UCLA Law Review Volume 53, Issue 3

A Semiotic Solution to the Propertization Problem of Trademark

It is generally agreed that the role of trademark protection is to ensure that consumers can efficiently identify and purchase a particular company’s product. However, the scope of this protection is highly contested. The recent emergence and expansion of the dilution doctrine, assignments in gross, “intent to use” applications, and logo protection have raised scholarly concern: These doctrines seem to protect the trademark as property in itself with value quite apart from its role as a device to help consumers identify particular products from particular sellers. This Comment explains why this “propertization” critique of trademark law is not wholly accurate, and further why the economic rationale that supports trademark protection is unnuanced and therefore unhelpful as a tool to understanding the proper limits of trademark law. This Comment argues that by mapping the legally accepted operation of trademarks to a semiotic model, it is easier to see when such protections further the rationale and when they do not. Ultimately, this Comment concludes that in many cases these protections actually do further the accepted role of trademark protection. Using this more precise understanding of emerging trademark jurisprudence, commentators and jurists will be better able to assess the value of particular trademark protections.

Sexually Provoked: Recognizing Sexual Misrepresentation as Adequate Provocation

Research suggests that a serious sexual misrepresentation can spark an emotional firestorm in the deceived. But, as a matter of law, can this emotional firestorm be considered a reasonable heat of passion? In short, when may a killer assert the provocation defense given a serious sexual misrepresentation? The law currently addresses this question in a haphazard way. Despite the recurrent deception theme found in many provocation cases—such as those involving the concealment of adultery, sexual identity, or sexual health status—the law applies to these cases a patchwork of legal theories that masks the role of the deception in bringing about a reasonable heat of passion. This ad hoc approach leaves the provocation defense both doctrinally disconnected and normatively unappealing. This Comment thus proposes treating sexual misrepresentation as legally adequate provocation when (1) a defendant engages in a sexual act while reasonably deceived, (2) regarding a fact reasonably material to consent, and (3) the discovery of which would cause a reasonable person a severe mental or emotional crisis upon discovery.

Was the Disparate Impact Theory a Mistake?

The disparate impact theory long has been viewed as one of the most important and controversial developments in antidiscrimination law. In this Article, Professor Selmi assesses the theory’s legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that it has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced likely could have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory always has been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact, we were left with a truncated theory of intentional discrimination that continues to turn on animus and motive. Rather than a new legal theory of discrimination, Professor Selmi concludes, a greater societal commitment to remedying inequities was needed, as the ultimate mistake behind the disparate impact theory was the belief that legal theory could do the work that politics could not.

Rights Myopia in Child Welfare

For decades, legal scholars have debated the proper balance of parents’ rights and children’s rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents’ rights nor children’s rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict, rather than collaboration, between the state and families. In lieu of a solely rights-based model, this Article proposes a problem-solving model for child welfare and explores one process born of such a model, family group conferencing. This Article argues that a problem-solving model holds significant potential to address many of the profound theoretical and practical shortcomings of the current child welfare system.

The Case for Limited Shareholder Voting Rights

Recent years have seen a number of efforts to extend the shareholder franchise. These efforts implicate two fundamental issues for corporation law. First, why do shareholders—and only shareholders—have voting rights? Second, why are the voting rights of shareholders so limited? This Article proposes answers for those questions. As for efforts to expand the limited shareholder voting rights currently provided by corporation law, the Article argues that the director primacy-based system of U.S. corporate governance has served investors and society well. This record of success occurred not in spite of the separation of ownership and control, but because of that separation. Before making further changes to the system of corporate law that has worked well for generations, it would be prudent to give those changes already made time to work their way through the system. To the extent additional change or reform is thought desirable, it should be in the nature of minor modifications to the newly adopted rules designed to enhance their performance rather than radical and unprecedented shifts in the system of corporate governance that has existed for decades.

Some Skepticism About Increasing Shareholder Power

This Article challenges the claim of shareholder primacists that reapportioning corporate governance power away from boards of directors and toward shareholders will benefit shareholders as a class. This claim is premised on the assumptions that shareholders have harmonious interests and that they will pursue those interests by disciplining managers and increasing shareholder value. I argue that the pursuit of common shareholder interests is unlikely to dominate the actions of shareholders. The largest modern shareholders—those most likely to exercise shareholder power—have private interests that are both substantial and in conflict with maximizing overall shareholder value. As a result, it is misleading to assume that increasing shareholder power will benefit shareholders generally. Instead, it is more plausible that shareholders will use any incremental power conferred on them to benefit their private interests at the expense of the firm and other shareholders. I contend that this concern poses a sufficient threat to shareholder wealth to warrant caution before implementing corporate governance reforms that would increase shareholder power.