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Innovation in Adversity
Get PDFAdverse experiences, like long-term poverty, can inhibit innovation. But as much research and many real-world examples show, adversity can also stimulate innovation. Indeed, the COVID-19 pandemic provides a number of recent examples where adverse conditions have led individuals, firms, and governments to innovate in the hope of benefiting society. Despite the fact that some forms of adversity undermine innovation while others stimulate it, legal scholars have largely failed to distinguish between the two forms or even account for adversity\u27s relationship to innovation when assessing innovation law and policy, including intellectual property (IP) laws. Yet given adversity\u27s significant role in affecting the pace and direction of innovation, doing so is crucial. In this Article, we undertake that task. Our analysis shows that adversity is most likely to stimulate innovation when it satisfies what we call the Goldilocks principle: the adversity is neither too intense nor too mild, too fleeting nor too enduring, too all-encompassing nor too confined, too commonly experienced nor too isolated, too severe nor too insignificant, but instead is just right. Hence, for adversity to have the best chance of stimulating innovation, it should be (1) a relatively discrete experience; (2) of moderate intensity; (3) experienced collectively rather than in isolation; and (4) significant enough that, if left unaddressed, the adversity could result in severe consequences for large groups of people. To be clear, these conditions are not necessary for innovation- adversity, or some other trigger, might spur innovation even if each of these conditions is not met. Neither are they sufficient-innovation will not necessarily occur even if all of these conditions are present. Indeed, individual and organizational characteristics often play a role in determining whether a party will respond to adversity with innovation. But existing research suggests that these are some of the features of adversity most conducive to, and thus most likely to inspire, innovation. Conversely, adverse conditions falling outside of these parameters are more likely to inhibit innovation, or at least fail to stimulate it. We then assess what this means for IP laws and innovation policy more generally. Predominant theories suggest that IP laws are meant to incentivize parties to benefit society through innovation and creativity. Yet over the years, commentators have pointed out that IP rights are often unnecessary to inspire these activities and thus at times impose unnecessary costs on society by restricting access to those innovations. We contribute to this important discussion by highlighting the role that adverse conditions frequently play in affecting the pace and direction of innovation. First, we argue that the role of certain types of adversity in stimulating innovations provides another reason to doubt the efficacy of IP rights as applied to many of those innovations. Other policy levers, such as grants and prizes, may often be preferable in such cases. Second, we explore possible solutions to innovation-inhibiting adversity, including bolstering IP rights in certain situations and a greater societal commitment to basic research funding. Finally, we examine the role that adversity can play in creating innovation path dependencies, and we briefly explore some possible solutions to this dilemma
Incremental Change in Wills Adjudication
Get PDFProbate courts must decide which wills are valid and which are not. The traditional law provides courts a straightforward process to make these decisions. If the court determines that a will complies with certain formalities, then the will is valid, but if the court determines that a will does not comply, then it is invalid. This decisionmaking process has been criticized for being overly formalistic. While the traditional law is relatively easy to apply, it places greater importance on the process by which a testator executes a will than on the substance of the testator\u27s intent. Consequently, the traditional wills adjudication process invalidates noncompliant wills that are authentic expressions of testators\u27 intended estate plans. This criticism has led to major reforms being incorporated into the Uniform Probate Code that are designed to make the wills adjudication process more accurate in distinguishing authentic wills from inauthentic wills. Although no state has fully adopted the UPC\u27s comprehensive reform package, few states still cling wholeheartedly to the traditional law. Instead, policymakers in many states have implemented changes that take incremental steps away from the traditional law\u27s formalistic approach to wills adjudication. While the preference of state policymakers for incremental change, rather than for comprehensive reform, is clear, questions remain regarding the merits of these more modest approaches to reform. This Article seeks to better understand why state policymakers might favor partial rather than wholesale change to the wills adjudication process. More importantly, it analyzes whether some incremental changes are preferable to others. Ultimately, by providing a better understanding of the merits and possibilities of incremental change, this Article provides guidance to state policymakers who are wary of comprehensive reform
FSU Law Focus - 03/25/2022
Get PDFFrom the Dean: Law and Risk Management Course - Fred E. Karlinsky (\u2792); FSU BLSA Wins National Championship; Remembering Professor Dore - Patricia A. Dore; Alum Profile: David A. Powell (\u2787); Student Profile: 3L Emily Stephensonhttps://ir.law.fsu.edu/fsu-law-focus/1004/thumbnail.jp
FSU Law Focus - 10/31/2022
Get PDFFrom the Dean: Public Interest Law Center partnered with International Rescue Committee. Legal Services of Florida, FSU Center for Advancement of Human Rights to aid Afghan refugees; 2022-23 Viewbook Available; Alum Profile: Benjamin H. Dickens Jr. (\u2777); Student Profile: 3L Harrison Martingaylehttps://ir.law.fsu.edu/fsu-law-focus/1029/thumbnail.jp
FSU Law Focus - 11/18/2022
Get PDFFrom the Dean: Public Interest Law Center cited in United Nations Report (2022 Report on Climate and Racial Justice to the General Assembly); FSU Law SALDF Named Chapter of the Year; Alum Profile: Philomène Verlaan (December \u2774); Student Profile: 3L Chloe Schultehttps://ir.law.fsu.edu/fsu-law-focus/1049/thumbnail.jp
FSU Law Focus - 12/09/2022
Get PDFFrom the Dean: Season two of the Takin\u27 Care of Business podcast; Faculty Profile: Preston McLane (\u2709); Alum Profile: Thomas R. Philpot (\u2711); Student Profile: 3L Elena Gallegohttps://ir.law.fsu.edu/fsu-law-focus/1064/thumbnail.jp
FSU Law Focus - 02/25/2022
Get PDFFrom the Dean: Special Lecture by Jules Coleman ( What the Law and Morality Can Learn from Race Horses and Trolley Cars ); Alumni Needed for Pro Bono Challenge; Alum Profile: Alexandra E. Akre (\u2716); Student Profile: 3L Brenna Fischerhttps://ir.law.fsu.edu/fsu-law-focus/1328/thumbnail.jp
Trademark Fame and Corpus Linguistics
Get PDFTrademark law recognizes that the same word can mean different things in different commercial contexts. Legal protection might extend to two or more owners who use the same symbol (like Delta) to indicate different sources of disparate goods or services, such as airlines and faucets. Generally, only those uses that threaten to confuse consumers-the use of similar symbols on identical or related goods-are subject to legal sanction.
But the law extends special protection to famous trademarks, not only against confusing use, but also against dilution: non-confusing use that blurs or tarnishes the distinctiveness of the famous mark. The result of protection against blurring is that the law treats the famous mark as if the sole proper use of the term in the commercial context is to designate goods and services from the famous mark\u27s owner.
Protection against dilution extends only to famous marks, but courts and scholars apply differing standards for assessing fame. Nonetheless, the trend over time has been to treat fame as a threshold requiring both sufficient renown-the famous mark must be a household name-and relatively singular use.
This article argues that corpus linguistic analysis can provide evidence of whether a mark is sufficiently prominent and singular to qualify for anti-dilution protection. Corpus linguistics detects language patterns and meaning from analyzing actual language use. This article draws data primarily from two large, publicly accessible databases (corpora) to investigate whether litigated trademarks are both prominent and unique. Courts and parties can consider frequency evidence to establish or refute prominence, and contextual evidence like concordance and collocation to establish relative singularity.
Corpus evidence has some advantages over standard methods of assessing fame. Corpus evidence is cheaper to generate than survey evidence but may be equally probative. Corpus analysis can help right-size dilution litigation: A litigant could estimate the prominence and singularity of an allegedly famous mark using corpus evidence prior to discovery and better predict whether the mark should qualify for anti-dilution protection. Judges should be able to rely on the results of corpus analysis with reasonable confidence. Additionally, corpus evidence can show use of a mark over time, providing courts with tools to assess when a mark first became famous, a question that a survey generated for litigation cannot readily answer
