INTRODUCTION 2100 I. AN OVERVIEW OF TRADEMARK POLICY AND DOCTRINE..... 2104 A. The Standard Policy Arguments 2105 1. Economic Arguments 2105 2. Moral Arguments 2108 a. Lying or Intentional Deception 2108 b. Consumer Autonomy 2109 c. Unjust Enrichment 2111 3. The Problems (Costs) of Protecting Trademarks ...... 2114 B. A Brief Overview of Trademark Doctrine 2116 II. ENFORCEMENT COSTS IN GENERAL 2123 III. ENFORCEMENT COSTS AT THE TRADEMARK CORE 2125 A. Protecting Marks Without Proof of Secondary Meaning 2127 B. Protecting Marks Without Proof of Consumer Confusion 2134 C. Protecting Marks Without Proof of Lower Quality ......... 2137 D. Summary 2143 IV. ENFORCEMENT COSTS AND TRADEMARK EXPANSIONS ........ 2143 A. Sponsorship Confusion 2144 B. Trade Dress Cases 2155 1. A Brief Summary of Trade Dress Law 2156 a. Secondary Meaning for Product Design 2160 b. Broadening the Functionality Bar 2161 2. An Enforcement Cost Analysis 2166 a. No Consumer Harm 2168 b. Too Broad a Product Monopoly 2174 CONCLUSION 2181

This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

This article attempts to provide the first comprehensive rationale for defending the current corporate income tax. It argues that the usual reasons given for the tax (primarily as an indirect way of taxing shareholders, or alternatively as a form of benefit tax) are inadequate. It then explains what the original rationale to adopt this tax was in 1909, namely to regulate managerial power, and that this rationale stems from the “real” view of the corporation, which was the dominant view throughout the many transformations underwent by the corporate form from Roman times to the present. Turning to normative argument, the article then argues that the regulatory rationale given for taxing corporations in 1909 is still valid, since similar social conditions continue to exist, and in fact is strengthened by the rise of multinational enterprises. Finally, the article argues that this rationale is necessary from a normative perspective to support the fight against the two crucial current threats to the corporate tax posed by the corporate tax shelter and tax competition phenomena. 1 Irwin I. Cohn Professor of Law, the University of Michigan. B.A. (History), Hebrew University, 1983; Ph.D. (History), Harvard University, 1986; J.D., Harvard Law School, 1989. I would like to thank Steve Bank, Michael Barr, Suzie Blumenthal, Yariv Brauner, Bruce Frier, Tom Green, David Hasen, Don Herzog, Jim Hines, Doug Kahn, Marjorie Kornhauser, Rich Lavoie, David Lenter, Kyle Logue, David Schizer, Joel Slemrod, and participants at workshops at Columbia, Michigan, and Northwestern Law Schools.

Nuisance law holds a special place in the development of law and economics. From Ronald Coase’s article on social cost and continuing on through the present day, the analytics of the classic nuisance dispute have been the touchstone of economic theories of law. When the question is how to internalize pollution externalities or whether people bargain under the shadow of property rules and liability rules, economic models present the dispute as a conflict between plaintiff and defendant, and very often between polluter and pollutee. I did not say “polluter and victim” because one of the prime results of the economic analysis of law has been to cast doubt on ordinary notions of causation in favor of an economically more sophisticated view in which use conflicts exhibit symmetric causality: the pollutee’s nose causes the use conflict just as much as the polluter’s smokestack. Only an economist might be surprised that the world has stuck with ordinary notions of causation even in the face of the insights of Coase and his successors.

While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an emancipation proclamation for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA's passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees' labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. By contrast, David Engle & Frank Munger's thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is working, and in so doing provides an alternative appraisal of the statute's efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA's mere presence has changed disabled persons' identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a new theory of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. This Essay seeks to bridge the inquiries made by the two normally exclusive disciplines of economics (the external, quantitative empirical radar) and sociology (the internal, qualitative assessment of rights discourse), by presenting a third path: an initial expressive law analysis of the ADA (examining the phenomena that exist beneath the empirical radar). That approach considers how (external) law can influence (internal) individual behavior by altering broader social norms, an approach not addressed in Rights of Inclusion. In considering those precepts, I am particularly interested in building on the expressive law gloss presented in Alex Geisinger's belief change theory, which identifies and models a process through which regulations can affect norms and preferences. Part I sets forth the disability life stories chronicled by Engle & Munger, and the conclusions they draw from those experiences about the nature of identity and rights theory. Next, Part II describes the general goals of expressive law scholarship, and adumbrates Alex Geisinger's belief change theory. Part III depicts existing socio-legal norms on the disabled, and the aspirations contained in the ADA. Part IV then sets forth a preliminary expressive law analysis of the ADA. The Essay concludes by reinterpreting, from an expressive law perspective, some of the disability life stories portrayed in Rights of Inclusion.

INTRODUCTION. 1052 I. DEDUCTIVE AND INDUCTIVE LEGAL SCIENCE . 1056 II. RADICAL SKEPTICISM AND COMMON SENSE . 1060 A. Radical Skepticism 1060 B. Common Sense 1063 C. Summary 1069 III. COMMON SENSE AND AMERICAN LEGAL SCIENCE 1070 A. Common Sense in America 1071 B. Common Sense and Inductive Legal Science 1073 IV. GULIAN VERPLANCK AS INDUCTIVE LEGAL SCIENTIST ........ 1079 A. Gulian Verplanck 1079 B. An Essay on the Doctrine of Contracts 1080 C. Horwitz on Verplanck: Reassessing Legal Science 1088 CONCLUSION 1091