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Consumer Uncertainty in Trademark Law: An Experimental Investigation
Get PDFNearly every important issue in trademark litigation turns on the question of what consumers in the marketplace believe to be true. To address this question, litigants frequently present consumer survey evidence, which can play a decisive role in driving the outcomes of trademark disputes. But trademark survey evidence has often proven to be highly controversial, not least because it has sometimes been perceived as open to expert manipulation. In this Article, we identify and present empirical evidence of a fundamental problem with trademark survey evidence: while the leading survey formats in trademark law test for whether consumers hold a particular belief, they do not examine the strength or the varying degrees of certainty with which consumers hold that belief. Yet as the social science literature has long recognized, the strength with which consumers hold particular beliefs shapes their behavior in the marketplace, and thus it should also shape how trademark disputes play out in the courtroom. Through a series of experiments using the three leading trademark survey formats (the so-called Teflon, Eveready, and Squirt formats), we show the remarkable degree to which these formats as conventionally designed overlook—or suppress—crucial information about consumer uncertainty. We further demonstrate how low-cost, easily administered, and relatively simple modifications to these formats can reveal that information.
We explain both the practical and theoretical implications of our findings. As a practical matter, trademark survey evidence that shows only weakly held beliefs (or that does not even test for belief strength) should not, without more, satisfy a litigant’s burden of persuasion on the issue addressed by the survey. Furthermore, in line with courts’ growing efforts in intellectual property cases to tailor injunctive relief, survey evidence showing only weakly held mistaken beliefs may provide courts with the opportunity to fashion more limited forms of relief short of an outright injunction. As a theoretical matter, trademark survey formats that reveal the true extent of consumer uncertainty in the marketplace may finally force trademark law and policy to confront normative questions it has long left unanswered going to exactly what kind of harm trademark law is meant to prevent
Universities Inadvertently Permit “Toxic” Environments: Free Speech and Private Institutions
Get PDFThe First Amendment is one of the most important amendments that protects democracy. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment protects pure speech (speaking and writings) and symbolic speech, which is nonverbal expression intended to communicate ideas. The Constitution protects “coarse expression as well as refined, and vulgarity no less than elegance” because “a society can be truly strong only when it is truly free.” Without the protection the Constitution provides, society would lack confidence in itself. The First Amendment is often used to push or oppose political and social change. In academic settings, the First Amendment is also used to protect professors’ rights under academic freedom. However, the jurisprudence of where these protected rights begin, and end are blurred.[7]
Across the nation, there has been media coverage of faculty, students, and seasoned professionals sharing offensive, racist, and sexist comments. Some institutions have taken disciplinary action once they were made aware of the situation, or have taken action when they were pressured by members of the community. On the other hand, when made aware of offensive speech or expression, some institutions simply made a statement that they were aware of the situation and no disciplinary action followed. In most cases, the institutions that have not followed up with some form of disciplinary action, determined that the actor’s speech or expressions were protected by the First Amendment. Though these expressions may be protected under the First Amendment, it does not mean professors are not immune from the consequences of their actions. Within the last five years, there has been several instances where derogatory terms or slurs were used by professors in an academic setting. This Perspective will explore why administration in private institutions decide that no disciplinary action was necessary
Status, Subject, and Agency in Innovation
Get PDFThe Inequalities of Innovation will be rightly understood as a major scholarly assessment in intellectual property and innovation law for its naming of three key inequalities: the inequality of wealth and income, the inequality of opportunity to innovate, and the inequality of access to innovation. This Essay complicates the triadic framework discussed in The Inequalities of Innovation by interrogating its relationship to status harm and social identity and its relationship to broader discussions of social identities such as race and the law
The Market-Essential Role of Corporate Climate Disclosure
Get PDFThis Article focuses on capital market efficiency as an often-downplayed legal rationale for mandating corporate climate disclosure, and explores it alongside the notion of investor demand, which has assumed a prominent and, increasingly, contested role in debates on climate disclosure. Because market efficiency (encompassing both securities price accuracy and overall capital market allocative efficiency) is generally unobservable, many commentators have instead emphasized the highly visible investor demand for climate-related disclosure as evidenced by shareholder proposals, voting behavior, stewardship policies, and public statements. Unfortunately, investor demand can be disputed, fairly or unfairly, because investor preferences are heterogeneous, dynamic, and difficult to aggregate. This Article argues that while investor demand can be a helpful datapoint, a proper and sufficient legal justification for mandating climate-related disclosure lies in the need to ensure that firms’ securities prices accurately reflect relevant information, which, in turn, will help maintain the overall integrity of the capital markets. This argument is supported by the statutory text, legislative history, SEC rulemaking practice, and judicial doctrine. In short, the role of corporate climate disclosure is “market-essential” and need not hinge on evidence of investor demand.
The Article’s analysis has implications for ongoing debates about regulatory efforts on corporate climate disclosure, including the propriety of the SEC’s climate disclosure project, the viability of an “investor-optional” approach to disclosure, and objections based on “major questions” theories. Indeed, once it becomes clear that the SEC’s disclosure rule is about basic market efficiency—and not about “regulating climate change”—such objections begin to fall away. More broadly, the Article also highlights the enduring importance of market efficiency as an objective justification for mandatory disclosure in an era of highly visible and sometimes controversial stewardship by asset managers and other investors
The ‘Weaponized’ First Amendment at the Marble Palace and the Firing Line: Reaction and Progressive Advocacy Before the Roberts Court and Lower Federal Courts
Get PDFIt once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.
This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come from the coalition of right-wing interests (businesses, right-wing Christian organizations and individuals, and mobilizations against abortion and LGBTQ rights) as from progressive proponents of change. Right-wing and allied litigants prevailed more than twice as often as progressive allies.
This Article considers whether the right-wing “weaponization” of the First Amendment looks the same at the firing line. Examining a sample of 733 First Amendment cases decided in 2020 and 2021 in the lower federal courts reveals a different story. Viewed from the firing line, First Amendment doctrine is not monopolized by the forces of reaction. It continues to open doors for advocates of progressive social change. In the lower court sample, successful litigants were far more likely to come from the ranks of progressives; progressive litigants were almost twice as likely to succeed as their right-wing counterparts.
This Article concludes by exploring reasons that might explain this divergence: the possibility that lower courts simply lag Supreme Court case law, the unremarked Roberts Court reaffirmation of earlier doctrines which can be invoked by progressive litigants, the impact of the central role “content neutrality” plays under the Roberts Court, the differences between Supreme Court adjudication and the dynamics of litigation in lower courts, and the emerging protections for access to and dissemination of information
The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America
Get PDFFake and Real People in Bankruptcy
Get PDFThis essay explores the bankruptcy system’s structural bias in favor of artificial persons—for-profit companies, non-profit enterprises, and municipalities given independent life by law—relative to humans. The favorable treatment extends to foundational issues such as the scope and timing of debt relief, the conditions to receiving any bankruptcy protections, and the flexibility to depart from the Bankruptcy Code by asserting that doing so will maximize economic value. The system’s bias also contributes to the “bad-apple-ing” of serious policy problems, running counter to other areas of law that have deemed harms like discrimination to be larger institutional phenomena rather than merely the product of individual wrongdoing. The bankruptcy system cannot fully internalize the consequences of these choices. These factors make bankruptcy a less effective partner in the broader policy project of deterring, remedying, and punishing enterprise misconduct
Virtually Inaccessible: Resolving ADA Title III Standing in Click-and-Mortar Cases
Get PDFAs the electronic age has taken hold of the global community, and digital devices have become the mainstay of human interaction, new accessibility barriers have emerged for people with disabilities. Although most courts now conclude virtual inaccessibility is an injury cognizable under Title III of the Americans with Disabilities Act, great ambiguity surrounds the injury-in-fact requirement of Article III standing in online accessibility cases. Despite pleading for elucidation and clarifying principles, federal district courts have been left to navigate the uncharted territory of the digital injury-in-fact inquiry with exiguous guidance from higher courts. The resultant confusion in the federal courts has manifested itself as diametrically contradictory injury-in-fact holdings in factually identical cases, both inter- and intra-circuit.
This Comment clarifies the digital injury-in-fact inquiry by identifying and dissecting four crucial issues dividing federal courts in ADA Title III online accessibility cases: (1) the location a plaintiff must intend to return; (2) the application of the geographic intent-to-return test factors in cyberspace; (3) the role of future injury; and (4) the scope of virtual standing.
First, this Comment argues the destination of a plaintiff’s intent to return is preordained by the type of injury alleged by the plaintiff. If a plaintiff alleges a purely virtual website injury, federal courts must assess the plaintiff’s intent to return to the inaccessible website. If a plaintiff alleges a hybrid website injury, federal courts must assess the plaintiff’s intent to return to the inaccessible website and intent to avail themselves to the goods or services of the public accommodation’s brick-and-mortar location.
Second, this Comment contends the geographic intent-to-return factors are not probative of a plaintiff’s intent to return to a website. However, federal courts cannot merely remove the geographic factors from the intent-to-return test because the resulting analysis infringes on Supreme Court precedent. Rather, federal courts must substitute the intent-to-return test’s geographic factors with factors appropriate in cyberspace.
Third, this Comment asserts the injury-in-fact inquiry cannot be satisfied by past injury alone. Instead, federal courts must assess the plaintiff’s likelihood of future injury.
Finally, this Comment argues federal courts should not adopt a lenient approach to standing because a lenient approach is not necessitated by Supreme Court precedent, it is inconsistent with Supreme Court precedent, and it exacerbates the extant issue of serial litigation in online accessibility cases
He Said, She Said: Assessing the Post-Colonial Legacy on Somalia’s Rape Laws
Get PDFMost jurisdictions have adopted changes in legislation within the past fifty years that reflect the evolution and advancement of women’s legal rights. Somalia, however, has not undergone a significant change in its legal regime since the 1960s. Somalia’s penal code and criminal procedure code are based on laws that were written in the late 1800s to early 1900s. When it comes to rape, judges harbor the beliefs that women must “put up a fight” against their assailants and doubt the inherent trustworthiness of women. These prevailing gender myths prevent women from accessing justice and infringe on their rights to equality and non-discrimination in the courtroom. Many of these gender myths are supported by outdated colonial laws and are a result of Italy and Great Britain’s legal legacies in Somalia. This article is the first of its kind to examine colonial influences on gender myths in the Somali courtroom. It commences with an introduction into Somalia’s legal past and limitations in case law that are attributable to its longstanding civil war and frail infrastructure. Part II continues with a brief background into international human rights standards for victims of gender-based violence—the principles that set the standard against which the treatment of women under laws should be compared. Part III highlights how Somali cultural norms have contributed to preconceptions about women that are reflected in the courtroom. Part IV and V shed light on how fascist-era Italy and British India not only defined Somali criminal laws but also shaped the current Somali legal system’s treatment of women as unreliable victims and witnesses. Both the resistance standard and cautionary rules like the corroboration requirement and immoral character provision are legacies of Somalia’s colonial past. These rules hinder a Somali woman’s access to justice because they are only applied in rape cases where the victim is a female. Moreover, they require a higher evidentiary standard than any other crime. In conclusion, this article draws attention to the dangers of legal stagnation and the importance of legal reform