Volume 88.5 (September 2021) 1025-1283

Articles

Trademark Law Pluralism
Daniel J. Hemel - Professor of Law and Ronald H. Coase Research Scholar, The University of Chicago Law School.
Lisa Larrimore Ouellette - Professor of Law and Justin M. Roach, Jr. Faculty Scholar, Stanford Law School. 

In recent years, trademark scholars have come to recognize that the supply of words, sounds, and symbols available to designate new goods and services is an exhaustible resource. In certain sectors, the most common English words and syllables and the most common U.S. surnames are almost all claimed as marks. Some firms have responded by resorting to ever-more-unusual brand names so as to avoid trademark disputes. Scholars have proposed solutions ranging from raising registration fees to narrowing the scope of trademark rights.

In this Article, we frame trademark law’s governance of “linguistic space” as a balancing act between what we term proximity costs and distance costs. Proximity costs, the conventional focus of trademark doctrine, occur when different firms use marks that are close in linguistic space—think Zantac (for heartburn) versus Xanax (for anxiety). Distance costs arise when firms use marks that are difficult to remember because of their length or their far remove from the core of semantic signifiers familiar to most consumers—staying in the medicine cabinet, think Valsartan (for high blood pressure) or Namzaric (for memory loss). Although conceptually different, proximity costs and distance costs both create similar practical problems. Both make it more difficult for consumers to purchase and communicate about brands, and both make it harder for new entrants to establish and defend their market share.

Our proximity-distance framing has conceptual payoffs for trademark law. We explain why responses to the crowding of linguistic space internal to trademark law cannot escape some tradeoff between proximity costs and distance costs. Allowing mark holders to control a larger swath of linguistic space reduces proximity costs, but at the expense of pushing other firms to the periphery of linguistic space, increasing distance costs. Similarly, weakening trademark protection to allow more firms to locate their marks in the linguistic core reduces distance costs, but with some increase in proximity costs. Our framing thus shows how the policy problems of trademark law parallel the challenges of managing scarcity in real property. As we draw inspiration from solutions to urban congestion and sprawl, we suggest how nontrademark interventions can lead to more efficient use of linguistic space, promoting product identification without raising proximity or distance costs. Our approach thus points to the possibility of using a plurality of legal and policy tools to address the proximity-distance dilemma at trademark law’s heart. And by relieving some of the pressure on trademark law to resolve the proximity-distance dilemma on its own, our approach frees trademark law to pursue a wider range of goals and to vindicate a broader variety of values.

The Pigouvian Constitution
Peter N. Salib - Climenko Fellow and Lecturer on Law, Harvard Law School. 

How can lawmakers reduce the skyrocketing rate of gun deaths in the United States? How can they stymie the spread of viral fake news stories designed to undermine our elections? Certain constitutionally protected activities—like owning a gun or speaking online—can generate social harms. Yet when lawmakers enact regulations to reduce those harms, they are regularly struck down as unconstitutional. Indeed, the very laws designed to most aggressively reduce social harms—like total criminal bans—are the least likely to be upheld. As a result, regulators appear stuck with an unpleasant choice—regulate constitutionally or effectively, but not both.

This Article proposes a novel solution: Pigouvian taxation. A Pigouvian tax is an economic tool whereby people are required to bear the social costs of their own activity, rather than forcing others to do so. Pigouvian taxes can thread the needle that traditional regulations have not, reducing serious social costs while respecting constitutional protections of individual rights. This is because many constitutional tests—for example, strict scrutiny’s “narrow tailoring” requirement—implicitly reflect the very kind of economic thinking on which Pigouvian taxes rely. In short, constitutional doctrines protecting individual activity do not require society to implicitly subsidize such activity by absorbing any and all costs it generates. Legitimate social costs may be regulated. But regulations must maintain a careful proportionality between the constitutional burdens they impose and the social harms they seek to eliminate. Pigouvian taxes, unlike traditional command-and-control rules, are inherently well-suited to such tailoring. Thus, in areas where traditional rules have been difficult or impossible to adequately tailor—like guns and speech—Pigouvian taxation presents an important new regulatory tool.

Comments

Arbitration and Title VII Pattern-or-Practice Claims After Epic Systems
Simon Jacobs - S.B. 2014, The University of Chicago; J.D. Candidate 2022, The University of Chicago Law School. 

In recent years, the Supreme Court has put up roadblocks for workers who seek relief in court for wrongs committed by their employers. This development is a consequence of the Court’s arbitration jurisprudence. Epic Systems Corp. v. Lewis, a 2018 decision, was par for the course. The Supreme Court held that employers could prevent group wage-and-hour claims by enforcing individual arbitration agreements. It rejected the plaintiffs’ argument that their litigation activity was protected by labor law. In dissent, Justice Ruth Bader Ginsburg questioned the application of the decision to Title VII pattern-or-practice cases. Indeed, Epic Systems puts potential Title VII plaintiffs in a bind. Class waivers in arbitration agreements prevent employees from banding together in group actions. But every circuit court to consider the question has determined that only a class—not an individual plaintiff—can litigate a claim of a pattern or practice of discrimination under Title VII. Taken together, the Supreme Court’s arbitration cases and the circuit courts’ Title VII jurisprudence would seem to eviscerate the pattern-or-practice suit.

In this Comment, I argue that Epic Systems does not reach all Title VII plaintiffs. First, I contend that some Title VII litigation is protected by the National Labor Relations Act (NLRA), notwithstanding Epic Systems. Congress gave Title VII plaintiffs the ability to obtain broad remedial relief to address discriminatory conditions, unlike in the wage-and-hour context. Like strikes or collective bargaining, litigation is one way that employees can reform the workplace. Then, I suggest that courts should borrow a test from securities law to evaluate whether a group of employees is sufficiently independent and cohesive to bring a pattern-or-practice case. Courts can give effect to the NLRA and Title VII without scrapping arbitration agreements entirely.

Defining Forced Labor: The Legal Battle to Protect Detained Immigrants from Private Exploitation
Samantha Sherman - B.A. 2015, Dartmouth College; J.D. Candidate 2022, The University of Chicago Law School.

Privately run immigration detention facilities allegedly profit from a nationwide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of thousands of people detained in these prisonlike facilities each year but would also call into question the viability of the entire private immigration detention industry.

This Comment examines one critical legal question raised by the pending litigation: How should courts define what activities are “labor or services” under § 1589? Private detention corporations argue that the activities that plaintiffs allege they were forced to perform, such as cleaning bathrooms and common areas, are merely housekeeping tasks that do not qualify as “labor or services” under the TVPA. This Comment argues that this defense is inconsistent with the TVPA’s text, its legislative history, and existing case law. Drawing from the Second Circuit’s decision in McGarry v. Pallito, this Comment proposes a new standard for courts to apply in determining whether a certain task qualifies as “labor or services” in the detention context. First, courts should consider whether the task is truly personal. Second, courts should assess whether the purpose of the task is to defray institutional costs. This standard will help ensure that people held in for-profit immigration detention centers receive the full federal protection from forced labor to which they are entitled.

Never Ask a Woman Her Wage: The Constitutionality of Salary-History Bans
Tyler M. Wood - B.A. 2017, Connecticut College; J.D. Candidate 2022, The University of Chicago Law School. Many thanks to Professor Geoffrey Stone and the University of Chicago Law Review editors for their helpful feedback and advice on this Comment.

For over a half-century, legislatures have struggled to close the pay gap between men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether these salary-history bans are constitutional. Responding to recent claims that these bans unconstitutionally burden employers’ right to free speech—namely, by restricting the questions that employers are allowed to ask applicants—I argue that these bans permissibly restrict only the commercial speech of employers. In making this argument, I seek to prove that—in any jurisdiction—salary-history bans should withstand the intermediate scrutiny afforded to commercial speech restrictions. By assessing the structure, function, and (critically) effectiveness of salary-history bans, this Comment finds that there is sufficient evidence to show that these bans directly and materially serve to shrink the gender-wage gap. Therefore, I conclude that such laws are safely within the constitutional authority of the governments that enact them.