Establishment Clause violation and abuse

Case 1.3 Trunk v. City of San Diego (pp.14)

ISSUE: Did a forty-foot tall cross in the middle of public war memorial violate the establishment clause? DECISION: Anyway to confuse things, in the line of Establishment Clause statute, the showcase of a crèche on open property does not generally pass on such a message. The Christmas showcase supported by the City of Pawtucket, Rhode Island, for instance, included both a crèche and common adornments, for example, “a Santa Claus house, reindeer pulling Santa’s sleigh, red striped posts, a Christmas tree, carolers,[and] set pattern figures” of creatures and a jokester. Lynch, 465 U.s. at 671. Given the vicinity of these mainstream components, “[t]he clear motivation behind incorporating the crèche in the bigger showcase was not advancement of the religious substance of the crèche yet festival of general society occasion through its conventional images.” Id. at 691.

REASON: here is little uncertainty that [a state] would abuse the Establishment Clause in the event that it permitted a private gathering to place a lasting unadorned twelve-foot cross on open property without any logical or authentic components that served to secularize the message passed on by such a presentation.

We don’t question or location the legality of the crosses at Arlington Cemetery and Gettysburg. While we finish up on this record that the Latin cross is a partisan image, numerous landmarks that incorporate partisan images don’t have the essential impact of progressing religion. See Part Iii.c.1, infra. Our holding that the vicinity of the Mount Soledad Cross on government area contradicts the Establishment Clause is determined by the history, setting, and appearance of that Cross-emphasizes that, as we talk about underneath, strongly recognize the Cross from other war dedications containing religious images.

Question: What if the facts were Different? Suppose that the cross was only six feet tall and that the memorial had not had a long history of religious use. Would the outcome have been different? Why or why not?

Answer: The Latin cross, since a long time ago recognized as a superior Christian image, stays, as a towering forty-three foot structure, the prevailing peculiarity of the Memorial. As we closed the last time we considered this matter, though under the California Constitution, “[this] partisan war remembrance conveys a naturally religious message and makes an appearance of respecting just those servicemen of that specific religion.” Ellis v. City of La Mesa, 990 F.2d 1518, 1527 (ninth Cir.1993). At the same time we return to the inquiry for this situation on the grounds that the Cross, initially on city area, was exchanged to the central government through a 2006 congressional activity. This suit obliges us to consider whether the Memorial, with the Cross as its characterizing gimmick, disregards the First Amendment to the government Constitution.

Case 4.3 Wolf v. Don Dingmann Construction, Inc (pp. 81)

ISSUE: Did Wolf know about the risks associated with the construction site and voluntarily assume the risk of falling through a hole in the floor?

DECISION: Essential presumption of danger totally bars an offended party’s recuperation on the grounds that it nullifies a litigant’s obligation of consideration. Schneider v. Erickson, 654 N.w.2d 144, 148 (Minn.app.2002). Optional suspicion of danger constitutes a manifestation of contributory carelessness that allocates blame between the gatherings. Id. An offended party attempts essential suspicion of danger when, with learning and valuation for the danger, the offended party willfully participates in that hazard, as opposed to staying away from it. Olson v.hansen, 299 Minn. 39, 43-44, 216 N.w.2d 124, 127 (1974). An offended party embraces auxiliary supposition of danger when, under the same circumstances, the offended party does not show agree to ease the respondent of his obligation. Armstrong v. Mailand, 284 N.w.2d 343, 351 (Minn.1979).

A suspicion of-danger investigation is focused around the offended party’s subjective information and valuation for the danger. Parness v. Econ. Lab., Inc., 284 Minn. 381, 385, 170 N.w.2d 554, 557 (1969);  see likewise Magnuson v. Rupp Mfg., Inc., 285 Minn. 32, 48 n.6, 171 N.w.2d 201, 211 n.6 (1969) (Rogosheske, J., agreeing) (assumption of risk) is focused around a subjective investigation and may be discovered at whatever point the offended party (1) had learning of the danger, (2) admired the danger, and (3) had a decision to dodge the danger and deliberately decided to risk it.”). Wolf’s wounds emerged from a danger intrinsic to a lifted development site, in particular, the danger of falling. See Goodwin v. Legionville Sch. Security Patrol Training Ctr., 422 N.w.2d 46, 50 (Minn.app.1988) (applying essential supposition of-danger principle in light of the fact that tumbling off a top is a well-known coincidental danger of material), audit denied (Minn. June 23, 1988). Regardless of the possibility that the subcontractor was careless by leaving the opening revealed or neglecting to erect guardrails, Wolf’s recuperation is lawfully banished on the grounds that essential suspicion of danger is pertinent when a litigant participates in carelessness that is self-evident.

REASON: Relying on Gilmore v. Walgreen Co., Wolf contends that, in light of the fact that there is confirmation that he was occupied and may have overlooked that the opening was there, such preoccupation could have been foreseen. See 759 N.w.2d 433, 437 (Minn.app.2009) (holding that owner may be at risk for damages coming about because of open and evident peril if holder sensibly could suspect that harmed gathering could be diverted from the threat), audit denied

Question: What if the facts were Different? Suppose the person was not adult like Wolf, it was child under 18 years of age. Should Court apply the Doctrine of Assumption of Risk to Children?

Answer: That outline judgment likewise is legitimate on the exchange ground that, in light of the fact that the peril was open and clear to Wolf, the builders did not owe Wolf an obligation under a premises-risk hypothesis of recuperation

Case 5.1 Coca Cola Co. v. Koke Co. of America

Issue: Did the marketing of product called Koke and Dope by the Koke Co. of America and other firms constitute an unauthorized use of Coca-Cola’s Trademark?

DECISION: The defense that the offended party’s trademark and ads pass on false representations to general society manages however a thin ground for denying injunctive alleviation against an infringer who tries to harvest the focal points of the offended party’s goodwill, and the resistance must be painstakingly examined.

REASON: A picture of coca leaves and cola nut on the marks, and containing certain safe extractives from coca leave and cola nut, guaranteed to include flavor, with some caffeine from the nuts and more superadded, initially contained likewise some cocaine got from the coca leave, and was once publicized an a “perfect nerve tonic and stimulant,” in any case, much sooner than this suit started, cocaine was disposed of, the article was promoted and sold as a refreshment just, free from cocaine, and, for people in general by and large, the name came to imply the drink itself, the offended party’s item, instead of its fixings

WHAT IF THE FACTS WERE DIFFERENT? Suppose that Coca-Cola had been trying to make the public believe that its product contained cocaine. Would the result in the case likely have been different? Explain your answer.

Answer: Proceeded with utilization of the name with the picture was not an extortion denying the offended party of the right to order encroachment and out of line rivalry in offering a like readiness under the name of “cocaine,” yet that the directive ought not control utilization of the name “Dope,” a featureless word not particularly suggestive of “Coca Cola” by likeness or being used, nor disallow assembling and offer of the item, including the coloring matter.

 

Bibliography

Commissioners, C. C., Club, D. L. S., Horseman, G. B., Commissioners, I. C., District, I. F., Board, J. C. W., … & Ard, R. Bridger Mountain Log Homes, Inc. Campfire Boys and Girls-Ponderosa Council Cliff Lake Lodge Curt’s Guide Service. UCRB, 12.

Lunsford Jr, J. R. (1969). Trademarks: Prestige, Practice and Protection. Ga. L. Rev.4, 322.


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