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A Black-Footed Ferret and U.S. Law: Lessons Learned from the First Successful Clone of a Native U.S. Endangered Species
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Disbanding Police Agencies
Get PDFSince the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of sheriffs’ offices and municipal police forces insulates them against such attacks as well. To challenge police power, localities may have to disband, and to disband, localities may have to alter the legal structure of state and local government. Reformers must use rare moments of mobilization like this one to overcome the misguided efforts of past reformers to lock in their victories. Successful reformers can best avoid repeating such mistakes by trusting in the democratic experiment and concentrating supervision of law enforcement at one level, the most local
Monopolizing Whiteness
Get PDFIn racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent families.
Despite the material consequences and symbolic meaning of maintaining predominantly white school districts, a limited amount of scholarship addresses racial segregation in schools from the vantage point of white students. This Article fills that void in the school-desegregation legal literature. It analyzes white-student segregation through a sociological framework called social closure, a process of subordination whereby one group monopolizes advantages by closing off opportunities to other groups. This Article argues that the laws surrounding school district boundary lines enable white students in racially diverse metropolitan areas to engage in social closure and to monopolize high-quality schools.
This Article further suggests that equal protection doctrine, the doctrine traditionally used to address racial segregation in schools, cannot capture the monopolization harms caused by white-student segregation. Therefore, it looks to antitrust law for guidance. It demonstrates how principles from antitrust’s essential facilities doctrine can help conceptualize and remedy the monopolization harms caused by white-student segregation in racially diverse metropolitan areas
Is the Word “Consumer” Biasing Trademark Law?
Get PDFOur trademark law uses the term “consumer” constantly, reflexively, and unconsciously to label the subject of its purpose—the purchasing public. According to the U.S. Supreme Court, trademark law has “a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid.” As one leading commentator puts it, “trademarks are a property of consumers’ minds,” and “the consumer, we are led to believe, is the measure of all things in trademark law.”
Much criticism has been rightly levied against trademark law’s treatment of the consumer as passive, ignorant, and gullible. For instance, consumers are seen as requiring protection from any and all marketplace confusion and have no standing to sue under the Lanham Act. However, that a contributing factor to such treatment could be the linguistic bias stemming from the law’s label of the buying public as mere consumers—rather than, for instance, “citizens,” “persons,” “individuals,” or “humans”—has not, until now, been directly addressed.
This Article urges those involved in trademark and advertising law—e.g., judges, lawyers, lawmakers, and scholars—to rethink our ubiquitous use of the derogatory consumer label. To this end, the Article first explores “consumer” as a dehumanizing, anti-ecological, and nonsensical metaphor for “one that utilizes economic goods.” It then examines social psychology experiments finding that use of “consumer” has potentially deleterious effects for society given the negative stereotypes that it engenders as a social categorization. The Article claims, by extension, that the implicit linguistic bias inherent in consumer rhetoric might contribute to trademark law defining the public in a manner that is patronizing, biased, insulting, and indulgent of likelihood-of-confusion claims. The Article suggests that we either work to phase out the “consumer” label and replace it with more appropriate terminology (e.g., “citizen”), or at least pause to acknowledge the word’s potentially biasing effects
