New Draft: Finding Dilution (An Application of Trademark as Promise)

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I’ve just posted to SSRN a draft of a book chapter for a forthcoming volume on trademark law theory and reform edited by Graeme Dinwoodie and Mark Janis. My contribution, entitled “Finding Dilution,” reviews the history and theory of the quixotic theory of liability that everybody loves to hate. As Rebecca Tushnet has noted, in a post-Tam world dilution may not have much of a future, and my analysis in this draft may therefore be moot by the time this volume gets published. But if not, the exercise has given me an opportunity to extend the theoretical framework I established and defended in the Stanford Law Review a few years ago: Trademark as Promise.

In Marks, Morals, and Markets, I argued that a contractualist understanding of trademarks as a tool to facilitate the making and keeping of promises from producers to consumers offered a better descriptive–and more attractive normative–account of producer-consumer relations than the two theoretical frameworks most often applied to trademark law (welfarism and Lockean labor-desert theory). But I “intentionally avoided examining contractualist theory’s implications for trademark law’s regulation of producer-producer relationships” (p. 813), mostly for lack of space, though I conjectured that these implications might well differ from those of a Lockean account. In my new draft, I take on this previously avoided topic and argue that my conjecture was correct, and that the contractualist account of Trademark as Promise offers a justification for the seeming collapse of trademark dilution law into trademark infringement law (draft at 18):

This justification, in turn, seems to depend on a particular kind of consumer reliance—reliance not on stable meaning, which nobody in a free society is in a position to provide, but on performance of promises to deliver goods and services. It is interference with that promise—a promise that does not require the promisor to constrain the action of any third party against their will—that trademark law protects from outside interference. A contractualist trademark right, then, would be considerably narrower than even the infringement-based rights of today. To recast dilution law to conform to such a right would be to do away with dilution as a concept. A promise-based theory of dilution would enforce only those promises the promisor could reasonably perform without constraining the freedom of others to act, while constraining that freedom only to the extent necessary to allow individuals—and particularly consumers—to be able to determine whether a promise has in fact been performed.

As they say, read the whole thing. Comments welcome.

 

Right and Wrong vs. Right and No-Right

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This is a point that is probably too big for a blog post. But as the end of the Supreme Court term rolls around, and we start getting decisions in some of the more divisive cases of our times, something about the political undercurrents of the Court’s annual ritual has me thinking about the way it tends to legalize morality, and how much of our political narrative has to do with our disagreement about the way morals and law interact. I’m not speaking here about the positivist vs. anti-positivist debate in jurisprudence, which I view as being primarily about the ontology of law: what makes law “law” instead of something else. That question holds fairly little interest for me. Instead, I’m interested in the debate underlying that question: about the relationship between law on the one hand and justice or morality on the other. Most of the political energy released over these late decision days is not, I think, about the law, nor even about the morality, of the disputes themselves. Instead, it seems to me to be about the extent to which moral obligations ought or ought not to be legal ones–particularly in a democratic country whose citizens hold to diverse moral systems.

There is a long philosophical tradition that holds there is a difference between the kinds of conduct that can be enforced by legal coercion and the kinds that may attract moral praise or blame but which the state has no role in enforcing. This distinction–between the strict or “perfect” duties of Justice (or Right) and the softer or “imperfect” duties of Virtue (or Ethics)–is most familiar from Kant’s moral philosophy, but it has precursors stretching from Cicero to Grotius. Whether or not the distinction is philosophically sound or useful, I think it is a helpful tool for examining the interaction of morals and laws–but not in the sense in which philosophers have traditionally examined them. For most moral philosophers, justice and virtue are complementary parts of a cohesive whole: a moral system in which some duties are absolute and others contingent; the latter must often be weighed (sometimes against one another) in particular circumstances, but all duties are part of a single overarching normative system. But I think the end of the Supreme Court term generates so much heat precisely because it exposes the friction between two distinct and sometimes incompatible normative systems: the system of legal obligation and the system of moral obligation.

The simplest world would be one in which the law required us to do everything that was morally obligatory on us, forbade us to do everything that was morally wrong, and permitted us to do everything morally neutral–where law and morality perfectly overlap. But that has never been the world we live in–and not only because different people might have different views about morality. Conflicts between law and morality are familiar, and have been identified and examined at length in the scholarly literature, sometimes in exploring the moral legitimacy of legal authority, other times in evaluating the duty (or lack thereof) of obeying (or violating) unjust laws. Such conflicts are at least as old as Socrates’ cup of hemlock; one can trace a line from Finnis back to Aquinas, and from Hart back to Hobbes. Moreover, because in our society moral obligations are often derived from religious convictions, and our Constitution and statutes give religious practices a privileged status under the law, these conflicts are quite familiar to us in the form of claims for religious exemption from generally applicable laws–historically in the context of conscientious objection to military service, and more recently as an expanding web of recurring issues under the Religious Freedom Restoration Act.

But religious convictions are not the only moral convictions that might conflict with legal obligations. And the question whether one ought to obey an unjust law represents only one type of intersection between the two normative systems of law and morals–the most dramatic one, certainly, and the one that has garnered the most attention–but not the only one. Some of those intersections will present a conflict between law and morality, but many will not. Still, I think each such intersection carries a recognizable political valence in American society, precisely because our political allegiances tend to be informed by our moral commitments. I’ve outlined a (very preliminary) attempt to categorize those political valences in the chart below, though your views on the categories may differ (in which case I’d love to hear about it):

 Political Valence
Moral Categories
Wrong Suberogatory Morally Neutral Right Supererogatory
Legal Categories Forbidden Law and Order Nanny State Victimless Crime Civil Disobedience
Permitted Failure of Justice The Price of Liberty The Right to be Let Alone Good Deeds Saints and Heroes
Required Just Following Orders Red Tape Civic Duty Overdemanding Laws

Now of course, people of different political stripes will put different legal and moral situations into different boxes in the above chart, and frame the intersection of law and morals from the points of view of different agents. In our current political debate over enforcement of the immigration laws, for example, an American conservative might frame the issue from the point of view of the immigrant, and put enforcement in the “Law and Order” box; while an American progressive might frame the issue from the point of view of federal agents, and put enforcement in the “Just Following Orders” box. Conversely, to the progressive, the “Law and Order” category might call to mind the current controversy over whether a sitting president can be indicted; to a conservative, the “Just Following Orders” category might call to mind strict environmental regulations. Coordination of health insurance markets through federal law might be seen as an example of the Nanny State (conservative) or of Civic Duty (progressive–though 25 years ago this was a conservative position); permissive firearms laws as either a Failure of Justice (progressive) or as part of the Right to be Let Alone (conservative).

The complexity of these interactions of law and morality strikes me as extremely important to the functioning of a democratic, pluralistic society committed to the rule of law. On the one hand, the coexistence of diverse and mutually incompatible moral systems with a single (federalism aside) legal system means that inevitably some people subject to the legal system will identify some aspects of the law with a negative political valence while other people subject to the same legal system will identify those same aspects of the law with a positive political valence. For a society like ours to function, most of these people must in most circumstances be prepared to translate their moral dispute into a political-legal dispute: to recognize the legitimacy of law’s requirements and channel their moral disagreement into the democratic political process of changing the law (rather than making their moral commitment a law unto itself). The types of political valences I’ve identified may be a vehicle for doing precisely that: they provide a narrative and a framework that focuses moral commitments on political processes with legal outcomes. Our political process thus becomes the intermediating institution of our moral conflicts.

These types of moral disagreements are likely to account for the vast majority of disagreements about which political valence is implicated in a particular legal dispute. But interestingly, I think it is also likely that some disagreements over the political valence at the intersection of a legal and a moral category could arise even where people are in moral agreement. In such cases, the right/wrong axis of moral deliberation is replaced with the right/no-right axis of Hohfeldian legal architecture: we agree on what the parties morally ought to do, and the only question is how the law ought to be structured to reflect that moral agreement. Yesterday’s opinion in the Masterpiece Cakeshop case strikes me as evidence of this possibility, and I’m unsure whether that makes it comforting or concerning.

To be sure, there are deep moral disagreements fueling this litigation. The appellants and their supporters believe as a matter of sincere religious conviction that celebrating any same-sex marriages is morally wrong, and that it is at least supererogatory and perhaps morally required to refrain from contributing their services to the celebration of such a marriage. The respondents and their supporters believe that celebrating loving same-sex marriages is at least morally neutral and more likely morally right, and that refusing to do so is at least suberogatory and more likely morally wrong. (Full disclosure: I’m soundly on the side of the respondents on this moral issue.) But that moral dispute is not addressed in the opinion that issued yesterday. The opinion resolves a legal question–the question whether Colorado’s anti-discrimination laws had been applied in a way that was inconsistent with the appellants’ First Amendment rights. And the Court’s ruling turned on peculiarities of how the Colorado agency charged with enforcing the state’s antidiscrimination law went about its business–particularly, statements that Justice Kennedy believed evince “hostility” to religious claims.

It is quite likely that both political progressives and political conservatives would agree that “hostility” to religious beliefs on the part of state law enforcement officials is morally wrong, or at least suberogatory. And if that–rather than the morality of celebrating same-sex marriages–is the real moral issue in the case, the parties’ deep moral disagreement moves to one side, and instead we must simply ask how the law ought to be fashioned to avoid the moral wrong of anti-religious hostility. Here, interestingly, the typical moral progressive/conservative battle lines are either unclear or absent. If you agree with Justice Kennedy’s characterization of the facts (which you might not, and which I do not), and if you believe the respondents lack the power to compel the appellants to provide their services in connection with same-sex wedding celebrations (or that they ought to lack this power), you likely believe that the case so framed is a vindication of law and order. But even if you think the respondents do (or should) have the power to compel the appellants to provide their services for same-sex weddings, and you agree with Justice Kennedy’s characterization of the facts, invalidating this otherwise permissible state action on grounds that it was motivated by morally suspect “hostility” might be acceptable so framed as a vindication of Law and Order, or at worst seen as an example of the Nanny State. And this reveals an important point that I think likely motivated the Justices in Masterpiece Cakeshop: with this resolution of the case there is a way for moral adversaries to agree on the political valence of the outcome.

There is obviously no guarantee that the litigants or their supporters will come to such agreement. To the contrary, it seems more likely that both parties’ supporters will see the “hostility” reasoning as a distraction from the outcome, which still touches on the deeper moral issues involved: the appellants’ supporters will see the outcome as a vindication of Law and Order and an invitation to Good Deeds, while respondents’ supporters will see it as a Failure of Justice and an instruction to state law enforcement agents to Just Follow Orders. But at the very least, political agreement is possible in a way that it would not be if the Court had aligned the law with one of the conflicting moral frameworks of the litigants and against the other.

It is both the virtue and the weakness of this type of solution is that it solves a legal controversy without taking sides in the moral disputes that ultimately generated the controversy in the first place. In so doing, it insulates the law from contests of morality and, possibly, of politics–but those contests haven’t gone away. Conversely, such solutions might have the effect of insulating politics from law: if the courts will only decide disputes on grounds orthogonal to the moral commitments underlying political movements, such movements may cease to see the law as a useful instrument, and may start casting about for others. I’m not sure that’s a healthy result for a society trying to hold on to democracy, pluralism, and the rule of law all at the same time. On the other hand, I’m not sure there’s a better option. The belief that we can, and somehow will, forge a common legal and political culture despite our deep moral disagreements is not one I think a republic can safely abandon.

Valuing Progress: Forthcoming 2018 from Cambridge University Press

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I’m very pleased to announce that the book project I have been plodding away at for over two years is now under contract with Cambridge University Press. Its working title is Valuing Progress: A Pluralist Approach to Knowledge Governance. Keep an eye out for it in late 2018, and tell your librarian to do likewise!

Bits and pieces of Valuing Progress have appeared on this blog and elsewhere as it has developed from a half-baked essay into a monograph-sized project:

  • I presented my first musings about the relationship between normative commitments regarding distribution and the choice of a knowledge-governance regime as the opening plenary presentation at IPSC in Berkeley–these musings will now be more fully developed in Chapter 4 of the book: “Reciprocity.”
  • My exploration of our obligations to future persons, and the implication of those obligations for our present-day knowledge-governance policies, used analogous arguments in environmental policy as an early springboard. Deeper consideration of our obligations to the future led me to Derek Parfit’s Non-Identity Problem, at first through the lens of public health policy. Because knowledge governance–like environmental stewardship and global health policy–is a cooperative social phenomenon spanning timescales greater than any single human lifetime, the problem of future persons is one any theory of knowledge governance must engage. I made my first effort to do so at the 2015 Works-In-Progress in Intellectual Property (WIPIP) Conference at the University of Washington, and presented a more recent take at NYU’s 2017 Tri-State IP Workshop. My fuller treatment of the issue will appear in Chapter 7 of Valuing Progress: “Future Persons.”
  • Finally, the driving theoretical debate in IP lately has been the one between Mark Lemley, champion of consequentialism, and Rob Merges, who has lately turned from consequentialism to nonconsequentialist philosophers such as Locke and Rawls for theoretical foundations. My hot take on this debate was generative enough to justify organizing a symposium on the issue at the St. John’s Intellectual Property Law Center, where I serve as founding director. I was gratified that both Professors Lemley and Merges presented on a panel together, and that I was able to use the opportunity to more fully introduce my own thoughts on this debate. My introduction to the symposium issue of the St. John’s Law Review forms the kernel of Chapter 2 of Valuing Progress: “From Is to Ought.”

Other chapters will discuss the incommensurability of values at stake in knowledge governance, the relevance of luck and agency to our weighing of those values,  the widening of our moral concern regarding the burdens and benefits of knowledge creation to encompass socially remote persons, and the role of value pluralism in shaping political institutions and ethical norms to reconcile these values when they inevitably conflict. The result, I hope, will introduce my colleagues in innovation and creativity law and policy to a wider literature in moral philosophy that bears directly on their work. In doing so, I hope to help frame the distinction between–and the appropriate domains of–empirical and normative argumentation, to point a way out of our increasingly unhelpful arguments about 18th-century philosophy, and to introduce a more nuanced set of normative concerns that engage with the messiness and imperfection of human progress.

I am extremely grateful to everyone who has helped me to bring Valuing Progress to this important stage of development, including Matt Gallaway at CUP, the organizers of conferences at which I’ve had the opportunity to present early pieces of the project (particularly Peter Menell, Pam Samuelson, Molly Shaffer Van Houweling, and Rob Merges at Berkeley; Jennifer Rothman at Loyola of Los Angeles; Jeanne Fromer and Barton Beebe at NYU; Zahr Said at the University of Washington; Irina Manta at Hofstra; and Paul Gugliuzza at Boston University). I am also grateful for the support of St. John’s Law School, my dean Mike Simons, and my colleagues who have served as associate dean for faculty scholarship as this project has been in development: Marc DeGirolami and Anita Krishnakumar. Many more friends and colleagues have offered helpful feedback on early drafts and conversation about points and arguments that will find their way into the manuscript; they can all expect warm thanks in the acknowledgments section of the finished book.

But first, I have to finish writing the thing. So, back to work.

“Legal Sets” Posted to SSRN

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A little over a year ago, I was noodling over a persistent doctrinal puzzle in trademark law, and I started trying to formulate a systematic approach to the problem. The system quickly became bigger than the problem it was trying to solve, and because of the luxuries of tenure, I’ve been able to spend much of the past year chasing it down a very deep rabbit hole. Now I’m back, and I’ve brought with me what I hope is a useful way of thinking about law as a general matter. I call it “Legal Sets,” and it’s my first contribution to general legal theory. Here’s the abstract:

In this Article I propose that legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”

And the link: http://ssrn.com/abstract=2830918

And a taste of what’s inside:

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I’ll be grateful for comments, suggestions, and critiques from anyone with the patience to read the draft.