Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

The Law of Look and Feel

Abstract: Design is the currency of corporations, and increasingly, under the Demsetzian logic, the subject of property claims by them. The world’s biggest company owes its value largely to design. Where once Apple’s claim to own its popular graphical user interface was rebuffed readily by courts, today, design-related claims lead to billion dollar judgments in Apple’s favor. Today design – which includes everything from shape, color, and packaging to user interface, consumer experience, and organizational structure – plays a central role in the modern economy and is increasingly the subject of intellectual property law’s attention. But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark and trade dress, and patent law. Indeed, while nearly every area of modern IP law has been marshalled in the service of design protection, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions to design protection. To make matters worse, different disciplines within IP use similar terms and concepts – functionality, consumer confusion – but apply them in wholly different, even contradictory ways.This Article provides the first comprehensive assessment of the regulation of consumers’ aesthetic experiences in copyright, trade dress, and patent law – what we call “the law of look and feel.” We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac-Man to Louboutin shoes to the iPhone, from the “feel of the ‘70s” captured in Marvin Gaye’s music, the scantily clad employees of Abercrombie & Fitch, and the decor of Mexican restaurants, to Apple’s technologies of “pinch to zoom,” “bounce-back” and “rubberbanding.” In so doing, we identify an emergent “law of look and feel” that finds unity among the diversity of IP laws protecting aesthetic experience. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and cultural cohesion itself.

From the Greenhouse to the Poorhouse: Carbon Emissions Control and the Rules of Legislative Joinder

Abstract: Pending legislation to address carbon emissions would include large subsidies for existing emitters. These subsidies make little sense economically or politically. Worse, they divert resources needed to address two crucial issues that the proposed legislation largely ignores: the impact of raising carbon costs on low-income people and the massive structural federal deficit. A carbon tax or cap-and-trade system would increase costs substantially not only for transportation but for food and housing. With poverty rising even before the current economic downturn, these price increases’ consequences could be dire. The structural deficit will require deflationary tax increases or spending cuts. Combining carbon regulation with these measures could do severe damage. Although few challenge their merits, these proposals may nonetheless fail if a consensus emerges that they are extraneous to climate change legislation. Overly complex legislation often does bog down, and we lack coherent normative principles for “issue joinder” in public policy debates. Such principles can be derived and counsel addressing both low-income subsidies and deficit reduction as part of climate change legislation. Another challenge is finding efficient means to deliver subsidies without disrupting incentives to conserve. Energy companies are likely to divert proposed allocations for this purpose to writing off bad debt. Funding energy assistance programs similarly will crowd out existing resources. Prior piecemeal efforts to address high energy costs provide invaluable lessons on designing a system to offset rising carbon costs without distorting consumers’ incentives. The large majority of proceeds not needed for low-income subsidies should be reserved for deficit reduction.

Should Lucas v. South Carolina Coastal Council Protect Where the Wild Things Are? Of Beavers, Bob-o-Links, and Other Things that Go Bump in the Night

Abstract: This Article suggests that Lucas v. South Carolina Coastal was primarily an attempt by the Court to simplify the judicial task of resolving what Robert Gordon refers to as the "hard cases" involving land use disputes, and that, with respect to laws protecting wildlife, the Court did not succeed in its quest. The article briefly discusses the effect of wildlife protection regulations on private land use, and the equity issues raised by their idiosyncratic application. The article shows how English understandings about the rights and duties of landowners influenced colonial expectations about similar matters at the time of the founding of this country. It also shows how early colonial law harbored a deep-seated hostility toward wilderness and explains how some English property doctrines were changed in this country to facilitate cultivation of wild (or "waste") lands - the very lands that are prized today as wildlife habitat. The Article traces the common law roots of modern wildlife laws and demonstrates how the common law doctrines of state wildlife trust and public trust have protected wildlife in this country because of their importance as communal resources, and discusses the theoretical aspects of these doctrines.

Health Care Competition Law in the Shadow of State Action: Minimizing MACs

Abstract: How should we go about reconciling competition and consumer protection in health care, given the long shadow cast by the state action doctrine? We consider that issue, using a case study drawn from an obscure corner of the pharmaceutical reimbursement market to motivate and inform our analysis. We show how the balance between competition and consumer protection has been distorted by the political economy of health care regulation – compounded by the extension of the state action doctrine far past its defensible borders. If anything, considerations of political economy argue for much greater skepticism about the utility of regulation – and of the state action doctrine – in the health care space.