Table of Contents

More than IP: Trademark Among the Consumer Information Laws

Michael Grynberg, DePaul University - College of Law

Resolving Conflict over Scarce Resources: Private versus Shared Ownership

W.C. Bunting, American Civil Liberties Union (ACLU)

Reviving the Assurance Conception of Promising

Erik Encarnacion, University of Southern California

Law, Reason, and Emotion

Mortimer Newlin Stead Sellers, University of Baltimore - School of Law

The Politics of Global Legal Pluralism

Marco Goldoni, University of Glasgow - Faculty of Law & Financial Studies


LAW, NORMS & INFORMAL ORDER eJOURNAL

"More than IP: Trademark Among the Consumer Information Laws" Free Download
William & Mary Law Review, Vol. 55, No. 4, 2014

MICHAEL GRYNBERG, DePaul University - College of Law
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We generally think about trademark law as a branch of intellectual property law. Because trademark law regulates marketplace information, however, its closer peers may be other consumer information regimes — e.g., false advertising law and FTC regulations — instead of incentive-based IP laws like copyright and patent. This article considers some implications of this observation.

In many cases optimal trademark policy depends on ascertaining the state of play in another consumer information doctrine. That may be less simple than it sounds. Trying to determine how another body of law treats a parallel issue presupposes that we know where to look. We might not. Trademarks are just a small part of a larger consumer information system. The various components of this system, and the laws that govern them, interact in opaque ways, complicating analysis.

The resulting complexity has consequences for trademark’s future, particularly the question of how responsibility for its development should be divided between judges and legislators. The difficulty of anticipating interactions between consumer information doctrines threatens some of the purported benefits of a judge-driven, “common law? approach to trademark. If we nonetheless want to preserve a robust judicial role in shaping trademark law, courts should try to accommodate consumer information law’s variety by simplifying trademark issues. Doing so would reduce the need for cross-doctrinal assessments, but it is not an easy task. Trademark law’s reach has been growing for decades, leaving much to simplify.

The balance of the article explores one approach to simplification — the prospect that trademark law would benefit from “offloading? some of its expanding scope to other consumer information regimes. Claims at trademark’s peripheries often address subject matter at the core of other doctrines. These non-trademark doctrines will have developed rules and standards calibrated to prevent overly broad causes of action. When such claims migrate to trademark, however, their limits may not translate. Leaving these checks behind raises accountability concerns, particularly when those understandings were the product of political settlement. Worse, once let loose in trademark law and free of the doctrines that would keep their numbers down, the imported claims may assume an unexpected scope. Trying to force them into now-ill-fitting doctrinal boxes produces instability that undermines trademark’s coherence and transparency. Offloading peripheral causes of action from trademark into more appropriate regimes therefore offers an avenue for improving the quality of trademark doctrine as well as the consumer information system as a whole.

"Resolving Conflict over Scarce Resources: Private versus Shared Ownership" Free Download

W.C. BUNTING, American Civil Liberties Union (ACLU)
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This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem (as defined here) to be consistent, private ownership must yield the Pareto-optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing? parties to share ownership of a contested scarce resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Provided transaction costs are high and shared ownership is socially-optimal, a role for the courts is suggested wherein de facto shared ownership is established by rendering private property rights random or unclear — judicial behavior that stands in contrast to the normative implications of the Coase Theorem.

"Reviving the Assurance Conception of Promising" Free Download
Reviving the Assurance Conception of Promising, Journal of Value Inquiry 48:107-129 (2014).

ERIK ENCARNACION, University of Southern California
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It’s generally wrong to break promises. But it’s not obvious why. T.M. Scanlon gives an influential answer, proposing that breaking promises involves violating what he calls a moral duty of fidelity. Niko Kolodny and R. Jay Wallace have offered a sophisticated criticism of Scanlon’s account, arguing that it’s circular, and that his attempt to avoid the circularity won’t work. In this paper, I defend Scanlon against their attack. The second goal will be to explain why Scanlon’s theory nevertheless faces serious problems. In particular, Scanlon’s approach incorrectly implies that some people lack the ability to make binding promises, even though it’s clear that they have this ability. Given this objection, this paper then presents and defends a modified Scanlonian approach to promissory obligation that preserves his key insights, avoids the problems, and removes the risk of circularity pointed out by Kolodny and Wallace.

"Law, Reason, and Emotion" Free Download

MORTIMER NEWLIN STEAD SELLERS, University of Baltimore - School of Law
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Law, reason, and emotion have a long, close, and complicated relationship in the history of philosophy and justice. This discussion suggests that that law gains legitimacy and effectiveness when it marries reason with emotion, that reason and human emotion are the guiding values of any just legal system, that all legal systems claim to be just, and that all legal systems and all legal scholars make use of these insights whether they acknowledge them or not. The project here in the first instance is one of definition: "law", "reason", "emotion", "justice", "effectiveness", and "the rule of law" all require specification to better understand how they relate to one another and set the agenda for further conversation. The first step is to consider how these words have been and should be used for the better understanding and eventual improvement of law and society. Reason and emotion are the twin pillars of the law, which make the law legitimate, just, and effective when they are properly taken into account and otherwise not. No one can properly understand law without reference both to human emotion and to the purpose law properly exists to serve, which is the rational well-being of each and every member of society.

"The Politics of Global Legal Pluralism" Free Download

MARCO GOLDONI, University of Glasgow - Faculty of Law & Financial Studies
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Global legal pluralism is one of the most influential contemporary theories dealing with questions concerning transnational and global law. It is often presented as an approach which can open up new channels for political action in an environment which is usually hostile to politics. This article takes up three of the most representative authors within this field (Paul Schiff Berman, Nico Krisch and Gunther Teubner) and shows why the politics of global legal pluralism is in the end rather disappointing. In fact, the politics promoted by global legal pluralists is shallow and cannot account either for its own reflexivity or for the staging of political disagreement.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School