Tuesday, February 26, 2019

The Implications of Trademark Forefeiture in U.S. v. Mongol Nation

By Professors Jennifer E. Rothman and Rebecca Tushnet

This op-ed originally appeared in the Tuesday, Feb. 26, 2019 edition of the Los Angeles and San Francisco Daily Journal 

Last month, District Judge David O. Carter of the Central District of California invited the submission of amicus briefs to address a series of questions arising from litigation in United States v. Mongol Nation, CR13-0106-DOC, an ongoing case brought by the United States against a motorcycle gang, Mongol Nation. The government has sought through criminal forfeiture, pursuant to 18 U.S.C. Section 1963(a)(1) of the Racketeer Influenced and Corrupt Organizations Act to have the court transfer to it the defendant’s trademarks. Judge Carter specifically sought guidance from amici on a series of questions involving intellectual property, constitutional and criminal laws.

A group of law professors led by Rebecca Tushnet of Harvard Law School submitted a brief to the court in support of neither party. The brief addresses the first two questions posed by Judge Carter:

• Whether criminal forfeiture of any and all legal and equitable rights of any kind or nature associated with or appurtenant to a collective membership mark violates the First Amendment to the United States Constitution.

• Whether criminal forfeiture of a collective membership mark is feasible under intellectual property law.

In particular, the brief focuses on the limits of a transfer of the defendant’s marks under trademark and First Amendment law. The brief was signed on to by seven leading intellectual property scholars: Stacy L. Dogan (Boston University), Mark A. Lemley (Stanford), Jessica Litman (Michigan), Mark P. McKenna (Notre Dame), Jennifer E. Rothman (Loyola Law School, Los Angeles), Jessica Silbey (Northeastern University), and Rebecca Tushnet (Harvard Law School).

Monday, February 4, 2019

A Win-Win Compromise on the Wall

By Professor Karl Manheim

We don’t give Donald J. Trump all the credit he deserves. He’s been arguing for a brilliant bi-partisan solution to the immigration problem for years, and the rest of us have simply ignored him. Is this the way to treat serious policy proposals by the President?

We’re all well aware of those mispronunciations, malapropisms, garbled words and covfefes, that dot Trump’s tweets and speeches. But, these are equally signs of genius at work. We should listen to his bigly words very carefully.

The mainstream press began reported in early 2016, when Trump was a candidate, that he was energizing his base with tough talk of putting up a beautiful wall at the southern border, one that Mexico would pay for. Closer inspection of the audio tapes at his speeches reveals that it wasn’t a wall than Trump wanted, but a Walmart!

The Walmart demand is actually quite clever, and one that should earn strong bipartisan support. First, building a 1,000 mile long Walmart on the border will ramp up infrastructure investment big time, improve our export balance and bring high-paying construction and manufacturing jobs back to the U.S. (except for those jobs that have to be performed on the Mexican side).

But its principal function will be to keep undeserving immigrants from crossing our borders illegally. Here’s how it would work:

The mega-Walmart would be positioned directly on the U.S. Mexican border, with north-facing entrances on the U.S. side and south-facing entrances on the Mexican side.

Mexicans and other southern immigrants would enter the Walmart through south side entrances. Americans and our visitors would enter through north side entrances. Once inside the mega-mega-store, all customers would be treated alike. They could mingle and purchase goods and services in either dollars or pesos (so long as the peso remains a convertible currency). Persons who need medical attention can visit one of the many pharmacies located at the north and south sides of the building. As many pharmacies are already doing, Walmart Pharmacy might add medically-licensed staff that can make diagnoses, prescribe drugs, give shots and make recommendations for hospital transfer where necessary. Current national health insurance plans would apply to the respective health care services provided at the northern and southern pharmacies. However, the Mexican and U.S. governments might find this a much more effective way to deliver health care services to the poor and appropriate additional funds for the purpose.

Mexicans and other immigrants seeking entry to the U.S. can begin the process in the comfort of familiar Walmart surroundings. First, they’d want to speak to NGO representatives who are given space (perhaps in the housewares aisle) to set up consultations. In some cases, applicants for asylum, family unification, H1B visas, and other lawful categories of entry, including just plain old temporary visitor visas, would then be directed to official U.S. immigration officers, also stationed within Walmart.

It is likely that only a very few of these referred persons would be permitted to exit at the northern (U.S.) side of Walmart unaccompanied. All persons exiting the north doors will need to show U.S. documentation. Converse for the south doors. Anyone denied exit at their preferred door, can always go back through the door they entered. (But you won’t be able to shop at this Walmart without some proof of passage within your own country).

There are solutions for those who want to further pursue immigration credentials, if denied at first. They will obviously need temporary accommodations until their cases can be acted upon. Walmart owns and manages one of the largest real estate portfolios in the U.S. What could be better than a captive audience of renters? I’m envisioning housing in a gated community, say adjacent to the mega-Walmart, that is far less terrifying and costly than those housing units rimmed by steel bars. Walmart could also partner, through Walmart Marketplace, with third-parties (churches, NGOs, home builders) to build new housing. Costco is already selling 300 sq. ft. houses for a bit over $7,000. That’s an order of magnitude less than what the Border Patrol currently spends on housing immigrants. Other firms sell small houses for $500 to $12,000; again cheaper than a holding cell.

The entire operation is humane, efficient, safe and likely very profitable to Walmart and America. What’s not to like? It was sheer brilliance for President Trump to propose this solution to secure our borders. He must keep trying. And the press and members of Congress should open their ears to hear what our Commander in Chief is really saying. Don’t let his words of wisdom trail off to the point where they become indecipherable, and don’t attack him for the wrong reason. Remember, genius and madness are sometimes hard to tell apart.