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Digital Life After Death

By: Alec Roberson* | Staff Writer

In an age of social media and instant communication via emails, most people may not consider what will happen to their online accounts after death. Currently, there are roughly 30 million Facebook accounts still active that belong to people who are deceased. Likewise, it is estimated the about 1.5 million Facebook users and close to the same amount of Twitter users die each year. The question that lingers is what actually happens to these digital assets when you die and how can you transfer them properly to preserve your digital legacy?

The reason this is such an interesting question is because each state has their own set of laws governing the transfer of these types of assets and each email/social media provider likewise has their own set of proscribed rules governing access on death. This issue came to a head in 2005 when John Ellsworth wanted access to his deceased son, Justin Ellsworth’s, Yahoo! email account in order to recover emails and photos sent and received during his son’s military duty in Iraq. Yahoo!’s terms state that a user’s email account and all of its contents terminate at death with no right of survivorship or right of transferability. John was able to receive his son’s email contents only after a probate court in Michigan made the order.

Different providers have different terms though. Google allows you to designate who can access your account (including Google Plus, Gmail, etc.) or whether you want your data deleted after three, six, or twelve months after death. Facebook does not give access to anyone but allows family members to contact Facebook so that the deceased’s account can be memorialized, meaning no one can login, add or delete friends, and that person will not be suggested to other people to add as a friend nor will their birthday show up as a notification to others. Twitter allows the deceased’s family to request for the account to be deactivated as long as they can show a death certificate and details that show the account belongs to the deceased. In theory, any family member or friend that has the ability to get or knowledge of the deceased’s passwords could log on to those accounts themselves; however, under the federal Computer Fraud and Abuse Act this may violate federal law and the Stored Communications Act may prevent someone from sharing the deceased’s information available on these digital assets. Continue reading »

Rules of Engagement: State Law and the Presumption of the Wedding Ring “Gift”

By Austin J. Griffin* | Staff Writer 

The holiday season approaches and many out there will be leaning in close to their sweethearts, bracing against the chilly winds.  Some will even be pining for a longer sort of “lean in” – an engagement.  However, if the relationship cools, they may want to consider where that engagement ring may go.

As the New York Post reported this past October, a New York judge recently ruled that a woman “who broke up with her boyfriend [could] keep a $10,200 ‘engagement ring’ because her paramour didn’t make a marriage proposal when he [gave her the ring].”  All the man said was that “it was a gift for being a great woman, a good mother of his child.”  No wedding was expected for the confused couple at the time – the woman herself unclear whether she was engaged.  All the ex-boyfriend had to do, however, was propose so that the gift became one “given in contemplation of marriage” and therefore returnable.

The judge’s New York ruling provides questions that may reach many unhappy couples.  What, legally, is an engagement ring?  What does the law say about keeping the ring after a broken engagement?  In order to prevent such a costly mistake, this article will attempt to give a brief overview of the law pertaining to “gifts in contemplation of marriage” generally, the law in North Carolina, and how a North Carolina court might rule on this case.  To start, we’ll consider the idea of the gift itself.

What’s a Gift, Anyway?

The law of gifts is divided into two distinct paths, depending on the state of the donor or person giving the gift.  These two paths are inter vivos and causa mortis. Now, gifts causa mortis only apply when the donor is near to death, so they can be ignored here.  Because the donor tends to be alive when proposing marriage, an engagement ring is an inter vivos gift. According to Harvard fellow Ruth Sarah Lee, under common law, the elements of a valid inter vivos gift are:

“(1) an intention to give and surrender title to and dominion over the property (i.e. donative intent), (2) delivery of the property to the done, and (3) acceptance by the donee [gift receiver].”

Normally, this is not an issue with engagement rings given in contemplation of marriage because the donor has every intention to give the property to the donee, and the donee accepts it, understanding that an engagement has occurred.  However, the engagement ring is not your average gift.    Continue reading »

How Can “How” Be Trademarked?

By: Alec Roberson* | Staff Writer

Credit: ibtimes.com

Credit: ibtimes.com

Having trademark protection over certain words or phrases is perfectly adequate and sometimes even necessary for the preservation and profitability of a business.  However, where is the line drawn over what words or phrases should or shouldn’t be protected? According to bestselling author Dov Seidman, the simple, common word “how” is included in this protection.

Seidman is the founder and CEO of the company LRN, a business that helps companies create ethical cultures, and is the bestselling author of the book HOW: Why HOW We Do Anything Means Everything.  Earlier this year (2014), Seidman brought suit against the Greek yogurt company Chobani and advertising firm Droga5 for Chobani’s use of the word “how” in their marketing campaign stating, “How Matters” (which Chobani has a trademark on) to push that their yogurt is 100% natural.  Seidman claims that Chobani’s use of the word “how” was to convey that they are an ethical company and this is the same way LRN has used the word in its business.  This suit is premised on the assertion that the meaning of “how” was trademark protected and not the word “how” itself.  Chobani responded by denying they had knowledge of Seidman or of the trademark protection, and by asking the court to deny LRN’s trademark protection over “how”.

Almost any phrase, word, logo or symbol can be registered for trademark protection under the Lanham Act as long as two requirements are met: it’s used in commerce and it is distinctive.  Seidman’s use of “how” is clearly used in commerce.  The second requirement, trademark distinctiveness, is usually divided into four categories: arbitrary/fanciful, suggestive, descriptive, and generic.  A descriptive category is only protected if it has a secondary meaning known to the public that refers to the specific product or service, while a generic category is never protected because it refers to common terms that do not refer to any particular source. Continue reading »

Part Three: An Original Proposal for Stopping Corporate Inversions

New York Stock Exchange

New York Stock Exchange

 

By: John Sanders* | Staff Writer

Politicians, business leaders, and legal professionals have spent a great deal of time this year talking about corporate inversions.  As stated in the two previous posts in this three-post series, an inversion is a business transaction, usually a merger or acquisition, between a U.S. corporation and a foreign corporation with the objective of establishing the headquarters of the new combined corporation in the foreign nation to take advantage of a better corporate tax rate.

Opposition to corporate inversions has been increasing for several months.  However, it hit a fever pitch when American corporate icon Burger King announced plans to merge with Canada’s Tim Horton’s in order to take advantage of Canada’s lower tax rates.  This transaction was tangible to the average American in a way that few inversions can be.  Anyone with an idea for how to stop inversions was suddenly able to command the newspaper headlines and the lead segments of cable news shows.

As stated in previous posts, interested parties began rallying support around three very different proposals.  The three proposals, which are not necessarily mutually exclusive, are changing the U.S. corporate tax code, using the bully pulpit to pressure corporations into staying home, and using existing provisions in the tax code to punish and deter inversions. Continue reading »

Will NFL Commissioner Roger Goodell be Flagged for Mishandling the Ray Rice Scandal?

Commissioner Goodell.

Commissioner Goodell.

By: Jaime C. Garcia* | Staff Writer

Ray Rice, the former Baltimore Running Back, has appealed his indefinite suspension from the NFL. This move could affect the future of not only Rice’s career, but potentially, the future of the NFL. Recently, an arbiter in the appeal ruled that NFL Commissioner Roger Goodell should testify at the appeal hearing. This testimony could have an effect, not only on Rice’s appeal, but also, potentially, on Goodell’s future. Continue reading »

Who’s Really Prescribing Your Medicine? It May Not be Your Physician.

By: Jaime C. Garcia* | Staff Writer

Patients aren’t the only ones paying a premium to doctors and other healthcare providers. In the last five months of 2013, drug and medical device companies paid at least $3.5 Billion to U.S. physicians and teaching hospitals. In addition to raising a few eyebrows, the large sums of money these companies are paying out have raised several questions about the conflicts of interests these payments create.

Public information on payments made to doctors and teaching hospitals has only recently been made available thanks to the “Sunshine Provisions” of the Affordable Care Act, which went into effect August, 2013. The purpose of the enacted regulations is to drive down healthcare costs by making the public aware of potential conflicts of interest. The Center for Medicare and Medicaid Services (CMS) breaks down the data into three types: 1) Research; 2) Ownership; 3) General (non-ownership, non-research). Of these three categories, research and general payments have drawn the most scrutiny and criticism. Continue reading »

California Bans Single-Use Plastic Bags: Environmental Concerns v. Business Cocerns

By: John Hodnette* | Staff Writer

In late September of this year, Governor Jerry Brown of California made history by making California the first state to ban single-use plastic bags at grocery and convenience stores.  Beginning in July 2015, large grocery stores and pharmacies will be banned from providing shoppers with plastic bags at checkout, and other stores will follow a year later.  This statewide ban follows the lead of the Los Angeles ban signed only last year, and having substantially similar terms, and the Santa Monica and San Francisco bans, among many other U.S. cities already in effect.  Like these other bans, the bill require the stores to charge at least 10 cents for each paper bag or other reusable bag it gives to customers to encourage the use of reusable bags.

The ban’s main focus is on the environmental damage that single-use plastic bags can cause, and Environmental groups are already hailing it as a victory:  “I think this is the beginning of the end of plastic grocery bags and 10 years from now we’re going to forget they ever existed,” said Mark Murray, executive director of Californians against Waste.  Most states include laws giving the state the power to enact legislation for the purpose of environmental protection, but the legal question is whether this interest is substantial enough. Continue reading »

How Minimum Do We Want Minimum Wage?

History of US federal minimum wage increases

History of US federal minimum wage increases

By: Alec Roberson* | Staff Writer

Minimum wage requirements have been the center of much political debate for quite some time.  Different politicians and political parties will use a minimum wage hike to try to attract support from individuals, or may oppose one to gain support from businesses.  This area of debate also raises the question of the choices of the various states versus the choice of the federal government and how decisions by the former can have an impact on those of the latter.

In 2007 Congress passed the Fair Minimum Wage Act of 2007 that increased the national minimum wage requirement from $5.15 an hour to $5.85 with two more increases over the next two years to bring the minimum wage to $7.25 an hour.  This act was passed following increases of minimum wage in 13 states through ballot initiatives allowing the people of each state to vote on the issue.  Currently, President Obama has urged Congress to pass a bill allowing for another minimum wage hike that would ultimately end at $10.10 an hour. Right now more than 20 states have set their minimum wage above the federal requirement.  In North Carolina, the minimum wage currently is set at the federal requirement of $7.25 an hour. Continue reading »

Part Two: Using Corporate Tax Policy to Stop Corporate Inversions

By: John Sanders* | Staff Writer

New York City

New York City

Politicians, business leaders, and legal professionals have spent a great deal of time this year talking about corporate inversions.  As stated in a previous post, an inversion is a business transaction, perhaps a merger or acquisition, between a U.S. corporation and a foreign corporation with the objective of establishing the headquartering the new combined corporation in the foreign nation to take advantage of a better corporate tax rate.

Opposition to corporate inversions has been widespread and forceful in recent months.  However, it hit a fever pitch when American corporate icon Burger King announced plans to merge with Canada’s Tim Horton’s in order to take advantage of Canada’s lower tax rates.  Politicians, business leaders, and legal professionals were suddenly able to command the newspaper headlines and the lead segments of cable news shows if they had a proposal for how to stop inversions.

The interested parties began rallying support around three very different proposals.  The three proposals, which are not necessarily mutually exclusive, are changing the U.S. corporate tax code, using the bully pulpit to pressure corporations into staying put, and using existing provisions in the tax code to punish and deter inversions.

In a previous post, I described the proposals that Republicans and Democrats have put forward to amend and overhaul the tax code.  In the short time that has passed between post, there have been development on that front as well as others.  In this post, however, I will outline the competing proposal to use existing provisions in the tax code to punish and deter inversions. Continue reading »

JBIPL Board Spotlight: Editor-in-Chief and Managing Editor

Compiled By: Samantha Berner | Staff Writer 

Andrew Powell, Editor-in-Chief

What are the pertinent qualifications? Excellent time management and organizational skills.  Respect for deadlines and the ability to coordinate multiple moving parts and individuals through changing scenarios.  Strong editing skills and familiarity with the Bluebook and legal writing. 

Why did you apply for this position? I chose to apply because I wished to take a greater role in the Journal, practice my management skills, and help set the strategic direction for the Journal.  In my time in the MBA program, I have directed my studies toward strategic planning and change management.  The Journal has grown in the past few years, and when I applied to the position, the Journal was in the process of further evolving and experimenting with new ideas.  I saw it as a perfect opportunity to help guide the Journal through current issues, explore our strengths and growth opportunities, and set a firm direction for us to continue our mission of publishing top-notch legal research. Continue reading »