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	<title>North Carolina Law Review &#187; Issue 2</title>
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		<title>To Be Real: Sexual Identity Politics in Tort Litigation</title>
		<link>http://nclawreview.net/2010/01/13/to-be-real-sexual-identity-politics-in-tort-litigation/</link>
		<comments>http://nclawreview.net/2010/01/13/to-be-real-sexual-identity-politics-in-tort-litigation/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:43:38 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=904</guid>
		<description><![CDATA[Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which [...]]]></description>
			<content:encoded><![CDATA[<p>Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which appears to be naturally binary, even if you are not. Individuals who challenge this conception may find it difficult to obtain compensation for their injuries or, worse, may not be permitted to sue at all. These practices have important political effects. The most important of these is that tort litigation makes binary sexual difference appear more natural than it is. Since this outcome is at odds with lived experience, this Article argues that tort litigation should take a more pragmatic approach to sexual identity issues, by making space for competing conceptions of sexual identity.</p>
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		<title>Consumer Investment in Trademarks</title>
		<link>http://nclawreview.net/2010/01/13/consumer-investment-in-trademarks/</link>
		<comments>http://nclawreview.net/2010/01/13/consumer-investment-in-trademarks/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:42:30 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=901</guid>
		<description><![CDATA[To protect the interests of trademark owners in many new contexts, trademark law has expanded and uprooted the doctrine from its policy of protecting consumers. To facilitate this expansion, consumer interests are often ignored or manipulated to conform to the interests of mark owners. This Article introduces consumer investment in trademarks as a model to [...]]]></description>
			<content:encoded><![CDATA[<p>To protect the interests of trademark owners in many new contexts, trademark law has expanded and uprooted the doctrine from its policy of protecting consumers. To facilitate this expansion, consumer interests are often ignored or manipulated to conform to the interests of mark owners. This Article introduces consumer investment in trademarks as a model to bring public interests back into trademark doctrine. The model demonstrates that because consumers invest marks with meaning and value, they deserve a return. Drawing on literature from the social sciences, this Article illuminates the many ways in which consumers contribute to the success or failure of marks and actively use them to express themselves and find information. In view of this research, this Article advocates rejection of the doctrinal assumptions that trademark owners are solely responsible for trademark value and that consumers are mere passive recipients of information about marks. Instead, trademark law should acknowledge that consumers have also invested in marks, and it should therefore weigh the public interest in using marks as information tools when deciding trademark matters. By adopting the model’s broadened view of how consumers use brands and contribute to their meaning, trademark law can take into account actual consumer interests.</p>
<p>Next, the discussion turns to practical applications. Use of the consumer investment model would keep trademark doctrine on a principled path that preserves the public interest in using marks as information tools. The model offers a new way of examining difficult issues involving the unauthorized use of brands on the Internet. Specifically, in keyword advertising disputes, the model would prompt courts or Congress to weigh public informational interests when considering how much control mark owners should exert over their brands on the Internet. However, as technology advances and new uses for marks evolve, the model would not block trademark expansion. It simply would provide a constant reminder to consider public interests. For example, the model generally supports dilution protection for famous marks. However, this Article introduces “cultural dilution” as a type of lost distinctiveness that should be exempted from trademark protection. Cultural dilution occurs when consumers invest a famous mark with new meaning through viral means that brand owners cannot stop. Finally, this Article recommends creation of a safe harbor for reference materials to reflect actual consumer understandings of terms that also serve as brands. Application of the consumer investments model in these contexts and others would assure that actual consumer interests are weighed in trademark disputes that affect public access to information.</p>
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		<item>
		<title>On the Use and Abuse of Standards for Law: Global Governance and Offshore Financial Centers</title>
		<link>http://nclawreview.net/2010/01/13/on-the-use-and-abuse-of-standards-for-law-global-governance-and-offshore-financial-centers/</link>
		<comments>http://nclawreview.net/2010/01/13/on-the-use-and-abuse-of-standards-for-law-global-governance-and-offshore-financial-centers/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:41:59 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=897</guid>
		<description><![CDATA[Current trends in international legal scholarship have shifted from a paradigm of state actors working within recognized sources of international law to one that includes networks of domestic regulators that develop and implement best practices or standards on a global basis. The new paradigm can be seen in operation in the efforts by onshore jurisdictions [...]]]></description>
			<content:encoded><![CDATA[<p>Current trends in international legal scholarship have shifted from a paradigm of state actors working within recognized sources of international law to one that includes networks of domestic regulators that develop and implement best practices or standards on a global basis. The new paradigm can be seen in operation in the efforts by onshore jurisdictions (most of which are financial centers themselves) to restrict the activities of offshore financial centers. Onshore jurisdictions enlisted these regulatory networks, as well as key international organizations, such as the Organisation for Economic Co-operation and Development and the International Monetary Fund, to advance new standards for income taxation, prudential regulation, and money laundering in offshore centers. By 2005, offshore centers’ compliance with financial, regulatory, and money laundering standards was largely complete, while there was less success with income tax standards. The current financial crisis, however, has spurred renewed efforts, particularly with respect to the latter. An analysis of this experience suggests that the new paradigm should view regulatory networks in the context of a complex system of states and international organizations that possess the qualities of such regulatory networks. A system of global governance that includes both regulatory networks and these international organizations advances fairness and objectivity and, in particular, may protect weak states from the coercive power of the stronger.</p>
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		<title>Whose Loss Is It Anyway? Effects of the “Lost-Chance” Doctrine on Civil Litigation and Medical Malpractice Insurance</title>
		<link>http://nclawreview.net/2010/01/13/whose-loss-is-it-anyway-effects-of-the-%e2%80%9clost-chance%e2%80%9d-doctrine-on-civil-litigation-and-medical-malpractice-insurance/</link>
		<comments>http://nclawreview.net/2010/01/13/whose-loss-is-it-anyway-effects-of-the-%e2%80%9clost-chance%e2%80%9d-doctrine-on-civil-litigation-and-medical-malpractice-insurance/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:40:39 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=895</guid>
		<description><![CDATA[This Comment explores the “lost-chance” doctrine—a theory of recovery unique to medical malpractice litigation that permits a patient to recover damages from a doctor without needing to establish a more-likely-than-not causal connection between the doctor’s negligence and the patient’s injury.  Using two recent state supreme court decisions as a vehicle for analyzing the policy implications [...]]]></description>
			<content:encoded><![CDATA[<p>This Comment explores the “lost-chance” doctrine—a theory of recovery unique to medical malpractice litigation that permits a patient to recover damages from a doctor without needing to establish a more-likely-than-not causal connection between the doctor’s negligence and the patient’s injury.  Using two recent state supreme court decisions as a vehicle for analyzing the policy implications surrounding the doctrine, the Comment recounts the doctrine’s evolution, its current status amongst the fifty states, and its prevalence in the context of state tort-reform efforts.  The Comment then analyzes statistical and empirical data to determine whether a connection does, in fact, exist between a particular state’s adoption of the lost-chance doctrine and either (a) the prevalence of medical malpractice litigation in that state or (b) an increase in malpractice insurance rates amongst doctors practicing in that state.  The Comment ultimately concludes that the doctrine’s effect on both the prevalence of medical malpractice litigation and malpractice insurance rates is negligible, and as such, the benefits afforded to citizens of states choosing to adopt the doctrine outweigh any speculative drawbacks that adopting the doctrine may potentially create.</p>
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		<title>Mashed-Up in Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright</title>
		<link>http://nclawreview.net/2010/01/13/mashed-up-in-between-the-delicate-balance-of-artists%e2%80%99-interests-lost-amidst-the-war-on-copyright/</link>
		<comments>http://nclawreview.net/2010/01/13/mashed-up-in-between-the-delicate-balance-of-artists%e2%80%99-interests-lost-amidst-the-war-on-copyright/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:39:41 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=893</guid>
		<description><![CDATA[]]></description>
			<content:encoded><![CDATA[]]></content:encoded>
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		<title>Protecting the Greater Good: A Critique of the Public Duty Doctrine as Applied in Murray V. County of Person</title>
		<link>http://nclawreview.net/2010/01/13/protecting-the-greater-good-a-critique-of-the-public-duty-doctrine-as-applied-in-murray-v-county-of-person/</link>
		<comments>http://nclawreview.net/2010/01/13/protecting-the-greater-good-a-critique-of-the-public-duty-doctrine-as-applied-in-murray-v-county-of-person/#comments</comments>
		<pubDate>Wed, 13 Jan 2010 18:38:04 +0000</pubDate>
		<dc:creator>nclrev</dc:creator>
				<category><![CDATA[Issue 2]]></category>

		<guid isPermaLink="false">http://nclawreview.net/?p=891</guid>
		<description><![CDATA[This recent development defends the much maligned public duty doctrine and criticizes the North Carolina Court of Appeals decision in Murray v. County of Person.  The decision in Murray incorrectly based application of the public duty doctrine on whether the defendants were sued in their individual or official capacities.  Application of the doctrine in this [...]]]></description>
			<content:encoded><![CDATA[<p>This recent development defends the much maligned public duty doctrine and criticizes the North Carolina Court of Appeals decision in Murray v. County of Person.  The decision in Murray incorrectly based application of the public duty doctrine on whether the defendants were sued in their individual or official capacities.  Application of the doctrine in this way leads to a result that deviates with precedent, conflicts with tort law principles, and threatens to eviscerate the doctrine.  Because the doctrine benefits the state and the public, any decision that threatens its effectiveness should be overruled</p>
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