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A Leap of Good Faith: Intent Requirements in Trademark Applications Across Major Markets
No full textThis Article examines how four major trademark regimes—the United Kingdom, United States, China, and European Union—define and regulate bad-faith trademark applications. It traces the historical and legislative foundations of intent-to-use doctrines, compares contemporary statutory frameworks and judicial interpretations, and evaluates pivotal developments such as the U.K. Supreme Court’s SkyKick ruling and China’s ongoing trademark reforms. Although the jurisdictions employ distinct legal tools, the Article finds a converging emphasis on curbing opportunistic or abusive filings. The Article ultimately advocates for greater international alignment in articulating and enforcing good-faith standards within trademark law
The AI-Robotic Prescription: Legal Liability When an Autonomous AI Robot is Your Medical Provider
Full text linkAs AI-driven healthcare accelerates, lawmakers must race against time to establish vital regulations, striving to protect patient safety in an era of increasingly autonomous medical devices. The real challenges arise when an automated AI medical device harms a patient during medical care, and the law has yet to clarify how liability should be allocated among its stakeholders. Currently, semi-autonomous robots are diagnosing medical conditions and performing surgeries. Eventually, autonomous AI medical providers will enter the market, capable of making independent medical decisions and providing treatment. These autonomous robots will function more like medical practitioners rather than merely as assistive tools for healthcare professionals.
The FDA and the legislature should preemptively address the apportionment of liability for autonomous AI medical devices before medical practitioners widely adopt this AI technology. With assistance from the FDA, federal legislation should establish a liability scheme for autonomous medical devices instead of allowing the floodgates of litigation to reactively determine liability. Such proactive regulation will enable product developers and medical providers to better understand their potential legal exposure and take measures to mitigate harm.
Moreover, individuals injured by an autonomous AI medical device should be able to recover damages under either a malpractice or product liability framework, or both, depending on the circumstances of the case. Injuries can result from human errors or machine malfunctions, so the appropriate scheme of recovery should be tailored to reflect the specific cause of harm. The complexity of assessing liability stems from the interplay between the tangible hardware and the intangible algorithms of the AI medical devices. While the AI medical devices themselves cannot be held legally responsible, a framework must be established to allocate liability among responsible parties throughout the device’s lifecycle. For instance, the AI device’s level of autonomy in a given incident should influence how liability is distributed among medical providers, manufacturers, and maintenance personnel. Finally, policymakers must integrate societal, policy, and ethical considerations to ensure that this framework achieves the objectives of tort law and medicine while also supporting continued technological innovation
The Professional Employer Organization as Dispute System Designer: Mandatory Arbitration in the Co-Employment Context
Full text linkA professional employer organization (“PEO”) provides payroll, employment tax, and human resources services to its small to mid-sized business clients. Today, more than 200,000 businesses employing 4.5 million people utilize a PEO’s services. A common PEO strategy is to require co-employees of the PEO and its client companies to agree to mandatory arbitration provisions despite criticism that mandatory employment arbitration lacks public accountability, has lower win rates for employees, and may fail to protect due process. Mandatory arbitration is one method of dispute system design, a term that describes the selection and development of processes by which a company chooses to handle disputes. This Article provides insight into the usage of mandatory employment arbitration by PEOs and their client companies. It assesses the role of the PEO as a dispute system designer and employs the dispute system design literature to offer an improved way forward to benefit the co-employees of PEOs and their client companies
Examining the Brazilian Supreme Federal Court’s Expanded Powers in the Bolsonaro Era: A Win for Democracy or a Turn Toward Autocracy?
Full text linkAs Jair Bolsonaro rose to popularity and was elected the 38th president of Brazil in 2018, the global community grew concerned over his very public disdain for the country’s democratic institutions and admiration for Brazil’s 22-year-long military dictatorship. The Bolsonaro administration was marked by repeated attacks on the judiciary, a heavily criticized response to the COVID-19 pandemic, and, eventually, the storming of Congress and the Brazilian Supreme Court by Bolsonaro’s supporters– mirroring the January 6th insurrection in the U.S. However, the most significant aspect of the Bolsonaro presidency may not lie solely in his actions, but in the response from other branches of government. In particular, Brazil’s Supreme Federal Court swiftly positioned itself as a check on Bolsonaro’s authority by granting itself powers not explicitly authorized by Brazil’s Constitution of 1988. These powers include the ability to unilaterally create investigations and assume simultaneous roles as victim, prosecutor, and judge. While praised by many individuals defending democratic and liberal values in Brazil, questions persist regarding the legitimacy of the Court’s actions. This note discusses why the expansion of powers by the Court during the Bolsonaro era, ostensibly undertaken out of necessity to safeguard democracy, may lack legal and constitutional legitimacy under Brazil’s current constitutional framework. Rather than fortifying Brazil’s still-incipient democracy, the Court’s extra-constitutional expansion of power can possibly destabilize it further and potentially threatens Brazilians’ civil liberties
\u3cem\u3eErie\u3c/em\u3e Mistakes: The Eleventh Circuit Misconstrues Already Problematic Georgia Precedent on Choice of Law
Full text linkThis Article explores the Eleventh Circuit’s precedent that has struggled with an unusual Georgia choice-of-law rule. The rule in question applies when the conflicting law of a sister state is a common law rule or doctrine (such as in tort or contract law) rather than a specific statute and has been a feature of Georgia law since the 19th century. The approach has lingered in scattered Georgia and related federal cases over many decades but was not given much attention in modern times until the Georgia Supreme Court decided to reaffirm and amplify it unanimously and defiantly in Coon v. Medical Center (2017). The Medical Center rule is based on a long-discredited legal fiction that The Common Law is a body of “natural” law that “exists” separately and apart from what judges actually do and cases actually say in specific jurisdictions.
Under the Medical Center rule, Georgia courts are to presume that the common law of a sister state is the same as the common law in Georgia (even if its case law is quite different from Georgia’s) and thus will apply Georgia law―if the sister state was one of the original thirteen American colonies or was derived from the territory encompassed in one of the colonies. On the other hand, if the sister state was never part of the original thirteen colonies or their territories, “[t]here is no presumption that the common law of England exists in such a State” because the state clearly did not “inherit its laws from England.”
The Medical Center rule has the most dubious distinction of being the only American state-choice-of-law rule that requires lawyers and judges to consult historical maps in order to apply it–that is, if the rule is to be applied in accordance with its stated parameters and underpinnings in antebellum jurisprudence, a jurisprudence which has been soundly rejected after the American Civil War everywhere, it appears, other than in Georgia. This rule is fundamentally at odds with the Constitutional limits on legislative jurisdiction delineated by the U.S. Supreme Court’s decisions in Erie Railroad Co. v. Tomkins (1938), Klaxon Co. v. Stentor Electric Manufacturing Co. (1941), and Phillips Petroleum Co. v. Shutts (1985).
Prior to 2021, federal courts occasionally drew on the doctrine which was later reasserted by the Georgia Supreme Court in Medical Center. However, the Eleventh Circuit’s decisions in cases such as Mount Hawley Insurance Co. v. East Perimeter Points Apartments (2021) and Barrs v. Auto-Owners Insurance Co. (2024) have significantly magnified and exacerbated this unconstitutional course in dealing with a choice of law between Georgia’s law and that of other states completely outside of the scope of the Medical Center’s geographic choice-of-law rule. The Circuit’s lead has, in turn, led a succession of federal district courts astray, further compounding the impact of the Medical Center decision in District Courts that had already embraced a narrower version of the erroneous doctrine.
The Article concludes with a sustained argument that when the first opportunity next presents itself, the Eleventh Circuit should abandon the Medical Center rule and resolve choice-of-law issues in federal diversity cases appealed from federal district courts in Georgia using another test (such as the Restatement (Second) of Conflict of Laws)―one that does not raise serious problems of constitutionality because it does not mechanically presume to impose Georgia’s antebellum vision of The Common Law. As Justice Brandeis declared in Erie, “the unconstitutionality of the course pursued has now been made clear and compels” the Eleventh Circuit to take swift action to disavow it.
In the event a party files a petition for a writ of certiorari from an Eleventh Circuit decision disavowing the “unconstitution[al] . . . course” reaffirmed by Medical Center, the U.S. Supreme Court should grant certiorari and take the opportunity to overrule the doctrinally unsound Klaxon precedent that makes possible Erie mistakes such as the one that has expanded the Medical Center rule. If the Supreme Court either declines to exercise its certiorari jurisdiction in such a case―or takes the case and declines to overrule Klaxon―then it is time for Congress to legislate a consistent, nationwide federal body of choice-of-law rules for the federal courts, the need for which has been recognized for decades
The Legal Acrobatics of Dealing with International Arbitral Awards Rendered in the United States
Full text linkInternational arbitration has become a preferred method for resolving cross-border commercial disputes, largely due to its efficiency and flexibility compared to traditional court litigation. However, the post-award phase, particularly the process of vacating or enforcing arbitral awards, presents significant complexities, especially in the United States. Despite the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) guiding the international recognition and enforcement of arbitral awards, the U.S. has introduced an anomaly by categorizing certain awards rendered within its jurisdiction as “nondomestic,” subjecting them to the Convention’s framework. This has led to confusion regarding whether such awards are subject to domestic vacatur under U.S. law or the Convention’s provisions. While the majority of scholars argue that these awards should follow the U.S. Federal Arbitration Act, some suggest that Article V of the Convention governs their vacatur. This paper contends that U.S. Convention awards should not be subject to vacatur under either U.S. law or the Convention. Instead, they should only be subject to confirmation or denial of confirmation under Article V of the Convention. The analysis highlights the tension between applying domestic vacatur law to U.S. Convention awards, and well-established principles of statutory and treaty interpretation, while emphasizing that such awards should be treated consistently with foreign arbitral awards under the Convention
Substance and Process in Corporate Law: Theory and History
No full textOver the last half-century, corporate law has moved from substance to process as the Delaware courts have avoided direct review of the merits of transactions, substituting review of the processes that brought the transactions about. This is a familiar observation, perhaps a truism. But it is a truism that is undertheorized. This article addresses the theory gap, suggesting a structural reason for the trend. Simply, the courts avoid reviewing substance because they lack a theory of value. The theoretical void disables direct evaluation of transactional merits. Process review avoids this problem. Processes and their operation are the lawyer\u27s stock in trade. Courts are very well equipped to understand legal processes and evaluate compliance with them. Given this epistemic familiarity, it is understandable that courts gravitate toward process review. The article supports this assertion with formal analyses of the relative merits of procedural and substantive models of fiduciary law from economic and epistemic perspectives. The article goes on to review the development of judge-made Delaware law, posing it as an exemplar of the salience of the article\u27s theoretical claim
The Cost of Waiting: Navigating the FTC’s Noncompete Ban and the Risks of Inaction
No full textThis Comment critically examines the Federal Trade Commission’s (FTC) now–abandoned rule that sought to ban noncompete clauses in employment contracts, emphasizing the limitations of advice provided by attorneys, legal scholars, and experts who advocate for a “wait–and–see” approach during its development and subsequent litigation. Noncompetes, while serving as a tool for employers to safeguard proprietary interests and limit competition, also restrict employee mobility and bargaining power. The FTC’s proposed rule, which aimed to ban most noncompete clauses, faced immediate and substantial legal challenges under the major questions and nondelegation doctrines.
Although the FTC ultimately ceased defending the rule and acceded to its vacatur in 2025, the debate it sparked continues to influence both policy and practice. Ongoing state–level legislative activity and the FTC’s shift toward case–by–case enforcement have sustained uncertainty regarding the permissible scope of restrictive covenants. Expert recommendations favoring a passive or reactive stance underestimate the compliance and competitive risks posed by these evolving developments.
This Comment argues that a forward–looking approach, which contrasts with the wait–and–see method, offers a more secure and adaptable framework. It includes proactive strategies such as well–constructed nonsolicitation and confidentiality agreements and improvements in employee retention. Recommendations focus on minimizing restrictive covenants while maximizing retention and competitive advantage, effectively preparing employers for a potential noncompete–free regulatory environment