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Property and Equity in Trademark Law
Get PDFThis lecture focuses on the relationship between trademark and unfair competition. Specifically, this lecture discusses the way trademark law has evolved over time with respect to property concepts. There has been a lot of discussion in the literature about the ways trademark law has come to treat trademarks as property. Many scholars who have written about this “propertization” have described it as a shift from consumer to producer protection.
I have written a lot about this narrative over the course of my career—I think it is overly simplistic, and in some ways, wrong. Trademark law has al-ways protected marks as property and always significantly for the purpose of protecting producers.6 What has changed is that modern law conceives of the property interests much more broadly than it once did. So the important shift in trademark law was not one from a system focused exclusively on consumer interests to one focused on producers, or from no-property to property—it was a shift in terms of the nature of the property interest protected.
But even that revised narrative misses some important things about trade-mark law’s evolution because it is insufficiently attentive to significant changes in the doctrinal structure of trademark law over the course of the last century—specifically with respect to the relationship between trademark law and the broader law of unfair competition. Changes in that relationship, I will argue, did work a meaningful change in the “propertization” of trademark law. Relatedly, and necessarily, these same changes deemphasized legal rules that focused on the defendant’s conduct (rather than the plaintiff’s ownership interest)
Mens Rea in Comparative Perspective
Get PDFThis Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As a result, jurisdictions without jury trials are better equipped to incorporate attitudinal kinds of mens rea into their criminal laws
When Does Big Law Work?
Get PDFLaw firms have grown from hundreds of lawyers to thousands of lawyers, and the conventional wisdom is that this trend fuels dissatisfaction among lawyers. This Article scrutinizes that conventional wisdom based on interviews with lawyers who joined large firms through law-firm mergers. These lawyers offer a valuable perspective on firm size because they made abrupt changes from small to large firms. Though some interviewees echoed the conventional wisdom, others suggested that larger firm size has limited or even positive effects on professional satisfaction. In one counter-narrative, large law firms are relatively diffuse organizations that have limited influence over individual lawyers. In another counter-narrative, large law firms helpfully insulate lawyers from the business risks of smaller firms. I offer a framework to explain these varied experiences. The framework highlights the importance of: seniority, practice-area compatibility, local office attributes, and the manner and rate of firm growth. These new perspectives can inform future research and improve advice to law students and lawyers
Out of the Home and in Plain Sight: Our Evolving Second Amendment and Open Carry in Wisconsin
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The International Religious Freedom Act: Non-State Actors and Freedom From Sovereign Government Control
Get PDFThe International Religious Freedom Act (IRFA) recently underwent its most significant amendment process since being introduced in 1997. Among the major changes, sponsors of the Frank R. Wolf International Religious Freedom Act (Wolf Act) proposed adding a new framework to IRFA intended to address the phenomenon of non-state actors (NSAs) violating the right to freedom of religion or belief. The impetus for this new mandate, according to the bill’s sponsors, flowed from the realization that NSAs such as the Islamic State in Iraq and Syria (ISIS or ISIL) were wielding religious intolerance to commit “some of the most egregious religious freedom violations.”
Despite its findings that violent NSAs represented an expanding force responsible for exposing a significant percentage of the global population to severe abuses of freedom of religion and belief, the Wolf Act faced an uphill battle in Congress that necessitated significant compromises to secure its passage. As a result, the final bill modified or altogether failed to enshrine certain measures originally proposed to address NSAs. In their place, the Wolf Act instituted an ambiguous statutory definition for those NSAs that would be subject to scrutiny under IRFA. Furthermore, while the new “Entity of Particular Concern” (EPC) designation for NSAs identified as engaging in “particularly severe violations of religious freedom” appeared to mirror IRFA’s existing mandatory sanctions regime for “Countries of Particular Concern,” it fell far short by triggering only a suggestion that the President “take specific actions, when practicable, to address [EPC] violations of religious freedom.”
As this new chapter for IRFA enters its third year, this Article will demonstrate that the NSA-related provisions present significant challenges for the U.S. government. To begin the task of fleshing out the nature and impact of these challenges, the Article focuses on one element of IRFA’s NSA definition—namely, the requirement that an NSA be “outside the control of a sovereign government.” After addressing IRFA’s NSA definition and providing an overview of its implementation to date, this Article turns to a critical appraisal of how the state control requirement has been implemented to date. The Article closes with several suggestions aimed at clarifying definitions and institutional responsibilities to repair current practice and reinvigorate IRFA’s promise of promoting and protecting the right of all individuals to freedom of religion or belief