Volume 2017, No. 3

Table of Contents

Articles

Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders

Shawn E. Fields

Professor of Legal Writing, University of San Diego School of Law

“From a very young age we are taught to fear strangers. Parent[s], teachers and loved ones warn children of stranger danger[,] instructing them not to speak or go anywhere with someone they don’t know.

“As we grow up this message is reinforced, particularly for women. We are told to be aware of our surroundings when walking alone late at night for fear of the stranger lurking in the bushes ready to attack. This story of the stranger hiding in the bushes or a dark alley is also often used when warning women about sexual assault. We are told we shouldn’t go out late at night alone, especially in parks, and that we should carry pepper spray in our purses to be ready to fend off violent attackers. So we grow up thinking we can pinpoint potential perpetrators—the creepy guy in the park, the man in the hoodie walking closely behind you. . . .

“Messages like this are not only incredibly insensitive to victims, but dangerous for everyone. When we believe that these types of myths are reality, victims start to question what happened to them and are reluctant to report, people don’t understand what consent really look likes, attackers might not know they are raping women, rapists go free, rapists rape again, rape cases aren’t investigated, the list goes on and on.”

Tampon Taxes, Discrimination, and Human Rights

Bridget J. Crawford & Carla Spivack

Bridget Crawford – Professor of Law at the Elisabeth Haub School of Law at Pace University
Carla Spivack – Oxford Research Professor of Law at Oklahoma City University School of Law

This Article makes two contributions to the study of taxation. First, it argues that the “tampon tax”—an umbrella term to describe sales, VAT, and similar “luxury” taxes imposed on menstrual hygiene products—illustrates how deeply embedded gender is in legal structures such as the tax system that are thought to be neutral. Second, this Article posits that tax reform is an essential tool in achieving both gender equality and human rights. In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the tampon tax. In response to pressure from constituents, five states and Canada have repealed their tampon tax. Active repeal campaigns are underway in Australia, the UnitedKingdom, and several other countries. Where public pressure has not been an effective technique, those seeking to challenge the tampon tax in the United States have turned to litigation. In four states, class action lawsuits have been filed seeking repeal of the tax and a refund for back taxes paid, alleging equal protection violations. In the international context, human rights law may provide a promising foundation for similar legal challenges to the tampon tax because human rights law takes a capacious approach to gender equality. In the European Court of Human Rights, for example, there are several tax cases that recognize gender-differentiated taxes as a form of impermissible discrimination. This Article explains how the tampon tax is both a form of gender discrimination and a violation of human rights norms. Full realization of gender equality will require revision of tax laws. As a cultural matter, the tampon tax has gone unnoticed because of a history of cultural (and legal) unease about women’s bodies in general and menstruation in particular. Women’s (involuntary) bleeding is meant to happen “out of sight, out of mind,” whereas men’s (voluntary) bleeding in war, for example, is valorized. A new generation of activists, relying heavily on the Internet, is deeply engaged in cultural and legal reform efforts designed to create positive change in the practical realities of women’s lives.

The Uneasy Case for Patent Federalism

Roger Allan Ford

Associate Professor of Law, University of New Hampshire School of Law; Faculty Fellow, Franklin Pierce Center for Intellectual Property

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation.

There is, nevertheless, an uneasy case that this particular form of patent federalism may be a good thing. The federal patent system has systemic flaws that lead to low-quality patents, nuisance patent litigation, and patent trolls exploiting asymmetric bargaining power. And efforts to address these flaws have faltered, or have had limited effects, due to public-choice dynamics in the patent system, so the scope of patent protections has expanded over time without regard to the system’s purpose of encouraging innovation.

States may help address some of these problems not in spite of, but because of, their own flaws. States have their own public-choice dynamics that happen to offset some of the flaws of the federal system. State anti-patent laws have been driven largely by small businesses and local small-business groups, which, unlike most patent holders, have preexisting influence in state government. And the laws they have crafted using this influence are well-targeted to affect only the most troublesome patent cases: nuisance cases, cases asserting low-quality patents, and cases targeting end users. States pushing back with anti-patent laws, then, may represent an effective second-best solution to the problem of harmful patent assertions. Moreover, recognizing the dynamics that led to these laws may provide helpful insights in designing federal patent reforms.


Comment

Clearing the Path From Trailhead to Summit With a Leave No Trace Law

Samuel Case

J.D. Candidate, University of Wisconsin Law School, May 2017

Record numbers of people are visiting the country’s national parks and wilderness areas. This volume increase places a greater strain on these natural places. This increase in visitors, coupled with a National Park Service maintenance backlog and budget deficit for maintaining existing facilities in parks, illustrates the need for additional measures to adequately maintain the national wilderness system. The status quo in wilderness maintenance is insufficient.

Leave No Trace is an informal set of principles for wilderness users to follow to minimize their impact when traveling through these areas and has been around for decades. However, an increasing number of first-time wilderness users means a growing population unfamiliar with Leave No Trace principles. Additionally, there is evidence that those arguably most aware of the principles are choosing to ignore them. The informal nature of these principles has outlived its usefulness; a heavier hand must now accompany them.

This Comment argues that the Leave No Trace principles should become law, replacing the current regulations governing recreational activities in federal wilderness areas. Decades of development allowed the principles to reach their current final form and to gain familiarity and consensus among those whom the law would affect most. Additionally, the simple and coherent structure of the principles would replace the current scattered regulations and a messy body of law in general. Finally, Leave No Trace possesses certain traits that can address resource and enforcement issues unique to wilderness settings. A Leave No Trace law can be a concrete step in preserving our wilderness system and ensuring the viability of the natural world for generations.