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FSU Law Focus - 08/30/2019
Get PDFFrom the Dean: Professor Sally Gertz retires; Associate Deans for the 2019-2020 Academic Year; Alum Profile: Marissa D. Johnson (’14); Student Profile: 3L Jada Roulhachttps://ir.law.fsu.edu/fsu-law-focus/1092/thumbnail.jp
FSU Law Focus - 06/14/2019
Get PDFFrom the Dean: FSU #8 for government and public interest jobs (Law.com); Faculty Profile: Terri Casey; Alum Profile: Mary Thomas (’05); Student Profile: 2019 Grad Kristen Rivenbark-Cookhttps://ir.law.fsu.edu/fsu-law-focus/1158/thumbnail.jp
FSU Law Focus - 01/18/2019
Get PDFFrom the Dean: Fonvielle Public Dfender Service Awards luncheon; Faculty Profile: Tahirih V. Lee; Alum Profile: Michael D. Redondo (’10); Student Profile: 3L Kelsey Earlyhttps://ir.law.fsu.edu/fsu-law-focus/1286/thumbnail.jp
Partisan Gerrymandering and the Constitutionalization of Statistics
Get PDFData analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court\u27s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy. This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflecteds uch a quasi-regulatorya pproach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake. The law ofpartisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage. This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue
The Impossibility of Simple Models of Impossibility in Contract Law
Get PDFReview of The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, 85 Brook. L. Rev. (2020), by Uri Benolie
Placebo Marks
Get PDFScholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer.
A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing a high-performance mark. For example, subjects using a putter with a Nike label can sink a putt in 20% fewer strokes than subjects using the same putter with a different label.
This performance-amplifying effect stems from shaping consumer perception, but the effect does not limit consumer autonomy. Indeed, the benefits of shaping consumer perception may outweigh the costs. Moreover, understanding this performance-enhancing placebo effect provides additional insights. The effect is price sensitive. Maximizing price competition in a market for branded goods
may sometimes reduce positive spillovers that would otherwise flow to consumers who use products with high-performance marks. Additionally, high-prestige marks do not provide a performance-enhancing effect, suggesting that consumers perceive and use high-performance and high-prestige marks differently. The difference might blunt criticisms of trademark mechanisms that safeguard prestige value like post-sale confusion and protection against dilution, at least for that subset of high-prestige marks that are also high-performance marks. Moreover, reforming trademark law to prevent all manipulation of consumer perception, including the creation of a high-performance reputation may have the unintended consequence of unraveling benefits consumers receive from mechanisms like performance-enhancing placebo effects
