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Fiduciary Judgment Rules
Get PDFBecause of the strong moral rhetoric and robust equitable remedies available in fiduciary law, it is not surprising to find lawyers and legal scholars seeking to expand the reach of fiduciary law principles into new relationships and new areas of law. However, expansion often does not work very well because of the demanding and pervasive nature of fiduciary duties. Thus, jurists often turn to the business judgment rule and its policy of underenforcement of fiduciary duties as a way to fit fiduciary law principles into other areas of law. The problem with this approach is that it is based on a deficient understanding of the corporate law model. The business judgment rule is not an arbitrary abstention policy but rather a prudential policy decision that advances the beneficiaries’ interests in the unique context of the business setting. Because its theoretical underpinnings tend to be absent from other relationships, the business judgment rule cannot serve as a model for indiscriminate expansion of fiduciary areas of law. For the same reasons, any policy of deferential review of fiduciary duties would have to be based on other considerations
More Than Hungry: How Political Narratives Built & Maintain Hunger in the United States
Get PDFThis Note aims to examine the role of the legal system in creating and maintaining hunger in the United States. Through this lens, the Note discusses the shift necessary to support specific legal interventions to end hunger. This Note begins by discussing how hunger was built in the United States through policies regarding land, housing, incarceration, and food, and the narratives that allowed these policies to flourish. These policies created hunger by creating pockets of poverty and disempowerment. Although many individuals and organizations donate their time, money, and energy to support local food banks, soup kitchens, and free school meal programs, these efforts alone are not enough to end hunger. As Andrew Fisher describes, despite the singular focus of anti-hunger initiatives today on food, food plays a minor role in the solution to hunger. Hunger is not a food issue, it is a food justice issue. That is because you cannot solve hunger without solving poverty
Trademarks in Conversation: Assessing Genericism After Booking.com
Get PDFIt is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.
In part, this difficulty comes from the fact that status as a trademark or as a generic term is necessarily contextual. The Supreme Court’s 2020 opinion in United States Patent and Trademark Office v. Booking.com B.V. emphasized the relevance of consumer understanding to this inquiry. Words are not inherently generic or distinctive out of context; APPLE is a trademark for computers but not for fruit.
Although individuals encounter trademarks in a variety of settings, we ultimately care about this understanding in the context of a consumer’s experience, since that is where relevant confusion is operationalized. To use a supermarket analogy, the consumer is, at least conceptually, first searching for the right aisle (“soft drinks” or “colas”) and then searching among the shelves for the product they want (“Pepsi” rather than “Coca-Cola”). The genericism inquiry is therefore about assessing terms to determine whether they are related to an aisle search or a shelf search.
Framing the inquiry in this way can help us to see that the question is ultimately about consumer understanding of terms, not consumer use of terms. Looking at how consumers talk about trademarks, whether through corpus analysis, surveys, dictionaries, or other sources, can be helpful, but it is equally important to consider how consumers understand those communications. By thinking of trademarks as elements of conversations among consumers, and borrowing from Gricean implicature, we might be able to determine whether a term is related to finding the right aisle or related to finding the right product on the shelf
Election Law Beyond 2020 (recording)
No full textAlthough the Court does not yet have election disputes on the 2021-2022 docket, there is the potential for a lot of election law activity at the Court. Redistricting will be in full swing, there is fallout from the Court’s recent Voting Rights Act decision, and important campaign finance / disclosure questions lingering, all of which may require the Court’s attention. This panel will address what is likely coming down the pipeline in terms of election controversies
Business & Statutory Interpretation Cases (recording)
No full textJustice Kagan famously quipped that “we are all textualists now” and statutory interpretation has certainly become part of the Court’s bread and butter. This term the Court has granted several cases involving questions of statutory interpretation many involving business interests. This panel will preview those cases and also speculate on whether the Roberts Court can be fairly labeled pro-business and / or pro-textualism
Weaponizing En Banc
Get PDFThe federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals—an us versus them—where the judges vote in blocs aligned with the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.
In this Article, we test whether en banc review is now or has ever been weaponized. We make use of an original data set—the most comprehensive one of which we are aware—that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule-of-law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018–2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc review. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule-of-law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses
Shape Mark (Trade Dress) Distinctiveness: A Comparative Inquiry into U.S. and E.U. Trademark Law
Get PDFNowadays, the increasing application of visual elements, as non-traditional trademarks, to convey commercial information has brought about some new challenges to pioneer legal systems. In this regard, the question of shape marks’ (trade dress) distinctiveness has also caused some hot debates in U.S. and EU trademark law. Indeed, the most challenging legal question before those legal jurisdictions is about the method of transplanting the concept of trademark distinctiveness into the mechanism through which shape marks, as visual mediums, perform a trademark communicative function. Technically, the indefinite nature of shape marks or trade dress marks and lack of a definitive or pre-intended source of meaning has made them unpredictable in terms of distinctiveness examination. This Article has employed a comparative perspective to investigate the U.S. and EU’s historical and current legal positions towards shape marks’ distinctiveness. This Article has also found that both the U.S. “ontological tests” and EU “significant departure criterion” suffer from the heavy emphasis on the “distinguishing” capability among other comparable shapes or designs and ignorance of the “source-identifying” function of shape marks. Furthermore, their endeavors for posing the question of inherent distinctiveness in a contextual environment will make the normative parts of the tests useless and cause time and cost expenditures. Finally, having considered the competitive and public interests in EU and U.S. trademark law, this Article suggests that relying on a market-led approach, in which the collected information from the relevant consumers is the most decisive method in finding distinctive character