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The Changing Landscape of Asylum and Refugee Laws and Human Rights: The Diminishing Role of the United States?
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The Last Breakfast with Aunt Jemima and its Impact on Trademark Theory
Get PDFThe generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral liability. They could not be authentically unifying if they promoted values inconsistent with contemporary notions of equality and anti-racism. This Article situates the adoption of racially explicit brands in a historic context and explores the reactions of the targeted communities. It then explains why multiple legal challenges to these federal trademark registrations failed. The traditional law and economics paradigm used to justify and explain trademark law does not account for strategic trademark decisions driven by values and expressive community connections. While law and economics captures the essential message a symbol must communicate to function as a mark, it neglects to explain why some marks fail or, in spite of spectacular success, may be abandoned. When a theory cannot account for what is happening in practice, it is time to reach for new tools to help explain the significant role trademarks play in reflecting and leading cultural dynamics.
The consumer investment framework is ideally suited to fill this theoretical gap. It accounts for expressive and value driven decision making. It embraces the many ways we engage with marks apart from the point of purchase. In addition to purchasing trademarked products, people invest trademarks with time, meaning, and money. Open dialogue between brand managers, influencers, and fans facilitates connections through shared values. By accounting for brand meaning, communities, and values, the consumer investment theory provides a better framework for understanding the abandonment of racist imagery in a way that traditional law and economics cannot. Where law and economics fails to function as an explanatory paradigm, the consumer investment model provides a theoretical framework for understanding how trademarks function if they are to succeed and what qualities make them resilient enough to remain resonant in a constantly changing cultural environment
The Inequity of Informal Guidance
Get PDFThe coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.
In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in this Article, we reframe the topic as a social justice issue. We argue that the two tiers of formal and informal law in the U.S. tax system systematically disadvantage taxpayers who lack access to sophisticated advisors. This imbalance occurs irrespective of whether the IRS’s informal law contains statements that, if taxpayers followed them, would be taxpayer favorable or unfavorable. When the guidance contains taxpayer-favorable positions, the IRS is not legally bound by these positions and, during an audit, can contradict or ignore them. But when the guidance contains taxpayer-unfriendly positions, taxpayers who rely on them are bound to these interpretations as a practical matter. Worse yet, these taxpayers have almost no protection against tax penalties for incorrect positions that they claim based on the IRS’s tax guidance. By contrast, taxpayers who can access and apply the formal sources of tax law, such as the Internal Revenue Code and Treasury Regulations, often through lawyers, are in a significantly better strategic position. They can rely on binding law, they can try to take the most advantageous positions possible, and, if they meet a relatively low bar of reasonableness, they will have penalty protections in doing so.
After highlighting the growing gap between formal and informal tax law, and the resulting systemic inequity it causes, we explore potential policy approaches to address it. We consider reforming the drafting of the formal tax law; changing the drafting of informal tax law to include warnings to taxpayers and cross-references to formal tax law; revising the law regarding taxpayer reliance on informal tax law; and developing IRS research on how reliance on informal tax law varies based on taxpayers’ income, filing status, race, and other personal characteristics
