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California Court Rejects Challenge to End of Life Option Act

For some, it seems like an unthinkable and barbaric concept, but for others, it comes as a relief. Regardless of your own personal beliefs, physician-assisted suicide or death with dignity laws are never fun topics to discuss.  Nonetheless there’s been a recent movement, albeit slow, towards passing laws that aid terminally ill patients in dying.

California recently became the 5th state to enact an aid-in-dying law.  The End of Life Option Act was signed into law by Governor Brown in October of 2015, and was to officially go into effect on June 9, 2016.  However, a group of physicians, the American Academy of Medical Ethics, and the Life Legal Defense Foundation filed suit requesting the law be immediately suspended.

A California Court rejected the temporary restraining order that was filed, but will allow the plaintiffs to proceed  with their lawsuit regarding the concerns of the lack of safeguards against abuse of the law, so this won’t be the last time we’re hearing about this issue.

Terminally Ill Patients Can Voluntarily Request an Aid-in-Dying Drug

The Act permits terminally ill adult patients with the mental capacity to make medical decisions to be prescribed an aid-in-dying medication. Certain conditions, however, must be met before the drug will be prescribed.  End of Life

In order to be eligible to even request a prescription, an individual must meet the following criteria:

  • Be an adult of at least 18 years old or older,
  • Be a California resident,
  • Have a diagnosis from a primary physician stating the patient has an incurable and irreversible disease,
  • Diagnosis must also, within reasonable medical judgment, state the patient’s disease will result in death within 6 months,
  • Be able to make medical decisions for themselves as determined by health professionals,
  • Voluntarily request a prescription for an aid-in-dying drug without influence from others, and
  • Be able to self-administer the aid-in-dying drug (must be eaten, drank, or swallowed and cannot be administered via IV from a physician).

The law states the request must be made by the patient and the patient alone. A power of attorney, advance health care directive, conservator, health care agent, surrogate, or any other legally recognized health care provider will not suffice.  A request must be solely and directly made by the patient to his/her attending physician.  This should provide some sort of solace to those against these types of aid-in-dying laws, as this provision only helps ensure the decision is actually coming from a patient.  Even so, this isn’t enough for some.

Despite Strict Guidelines, Doctors Are Concerned Law is Too Vague

The group that brought the restraining order to suspend the law argued the definition of “terminally ill” within the Act was too vague and risks abuse of the law. Their primary argument rests on concern that the law allows coercion of terminally ill patients, but their suit alleges a whole slew of other ethical and procedural issues.

Patients that are given a 6-month prognosis sometimes make it way beyond that time frame and plaintiffs argue prognosticating a patient’s future is flawed, which suggests they believe this is a standard that shouldn’t be used when prescribing an aid-in-dying drug. Further, the plaintiffs argue, the drugs are unreliable and often can cause inhumane complications that can sometimes force physicians to administer a lethal injection and become a case of euthanasia.

On top of those arguments, the Act doesn’t require patients to administer the drug in the presence of a physician and it provides both civil and criminal immunity without requiring so little as a good faith standard that must be upheld on behalf of physicians. Nor does the Act require seeking consultation with a mental-health specialist unless the physician believes there’s a pre-existing mental disorder, all of which seem to be troublesome concerns.

While it’s certainly an extremely personal decision, the plaintiffs do have some good arguments. Protective measures, like requiring a consultation with a mental health professional, would only further ensure the law isn’t being abused.

How Do We Balance the Two Needs?

In recent years, the issue of death with dignity laws broke headline after headline when a young 29-year-old woman, Brittany Maynard, was diagnosed with a brain tumor.  Maynard was a California resident where, at the time, any type of death with dignity was not an option.  Her family made the decision to uproot their life to Oregon, where death with dignity is authorized.  Despite her illness, Maynard became the face of advocacy pushing for legislative change.  Maynard has since passed away, but her message remains.

Oregon, Vermont, Washington and Montana are among the 5 states that allow physician-assisted suicide, while at least 20 other states are considering some form of death with dignity legislative change. It’s a touchy subject and probably one both sides will never see eye-to-eye on.

Brock Turner’s Early Release Renews Mandatory Minimum Sentence Debate

Why do we have mandatory minimum sentences for certain drug offenses but not for crimes like rape? That’s the burning question in everyone’s mind in the wake of Brock Turner’s early release from prison.  I’m not sure anyone hasn’t heard the name Brock Turner. If you’re not familiar with the case though, Turner is the former Stanford student who was convicted for sexually assaulting an unconscious woman behind a dumpster.

Turner gained national attention because of the lenient sentence he received, presumably because of a biased notion that a Stanford athlete shouldn’t be punished as harshly as some every-day Joe. In his now infamous sentence, Judge Persky gave Turner such a light sentence because the judge felt, “A prison sentence would have a severe impact on him.”

Although he faced up to 10 years in prison, Turner was sentenced to only 6 months in jail and was released on good behavior after serving a mere 3 months. Many were appalled at the judge’s sentence but, because judges are given wide discretion when it comes to sentencing in the absence of a mandatory minimum law, he was within the boundaries of the law.

Mandatory Minimums Versus Judicial Discretion

California has since passed a bill, currently awaiting Governor Jerry Brown’s approval, that would institute a three-year mandatory minimum sentence for anyone convicted of penetrating an intoxicated or unconscious person, but that’s only in the wake of the Turner case. It doesn’t solve the issues surrounding other crimes that may warrant a similar minimum. Legislators have, in the past, expressed support for that very same judicial discretion they’re now wanting to take away.

While there’s pros and cons on each side, it’s hard for some to get past the inequities. Is it fair and just that some nonviolent drug offenders are serving more time than a sex offender?  Probably not. Brock Turner

Just to give some perspective, federal law mandates a minimum of a 5-year sentence for a conviction of selling 28 grams of crack cocaine. Here’s some more perspective—28 grams is equivalent to about an ounce.  There’s 16 ounces in a pound.  Certainly, we don’t want those drugs being sold on our streets, but I can’t fathom how that’s worse than rape.

Those against mandatory minimum sentences argue prison overcrowding is a huge problem. In California, for example, the average cost to incarcerate one person for a year is $64,000, which is more than what many Americans make in a year.  Further, opponents argue mandatory requirements lead to unfair and unjust prison sentences, as well as inequities in minimum sentencing compared to sentences that depend on judicial discretion.  The very same argument can be made, however, in favor of mandatory minimums because either option can create sentencing inequity.  This is easy to see in the cases of nonviolent drug offenders who are serving more time than a sexual offender.

While mass overcrowding is certainly an issue that should be addressed, it’s not a strong enough reason to forego mandatory minimums simply because it doesn’t outweigh letting potentially dangerous criminals out on the street. Personal bias, unfairly targeting minority groups, creating coercion, and unjust sentencing seem to be the better arguments from a moral standpoint.

At the same time, mandatory minimums may keep criminals off the street for lengthier periods, but recidivism rates are high and they do nothing to prevent other criminals from taking their place while they’re in jail.

Taking Away Judicial Discretion Only Puts Power into Another’s Hands

An important argument that often gets missed is that taking away a judge’s power to use discretion essentially puts sentencing power in the hands of someone else—the prosecutor, more specifically. It rings true that when mandatory minimum sentences are required, a prosecutor can essentially pick the sentence when they decide which charges to bring against a defendant. Sentencing isn’t a power that should belong in the hands of a partial charging party.  The state represents the people and they can always recommend a sentence, but a judge’s role is to be impartial, fair, unbiased and to ensure the laws are followed.

Then what do you do when the judge is biased and unfair? Some say the judge was most definitely unfair and biased in the Turner case.  Mandatory minimums could help eliminate any personal bias one may have, say, for example, towards a successful athlete from a prestigious school, but there’s pitfalls on both sides.

Again, it’s an ongoing debate that doesn’t seem to have an easy solution. Whether focusing efforts towards crime prevention all together is the answer is left to be decided, but it seems a change must come.

Racially-Themed Dorms Fair for All?

California State University of LA (CSULA), UC Davis, UC Berkeley, and University of Connecticut (UCONN) have all recently come under scrutiny due to their racially themed dorms.  The concern is that the themed living arrangements—targeted as they are at persons of color—represent a revived attempt at racial segregation. These colleges are far from alone in offering such housing. There are quite a few campuses that offer similar housing arrangements.

The many housing arrangements vary from sections of a dormitory hall reserved exclusively for African-American men (UCONN), to sections of a dormitory hall designed to be focused on respect for the cultures of persons of color (CSULA and UC Davis), to entire houses dedicated to respecting the culture of persons of color (UC Berkely).

Joining these housing arrangements is 100% voluntary. With the exception of the UCONN hall section, all of these housing arrangements are open to any who apply.  The hall sections are all within a fully integrated dorm.  Generally, they are all created with the goal of creating a more comfortable space for persons of color—free from micro-aggressions and bullying.  The exception to this is, again, UCONN’s attempt at themed housing, which has a stated goal of promoting higher retention and graduation rates among African-American men.

My colleague has recently written a truly excellent article, addressing whether or not these themed housing arrangements are, in fact, veiled racial segregation. It notes that racial discrimination is still an everyday experience for persons of color—providing a safe space from hate crimes and bullying is something to be lauded. It also determines, probably correctly, that these themed dorms are not unconstitutional segregation. Dorm 2

However, the possibility of segregation is an extremely dangerous one. UCONN’s African-American male exclusive dorm hall has already drawn complaints from the U.S. Commission on Civil Rights as beneficent racism.  Their complaints cite the words of Dr. Kenneth B. Clark, the psychiatrist whose testimony contributed to the U.S. Supreme Court striking down segregation in schools once and for all—the greatest triumph of white racism would be “to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.”

What are the potential dangers to minority students? What legal liability could the colleges implementing them may open themselves up to?

Segregation and Fair Housing Rules

Suffice it to say Supreme Court decisions and the Civil Rights Act of 1964 work together to make government and private acts of segregation illegal and unconstitutional today. However, despite being made unconstitutional over a half a century ago; segregation is still not exclusively a thing of the past.  With this in mind, the Fair Housing Act exists to prevent discrimination in housing—including in college dorms.

The Fair Housing Act prohibits, among other protected classes, race-based discrimination in housing by public or private actors. The Act protects against many types of discrimination, first and foremost refusal to rent or sell (or make available for rent or sale) a property to somebody based on a protected characteristic such as race. It also bars discriminating in terms of conditions rental or sale, misrepresenting availability of housing, or advertising for housing.  Fair housing claims also frequently arise out of discriminatory application processes.  The act also bars “steering,” or directing somebody to look in a specific place for housing based on a protected characteristic.

Even beyond all these protections provided by the Fair Housing Act, organizations which take grants from the federal government—such as every single university which has introduced racially-themed housing listed above—are held to an even higher standard by the U.S. Department of Housing and Urban Development (HUD). Just last year HUD published a ruled placing an obligation on those who take advantage of certain grants to affirmative further fair housing by taking “steps proactively to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities for all.”

What Does This Mean for Themed Dorms and the Universities that Offer Them?

As my colleague determined, these themed dorms are very unlikely to be actual segregation based on the facts in front of us. Just considering that they are open to all who apply by itself points heavily in this direction.  The only program that is actually exclusionary in any sense is the UCONN program that has come under fire—only serving men who identify as black.  Even then, the fact that participation is totally voluntary would undercut most arguments of segregation.  HUD standards explicitly state that the Fair Housing Act does not prevent people from living where they choose—it only prohibits “policies and actions by covered entities and individuals that deny choice or access to housing or opportunity through the segregation of persons protected by the Fair Housing Act.”

The most common complaint now is “reverse racism.” To be blunt, these housing arrangements do not represent discrimination against white people.  While race-based discrimination under the Fair Housing Act does indeed include discrimination against Caucasians, such claims are generally held to a higher evidentiary standard because, not surprisingly, discrimination against majority groups is much more uncommon.

These housing programs are usually open to all who apply and represent a very small percentage of the comparable housing readily available, often within the same dormitory hall. We know nothing of the application and acceptance process.  Even were potentially discriminatory practices to come to light, it seems unlikely that this housing would pose a constitutional issue.

As has been seen with affirmative action in the past—including in the realm of housing—providing opportunities based on race can be acceptable where the purpose behind the policy is to offset previous and ongoing racial discrimination—something that undeniably exists for minorities in the realm of housing.  In fact, under HUD guidelines one could even argue that universities are required to make such safe-space housing available.

When it comes to fair housing generally, the issue essentially comes down to the terms, cost, and quality of the housing they provide. While most of the housing is open to all, housing such as UCONN’s is especially vulnerable to suit if the housing provided is not of comparable quality with other dorm halls.  What’s more, universities will need to be careful about steering.  Even well intentioned prodding towards racially-themed housing may well leave them vulnerable to a lawsuit.

It is important to be wary of any housing program which limits its services to such a narrow group of minorities. While creating safe spaces is indeed to be congratulated, it is crucial to keep an eye on the quality of the services and housing these programs offer.  It is a small step for such a program to move from safe spaces to segregation.

Black Priority Housing: Safe Haven or Return to Separate but Equal?

With most Universities back in session, many college students are settling into their housing, but the months leading up to school may have been riddled with anxiety about student housing.

On-campus housing is offered at most four-year universities. Campus housing is student housing that is owned and controlled by the college campus. It offers several benefits, including an environment where students can meet and befriend one another, on-campus housing (often within walking distance to classes), and may be cheaper than living off-campus.

California State University, Los Angeles (“CSULA”) is the most recent university to offer priority on-campus housing to their African American students. The housing is in response to demands from the campus’ black students who say they experienced insensitive remarks and “macroaggressions” (daily verbal, behavioral, or environmental indignities such as racial slights or insults) from white classmates. University of Connecticut, UC Davis and UC Berkeley already offer similar housing to their black students. Dorm

Proponents of the housing believe students can draw on their common experiences to support one another in black housing. Non-black students are not barred from applying for the housing.

While it is certainly admirable to enact housing regulations in an attempt to make black students feel comfortable on their own campus, the housing can be said to segregate black students. Are CSULA’s good intentions unintentionally contributing to the underlying problem of racism?

History of Segregation

Without going into the details of the horrific way our country treated blacks historically, African Americans have experienced extreme mistreatment, oppression, and inequality based entirely on their race.

In 1896, the pivotal constitutional law case of Plessy v. Ferguson upheld a legal doctrine that would be known as “separate but equal.” Under this doctrine, accommodations for blacks and whites could be separate but were for all intents and purposes supposed to be “equal.” They were not. Blacks had inferior everything – bathrooms, water fountains, schooling, modes of transportation, etc. Things were labeled “blacks” versus “whites” to designate who could use what. It was not a proud time in our history.

It wasn’t until 1954 that the “separate but equal” doctrine was overturned by the Supreme Court case of Brown v. Board of Education. The Court concluded that state laws establishing separate public schools for black and white students was unconstitutional, thereby overturning Plessy v. Ferguson. The case was one of the first acts of the Civil Rights Movement.

We have made great strides since the days of “separate but equal,” going so far as to elect our first African American president in 2008, but we still have a ways to go. Nothing exemplifies the disparity in treatment more than the recent “Black Lives Matter” movement. The movement was created in 2012 in response to Trayvon Martin’s murderer, George Zimmerman, being acquitted for his crime. Since then, numerous African Americans have been killed at the hands of citizen and police who have not been held accountable for their actions.

Will the Housing Stay?

Given the historical context and how many years it took to achieve desegregation, does the CSULA housing revert back to the days of segregation?

Probably not. Themed housing or student communities focusing on cultural identity is not new to college campuses. On-campus housing is offered to students based on their gender. Further, some colleges have “Common Interest Communities,” which provide students the opportunity to live in a space around a common interest, such as a social group, specific major or charity. None of these on-campus housing initiatives have been deemed inappropriate or criticized as a way to foster a culture of segregation within the school.

It is also important to note that CSULA is not the first campus to create black housing for its black students. The housing does not discriminate against peers who are not black, but wish to live in the designated housing. Finally, the housing was a direct result of requests from CSULA’s black students, who felt that some of their white counterparts were acting aggressively toward them.

And we mustn’t forget the case of the freshman African American student, Donald Williams Jr., who was assigned a dormitory suite with seven other suitemates at San Jose State in California. Williams was targeted in a number of hijinks as the only black student in the suite, including his roommates sneaking up behind him to place a U-shaped bike lock around his neck, hanging a Confederate flag in the common room, writing racial slurs on the dry-erase board in the common room, and calling him names such as “three-fifths” and “fraction.” Three of the white roommates were found guilty of a misdemeanor against Williams for bullying, but not for a hate crime.

If CSULA’s housing can prevent bullying or the commission of a hate crime, then they should be welcome at all college campuses.

No Thank You: Trademarking Common Phrases

Thanking your customers seems like a pretty important business practice. After all, what business could exist without them? Citigroup Inc. may have a leg up on the competition, because, according to them, their trademark on the phrase “thankyou” prevents other from using “thank you” or even “thanks” in their marks.

Citibank has had the phrase “thankyou” protected through several different trademarks since 2004. It uses the marks as part of a loyalty and rewards program it offers its customers. On June 2, AT&T started using the term “AT&T thanks” as part of its own rewards program. In response, Citibank filed suit. They argue AT&T’s use will confuse Citibank consumers given how long they’ve been using the “thankyou” mark. They say this is especially true because AT&T and Citibank have credit cards that are branded by both companies.

AT&T has responded to this lawsuit, saying “This may come as a surprise to Citigroup, but the law does not allow one company to own the word ‘thanks’ …we’re going to continue to say thanks to our customers.” This statement is a bit ironic, considering that AT&T recently got a trademark on their “Thanks” and “AT&T Thanks” marketing campaigns. However, understanding how trademarks work may clarify their statements a bit.

Trademarking Miss Manners?

Citibank’s lawsuit claims that the AT&T mark infringes their own “thankyou” mark. They are asking the court to put a stop to AT&T’s marketing campaign and order AT&T to pay them an unspecified amount of damages. At first glance, this looks patently ridiculous. The idea of one company controlling the use of something as basic as saying “thank you” seems impossible. However, the legal realities of the situation may surprise you. Thank You 2

Trademarks provide protection to marks and logos with the goal of preventing others from freeriding on the good will you build around a brand. They can be a word, phrase, symbol, or design that identifies the source of goods or services.

To be clear, trademark doesn’t prevent you from using these phrases in your day to day life. Having a trademark on a word or phrase also doesn’t necessarily lock everybody else out of the mark. A trademark is specific to the genre of product you actually make and the places you actually sell or may sell it.  For instance, there are six different companies that have a trademark on the word “trademark.” However, registering a trademark is not the same as having an enforceable trademark. It’s fairly common for trademarks to be taken to court only to be rendered invalid.

Where a competitor uses an exact replica of your mark, there is a pretty open and shut case of trademark infringement so long as you have registered a valid trademark. On the other hand, when two marks are similar, the trademark infringement analysis gets a bit more complicated. The focus becomes how likely it is that people who would buy your products might confuse the alleged infringer’s products for your own. The more similar the marks are in appearance, and the more similar the products the marks are on, the easier it is to establish confusion.

Another important element in a trademark infringement case is the strength and nature of the infringed mark.   The strength of the mark, how well known the mark is, changes how easily somebody might be confused. In analyzing the nature of a mark, the courts look to how creative it is. A mark that is arbitrarily related to the product it is associated with, or has a totally made up name, would receive the strongest level of protection. A mark that suggests the product would receive a lower level of protection, while a mark that describes the product could only receive protection after the public begins associating the mark with the public. Finally, a mark that actual defines the product gets no protection whatsoever.

Common phrases are not outright barred from receiving protection. In fact, they receive the same analysis that any other mark might—looking at whether they are arbitrary, fanciful, descriptive, or generic in relation to the product they are associated with. This being said, after the Boston Marathon bombing in 2014, the USPTO refused to give trademarks to the phrase “Boston Strong.” The thought process behind this was that it was so commonly used in day to day speech, from so many different sources, that the public couldn’t identify the phrase with one business.

Citibank’s Case

In a rewards program, with the goal of thanking customers, “thankyou” is likely descriptive at best. What’s more, while Citibank has used thank you for many years, it seems unlikely that they are what the average consumer associates with the phrase. What’s more, if the phrase “Boston Strong” was so integrated into the public consciousness as to be ineligible for trademark, then the phrase thank you would almost certainly raise the same issues.

Even if the trademark can receive protection, proving confusion seems extremely difficult here. A large part of a trademark infringement claim is establishing that consumers will confused as to the source of goods. The AT&T mark has “AT&T” right in the name, it seems unlikely somebody would think it’s coming out of Citimark.

However, this is not an open and shut case—despite how ridiculous it seems. The fact that Citigroup’s marks are registered gives them a presumption of validity. In other words, it will be AT&T who needs to prove that the “thankyou” marks are invalid. What’s more, the fact that AT&T and Citigroup have done business together—combining their branding on credit cards—could contribute to a consumer being confused.

Frankly, this case is a silly one. However, the fact that the U.S. Trademark and Patent Office has granted Citimark’s trademarks—and that they have used them for so long—makes this more of an uphill battle for AT&T then you would expect. As this case progresses, it has a chance to create case law redefining how trademark deals with especially common phrases.



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