1,720,985 research outputs found
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Legal Sets
Get PDFIn this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases according to their form. While many legal professionals may intuitively navigate this set-theoretic structure, the formal model of that structure has important implications for legal theory. In particular, it (1) generates a useful account of the relationships among rules, standards, and principles; (2) provides a novel set of tools for understanding the nature of precedent; and (3) illuminates an extra-linguistic dimension to the problem of judicial discretion. On the last point, I argue that discretion is not merely a product of the imperfect relationship between abstractions and reality, or between natural language and the world, but that it is instead an emergent property of the structure of legal practice: a structure composed of sets “all the way down.
Dividing Trademark Use
No full textThe trademark law of the United States places special emphasis on whether and how a trademark is used in commerce. But over the long history of the Lanham Act—including some less-than-careful drafting by Congress and some aggressive acts of interpretation by the federal courts—the concept of “use” has become complicated and in many ways confused. Two recent Supreme Court cases—Jack Daniel’s Properties, Inc. v. VIP Products LLC and Abitron Austria GmbH v. Hetronic International, Inc.—reflect and in some ways exacerbate that confusion. But the opinions in these cases also expose an interesting property of “use” in trademark law that has not been deeply examined in the caselaw or the academic literature. That property is that the use of a trademark can be divided among multiple agents with respect to a single product or service. The potential for divided use raises issues of secondary responsibility that trademark law has never comprehensively addressed. This Article catalogues the various notions of “use” in trademark law, shows how Jack Daniel’s and Abitron destabilize these notions, and applies principles of secondary responsibility to attempt to reconcile those cases with other contentious areas of trademark doctrine under the framework of divided use
Accentuate the Normative: A Response to Professor McKenna
Get PDFIn his article, “A Consumer Decision-Making Theory of Trade-mark Law,” 98 Va. L. Rev. 67 (2012), Professor Mark McKenna makes two significant claims. The first is that the dominant Law and Economics theory of trademark law—the search-costs theory of the Chicago School—is in some way connected to recent undesirable expansions of trademark rights. The second is that a preferable theory of trademark law—one that would result in more tightly circumscribed and socially beneficial notions of trademark rights—would take consumer decision making, rather than search costs, as its guiding principle. I find myself sympathetic to these arguments, and yet I believe they are subject to criticism on grounds that they violate Hume’s Law—that is, they confuse the descriptive with the normative, the is with the ought. In this response I will suggest that a careful untangling of the descriptive and normative elements of McKenna’s project, while perhaps undermining some of his claims, lends considerable support to his overall ambition of organizing trademark doctrine by reference to a theory other than search-costs theory
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The Myth of the Level Playing Field: Knowledge, Affect, and Repetition in Public Debate
No full textThe industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decision making by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empirical findings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal equality operate at cross-purposes. Equalizing measures in campaign finance regulation are extremely likely to increase the divergence between actual political decision making and a deliberative, informed, rational ideal by increasing the incentives for speakers to mislead and manipulate voters or by entrenching preexisting majorities. This Article argues that, rather than focusing on equality of financing, reformers would do better to think about how to ameliorate the source of non-optimal political decision making: the (economically rational) political ignorance, non-rational decision making, and civic disengagement of the average citizen
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The Ethics of Unbranding
No full textThis Essay explores the ethical implications of the phenomenon of unbranding that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory
Dilution at the Patent and Trademark Office
Get PDFThis Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different registrants in different product classes is a long-standing feature of the registration system that does not appear to have changed with the advent of anti-dilution rights. In the third part, I examine third-party applications to register famous marks, and find some suggestion that anti-dilution rights coincide with a modest decrease in the success of such applications—more likely due to an increased rate of abandonment by applicants than to increased opposition by prior registrants. But this change, even if it is not illusory, would correspond to at most an additional 5 to 30 rejected applications per year, against an annual volume of as many as 200,000 applications for word marks in general. While additional research may help buttress the case that anti-dilution rights have had a modest effect on registration for a very narrow class of marks, I conclude that their primary effect appears to be imposing increased costs on those who have business with the trademark system, with little if any apparent benefit to justify those costs
Reverse Confusion and the Justification of Trademark Protection
Get PDFTheories of private law are dominated by welfarist normative frameworks, and trademark law is no exception. One such framework—the “search costs” theory associated with the Chicago School of law and economics—has long been the primary accepted justification for trademark rights. However, this theory fails to account for numerous features of actual trademark doctrine, as earlier scholarship has shown. This Article demonstrates how one underexamined area of trademark law—reverse confusion liability— is a similarly poor fit with the predictions and prescriptions of conventional economic theory. Plausible economic theories of trademark rights would either refuse to impose liability in reverse confusion cases or would limit a plaintiff’s recovery to damages. But in the actual cases, reverse confusion plaintiffs win broad injunctive relief, provided they can make particular showings regarding their defendants’ knowledge, intent, and relative economic power. These features of the doctrine are better explained by my own developing theory of trademark as promise, grounded in contractualist ethics. Before now, I have primarily used the theory of trademark as promise to model rights and obligations between producers on the one hand and consumers on the other; this Article uses reverse confusion doctrine as a lens through which to systematically extend its application to rights and obligations among competing producers for the first time. The result is a non-welfarist, contractualist account of trademark doctrine comprehensive enough to encompass the relationship between trademarks and unfair competition: a theory that is both descriptively more successful than extant theories and normatively at least as attractive. Altogether, the success of trademark as promise in a field enthralled with economic theory ought to convince us that greater normative-theoretical diversity in the analysis of private law and market institutions is warranted
Brand Renegades
Get PDFRecent appearances of trademarks in popular culture-in rap lyrics, on reality TV shows, even in youth riots have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners\u27 control
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