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  For the Humanities

  Kwame Anthony Appiah

  The essays in The Humanities in the Age of Information and Post-Truth represent a defense of the social function of the humanities in today's society. Edited by Ignacio López-Calvo and Christina Lux, the volume explains different ways in which the humanities and the arts, beyond their intrinsic and nonfunctional value, may be a valuable tool in our search for social justice, human empathy, freedom, and peace, all the while helping us answer many of the twenty-first century's big questions. Some essays explore the ways in which the humanities may help us imagine a different, more just world, and articulate politically effective mechanisms to achieve such goals. Others address the place of the humanities and the arts amid the ontological and epistemological uncertainties constantly produced in a fast-changing world. While the reader may suspect that these types of lucubration are a desperate reaction to decreased public funding for the humanities worldwide, a decreased enrollment of students, or anxiety over the future of our profession, there is in this volume a coherent argument for the continued need, perhaps more now than ever, to invest in humanities education if we are to have informed and socially conscious citizens rather than just willing consumers and obedient workers. Furthermore, the essays prove that the humanities and the arts are, after all, not a luxury but an integral part of a complete scholarly education.

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  Policy Options for Taxing the Rich

  Lily Batchelder and David Kamin

  The U.S. economy exhibits high inequality and low economic mobility across generations relative to other high-income countries. The United States will need to raise more revenues in order to reduce these disparities, finance much-needed new services and investments, and address the nation’s long-term fiscal needs. This paper outlines policy options for raising a large amount of revenues primarily from the most affluent, first discussing potential incremental reforms and then focusing on four main options for more structural reform: dramatically increasing the top tax rates on labor and other ordinary income; effectively taxing the wealthy on accrued gains as they arise and at ordinary rates; a wealth tax on high-net-worth individuals; and a financial transactions tax. Although we summarize the relative advantages and disadvantages of these approaches, we generally conclude that they all merit serious consideration. Several options are also complementary to one another. In practice, however, the relative strengths of each of these policies will depend to a large extent on how each is designed after it has made its way through the legislative and regulatory process.

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  Empirical Studies of Trademark Law

  Barton C. Beebe

  In one of the earliest efforts at bringing empirical methods to bear on trademark law, Judge Jerome Frank of the Second Circuit Court of Appeals questioned “some adolescent girls and their mothers and sisters, persons I have chosen at random,” about the facts of the case then before him in 1948. In the case, both the plaintiff and the defendant used the mark “Seventeen” for their respective products (Triangle Publ’ns, 167 F.2d 969 (1948)). Judge Frank reported: “I have been told uniformly by my questionees that no one could reasonably believe that any relation existed between plaintiff’s magazine and defendants’ girdles.” In the half-century that has passed since Judge Frank’s survey, we have undoubtedly come a long way in the sophistication and breadth of the empirical methods we employ in the adjudication of trademark disputes and in the study of trademark law. Indeed, the past two decades have seen an especially significant expansion in the empirical study of the workings of trademark law, ranging from the straightforward “case-counting” and systematic content analysis of reported court opinions to highly creative and innovative studies employing such varying resources as internet search engines, historic phonebooks, surveys of trademark lawyers, and massive datasets covering trademark registrations in the U.S. and Europe. This chapter attempts a brief review of the present state of the empirical study of trademark law. Section II covers studies of trademark registration. Section III considers studies of the concept of trademark distinctiveness. Section IV turns to empirical studies of the likelihood of confusion cause of action, while Section V covers empirical studies of trademark dilution.

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  The Economics of Fiduciary Law

  Richard R. W. Brooks

  This chapter examines the treatment of fiduciary law in the field of law and economics. It begins with a typology of three theoretical tracts that accounts for loyalty in economics: the first tract takes a structural approach to questions of loyalty and disloyalty based on models occupied by strictly rational economic agents who are unable to choose or act in any manner than that dictated by narrow self-interests; the second explains loyalty in terms of personal character or preferences for particular actions and choices; and the third approaches loyalty in terms of allegiances to relationships or associations and, more specifically, to their associated rules of conduct. The chapter then discusses these three theoretical tracts of loyalty by reviewing the law and economics literature on beneficiaries and fiduciaries in general, and principals and agents in particular. The discussion is organized along lines of the two branches of scholarship that defines the field of law and economics: institutional economic analysis and economic analysis of law.

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  Experiments in Intellectual Property

  Christopher Buccafusco and Christopher J. Sprigman

  Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from the culture and technologies that they see around them. Until recently, there had been little effort to validate any of these assumptions. Fortunately, as this volume demonstrates, the last decade has witnessed significant interest in empirically testing IP law’s foundations. This chapter discusses the use of experimental and survey methods to understand how various features of copyright and patent law affect behavior. These methods are a valuable addition to the empirical toolkit, because they allow researchers to ask and answer questions that are not generally possible to approach with other empirical strategies. We first discuss some of the advantages of using experimental research. Then we highlight some of the findings that this research has produced in the copyright and patent fields thus far. Finally, we explore a variety of methodological issues that experimental researchers face.

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  When Form Follows Function: Governing for Good

  Deborah K. Burand

  This chapter argues that it is time to advance a legal scholarship agenda in the field of social entrepreneurship that prioritizes function over form, grounds theoretical observations in empirical research, and highlights the increasingly important role that corporate governance is likely to play in the evolution of the social entrepreneurship field. But it is not only the corporate governance of social enterprises that matters. The governance structures of those that invest in social enterprises matter too. Legal scholarship that focuses exclusively on how social enterprises are formed and governed runs the risk of overlooking another important driver of corporate behavior—that is, the investors that are mobilizing and aggregating sources of capital for companies engaged in social entrepreneurship.

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  Contractual Arbitrage

  Stephen J. Choi, Mitu Gulati, and Robert E. Scott

  Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques that courts use to resolve ambiguities in boilerplate language. Using the case of NML Capital v. Argentina, this chapter shows how traditional contract doctrine can produce a fertile setting for the growth of contractual arbitrage.

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  Taiwan's Political-Legal Progress: Memories of the KMT Dictatorship

  Jerome A. Cohen

  This brief memoir illustrates Taiwan’s modern human rights history in broad strokes through my own experiences. It begins with a first visit in 1961, when the island was suffering under the harsh Chiang Kai-shek dictatorship. It ends with my participation in the unique recent reviews of Taiwan’s immense human rights progress by leading international specialists. Along the way, I was privileged to witness and take part in a few depressing but exciting and ultimately hopeful events that marked the long transition from KMT repression to constitutional democracy.

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  Criminalizing Immigrants

  Alina Das

  Antidemocracy in America is a collective effort to understand the fragility of American democracy and how to protect it from the buried contradictions that Trump’s victory brought into view. It offers essays from leading scholars on topics including race, religion, gender, civil liberties, protest, inequality, immigration, and the media.

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  Education for Sovereign People

  Peggy C. Davis

  In chapter 6, Peggy Cooper Davis notes that in a democratic republic, the people are sovereign and must be free and educated to exercise that sovereignty. She contends that the history of chattel slavery’s denial of human sovereignty in the United States, slavery’s overthrow in the Civil War, and the Constitution’s reconstruction to restore human sovereignty provide a basis for recognizing that the personal rights protected by the United States Constitution, as amended on the demise of slavery, include a fundamental right to education that is adequate to enable every person to participate meaningfully as one among equal and sovereign people.

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  Harmonization: Top Down, Bottom Up—and Now Sideways?: The Impact of the IP Provisions of Megaregional Agreements on Third Party States

  Rochelle C. Dreyfuss

  This chapter examines the impulse to include intellectual property within the scope of a megaregional trade agreement that is largely devoted to the promotion of a particular vision of economic ordering and to the adoption of a regional framework supportive of competition, investment, and regulatory coherence. Using the Trans-Pacific Partnership (TPP) as an example, it argues that megaregional intellectual property agreements not only lead to changes in the law within member states, but can also have strong effects outside those states. The innovation sector within the region’s trading partners must adapt to the new regime if it wishes to continue to trade in the region. That can alter the intellectual property politics in these other countries. Furthermore, members of the epistemic community within the new regime influence those outside it. Finally, the law of the megaregion has an impact on the ability of the member states to negotiate future agreements with third countries and can also affect the way that existing agreements are interpreted. The last section of the chapter discusses the normative implications of megaregional spillover effects on third countries. While a megaregional exposes countries that had no role in the negotiation process to a changed legal landscape, it also creates a new way to harmonize intellectual property law, what I call “sideways” harmonization. Third countries can join at their own pace and in a manner that is responsive to their own creative sectors. These agreements also offer an opportunity to experiment with transnational trade rules, such as rules on in transit seizure, parallel importation, and cross-border enforcement.

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  Resolving Patent Disputes in a Global Economy

  Rochelle C. Dreyfuss

  As with other businesses, the patent industries have now discovered the global marketplace. Despite occasional declines in individual countries, the number of patent applications world-wide continues to increase, including in countries other than the inventor’s place of residence. Cross-border licensing revenues have similarly grown significantly. To a large extent, these developments stem from a dynamic familiar to other sectors of the economy: as countries grow wealthier and more sophisticated, as tastes and preferences converge, as transportation costs decline, foreign goods become more familiar, attainable, desirable, and available. For the technology community, other factors are also at play. The inclusion of the TRIPS Agreement within the World Trade Organization (WTO) framework means that patents are now readily available in many nations and across a broad array of creative endeavors. Intellectual production is becoming increasingly collaborative, involving inventors of different nationalities working in a multiplicity of locations. Technology itself is changing. Digital products, such as software, can be transmitted around the globe instantaneously. There are also new developments, such as cell phone technology, where patent claims are “divided” in the sense that they describe conduct that can span jurisdictions. Although the practice of patented technologies is now international, patent law and patent rights remain territorial. Accordingly, firms operating in, or worried about competition from, foreign jurisdictions need multiple patents to protect their interests. As the numbers suggest, acquisition of foreign patents is becoming easier. World Trade Organization members currently number 164. While examination and registration are required in each country where protection is sought, various international arrangements facilitate that process. The Patent Cooperation Treaty (PCT) offers preliminary examination functions to its 152 signatories. Regional agreements go even further. For example, the European Patent Convention (EPC), which currently has thirty-eight member states, including all of the members of the EU, centralizes examination (and also deepens the degree of harmonization). Much harder are the issues that arise in connection with dispute resolution. When markets were mainly local, it was clear that disputes would be resolved, and judgments would be enforced, in local courts, under local law. However, the advent of global exploitation makes this approach cumbersome, unpredictable, costly, and in some cases unfair. Consider, for example, a computer programmer (let us call him Developer, or D), working from his residence in the nation of Xandia, who reverse engineers a software-based product that a producer, P, has patented in several nations. D creates an independent product that simulates all of the original’s functionality and sells access to it from his Internet site, which is hosted on a server in Patria. From there, it can be utilized globally and “mirrored” (duplicated) by sites elsewhere. If P wants to enforce his patent to enjoin utilization and receive compensation for past infringements, where should P sue?

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  How Should We Think About a Global Market in Legal Cannabis?

  Antonia Eliason and Robert L. Howse

  Although the trade and distribution of cannabis is (largely) prohibited under international law, as well as in most domestic legal systems, there is now a noticeable trend to decriminalize and regulate its use for medicinal, and in some cases recreational, purposes. A number of US states have moved in this direction, although federal US law continues to criminalize the use of cannabis. Uruguay has legalized recreational use, and Canada recently enacted similar legislation. Should international law be modified or interpreted so as to facilitate trade and investment in cannabis (and related products and services) between domestic jurisdictions where legalization has occurred? How do the principles and rules of international trade and investment law relate to the United Nations (UN) regime and its possible evolution toward permissiveness of global market activity in cannabis? Debates about the legalization of cannabis use have been intense in many jurisdictions. To understand the implications of the internationalization of an emerging legal cannabis market, we must start with the diverse policy objectives often asserted for legalization. In the case of medical cannabis, improved health outcomes is the obvious objective; for recreational use, the objective is to counter the negative consequences of criminal activity. As social values change, impetus for legalization may also come from the belief that it is unfair that a widely socially accepted activity should put individuals at risk of a criminal record; in many cases, the criminal law is applied in a manner grossly inconsistent with social equality, with primarily disadvantaged minorities targeted for criminal sanction and possible incarceration. Another motivation for legalization is fiscal: governments can capture tax revenue that is not available from the criminal market. Finally, many believe that cannabis is a social drug that, when not abused, is relatively benign and generates a market for many spin- off goods and services, therefore generating revenue and contributing to economic growth and development.

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  American Minimalism: Why No Robust Account of National Identity Is Possible—or Desirable

  Richard A. Epstein

  The challenge posed to the contributors in this volume is to find a way, any way, perhaps, to patch up the frayed fabric of Americans’ shared national identity. The task is said to be critical, because the inability to meet the “arduous task of weaving a new national narrative in which all Americans can see themselves” could leave the nation vulnerable and adrift in perilous times. But can this be done? Not in my view, unless we engage in what I call American minimalism—a conscious reduction of the set of issues that we think are truly best handled as a nation and not better addressed by smaller subnational groups: states, local governments, and, most importantly, all sorts of smaller private organizations that are free to choose as they please in setting their own membership and mission.

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  Foreword: The Theoretical and Practical Pitfalls in Egalitarian Thought

  Richard A. Epstein

  This excellent volume offers an incisive, indeed, decisive, critique of modern egalitarian thought, whose intellectual strength remains weak even as its popularity becomes ever greater. No foreword can do justice to the arguments presented, all of which are strong in the two dimensions that matter most in policy work—a clear sense of theory, and a clear empirical grounding that tests the theories in question. The book’s individual chapters all share those characteristics. To be sure, there is, out of necessity, some useful overlap in their content, but the overall conclusion is inescapable. Whatever the abstract appeal of egalitarian arguments, they cannot survive the institutional, political, and economic pressures of any complex society. In writing this foreword I cannot go through all these arguments in the detail they deserve, but it is important to give some attention to the common strands that make In All Fairness cohere. My point of departure is clear enough. All of the authors, either explicitly or implicitly, adopt some form of classical liberalism as the benchmark from which they criticize the egalitarian moment. I believe that this is indeed the correct approach for dealing with any fundamental question of political theory. Classical liberalism, like egalitarianism, offers at its very root a social conception of the various rules and practices that, taken together, supply the foundation for a just society. In so doing, classical liberalism starts with a relatively narrow conception of harm that includes just these four elements: force, fraud, breach of promise, and the creation of monopoly power.

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  The Unintended Consequences of Fair Housing Laws

  Richard A. Epstein

  Alan Jenkins, the executive director of the Opportunity Agenda, has written an all too one-sided defense of the fair housing laws. His major error is to assume that the goals of the law, however laudable, can be achieved by the coercive means that the government wishes to employ. The legal issue at stake in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is whether it is possible to prove a violation of the Fair Housing Act of 1968 without producing any evidence of an intention on the part of government authorities to engage in acts of discrimination. I have written at length elsewhere on the technical aspects of this case and the complex statutory framework in which the federal government closely monitored the distribution of federal funds into certain low-income areas. It simply challenges credibility to think that the Texas Department violated the Fair Housing Act because of its good faith effort to comply with the complex dictates of the Low-Income Housing Tax Credit program. Imposing any comprehensive federal judicial oversight on how Texas should run its program would require a huge expenditure of state and national funds that could be spent far better in dealing with the housing needs of the poor. It is simply false to assume that a statement of laudable ends of social and racial integration insulates the means chosen from criticism by those on the other side.

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  Financial Emergencies

  John A. Ferejohn

  This chapter explores ways in which financial emergencies are dealt with by modern governments, by which I mean political/legal systems that constitutionally protect rights and privileges. The key feature of such systems, from my perspective, it that they can be slow to react to shocks, even those that destabilize the government or threaten the wholelegal regime. A financial emergency is, arguably, an example of such a shock.

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  Getting to the Law Applicable to the Merits in International Arbitration and the Consequences for Getting it Wrong

  Franco Ferrari and Linda J. Silberman

  There are numerous reasons why parties start proceedings in the courts of one State rather than in those of another. They range, as the case law also shows, from differences in procedures and applicable rules of evidence to variations in the efficacy and speed of judicial proceedings. Familiarity with a given system, the language to be used in a particular court, the court’s reputation for fairness (or home court bias), “the quality and ability of the judiciary and the legal profession,” the cost of court proceedings, and the ease of enforcement of the judgment may also influence the choice. Moreover, commentators have identified the “legal climate” as another reason for favoring the court of one State over that of another. Finally, differences in the conflict of laws rules may also affect the parties’ choice of forum. Once the parties have initiated proceedings in a particular court, the law of the forum may operate to limit the autonomy of the parties. In other words, once the parties have started court proceedings, a legal framework is imposed upon them which provides for certain rules with which they must necessarily comply and cannot opt out of. When parties opt for arbitral proceedings instead of court proceedings, there is also a legal framework—that for arbitration proceedings—but it is generally less restrictive and more flexible. The arbitration regime often allows parties to exercise autonomy in areas where the rules applicable in national courts do not permit party autonomy, such as that of procedure. Also, although the rules of conflict of laws applied both in national courts and in arbitration proceedings to determine the law applicable to the merits, i.e., the rights asserted by claimants and the defenses raised and counterclaims asserted by defendants, grant the parties broad autonomy in choosing the applicable rules (at least as regards contract disputes), the autonomy granted in arbitration appears to be even greater. But a simple reference to party autonomy does not solve the question of the law applicable to the merits of a dispute before arbitral tribunals. The issue of the law applicable in arbitral proceedings is more complex and requires a decision by the arbitrators themselves as part of the submission of the matter to them. Even when the parties have chosen the applicable law in the contract, that choice may raise issues that arbitrators will have to address that cannot be dealt with by simply applying the law chosen. When the parties have not chosen the law applicable to the merits, relevant arbitration laws and/or the arbitral rules will usually provide some direction to the arbitrators. Our chapter addresses both of these situations and offers some normative solutions for ascertaining the applicable law. We also explore the consequences of an erroneous choice of law decision by the arbitrators in the context of annulment and/or the recognition and enforcement of an award.

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  Competition Policy at the Intersection of Equity and Efficiency: The Developed and Developing Worlds

  Eleanor M. Fox

  In the last quarter of the last century in matters of economic law, it was common cause that we could pursue either efficiency or equity but not both; the twain would not meet. I never believed it. The gospel of efficiency was ushered into US antitrust by the Chicago School, whose beautiful proofs, dating at least from the 1960s, were resisted by US law and policymakers until the early 1980s. They gained traction with the presidential election of Ronald Reagan (1980), validating national sentiment that government had wormed its way too deeply into the business of business; that business was essentially efficient, and that if we simply let business free to do the work of business we would all be better off. Pursuit of equity was regarded as wrong-headed. If we pursued equity, we would undermine efficiency. The pie would shrink and we would all be worse off. Arthur Okun’s book, Equality and Efficiency: The Big Tradeoff, laid a foundation for this thesis. In the book, which itself was a gospel until the early twenty-first century, Okun concluded from theory that as we equalize the distribution of income we decrease the efficiency of the economy and that therefor society should forgo greater equality for a healthier economy. Empirical research indicated the contrary, e.g. Lane Kenworthy, Equality and Efficiency: The Illusory Tradeoff, but seems to have attracted little attention in the United States. At least in the US antitrust community, since the third quarter of the twentieth century, there has been a widely shared belief that efficiency is the holy grail, and moreover, that US antitrust precedents in the 1960s to the mid 1970s (which constructed an antitrust of the underdog and equated antitrust with economic democracy) was erroneous if not also contemptible. There was in any event a missing link. The literature on equality and efficiency normally referred to income equality, which is equality of outcome, and the equality (or equity) embedded in 1960s US antitrust was equality of opportunity and inclusiveness. This seemed an unimportant distinction to the Chicagoans of the 1970s–1980s, who adopted a line taken out of context from the Brown Shoe opinion of the Supreme Court in 1962 enjoining what today we would call a trivial merger: “It is competition, not competitors, which the Act protects.” The epithet was and is commonly used as an iteration of the equity–efficiency trade-off: do not give weight to the position of (smaller) competitors or you will harm efficiency. Equity, equality, opportunity, fairness—don’t go there. The science of antitrust economics is about efficiency. Equity undermines efficiency. The break did not come until the turn of the twentieth century, both through experience and research. The experience was a harsh one; it was the brutal recession of 2007–8. Alan Greenspan, who was chairman of the Federal Reserve Board and thus the leader of monetary policy for the United States, had to admit that there was “a flaw [in my] model.” Some blame was laid at the feet of the economists, who were so sure that the market would work that they opposed regulation of new financial instruments derived from mortgages sold to low-income home buyers who could afford the mortgage only so long as house prices continued to rise. Theory had outrun reality. One might have thought that US antitrust jurisprudence (which by then was extremely laissez-faire with respect to the monopoly violation) would take on board the lesson of too much trust in the market. But it did not.

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  World Competition Law: Conflicts, Convergence, Cooperation

  Eleanor M. Fox

  One hundred and thirty nations have enacted competition laws. Increasingly, the acts and transactions that fall within the purview of these laws are in international commerce. Laws are national, but markets do not stop at national borders. Conflicts predictably occur and international dimensions naturally emerge. This chapter describes national and multi-national responses to this phenomenon. Responses include the exercise of jurisdiction over offshore acts, efforts of nations to coordinate and cooperate, and consideration of a possible global framework for global problems. This chapter argues that responses should also take account of special needs of developing countries. The story starts with the adjustment of national law to deal with offshore and international problems. It proceeds to cooperative efforts of nations through bilateral and regional arrangements, the development of consciousness about legal and procedural convergence, and the emergence of international fora for discussion and solutions to transnational problems. The story includes efforts, particularly by the European Union, to obtain a competition competence in the World Trade Organization, and the sidelining of those efforts in the course of trade negotiations. It includes attention to the special needs of developing countries, efforts at coordination by jurisdictions, and better understanding of one another through various organizations and networks including the Organization of Economic Cooperation and Development (OECD), the United Nations Conference on Trade and Development (UNCTAD), and the newest international organization, the International Competition Network (ICN).

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  Choices and Consequences: Internationalizing Competition Policy After TPP

  Daniel Francis

  The development of international systems for the coordination and constraint of competition law and policy offers a complex blend of rewards and costs. In this chapter, I evaluate the promises and problems of this endeavor in the realms of government procurement, antitrust, and the regulation of state-owned enterprises, and outline some options for internationalization in this area and some of their respective implications. I argue that, in a field dominated by deep conflicts of value and interest, real progress will require creativity and pluralism in the forms and tools of internationalization. I emphasize the importance of regionalism as a complement to multilateralism and bilateralism; frameworks of contingent cooperation as a complement to traditional treaties and networks; and a mixed strategy of linkage to, and separation from, international trade to ensure that jurisdictions are able to pursue their shared goals.

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  Coca-Cola Bottle

  Jacob Gersen and C. Scott Hemphill

  JJust over a century ago, The Coca-Cola Company faced a major challenge. Copycat colas with similar names and bottle designs—Noka-Cola, Coke-Ola, and the like—openly free-rode on the popularity of the fizzy drink. In 1915 it devised a potent tool to deter knockoffs: the distinctive delivery system that we know today as the Coca-Cola bottle. A unique bottle, the company hoped, would serve as a versatile and powerful anti-fraud device. If the company’s bottlers used only this bottle, and only Coca-Cola was sold in the bottle, consumers could know exactly what they were getting. The company could sue any competitor that dared to use a similar (much less identical) bottle. Better yet, the cost and risk of development might be too great for a knockoff to even attempt. Today the famous curvy bottle is ubiquitous and synonymous with the product itself. Yet, the whole notion of bottling was actually an afterthought for the company. Early ads showed only fountain Coca-Cola. Company founder Asa Candler thought bottles were low-class and left the bottling task to others, even going so far as to enter into a perpetual contract for syrup at a set price because he was so dubious of the enterprise. Syrup was sold to bottling franchisees all over the country. Candler miscalculated, as bottle sales soon outpaced fountain sales. Even Americans who would serve themselves seated at the soda fountain could buy a bottle of Coca-Cola for a nickel. While Candler’s decision left huge profits on the table, it had the happy side effect of encouraging entrepreneurs to spread the Coca-Cola gospel. Bottling turned out be a force for consumer diversification and mass consumption. The company needed the bottlers’ cooperation and investment to make any switch to a new uniform bottle. Yet bottlers were an unlikely partner in the quest to stamp out free-riders. Early bottles could be any shape or color, required by contract merely to have diamond-shaped paper labels bearing the company’s name in capital letters. As agents of the company, some bottlers were faithless in the early days, furtively adulterating the syrup with saccharine. Soda fountains played games too, sometimes quietly swapping a different drink when customers asked for Coca-Cola—thus, Coke’s famous advertising campaign to ask for “the real thing.”) A new bottle was urgent, in part, because of infirmities in a second legal tool that the company had used against knock-offs, namely trademark law. The company began filing trademark lawsuits against similar-sounding competitors almost as soon as the first soda fountain glass of Coca-Cola was pulled in 1886. But the company’s trademark suits had a weakness. The name Coca-Cola originally referred descriptively to two key ingredients. Coca leaf gave the product its original cocaine kick; the kola nut was known as a source of caffeine. Initially, the company played up the connection with illustrations of coca leaves and kola nuts on bottle labels and advertisements. However, the description was inaccurate. Well before 1915, cocaine had been removed from the “soft” drink, and the kola nut was only used in trace amounts. The inaccuracy created problems for the company. When it sued a copycat called Koke for using a similar name, it was in turn accused of “unclean hands” for using a misleading mark. The potency of such an accusation, which could prevent enforcement of the trademark, was brought home by a non-IP case. The Food and Drug Administration complained that, because Coca-Cola contained “no coca and little if any cola,” it was misbranded, in violation of federal pure food law. The suit, quaintly named United States v. Forty Barrels & Twenty Kegs of Coca-Cola, ultimately settled. In the meantime, Coca-Cola quietly dropped the coca and kola illustrations. But the case showed the company’s vulnerability to a misbranding claim. The company was in a no-win legal situation. If Coca-Cola had contained cocaine, the company would have been in trouble for the cocaine, which became illegal to distribute without a doctor’s prescription in 1914. Absent cocaine and kola, its mark was misleading and arguably its product misbranded. A new bottle thus opened a new, less vulnerable front against knockoffs. Strikingly, Coca Cola’s legal department, rather than marketing, led the charge. At the time, legal was staffed by far fewer than the 100 attorneys that today constitute the internal legal office of Coca-Cola. Harold Hirsch, the company’s general counsel, exhorted the bottlers to accept a “bottle that we can adopt and call our own child.” In appealing to the bottlers’ ambition, he also revealed his own: “We are not building Coca Cola alone for today. We are building Coca-Cola forever, and it is our hope that Coca-Cola will remain the National drink to the end of time.”

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  Are Commercial Standard Form Sales Contracts Efficient?

  Clayton P. Gillette

  Most analyses of standard form contracts focus on the consumer setting. The underlying assumption is that standard forms in the commercial context reflect efficient terms, because sophisticated parties operating in relatively thick markets would assign transactional costs and risks in a way that is consistent with each party’s capacity to bear them. This chapter discusses multiple sources of inefficiency in the setting of commercial standard form contracts, ranging from market failures to failure to read to parties’ incentives in the drafting process. The chapter also suggests that some clauses that may appear to be inefficient, such as ostensibly vague terms and under-enforced terms, in fact reflect efficient risk allocations. Finally, the chapter discusses some strategies for dealing with potential inefficiency, such as regulation and interpretation.

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  State Restraints in China: A Different Case?

  Deborah Healey and Eleanor M. Fox

  Without Professor Xiaoye Wang, Chinese competition law would not be in the shape it is today. Perhaps the key competition statute—the Anti-Monopoly Law (AML)—would not even have been enacted without her relentless efforts to push the competition law agenda in China. Professor Wang’s 70th birthday saw the tenth anniversary of the AML’s entry into force. It presents the ideal moment to take stock of what has been achieved in Chinese competition law over the past decade and to put the spotlight on Professor Wang’s significant contributions. In this Liber Amicorum, Professor Wang’s colleagues, friends, and admirers in China and around the world come together to celebrate her achievements to date and to discuss recent competition law developments in China and other timely topics. The variety of contributors’ backgrounds (academics, enforcers, lawyers, economists) demonstrates the abundance and range of the issues brought out in the book.

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  Basic Income as a Human Right?

  Daniel J. Hemel

  This chapter suggests a human rights–based justification for national basic income schemes, contrasting it with justifications based on welfarist principles or notions of entitlement to a share of the global commons. Starting from the premise that a state is a collective enterprise that generates a surplus, it contends that any human being who is an “obedient” member of that state has a right to some share of the surplus. That right—which arises from the relationship between the individual and the state, and is independent of need—could justify the entitlement to a basic income. Such income should be provided in cash, not in kind, because the latter risks depriving the individual of the enjoyment of his share of the surplus—in effect, forcing him to forfeit or transfer it to others if he does not use the public goods or services provided by the state.