Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)

Megan M. Carpenter

Volume 68, Issue 1, 1-44

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners, including a case before the Supreme Court this term. In this Article, I answer the fundamental question: Given the problems previous research has identified, what should be done about the 2(a) bar for scandalous marks?

This Article argues, as a preliminary matter, that the registration bar for scandalous marks be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registrationand content in broadcast media are evaluated: by considering the context of the marketplace.

Full Article

The Define and Punish Clause and the Political Question Doctrine

Lyle D. Kossis

Volume 68, Issue 1, 45-96

The Constitution gives Congress the power to “define and punish . . . Offences against the Law of Nations.” Congress has used this power to enact various criminal statutes that proscribe certain violations of international law. In some cases, criminal defendants argue that these statutes are unconstitutional because Congress has incorrectly defined the law of nations. Federal courts routinely entertain this argument. But the political question doctrine prevents federal courts from resolving a question when the Constitution entrusts the political branches with providing an answer. The Define and Punish Clause gives Congress, not the courts, the power to define the law of nations. Accordingly, federal courts should be barred from determining whether Congress has properly defined international law. No court or scholar to date has pursued this argument in detail. This Article takes the first step.

The Article begins by describing the historical underpinnings of the Define and Punish Clause and the contemporary version of the political question doctrine. The Article then explains why the proper definition of international law under the Define and Punish Clause is a political question. It reviews the Clause’s text, structure, and history, applicable Supreme Court precedent, and a variety of practical arguments to illustrate why federal courts have no authority to second-guess Congress’s definition of the law of nations. Finally, the Article concludes by situating its central thesis within the current framework of both constitutional and non-constitutional law. It explains that the Supreme Court has never used international norms to limit Congress’s power under the Define and Punish Clause. It also argues that although Congress has the sole power to define the law of nations, legislative power will remain meaningfully limited, and courts will remain free to interpret other sources of international law.

Full Article

The “New Insiders”: Rethinking Independent Directors’ Tenure

Yaron Nili

Volume 68, Issue 1, 97-158

Director independence is a cornerstone of modern corporate governance. Regulators, scholars, companies, and shareholders have all placed a strong emphasis on director independence as a means to ensure that investors’ interests in their companies are well served. But what makes a director independent? While regulators and stock exchanges have tackled this elusive standard in different ways, the end goal is always the sameensuring that the director is able to exercise truly independent judgment and further the best interests of shareholders. Surprisingly, these regulatory bodies have failed to consider the impact board tenure might have on director independence. This Article seeks to fill this void, highlighting the potential effect director tenure has on director independence. Providing novel empirical data that reveals a significant rise in director tenure over the last decade, the Article then strives to place this trend in the larger context of transformations in board structure.

Specifically, this Article suggests that the trend of increased director tenure reflects a market attempt to push back against the regulatory emphasis on board independence that has forced companies to remove many high ranked executives from the boardroom. This reaction is manifest in the increased prevalence of the “new insider,” a hybrid board member who complies with current independence requirements but at the same time, through longer tenure and other attributes, possesses many of the traits that corporate insiders previously brought to the board table. Coupling this market movement with its potential impact on board independence, this Article then explores the benefits and risks of this new insider model and proposes a potential regulatory solution that would address director tenure without sacrificing the benefits that tenure can provide.

Full Article

Far from the Madding Crowd: A Statutory Solution to Crowd Crush

Tracy Hresko Pearl

Volume 68, Issue 1, 159-202

Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in their analysis and providing little incentive for organizers and owners to improve their crowd management practices. Additionally, ad hoc crowd management efforts on the part of a few concerned promoters and venues have done little to reduce the risk of crowd-related injuries in cities and states as a whole.

This Article argues that state and local adoption of crowd management statutes is the only remaining solution that can effectively reduce the number of crowd crush injuries and fatalities in the United States each year. Because there are currently no such laws in this country, this Article proposes a model statute that draws upon fundamental principles of crowd science in requiring event organizers and venue owners to take a series of simple steps before and during large gatherings that will drastically reduce the likelihood of crowd crush.

Full Article

A Bridge over the Patent Trolls: Using Antitrust Laws to Rein in Patent Aggregators

Eric Young

Volume 68, Issue 1, 203-24

Patents, by their very nature, are a type of monopoly, and are so important to our country’s intellectual and technological advancement that the Founding Fathers granted Congress the power “to promote the progress of science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.” But in recent decades, that imperative has lost its footing. Mass patent aggregators, companies that compile, hoard, and assert patent rights without contributing products to the world have contorted that vision. “Patent Trolls” assemble portfolios of weak patents to corner and dominate technological spaces, crowding out innovators and demanding extortionate licensing fees from unsuspecting targets. Federal antitrust laws forbid improper accumulation and assertion of monopoly power, which is precisely how trolls’ business model operates. And yet, courts traditionally have not found a patent portfolio to constitute a “relevant market” under the Sherman Act. This Note explains why they should, and in doing so examines two cases between identical litigants, the latter of which may provide a roadmap for pursuing antitrust counterclaims against serial patent assertion entities.

Full Article