Issue 1

A Consumer Decision-Making Theory of Trademark Law

The consumer search costs theory has dominated discussion of trademark law for the last several decades. According to that theory, trademark law aims to increase consumer welfare by reducing the cost of shopping for goods or services. It accomplishes this by preventing uses of a trademark that might confuse consumers about the source of the goods with which they are used. This conceptual frame is wrong, and it is complicit in most of trademark law’s extraordinary expansion. Search costs are often irrelevant to consumer behavior, and even when they are relevant, it is not clear that consumers always want their search costs reduced. Moreover, courts focusing on search costs overwhelmingly have equated confusion and search costs and have therefore felt compelled to respond whenever a mark owner can describe the defendant’s use in confusion-based terms. 

But trademark law is not an all-purpose remedy against thinking, and courts should be concerned about confusion only when it is likely to interfere with consumer decisions. More specifically, courts should respond in trademark cases only when the defendant’s use is likely to deceive consumers and thereby prevent them from effectuating their choices. Reframing the issue in this way has significant ramifications for almost all of trademark law, from a variety of theories of infringement to the likelihood of confusion analysis, defenses, and even the scope of injunctive relief. It is, to put it simply, a better view of trademark law, and one that can identify reasonable limits in an area sorely lacking limits of any kind.

The End of Campaign Finance Law as We Knew It

The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but for reasons that have little to do with corporate electioneering. Although the public outcry and legal scholarship have focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Last year’s elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one.

Citizens United therefore is a clear turning point for not just campaign finance law, but for all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court actually may be sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be much more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, point this way forward for campaign finance reform without campaign finance regulation.

Result or Reason: The Supreme Court and Sit-In Cases

How do Supreme Court justices decide controversial cases? Are the justices more interested in the result reached or the reason for reaching that result? The sit-in cases of the early 1960s present a case study of this important institutional and jurisprudential question. During the early 1960s, black college students entered segregated lunch counters and refused to leave upon the orders of the owners. Challenging this discrimination under the Equal Protection Clause, these protestors confronted the “state action requirement.” This requirement forbids only state action that violates equal protection rights, allowing individuals to be as intolerant as they please and setting up a conflict between “constitutional values of the highest order: liberty and equality.” Specifically, the liberty of individual business owners to engage in discrimination on their private property set against the right of black patrons to be served on terms equal to white customers.

The Supreme Court heard a series of cases involving the sit-ins during 1962 and 1963, overturning protestor convictions in every case yet avoiding resolution of the central constitutional question: Does the discrimination of private owners of businesses of public accommodation constitute state action? Scholars have always assumed (based on the Court’s obvious preference for overturning convictions) that the Court was prepared to find such private action to be state action, vindicating equality over liberty. Exploring internal Court documents, this Note rewrites this history and illuminates the concerns of the justices in rendering legal judgments within this morally and politically charged arena. Contrary to the conventional wisdom, a majority of the Court subscribed to a doctrinal position that dictated a narrow interpretation of the state action requirement, a position that vindicated the liberty interests of discriminating proprietors. Thus, the outcome of the sit-in controversy (overturned protestor convictions without a constitutional ruling) reflected a complicated, and often painful, balance between concrete results and the intellectual inclinations of the justices. Ultimately, three key justices compromised their intellectual inclinations in favor of their preferred result, ducked the constitutional question with its broad potential effects on individual rights, and left final resolution of the controversy to Congress in the 1964 Civil Rights Act; thereby implying underlying institutional and intellectual limitations on the Court.

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