Recent uclalaw_plltwps items

Against Fair Use: The Case for a Genericness Defense in Expressive Trademark Uses

Wed, 9 Sep 2026 00:00:00 +0000

The ever-expanding reach of trademark law and the narrowing strictures of trademark fair use doctrine demand new ways of thinking about defenses in artistic use cases. The present defenses of First Amendment free speech and fair use, as interpreted by courts, acknowledge just two types of expressive use as “fair”: those that target or comment upon the trademarked work itself, and/or those that somehow “transform” the original. Moreover, defending a claim of infringement — even if the use is ultimately found to be protected — is lengthy, fact-intensive, and, above all, expensive, creating a chilling effect on speech.This Article makes a plea for increasing the use of genericide or genericness defenses in expressive use cases. That is, a defendant would argue that the formerly-protectable mark has become generic in a specific market or industry as signifying not the source of the product but a category or genus of product — for example, that Cristal has become, in the rap industry,...

Privatizing Copyright

Wed, 9 Sep 2026 00:00:00 +0000

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written—and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech on those platforms is governed by a series of highly confidential licensing agreements with large copyright holders.Yet despite the dominance of private contracting in ordering how millions of pieces of digital content are made and distributed on a daily basis, little is known, and far less has been written, on just what...

Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice

Wed, 9 Sep 2026 00:00:00 +0000

In this policy analysis, four Asian Pacific American law professors make the case for affirmative action, with a special focus on Asian Pacific Americans ("APAs"). The authors believe that affirmative action produces many benefits, such as reducing the harm of racism, promoting equal opportunity, and advancing racial justice. While affirmative action has costs, many of them are misconceived or exaggerated. Those genuine costs that do exist are ones that all Americans should bear in order to move America toward a more just society.

The Perverse Logic of Teen Sexting Prosecutions (and How to Stop It)

Wed, 9 Sep 2026 00:00:00 +0000

The recent spate of child pornography prosecutions for teenagers engaging in a little harmless fun (in other words, “sexting,” where seductive, partially-nude or fully-nude images of one teen is transmitted to a lover, who might in turn send it to some friends) has called for one seemingly inarguable conclusion: such prosecutions are unconstitutional, in contravention of a teen’s First Amendment rights, and do not fall into the concerns the child pornography statute was meant to address. However, this essay examines both the Court’s child pornography jurisprudence and First Amendment doctrine as it relates to minors, arguing that a synthesis of the two would strongly suggest that sexting is both unprotected by the First Amendment as it also presents many of the same problems inherent in child pornography. However, threatening teens with lengthy jail sentences and criminal prosecutions under a statute designed for sex perverts does not seem equitable, either. Therefore, I propose...

Antitrust Regulation of Copyright Markets

Wed, 9 Sep 2026 00:00:00 +0000

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation. This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ’s victory against Penguin Random House, the publishing industry is now predicting...

Creative Labor and Platform Capitalism

Wed, 9 Sep 2026 00:00:00 +0000

The conventional account of creativity and cultural production is one of passion, free expression, and self-fulfillment, a process whereby individuals can assert their autonomy and individuality in the world. This conventional account of creativity underlies prominent theories of First Amendment and intellectual property law, including the influential “semiotic democracy” literature, which posits that new digital technologies, by providing everyday individuals the tools to create and disseminate content, results in a better and more representative democracy. In this view, digital content creation is largely (1) done by amateurs; (2) done for free; and (3) conducive of greater freedom.This Article argues that the conventional story of creativity, honed in the early days of the Internet, fails to account for significant shifts in how creative work is extracted, monetized, and exploited in the new platform economy. Increasingly, digital creation is done neither by amateurs, nor is...

Implicit Bias and the Pushback from the Left

Wed, 9 Sep 2026 00:00:00 +0000

Over the past three decades, the mind sciences have provided remarkable insights about how our brains process social categories. For example, scientists have discovered that implicit biases - in the form of stereotypes and attitudes that we are unaware of, do not consciously intend, and might reject upon conscious self-reflection - exist and have wide-ranging behavioral consequences. Such findings destabilize our self-serving self-conceptions as bias-free. Not surprisingly, there has been backlash from the political Right. This Article examines some aspects of the more surprising pushback from the Left.

Part I briefly explains how new findings in the mind sciences, especially Implicit Social Cognition, are incorporated into the law, legal scholarship, and legal institutions, under the banner of “behavioral realism.” Part II describes the pushback from the Left. Part III responds by suggesting that our deepest understanding of social hierarchy and discrimination requires...

Creativity as Data and the Copyright-Privacy Interface

Wed, 9 Sep 2026 00:00:00 +0000

Copyright is having its data privacy moment. Many pillars of the growing AI infrastructure—the training of large language models, newer retrieval augmented generation (RAG) processes, and the future of agentic AI workflows—require access to millions of copyrighted works, mining creative works not for their expressive purpose but for their data value. Copyright law, with its focus on protecting creative expression and on individualized, ex-post infringement proceedings, is currently unequipped to answer large scale questions about whether such datafication is legally permissible.We have been here once before. In the field of privacy law, long standing notions of what privacy was—as dignitarian rights focused on individualized transgressions—were similarly disrupted with the arrival of mass surveillance tools and data mining, which extracted value not from one-off transactions, but instead from information processed at scale. This Article argues that copyright, too, is now at a...

Fact-making and Epistemic Virtue in the Administrative State

Wed, 9 Sep 2026 00:00:00 +0000

Fact-making and Epistemic Virtue in the Administrative State

Copyright's Techno-Pessimist Creep

Wed, 9 Sep 2026 00:00:00 +0000

Government investigations and public scrutiny of Big Tech—or, what I call techno-pessimism—are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on two areas: antitrust and Section 230 of the Communications Decency Act, scant attention has been paid to another, almost unseen attempt to regulate Big Tech’s platform dominance—by copyright law. The recent adoption, in Europe, of Article 17 of the Copyright Directive, which removes safe harbor protection for Internet platforms and holds them liable for the creative speech of their users, is the most direct example—and a natural corollary to similar arguments for holding platforms liable under Section 230. Contemplated changes in U.S. law would make similar changes to the copyright safe harbor.Regulating Big Tech by copyright may seem intuitively justified and even inevitable: after all, if one accepts the argument that antitrust laws or Section 230 should be updated to address the...

The Artist as Brand: Toward a Trademark Conception of Moral Rights

Wed, 9 Sep 2026 00:00:00 +0000

The Visual Artists Rights Act of 1990 (VARA) controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are frequently criticized as antithetical to the traditional economic framework of American intellectual property law, Henry Hansmann and Marina Santilli have suggested that moral rights can be justified economically because they vindicate artists’ pecuniary interests. This Note, in contrast, argues that VARA also benefits the purchasing and viewing public, especially in an era of factory-made or assistantproduced art works. Specifically, moral rights, like trademark law, can reduce search costs, ensure truthful source identification, and increase efficiency in the art market. This comparison between trademark law and moral rights shows that the sort of rights regime established by VARA is neither unique nor unprecedented in American law,...

Comment on Uhlmann, Poehlman, and Nosek

Wed, 9 Sep 2026 00:00:00 +0000

The question “person or culture?” matters for law and policy because at issue is the viability of a new sort of “cultural defense.” That defense says that the (oftenembarrassing) automatic associations aren’t really measuring “me”; instead, they are measuring something about “culture.” So don’t blame me, and don’t hold me responsible. Uhlmann, Poehlman, and Nosek’s chapter demonstrates that a strong version of the cultural defense - that it has absolutely nothing to do with me - cannot withstand the evidence of predictive validity.

What about a weaker version that concedes that automatic associations have something to do with me and have some predictive power, but that they do not amount to an “attitude” and instead influence behavior via “social norms”? In this brief Comment, I argue that from an ethical and legal perspective, it is unclear what if anything should turn on that fine distinction in state of mind. Far more important are two simple questions: First, do we...

Narrativizing the Architectural Copyright Act: Another View of the Cathedral

Wed, 9 Sep 2026 00:00:00 +0000

Architectural copyright is an oft-ignored field of copyright law, if not for the lack of cases, then for the uncomfortable position it occupies on the spectrum of better-understood copyright categories like art, music, and film. Yet the study of the history and subsequent case law behind the Architectural Works Copyright Protection Act of 1990 (enacted as part of the Berne Convention) proves fruitful because of architecture’s vexed status as an object of both utilitarian functions and aesthetic aspirations, rendering it uncomfortably between the realms of patent and copyright law. This article explores the legislative history behind the Act and Congress’ reliance on one specific architect’s narrative of a postmodern architecture of symbolic appendages, resulting in a “functionally determined” standard that resurrects the tricky conceptual separability test. Turning to current case law, this article examines how the “functionally determined” test has been both applied and drastically...

Copyright and Cultural Capital

Wed, 9 Sep 2026 00:00:00 +0000

This Article explores the oft-ignored relationship between copyright law and class stratification. Copyright law widens and perpetuates the gulf between the elite and the masses in three ways. First, within copyright doctrine, the values of originality, lone artistic creation, and a fetishism of the original over the copy (evident in the Visual Artists Rights Act of 1990) align with the American high-brow's claim to avant-garde newness, utter originality, and the demoted status of art forms dependent on copies (chromolithography, photography, industrial arts). Second, copyright's legal remedies — including control over rote copying and the derivative works right — facilitate the high-brow's obsession with limited production and against appropriation ("watering down") by the middle brow and low brow. Third, a copyright holder’s monopoly power puts a high price on cultural fluency that may be impossible to achieve for those in emerging economies and the less affluent. In this way,...

Thinking Through Internment: 12/7 and 9/11

Wed, 9 Sep 2026 00:00:00 +0000

The terrorist attacks on 9-11 have frequently been analogized to Pearl Harbor. In many ways, the analogy is apt. Just as that attack launched us into World War Il, the attacks on the World Trade Center and the Pentagon have launched us into a new kind of war against terrorism. But waging this sort of borderless war poses great risks, not only to the soldiers commanded to fight but also to core American values. In this way, Pearl Harbor raises other disturbing memories, those of the internment. In this essay, Professor Kang draws lessons from the internment of Japanese Americans to the current war on terror.

Art After Warhol

Wed, 9 Sep 2026 00:00:00 +0000

Copyright laws, which generally prohibit copying, and contemporary art, which has increasingly come to rely on copying, is on a collision course—or so the traditional argument goes. This purported clash between the law and creative practice seemed to reach its apex in the Supreme Court’s recently-decided Warhol v. Goldsmith, which held against Warhol’s famous brand of unlicensed appropriations. The dissent, as well as much of the commentary published following the decision, warned that the Court’s holding will have existential consequences, striking at the very heart of the way that artists today have been raised to make and understand art.This Article presents qualitative empirical evidence that calls into question the traditional argument. Through twenty extensive interviews with leading contemporary artists, museum curators, and gallerists, it highlights an art world grappling with the problematic politics and potential inequities in using others’ copyrighted works. Artists...

Beyond the 'Prejudice Polygraph'

Wed, 9 Sep 2026 00:00:00 +0000

Behavioral realists urge the law to re spond to new scientific discoveries about the reality of contemporary discrimination. But in thinking about how the law might respond, it is easy to frame the question as: When should evidence from scientific instruments, such as the Implicit Association Test, be admissible in a discrimination lawsuit. In other words, should we admit into evidence the results of some “Prejudice Polygraph”? But this framing, which focuses on specific facts, found ex post is too narrow and obscures a much broader range of potential legal responses. Indeed, by considering both specific and general facts, as well as both ex post and ex ante time orientations, four separate quadrants of analysis emerge. Psychologists, legal scholars, and policymakers should not miss these other quadrants of anti-discrimination.

Copyright in the Expanded Field

Wed, 9 Sep 2026 00:00:00 +0000

Intellectual property law and the art forms it is meant to protect are expanding. In our information age, artists hoping to assert their rights frequently assert a combination of trademark, copyright, and right of publicity or moral rights claims in order to maximize their chances of success. This Article looks beyond IP law to some of its more unlikely complements — tort and property law — as a viable means of redress for artists who may be ineligible for copyright protection. Specifically, recent cases involving a specific form of hybrid art — land art, or “site specific art” — have determinedly stripped artists of either their moral rights or copyright claims. Thus I suggest looking to the laws of trespass and nuisance as new ways of thinking about the same problem: How do we balance public rights in our shared artworks with private rights of control? Surprisingly, this Article suggests that applying nuisance law’s balancing test has much in common with the four-factor balancing...

Seeing Through Colorblindness: Implicit Bias and the Law

Wed, 9 Sep 2026 00:00:00 +0000

Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post-civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest other-wise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behaviorally realist” account of these findings, and maps systematically how it might do so in sensible, non-hysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding...

Are Ideal Litigators White? Measuring the Myth of Colorblindness

Wed, 9 Sep 2026 00:00:00 +0000

This study examined whether explicit and implicit biases in favor of Whites and against Asian Americans would alter mock jurors' evaluation of a litigator's deposition. We found evidence of both explicit bias as measured by self-reports, and implicit bias as measured by two Implicit Association Tests. In particular, explicit stereotypes that the ideal litigator was White predicted worse evaluation of the Asian American litigator (outgroup derogation); by contrast, implicit stereotypes predicted preferential evaluation of the White litigator (ingroup favoritism). In sum, participants were not colorblind, at least implicitly, towards even a "model minority," and these biases produced racial discrimination. This study provides further evidence of the predictive and ecological validity of the Implicit Association Test.

Consumer Expropriation of Aesthetically Functional Trade Dress: Results from a Randomized Experiment

Wed, 9 Sep 2026 00:00:00 +0000

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...

The Mismatch Critique: Comment on Fanto, Solan, and Darley

Wed, 9 Sep 2026 00:00:00 +0000

James Fanto, Lawrence Solan, and John Darley build their article, Justifying Board Diversity,

1) on the basis of two essential claims - one legal, the other empirical. The legal claim is that existing law does not much constrain how corporate boards address the (lack of) diversity of their membership. 2) The empirical claim is that board diversity doesn’t increase shareholder value. 3) Based on these two claims, Fanto et al. criticize “diversity advocates” for making the fundamental mistake of justifying increased board diversity on the grounds of increasing shareholder value.

What’s worse, this strategy does not reflect diversity advocates’ true values, which are about social justice, not financial self-interest. This is what I call their mismatch critique. The legal and empirical claims are unobjectionable, and for purposes of this Commentary, I will assume that they are correct. However, the mismatch critique warrants careful unpacking. The strength of this critique...

The Class Action as Licensing and Reform Device

Wed, 9 Sep 2026 00:00:00 +0000

The age of digital distribution exacerbates transaction costs in twodistinct ways. First, the dissemination of large quantities of worksrequires permissions from myriad copyright holders. Second, newtechnologies lower the cost of content creation, resulting in millions ofindividual creators, rather than a discrete set of large industry repeatplayers. The potential of class actions to address this rising transactioncost problem has gone largely unexplored. Instead, copyright scholarsapproaching the problem have advocated for either private ordering orlegislative reform. But aggregate litigation fulfills a different function—something much closer to an administrative copyright—administeringmillions of licenses while filling in statutory gaps to address a rapidlyshifting technological landscape.In this sense, copyright class actions also differ from proceduralscholars’ understanding of mass litigation as either a regulatory orjoinder device to address distinct past harms. Instead,...

Moralesque Rights

Wed, 9 Sep 2026 00:00:00 +0000

Moral rights, in the past considered retrograde, overly romanticized, and outdated for an age of machine-made, factory-produced art, is poised for a resurgence. Amid growing concerns of mass displacement of human creators and a world awash in AI-generated slop, moral rights rhetoric—appeals to an artist's attribution right, for example—is already on the rise. Nor should this be surprising. Moral rights, which emphasizes the rights of the individual artist rather than that other villainous figure of copyright law—the rightsholder—would appear to be the last stand of human values against the encroachment of environmental-destruction-by-data-center, art-by-algorithm, Gilded Age-era corporate wealth accumulation, rule not by democracy but by market valuation, and mass labor displacement. This Essay predicts that even without further revisions to the 1976 Copyright Act, moralesque rights—whether couched in trademark, unfair competition, and trade secret claims, or else given...

A Future History of Implicit Social Cognition and the Law

Wed, 9 Sep 2026 00:00:00 +0000

The science of “implicit social cognition” (ISC) has demonstrated that we have implicit biases, in the form of stereotypes and attitudes that we are unaware of. Nevertheless, these implicit biases can alter our behavior, including how we might give an interview, hire a candidate, or even shoot a gun. As evidence mounts on this front, the law will have no choice but to respond to this revised understanding of human behavior and decisionmaking. To accelerate on-the-merits analysis, we offer a “future history” of how a new scientific consensus might be reached and how it might be incorporated into the law. First, this Article provides a current, concise, and accurate primer on the science. Second, it elucidates a call for “behavioral realism,” which asks that the law account for the most accurate model of human thought, decisionmaking, and action provided by the mind sciences. Third, it predicts critical markers in our future, which we label denial, minimization, politicization,...

Bits of Bias

Wed, 9 Sep 2026 00:00:00 +0000

Scientists have demonstrated that implicit biases are pervasive, large in magnitude, and have real-world consequences. What can we do about them? One principal strategy is to decrease the implicit bias in our minds (the other is to disrupt their causal link to behavior). In order to decrease bias, we should understand where they come from in the first place. Put crudely, is it nature nurture? I argue that it’s mostly nurture, and of a specific sort – via vicarious experiences with outgroups mediated by electronic media. These vicarious interactions, fed to us via entertainment, news, social media, and computer mediated-communities, strengthen particular mental associations. If these vicarious experiences are indeed a substantial source of implicit bias, what might policymakers do, in the shadow of the First Amendment?

Can Copyright Holders Do Harm to Their Own Works? A Reverse Theory of Fair Use Market Harm

Wed, 9 Sep 2026 00:00:00 +0000

The fair use doctrine balances the public’s right to make infringing uses of copyrighted works against the owner’s wish to exclude such uses. The effect an infringing use has upon the potential market for the copyrighted work — otherwise referred to as the market harm factor — is one of the most important factors in making that determination. Yet just how can this hypothetical, potential harm be determined? This is the question that courts and commentators alike have struggled with for as long as fair use has been a defense — and a question that has become even more important as recent fair use doctrine begins to move towards market harm as the single most important factor in the fair use analysis.Conventional wisdom says that only the infringer may harm the market— that is, reduce, supplant, or even destroy the consuming public’s demand— for a plaintiff’s copyrighted works. This Article argues, instead, that a copyright holder’s own actions provide the best evidence of plausible...

Intellectual Property Law as Labor Policy

Wed, 9 Sep 2026 00:00:00 +0000

Intellectual property has long been the law of creation, not creators. Both the dominant utilitarian framework, as well as alternate ones like Lockean and personhood justifications, consider the creator almost exclusively by reference to their creative output. But these innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in the way that IP’s economic rewards are distributed among creators. The existing frameworks simply do not have much to say about such pressing issues as authorial bargaining power, wage and economic inequality in the marketplace for creative works, and intensifying corporate concentration amongst dominant IP holders. Furthermore, the existing frameworks’ almost single-minded focus on outputs is simply no longer satisfactory in the age of artificial intelligence, which renders creative output instantaneous and near-infinite—while threatening to reshape the landscape of creative labor as we know...

That Old Thing, Copyright..: Reconciling the Postmodern Paradox in the New Digital Age

Wed, 9 Sep 2026 00:00:00 +0000

Much has been made about the so-called "postmodern crisis" in contemporary copyright law — that is, postmodernism's emphasis on deconstruction, mechanization, and willful appropriation in its treatment of artistic subject and work. This Article will attempt to reconcile the postmodern paradox with the Enlightenment-based, Progress-centric ideals of the Copyright Clause by situating postmodernism’s ahistoricism on a broader historical timeline and positing reasons for the paradigm shift in accord with the greater function of art. I argue that in denying or affirming the legal legitimacy of the new art form, contemporary copyright law runs counter to the Constitutional prerogative to promote, rather than halt, the progress of the Sciences, and that greater legal leniency towards the new form of production does not have to, as many fear, result in the end of copyright law as we know it. Rather, it merely involves resituating old, Romantic ideals of forward progress and transformation...

Shame: A Different Criminal Law Proposal for Bullies

Wed, 9 Sep 2026 00:00:00 +0000

Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue. To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.

Architecture and Dysfunction

Wed, 9 Sep 2026 00:00:00 +0000

United States copyright law has long prohibited protection of the functional. The addition of architecture as protected subject matter in 1990 did little to change this fundamental tenet: added begrudgingly by Congress as a necessary condition of the United States’ accession to the Berne Convention, courts quickly began limiting the scope of protection for architectural works by developing a “functionally determined” standard that filtered out design elements dictated by efficiency, necessity, or any other external factors from copyright protection—in language that increasingly echoed similar functionality analyses for “useful articles” in copyright cases involving industrial design (and similar abstraction/filtration/comparison analyses in computer software cases).Architecture and industrial design have much in common, not because both are fundamentally about aestheticizing the useful, but because both practices have long been engaged in a practice of subverting the very usefulness...

Unconscionability, Exploitation, and Hypocrisy

Tue, 8 Sep 2026 00:00:00 +0000

I argue that under a wide range of conditions it will be difficult for the state to justify non-enforcement of contracts on grounds of unconscionability without making itself vulnerable either to the charge of paternalism or the charge of hypocrisy. On the one hand, the state might take the view that there is something morally wrong with the agreement because it didn’t make sense for the weaker party to enter into it in the first place. But this kind of justification seems to be premised upon a paternalistic judgment about the weaker party’s rational capacities. On the other hand, the state might take the view that although the agreement was entered into freely and rationally by both parties, it nonetheless involves a morally problematic form of exploitation, because the stronger party has secured terms that take unfair advantage of the impoverished circumstances of the weaker party. But then it is difficult to see what could be morally wrong with the contract unless the conditions...

Norm-Based Enforcement of Promises

Tue, 8 Sep 2026 00:00:00 +0000

There is ample evidence that people are internally motivated to keep their promises. However, it is unclear whether promises alone create a meaningful level of commitment in many economically relevant situations where the stakes are high. In a between-subject design, we ask subjects to imagine they observed as third parties a promisor breaking her promise and could punish the promisor, at a cost to themselves, for her behavior. Our results suggest that the motivations third parties have to punish promise breakers have the same structure as the moral motivations of those deciding whether or not to keep their promises. That is, the same moral reasons that motivate promisors to keep their promises make third-party observers more likely to punish promise breaking. This suggests that the determinants of promise-keeping behavior will also drive non-legal enforcement mechanisms in relational contract settings and situations where third parties can punish promisors in a decentralized...

Private Liability without Wrongdoing

Tue, 8 Sep 2026 00:00:00 +0000

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs don’t seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person may, for example, be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs don’t generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective...

Desert and Inequity Aversion in Teams

Tue, 8 Sep 2026 00:00:00 +0000

Teams are becoming increasingly important in work settings. We develop a framework to study the strategic implications of a meritocratic notion of desert under which team members care about receiving what they feel they deserve. Team members find it painful to receive less than their perceived entitlement, while receiving more may induce pleasure or pain depending on whether their preferences exhibit desert elation or desert guilt.Our notion of desert generalizes distributional concern models to situations in which effort choices affect the distribution perceived to be fair; in particular, desert nests inequity aversion over money net of effort costs as a special case. When identical teammates share team output equally, desert guilt generates a continuum of symmetric equilibria. Equilibrium effort can lie above or below the level in the absence of desert, so desert guilt generates behavior consistent with both positive and negative reciprocity and may underpin social norms of...

Distributing Corrective Justice

Tue, 8 Sep 2026 00:00:00 +0000

John Gardner argues that while corrective justice is not about doing distributive justice, when we create a system of tort law that gives wronged persons a legal right to corrective justice, we inevitably confront an important question of distributive justice: does 'the system justly distribute access to the corrective justice it dispenses'. It would be distributivity unjust were the system to give one person the legal right to corrective justice of some wrong without giving the same to similarly situated others. At the same time, Gardner contends, the good that tort law is distributing here is 'irreducibly corrective … [which] lends a certain explanatory priority to corrective over distributive justice'.Is it puzzling to understand corrective justice in the way Gardner suggests? Do Gardner’s observations support the idea that corrective justice enjoys some kind of 'explanatory priority' over distributive justice? Can corrective justice be conceptualized prior to and independent...

Economic Analysis of Contract Law from the Internal Point of View

Tue, 8 Sep 2026 00:00:00 +0000

Economic analysis of law has traditionally assumed that legal rules are or ought to be designed to maximize social welfare taking as given that legal subjects are like Holmes’s “bad man” — rational, self-interested agents who care about complying with the law only insofar as noncompliance exposes them to the risk of sanctions. But while it is plausible to suppose that some legal subjects are, like Holmes’s bad man, “externalizers” of legal rules, it is likely that others regard the law from the “internal point of view” — that is, they are “internalizers” of legal rules who are motivated to conform to legal rules regardless of the consequences of defiance.

In this Article, I ask what specific doctrinal implications for contract law follow when we assume that there are both internalizers and externalizers in the subject population while keeping the standard economic framework otherwise intact. I analyze several contract law phenomena: the expectation principle, according...

Democratic Defaults

Tue, 8 Sep 2026 00:00:00 +0000

Prominent analyses of contractual default rules are ex ante in orientation. According to economic accounts, default rules, like the rules of contract interpretation, should be designed to further the substantive objective of social welfare maximization either by filling gaps with terms that maximize the parties’ joint welfare or by giving parties incentives to write such terms themselves. According to accounts that view the freely given assent of the parties as morally salient, what matters morally is that the filling of contractual gaps doesn’t interfere with their procedural freedom to set their own terms for their relationship. So long as that constraint is satisfied, contractual default rules may be designed to further other values. On my democratic conception of contract, by contrast, what matters is that default rules, like the rules of interpretation, help the parties to realize a plausible shared joint vision of justice for their relationship. The parties are the ones...

Law Professors Prefer AI Over Peer Answers

Tue, 8 Sep 2026 00:00:00 +0000

Large language models (LLMs) are increasingly promoted as educational tutors, yet most evaluations focus on domains with a single ground truth. Many disciplines, however, hinge on judgment: reasoning, weighing ambiguity, and reaching defensible conclusions. Law provides a sharp test. We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53% vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards. Our evaluation can be reliably extended to additional models by employing a separate LLM as a judge, rendering expert agreement...

Promises, Reliance, and Psychological Lock-In

Tue, 8 Sep 2026 00:00:00 +0000

We obtain laboratory evidence that suggests that (i) promisors are more likely to keep promises the more they were relied upon by a promisee; (ii) this effect is anticipated by promisees, who accordingly strategically overinvest to lock promisors into keeping their promises (“psychological lock-in”); and therefore (iii) legal enforcement can reduce overinvestment as promisors don’t need to rely on the extra-legal mechanism of psychological lock-in when they can rely on the legal regime instead. We also conduct a vignette study that suggests that punishing behavior by third parties mirrors promise-keeping behavior by promisors. These results contradict the central prediction of the holdup literature that underinvestment will result in the absence of legal enforcement.

Fairness and Desert in Tournaments

Tue, 8 Sep 2026 00:00:00 +0000

We model the behavior of agents who care about receiving what they feel they deserve in a two-player rank-order tournament. Perceived entitlements are sensitive to how hard an agent has worked relative to her rival, and agents are loss averse around their meritocratically determined endogenous reference points. In a fair tournament sufficiently large desert concerns drive identical agents to push their effort levels apart in order to end up closer to their reference points on average. In an unfair tournament, where one agent is advantaged, the equilibrium is symmetric in the absence of desert, but asymmetric in the presence of desert. We find that desert concerns can undermine the standard conclusion that competition for a fixed supply of status is socially wasteful and explain why, when the distribution of output noise is fat-tailed, an employer might use a rank-order incentive scheme.

The Circumstances of Civil Recourse

Tue, 8 Sep 2026 00:00:00 +0000

What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.

Who Has the Power to Enforce Private Rights?

Tue, 8 Sep 2026 00:00:00 +0000

I argue that corrective justice theorists of private law (at least those who view corrective justice as instantiating a Kantian conception of political morality) cannot successfully account, except in a stipulative way, for a central structural feature of the private law landscape: the correlative structure of private law litigation—the fact that the plaintiff must initiate and maintain proceedings against the defendant in order to vindicate her rights. Corrective justice theory readily explains why a defendant has a duty to correct his infringement of the plaintiff’s rights, but it doesn’t so readily explain why the plaintiff has the power to decide whether any such duty gets enforced.I sketch an alternative explanation that can explain why the plaintiff should have the power. Because realising justice is a difficult task even for a polity in which most people are committed to the project, persons' private legal rights in a moderately non-ideal polity should be regarded as provisional...

Legal Design for the 'Good Man'

Tue, 8 Sep 2026 00:00:00 +0000

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.

At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.

But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for...

Competition and Congestion in Trademark Law

Tue, 25 Aug 2026 00:00:00 +0000

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases.The more words cordoned off by...

Denying Prejudice: Internment, Redress, and Denial

Tue, 25 Aug 2026 00:00:00 +0000

In the early 1980s, Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi marched back into the federal courts that convicted them during World War II for defying the internment of persons of Japanese descent. Relying on suppressed exculpatory evidence discovered in the national archives, they filed writs of error coram nobis to overturn their convictions. Remarkably, this litigation was successful and fueled the extraordinary redress movement, which culminated in federal reparations for surviving internees. Yet, a dark side to this victory has never been discussed, until now. In granting the petitions, the Judiciary absolved the one branch of government that has never been held accountable for the internment: itself. Specifically, the lower federal courts adopted an official legal history that insulated the wartime Supreme Court from any fault. According to that account, the Supreme Court was simply duped by conniving officials in the Departments of War and Justice, who suppressed...

Fixing Functionality in Design Patent Law

Tue, 25 Aug 2026 00:00:00 +0000

This contribution to the Berkeley Technology Law Journal's spring 2021 symposium, Navigating and Rectifying the Design Patent Muddle, responds to Peter Menell and Ella Corren's important article, Design Patent Law's Identity Crisis. It agrees with Menell and Corren that design patent law's ornamentality requirement should get more attention because that requirement is supposed to differentiate design patent from utility patent. It also agrees that current law does not exclude functional design features aggressively enough. It suggests, however, that there really are two distinct but related problems with ornamentality doctrine.The first problem is that the Federal Circuit has reduced the concept of ornamentality to nonfunctionality: The only question courts and the Patent Office ask in considering whether a design meets the statutory requirement of ornamentality is whether the design features are nonfunctional. The second problem is that the Federal Circuit defines functionality...

Design Problems

Tue, 25 Aug 2026 00:00:00 +0000

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) how do designers conceive of and solve design problems through innovative design practice?; and (2) how do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns patent law's obviousness doctrine, which recently has been restored in the design patent context, but in ways we consider incomplete and to which we offer several improvements. Specifically, we emphasize the role of constraints under which designers work, and how those constraints can guide evaluation of the problems designers seek to solve.

Progressive Politics and the Courts: Lessons from the United States

Tue, 25 Aug 2026 00:00:00 +0000

In recent years, contested political issues in the US have been subject to strategic judicial challenges that attempt to reopen political debates on a more favorable battleground. For example, twice in the four years after Congress and President Obama enacted health reform, legal challenges subjected this progressive achievement to a final veto point: the consent of an ideologically fractured Supreme Court. Conservatives attempted to achieve through the courts — citing novel legal doctrines — a policy goal of enormous consequence, which they could not achieve through the legislature. Party actors used the judiciary as an institutional veto for the political process; a final means to block a policy change that American progressives had for generations fought to secure. Conservatives made similar legal challenges to nearly all of President Obama’s major initiatives, in policy areas including oversight of the financial system, environmental regulation, and immigration.Further, recent...

Partisan Constitutionalism: Reconsidering the Role of Political Parties in Popular Constitutional Change

Tue, 25 Aug 2026 00:00:00 +0000

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation.In both the NFIB and King challenges, some number of political opponents of the healthcare law recognized in the developing legal case an opportunity to extend a fight that had been waged in the political branches (at both the state and federal level), to a new and potentially more favorable battleground. This paper seeks to identify, for the first time, the mechanisms that allow political parties...

Crimsumerism: Combating Consumer Abuses in the Criminal Legal System

Tue, 25 Aug 2026 00:00:00 +0000

Crimsumerism: Combating Consumer Abuses in the Criminal Legal System

Negative Action Against Asian Americans: The Internal Instability of Dworkin's Defense of Affirmative Action

Tue, 25 Aug 2026 00:00:00 +0000

Ronald Dworkin has forcefully argued that because affirmative action does not violate the constitutional rights of Whites, it must be allowed to do the work of promoting racial equality. But the sword he forges to justify affirmative action has a double-edge that cuts unexpectedly against the liberal orthoýdoxy. In particular, Dworkin's theory justifying affirmaýtive action for certain minority groups, consistently applied under plausible empirical conditions, can authorize what I call negative action against Asian Americans.

By negative action, I mean unfavorable treatment based on race, using the treatment of Whites for comparison: Negative action against Asian Americans is in force if a university denies admission to an Asian Ameriýcan who would have been admitted had that person been White. The fact that Dworkin's theory justifies both affirmative action for racial minorities and negative action against Asian Americans suggests an internal instability within his theory....

Fair Measures: A Behavioral Realist Revision of 'Affirmative Action'

Tue, 25 Aug 2026 00:00:00 +0000

New facts recently discovered in the mind and behavioral sciences have the potential to transform both lay and expert conceptions of affirmative action. Drawing on recent findings in implicit social cognition (ISC) and applying a legal methodology called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggests that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of implicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for various affirmative action programs is when our society reaches...

Regulating Location Incentives

Tue, 25 Aug 2026 00:00:00 +0000

In recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multi-billion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and institutional case for using latent authority under the FTC Act to study the market consequences of inefficient incentive megadeals—and regulate certain anticompetitive practices that cause cognizable harms.This Article uses location incentive megadeals to explore how federal regulation...

Taking Scale Seriously in Technology Law

Tue, 25 Aug 2026 00:00:00 +0000

Issues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.

But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.

In this Article, we argue for a more sustained interrogation of the role of scale in law, one that is more sensitive to the distinction between what we describe as “scale is more” and “scale is different.” When lawmakers and judges fail to properly categorize the role of scale in a particular context, they risk ignoring or misidentifying harms, misdiagnosing the...

Investigating Design

Tue, 25 Aug 2026 00:00:00 +0000

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is drawn from original data collected over several years interviewing and observing designers where they work. Our interviews provide a rich background on the design field(s), the nature and value of design, and designers’ goals and values.Studying designers and the practice of design is not only economically...

Trademark Spaces and Trademark Law's Secret Step Zero

Tue, 25 Aug 2026 00:00:00 +0000

When is a design just a design, and when is it a trademark? Over the last several decades, courts have developed a clear framework for evaluating the distinctiveness of certain unconventional marks, especially those typically conceived of as “trade dress.” The Supreme Court has drawn a line between product packaging, on the one hand, and product design, on the other. Packaging features are treated just like any other potential trademark in the sense that we protect them automatically if they are inherently distinctive, and we require evidence of secondary meaning if they aren’t. Product design, by contrast, is different: like color, it is incapable of being inherently distinctive and can be protected only when it has acquired secondary meaning.There’s just one problem with this fundamental rule: it isn’t true. Or at least, it isn’t the whole truth. As we show in this article, sometimes courts and the Trademark Office don’t recognize features like logos as being part of a product’s...

Welfare Reform at Twenty: The Consequences of Making Work Status a Proxy for Deservingness

Tue, 25 Aug 2026 00:00:00 +0000

Twenty years ago, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), the culmination of what had started as his campaign promise five years prior to “end welfare as we know it.” The law ended the country’s only cash entitlement program for poor families with children, replacing it with a fixed-budget, state-administered program that offers lifetime-limited cash assistance to some but not all needy families and requires recipients to participate in work activity as a condition of receipt. The reform significantly altered our safety net’s protections, not to mention our national politics, and its effects are still debated today. In $2.00 a Day: Living on Almost Nothing in America, leading poverty researchers Kathryn J. Edin and H. Luke Shaefer add a new urgency to this debate by documenting the survival stories of families who have fallen into the gaps that PRWORA created — which, researchers increasingly agree, are much...

Trade Mark Protection for Digital Goods

Tue, 25 Aug 2026 00:00:00 +0000

A number of recent US cases involve attempts by authors or publishers of creative works to use trade mark or unfair competition law to control the reproduction or use of those works. For example, consider a movie the copyright protection for which has lapsed. Can the creator of the movie claim that copiers of the film commit trade mark infringement by including in their copies some content that appears in the original movie – perhaps the movie studio’s logo, or a famous scene? Or consider a website that allows artists to upload and offer for sale digital models of various goods where the models include recognisable designs and/or logos. Does the website operator commit trade mark infringement simply by distributing the digital files, from which someone might print a physical good that bears the trade mark?These sorts of claims raise important questions about the boundaries of different forms of intellectual property, particularly the distinctions between trade mark, copyright,...

Asian Americans: Engaging Online

Tue, 25 Aug 2026 00:00:00 +0000

The Internet has rapidly become a familiar communications medium at the workplace, at home, and on the streets. Fortunately, this trend has not passed Asian Americans by. Notwithstanding substantial variance among subpopulations, it is fair to say that Asian Americans as a racial group are on average well-connected to the Internet. What then are the implications for Asian American civic engagement? This Chapter addresses that question, first, by examining how Asian Americans are currently using online communities, with special focus on ethnic-specific forms of Internet-mediated engagements. Next, it analyzes a specific aspect of political engagement - voting - which may soon be strongly influenced by the Internet. Finally, it explores how the increasing significance of computer-mediated communications might alter or disrupt how race operates both online and off, and what that might mean for Asian America.

Design Patents Aren't Patents (And It's a Good Thing Too)

Tue, 25 Aug 2026 00:00:00 +0000

In design patent law we have created a monster—a chimera, a hybrid that sometimes looks and acts like a patent regime and then, unexpectedly, doesn’t. Courts in design patent cases sometimes apply the rules as they would in utility patent cases, sometimes modify those rules for the design context, and sometimes ignore the utility patent rules altogether. The consequences of that incomplete adoption of utility patent rules are grossly underappreciated. Among other things, it has wreaked havoc on the law of novelty and nonobviouness— doctrines that are supposed to ensure that we grant design patent protection only to new and meaningfully different designs. And it has too often resulted in rules that ignore how designers actually work. In this Article, we suggest that the problem stems from trying to fit design into a framework that was intended for the very different context of inventions. There are good reasons not to use the utility patent infringement rules for design, even...

A Qualitative Method for Investigating Design

Tue, 25 Aug 2026 00:00:00 +0000

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the features of “successful” or “excellent” design as a professional standard.

E-Racing E-Lections

Tue, 25 Aug 2026 00:00:00 +0000

Electronic voting is inevitable. It will significantly affect the process of electing and governing, with important consequences on race, race relations, and social justice. This paper argues that on matters of electing, we should not let short term concerns about digital divide blind us to long term possibilities. Specifically, we should pay close attention to how cyberspace can be specifically designed to alter preferences and attitudes, political as well as social, of its inhabitants in particular ways.

On matters of governing, the spread of the Internet may encourage more instantaneous forms of direct democracy. This is bad news for racial minorities because they are numerical minorities and people vote more in their self-interest than in the public interest. To respond to the possibility of a digital tyranny of an electronically mediated majority, this paper urges racial minorities to prepare to play smart, to leverage technology to counter numerical disadvantages....

Privacy in Atlantis

Tue, 25 Aug 2026 00:00:00 +0000

This Socratic Dialogue is set in the nation state of Atlantis. The Queen has charged the Counselor to consult learned stakeholders to forge a course of action on the matter of privacy. Accordingly, the Counselor has called forth the Philosopher, Economist, Merchant, and Technologist to the great Hall of Discussion. Through a hard-nosed, pragmatic dialogue, the Counselor comes to believe that form has been privileged over substance in the privacy debate. Regardless of whether privacy is viewed as property or dignity, one must confront similar core problems in establishing privacy policy. And regardless of the framing, quite similar solutions may be adopted.

Fees, Fines, and the Funding of Public Services: A Curriculum for Reform

Tue, 25 Aug 2026 00:00:00 +0000

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States. Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.Budget pressures are part of what drives state and local governments to rely on monetary sanctions. Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues—including from a host of legal assessments. Given that...

Information Privacy in Cyberspace Transactions

Tue, 25 Aug 2026 00:00:00 +0000

Cyberspace is the rapidly growing network of computing and communication technologies that have profoundly altered our lives. We already carry out myriad social, economic, and political transactions through cyberspace, and, as the technology improves, so will their quality and quantity. But the very technology that enables these transactions also makes detailed, cumulative, invisible observation of our selves possible. The potential for wide-ranging surveillance of all our cyber-activities presents a serious threat to information privacy. To help readers grasp the nature of this threat, Professor Jerry Kang starts with a general primer on cyberspace privacy. He provides a clarifying structure of philosophical and technological terms, descriptions, and concepts that will help analyze any problem at the nexus of privacy and computing-communication technologies. In the second half of the article, he focuses sharply on the specific problem of personal data generated in cyberspace...

Externalizing Trademark's Limits

Tue, 25 Aug 2026 00:00:00 +0000

Courts and scholars alike conventionally describe trademark rights as inherently limited. By “inherently limited,” they mean that the boundaries of trademark rights can be derived from the justifications for those rights, without resort to other competing values. That description is important to both trademark maximalists and minimalists. For the former, appeals to the inherent limits are meant to downplay concerns about broad rights; for the latter, they are meant to reinvigorate the limits.The claim that trademark rights are inherently limited is undeniably correct in important ways. Nothing is more foundational to trademark law than the notion that trademark rights are not rights in gross—the rights arise out of use in connection with particular goods or services, and they exist only in relation to those goods or services. For that reason, eligibility for trademark protection depends on a claimed mark’s relationship to the goods and services. We determine whether one has a...

Amazon's Quiet Overhaul of the Trademark System

Tue, 25 Aug 2026 00:00:00 +0000

Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention—the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a surge in the number of applications to register, which has swamped the U.S. Patent and Trademark Office (PTO) and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.Amazon’s policies also create incentives for businesses to adopt different kinds of marks. Specifically, businesses are more likely to claim descriptive...

Registration and Federalization: 75 Years of the Lanham Act

Tue, 25 Aug 2026 00:00:00 +0000

This contribution to the Cardozo Arts & Entertainment Law Journal's symposium celebrating 75 years of the Lanham Act evaluates the statute in light of two of the drafters' most significant goals: improving the quality of notice provided by the federal register and maintaining the substantive uniformity of trademark and unfair competition law.In our view, the statute has only been a partial success in terms of notice. Federal law has come to dominate the field, but not primarily because registration became more significant, as the drafters expected. Instead, federal law displaced common law trademark and unfair competition law because courts interpreted the Lanham Act to provide a federal cause of action for infringement of unregistered marks. That interpretation assured continued substantive uniformity, but it undermined the statute’s incentives to register and therefore probably came at the expense of better notice.

Watching the Watchers: Enemy Combatants in the Internment's Shadow

Tue, 25 Aug 2026 00:00:00 +0000

In Denying Prejudice: Internment, Redress, and Denial (2004), I tried to further a careful remembering of the internment as precedent and parable by holding the judiciary to account. The accounting was for what it did not only in the 1940s internment cases decided by the Supreme Court, but also the less well-known 1980s coram nobis cases decided in the Ninth Circuit. My objective was to unmask the sophistic ways that the judiciary avoided accountability for the racist civil rights disaster. Using techniques often praised as minimalist, the judiciary in the 1940s avoided accountability on the part of the President and the Congress. With a straight face, the Court held that the internment camps were never authorized by the political branches; rather, they were an ultra vires frolic committed by a civilian agency called the War Relocation Authority.

I also showed how, in the 1980s, again using minimalist tactics, the Ninth Circuit Court of Appeals quietly whitewashed history...

Cyber-Race

Tue, 25 Aug 2026 00:00:00 +0000

To date, most inquiries into race and cyberspace have focused on the "digital divide" - whether racial minorities have access to advanced computing-communication technologies. This paper asks a more fundamental question: Can cyberspace change the way that race functions in American society? Professor Jerry Kang starts his analysis with a social-cognitive account of American racial mechanics that centers the role of racial schemas. These schemas consist of racial categories, rules of racial mapping that place individuals into these categories, and racial meanings associated with each category. He argues that cyberspace can disrupt racial schemas because it alters the architecture of both identity presentation (enabling racial anonymity and pseudonymity) and social interaction (enabling increased interracial interactions). Thus, cyberspace presents society with three design options: abolition, which challenges racial mapping by promoting racial anonymity; integration, which reforms...

Race.Net Neutrality

Tue, 25 Aug 2026 00:00:00 +0000

The "net neutrality" debate is undergoing a theoretical transition. Since the late 1990s, we have moved from "open access," to "end to end," to "net neutrality," and by 2007, the question seems to have transformed into "anti-discrimination." To the extent that net discrimination frames the question, our history and experience with race discrimination should be cognitively salient. Although patently different subjects, these two forms of discrimination share some similarities which have been noted by various commentators but never systematically explored. This Essay begins that study, with the goal of gleaning lessons for telecommunications policy.

A comparison and contrast between race discrimination and net discrimination teaches us, first, to particularize the discrimination at issue, and to be wary of what I call normative carve-outs in defining discrimination. Second, the comparison sensitizes us to the clash between welfarist and deontological concerns that have...

Urban Sensing: Out of the Woods

Tue, 25 Aug 2026 00:00:00 +0000

A fundamental shift is underway in pervasive computing. Within academic research, pervasive computing in the form of embedded networked sensing has leapt from the laboratory to the natural environment. Simultaneously, in the domain of personal communication and corporate marketing, pervasive computing has entered the backpack, purse, and coat pocket in the form of mobile phones, laying the groundwork for Mark Weiser's vision of ubiquitous computing. We characterize this contextual shift as urban sensing, which augurs a fundamental transition from science and engineering into the realms of politics, aesthetics, interpretation, and motivation. More than a change in degree, this is a change in kind that warrants careful, transdisciplinary study. In this paper, three authors representing the fields of architecture and urban planning, statistics and visual arts, and the law explore how urban sensing can help produce a data commons with public sphere benefits. But the construction of...

Brief of Trademark Scholars As Amici Curiae in Support of Neither Party

Tue, 25 Aug 2026 00:00:00 +0000

Amici take no position on whether BOOKING.COM is generic, but write to encourage the Court to be cautious in resolving this case, which involves a generic term combined with a common top-level domain name identifier (.com). Trademark applications raise almost infinitely varied scenarios, including generic terms combined with other elements, and the top-level domain name identifier has some specific features that make it analogous to functional matter. Whatever rule the Court adopts should be highly attentive to the risks to competition of overassertion of registered marks that are largely or entirely comprised of generic elements.

Because courts deciding infringement cases are often unfamiliar with the context of a trademark registration, they may miss limitations on the scope of the registered mark that the Trademark Office believed existed and, as a result, enforce broader rights than the registrants should actually have. Ordinary businesses receiving cease and desist...

What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants

Mon, 24 Aug 2026 00:00:00 +0000

William Baude and Stephen Sachs argue for the importance of the “law of interpretation” – legal standards that govern how statutes, constitutional provisions, and other legal materials are to be interpreted. Their article begins by following and developing a cluster of arguments I have elaborated in recent work – arguments that emphasize the importance of distinguishing between, on the one hand, the linguistic meaning of legal texts and, on the other, the content of the law. But Baude and Sachs’s view about the most important implication of these arguments is very different from mine. Their central message is a practical, lawyerly one: we can avoid the abstract and theoretical complexities and normative and linguistic disputes that have typified central debates over legal interpretation by instead looking to law for the answers. Baude and Sachs’s goal here is not to take a position on what the law of interpretation requires with respect to the relevant issues, but to argue...

Explaining the Asymmetry between Mistakes of Law and Mistakes of Fact

Mon, 24 Aug 2026 00:00:00 +0000

Gideon Yaffe’s "Excusing Mistakes of Law" seeks to explain "the asymmetry between the excusing force of mistakes of fact and law." In this paper, I offer a competing explanation of the asymmetry and criticize Gideon's explanation. Behind some of the specific issues concerning mistake of fact and mistake of law lie more fundamental questions about the nature of law and about the relation between law and morality. Underlying Gideon's proposal seems to be an assumption that the legal domain has an internal structure parallel to that of the moral domain: legal reasons, legal obligations, legal excuses, and so on bear the same relations to each other that, within the moral domain, moral reasons, moral obligations, moral excuses, and so on bear to each other. In particular, Gideon relies on the assumption that just as, absent special circumstances, one who acts on morally wrong principles is, for that reason, morally blameworthy or morally deserving of reproach or punishment, so...

Thoughts Without Masters: Incomplete Understanding and the Content of Mind

Mon, 24 Aug 2026 00:00:00 +0000

When we explain Bruno’s taking the train by attributing to him the belief that safety is more important than price, we attribute to him a thought involving the concept of safety, as opposed to (say) the concept of comfort. Most leading theories of mental content presuppose what I call the achievement view – that for a thought to involve a given concept is, roughly speaking, for the thinker to have a disposition to satisfy a condition associated with the concept, such as a disposition to make certain inferences. I show that it follows from the achievement view that a thinker must fully grasp (in a sense I make precise) a concept in order to have attitudes involving it (though most theorists would allow an exception for cases in which the thinker defers to others). I claim, to the contrary, that thinkers can have attitudes involving concepts no one fully grasps. Further, I argue that this phenomenon, which I call incomplete understanding, is the key to otherwise...

The Structure of a Free Speech Right

Mon, 24 Aug 2026 00:00:00 +0000

What do you have by virtue of being the holder of a free speech right? This chapter in the forthcoming Oxford Handbook on Freedom of Speech provides an overview of the underlying structure of free speech as a legal right by analyzing and illustrating its component parts. It shows that the answer to this question can vary considerably depending on how these parts are addressed and combined. The six components, or structural elements, of a free speech right are: (1) its legal force or status (2) who are the subjects or rights-holders; (3) the scope of the right; (4) whether it includes not only negative prohibitions but also positive obligations to protect against third-party threats; (5) the object of the right, or who is bound by it; and (6) permissible limits on the right. The chapter gives examples of significant variation in the approach to these elements among legal systems around the world and demonstrates how, by collectively constituting the general structure of the right...

Probabilistic Knowledge of Third-Party Trademark Infringement

Mon, 24 Aug 2026 00:00:00 +0000

This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third party-wrongdoing. Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose the same liability on the defendant as they would have on the direct tortfeasors, had they been defendants: if the third-party wrongdoer is a batterer, the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these cases are often based on knowledge of probabilistic harm. But crucially, these are negligence cases: even if the third party wrongdoer is a batterer, the defendant’s liability in these cases is for negligence and not for battery. The Supreme Court's Inwood decision preserves this important distinction between secondary liability for third-party...

How Law Affects Behavior

Mon, 24 Aug 2026 00:00:00 +0000

Fred Schauer’s The Force of Law neglects an important way in which the law can motivate people. It shapes our moral reasons. Schauer’s response to my original essay that he is concerned with empirical motivations, not normative reasons, misses the point. His empirical argument depends crucially on his assumptions that, when people act for moral reasons, the law has not made a difference to their behavior and that the use of coercion is the only alternative to getting people to obey the law simply because it is the law. Once we see that the law regularly molds our ordinary moral reasons, not by creating content independent reasons, but by changing the morally relevant circumstances, we see that much morally motivated behavior is in fact behavior that is importantly influenced by the law. Regardless of the empirical frequency of “puzzled people,” because people respond to moral reasons, law has an important alternative to the use of coercion.

(Dys)Functionality

Mon, 24 Aug 2026 00:00:00 +0000

The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: some courts refuse to recognize the aesthetic-functionality doctrine at all, and courts that do recognize it are often reluctant to actually find the features at issue functional, even when exclusive use of those features seems very likely to put competitors at a significant, non-reputation-related disadvantage.

The...

The Moral Impact Theory of Law

Mon, 24 Aug 2026 00:00:00 +0000

I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obligations are a certain subset of moral obligations. Legal institutions – legislatures, courts, administrative agencies – take actions that change our moral obligations. They do so by changing the morally relevant facts and circumstances, for example by changing people’s expectations, providing new options, or bestowing the blessing of the people’s representatives on particular schemes. My theory holds, very roughly, that the resulting moral obligations are legal obligations. I call this view the Moral Impact Theory because it holds that the law is the moral impact of the relevant actions of legal institutions. In this Essay, I elaborate and refine the theory and then illustrate and clarify its implications...

How Mistakes Excuse: Genuine Desert, Moral Desert, and Legal Desert

Mon, 24 Aug 2026 00:00:00 +0000

Teaching Trademark Theory through the Lens of Distinctiveness

Mon, 24 Aug 2026 00:00:00 +0000

Teaching Trademark Theory through the Lens of Distinctiveness

The Implications of Inequality for Fiscal Federalism (or Why the Federal Government Should Pay for Local Public Schools)

Mon, 24 Aug 2026 00:00:00 +0000

In designing public policy, a question of first principle is the degree to which government services—and the mechanisms of collecting revenue to finance those services—should be centralized within and across political systems. To inform their assessments of where redistribution properly should occur, public finance researchers have to date worked backwards from different assumptions about the mobility of residents within the political community. Scholars have disagreed about the viability of local governments’ efforts to redistribute wealth—with traditionalists arguing that these efforts are made impossible by residential mobility, and recent reformists countering that limitations on mobility indeed allow for limited redistribution at the local level.But these theoretical arguments have largely sidestepped questions about what level of centralization is optimal for redistributive programs. And by focusing on the empirical question of residential mobility, they have ignored a variable...

Democratic Design and the Twin Contemporary Challenges of Fragmented and Unduly Concentrated Political Power

Mon, 24 Aug 2026 00:00:00 +0000

This chapter is an exercise in democratic design that explores one potential way to achieve and better balance the four key values of democratic governance – effective, stable, accountable, and representative government -- and also to address some current pathologies of political party systems, especially polarization and fragmentation. This way is to adapt a newly conceptualized democratic regime type, semi-parliamentarism, for more general use.Although political parties are essential to modern democracy, they create certain problems for achieving its central governance values. The general and longstanding problem is that because parties compete to occupy state executive and legislative institutions, they can concentrate power when a single party occupies both and also disperse it when it does not, regardless of the formal or constitutional relationship between these institutions. Such concentration or dispersal threatens to undermine various of the values. This general problem...

Life's a Game (Reviewing Robert Wright, Nonzero)

Mon, 24 Aug 2026 00:00:00 +0000

In the theory of games, a non-zero-sum game is a situation in which one participant’s gain is not necessarily another’s loss – in which the gains and losses do not sum to zero. Trade is a non-zero-sum game since seller and buyer can both improve their positions. In zero-sum games, by contrast, there is a fixed total of prizes, with the consequence that any person’s advantage must be at the expense of someone else. Poker is a zero-sum game; so is competition between suitors for the same mate. There is nothing to be gained from cooperation in zero-sum games, but participants in non-zero-sum games typically stand to do better by cooperating with each other than by singly pursuing their individual interests. And human life, competitive as it is, is full of non-zero-sum situations. From our hunter-gatherer beginnings to the contemporary global economy, the total pool of goods is larger when people cooperate, divide labor, and specialize. In fact, competition increases the value...

Naturalism in Epistemology and the Philosophy of Law

Mon, 24 Aug 2026 00:00:00 +0000

In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the “naturalization of epistemology.” In a prominent series of papers and a book, Brian Leiter has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s suggested parallel and argue that the parallel does not hold up. Even granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in the legal...

Troubles for Content I

Mon, 24 Aug 2026 00:00:00 +0000

It is widely accepted that thinkers can have thoughts involving concepts that, intuitively, they incompletely grasp. I argue, however, that the import of the phenomenon for the theory of linguistic and mental content has not been adequately appreciated: prominent theories of content, even if they specify modal determinants or grounds of content, lack an account of what it is for a representation to have content. The problem is easiest to see with respect to conceptual-role theories of content. And once we distinguish genuine incomplete understanding from mere error, we see that appeals to ideal conditions or a competence/performance distinction are no help with respect to incomplete understanding. Covariation theories are vulnerable to a parallel problem, for thinkers need not have a disposition to discriminate the relevant property in order to have the concept. An appeal to deference to other people cannot rescue conceptual role and covariation theories. A proviso about deference...

The Prism of Rules

Mon, 24 Aug 2026 00:00:00 +0000

Most legal theorists, including almost all positivists and many others, take for granted or are implicitly committed to an assumption that is not an official part of positivism. The assumption is that the content of the law is determined by the contents of legally authoritative pronouncements. I call it the Pronouncement View (PV, for short). The kind of determination at issue here is constitutive, not epistemic. That is, PV concerns what makes the content of the law what it is, not how we ascertain the content of the law.

PV is more of an organizing principle or core idea, than a precise doctrine. I have introduced PV in an unqualified form, but there are a variety of ways in which its claim could be moderated. For example, a qualified version of PV could hold that the contents of legally authoritative pronouncements play a central or predominant role in determining the content of the law.

The debate between positivists and anti-positivists is often framed in a...

An Alternate Approach to Channeling?

Mon, 24 Aug 2026 00:00:00 +0000

Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product’s performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article’s design that are dictated by function and to channel protection of those features to the patent system. These are important doctrinal tools, and they play valuable roles in the overall intellectual property system. These channeling doctrines, however, reflect an incomplete sense of the interplay between various modes of intellectual property protection. Because they focus on subject matter,...

Back to the Future: Rediscovering Equitable Discretion in Trademark Cases

Mon, 24 Aug 2026 00:00:00 +0000

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their equitable discretion as a means of achieving greater balance in the trademark system.

Beyond Textualism

Mon, 24 Aug 2026 00:00:00 +0000

This paper was the basis for my Fordham University Natural Law Colloquium lecture in September 2019.More than 20 years ago, Justice Scalia wrote of “the great degree of confusion that prevails” in the field of statutory interpretation. Today, Scalia’s textualism is ascendant. Over the past three decades, textualism has expanded its influence both in both the courts and in the scholarly literature. (I’m using the term textualism to encompass textualism in both statutory interpretation and constitutional interpretation. The latter is also called public meaning originalism.)In the first part of my talk, I’ll show that despite the confidence with which it is propounded, textualism is deeply confused.In the second part of my talk, I suggest a new way of thinking about legal interpretation from the ground up. Behind the familiar question of what method of interpretation is the right one, lies a more fundamental question: what does legal interpretation, by its nature, seek? I will argue...

Irrelevant Confusion

Mon, 24 Aug 2026 00:00:00 +0000

Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic that information, they will confuse consumers, who won’t know whether they are in fact getting a high quality product and therefore won’t be willing to pay as much for that quality. I won’t pay as much for an iPod if I think there is a chance it is a cheap knock-off masquerading as an iPod.The law of false advertising operates as an adjunct to trademark...

Comparative Political Process Theory

Mon, 24 Aug 2026 00:00:00 +0000

What, if anything, do recent constitutional court decisions requiring a legislature to create a customized presidential impeachment procedure, invalidating a government's prorogation of parliament, rejecting the disbanding of an independent anti-corruption unit, and striking down legislation for inadequate deliberation, have in common? They are all examples of courts protecting the political processes of representative democracy against threats or failures. Yet none of these various types of failure appear in the work that is synonymous with a political process theory of judicial review: John Hart Ely's Democracy and Distrust. This article argues that when we look beyond the United States and at the comparative context generally, a political process theory has a great deal of relevance and application to constitutional law and courts around the world, both descriptively and normatively. Especially now when the structures and processes of representative democracy are under assault...

Testing Modern Trademark Law's Theory of Harm

Mon, 24 Aug 2026 00:00:00 +0000

Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark owners to push the boundaries of trademark protection, as they have been able to characterize virtually every use of their marks in consumer confusion terms.

This Article begins the process of distinguishing types of confusion by focusing on the supposed harms to producers...

Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II

Mon, 24 Aug 2026 00:00:00 +0000

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter's analogy to Quine's "naturalization of epistemology" does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter's replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is ever justified, it would not help Leiter's parallel. Given Leiter's way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists' indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions...

The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination

Mon, 24 Aug 2026 00:00:00 +0000

This essay focuses on the American Wall of Separation and consists of two parts, each premised on a recognition that the separation of church and state entails fundamental structural principles that organize a liberal democratic regime. Section I discusses the U.S. Constitution of 1789 and the First Amendment and identifies five key structural elements of its Wall of Separation: democratic legitimacy; non-delegation: limiting power, liberating governance; polity and its anti-balkanization principle; countervailing powers in civil society; and rational deliberation.

The next section begins with Justice Thomas' plurality opinion in Mitchell v. Helms, facilitating direct aid to religious schools by proposing a wall-lowering equal protection-inflected interpretation of the Establishment Clause, while linking some elements of a structural understanding of that clause, as it limits aid to religious schools, to anti-Catholic animus. This essay rejects this historical claim that...

Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory

Mon, 24 Aug 2026 00:00:00 +0000

2019 marks thirty years since the publication of Kimberlé Crenshaw’s groundbreaking article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. While scholars across the disciplines have engaged intersectionality from a range of theoretical and normative vantage points, there has been little effort to analyze intersectionality in relation to two other enormously influential theoretical frameworks: Angela Harris’s critique of gender essentialism and Catharine MacKinnon’s dominance theory. This Essay endeavors to fill that gap. Broadly articulated, our project is to map how anti-essentialism, dominance theory, and intersectionality converge and to articulate the places where they do not. In the context of doing so, we advance three core claims. First, scholars erroneously conflate intersectionality with anti-essentialism and thus erroneously perceive a strong opposition between intersectionality...

Presidential Nomination Reform: Legal Restraints and Procedural Possibilities

Mon, 24 Aug 2026 00:00:00 +0000

The drawn-out contest for the Democratic presidential nomination in 2008 may temporarily mitigate but is not likely permanently to end pressure to halt or reverse the front-loading of presidential primaries and caucuses, including pressure for action by Congress. In this essay, written for publication in a forthcoming Brookings volume, REFORMING THE NOMINATION PROCESS edited by Steven S. Smith and Melanie J. Springer, I take no position on the desirability of reform, other than to support a ban on nominating events prior to a specified date in February or early March. Rather, the essay concentrates on congressional power to regulate the timing of nominating events. I argue that some commentators have underestimated the structural arguments against any implied power by Congress to regulate presidential nominations. However, relying on the 12th Amendment, I come to the same conclusion as most commentators, that Congress does have the implied power. With respect to possible limitations...