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Fixing Incontestability: The Next Frontier?
Get PDFIncontestability is a nearly unique feature of American trademark law, with a unique American implementation. The concept of incontestability allows a trademark registrant to overcome arguments that a symbol is merely descriptive of features or qualities of the registrant’s goods or services—for example, “Juicy” for apples. Incontestability provides a nearly irrebuttable presumption of trademark meaning, which is a powerful tool for trademark owners. Unfortunately, incontestability is not granted as carefully as its power would counsel. Courts may misunderstand either the prerequisites for, or the meaning of incontestability, allowing trademark claimants to assert rights that they don’t actually have
Incontestability needs clearer signals about what it is and when it is available. In the absence of serious substantive examination of incontestability at the PTO—which seems unlikely to materialize any time soon—changes designed to increase the salience of incontestability’s requirements to filers and to courts could provide some protection against wrongful assertions. Incontestability can only serve the trademark system if it is granted properly and consistently
A Hobbesian Bundle of Lockean Sticks: The Property Rights Legacy of Justice Scalia
Get PDFNo modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation
The House GOP Blueprint Can Be Drafted to Comply with WTO Rules
No full textThe House GOP Blueprint can be modified to comply with the United States’ international trade obligations. This paper presents two alternative approaches that avoid the key WTO discrimination and subsidy issues often raised in discussions of destination-based cash flow tax proposals
Using the Federal Public Trust Doctrine to Fill Gaps in the Legal Systems Protecting Migrating Wildlife from the Effects of Climate Change
Get PDFNot unlike before the biblical flood, the world stands on the brink of catastrophe awaiting rescue by a virtual ark. The most vulnerable to this looming catastrophe are the world’s wildlife. Changes in global temperature and precipitation as well as sea level rise and acidification of the ocean are already affecting wildlife by limiting the availability and quality of habitat and the abundance of prey, and by increasing predation and disease. Sea level rise and unstable storm patterns threaten coastal wildlife, while changing precipitation and temperature patterns are drying out habitat, making some habitat more susceptible to wildfires, and other habitat too cold or too hot. These weather changes are creating pressure on wildlife to move from the increasingly inhospitable places they currently occupy to more suitable locations. As wildlife move, human obstacles make their journey harder. Neither federal laws nor private land protection mechanisms, like conservation easements or land trusts, have sufficient elasticity to protect migrating wildlife from interference during their journey to more suitable habitat. This Article’s supposition is that unless flexibility can be found in either public or private law to protect wildlife as it moves, many species of wildlife may not survive. The Article examines how law might be used to protect shifting wildlife habitat needs when it is not known when and where those new needs will arise
Why New Corporate Law Arises: Implications for the 21st Century
Get PDFThe corporate governance landscape is much different than a generation ago. Independent directors now hold a great majority of all board seats, institutional shareholders hold a supermajority of all shares in public corporations, and activist shareholders have become a recurring player in entity governance. In turn, other corporate stakeholders express increasing concern about shareholders’ use of their power for selfish reasons and the perceived pernicious impact of shareholder wealth maximization as a guide for corporate law. This chapter, part of a book on “The Corporate Contract in Changing Times” asks: Why does corporate law change and how it might change now?
Corporate law changed regularly in the first half of our country’s history. A series of innovations followed one after another during the nineteenth century—limited liability; general incorporation statutes; a strong shift to director-centric corporate governance; authorization of corporations holding stock in other corporations; and the disappearance of ultra vires and other limits on corporate behavior. By the arrival of the twentieth century all the key economic elements of the modern corporation were in view and corporate law settled into a stable pattern we still see today. State law abandoned its prior regulatory approach and its continual change in favor of a director-centric structure with expansive room for private ordering that has remained remarkably stable. Federal law stepped in to restrain economic concentration (antitrust law), to protect employees and consumers against corporate power (done by industry regulation, employment and consumer laws not corporate governance), to limit corporate political contributions, and to make recurring, if sporadic and non-comprehensive, efforts to enhance the role of shareholders against managers.
This chapter examines this history of change in corporate law in America, the dramatic and abrupt shift in the focus of state corporate law visible in last decade or so of the nineteenth century, the interactive pattern of state and federal law that has grown up over the second half of the country’s history and prominent theories explaining what leads to corporate law change. Together these various strands suggest there will be no fundamental change in state corporate law even in this time of visible stress to the now classic structure. Changes that we see is more likely to come from federal law or, as has been most visible in recent times, because of market and technological-driven changes outside of law
Who Cares About Islamic Law?
Get PDFThe legal transplant in the Arab world, perhaps even in the Islamic world writ large, hasn’t had much luck by way of close study in US legal academia. Compared to its scholarly treatment in other non-Western contexts, such as Latin America and East Asia, the absence is glaring. This was not for want of scholarly interest in law in the Arab/Islamic world. Much has been published on Arab constitutions for instance, and you’ve had a few speakers in this lecture series, opine on the topic. Nor has there been lack of scholarly interest in types of legislation that had become symptomatic of our globalized world over the past two decades: foreign investment laws, intellectual property laws, oil and gas laws, and one must not forget that most unsavory yet pressing subject, national security and anti-terrorism laws. Rather, what is glaringly absent is the study of the “European Code”, the privileged form in which the legal transplant was first introduced only to become the permanent and defining feature of the contemporary legal system.
There is a simple reason for this and I will state it bluntly. It is because Islamist scholars and their non-Muslim academic sympathizers either liberals with strong multicultural tendencies or “traditionalists” hostile to the modern nation state, have hogged the study of law in the Arab/Islamic world. A consensus of sorts has for long emerged among this block of scholars that the legal transplant was a colonial imposition that has displaced, with tragic consequences according to these scholars, the organic law of the Muslim. It is the latter that is worthy of study, typically referred to by them as “Islamic law”
Newbs Lose, Experts Win: Video Games in the Supreme Court
Get PDFThis Article focuses on the role of the lawyers using the framework described by Professor Richard J. Lazarus in his 2008 article, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar. Lazarus argues the modern Supreme Court bar has come to be dominated by a small number of Supreme Court specialists. Because of their experience and superior knowledge of the Justices and Supreme Court practice, Supreme Court specialists are more likely to obtain outcomes desired by their clients, which are typically large corporations or industry trade associations. Consistent with Lazarus’s finding, this Article shows the video game industry’s representation by a Supreme Court specialist in Brown gave it advantages over California that likely affected the outcome of the case.
Part II analyzes whether the counsel in Brown fit within Lazarus’s definition of a Supreme Court specialist. Part III provides background on the Brown case and the cases that came before it. Part IV compares the expert and non-expert representation in Brown by examining the parties’ briefs, the amicus briefs, and the oral argument. Finally, Part V explores whether the case might have come out differently if both sides had been represented by Supreme Court specialists. It concludes that with expert representation, California could have captured the five votes necessary to win, or at least obtained a narrower decision that would have allowed the legislature to try again to craft a law that could survive a constitutional challenge
Reframing the Opioid Epidemic as a National Emergency
Get PDFOn August 10, 2017 President Trump announced his intention to declare a national emergency following the recommendation of the White House Commission on Combating Drug Addiction and the Opioid Crisis. Opioid abuse is among the most consequential preventable public health threats facing the nation. More than 600,000 deaths have occurred to date, with 180,000 more predicted by 2020. Of the 20.5 million US residents 12 years or older with substance use disorders in 2015, 2 million were addicted to prescription pain relievers. A national emergency declaration authorizes public health powers, mobilizes resources, and facilitates innovative strategies to curb a rapidly escalating public health crisis
Analogical Reasoning
Get PDFThis chapter from our book Legal Writing in Context aims to demystify analogical reasoning for law students
Two Cheers for Evidence: Law, Research, and Values in Education Policymaking and Beyond
Get PDFThe newest federal education law, the Every Student Succeeds Act of 2015 (ESSA), reflects a recent turn toward basing social policy on research evidence. Proponents suggest that evidence-based policymaking in education and other social policy areas can help cut through ideological debate and provide meaningful limits on the choices made by the federal executive branch, states, and localities. This Essay argues that such hopes for evidence-based policymaking are overambitious. It first analyzes the evidence provisions in ESSA and demonstrates how little they constrain policy choices. It then assesses the limits of the research base in education, showing how little agreement there is on major research findings, how difficult it is to conduct this kind of research in the first place, and how challenging it is to implement the findings that exist. The Essay concludes by arguing that a major challenge for evidence-based policymaking is the deep divide among citizens and policymakers about the underlying purpose of education and other social policies in the first instance; many important policy debates are about values and cannot be resolved by appealing to research at all. This critique of evidence-based policymaking does not suggest that research is unimportant or that facts are only in the eye of the beholder but rather that claims for what evidence-based policymaking can accomplish in education and other social policy areas should be treated skeptically