal. 1387- 1394. . or both.5 grams of marijuana. “(e) Except as authorized by law.
People v. Jones (2000) 83 Cal. cultivates. ranch. or both.) 6 03-411 .) Second. section 11357 uses the phrase “other than concentrated cannabis” when concentrated cannabis is intended to be distinguished from ordinary marijuana. [Citation. “(2) A fine of not more than five hundred dollars ($500). 1332. 685. Holmes v. 1166.4th at p.App.5.4th 681.” We believe that concentrated cannabis comes within the provisions of section 11362.)4 Of course. Trippet. obtained from marijuana” (§ 11006. supra. Lungren v. . 59 Cal. Rizo (2000) 22 Cal. 891. see also Traverso v. 56 Cal.3d 1326. The framers of Proposition 215 did not employ similar exclusionary language for concentrated cannabis when they proposed the Compassionate Use Act of 1996. 1392.App. or commitment to a juvenile hall. Concentrated cannabis is “the separated resin . . People ex rel. Inc. People ex rel. harvests.4th 882. except as otherwise provided by law.4th 1152. camp. supra.]” (People v. First. we find neither intent nor need to construe the term “marijuana” any differently from the definition contained in section 11018. 1550. the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted. Edwards Theatres Circuit.App.” (Marsh v. Peron. (1976) 64 Cal. . [Citations. Dept. “Both the Legislature and the electorate by the initiative process are deemed to be aware of laws in effect at the time they enact new laws and are conclusively presumed to have enacted the new laws in light of existing laws having direct bearing upon them. “Where a statute on a particular subject omits a particular provision. we apply the same principles that govern statutory construction.]” (Williams v. shall be punished by imprisonment in the state prison.App.3d 881. the statutory definition of marijuana for purposes of the Act as set forth in section 11018 plainly includes concentrated cannabis.5) and thus constitutes “the resin extracted from any part of the plant” (§ 11018).” Section 11358 provides: “Every person who plants. there would be no need in section 11357 to employ the phrase “other than concentrated 4 “In interpreting a voter initiative . or secure juvenile home for a period of not more than 10 days. 890. dries.5 for several reasons. County of San Joaquin (1990) 225 Cal.4th at p. or processes any marijuana or any part thereof. forestry camp.App. if concentrated cannabis were not “marijuana” in the first instance. . In the context of section 11362. of Transportation (1993) 6 Cal. upon a finding that a second or subsequent offense has been committed.
]” (Dix v. People ex rel. “[W]e consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part” (Curle v. 1545-1549. 69 Cal.App.4th at pp. supra. 104 Cal. 471-474. quality. We conclude that concentrated cannabis or hashish is included within the meaning of “marijuana” as that term is used in the Compassionate Use Act of 1996. as previously mentioned. e.4th at pp. Galambos. Most significantly.4th 973. may have similar levels of THC supports our interpretation that the terms of section 11362. it is manifest that one may possess concentrated cannabis without violating the terms of section 11357 as long as the requirements of section 11362. 1386. 1165-1168. 246.4th at pp..) 7 03-411 .4th at pp. supra. 1545-1546.5 Finally. or quantity of marijuana to be used for medical purposes as long as the use is reasonably related to the patient’s current medical needs and was recommended or approved by a physician.4th 266. Peron. Jenkins (1995) 10 Cal. Rigo.) Proposition 215 was approved by the voters without specificity as to the strength.4th 1057. 56 Cal. People v. (See People v. Peron.) If anything.” Hence.” “Where reasonably possible. (See. we avoid statutory constructions that render particular provisions superfluous or unnecessary. Wilcox v. supra. Hull (1991) 1 Cal. Mower.App. the provisions of section 11357 are expressly rendered inapplicable under the conditions specified in section 11362.3d 442. 459. People v. 56 Cal.App.cannabis. 1161-1162.4th at pp. Trippet.) The contrary construction with respect to section 11357 would mean that a person could not possess concentrated cannabis for medical purposes under section 11357 but could process it for such purposes pursuant to section 11358.5. 1400. and the first subdivision of section 11357 sets forth the penalty for possession of “concentrated cannabis. 59 Cal. supra. 415.4th at pp. accord. Superior Court (2001) 24 Cal. Lungren v. 1063) “ ‘ “in order to achieve harmony among the parts” ’ ” (People v.App. People v.App. supra. ***** 5 We view the phrase “relating to the possession of marijuana” contained in subdivision (d) of section 11362. 1394. Lungren v.4th 234.App. 1394.g.4th at p. [Citations.5 are met. Superior Court (1991) 53 Cal.5 apply to concentrated cannabis. People ex rel. 59 Cal.5 as an abbreviated description of section 11357’s provisions rather than as a limitation upon such provisions in a manner intended to exclude the possession of concentrated cannabis. Trippet. 413. supra. the fact that ordinary marijuana and concentrated cannabis. (See People v. 28 Cal. including hashish. 272) “and avoid an interpretation that would lead to absurd consequences” (People v. Birtwhistle (1999) 21 Cal. we have carefully reviewed the ballot materials accompanying Proposition 215 and have found nothing therein to indicate that the voters intended for concentrated cannabis to be treated differently from ordinary marijuana when used for medical purposes. 978).


This Article explores how the path of the common law shaped some of the Supreme Court’s most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, and how this posed deep problems for the constitutional rights that depended on them. The Article selects three cases—Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents—to demonstrate how concerns about those remedies shaped constitutional rights. These cases have been debated many times over, but for all the debate, there has been scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary’s role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing the relation- ship between the Constitution and common law remedies.
This Article explores, through the lens of speech I refer to as “autobiographical lies,” the extent to which the First Amendment protects one’s ability to craft one’s own public persona. Thus far, courts and commentators have generally neglected to address the degree to which this particular autonomy-based value—the interest in individual self-definition—carries distinct weight under the First Amendment. This is unsurprising, since it is rare that an issue arises that directly implicates this interest in a manner that isolates it from more traditional free speech principles.
Recently, however, litigation has arisen surrounding the constitutionality of the Stolen Valor Act, a federal statute that criminalizes lying about having received military honors. The Act’s regulation of a particular subset of speech—knowing, factual falsehoods about oneself—uniquely crystallizes the question of whether, and to what extent, the self-definition interest merits protection under the First Amendment. By and large, there is no strong reason rooted in traditional First Amendment interests to protect these sorts of autobiographical lies. But if the self- definition interest has any meaningful constitutional force, then circumstances would surely exist under which such speech merits First Amendment protection, since freely choosing what to tell others about oneself—whether truth, half-truth, or falsehood—is a vital means of controlling how one defines oneself to the world.
After reviewing the current dispute surrounding the Stolen Valor Act, which has divided lower courts and at the time of this writing is pending before the Supreme Court, this Article outlines the doctrinal origins and basic characteristics of the self-definition interest. I argue that if one takes seriously the Supreme Court’s repeated assertions that the First Amendment is designed, at least in part, to preserve individual autonomy, then courts should accord at least some distinct constitutional weight to this interest. I then explore some of the practical implications of recognizing a constitutionally protected self-definition interest and apply these observations to the Stolen Valor Act, concluding that the Act, as currently constituted, should be deemed unconstitutional. Finally, I observe that a constitutionally protected right to define one’s public persona via one’s speech fits comfortably within the Constitution’s general protection of interests deemed essential to individual personhood.
In the last decade, a number of scholars have called the American criminal justice system a new form of Jim Crow. These writers have effectively drawn attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals. This Article argues that despite these important contributions, the Jim Crow analogy leads to a distorted view of mass incarceration. The analogy presents an incomplete account of mass incarceration’s historical origins, fails to consider black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the Old Jim Crow’s particular harms.
In the Seventeenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Paul J. De Muniz, Chief Justice of the Oregon Supreme Court, discusses the challenges confronting state judiciaries in the face of economic crises and corresponding state budget cuts. Chief Justice De Muniz urges state court leaders to adopt the concept of reengineering to overhaul antiquated court management processes in favor of more efficient alternatives. Drawing from the Oregon state judiciary’s own efforts, Chief Justice De Muniz identifies court governance structures, case administration, essential court functions, and leadership as key targets in any successful reengineering endeavor.
The Racketeer Influenced and Corrupt Organizations Act (RICO) is an innovative criminal and civil statute drafted by Congress to combat whole criminal organizations. Section 1962(c) of RICO, its most used provision, prohibits an individual from conducting or participating in the conduct of an enterprise’s affairs through a pattern of racketeering activity. In Reves v. Ernst & Young, the Supreme Court sought to resolve a circuit split over the interpretation of this section and ultimately held that the “operation or management” test would determine liability under § 1962(c). However, the Reves Court did not fully define the operation or management test, nor have the lower courts applied it in a consistent manner. Recently, Justice Stevens, dissenting in Boyle v. United States, alleged that the Court’s interpretation of RICO’s associated-in-fact enterprise element conflicted with Reves and the operation or management test. Justice Alito, writing for the majority, denied such a conflict. This Note continues that conversation by examining whether a conflict exists between the operation or management test and the Court’s interpretation of RICO’s associated-in-fact enterprise element. Finding that a strict conception of the operation or management test does conflict with the Court’s recent interpretation of associated-in-fact enterprise in Boyle, this Note proposes a less restrictive interpretation of § 1962(c), and thus a more flexible application of the Reves operation or management test, that more consistently interacts with a broad understanding of enterprise as defined in Boyle. Simply put, this Note argues that courts can hardly require that a RICO defendant play a role in the leadership of an enterprise itself, while readily applying RICO to enterprises that have no real leadership structure.
Anti-Gay Bullying in Schools—Are Anti-Bullying Statutes the Solution?
In the last decade, anti-bullying legislation has rapidly proliferated, motivated in part by a string of highly publicized suicides by bullying victims—many of whom were targeted because of their sexual orientation. Despite heightened attention to the issue of anti-gay bullying, few statutes extend explicit protection to sexual minorities. In this Note, I argue that statutory proscriptions against bullying speech targeted at LGBT youth are necessary to ensure full protection for this particularly vulnerable group. Such limitations are constitutional under Tinker v. Des Moines Independent Community School District, the Supreme Court’s seminal case on student speech. Just as importantly, explicit prohibitions on anti-gay speech place state authority behind a clear message that LGBT students are just as important as their heterosexual peers. This message helps construct a reality that leaves no room for anti-gay bullying—where full equality for sexual minorities is the norm, rather than the exception.
What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress’s most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes in the principles—customary international law and conflict of laws—that once supported it. As the presumption’s normative justifications have diminished, a new justification has grown in importance. Today, the presumption is often justified as a stand-in for how Congress typically legislates. This Note argues that this change makes the presumption less defensible but even harder to overcome in individual cases.


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The Complainants are Sanofi-Aventis, Paris, France, Aventis Pharmaceuticals Holdings Inc., Greenville, the United States of America and Aventis Pharma S.A, Antony, France (collectively, the “Complainant”) represented by Selarl Marchais De Cand� of Paris, France.
The disputed domain name <globalrx-nasacort-pills.com> (the “Domain Name”) is registered with Spot Domain LLC doing business as Domainsite.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December�29,�2006. On December�29,�2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On January�26,�2007, after multiple reminders from the Center, the Registrar transmitted by email to the Center its verification response confirming that the Respondent was listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
The Center appointed William P. Knight as the sole panelist in this matter on March�2,�2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Sometime after panel appointment, the Registrar indicated that a privacy arrangement was in place and that it had mistakenly failed to provide to the Center the name of the beneficial registrant, whom it would be contacting in relation to the proceedings. No further communications have been received from the Registrar or the beneficial registrant. In the circumstances, it is clear that these proceedings have been properly initiated under the Rules and the claimed beneficial registrant may be deemed included in the Respondent. See, for example, TDS Telecommunications Corporation v. Registrant  Nevis Domains and Registrant  Moniker Privacy Services, WIPO Case No. D2006-1620 and WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, WIPO Case No. D2006-0975. The Panel adds here that, where privacy services are increasingly emerging as the norm, for the Policy to operate effectively, providers and panels (if not rights owners) need to be able to rely on the accuracy of information provided by registrars particularly in response to direct queries. Where such requested information is not forthcoming, or is inaccurate or received only very late in the process, these are matters between the listed and confirmed registrant of record and any underlying or beneficial owner.
The current registration of the Domain Name dates from April�23,�2006.
(e) UK trademark No. 1504818, registered on December 27, 1991.
<nasacort.us> registered on April 19, 2002.
The Respondent appears to be a service provider upon whose business an earlier Panel has commented in Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696.
The Domain Name is being used in a manner which, by means of several links using the word “nasacort” as well as other, related words such as “Online Drug”, “Prescription Medication”, “Prescription Drug”, and “Online Pharmacy” the user is taken through a maze of other links, some with further references to “nasacort”, which either lead to providers of online medicines, some which bypass the need for prescriptions, but none of which lead to the Complainant.
In respect of (i) and (ii), in addition to the undisputed international reputation of the Complainant in the trademark NASACORT, the Complainant points out that the “pills” suffix is descriptive, in English, for medications – even though, paradoxically, the Nasacort medication produced by the Complainant is a nasal spray – and likewise the prefix, so far as it includes the word “global” which simply suggests worldwide or international and so far as it includes “rx” is no more than an abbreviation commonly used to indicate pharmaceutical prescriptions.
The Complainant refers the Panel to earlier decisions Oki Data Americas Inc v. ASD Inc. WIPO Case No D2001-0903 and Harrods Ltd v. AB Kohler & Co, WIPO Case No. D2001-0544 and Sanofi-aventis and Aventis Pharma SA v. Advent Innovations, WIPO Case No. D2005-0377 which are among many to find that the mere addition to a well-known trademark of a descriptive or generic word (“parts” to “Oki”, “watch” to “Harrods” and “services” to “Aventis”, dropping the additional ‘s’) does nothing to distinguish a domain name. The Complainant also refers to the decision in Aventis Pharmaceuticals Inc., Aventis Pharma SA v. Goldie Fishero, WIPO Case No. D2004-0094 which concerned the domain name <cheap-nasacort-on-line> (which in turn refers to Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493) which gives examples of preceding as well as succeeding words also failing to distinguish a domain name. The Complainant states that the expression “globalrx” appears to be widely used to refer to international offerings of pharmaceutical products.
The only apparent purpose and use of the Domain Name is to point to a website which, in the main, directs users to suppliers of drugs with and without prescriptions, including, it appears, Nasacort itself, but also supposed copies of the Nasacort product of uncertain provenance, formulation and efficacy. The Respondent, being of course a proxy registration service provider of some kind, obviously has no legitimate of any kind in the Domain Name other than as such.
In support of (iii), the Complainant asserts that registration and use in bad faith is evidenced by the fact of the Respondent must have registered the Domain Name in circumstances where it knew full well of the Complainant’s legal rights to the trademark NASACORT and intended to exploit that by selling click-through to on-line suppliers of pharmaceutical products, including some so-called ‘generic’ products offered as alternatives to Nasacort, as well as other products and services. The Complainant relies upon an email written by it to the Respondent dated August�11,�2006, at its contact address, drawing to the Respondent’s attention the Complainant’s concern and seeking resolution. The Complainant did not receive the courtesy of any reply at all, let alone an explanation.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if the Respondent had chosen to take advantage of the opportunities afforded to it, expressly, by paragraph 4(c) of the Policy.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent. See Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v.Unimetal Sanayi ve Tic. A.S., WIPO Case No. D2000-0011 among numerous other decisions.
It is clear that the Complainant is the owner of the NASACORT trademark, through registration of the trademarks and use throughout the world.
For the reasons proposed by the Complainant and set out above, the Panel agrees that the mere addition of a generic word before and/or after a complainant’s trademark will not be sufficient to distinguish the disputed domain name if the dominant impression given by the disputed domain name remains the complainant’s trademark, as in this case.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark NASACORT and, accordingly, Policy paragraph 4(a)(i) is satisfied in this case.
The Respondent was entitled, and had every opportunity, to demonstrate that it had some right or legitimate interest with respect to the Domain Name. The Respondent has given no such explanation.
The only use that has been made of the Domain Name has been to attract Internet users who might be interested in the supply of the Complainant’s product away from the Complainant on a pay-per-click basis, in some cases to suppliers of drugs of uncertain provenance, formulation and efficacy.
Paragraph 4(a)(iii) of the Policy directs that the Complainant must establish that the Domain Name has been registered and used in bad faith. This issue has been dealt with in earlier decisions under the Policy, notably Telstra Corporation Ltd v. Nuclear Marshmallows WIPO Case No. D2000-0003; Telstra Corporation Limited v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423 and Red Nacional De Los Ferrocarriles Espanoles v.Ox90, WIPO Case No. D2001-0981.
(c) if the Respondent had any intention to make some legitimate use of the Domain Name, it has had ample opportunity either to do so or otherwise to explain its conduct, but has done neither.
Based on the foregoing this Panel concludes that the Respondent registered the Domain Name with bad faith, in the sense required by the Policy.
(d) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the Domain Name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.
The Panel therefore concludes that the Respondent has registered and is using the Domain Name in bad faith.
Accordingly, the Panel orders in accordance with paragraphs 4(i) of the Policy and 15 of the Rules that the Domain Name <globalrx-nasacort-pills.com> be transferred to the Complainant.

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text:
New York : Vanguard Press, -c1985.
4 volumes ; 24 cm.
Poliakov, L. (19651985). The history of anti-Semitism.. New York: Vanguard Press.
Poliakov, Léon, 1910-1997. 19651985. The History of Anti-Semitism.. New York: Vanguard Press.
Poliakov, Léon, 1910-1997, The History of Anti-Semitism.. New York: Vanguard Press, 19651985.
Poliakov, Léon. The History of Anti-Semitism.. New York: Vanguard Press, 19651985. Print.
v. 1. From the time of Christ to the court Jews.
v. 2. From Mohammed to the Marranos.
v. 3. From Voltaire to Wagner.
v. 4. Suicidal Europe, 1870-1933.
Translation of Histoire de l'antisémitisme.
Vol. 2 translated by N. Gerardi; v. 3 translated by Miriam Kochan; v. 4 translated by George Klim.
|a Poliakov, Léon, |d 1910-1997. |0 http://id.loc.gov/authorities/names/n50020456.
|a Histoire de l'antisémitisme. |l English |0 http://id.loc.gov/authorities/names/n83179613.
|a The history of anti-Semitism. / |c Translated from the French by Richard Howard.
|a New York : |b Vanguard Press, |c -c1985.
|a 4 volumes ; |c 24 cm.
|a Translation of Histoire de l'antisémitisme.
|a Vol. 2 translated by N. Gerardi; v. 3 translated by Miriam Kochan; v. 4 translated by George Klim.
|a v. 1. From the time of Christ to the court Jews.--v. 2. From Mohammed to the Marranos.--v. 3. From Voltaire to Wagner.--v. 4. Suicidal Europe, 1870-1933.
|a Antisemitism |x History. |0 http://id.loc.gov/authorities/subjects/sh2007101173.

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