Monthly Archives: November 2016

Registration and its Discontents

Rebecca Tushnet, Registering Disagreement: Registration in Modern American Trademark Law, 130 Harv. L. Rev. (forthcoming), available at SSRN.

Much work has been done on the theoretical foundations of trademark law generally, but very little on trademark registration specifically (at least in the U.S.). The reason is that, for most of the last fifty years, courts have been telling us that, with a few exceptions, registration really doesn’t matter. Courts evaluate the validity of an unregistered mark under essentially the same standards as registered marks, and they use the same likelihood-of-confusion analysis to determine infringement.

But it turns out to be hard to maintain a rule that registration means nothing when the Lanham Act clearly was intended to create some substantive rights that did not previously exist. It’s also difficult to ignore the elaborate regulatory apparatus the PTO has constructed to evaluate applications to register – one that includes detailed rules about the format in which a mark is claimed and the goods and services are described, and that provides for administrative proceedings to oppose or cancel registrations. Why would any of that exist, and why would companies spend so much time and money dealing with registration, if it was meaningless?

So, not surprisingly, registration does sometimes matter to courts – indeed, in its recent B&B Hardware decision, the Supreme Court described it as significant. But how is it significant, and when? As Rebecca Tushnet wonderfully demonstrates in her terrific new article Registering Disagreement: Registration in Modern American Trademark Law, there is no consistent answer to that question, because trademark law has no theory of registration. Continue reading "Registration and its Discontents"

Yes, Cross-Market Hospital Mergers Can Really Drive Up Costs

Leemore S. Dafny, Katherine Ho & Robin S. Lee, The Price Effects of Cross-Market Hospital Mergers (NBER Working Paper No. w22106, 2016).

The Price Effects of Cross-Market Hospital Mergers, by economists Leemore S. Dafny, Kate Ho, and Robin S. Lee is a must-read for anyone interested in healthcare price and competition. Now, don’t get scared off by the fancy equations and economic terms like “concavity”—there is more than enough substance in plain English to make this paper accessible to an interested non-economist. The paper provides a missing link in current antitrust enforcement efforts by providing both theoretical and empirical evidence demonstrating that cross-market mergers can harm competition in ways that could violate both state and federal antitrust laws. Despite anecdotal claims to the contrary, antitrust enforcers have argued for years that cross-market mergers could not drive up the price of healthcare. Yet, we have continued to see significant consolidation in the healthcare system, both within and across geographic and product markets, along with the price increases that tend to accompany that consolidation.

Cross-market mergers have gone entirely without scrutiny from federal and state antitrust enforcers, who have argued that causes of action based on such mergers lack both a theoretical and empirical basis. However, a handful of scholars and international regulators—e.g. Vistnes & Sarafides and the European Commission—have begun to argue more forcefully that cross-market mergers can drive up costs even in markets that lack overlapping product and geographic markets, by creating what they call “portfolio power.” But, until now, there has been a lack of empirical evidence to demonstrate that cross-market hospital consolidation could drive up costs. Continue reading "Yes, Cross-Market Hospital Mergers Can Really Drive Up Costs"

Scalia’s Jurisdiction

Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN.

Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”

Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago. Continue reading "Scalia’s Jurisdiction"

Responding to Economic Inequality: The Place of Race

Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016).

Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?

I read this article because I’m working on a research project1 about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality. Continue reading "Responding to Economic Inequality: The Place of Race"

Rendering the Community, and the Constitution, Incomprehensible Through Police Training

The Supreme Court has increasingly relied upon the concepts of professionalism and police training when regulating police conduct under the Fourth Amendment. For the most part, however, academic interest in how the police are trained to select, encounter, seize, and search individuals on the street has remained anemic. Even the recent scholarship on implicit bias training is primarily oriented towards prescribing rather than reviewing current practices. Nancy Marcus’s article is a welcome antidote to this large gap in our legal knowledge.

Police training plays an important role in current Fourth Amendment doctrine. Since the early 1980s, the Supreme Court has engaged in the continuous, albeit intermittent, deregulation of policing. That deregulation consists in replacing external, judicial scrutiny of lots of police activity on the street with the internal review of subordinates by superior officers in each the many hundreds of police departments around the country. The Court’s deregulatory jurisprudence, which often centers around attacks on the exclusionary rule and its underlying rationale, reached its apogee in the 2006 case, Hudson v. Michigan. In Hudson, Justice Scalia, writing for the majority, insisted that:

we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers.…Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline.

Unfortunately, Justice Scalia relied on a single sentence in a single page in a single source for his evidence of training reform. Anyone who has studied—or tried to study—police training knows how disingenuous the Court’s statement was: police training is almost as fragmented as policing itself. Marcus’s article goes further: she demonstrates just how wrong Justice Scalia was to assume that police training tracks the Fourth Amendment’s demands. Continue reading "Rendering the Community, and the Constitution, Incomprehensible Through Police Training"

Introducing U.S. Law

Robert H. Klonoff, Introduction to the Study of U.S. Law (2016).

Teaching an introductory course on United States Law to foreign students is a challenging task, regardless of whether it is done in a U.S. law school as part of an LL.M. program or in a course taught abroad. LL.M. programs usually provide one such course each academic year. Some of these courses use material randomly assembled by the teachers and assigned to the class. Others use published casebooks, most of which are outdated or otherwise unsatisfactory, too synthetic to achieve their stated goal, lacking a unitary vision, and devoid of informative comparative angles.

Robert Klonoff’s Introduction to the Study of U.S. Law is the most updated, thorough, and precise text on the subject currently available. The first true “U.S. Law” casebook for foreign students and designed in the U.S. law school tradition, it embarks on its mission with intriguing comparative law angles, addressing questions that a foreigner might raise when first confronting U.S. law. Overall, the casebook offers a solid, engaging, and effective guide to the study of the pillars of the U.S. legal system. The selection of topics, the organization, and the clearly stated analysis make the book an effective tool for any foreign lawyer interested in taking the bar exam in the United States. But it is so much more than that. Continue reading "Introducing U.S. Law"

Automatic – for the People?

Andrea Roth, Trial by Machine, 104 Georgetown Law Journal 1245 (2016).

Crucial decision-making functions are constantly migrating from humans to machines. The criminal justice system is no exception. In a recent insightful, eloquent, and rich article, Professor Andrea Roth addresses the growing use of machines and automated processes in this specific context, critiquing the ways these processes are currently implemented. The article concludes by stating that humans and machines must work in concert to achieve ideal outcomes.

Roth’s discussion is premised on a rich historical timeline. The article brings together measures old and new—moving from the polygraph to camera footage, impairment-detection mechanisms such as Breathalyzers, and DNA typing, and concluding with AI recommendation systems of the present and future. The article provides an overall theoretical and doctrinal discussion and demonstrates how these issues evolved. Yet it also shows that as time moves forward, problems often remain the same. Continue reading "Automatic – for the People?"

Corporate Dystopia

Sometimes reading a book about one’s own field can be a painful experience, not because there’s anything wrong with the book, but because the book is so instructive and insightful as to highlight one’s own shortcomings of knowledge and understanding. I had this bittersweet experience with Jerry Davis’ The Vanishing American Corporation.

The vanishing corporation in question is the big, publicly-traded manufacturer that dominated both economy and society from the end of World War II through the 1970s. Since 1980, this kind of company has been disappearing, relatively speaking. But we knew that, didn’t we? Sure, what with restructuring and downsizing, our awareness is keen. But I’m not sure we have appreciated the extent of the change and grasped its implications. That’s where Jerry Davis comes in. Davis, who is on the both the business and sociology faculties at Michigan, brings the perspectives of both disciplines to bear as he takes a broad view of the evolving role that corporations play in society. The presentation is also historical, as makes sense for an account that asks us to compare what we have now with what we have lost. The book takes us from post-war managerialism and a world where the big corporation is far and away the dominant employer, to the economic crisis of the 1970s and eroding confidence in American managers, to the leveraged restructuring of the 1980s, and finally to the tech-centered present. The focus is on employment, welfare provision, and the corporation’s social presence in tandem with an account of the evolution of shareholder-manager relations and corporate governance. The big corporation starts to shrink after 1980 and keeps on doing so. This starts with a big bang: the conglomerate bust up of the 1980s, and with it, the end of life-time career tracks and narrow salary dispersions within corporate hierarchies. Thereafter, between competition abroad and shareholder value maximization at home, the process continues more quietly but just as determinedly. Gradually, corporate institutions give up (or, in some cases, default on) the responsibilities for social welfare provision they assumed in the years after World War II. Today, a company centered in a national economy in which welfare provision was remitted to the state in the years following World War II is ceteris paribus a fitter competitor than a US company saddled with the burden of providing medical benefits for its employees. Meanwhile, what were once corporate careers have evolved into temporary corporate jobs, and not all that many of them, particularly in the tech sector. Future generations may not get corporate jobs at all, instead performing piecework tasks distributed through internet clearinghouses. Continue reading "Corporate Dystopia"

Is the CISG Irrelevant?

John F. Coyle, The Role of the CISG in U.S. Contract Practice: An Empirical Study, U. Penn. J. Int’l L. (forthcoming 2016), available at SSRN.

Very few American contract courses cover the CISG. (My book gestures at coverage; my course doesn’t.) That was true before the recent lamented trend toward a one-semester course, and it is increasingly the rule today. Why? Contract professors I’ve talked to on this subject typically justify themselves by asserting that the CISG is rarely relevant in domestic practice. But such casual empiricism, when asserted in a company mixed with comparativists, can seem irresponsible. What if we’re wrong?

Now comes John Coyle to test that conventional account. Of course, there’s nothing easier to publish than a surprising empirical finding. (That such findings are rarely replicable is an embarrassment.) Articles confirming instead of rebutting our priors are thus especially important to celebrate. Coyle tells teachers of contract law that we’ve gotten it basically right: the CISG is less popular than the Congress. He does so in a mixed-methods paper notable for its carefulness and restraint. I like it lots. Continue reading "Is the CISG Irrelevant?"

Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots. Continue reading "Minding American Law"