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Measuring Trademark Dilution by Tarnishment
Get PDFThe law of trademark tarnishment—a type of trademark dilution—is in disarray. The
basic definition is deceptively simple. Trademark tarnishment occurs when a junior
mark harms the reputation of a substantially similar existing senior trademark by
associating itself with something perverse or deviant. However, it turns out that
Congress and the courts disagree over the prima facie evidence necessary to prove
its existence. The problem is that federal law and related legal principles are simply
ill-equipped to adequately analyze this unique market-driven doctrine. To make
matters worse, legal scholars cannot even agree on whether trademark tarnishment
can empirically exist in the marketplace. Part of the issue is that there has never been
any real attempt to define the phrase “harm to reputation” in the trademark context.
Drawing on marketing scholarship and social science methods, this Article
provides the first workable framework that courts can use to hear and accurately
analyze these cases. It relies on experimental survey methodology to empirically
show that tarnishment can exist under certain conditions; the key is increasing the
number of exposures to the harmful mark. The Article also introduces extant
branding theory as a way to define harm to reputation in the marketplace. This
interdisciplinary approach ultimately gives courts a mechanism by which to measure
harm to reputation and the tangible impact of tarnishment. In the process, this theory
provides litigants with an empirical-based strategy to prove their dilution claims and
contributes to the doctrinal justification for trademark dilution laws
Flipping the Script on Brady
Get PDFBrady v. Maryland imposes a disclosure obligation on the prosecutor and, for this
reason, is understood to burden the prosecutor. This Article asks whether Brady also
benefits the prosecutor, and if so, how and to what extent does it accomplish this?
This Article first considers Brady’s structural impact—how the case influenced
broader dynamics of litigation. Before Brady, legislative reform transformed civil
and criminal litigation by providing pretrial information to civil defendants but not
to criminal defendants. Did this disparate treatment comport with due process?
Brady arguably answered this question by brokering a compromise: in exchange for
imposing minor obligations on the prosecutor at trial, the Court signaled to the
prosecutor that to withhold information before trial does not violate due process.
This Article also explores Brady’s narrative treatment. This Article contends that
the narrative that Brady imposes a significant burden on prosecutors, despite
scholarly efforts to move past it, is pervasive. This narrative of prosecutorial burden
confers unearned legitimacy to case outcomes. This Article finally examines how
prosecutorial interests have deployed Brady politically, focusing on how the
Department of Justice has wielded the Brady obligation to deflect political attempts
to expand pretrial discovery.
In the attempt to provide a fuller account of the case’s benefits and burdens on
litigants, this Article suggests the possibility that Brady can also be viewed as a
prosecutorial ally. This Article uses this possibility as an opportunity to consider
alternative approaches to assessing whether the criminal pretrial procedural regime
comports with due process
Masterpiece\u27s Equal Treatment of the Religious and Expressive Freedoms Under the First Amendment
Get PDFThis thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court\u27s holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.
As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake bearing messages through images or texts as a symbolic expression, but it would not protect making a generic or artistically decorative cake either as a pure or symbolic expression.
As to the free exercise argument, this thesis insists that this is a permissible rejection within the scope of the vendor\u27s product options because it does not violate full and equal enjoyment, which could be interpreted as being the customer\u27s equal access to goods and services based on the right of vendors to choose what to sell, as Justice Kagan stated. Furthermore, it argues that procedural-equal treatment should be given equal access to the vendors, including the vendors who decline to provide their goods and services due to religious and secular reasons when refusal is permissible. The differences between discriminatory declination and permissible rejection rely on whether the vendor could supply his goods or services to all other customers; in other words, the refusal is within the right of vendors to choose what to sell. Here, the official or government agency could have the discretion to determine whether the vendor’s refusal could be a discriminatory or conscientious declination. If they did not give the vendor opportunities to consider the reasons for refusals in a principled rationale, it could constitute a substantial burden on religious believers by deprivation. And then, the Supreme Court’s ruling in Masterpiece should be understood to require procedural-equal treatment, applicable to religious and secular vendors alike
Foreign Corruption as Market Manipulation
Get PDFOn March 6, 2019, the Commodity Futures Trading Commission (CFTC) announced that it would be taking an active role in prosecuting violations of the Commodities Exchange Act (CEA) that involve foreign corruption.[11 On the same date, the CFTC published an enforcement advisory further signaling its intention to investigate and prosecute violations of the laws and regulations of the CEA linked to foreign corrupt practices, such as violations of the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits US-based businesses from engaging in corrupt practices, such as bribery, in foreign countries in which they do business. Currently, both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) vigorously and vigilantly enforce the FCPA. How and to what extent, therefore, would the involvement of the CFTC impact the prosecution of FCPA violations?
This Essay explores this question by focusing on two specific inquiries. First, this Essay examines what kinds of foreign corrupt practices could overlap with the CFTC\u27s jurisdiction. The CFTC is the exclusive regulator of the derivatives and commodities market, and one of its primary concerns is to deter and detect market manipulation. In turning its focus to foreign corrupt practices that violate the CEA, one implication is that there is a connection between foreign corruption and manipulation of the US derivatives and commodities markets. Exploring how foreign corruption can manifest into market manipulation, therefore, is important to understanding the potential types of conduct that may warrant CFTC attention. Second, this Essay assesses the implications of the CFTC\u27s foray into the prosecution of foreign corruption. For example, with the addition of another regulator to the FCPA\u27s enforcement roster, derivatives and commodities market participants likely face FCPA-related compliance requirements that they did not previously have. Part I of this Essay begins with an overview of the FCPA. It describes the purpose of the FCPA and the enforcement approach of the DOJ and SEC in relation to the Act.
Part I also summarizes the CFTC\u27s role in the financial markets and its traditional jurisdictional scope. Part II examines three potential scenarios in which foreign corruption could result in manipulation of the US derivatives and commodities markets. Part III considers the implications of the CFTC\u27s involvement in the enforcement of the FCPA and, lastly, raises additional questions that may prove fruitful for future research
Finding International Law in Private Governance: How Codes of Conduct in the Apparel Industry Refer to International Instruments
Get PDFMultinational enterprises increasingly use Codes of Conduct to govern the conditions of labor and production among their suppliers\u27 operations around the globe. These Codes of Conduct, produced unilaterally by companies as well as by multi-stakeholder bodies, often include references to public international law instruments. This article takes a closer look at thirty-eight Codes of Conduct from the global apparel industry and uses social network analysis to identify the patterns in these Codes and how they refer to international legal instruments. Although some international legal instruments stipulate rules that can be directly transposed into the private context of supply chains, this study instead finds that the global apparel industry\u27s Codes of Conduct are more likely to refer to instruments that only stipulate rules that pertain to public authorities. The findings call into question the legitimizing role that international law plays as it is transposed into transnational private governance
Circumventing Standing to Appeal
Get PDFThe requirement of standing to sue in federal court is familiar, but the related requirement of standing to appeal within the Article III judiciary is badly undertheorized. The Supreme Court’s opinions suggest (at least) four constitutional rationales. Standing to appeal might serve the same functional purposes as standing to sue, or it might follow from the fact that appeals involve two separate courts, or it might be triggered because the underlying case or controversy has become moot, or because it has reached the point of final judgment.
Compounding the confusion, the requirement of standing to appeal can have troubling consequences in the cases in which it arises most frequently: when state officials refuse to defend state law against constitutional attack and decline to appeal from an adverse judgment. In an era of political polarization, state attorneys general increasingly find it tempting to abandon the defense of laws supported by the opposing party. Standing doctrine makes that situation worse, affording state officials the opportunity to short-circuit appellate review for self-serving or partisan reasons.
After critically examining the possible constitutional theories, this Article concludes that the requirement of standing to appeal is best explained by the finality of the judgment and the conclusion of the underlying “case” or “controversy.” On that account, however, Congress is not powerless to facilitate appellate review, even in the absence of an appeal by an injured party. Congress plays a primary role in determining when a legal judgment becomes final, and it already postpones the point of finality through a wide range of procedural devices. Consistent with the Constitution, Congress could provide for automatic appeals by operation of statute, for example, whenever a district court enters an injunction against the enforcement of state law, or for judge-initiated appeals in the discretion of the appellate court, on its own motion or at the suggestion of the district court or a party
Judicial Independence: Tweak the Guiding Paradigm
Get PDFOver time, the public has simply ceased to believe judges when say that they follow the law, and nothing but. If judges impose their ideological policy preferences, the argument goes, why should they be independent from political controls, when other policymakers are not? We have reached the point where, when judges seek to defend the customs and conventions that have guarded against incursions upon their independence by arguing that “we are all about the law and nothing else,” the public response has increasingly become, “No, no, no, your nose is growing.
Saving Money on Health Insurance Just Got a lot Easier . . . Or Did It?: The Preserving Employee Wellness Programs Act and its Impact on the Future of Employee Health
Get PDFThis Note addresses the growing use of employer-sponsored wellness programs in the American workplace and the concomitant harms and risks these programs impose on employee privacy and insurance costs. Specifically, this Note analyzes the Preserving Employee Wellness Programs Act (PEWPA)—a proposed law that would allow employers to require employees to disclose genetic information to qualify for an employer-sponsored wellness program (and the program’s associated insurance premium benefits). This Note ultimately argues that employees and employee advocacy groups must work to thwart PEWPA to preserve employee privacy in the face of mounting corporate pressure to alter the structure of employer-sponsored health insurance