The Costs of Trademarking Dolls

Rebecca Curtin, Zombie Cinderella and the Undead Public Domain86 Tenn. L. Rev. __ (forthcoming 2018), available at SSRN.

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s “refusal to register” determination, it did so because it said Disney’s mark is a conceptually weak source indicator of “Disney” for dolls. This leaves open the possibility that Disney could build a stronger association between its mark and its dolls and eventually monopolize the term “Cinderella” as a mark for princess dolls. Professor Curtin’s article argues that leaving this opportunity open would be bad policy and should be precluded under a proper application of trademark law.

There are several aspects of this article that make it worth reading. First, it is a deep dive into a single case at the PTO, teaching readers about trademark registration and appeals from adverse rulings. The article reads as a compact case history from beginning to end. It appropriately balances the technical aspects of trademark practice with conceptual dimensions of trademark theory, such as aesthetic functionality (a doctrine that bars trademark protection for design and word elements that confer a non-reputationally-related advantage on the trademark holder). Second, drawing from her scholarly expertise in literary history, Professor Curtin provides rich and appropriately expansive details about Cinderella’s provenance as a character dating from 1558. The cultural history alone makes this article a joy to read, as Professor Curtin traces the Cinderella character forward to the 1899 Georges Melies’ film Cinderella and backward to a ninth century Chinese folk tale. This sets up the issue of what Disney can properly claim to own of the character’s name (as a trademark for its own princess doll toy) after the 1950 release of its film Cinderella. Continue reading "The Costs of Trademarking Dolls"

Construing Precedent

Richard Re, Beyond the Marks Rule, 132 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

What is the nature of precedent? How is it made and how can it eventually be unmade? If anyone knows, it is Richard Re at UCLA School of Law. Re has been doing the academy and the judiciary a service in recent years by writing several articles and a scholarly amicus brief on the foundational question of how certain opinions come to bind others. Beyond the Marks Rule is his latest offering in this rich area, and it does not disappoint.

Beyond Marks begins with what one might call the “less-than-five problem.” Generally, the Supreme Court creates binding precedent when a majority of the Justices supports a single rule of decision. Under the “majority rule,” if five Justices sign on to Rule A and four Justices sign on to Rule B, Rule A becomes the holding of the Court and binds the lower courts thereafter. But occasionally the Supreme Court does not merely split but fractures, leaving us in a world of, say, 4-1-4 (in which five Justices agree on an outcome, but only four agree on a rule explaining the outcome and one relies on alternative reasoning). What to do in such a situation? One could imagine concluding that an opinion without a majority is an opinion without precedential effect. But at the moment we are bound to conclude otherwise, thanks to Marks v. United States. Continue reading "Construing Precedent"

How the Law Contributes to Our Ever-Rising Health Care Costs

William M. Sage, Explaining America’s Spendthrift Health Care System: The Enduring Effects of Public Regulation on Private Competition, Healthcare Finance (forthcoming 2019), available at SSRN.

Do you ever wonder why our healthcare system costs double that of many other industrialized nations, yet the health of Americans is faltering? Why has our healthcare not progressed in terms of safety, efficiency, affordability, or equity in the last 20 years? In his forthcoming chapter in Healthcare Finance, Bill Sage argues that rather than the failings of partisan politics or corporate greed, our nation’s healthcare system struggles to provide quality care for a reasonable price in large part due to an inefficient legal infrastructure that hinders competition and distorts the collective investment in population health. Specifically, Sage critiques “the accumulation of laws, regulations, self-regulatory practices, and financial subsidies which locks US health care into inefficient, unfair patterns and practices.”

What follows in this impressively short, yet comprehensive, chapter is a description of how shifts in our understanding of the cost drivers in healthcare and the resultant healthcare reform efforts have created an inextricable web of laws and regulations that make healthcare so complicated and expensive. Beginning with the Affordable Care Act (ACA), Sage details the key provisions that sought to address the challenges facing health and healthcare in the US in 2010. He then points out that the ACA’s approach to national reform reflected a major shift in expert understanding of the US healthcare system in the past 20 years, and that the “dramatic implications of this new knowledge are not explicitly acknowledged in public policy debates.” The ACA’s policies transitioned the dominant health reform paradigm from one of a “three-legged stool” of tradeoffs between cost quality and access to the Triple Aim which sought policies that improved population health, improved the patient experience, and reduced costs simultaneously. This new paradigm captured the attention and focus of policymakers, telling them that eliminating “waste, fraud, and abuse” could improve healthcare quality and reduce costs. Under this paradigm, the fix could come from curbing overutilization, promoting efficiency, and expanding preventive care. Continue reading "How the Law Contributes to Our Ever-Rising Health Care Costs"

Need, Dependency, and Choice

Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018), available at SSRN.

Emily Stolzenberg’s excellent article, The New Family Freedom, outlines the tension within American society in general, and American family law in particular, between protecting individual choice (autonomy), on one hand, and having private (rather than collective) responsibility for dependency, on the other.

Choice and privatized dependency can conflict: if individuals are responsible for others only when, and to the extent that, they so choose, many dependent persons will not be adequately cared for. As Stolzenberg points out, the conflict between the two principles may be strongest when considering parental obligation, cohabitation, and alimony.

In what the author describes as “strict liability for sex” (P. 2007), fathers have been held subject to child support duties even where conception arose from statutory rape or significant fraud. Even putting aside those extreme cases, the dependency principle would support imposing parental obligations arising from a sort of tort analysis in which men “assume of the risk” (P. 2008) for any children resulting from having sex. Choice – whether through voluntary intercourse, the decision to use IVF or surrogacy (Pp. 2013-14), or voluntary paternity affidavits (P. 2014) – is characterized and offered as the grounds for imposing parental obligations, not as a justification for opting out. It is, as Stolzenberg characterizes it (P. 2013), a “one-way ratchet.” In this area of family law, the imperative to support dependent children overrides in part the autonomy interests of adults. Continue reading "Need, Dependency, and Choice"

Planning for a Post Neoliberal Future

In her summer 2018 article in Feminist Legal Studies, Silvana Tapia Tapia takes a close look at a fundamental concern for many contemporary feminists – the ways in which penal expansion under neoliberalism was a “feminist-sponsored” reform project, one which feminist movements took up while ignoring, neglecting or rejecting more redistributive efforts. Tapia Tapia’s exploration takes place in Ecuador, in 2012 – and Ecuador, part of Latin America’s “pink tide,”1 explicitly rejected neoliberalism in 2007. The Ecuadorian constitution of 2008 had “unprecedented constitutional provisions.” One of these, “Sumak Kawsay, the indigenous approach to community life, as a fundamental principle” could support alternatives to carcerality in Andean justice, among other “counter hegemonic” possibilities. In this “post-neoliberal” environment, Tapia Tapia asks, what is the relationship of feminist interventions in criminal law to feminist alignment with redistributive claims in law and politics?

Beginning with a discussion of current scholarship on “carceral feminism” and “governance feminism,” Tapia Tapia outlines the argument that penal expansion operates to shift resources away from redistribution, that it has become transnational via human rights based discourses, and that it is fundamentally punitive. She reads scholars like Elizabeth Bernstein, Janet Halley and Prabha Kotiswaran as positing a link between carceral feminism and a neoliberal form of feminism, but in reading the Ecuadorian ”post-neoliberal” context, she finds that “many feminists demanding criminalization are strongly committed to a redistributive agenda.” (P. 6.) Why and how, Tapia Tapia asks, do Ecuadorian feminists who are operating in a post-neoliberal context, and a context in which the constitutional framework embraces a plurality of sources of law (“Andean Constitutionalism”), continue to support criminalization? Continue reading "Planning for a Post Neoliberal Future"

How to Save Democracy?

Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (2018).

The last year has seen the publication of a range of impressive books on the decline of democracy worldwide.1 One of the absolute best among these is undoubtedly the new book by Aziz Huq and Tom Ginsburg, How to Save a Constitutional Democracy.

The book has four key strengths, some common to other books in this genre – but which few others can claim to have in as full a measure. Continue reading "How to Save Democracy?"

Copyright, Smart Contracts, and the Blockchain

Balázs Bodó, Daniel Gervais, & João Pedro Quintais, Blockchain and Smart Contracts: The Missing Link in Copyright Licensing?Int’l. J. of L. & Info. Tech. (September 2018).

There has been growing academic interest in the topic of decentralised, distributed open ledger technology—better known as the blockchain (see my last Jot). While the literature has been substantial, the copyright implications of the blockchain have not received as much coverage from the research community, perhaps because the use cases have not been as prevalent in the media. Taking the usual definition of a blockchain as an immutable distributed database, it is easy to imagine some potential uses of the technology for copyright, and for the creative industries as a whole. Blockchain technology has been suggested for management of copyright works through registration, enforcement, and licensing, and also as a business model allowing micropayments and use tracking.

Blockchain and Smart Contracts: The Missing Link in Copyright Licensing? by three academics at the Institute for Information Law at the University of Amsterdam, tackles this subject in excellent fashion. The article has the objective of introducing legal audiences to many of the technologies associated with the blockchain. It goes into more specific treatment of various features, such as distributed ledger technology (DLT), digital tokens, and smart contracts, and the potential uses of these for copyright licensing specifically. The article is divided into three parts: an introduction to the technology, an analysis of its potential use for copyright licensing, and a look at possible problems. Continue reading "Copyright, Smart Contracts, and the Blockchain"

Excavating the Forgotten Suspension Clause

In Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Amanda Tyler undertakes “to lay out as comprehensively as possible the full story of the legal and political history of the constitutional privilege of the writ of habeas corpus.” She does so with care and style.

In excavating what she calls the “forgotten” Anglo-American legal history of the writ of habeas corpus, Tyler begins, of course, at the beginning, in seventeenth-century England. Among the products of Parliament’s longstanding battle for power with the crown, the original Habeas Corpus Act of 1679 provided that a person who could claim the protection of English law could be detained—that is, imprisoned by the king and his ministers—only through timely criminal prosecution and conviction. Absent timely prosecution, the Act required the prisoner’s discharge. Period. Continue reading "Excavating the Forgotten Suspension Clause"

The Labyrinth of Resistance: How Correctional Bureaucracies Minimize Penal Reform

Andres F. Rengifo, Don Stemen, and Ethan Amidon. When Policy Comes to Town: Discourses and Dilemmas of Implementation of a Statewide Reentry Policy in Kansas. 55 Criminology 603 (2017).

We live in the midst of a great wave of reforms of the penal state. Much of it seeks a sharp break with recent decades of penal policy aimed at supersizing imprisonment in the name of incapacitation and control. Some observers, including this one, have been optimistic about this wave of reform for a variety of reasons. For the first time in decades reform is being normatively backed up both by social movements and federal court orders (although after Justice Kennedy’s departure the future of the federal courts are in doubt). Growing fiscal demands on states, magnified during the Great Recession, have finally forced a reckoning with correctional costs. Correctional officials in many states are talking about education, rehabilitation, and reentry with an enthusiasm not seen since the 1970s. When Policy Comes to Town by Andres Rengifo, Don Stemen and Ethan Amidon is a sobering reminder of the power frontline correctional workforces and their supervisors have to resist reform and how many discursive resources they have to define away that resistance.

The research grew out of an important change in Kansas correctional philosophy intended to reduce the state’s reliance on mass incarceration in favor of more effective rehabilitation and reintegration guided by risk assessment. The reform, dubbed the Kansas Offender Risk Reduction and Reentry Plan (KOR3P), was promoted as a change in orientation shaping the whole system. The rhetoric associated with the program was a sharp break from the model of control and containment that had guided Kansas (and many states) during the era of mass incarceration. Nor was the reform only about rhetoric, new staff focused on reentry were hired, and frontline staff, particularly parole agents, were encouraged to be more innovative in connecting released prisoners to their communities. The authors took advantage of real-time access to Kansas correctional staff (frontline, supervisory and management) to explore how correctional workers thought about reform and how they articulated their own relationship to it. They were given unprecedented access to prisons and parole offices throughout the state, where they undertook extensive qualitative interviews and focus groups with Kansas correctional staff and managers, ultimately gathering data from over 500 informants (far larger than the typical qualitative study of corrections). The result is the closest look ever at a correctional system going through what its leaders view as a paradigm shift. Continue reading "The Labyrinth of Resistance: How Correctional Bureaucracies Minimize Penal Reform"

Accommodating Blockchain

Jonathan Rohr and Aaron Wright, Blockchain-Based Token Sales, Initial Coin Offerings, and the Democratization of Public Capital Markets (revised Mar. 24, 2018), available at SSRN.

Every once in a while I wake up and realize that there’s a new cluster of highly technical stuff that I need to learn about to stay current in my field. My usual recourse is to find a law review article that gets me up to speed. It usually works, but not always. Back in the 1990s, for example, the leading technical topic was securitization and structured products. I read a lot of articles, but none of them got me where I knew I needed to be. Most were written by practitioners unable to get into teaching mode and present the material in an intelligible way. It took the Enron disaster to prompt the appearance of an accessible literature. Even then production was spotty, as we learned to our dismay when the economy collapsed in 2008. So, I like law review articles that teach me highly technical things that I need to know. And I really like law review articles that keep me engaged while teaching the lesson. As any business law classroom teacher knows, this is very hard to do. Complex mechanics are not easily explained, and even a successful explanation can get so wrapped up in itself as to lose the student. When an author pulls off the job in an article, the result can be a wonder to behold.

I worry that such exercises are undervalued in the present legal academic environment, for they are susceptible to snide dismissal as “inside baseball.” Such dismissals are wrong-headed. Sometimes just getting the description right and following up with a well-constructed law-to-fact analysis is vastly more valuable than any application of theoretical gloss. As Enron and the financial crisis demonstrated, the task should not be left over to practitioners. A year ago, bitcoin, blockchain, and tokens loomed up as the latest such technical topic, putting me in the market for a really good law review exposition. I found it in Blockchain-Based Token Sales, Initial Coin Offerings, and the Democratization of Public Capital Markets, by Aaron Wright and the late Jonathan Rohr. The paper does three things: first, it gives its reader the tech 101; second, it confronts the big question whether blockchain-based tokens are securities under the 33 Act; third, it addresses some law reform suggestions to federal lawmakers. It succeeds beautifully at all three tasks. Continue reading "Accommodating Blockchain"

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