Sunday, 16 October 2005
115 Yale L.J. 227 (2005)
In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video games"--refers to video games created by companies to promote their products or brand. The use of advergames reflects a broader trend in marketing practices away from segmented advertisements and toward advertising messages that are integrated into what have traditionally been viewed as forms of highly protected noncommercial speech. As the media landscape becomes increasingly filled with advertising hybrids--types of media that are essentially advertisements but are presented as, for example, movies, books, or songs--courts will have to decide how regulations of these hybrids should be evaluated.
This Comment explores that issue by analyzing advergames used to promote unhealthy food to children. Because the use of these advergames has already prompted calls for government regulation, this context provides an ideal vehicle for analyzing a vital but unexplored legal question: What First Amendment standard should apply to regulations of advergames? To address this question, this Comment will examine two highly unsettled areas of First Amendment law: the appropriate level of scrutiny for evaluating regulations of video games, on the one hand, and commercial speech, on the other. Applying these aspects of First Amendment doctrine to restrictions on advergames, this Comment proposes a general framework for how courts should review First Amendment challenges to regulations of advertising hybrids.
Part I explains the nature of advergames, why they have become central to advertising and marketing practices (including those for unhealthy food aimed at children), and what types of regulation may soon be applied to them. Part II examines a potentially major obstacle to the regulation of advergames: the line of recent federal cases that apply heightened First Amendment protection to video games. This Comment argues that these cases do not present an insurmountable barrier to the regulation of advergames because they do not hold that video games are a per se category of highly protected speech. Rather, properly read, these cases hold that video games are considered highly protected speech for the purposes of First Amendment analysis only if they have certain characteristics such as narratives, themes, and sophisticated visual and auditory elements. Because most, if not all, existing advergames do not possess these characteristics, this Comment concludes that they do not qualify for the heightened First Amendment protection given to movies, books, and some video games. As a result, Part III asserts that regulations of advergames should be assessed using the less restrictive standards for evaluating limitations on commercial speech, under which it would be possible for the government to regulate the use of advergames that promote unhealthy food to children. The Conclusion then discusses the broader implications of this argument for other types of advertising hybrids.
Sunday, 16 October 2005
115 Yale L.J. 237 (2005)
Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York clinic mistakenly implanted one woman's embryos in another's uterus. A Florida clinic implanted a woman's embryos after possibly exposing them to Mad Cow Disease. Nonetheless, these plaintiffs, along with others like them, lost--not before juries and not because their doctors were careful, but because their claims were adjudged legally incognizable. Their claims failed because the law lacks a category of injury fitted to the harm parents and prospective parents endure when IVF goes wrong. Put another way, of a tort's four elements (duty, breach, causation, injury), it is with the last--injury--that existing law falls short of the demands of the new technology.
What is needed, then, if IVF plaintiffs are to recover, is a new category of injury--"procreative injury"--based on the legal recognition of the human interest in procreation. I will argue that tort law should recognize and protect this procreative interest. In practice, the right to have this procreative interest protected would be the basis for a new cause of action. Call it the tort of "reprogenetic malpractice" : Where a doctor undertakes a duty to care for a patient's procreative interest, and negligently breaches that duty so as to cause the patient procreative injury, the law should provide a remedy.
A word is needed about why the IVF context is important--why the "embryo switching," "wrong sperm," and other cases discussed below are more than isolated curiosities. The extra-corporeal manipulation of gametes and embryos is the first, indispensable step in genetic engineering, genetic screening, embryonic stem cell research, the creation of human-animal hybrids and chimeras, certain forms of sex selection, and human cloning. Consequently, IVF doctors and clinics are the gatekeepers to these much-publicized activities at the border of medicine, research biology, genetics, and eugenics. And individual IVF-related injuries, even if they are rare now, are not going to stay rare for long. The field is young, large, growing, prone to experimentation, and relatively unregulated. With no theory of rights fitted out for IVF, tort law is trailing the new technology, unprepared to perform either of its two functions: individual justice or social regulation.
Sunday, 16 October 2005
115 Yale L.J. 247 (2005)
Amid the controversy surrounding the recently enacted Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (2005 Act), few commentators have focused on the Act's provisions designed to enhance the protection of "support creditors"--a class of creditors consisting mostly of divorcées and single mothers who are owed child support, alimony, or other maintenance but whose former partners have declared bankruptcy. This Comment critiques the recent revisions to the Bankruptcy Code concerning support creditors and concludes that Congress must do more if it wishes to provide meaningful assistance to this vulnerable group.
Proponents of the 2005 Act point to its assignment of higher priority status for matured support claims as evidence of the Act's progressive character. Yet this measure--which bumps support creditors higher up in the queue among other unsecured claimants during liquidation--has little practical value in the vast majority of cases, in which secured creditors' claims exceed the total value of the debtor's assets, leaving nothing for "priority" creditors of any kind. As one commentator quipped, the bankruptcy reform puts support creditors "first in line to receive nothing."
A more important but less widely perceived consequence of the 2005 Act is that it indirectly jeopardizes support creditors by increasing competition for scarce postbankruptcy resources. Whereas support creditors once occupied a privileged position as one of the few classes of creditors with "nondischargeable" claims, the 2005 Act allows certain lenders, such as commercial creditors, to more easily pursue their claims beyond the point of bankruptcy, pitting these lenders against support creditors in an unstructured battle for the debtor's future income and assets. Because support creditors are far less adept than credit card companies at recovering debts in this unregulated environment, the 2005 Act effectively reduces support creditors' chances of receiving much-needed compensation.
To remedy this problem, I suggest that Congress modify the Bankruptcy Code in three ways. First, Congress should create a statutory hierarchy among nondischargeable claims, with the claims of support creditors taking precedence over those of other unsecured creditors. By establishing a priority system for nondischargeable claims akin to that which currently operates when dividing up the bankruptcy estate, Congress would allay well-founded fears that credit card companies will crowd out vulnerable child support and alimony recipients in the race to recover against the debtor's postbankruptcy assets.
Second, Congress should amend the Bankruptcy Code to include a "springing lien"--a device that automatically grants support creditors the right of first access to a debtor's future income. Such an innovation would prevent commercial lenders from leapfrogging ahead of support creditors by obtaining wage garnishments, a form of secured claim.
Third, Congress should prevent all creditors with nondischargeable claims from claiming against the debtor's future income until any ongoing support-related obligations have been satisfied. This reform would ensure that before paying any outstanding debts--including support-related arrears--debtors would make allowance for their children's and former partners' current expenses.