Black Metropolis Research Consortium
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On Prisoners, Politics, and the Administration of Criminal Justice: Professor Rachel Barkow
No full textCorruption, Equality, and Campaign Finance Reform in the Second Gilded Age
No full textProfessor Genevieve Lakier, the Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, talks about Professor David Stauss\u27s influential argument about campaign finance law and its relationship to corruption and equalit
The Missing Indian Affairs Clause
Get PDFCongressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution. Based on archival and forensic research, this Article concludes that the Constitution is missing an Indian Affairs Clause first by mistake, then by design. The five-member Committee of Detail, tasked by the Constitutional Convention with producing a working draft of the Constitution, seems to have accidentally omitted an Indian Affairs Clause. Inclusion of a congressional power over Indian trade and affairs was compelled by its long prehistory and a unanimous vote by the Convention, and John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, James Madison caught the mistake, and the Committee of Detail deigned to address its lapse by importing “Indian Tribes” into the Commerce Clause but refused to restore power over “Indian affairs,” converting an innocent mistake into a meaningful omission. None thereafter seemed to notice the disappearance of the Indian affairs power, and the omission has caused two centuries of confusion to the detriment of the tribes
Trademark Law Pluralism
Get PDFIn recent years, trademark scholars have come to recognize that the supply of words, sounds, and symbols available to designate new goods and services is an exhaustible resource. In certain sectors, the most common English words and syllables and the most common U.S. surnames are almost all claimed as marks. Some firms have responded by resorting to ever-more-unusual brand names so as to avoid trademark disputes. Scholars have proposed solutions ranging from raising registration fees to narrowing the scope of trademark rights.
In this Article, we frame trademark law’s governance of “linguistic space” as a balancing act between what we term proximity costs and distance costs. Proximity costs, the conventional focus of trademark doctrine, occur when different firms use marks that are close in linguistic space—think Zantac (for heartburn) versus Xanax (for anxiety). Distance costs arise when firms use marks that are difficult to remember because of their length or their far remove from the core of semantic signifiers familiar to most consumers—staying in the medicine cabinet, think Valsartan (for high blood pressure) or Namzaric (for memory loss). Although conceptually different, proximity costs and distance costs both create similar practical problems. Both make it more difficult for consumers to purchase and communicate about brands, and both make it harder for new entrants to establish and defend their market share.
Our proximity-distance framing has conceptual payoffs for trademark law. We explain why responses to the crowding of linguistic space internal to trademark law cannot escape some tradeoff between proximity costs and distance costs. Allowing mark holders to control a larger swath of linguistic space reduces proximity costs, but at the expense of pushing other firms to the periphery of linguistic space, increasing distance costs. Similarly, weakening trademark protection to allow more firms to locate their marks in the linguistic core reduces distance costs, but with some in-crease in proximity costs. Our framing thus shows how the policy problems of trade-mark law parallel the challenges of managing scarcity in real property. As we draw inspiration from solutions to urban congestion and sprawl, we suggest how non-trademark interventions can lead to more efficient use of linguistic space, promoting product identification without raising proximity or distance costs. Our approach thus points to the possibility of using a plurality of legal and policy tools to address the proximity-distance dilemma at trademark law’s heart. And by relieving some of the pressure on trademark law to resolve the proximity-distance dilemma on its own, our approach frees trademark law to pursue a wider range of goals and to vindicate a broader variety of values
Intellectual Property Norms in American Theater
Get PDFWhen a musical opens on Broadway, what aspects of the production are covered by copyright’s protection of “dramatic works”? The script clearly is (although policing infringement is nigh impossible), but courts have yet to address whether the work of the director or designers should be afforded copyright protections. Nonetheless, within the close-knit professional New York theater community, rarely do artists significantly copy the work of others. This Comment argues that this is because the community has developed its own welfare-maximizing norms to address intellectual property. However, looking at larger cross-sections of American theater (such as all professional theaters independent of location or theaters of all professional statuses within a geographic area), these norms are less consistently followed.
This Comment defines two intellectual property norms in the professional New York theater community: one protecting the intent of playwrights and another protecting the work of directors and designers. The Comment then argues that, although these norms are less efficient in looser-knit theater communities, they are welfare maximizing within the professional New York theater community
Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
Get PDFIn considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than the Due Process Clause, is the appropriate framework for certain forms of procedure. Under the Takings Clause, we can recognize the judiciary’s authority to use procedure for substantive ends while also offering “just compensation” to those unduly affected.
In contending with the practical effects of “judicial-procedure takings,” this Comment argues that we can supplement the existing takings framework in two ways. First, we can look to intent: where the government intends to single out a particular set of property owners to bear a public burden, that should weigh in favor of finding a taking. Second, we can refine our analysis by focusing on whether the act has an element of aggregation. Where the court has combined discrete elements to create a result that is greater than the sum of its parts, that too should weigh in favor of a taking. By supplementing the existing test, we can better identify procedures that are functionally equivalent to traditional takings— without swallowing up the courts in the process
Insolvency Institutions, Pledgeable Assets, and Efficiency
No full textThis paper models two insolvency institutions—bankruptcy and foreclosure—that financially distressed firms may use and analyzes their effects on firms’ ex ante capital and asset structure decisions. A firm chooses between secured debt (which is easy to foreclose on) and unsecured debt (which is hard to foreclose on and more likely to lead to bankruptcy) according to the trade-off between two inefficiency costs, those from inefficient liquidations and those from productive inefficiencies. This trade-off occurs because firms may overinvest in pledgeable assets to increase their assets’ liquidation value, which reduces funding costs. This overinvestment generates productive inefficiencies but reduces the cost of inefficient liquidations. As foreclosure (a more creditor-friendly procedure than bankruptcy) has a better liquidation technology, firms have incentives to overinvest in pledgeable assets when they expect to use it in the case of default, at the expense of productive inefficiencies and more inefficient liquidations than under bankruptcy