Trade dress, as a subset of trademark law, can offer potentially perpetual protection to a product’s design or packaging features if they aid consumers in identifying a product’s source. Yet these protected design features might be valued by consumers not only because of their source identifying function, but also because consumers find the design or package features beautiful, independent of the goodwill generated by the producer. Thus, under the doctrine of aesthetic functionality, manufacturers who produce red-soled shoes or whiskey with a melted wax seal might gain what courts have called a “non-reputation-related” competitive advantage, ultimately warranting the expropriation of the protected product feature into the public domain.
This Article argues that courts, in assessing questions of aesthetic functionality, should give particular weight to surveys asking consumers whether they would be better off if competitors were allowed to use a protected trade dress feature in their own products. Just as, under the doctrine of genericide, consumers are able to expropriate word marks if consumers find it more beneficial to associate the language feature of the trademark with competitors’ products, consumers should also be able to expropriate trade dress rights of a particular manufacturer if they find it more beneficial to have these design and packaging features available to the manufacturer’s competitors. Creating a genericide analog for cancelation of trade dress can further trademark’s central goal of protecting consumer welfare.
This Article reports “proof of concept” results of our proposed consumer surveys with regard to seven different forms of existing trade dress—including not only Louboutin’s red-soled shoes and Maker’s Mark’s red-drip wax seal, but also Gucci’s famous “diamond motif” and Emeco’s Navy chair. We implement our surveys as a between-subject randomized experiment that allows us to causally estimate the intensity of consumer preferences as well as the impact of “guiding” subjects on the likely consequences of forgoing trade dress protection. Our results, while at best suggestive, found that judicial assessments of functionality were often not predictive of consumer protection preferences. For example, a statistically significant majority indicated they would be better off if other manufacturers were allowed to produce Emeco’s Navy chair design, notwithstanding a contrary judicial holding. We also found that large consumer majorities chose to protect two iconic Veblen goods: the Louboutin shoe and the Gucci Diamond Motif, even when informed that such protection would likely lead to higher prices—indicating a desire to preserve trade dress’ power to sustain social distinction.
Does the mass media affect judicial decisionmaking? This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing. To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection. The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts. These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system. Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials. The Article concludes by suggesting methods for countering such media effects.
Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged. However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and voting against directors in order to advance board diversity and corporate sustainability. We show that index funds have engaged in a pattern of competitive escalation in their policies on environmental, social, and governance (“ESG”) issues. Index funds’ confrontational and competitive activism on ESG issues is hard to square with their passive approach to more conventional corporate governance questions. To explain this dichotomy in approaches, we argue that index funds are locked in a fierce contest to win the soon-to-accumulate assets of the millennial generation, who place a significant premium on social issues in their economic lives. With fee competition exhausted and returns irrelevant for index investors, signaling a commitment to social issues is one of the few dimensions on which index funds can differentiate themselves and avoid commoditization. For index funds, the threat of millennial migration to another fund is more significant than the threat of management retaliation. Furthermore, managers themselves, we argue, face intense pressure from their millennial employees and customers to respond to their social preferences. This three-dimensional millennial effect—as investors, customers, and employees—we argue, is an important development with the potential to provide a counterweight to the wealth-maximization paradigm of corporate governance. We marshal evidence for this new dynamic, situate it within the existing literature, and consider the implications for the debate over index funds as shareholders and corporate law generally.
The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation, and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete. While initially intended to do justice between the parties, if used today these doctrines perversely and unjustly deny parties contractual rights that were bargained for in a free and fair agreement. Yet judges continue to recognize the ex post doctrines, even as they struggle to reconcile them with respect for the parties’ intent. Although infrequently applied, the ex post doctrines are far from dead letter. The penumbra of uncertainty they cast over contract adjudication continues to undermine contracting parties’ personal sovereignty. The only case for continuing to recognize these equitable interventions, therefore, must turn on whether they serve a new valid purpose. We consider and reject the possible purposes of paternalism and anti-opportunism suggested by contemporary pluralist scholars. In our view, the criteria governing theories of legal interpretation support the interpretation of contract law as exclusively serving personal sovereignty rather than any pluralist interpretation. Under its best interpretation, contract law has no place for the ex post perspective.
This Article will demonstrate that the originalist argument in Carroll is based on an incorrect historical interpretation of the history of the Fourth Amendment. As discussed in greater detail below, the Carroll argument hinges on the allowance of warrantless ship searches by the First Congress (the same Congress that proposed the Fourth Amendment), coupled with a further analytic step of analogizing ship searches to land vehicle searches. This Article will show that warrantless ship searches were considered permissible under the Fourth Amendment because they were confined to federal admiralty jurisdiction at the time of the Founding. In contrast, land searches were treated differently by the First Congress. Thus, as this Article will demonstrate, the originalist argument in Carroll fails.
Finally, this Article will refute the pragmatic policy arguments offered by the Supreme Court to justify the vehicle exception. While policy arguments are not necessarily meritless, they are the weakest justifications in this instance, because the vehicle exception goes against both the text and the original intent of the Fourth Amendment. There are two main arguments in favor of a warrantless search exception: (1) the mobility of vehicles and (2) the substantial government regulation of vehicles. This Article will demonstrate that both rest on faulty premises that do not justify the abrogation of the Fourth Amendment warrant requirement.
Even upon its creation in 1925, the vehicle exception to the Fourth Amendment has always rested on a shaky ground. The time has come for the Supreme Court to overturn this exception and instead apply the text and history of the Fourth Amendment to require warrants for the search of vehicles.
Part I traces the evolution of First and Fourteenth Amendment jurisprudence and examines the existing doctrine as it pertains to the NFL’s anthem policy. Although the Court has developed a patchwork of state action tests over the years, this Note focuses specifically on the impact and necessity of expanding the state encouragement theory. Part II proposes that the President unconstitutionally coerced and influenced the NFL to change its longstanding anthem policy by unleashing a calculated media firestorm, encouraging fans to boycott games, and threatening to revoke the league’s tax-exempt status. Trump’s success in employing these unprecedented tactics to suppress speech he deemed objectionable exemplifies his willingness to disregard constitutional principles and norms in pursuit of unfettered executive control. Overall, the government’s ability to influence the NFL to depart from its longstanding position, and censor player protests, sets a frightening precedent. Part III focuses on the vulnerability of three private actors: universities, news outlets, and social media and technology companies, and assesses the mounting danger of outsourced censorship beyond the NFL. Part IV argues that the Court has abdicated a core part of its role as a co-equal branch of government by abandoning formerly-broad notions of state action and allowing the Executive Branch to hide behind private actors.
In order to combat the growing threat of outsourced censorship, the Court must revive the state encouragement theory and unequivocally apply the doctrine to cases in which the government has manifestly coerced or influenced a private actor’s speech restrictions. The future of the First Amendment is at a crossroads, and if the Court continues to turn a blind eye to the Executive’s constitutional abuses, truly meaningful speech or press protections will cease to exist.
This Article shows that a variety of fundamental rules of corporate law are based on myth. The Article explains that the myths on which corporate law is based play an important role in attracting public acceptance and support for what otherwise would likely be unpopular and controversial regulations. Thus, one can view the role played by myth in corporate law in a particular context as having either positive or negative characteristics depending on one’s opinion of the social value of the underlying legal rule that is being buttressed and affirmed by the myth.
Four political and sociological myths that continue to play important roles in law are examined. These are: (1) the myth that corporations are owned by their shareholders and represent ownership interests in businesses rather than mere financial claims on the cash flows of those businesses, coupled with certain political (voting) rights that protect those claims; (2) the “shareholder value myth,” that corporate officers and directors are legally required to maximize firm value; (3) that subsidiary companies are entirely independent from and not subject to the control of their parent companies and must remain so in order for the parent company to avoid liability for the contract and tort debts of the subsidiary under various alter ego and piercing the corporate veil theories of corporate law; and (4) the legal regulation of insider trading is justified because of the necessity of creating a “level playing field” among participants in financial markets. Reasonable people can disagree about whether the role played by these myths is normatively positive or negative in each of these contexts.
Postscript | Administrative LawThe Supersecretary in Chiefby Kathryn E. Kovacs* Vol. 94, Postscript (November 2020)94 S. Cal. L. […]
In this Note, I offer a summary, a realization, a conclusion, and an explanation: a summary of what I found to be the most convincing arguments of each side, noting both the plaintiffs’ and defendant’s efforts to characterize history as uniquely supporting their favored interpretation; a realization of the impossibility of perfect historical consistency in any interpretation; a conclusion that in light of unavoidable historical inconsistency, the Foreign Emoluments Clause does indeed apply to President Trump’s hotel revenues; and an explanation of one possible way to view the inconsistent application of the clause in view of my conclusion that it does apply.
Under my proposed view, the fact patterns of all the introductory stories fall within the scope of the Emoluments Clause(s) —they are all “emoluments” under the broad definition—but the difference in the propriety of the behavior is based primarily on what is outside the fact patterns: the appearance of the possibility of corruption. The reason these cases are being brought against the forty-fifth president and not the first has much more to do with the perception of who the presidents were and are, and the public’s corresponding intuitive sense of the possibility of corruption. This understanding is one possible explanation of how Washington could purchase land at a public auction designed to raise funds for the founding of the new capital without raising flags, but Trump cannot similarly lease hotel space from the government and avoid scrutiny.