The Record

Infrastructuring the Digital Public Sphere

Living with the Merchandising Right (Or How I Learned to Stop Worrying and Love Free-Riding Stories)

Trademark scholars love to hate the merchandising right (i.e., the use of trademark law to give trademark owners control over product markets in which the trademark is the good—e.g., a BOSTON RED SOX baseball cap). We think that trademark law should protect consumer interests. If no one thinks that sports teams manufacture their own merchandise, then there’s no possibility of source confusion.

Judging Autonomous Vehicles

The introduction of any new technology challenges judges to determine how it fits into existing liability schemes. If judges choose poorly, they can unleash novel injuries on society without redress or stifle progress by overburdening a technological breakthrough. The emergence of self-driving, or autonomous, vehicles will present an enormous challenge of this sort to judges. This technology will alter the foundation of the largest source of civil liability in the United States.

Enhancing the Innovative Capacity of Venture Capital

How can law help translate great ideas into great innovations? Venture capital (VC) markets play an increasingly important role in funding innovation, and they have benefitted from substantial public support. While venture capital is almost synonymous with innovation, the ability of VC markets to catalyze innovations is often overstated. This Article examines the innovation limitations of VC and the role of law and policy in enhancing its innovative capacity.

Tech Drift & Powerlessness

Tech drift is the phenomenon where a change in technological context alters policy outcomes. Tech drift can cause legal vulnerabilities. Socially empowering policies such as labor and employment laws can become inaccessible or ineffective because of changing technological contexts. But tech drift begets more than legal weakness. It also constitutes tech politics, as one of tech drift’s outcomes is a shift in the locus of struggles over policy outcomes: from policy enactment, blocking, or reform to the very shaping of tech context.