“Legal Sets” Posted to SSRN


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.



4,518,184 unique applications. From four different data sources. 74.71GB. All in Stata.

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Now I just have to figure out what it all means. And I have two weeks to do it.

Progress for Future Persons: WIPIP Slide Deck and Discussion Points


Following up on yesterday’s post, here are the slides from my WIPIP talk on Progress for Future Persons. Another take on the talk is available in Rebecca Tushnet’s summary of my panel’s presentations.

A couple of interesting points emerged from the Q&A:

  • One of the reasons why rights-talk may be more helpful in the environmental context than in the knowledge-creation context is that rights are often framed in terms of setting a floor: whatever people may come into existence in the future, we want to ensure that they enjoy certain minimum standards of human dignity and opportunity. This makes sense where the legal regime in question is trying to guard against depletion of resources, as in environmental law. It’s less obviously relevant in the knowledge-creation context, where our choices are largely about increasing (and then distributing) available resources–including cultural resources and the resources and capacities made possible by innovation.
  • One of the problems with valuing future states of the world is uncertainty: we aren’t sure what consequences will flow from our current choices. This is true, but it’s not the theoretical issue I’m concerned with in this chapter. In fact, if we were certain what consequences would flow from our current choices, that would in a sense make the problem of future persons worse, if only by presenting it more squarely. That is, under certainty, the only question to deal with in normatively evaluating future states of the world would be choosing among the identities of future persons and of the resources they will enjoy.

Slides: Progress for Future Persons WIPIP 2016

LV Loss is About the EU, Not Handbags


Some of my IP friends are posting today about Louis Vuitton’s loss last week of a trademark fight over its checkerboard pattern in the EU General Court. This was news in Europe when it happened (the IPKat, a great resource for EU IP happenings, reported on it at the time), but it was only picked up on in the popular US fashion press today (here and here and here, for example).

LV is a very vigorous (some would say bullying) trademark litigant here in the US. And so there may be a tendency to chalk up this opinion to their pattern of overreaching on substantive trademark law. But it’s always a good idea to read the actual decisions (here and here). Because when you do, a somewhat different picture emerges.

To my eye these cases are not so much about trademark law as they are about the legal and economic structure of the EU (in the particular context of community-wide IP rights). The key language (paragraph 84 in both opinions) is:

“It follows from the unitary character of the Community trade mark that, in order to be accepted for registration, a sign must have distinctive character throughout the European Union.”

In other words, to get community-wide protection a mark must serve as a trademark in every member state, not just a few, or even a majority. This creates a higher evidentiary burden for LV, but potentially not an insurmountable one. It also provides an incentive for manufacturers and merchants not to ignore the peripheral EU countries when marketing their products. It is, in other words, less about trademarks than it is about trade. But in any case, it’s a fascinating issue for those who are interested in the increasing internationalization of IP rights and regimes.

The Nice Classification and Law’s Expressive Function


Happy New Year! For trademark lawyers, today marks the entry into force of the 2015 Version of the 10th Edition of the Nice Classification. This is the classification system that trademark owners refer to in identifying what types of goods or services they are claiming a right to use their marks with. (Trademark law allows for concurrent use by different users in sufficiently distinct product or service categories–think Delta Faucets and Delta Airlines). Just scanning the USPTO’s helpful list of “noteworthy changes” in the 2015 version, I’m reminded how much trademark law is a window into society, and how it can be example of what Cass Sunstein called the “expressive function” of the law.

Glancing through the list, we see that e-cigarette fluids are now firmly associated with smoking and tobacco instead of chemistry; that 3D-printers are considered less a scientific curiosity and more a useful tool; that the government is no longer quite so particular about categorizing sex toys according to precisely how they get you off.

Of course, against this apparently progressive list of changes are some more troubling indicia of an increasingly stratified and commodified consumer culture. We must now be careful to distinguish custom tailoring from mere clothing repair. We apparently need separate categories for all the various specialty mitts one might use for different household tasks–whereas once a washcloth could be used in the shower or on your car, now you need two different specially-designed gloves to achieve both tasks–and be sure you don’t confuse either with the different specialty mitt you use in the kitchen. And because even in our social interactions we’d rather spend money than time and effort, there is now legal recognition for branded gift wrapping services.

So that’s where we’re headed in 2015. Whether law is leading or following, I’ll leave you to decide.

“Who Should Pay for Progress?” to Kick Off IPSC 2014 at Berkeley


Well, this is a very nice surprise.  It looks like my current research project, “Who Should Pay for Progress?”, has been selected as the first presentation of the opening plenary session of the 14th Annual Intellectual Property Scholars Conference at UC Berkeley in two weeks. IPSC is the largest annual gathering of the intellectual property law academy, with over 150 scholars from all over the world presenting this year. As in past years, the organizers seem to have reserved the six plenary spots for relatively junior scholars–one of the more generous practices of an unusually generous scholarly community. Obviously I’m extremely grateful to the conference organizers for selecting my project; I’ll do my best not to disappoint.