In this article, the author discusses the regulatory framework which amends the rules on the supervision of fiscal policy and incorporates economic good governance in the European Union, and describes the role and features of independent fiscal institutions acting as “fiscal watchdogs” in selected Member States.
{"title":"The New Regulatory Framework in the EU and the Role of the Independent Fiscal Authority","authors":"P. Lampreave","doi":"10.2139/ssrn.2351782","DOIUrl":"https://doi.org/10.2139/ssrn.2351782","url":null,"abstract":"In this article, the author discusses the regulatory framework which amends the rules on the supervision of fiscal policy and incorporates economic good governance in the European Union, and describes the role and features of independent fiscal institutions acting as “fiscal watchdogs” in selected Member States.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"484 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77774201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many social scientists rely on the rule of law in their accounts of political or economic development. Many, however, simply equate law with a stable government capable of enforcing the rules generated by a political authority. As two decades of largely failed efforts to build the rule of law in poor and transition countries and continuing struggles to build international legal order demonstrate, we still do not understand how legal order is produced, especially in places where it does not already exist. We here canvas literature in the social sciences to identify the themes and gaps in the existing accounts. We conclude that this literature has failed to produce a microfoundational account of the phenomenon of legal order. We then discuss our recent effort to develop the missing microfoundations of legal order to provide a better framework for future work on the rule of law.
{"title":"Microfoundations of the Rule of Law","authors":"Gillian K. Hadfield, Barry R. Weingast","doi":"10.2139/ssrn.2342882","DOIUrl":"https://doi.org/10.2139/ssrn.2342882","url":null,"abstract":"Many social scientists rely on the rule of law in their accounts of political or economic development. Many, however, simply equate law with a stable government capable of enforcing the rules generated by a political authority. As two decades of largely failed efforts to build the rule of law in poor and transition countries and continuing struggles to build international legal order demonstrate, we still do not understand how legal order is produced, especially in places where it does not already exist. We here canvas literature in the social sciences to identify the themes and gaps in the existing accounts. We conclude that this literature has failed to produce a microfoundational account of the phenomenon of legal order. We then discuss our recent effort to develop the missing microfoundations of legal order to provide a better framework for future work on the rule of law.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"72 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79117108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.When an overlap issue arises — that is, when an intellectual property rights holder asserts rights under more than one doctrine — the question then becomes how courts should respond. One response, of course, is that courts should do nothing, on the theory that the doctrines developed in a way that permit such overlapping rights, and so the courts should continue to enforce them. The opposing response is to argue that overlapping rights make it difficult for intellectual property users to determine the scope of another’s rights, particularly when those rights have different terms or limitations, and so the courts should require intellectual property owners to choose the right they want enforced at the outset.Neither response is entirely satisfying. Without some signal from Congress that it intended to limit the scope of intellectual property rights when overlaps occur, the imposition of restrictions by the courts simply to achieve predictability for users seems problematic. At the same time, courts should not be blind to the difficulties that doctrinal overlap pose for potential defendants and the temptation it presents to intellectual property owners to push for even stronger protection.This Article therefore proposes something of a middle ground. Courts should not require intellectual property owners to elect one form of protection at the outset. But they should be attentive to whether the right asserted in any litigation proceeding aligns with the harm claimed by the plaintiff and, relatedly, should try to devise remedies that address only those harms.
{"title":"Overlapping Intellectual Property Doctrines: Election of Rights versus Selection of Remedies","authors":"L. A. Heymann","doi":"10.2139/SSRN.2398051","DOIUrl":"https://doi.org/10.2139/SSRN.2398051","url":null,"abstract":"Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.When an overlap issue arises — that is, when an intellectual property rights holder asserts rights under more than one doctrine — the question then becomes how courts should respond. One response, of course, is that courts should do nothing, on the theory that the doctrines developed in a way that permit such overlapping rights, and so the courts should continue to enforce them. The opposing response is to argue that overlapping rights make it difficult for intellectual property users to determine the scope of another’s rights, particularly when those rights have different terms or limitations, and so the courts should require intellectual property owners to choose the right they want enforced at the outset.Neither response is entirely satisfying. Without some signal from Congress that it intended to limit the scope of intellectual property rights when overlaps occur, the imposition of restrictions by the courts simply to achieve predictability for users seems problematic. At the same time, courts should not be blind to the difficulties that doctrinal overlap pose for potential defendants and the temptation it presents to intellectual property owners to push for even stronger protection.This Article therefore proposes something of a middle ground. Courts should not require intellectual property owners to elect one form of protection at the outset. But they should be attentive to whether the right asserted in any litigation proceeding aligns with the harm claimed by the plaintiff and, relatedly, should try to devise remedies that address only those harms.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2398051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68179013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We recently published an article in the New England Journal of Medicine describing a crisis in cognitive testing, as doctors and medical researchers increasingly face copyright claims in sets of questions used for testing mental state. We encouraged the creation of a cultural norm in medicine, in which medical researchers would ensure continued availability of their tests through open source licensing for any copyrights that might exist. In this piece, we consider the legal side of the question. Although copyrights are being copiously asserted in medical testing, are those rights valid, and should they be upheld? The legal precedents in this area are anything but clear, and the courts are divided in the few analogous circumstances that have arisen. We examine analogies in standardized testing, computer compilations and baseball pitching forms to consider the marvelous question of how to conceptualize a process-which is the purview of patent law-when that process consists of words-which are the purview of copyright law. We also look from an economics perspective at the issue of investment and value creation in the development of de facto standards. Legal scholars are so often in the position of looking backwards, teasing out solutions to problems that have developed within a doctrinal or theoretical area. Rarely does one have the opportunity to affect the course of events before problems become so deeply entrenched that they are intractable. This is such a moment, and the legal and medical fields should take advantage of the opportunities presented.
{"title":"Copyright at the Bedside: Should We Stop the Spread?","authors":"Robin Feldman, John Newman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>We recently published an article in the New England Journal of Medicine describing a crisis in cognitive testing, as doctors and medical researchers increasingly face copyright claims in sets of questions used for testing mental state. We encouraged the creation of a cultural norm in medicine, in which medical researchers would ensure continued availability of their tests through open source licensing for any copyrights that might exist. In this piece, we consider the legal side of the question. Although copyrights are being copiously asserted in medical testing, are those rights valid, and should they be upheld? The legal precedents in this area are anything but clear, and the courts are divided in the few analogous circumstances that have arisen. We examine analogies in standardized testing, computer compilations and baseball pitching forms to consider the marvelous question of how to conceptualize a process-which is the purview of patent law-when that process consists of words-which are the purview of copyright law. We also look from an economics perspective at the issue of investment and value creation in the development of de facto standards. Legal scholars are so often in the position of looking backwards, teasing out solutions to problems that have developed within a doctrinal or theoretical area. Rarely does one have the opportunity to affect the course of events before problems become so deeply entrenched that they are intractable. This is such a moment, and the legal and medical fields should take advantage of the opportunities presented.</p>","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"16 3","pages":"623-655"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4160306/pdf/nihms561614.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32668152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The “Resolution Project” began in August 2009, in the midst of the financial crisis, to consider how best to deal with the failure of major financial institutions. The members of the group, assembled from institutions across the country, were Andrew Crockett, Darrell Duffie, Richard Herring, Thomas Jackson, William Kroener, Kenneth Scott (chair), George Shultz, Kimberly Summe and John Taylor, later joined by David Skeel. The heated debate in Congress over the proper response continued until July 2010, culminating in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203), which in Title II established a new procedure whereby systemically important financial institutions could be put into an FDIC receivership.The Resolution Project group turned to the development of a supplemental proposal for a modified bankruptcy law, denominated as a new Chapter 14, designed exclusively for major financial institutions. This paper is written for a moderately knowledgeable audience and is intended to identify and compare the major differences in the Dodd-Frank Title II and Chapter 14 procedures, and to outline the reasons why the group believes the latter to be preferable.
“解决方案项目”始于2009年8月，当时正值金融危机，目的是考虑如何最好地应对主要金融机构的倒闭。该小组的成员来自全国各地的机构，包括安德鲁·克罗克特、达雷尔·杜菲、理查德·赫林、托马斯·杰克逊、威廉·克鲁纳、肯尼斯·斯科特(主席)、乔治·舒尔茨、金伯利·萨姆和约翰·泰勒，后来大卫·斯基尔也加入了进来。国会关于如何应对的激烈辩论一直持续到2010年7月，最终以《多德-弗兰克华尔街改革与消费者保护法案》(Dodd-Frank Wall Street Reform and Consumer Protection Act)的出台而告终。(L. 111-203)，该法案在第二章中建立了一个新的程序，使具有系统重要性的金融机构可以接受FDIC的接管。决议项目小组转而为修改后的破产法制定了一项补充建议，以新的第14章命名，专门为主要金融机构设计。本文是为适度知识渊博的观众写的，旨在识别和比较多德-弗兰克标题II和第14章程序的主要差异，并概述该小组认为后者更可取的原因。
{"title":"A Guide to the Resolution of Failed Financial Institutions: Dodd-Frank Title Il and Proposed Chapter 14","authors":"Kenneth E. Scott","doi":"10.2139/SSRN.2018035","DOIUrl":"https://doi.org/10.2139/SSRN.2018035","url":null,"abstract":"The “Resolution Project” began in August 2009, in the midst of the financial crisis, to consider how best to deal with the failure of major financial institutions. The members of the group, assembled from institutions across the country, were Andrew Crockett, Darrell Duffie, Richard Herring, Thomas Jackson, William Kroener, Kenneth Scott (chair), George Shultz, Kimberly Summe and John Taylor, later joined by David Skeel. The heated debate in Congress over the proper response continued until July 2010, culminating in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203), which in Title II established a new procedure whereby systemically important financial institutions could be put into an FDIC receivership.The Resolution Project group turned to the development of a supplemental proposal for a modified bankruptcy law, denominated as a new Chapter 14, designed exclusively for major financial institutions. This paper is written for a moderately knowledgeable audience and is intended to identify and compare the major differences in the Dodd-Frank Title II and Chapter 14 procedures, and to outline the reasons why the group believes the latter to be preferable.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86546015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new. It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention are in fact new. A patented invention is legally defined by its claims – written definitions of the invention. And those written definitions virtually never call out what it is that is new about the patentee’s invention. Even if the parties do identify the novel element of an invention, the law purports not to care. Long-standing patent law doctrine has decried any focus on the “point of novelty” of an invention. The United States Court of Appeals for the Federal Circuit evaluates the claim as a whole, not just the piece of the claim that the patentee actually added to the storehouse of knowledge. As the court frequently puts it, “there is no legally recognizable . . . ‘gist’ or ‘heart’ of the invention.” It turns out, however, to be hard to sustain a rule that a law concerned with novelty will pay no attention to the point of novelty. And so point-of-novelty issues crop up in a number of different doctrines in patent law, from figuring out who counts as an inventor to whether the inventor has disclosed the “best mode” of practicing the invention to when the sale of a product exhausts the patentee’s rights in the patent. Courts are inconsistent in whether and how they consider the point of novelty in these doctrines and more. But when the Federal Circuit presented with a question in point-of-novelty terms, it most often falls back on the mantra that there is no point of novelty to an invention, even if it means discarding long-standing precedent. It’s time to rethink the no-point-of-novelty doctrine in patent law. I argue that ignoring what is novel about patentee’s invention makes little sense as an across-the-board matter, and leads to a variety of harmful consequences. While refusing to focus on the point of novelty serves some valuable purposes, there are other ways to achieve those ends. And in the end, a patent regime that pays attention to what the patentee actually invented, not what the patent lawyer wrote down, is more likely to achieve the goal of promoting innovation.
{"title":"Point of Novelty","authors":"Mark A. Lemley","doi":"10.2139/SSRN.1735045","DOIUrl":"https://doi.org/10.2139/SSRN.1735045","url":null,"abstract":"We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new. It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention are in fact new. A patented invention is legally defined by its claims – written definitions of the invention. And those written definitions virtually never call out what it is that is new about the patentee’s invention. Even if the parties do identify the novel element of an invention, the law purports not to care. Long-standing patent law doctrine has decried any focus on the “point of novelty” of an invention. The United States Court of Appeals for the Federal Circuit evaluates the claim as a whole, not just the piece of the claim that the patentee actually added to the storehouse of knowledge. As the court frequently puts it, “there is no legally recognizable . . . ‘gist’ or ‘heart’ of the invention.” It turns out, however, to be hard to sustain a rule that a law concerned with novelty will pay no attention to the point of novelty. And so point-of-novelty issues crop up in a number of different doctrines in patent law, from figuring out who counts as an inventor to whether the inventor has disclosed the “best mode” of practicing the invention to when the sale of a product exhausts the patentee’s rights in the patent. Courts are inconsistent in whether and how they consider the point of novelty in these doctrines and more. But when the Federal Circuit presented with a question in point-of-novelty terms, it most often falls back on the mantra that there is no point of novelty to an invention, even if it means discarding long-standing precedent. It’s time to rethink the no-point-of-novelty doctrine in patent law. I argue that ignoring what is novel about patentee’s invention makes little sense as an across-the-board matter, and leads to a variety of harmful consequences. While refusing to focus on the point of novelty serves some valuable purposes, there are other ways to achieve those ends. And in the end, a patent regime that pays attention to what the patentee actually invented, not what the patent lawyer wrote down, is more likely to achieve the goal of promoting innovation.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80791214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Following the Supreme Court’s 2007 decision in KSR v. Teleflex, commentators predicted that one of two things would happen: the Federal Circuit would change how it actually ruled on the issue of whether patents were obvious or that it would merely change what it said.This study empirically examines these two predictions using a novel dataset comprised of all pre- and post-KSR Federal Circuit decisions on obviousness over a fifteen-year period. Examining this data reveals strong evidence that KSR has indeed altered the outcomes of the Federal Circuit’s obviousness determinations, a change that has manifested in large part through an increase in the deference that the Federal Circuit is giving to district court determinations that patents are obvious. Moving beyond an examination of outcomes alone, this study uses the technique of content analysis to explore the heart of the second prediction: that KSR would affect what the Federal Circuit says about obviousness. This analysis demonstrates that the Federal Circuit has indeed changed what it says. Essentially gone is the use of the Federal Circuit’s ubiquitous pre-KSR “teaching, suggestion, or motivation” (“TSM”) framework in analyzing obviousness. Furthermore, while the underlying requirement that patent challengers identify some “reason to combine” or “reason to modify” prior art references has endured, it is hardly a reincarnation of TSM, either in terms of vigor or structure.
{"title":"The Federal Circuit's New Obviousness Jurisprudence: An Empirical Study","authors":"Jason A. Rantanen","doi":"10.2139/SSRN.2210049","DOIUrl":"https://doi.org/10.2139/SSRN.2210049","url":null,"abstract":"Following the Supreme Court’s 2007 decision in KSR v. Teleflex, commentators predicted that one of two things would happen: the Federal Circuit would change how it actually ruled on the issue of whether patents were obvious or that it would merely change what it said.This study empirically examines these two predictions using a novel dataset comprised of all pre- and post-KSR Federal Circuit decisions on obviousness over a fifteen-year period. Examining this data reveals strong evidence that KSR has indeed altered the outcomes of the Federal Circuit’s obviousness determinations, a change that has manifested in large part through an increase in the deference that the Federal Circuit is giving to district court determinations that patents are obvious. Moving beyond an examination of outcomes alone, this study uses the technique of content analysis to explore the heart of the second prediction: that KSR would affect what the Federal Circuit says about obviousness. This analysis demonstrates that the Federal Circuit has indeed changed what it says. Essentially gone is the use of the Federal Circuit’s ubiquitous pre-KSR “teaching, suggestion, or motivation” (“TSM”) framework in analyzing obviousness. Furthermore, while the underlying requirement that patent challengers identify some “reason to combine” or “reason to modify” prior art references has endured, it is hardly a reincarnation of TSM, either in terms of vigor or structure.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"16 1","pages":"709"},"PeriodicalIF":0.0,"publicationDate":"2012-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67991685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-01-01DOI: 10.1093/acprof:oso/9780198743095.003.0004
Nita A. Farahany, L. Rev
¶1 Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of human will. Jean-Dominique Bauby authored the original memoir after suffering a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, Bauby blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that the transcriber had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides in gripping detail the separability of the intention to act and the ability to effectuate intended actions. That Bauby could convey his thoughts through such extraordinary means is at once remarkable and tragic that anyone should suffer such a fate. Through the use of his one working eye, Bauby overcame, at least in a limited way, constraints on his freedom to act—by choosing to act, effectuating actions, and identifying with the actions he achieved. ¶2 Today, Bauby might have instead have used a revolutionary new technique from neuroscience to communicate his memoir. A technology known as brain-machine interface enables a computer to “read” brain activity and to decode it through pattern-recognition algorithms.1 Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, where the subject is able to move a cursor on the computer screen, check email, change the volume, and select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements.2 So by
{"title":"A Neurological Foundation for Freedom","authors":"Nita A. Farahany, L. Rev","doi":"10.1093/acprof:oso/9780198743095.003.0004","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198743095.003.0004","url":null,"abstract":"¶1 Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of human will. Jean-Dominique Bauby authored the original memoir after suffering a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, Bauby blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that the transcriber had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides in gripping detail the separability of the intention to act and the ability to effectuate intended actions. That Bauby could convey his thoughts through such extraordinary means is at once remarkable and tragic that anyone should suffer such a fate. Through the use of his one working eye, Bauby overcame, at least in a limited way, constraints on his freedom to act—by choosing to act, effectuating actions, and identifying with the actions he achieved. ¶2 Today, Bauby might have instead have used a revolutionary new technique from neuroscience to communicate his memoir. A technology known as brain-machine interface enables a computer to “read” brain activity and to decode it through pattern-recognition algorithms.1 Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, where the subject is able to move a cursor on the computer screen, check email, change the volume, and select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements.2 So by","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"2012 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60646086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although it is not wholly recognized by scholars, the ordoliberal thought has had a direct influence on the EU law and, in particular, on the EU competition law. Today, this approach seems old-fashioned respect to the US variety of liberalism supporting by Chicago School. We will deal with two ordoliberal concerns: (i) the idea of as-if competition and (ii) the process of polarization of economic power. The aim of this work is not to defend ordoliberal approach, but to try to offer a more modern treatment in order to better evaluate its pros and cons.
{"title":"Ordoliberal Competition","authors":"Massimiliano Vatiero","doi":"10.2139/ssrn.2473443","DOIUrl":"https://doi.org/10.2139/ssrn.2473443","url":null,"abstract":"Although it is not wholly recognized by scholars, the ordoliberal thought has had a direct influence on the EU law and, in particular, on the EU competition law. Today, this approach seems old-fashioned respect to the US variety of liberalism supporting by Chicago School. We will deal with two ordoliberal concerns: (i) the idea of as-if competition and (ii) the process of polarization of economic power. The aim of this work is not to defend ordoliberal approach, but to try to offer a more modern treatment in order to better evaluate its pros and cons.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78920072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise. As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic that information, they will confuse consumers, who won’t know whether they are in fact getting a high quality product and therefore won’t be willing to pay as much for that quality. I won’t pay as much for an iPod if I think there is a chance it is a cheap knock-off masquerading as an iPod. The law of false advertising operates as an adjunct to trademark law. While trademark law prevents competitors from misrepresenting the source of their products by mimicking another’s brand name, the law of false advertising prevents false or misleading statements about the quality of one’s own or a competitor’s products. Like trademark law, false advertising law is designed to protect the integrity of markets by allowing consumers to rely on statements made by sellers. Unfortunately, trademark law has taken the concept of confusion too far. Between 1930 and 1980, courts expanded the concept of confusion beyond confusion as to the source of a product to include the possibility that consumers are confused as to whether the trademark owner sponsors or is affiliated with the defendant’s goods. This expansion began for plausible reasons: consumers might be confused to their detriment in a variety of circumstances in which the plaintiff and the defendant do not actually compete directly. But sponsorship and affiliation confusion has taken on a life of its own, resulting in a large number of cases in which companies or individuals are prevented from doing things that might conceivably confuse consumers, but do not confuse consumers in any way that harms their decision-making process or that the law should care about. In Part I, we offer a number of examples of “confusion�? that courts have found actionable even in circumstances in which that confusion was unlikely to matter to the operation of the market. Part II explains how we arrived at this unfortunate pass. We suggest in Part III that trademark law should focus its attention on confusion that is actually relevant to purchasing decisions. We would make the source of the goods the central element of confusion analysis. It is confusion as to source that is most obviously relevant to the purposes behind trademark law. That does not mean, however, that confusion as to the relationship between plaintiff and defendant can never be actionable. Confusion as to affiliation should be actionable wh
{"title":"Irrelevant Confusion","authors":"Mark A. Lemley, Mark Mckenna","doi":"10.31235/osf.io/4ea9v","DOIUrl":"https://doi.org/10.31235/osf.io/4ea9v","url":null,"abstract":"Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise. As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic that information, they will confuse consumers, who won’t know whether they are in fact getting a high quality product and therefore won’t be willing to pay as much for that quality. I won’t pay as much for an iPod if I think there is a chance it is a cheap knock-off masquerading as an iPod. The law of false advertising operates as an adjunct to trademark law. While trademark law prevents competitors from misrepresenting the source of their products by mimicking another’s brand name, the law of false advertising prevents false or misleading statements about the quality of one’s own or a competitor’s products. Like trademark law, false advertising law is designed to protect the integrity of markets by allowing consumers to rely on statements made by sellers. Unfortunately, trademark law has taken the concept of confusion too far. Between 1930 and 1980, courts expanded the concept of confusion beyond confusion as to the source of a product to include the possibility that consumers are confused as to whether the trademark owner sponsors or is affiliated with the defendant’s goods. This expansion began for plausible reasons: consumers might be confused to their detriment in a variety of circumstances in which the plaintiff and the defendant do not actually compete directly. But sponsorship and affiliation confusion has taken on a life of its own, resulting in a large number of cases in which companies or individuals are prevented from doing things that might conceivably confuse consumers, but do not confuse consumers in any way that harms their decision-making process or that the law should care about. In Part I, we offer a number of examples of “confusion�? that courts have found actionable even in circumstances in which that confusion was unlikely to matter to the operation of the market. Part II explains how we arrived at this unfortunate pass. We suggest in Part III that trademark law should focus its attention on confusion that is actually relevant to purchasing decisions. We would make the source of the goods the central element of confusion analysis. It is confusion as to source that is most obviously relevant to the purposes behind trademark law. That does not mean, however, that confusion as to the relationship between plaintiff and defendant can never be actionable. Confusion as to affiliation should be actionable wh","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88668122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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