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Navigating Trademark Law\u27s Empirical Turn
Full text linkFrom neuroscience to linguistic databases to artificial intelligence, new technologies point to a potential sea change in our understanding of the consumer. The point of this Article is to sound a note of caution about enhanced empirical insight into shoppers’ minds. A completely empirical approach to trademark law would be undesirable, but so would blinding our eyes to better evidence of consumer perception. The key is a considered balance of trademark law’s descriptive aspects with its prescriptive ones. The Article provides some suggestions—including crafting avenues for maintaining debate about normative guideposts, maintaining epistemic humility about predicting human behavior, and borrowing non-empirical doctrines from other bodies of law—for successfully maintaining this balance in the face of trademark’s empirical turn
On Preparing the Soil for Rain
Full text linkThis Essay examines several possibilities for improving our thinking about the vexing, multifaceted problem of revitalizing languishing regions of the United States. Its jumping-off point is an important work of socio-economiclegal history: While Waiting for Rain: Community, Economy, and Law in a Time of Change, by John Henry Schlegel. The book seeks to understand the steady decline of US regional economies, particularly Buffalo, following a period of relatively high prosperity from World War II through the 1950s; its tandem question is how those economies might be revived. Based on a very full and rich exposition, Schlegel argues that, like farmers who are unable to command rain, human collectivities are unable to take specific actions that will bring about economic development. At best, they can try to minimize three ‘transactions of decline’ defined by Jane Jacobs and be prepared to take advantage of rain, should it come. I argue that Schlegel under-develops the implications of several of his own insights, particularly regarding the roles of economic dependency, political fragmentation, and local culture in inhibiting development. I then discuss possible ways of using those insights to ‘prepare the soil for rain’ and raise the possibility of folding the idea of economic development into that of resilience. I conclude by discussing how and whether these suggestions could be further developed in social practice
Brief Amicus Curiae of Professor Matthew Steilen in Support of Petitioners, Tiktok Inc. v. Garland (D.C. Cir. 2024) (No. 24-1113)
Full text linkAmazon’s Dirty Little Secret
Full text linkYou need new earbuds because one of yours just went missing. You log onto Amazon and scroll through the endless array of options. You finally select a pair “Sold by” Amazon and click “Buy Now.” Amazon promises to have the earbuds to you tomorrow. Have you ever wondered how it’s possible for Amazon to pull off this Santa-like feat? It’s because of a little-known practice called commingling. Commingling gets you your earbuds in near record time. But commingling could also result in your getting earbuds that are duds—or, worse yet, that malfunction and cause ear damage.
Commingling means that the same goods from different sellers are stored together and then sold interchangeably. The theory is great, so long as these goods are truly interchangeable. All it takes, however, is for some bad actors to co-opt the commingled supply chain and those goods are no longer interchangeable. Some goods are real. Some are fake. Some are junk. Some are dangerous. When you order something on Amazon, you don’t know what you’re going to get. You are told that goods are “Sold by” Amazon, but the actual goods you get may be from a shady third-party seller based in Shenzhen, China.
How can Amazon do this and not tell its customers? Good question. In this Article, I argue that Amazon should no longer be permitted to get away with its secret practice of commingling. Telling a buyer that they are getting goods from Seller A and then giving them goods from Seller B is deceptive—plain and simple. The law should not countenance such a practice. At the very least, Amazon should be required to disclose its practice of commingling before a buyer makes a purchase. It’s time for Amazon’s dirty little secret to be exposed and to let consumers decide for themselves whether they want to continue buying from, or on, Amazon
When “The Right to Life” Forgoes Quality of Life: Examining the Public Policy Impacts of Mississippi’s Abortion Ban on Women Post-Dobbs
Full text linkOn June 24, 2022, the Supreme Court eliminated the right to abortion. Its ruling in Dobbs v. Jackson Women’s Health Org. overturned Roe v. Wade and was the culmination of a decades-long attack on abortion rights and accessibility. Without a federal abortion standard, it is now up to each state to determine women’s access to abortion. This system will produce a tiered structure of abortion access, causing significant health and socioeconomic burdens for women generally and reinforcing fundamental social inequities. Women of means will find ways around the Dobbs decision; others, who lack finances, childcare, or the ability to travel for services, will not be so fortunate. In this new reality, low-income women and women of color will suffer the most.
This article begins by offering contextual backgrounds to three seminal cases in the abortion rights movement. Part II examines how Mississippi’s near total abortion ban will cause unique and painful harm to its marginalized women and will have negative public policy outcomes generally. Finally, Part III discusses beneficial policy initiatives in the post-Roe landscape
