Celebrities can sell anything from cars to clothing, and we are constantly fascinated by their influence over our lifestyle choices. This book makes an important contribution to legal scholarship about the laws governing the commercial appropriation of fame. Exploring the right of publicity in the US and the passing off action in the UK and Australia, David Tan demonstrates how an appreciation of the production, circulation and consumption of fame can be incorporated into a pragmatic framework to further the understanding of the laws protecting the commercial value of the celebrity personality. Using contemporary examples such as social media and appropriation art, Tan shows how present challenges for the law may be addressed using this cultural framework. This book will be of interest to intellectual property law academics, judges, practitioners and students in the US and common law jurisdictions, as well as those in the field of cultural studies.

The Commercial Appropriation of Fame : A Cultural Analysis of the Right of Publicity and Passing Off

This paper analyzes whether ethnocentric curricula, defined as courses that focus exclusively on particular racial/ethnic groups, are more prevalent at minority-serving colleges than at mainstream institutions. Using original curricular data for a sample of tribal, Black, Hispanic, and mainstream colleges, the author found that ethnocentric content tends to be more extensive at tribal and Puerto Rican institutions than at institutions catering to African Americans and mainland Hispanics. This finding can be attributed to the exceptional quasisovereign political status of Indian tribes and Puerto Rico and are confirmed with an analysis of female-centric curricula at women's colleges.

Minority Politics and Group-Differentiated Curricula at Minority-Serving Colleges

................................................ii Dedication...............................................iv Acknowledgements..........................................v List of Tables..........................................xii Preface................................................xiii Chapter I.................................................

The Equal Access Act: â Not the Access for All Students Except Gay Students Actâ : Federal Judicial Decisions and Their Implications for School Systemsâ Policies and Practices Regarding Student Requests to Establish Gay Straight Alliance Clubs in Public Schools

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests. (ProQuest Information and Learning: ... denotes formulae omitted.) For a decade now, I have felt certain that the Court's contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach ... the diminution of federal scrutiny and protection out of purported deference to the states mandates the assumption of a more responsible state court role ... The Fourth Amendment has been most clearly targeted for attack .... (Justice William Brennan, James Madison Lecture on Constitutional Law at New York University School of Law, November 18, 1986) Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries (Katz & Tarr 1996). One scholar argues that the European community's increasing federalism has led to greater individual rights (Lenaerts 1996:139), while another argues that the Canadian Charter of Rights and Freedoms judicialized civil rights protection, which has led to greater security of individual rights (Coder 1996). Of course, this idea of greater protection runs counter to accepted justifications for federalism, which is often viewed as an instrument of group or state's rights (Katz & Tarr 1996). However, regional courts relying on regional constitutions can offer enhanced protection for civil liberties beyond the baselines established by a federal constitution and a national court (see Linde 1984). It is that possibility for increased protection that led Justice William Brennan, confronting an increasingly conservative U.S.Supreme Court (USSC), to encourage state courts to rely on state constitutional grounds as a strategy to increase and insulate the protections of the Bill of Rights. A state high court's (or SCOLR, for State Court of Last Resort) role as final arbiter of its own state constitution provides a useful, albeit limited, tool through which courts can accomplish this goal. During the last few decades, some judicial scholars and officials have viewed this position as an opportunity to enhance civil liberties. Given this impetus and some subsequent liberal state court rulings, many have asserted that an era of "new judicial federalism" was at hand (see Solimine 2002; Pulliam 1999). However, subsequent research has produced little evidence that such a revolution has occurred in the United States (Rosenfeld 1988; Cauthen 2000). Undoubtedly this is because the use of regional constitutional protection is not as straightforward as advocates of federalism would suggest. In the United States, success depends on the actions of others to whom state court justices are accountable both within and outside their respective states. …

State courts, the U.S. supreme court, and the protection of civil liberties

The effects of the oversight role of legislatures in promoting good governance in South Africa with specific reference to the Gauteng legislature

I. SHIFTING LIFE STYLES AND AN UNCERTAIN LEGAL ORDER The growth of suburban shopping centers in the decades following the end of World War II has had far more pervasive ramifications than merely effecting a change in the ways that goods and services are displayed, dispensed, and sold. Proliferating and ever-expanding malls, usually located along or adjacent to major highways, increasingly have come to replace traditional municipalities as loci for the conduct of a host of activities.(1) No longer are "downtown" areas looked upon as the exclusive or even the principal locations for such pursuits. Instead, shopping centers have come to serve as the primary means of carrying on many businesses formerly confined to central cities.(2) With the dramatic reassignment of commercial resources and functions, earlier notions of city streets as the foremost places for the dissemination of ideas and views, often on controversial issues of political or social significance, have taken on a less compelling demeanor.(3) If shopping centers have not completely displaced specified sections of cities in fostering these and related activities, it is clear that a new era has opened, requiring reconsideration of established institutional arrangements as well as an examination of the problems that they pose.(4) As often happens when events outrun and outdate prevailing norms, the legal system must adapt to societal changes, especially those brought on by major shifts in public interests and attitudes. The role of shopping centers as places for those who seek to influence opinion has raised serious questions for reviewing courts--questions that often create well-nigh insoluble dilemmas.(5) Regardless of changing perceptions of appropriate locations for the conduct of community as well as commercial affairs, shopping centers remain private property, in theory if not always in fact. It is difficult to assume an easy conversion of such resources to the public domain simply because of altered outlooks and what may appear to be a more convenient way of managing businesses and providing access to speakers.(6) Technological advances and changing life styles, in themselves, do not suffice to justify such a transformation. Constitutional safeguards, linked to the protection of private property, continue to apply unless a convincing case can be made to warrant the required conversion.(7) Any device, notwithstanding its novelty and inventiveness, must be sustainable by some rudiments of minimal legality and rationality, albeit challengeable ones. The first attempt to provide a plausible constitutional basis for the protection of free speech guarantees on private property occurred in the mid-1940s.(8) In an oft-noted case, Marsh v. Alabama,(9) the United States Supreme Court, speaking through Justice Hugo Black, held that First and Fourteenth Amendment rights applied when the owners and operators of a company town sought to prevent the distribution of religious literature in the town's downtown business district.(10) Adhering to familiar concepts of constitutional relativism, the Court imposed a sliding scale that diminished exclusionary private interests as the owner increasingly opened the property in question to expanded public use.(11) If, as the majority maintained, the town displayed many of the attributes of a municipality, the state action requirement was satisfied for constitutional purposes in sustaining rights of free speech.(12) In fact, the Court devised a form of "public function" analysis as the basis of a state action finding.(13) To ensure an informed citizenry, the Court declared, access to information had to be "uncensored" in a decisionmaking process that affected the welfare of the community and the nation.(14) Striking a balance, citizen rights emerged as paramount when compared with those asserted by the property owner.(15) Yet Justice Black subsequently asserted, in Amalgamated Food Employees Union Local 590 v. …

Private Property, Public Property: Shopping Centers and Expressive Freedom in the States

State religion clauses, although currently among the least explored sections of state constitutions, have come to exhibit a limited catalog of judicially assigned meanings that set them apart, albeit minimally, from their First Amendment counterparts. Several recent cases reveal these distinctions, particularly in relation to free exercise claims.(1) These distinctions, while tangible, are qualified and have developed slowly in incremental steps. Whether such a modest tendency to modify the decisional status quo will continue remains unclear. Nonetheless, regardless of what the future may hold, the course pursued in selected state cases merits attention. This is especially so in view of the unsettled state of the guidelines that have marked the religion clauses of the Bill of Rights.(2) RECENT FEDERAL RULINGS: AN OVERVIEW The inadequacy of First Amendment criteria in free exercise cases has been noted with increasing frequency for at least a decade and, with a lesser degree of disdain, for a longer period.(3) Since the mid-1940s, when the religion clauses of the First Amendment were made applicable to the states,(4) tensions inherent in the clauses have been evident.(5) The late delineation of critical models resulted from delays in the Supreme Court's resort to the Fourteenth Amendment's Due Process Clause as a means of conveying and elaborating upon values associated with First Amendment components.(6) It has long been apparent that an unremitting separation of church and state diminishes the breadth of free exercise.(7) What the Court has sought to achieve in recent years is an accommodation, but one characterized by a division premised on an endorsement corollary to guidelines previously announced. Whether viable standards of decision-making will ultimately emerge remains open to question. What, then, has been the nature of the national doctrinal design to which objection has been taken? Of late, two sets of precedents have proved to be major sources of discord. The first, centering around Lemon v. Kurtzman,(8) introduced a three-pronged test against which allegations of Establishment Clause violations might be measured.(9) The "cumulative criteria" cited by the Court required that a legislative act, in order to be valid, must have (1) a secular purpose, (2) a primary effect neither to advance nor to inhibit religion, and (3) no intent to foster an "excessive government entanglement with religion."(10) While the ambiguous language of Lemon and its progeny was open to broad interpretation, fears were expressed with respect to the simplistic and indecisive nature of the rules set out, including a charge that the Lemon tests had led to "unworkable plurality opinions."(11) In an attempt to remedy what appeared to be a growing dilemma, the Court turned to embrace an endorsement corollary that suggested an inquiry into whether and to what extent governmental action provided an endorsement or disapproval of religion.(12) Yet the Justices were closely divided over a primary reliance on endorsement.(13) Versions of the accommodation theory experienced a revival--one that led members of the Court to return to expansive readings of the Free Exercise Clause.(14) But flaws and periodic clashes developed in free exercise applications even in the absence of Establishment Clause complications that often lay at or peripherally beneath the surface. An accommodation of religious practices, like an endorsement test in the interest of promoting religious pluralism, led to friction among the Justices.(15) Neither promoted a common core of agreement for which the proposed formula had been devised.(16) With the recognition of an equal access policy for religious groups, initially on state-supported college campuses by judicial interpretation(17) and in public high schools by statute,(18) Free Exercise claims took on an enhanced meaning, now joined with Free Speech guarantees in judicially conceived hybrid settings. …

Free Exercise in the States: Belief, Conduct, and Judicial Benchmarks

I. AN INTRODUCTORY CRITIQUE Notions of equality that have marked the American experience built upon a heritage dating from the Declaration of Independence and tracts of the Revolutionary era. (1) Yet the promise of this legacy, modest though it was, failed to materialize when the wording of the Declaration and similar papers had to be transformed in the creation of a functional instrument of government. Neither the Articles of Confederation nor the Constitution of 1787 dealt at length with equality. The Framers of the Constitution, in particular, were thwarted by sectional interests that required covert recognition of slavery in the basic document. (2) Even more compelling was the attention directed to the establishment of a workable national government and of the federal system that it spawned. An implicit conflict lurked when egalitarianism was weighed against the Framers' determination to protect individual liberties against undue invasion. The former called for positive intervention on behalf of those open to attack or deprecation while the latter entailed the erection of negative barriers preserving personal rights against the intrusive acts of government. The Bill of Rights, approved soon after the Constitution became effective, reflected the traditional interests of the founding generation in their efforts to guard against an overweening officialdom much like that reviled by the colonists. It was the tripartite Lockean test that prevailed, not a viable defense of equality promoted as a matter of natural right. (3) The institution of slavery precluded any countermovement. An emphasis on property rights, linked to eighteenth century conceptions of liberty, encouraged a philosophy that tended to restrain and to discourage residual societal concerns. (4) It remained for the Civil War and Reconstruction to set in motion a turn to egalitarianism and to embody it in a series of constitutional amendments. In addition to the abolition of slavery by dint of the Thirteenth Amendment and the extension of voting rights to the newly emancipated slaves in the Fifteenth Amendment, the Fourteenth Amendment emerged as the ostensible centerpiece of equality. For the first time, a guarantee of equal protection became a part of the national charter. A second due process clause, intended to prevent state infractions, was also included. While the latter came to protect burgeoning commercial and industrial growth during the second half of the nineteenth century, a limited intermingling of due process and equal protection safeguards reappeared years later in a newfound defense of human rights. (5) Equal protection was almost lost amid a welter of constitutional constraints. In the later 1920s, Justice Oliver Wendell Holmes referred disparagingly to the clause as the "last resort of constitutional arguments." (6) Almost a half century earlier, disillusionment resulted when the promise of an enhanced body of civil rights dwindled, and the ideals of the postwar amendments--especially the equal protection clause--were virtually abandoned. A disheartening sense of reality came to the fore when a separate-but-equal formula was substituted by the Supreme Court, in many ways reflecting the public mood of the age. During the last decade of the nineteenth century, the Court's resort to this terse alternate in the case of Plessy v. Ferguson. (7) brought to an end any expectation of an impending revival of civil rights. (8) Little of a positive nature came to pass until the late 1930s when equal protection began to take on the rudiments of a tenable constitutional standard. It was in the midst of this new era that debates began to occur, first in the judicial forum, over the extent of a reanimated equal protection. The implications for the development of a civil rights jurisprudence, later reinforced by protective legislation, had to be considered, whereby looking toward the reversal of long-time practices of racial segregation that had dishonored the American heritage. …

State Equal Protection: Its Diverse Guises and Effects

While the text of the national Constitution of 1787 did not provide specific authorization for a separation of powers, categorical references to separate departments of government conveyed implicit recognition of the doctrine.(1) The Articles of Confederation placed whatever powers the central government might exercise, however inadequate, in the "United States, in Congress assembled" with little or no attention to differentiation or implementation except in perfunctory terms.(2) Despite the respect accorded to notions of separated powers set out by Locke and Montesquieu, any effort to establish such a system appeared to have been thwarted by an overriding need to create an enfeebled confederation in which the states and the legislatures in particular retained almost all of the indicia of sovereignty that they had previously claimed.(3) It remained for the Constitution of 1787 to establish the basis for separate departments intended to guard against tyranny, though like aims led to a blending of powers by way of a system of checks and balances.(4) During the two centuries since ratification and a marked infusion of national powers, significant modifications were introduced as essential to the success of the basic plan.(5) Separation survived, but not in the form in which its progenitors originally envisioned it.(6) Over the years, especially in the era following the Great Depression of the 1930s, the separation doctrine exhibited signs of diminished significance.(7) Executive authority in the decisionmaking process expanded to a remarkable degree.(8) The administrative state assumed a newfound status and a measure of acceptance hitherto unknown in American history.(9) Formerly divisive issues of excessive delegability receded as less rigorous guidelines were used to control the operations of a vast bureaucracy.(10) Agency personnel came to exercise substantial discretionary powers by means of broad grants from legislators overwhelmed by the intricacy of contemporary governmental processes.(11) With the virtual disappearance of the acrimony attendant upon congressional delegation of major grants of power to the executive branch, familiar clashes associated with the separation of powers declined.(12) The notion that exacting standards were required to lend validity to allocations of authority to administrative entities was retained only as a rationale, often a feigned one, to facilitate ever broader grants.(13) Adherence to a strict separation doctrine, viewed in this light, existed more in the abstract than as an operative feature of government.(14) Long the most vigorous critic of a steadily growing bureaucratization and its ultimate reviewer,(15) the United States Supreme Court acquiesced in a doctrine of primary jurisdiction, assigning a broad measure of discretion predicated upon the presumed expertise of administrators.(16) Compelling standards of delegability were less evident as the mechanisms of the national government continued to proliferate.(17) In many respects, old-line tests of accountability persisted as symbols, rather than as working standards.(18) The impact of these symbols was often minimal when measured against the congeries of power that had come to prevail during the New Deal years and succeeding decades.(19) However reluctant the Supreme Court might have been to yield to quasi-legislative units, the administrative state took on a life of its own, usually unencumbered by judicial interference, except under egregious conditions.(20) Whether expressly conceded or implicitly noted, efforts to contain or to curtail the growth of the administrative colossus receded into the outer reaches of constitutional adjudication.(21) Nevertheless, the separation doctrine itself endured even if the negativism of the past dwindled, reappearing only on occasion and then in truncated form.(22) The independent counsel provisions of the Ethics in Government Act(23) were sustained in 1988, against separation of power challenges, on the ground that the law did not work "any judicial usurpation of properly executive functions. …

State Courts and the Separation of Powers: A Venerable Doctrine in Varied Contexts

The development of American family law, particularly the enumeration of rights, has often paralleled that of personal rights generally. All the same, neither the federal Bill of Rights nor counterpart state provisions offer explicit familial guarantees comparable to those traditionally conferred upon individuals. What prevails is a presumption that the family unit ought not to be subjected to intrusive control or supervision. There have even been reports of a proposed federal constitutional "amendment prohibiting the government from abridging the 'rights of the family.'" (1) Over the years, a sense of privacy seems to have precluded societal intervention unless egregious conditions necessitated it. The onus of responsibility lies with the state in establishing compelling reasons for any attempt to remedy misdeeds. Throughout the nation's history, the recurring motif has favored non-interference, suggesting a conception of family law that belies overt paternalism. In this regard, procedural and substantive rights have accrued to the family, viewed as an entity essential not only to the individuals who comprise it, but also to the preservation of accepted social needs and goals. The essay that follows does not focus upon issues and questions encompassed within the customary bounds of family law. (2) Instead, emphasis has been placed upon a review of contemporary cases that have touched upon unusual themes affecting internal relationships and conflicts both within and outside the family unit. Additionally, in the major cases, constitutional aspects (or their absence) are treated either directly or impliedly. Attention is directed to controversies litigated in the state courts from which, historically, most of American family law originated and where it continues to be centered. The cases often reflect a revived judicial federalism and are marked by nuances in an ever-growing and changing body of law. THE FEDERAL JUDICIAL FRAMEWORK The first glimpses of legal recognition for family autonomy arose within settings not integrally related to familial relations. Among the earliest cases suggesting a protective framework was Meyer v. Nebraska, (3) initiating occasional spurts of judicial inquiry. The sanctity and integrity of the family unit had long been recognized but without reference to specific constitutional language or, until Meyer, even to the common law. It was from the latter that a listing of individual rights and privileges, including the "right to marry, establish a home and bring up children," was derived as "essential to the orderly pursuit of happiness by free men." (4) When the Supreme Court acknowledged the existence of these rights in 1923, they were linked to conceptions of liberty, though it is noteworthy that they were not defined with exactness. (5) Almost simultaneously, the Court in Pierce v. Society of Sisters went on to sustain the "liberty of parents and guardians to direct the upbringing and education of children under their control." (6) Overtones of now much-decried substantive due process pervaded both opinions. In Meyer, the Court referred to the Fourteenth Amendment's due process clause as preventing the states from interfering with individual contractual rights, (7) thus raising the specter of a continued reliance on Lochner v. New York, (8) subsequently taken to be among the most denounced precedents of the century. The opinions in Meyer and Pierce were written by Justice James McReynolds, (9) one of the most conservative members of the Court. In both cases, questions were raised concerning the types of schools that children should be required to attend and the foreign languages that they might elect to study. The former centered on state efforts to discourage attendance at parochial schools. (10) The latter, in large measure a legacy of World War I, was designed to eliminate the study of the German language as a part of the curriculum. (11) Whether in a broader, more inclusive context, family rights would have been set out with greater attention to scope and breadth remained problematic at the time. …

Stanley H. Friedelbaum

Papers

Private Property, Public Property: Shopping Centers and Expressive Freedom in the States

Free Exercise in the States: Belief, Conduct, and Judicial Benchmarks

State Equal Protection: Its Diverse Guises and Effects

State Courts and the Separation of Powers: A Venerable Doctrine in Varied Contexts

Reassessing Family Relations Law: Issues and Inquiries in the State Courts