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  An Institutional Perspective on the Regulation of Products in the United States

  Catherine M. Sharkey

  In the United States, there is a vibrant debate over whether consumer products, including medical devices and pharmaceuticals, are best regulated through regulations issued by the federal government or through private lawsuits commenced by plaintiffs who have been harmed by those products or, perhaps, through some combination of both. This debate implicates two theoretical issues: first, what is the ideal balance between the level of public government regulation and the availability of common law remedies in the form of private parties’ tort lawsuits? And, second, what is the level—state or federal—at which regulation or litigation should be organised? Steven Shavell has explored the first issue in depth. He has identified four factors to help determine the optimal mix of liability (i.e. regulation through private lawsuits resulting in judgments) and regulation (i.e. public governmental legislation): (i) the different amounts of information available to private parties, on the one hand, and regulators on the other; (ii) the ability of defendants (i.e. manufacturers) to pay for the harms they cause; (iii) the likelihood that the defendant-manufacturer will actually be sued; and (iv) the relative costs of administering a liability-based system as opposed to one grounded in direct regulation. Shavell concludes that two factors, differential knowledge and administrative costs, favour a liability-based regime, whereas the other two factors, a defendant’s potential inability to pay and its ability to escape litigation altogether, favour regulation. But Professor Shavell’s analysis has limitations. His analysis does not address an important dimension of the problem of regulation: the theoretical question of whether regulation is best performed at the federal level or at the state/local level, and the related institutional choice question that might further constrain optimal regulatory apparatus. In the United States, these questions boil down to whether and when the uniform centralized system that a federal-level system of regulation administered by agencies offers is preferable to the localized state regime of tort litigation commenced by individual injured consumers. As a theoretical matter, uniform national rules may be most desirable in those circumstances charaterised by significant interstate externalities, coordination problems, or economies of scale and scope. In such cases, state law claims might appropriately be deemed pre-empted by the relevant federal regulation. Conversely, state or local regulation—and, in turn, a finding against pre-emption—might be preferred on grounds of democratic accountability based upon regional differences in policy preferences, the benefits of experimentation, or the comparative advantage of inter-state competition yielding optimal policy outcomes. Economists and legal scholars have not shied away from this debate, but their debates are both partial and indeterminate. To quote Thomas Merrill, “[o]ne person’s healthy regional diversity is another’s interstate externality”. It may well be that, at least in the products liability context, there is not general, “one size fits all” theoretical solution leading to optimal regulation. To date, no commentator has devoted sufficient attention to what I believe to be the single most important dimension of the state/federal regulation conundrum in the United States: the question of the comparative institutional capabilities of agencies (the federal regulators) and courts (the state-level regulators, presiding over tort suits). This chapter, a synthesis of my previous work in this specific area, argues that the path to the optimal regulatory solution lies in cooperation between agencies and courts. More specifically, I argue that no judicial determination of either the merits of a products liability case or the threshold question whether a plaintiff’s state law claims are pre-empted can be complete without reference to the relevant agency’s view on issue before the court.

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  Products Liability Preemption: An Institutional Approach

  Catherine M. Sharkey

  Preemption is the fiercest battle in products liability litigation today. The stakes are high in this recent manifestation of the collision between common-law tort and the modern administrative state. In the legal academy, the conventional take on preemption frames the question theoretically as a pure matter of either statutory interpretation or congressional intent. To be sure, with the stroke of a pen Congress could definitively determine when its product regulations displace state common law. Instead, Congress repeatedly punts, leaving unresolved the key question of the extent to which federal standards and regulations preempt state common-law remedies. Products liability is a realm in which Congress typically either says everything—coupling broad preemption provisions that would seem to wipe out competing state tort claims with broad “savings clauses” that would seem to preserve those same actions—or nothing at all. Moreover, Congress tends to legislate in a decidedly piecemeal fashion. Instead of comprehensive national products legislation, Congress regulates select product areas in which it typically focuses on the liability side, fashioning federal safety standards and requirements, and all but ignores the remedial side, including private enforcement mechanisms. A new approach to products liability preemption must highlight the issue’s institutional dimension: when Congress punts, courts and federal agencies vie to fill the interpretive gap. A modern take must also recognize that products liability preemption is multidimensional, involving layers of legal and policy issues—from the determination of the optimal regulatory sphere (national or state), to federalism issues, to the level of deference accorded agency determinations. Questions about the proposed preemptive effects of federal legislation above and beyond the customary and usually inconclusive inquiry into legislative intent must be posed (and answered). I advance an “agency reference model” for judicial decisionmaking in products liability preemption cases: courts should look to agencies to supply the empirical data necessary to determine whether a uniform federal regulatory policy should exist—as agencies are in the best position to gather and evaluate data—and to make informed choices regarding the welfare of American public. It may well be that the search for any global solution to the problem of the optimal regulatory level for products in an increasingly national (indeed international) market economy will be in vain. But a wealth of empirical evidence, furnished by federal regulatory agencies, can aid a more particularized search. Behind agency decisions to regulate or to refrain from regulating is a rich body of empirical cost-benefit (or increasingly risk-risk) analyses. These analyses made by the agency at the time of its action (or inaction), as well as the nature of the agency action and the contemporaneous reasons given by the agency to justify it, can guide courts’ judgments regarding the need for, and equally significantly, the present feasibility of, uniform national regulatory standards. This institutional approach departs from conventional preemption analysis with its focus on formal doctrinal categories and from the “presumption against preemption” interpretive canon, which directs courts to construe statute not to preempt, absent a clear statement by Congress to the contrary. Instead, it places federal agencies front and center in a realm in which they have often lurked just out of focus. . . . [M]y particular focus is the functional analysis that provides content to (or, at a minimum, complements) any interpretive exercise, whether court or agency.

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  Moving to a Territorial System and Reforming the Corporate Tax

  Daniel N. Shaviro

  As the Volcker task force evaluates base-broadening ideas, some important and meritorious reforms are unfortunately off the table. One example would be (after the housing market workout has eased) replacing the home mortgage interest deduction with a smaller, capped subsidy for homeownership that is unrelated to homeowner debt and takes the form of a refundable credit. Surely we've learned from the financial crisis that encouraging excessive homeownership (giving people undiversified asset portfolios), financed by excessive leverage, is undesirable. On the business side, it's unfortunate that the Obama administration led off with international tax proposals whose long-term feasibility is undermined by the difficulty of sustaining residence-based taxation of corporate entities. Investors can all too easily avoid those taxes by investing through non-U.S. entities, suggesting that in the long run, the United States may need to follow the worldwide trend toward territorial taxation of active business income. Tax reformers should keep in mind, however, that under the current international tax rules, U.S. multinationals have invested more than $10 trillion abroad, perhaps including as much as $1 trillion of what they designate for accounting purposes as permanently reinvested earnings. There is no reason those investments should reap a windfall transition gain from a shift to exemption. The most straightforward way to avoid the windfall would be to impose a one-time tax (the payment of which might be deferrable with interest) on the accumulated earnings and profits of U.S. companies' foreign subsidiaries. If that is politically or administratively unfeasible, a more complicated fallback, based on William Andrews's similarly motivated effort to limit windfalls from the adoption of corporate integration, might involve limiting dividend exemption to a normal return on posteffective-date new equity. Shifting to a territorial system should also be accompanied by improving the source rules so that companies cannot as easily shift income outside the United States. Several important studies have recently explored how that might be done. Key details should include relying on objective factors such as worldwide sales ratios—whether or not the method used is called formulary apportionment—and applying the system as uniformly as possible to multinational groups headed by U.S. companies on the one hand and foreign companies on the other. That would make corporate residence as irrelevant for tax purposes as it is economically. However, because this proposal would amount to raising the tax burden on business investment in the United States, rather than simply preventing the use of tax planning to recharacterize income generated here as foreign source, it should be accompanied by lowering the U.S. corporate tax rate.

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  Climate Finance for Limiting Emissions and Promoting Green Development: Mechanisms, Regulation, and Governance

  Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk

  Climate finance is a critical element of global climate policy that has received far less attention than emissions limitations and climate regulatory architectures. This book redresses this deficit. It focuses on what is required to meet the need for vastly increased funding for climate mitigation and green development in developing countries. It presents new proposals to generate climate financing from both private and public sources and to deliver funds through means that will engage developing countries, build mutual trust, and secure effective long-term emissions reductions. The book also examines the vital but often neglected regulatory, trade, tax, and governance elements of global climate finance. Its proposals and analysis are designed to enrich the political and policy debate, not only for the United Nations Framework Convention on Climate Change (UNFCCC) process but more broadly. The complex issues of global climate finance cannot be resolved in a single agreement or a single forum; they will continue to demand fresh insights and creative approaches like those presented in this volume.

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  Constitutionalism—A Skeptical View

  Jeremy Waldron

  In this chapter, I will cast a skeptical eye over the political theory associated with the term “constitutionalism.” I know that “constitutionalism” is a term of approbation; we are all supposed to be constitutionalists now. But it may be worth sounding a critical note or two. Apart from anything else, even supporters of constitutionalism should worry that, without an occasional live critic to contend with, their faith may become a dead dogma rather than a living truth, a superstition or prejudice clinging accidentally to a form of words that once conveyed something interesting and controversial.

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  John Locke

  Jeremy Waldron

  This chapter discusses and defends the relevance of John Locke’s writings as political philosophy. Because historical research by Pere Laslett, John Dunn, and others into the circumstances of the composition of Locke’s major political writings has been so productive, it has become fashionable to play down the philosophical aspect of these writings and emphasize their function as pieces written for particular political occasions. I believe this is a mistake, and in the chapter that follows, I associate myself with those (like A. John Simmons, for example) who see the historical dimension more as a complement to, than as a substitute for, serious philosophical analysis. Locke’s political philosophy continues to have an immense impact on the framing and the pursuit of liberal ideas in modern political thought – ideas about social contract, government by consent, natural law, equality, individual rights, civil disobedience, and private property. The discussion and application of Locke’s arguments is thus an indispensable feature of political philosophy as it is practised today.

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  Mill and Multiculturalism

  Jeremy Waldron

  Accommodating cultural diversity is not quite the same as religious toleration, and neither of them is the same as recognizing a principle of individual liberty so far as ethics and lifestyle are concerned. But there are important commonalities between them and, just as it would not be surprising to find that someone who espoused a principle of liberty for lifestyles would also espouse a regime of religious toleration, so we should not be surprised to find a defender of individual liberty saying things that could be adduced in support of a principle of cultural diversity. This certainly seems to be the case with John Stuart Mill. There is a lot in common between the concerns about religious toleration that John Locke wrote about in the 1680s and the concerns about individuality that Mill wrote about almost two centuries later in On Liberty: both thinkers emphasize the importance of sincerity in the life-structuring choices that people make and both condemn the attempt to produce genuine faith or ethical conviction by coercion as counterproductive. Nor is it hard to see continuity between Mill's concerns in On Liberty and the concerns of those who argue in the late twentieth and early twenty-first centuries for a diverse society with a citizenry of disparate ethnic and national origins, a society in which many cultures are embraced, in which people are respected for their cultural identity, in which both the state and the members of its ethnic and national majority (if there is one) go out of their way to tolerate and accommodate practices that are quite different from their own.

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  Security as a Basic Right (After 9/11)

  Jeremy Waldron

  Should we give up any of our rights for the sake of security? The world is a dangerous place, more dangerous perhaps than it was when our human or constitutional rights were first defined. Many people think we would be safer if we were to abandon some of our rights or at least cut back on some of our more aggressive claims about the extent and importance of our civil liberties. Or maybe the trade-off should go in the other direction. Maybe we should be a little braver and risk a bit more in the way of security to uphold our precious rights. After all, security is not the be-all and end-all; our rights are what really matter. But this alternative line will not work if it turns out that security is valuable, not just for its own sake, but for the sake of our rights. What if the enjoyment of our rights is possible only when we are already secure against various forms of violent attack? If rights are worth nothing without security, then the brave alternative that I alluded to is misconceived. I considered some of these issues in an earlier article entitled “Security and Liberty: The Image of Balance.” But I did not explicitly address the point that security might be a precondition for enjoying any rights at all. In this chapter, I want to consider that possibility. In doing so, I shall make use of an earlier analysis of the relation between security and rights, set out in Henry Shue’s book, Basic Rights.

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  Who Needs Rules of Recognition?

  Jeremy Waldron

  This chapter asks what a rule of recognition actually is, what it does, and what it is good for. It asks what its relation is to other sorts of secondary rules that we may find in a constitutional system, particularly rules of change. H. L. A. Hart introduced the idea of a rule of recognition, and he made it a key feature of modern jurisprudence; most legal philosophers since Hart have followed him in emphasizing its centrality. But from time to time it is good to question a prevailing paradigm. The chapter poses this question: If we were not committed theoretically, as part of the basic ideology of modern legal positivism, to the centrality of the rule of recognition, what would we say about the importance of recognition in a modern legal system?

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  Comment: Brazil-Measures Affecting Imports of Retreaded Tyres (DS322). Prepared for the ALI Project on the Case Law of the WTO

  Joseph H. H. Weiler

  This book brings together the 2006-2007 output of the American Law Institute (ALI) project on World Trade Organization Law. Each chapter focuses on a different dispute from the adjudicating bodies of the WTO. Each case is jointly evaluated by well known experts in trade law and international economics. ALI reporters critically review the jurisprudence of WTO adjudicating bodies and evaluate whether the ruling 'makes sense' from an economic as well as a legal point of view, and, if not, whether the problem lies in the interpretation of the law or the law itself. The studies do not always cover all issues discussed in a case, but they seek to discuss both the procedural and the substantive issues that form, in the reporters' view, the 'core' of the dispute. This paperback will be an invaluable resource for students, lecturers and practitioners of international trade law. This book is the fourth report of the American Law Institute (ALI) project on World Trade Organization Law. The project undertakes yearly analysis of the case law from the adjudicating bodies of the WTO. These studies cover a wide range of WTO law: this volume focuses on the years 2006 and 2007. Each case is jointly evaluated by well known experts in trade law and international economics. The contributors critically review the jurisprudence of WTO adjudicating bodies and evaluate whether the ruling ‘makes sense’ from an economic as well as a legal point of view, and, if not, whether the problem lies in the interpretation of the law or the law itself. The Studies do not cover all issues discussed in a case, but they seek to discuss both the procedural and the substantive issues that form the ‘core’ of the dispute.

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  Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in European Space

  Joseph H. H. Weiler

  This book looks at the role of multiculturalism in the complex construction of the European Union, acknowledging the tension of creating a new political space for identities that are simultaneously national, regional, linguistic, and religious, and yet strive to encompass a political and geographic whole.

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  Law, Culture, and Values in the WTO—Gazing into the Crystal Ball

  Joseph H. H. Weiler

  The Oxford Handbook of International Trade Law places international trade law within its broader context, providing comment and critique on a range of questions both related specifically to the discipline of international trade law itself and to the outside face of international trade law and its intersection with States and other aspects of the international system. It examines the economic and institutional context of the world trading system, its substantive law (including regional trade regimes) and the settlement of disputes. The final part of the book explores the wider framework of the world trading system, considering issues including the relationship of the WTO to civil society, the use of economic sanctions, state responsibility, and the regulation of multinational corporations.

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  Putting Economic, Social, and Cultural Rights Back on the Agenda of the United States

  Philip G. Alston

  The thirteen essays in this volume provide thematic assessments of the current state of global human rights programs as well as prescriptions for future human rights policy, with topics including democracy promotion, women's rights, refugee policy, religious freedom, labor standards, as well as economic, social, and cultural rights.

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  Sovereignty, Human Rights, Security: Armed Intervention and the Foundational Problems of International Law

  Philip G. Alston and Euan MacDonald

  This chapter begins with a discussion of the three foundational problems of international law: sovereignty, human rights, and security. It then considers the relations between each of the foundational challenges and one of the norms at the very apex of the international legal system, the prohibition on the use of force. An overview of the subsequent chapters is presented.

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  Foreword: Progress in International Law?

  José E. Alvarez

  Progress in International Law is a comprehensive accounting of international law for our times. Forty leading international law theorists analyze the most significant current issues in international law and their critical assessments draw diverse conclusions about the current state and future prospects of international law. The material is grouped under the headings: The History and Theory of International Law; The Sources of International Law and Their Application in the United States; International Actors; International Jurisdiction and International Jurisprudence; The Use of Force and the World's Peace; and The Challenge of Protecting the Environment and Human Rights. The book draws its inspiration from a similar survey undertaken in 1932 by Harvard Law Professor and PCIJ Judge Manley O. Hudson. In his book Progress in International Organization, Hudson sought to demonstrate that what he perceived as an emerging international infrastructure, and as moves toward the rule of law in international affairs, were sure signs of human progress towards peace and cooperation. Progress in International Law critically engages with that claim as a normative matter and, at the same time, presents the evidence by which a judgment about our own progress towards peace and cooperation might be judged.

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  Implications for the Future of International Investment Law

  José E. Alvarez

  This volume, the product of a symposium on “Transparency and Consistency in International Law: Is There a Need for a Review Mechanism?” held at Columbia University on April 4, 2006, addresses a unique emerging regime that is neither the product of a single multilateral treaty nor the subject of an overreaching international institution. The international rules governing foreign direct investment (FDI) do not arise from anything resembling the enormous multi-year trade rounds that produced the World Trade Organization (WTO) and its impressive post-Uruguay Round dispute settlement system. Unlike the rules governing trade in goods, the world’s FDI rules emerge instead from some 2,500 bilateral agreements as well as an increasing number of free trade agreements that contain investment guarantees, such as the North American Free Trade Agreement (NAFTA)’s Chapter 11. Even while WTO lawyers still debate the virtues of increased transparency—such as whether or when amici briefs from non-state entities ought to be considered by the WTO’s dispute settlers or whether the emerging WTO case law has indeed generated harmonious interpretations over time—the WTO still inspires the envy of investment lawyers.

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  The Factors Driving and Constraining the Incorporation of International Law in WTO Adjudication

  José E. Alvarez

  This volume brings together essays by world-renown leaders in the field of international trade examining the operation of the WTO and its dispute settlement system. The experts who have contributed to this book include policy makers, scholars, lawyers and diplomats. Two major areas of inquiry are undertaken. The first half of this volume examines the governance and operation of the WTO and the international trading system. It pays particular attention to issues that affect developing country Members of the WTO. The second half of this volume contains a detailed examination of the performance, operation, and challenges of the WTO's dispute settlement system. This book is an outgrowth of a conference held at Columbia University in New York in the spring of 2006. The conference was the last of a series of five regional gatherings held around the world to commemorate the 10th anniversary of the WTO and its dispute settlement system. This volume includes essays that shed further light on some of the themes raised in those discussions, as well as edited transcripts from that conference.

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  The Schizophrenias of R2P

  José E. Alvarez

  This chapter focuses on the current state of debates over humanitarian intervention, by examining a concept that is all the rage in UN circles, namely the ‘responsibility to protect’ (R2P). It cautions against turning R2P from political rhetoric to legal norm. It presents an alternative, more positive title for the analysis—‘two cheers for humanitarian intervention’.

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  Causes of Quarrel: What’s Special About Religious Disputes?

  Kwame Anthony Appiah

  This chapter asks why domestic and international political disputes are so difficult to resolve once they have religious stakes. The chapter's answer centers on the centrality of religious identity and its role in integrating other aspects of personal identity, underwriting ethical commitments, and defining the national community. When it is a salient identity marker, religion is difficult to sacrifice or compromise. The political explosiveness of religious identity and national identity is heightened in a world where globalization is unsettling the latter.

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  Education for Global Citizenship

  Kwame Anthony Appiah

  In this chapter Kwame Anthony Appiah moves the discussion of civic education from a national to a global context. He demonstrates that the idea of global citizenship is older than written history—and certainly not uniquely a Western idea—and challenges some recent methods of fostering “citizens of the world.” Global civic education takes on a particular urgency in today’s world in which “each of us can realistically imagine contacting any other of our seven billion fellow humans and send that person something worth having,” or conversely “things that will cause harm.” His response is to advocate education to foster a cosmopolitan spirit. Appiah notes that educating the hearts and minds of both young and old requires a strong sense that we are all on the same planet together and that each person matters, making today’s leanings toward unilateralism and fundamentalism particularly difficult to accept. He anticipates the themes of the next chapters: Benhabib’s exploration of the impact of the global on national citizenship and Løvlie’s focus on finding opportunities for civic education in the everyday concerns of all people. Appiah explains that “cosmopolitanism is universality plus difference,” a matter of huge import for how we relate and behave toward each other in the worldwide web which is the human world.

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  Lyle’s Images

  Kwame Anthony Appiah

  The Washington Post's Jessica Dawson recently wrote of New York-based artist Lyle Ashton Harris, "Two decades into his career, Harris still concerns himself with the game of appearances and perception: how we present ourselves in public, how our bodies—and the meanings they carry—are received by others, how gender and race are constructed... He also reveals a poetic sensibility: a desire, shared by writers and poets, to make visible our complicated inner worlds. He acknowledges the ambivalences we carry." Blow Up, Harris' first retrospective monograph, published on the occasion of his 2008 traveling exhibition, which originated at the Scottsdale Museum of Contemporary Art, features full-color reproductions from throughout his career: His "white face" self-portraits of the late 1980s, his collage-based work of the mid-1990s and his more recent Polaroid self-portraits, large-scale Blow Up collages and Ghana-based photographs. Designed by award-winning COMA, the volume includes several important new essays as well as a revealing conversation between Harris and artist Senam Okudzeto. Published in collaboration with the Scottsdale Museum of Contemporary Art.

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  Sen’s Identities

  Kwame Anthony Appiah

  This chapter analyses the concept of identity developed by Amartya Sen in recent work, especially in the book Identity and Violence. It discusses the relationship between identity and solidarity, arguing that, the former is necessary but by no means sufficient for the latter, so that, contra what Sen sometimes suggests, identities are not simply forms of solidarity. It then argues that Sen's account is both morally and methodologically individualist which seems right and that it is also correct in seeing identities as, in a certain sense, normative. But it then shows that his account is also rationalist, in treating identity as grounding reasons for thinking and acting, and that this leaves out the important role of non-rational factors in the social and political mobilization of identity. This means that some of Sen's policy proposals, while helpful, will not deal with some serious cases where identity leads to political violence.

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  [Untitled Essay]

  Kwame Anthony Appiah

  The title of this Penguin Classic look-alike is taken from a poem that Michael Elmgreen wrote when he was 19 years old. The poem describes, in its own simple, youthful manner, issues of emotional homelessness. Home traditionally alludes to family, local context and nationality—to structures which are pre-set and often disconnected to one's individual desires. For Home is Where the Heart Is, the Norwegian-Danish artist duo asked friends and colleagues to react to their own notions of home—as a place they left... or didn't. Featuring texts and image-based contributions by the likes of Bill Arning, Monica Bonvicini, Jens Hoffmann and David Shrigley, among many others, this volume tackles the issue of emotional homelessness with curious intelligence.

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  Taxing Privilege More Effectively: Replacing the Estate Tax with an Inheritance Tax

  Lily Batchelder

  The repeal of the estate tax for one year only in 2010 creates vast uncertainty but also provides an opportunity to reconsider the taxation of million would include in income and pay a 15 percentage point surtax on gifts and bequests. This paper proposes replacing the estate tax with an inheritance tax. Heirs receiving lifetime inheritances greater than $2.3 would include in income and pay a 15 percentage point surtax on the excess. The proposal would also replace stepped-up basis with carryover basis for bequests. As under the estate tax, the fraction of heirs affected would be miniscule, falling from three to two in 1,000. The proposal has a number of advantages relative to the estate tax. It would reward donors who give more broadly. It would enhance efficiency and reduce compliance costs by curbing tax planning and the rules needed to contain it. Cross-national experience also suggests it would be administrable. Most importantly, the proposal would lower taxes on heirs receiving smaller inheritances and those with moderate incomes, making the tax system better attuned to unearned advantage and ability to pay. At an individual level, the distribution of tax burdens would change considerably: only 5 percent of the estate tax rate for an heir is accounted for by her inheritance tax rate, and vice versa, and each tax would raise 14 percent of revenue from heirs facing no tax burden under the other. The proposal is revenue-neutral relative to 2009 law. A lower exemption would raise more revenue and bring the tax rate on inherited income closer to the income tax rate on non-inherited income, which is about three times higher.

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  The Semiotic Account of Trademark Doctrine and Trademark Culture

  Barton C. Beebe

  Semiotics is the study of signs and sign systems. While linguistics concerns itself specifically with human speech, semiotics investigates “the processes and effects of the production and reproduction, reception and circulation of meaning in all forms, used by all kinds of agent[s] of communication.” Semiotic thought developed into its own distinctive field of inquiry in the late-nineteenth and early-twentieth centuries at a time strangely coincident with the development of modern trademark doctrine. It was during this period that the Swiss linguist Ferdinand de Saussure projected a bold extension of his research in structural linguistics: “A science that studies the life of signs within society is conceivable ... I shall call it semiology (from Greek semeîon ‘sign’). Semiology would show what constitutes signs, what laws govern them.” Since Saussure’s time, semiotics (or semiology) has developed into a sophisticated systems-theoretical field of knowledge of enormous reach and ambition. The semiotic tradition forms the foundation of the past century’s structuralist and poststructuralist thought across the humanities. In this short chapter, I will seek to show how semiotic concepts can be applied to clarify and ameliorate fundamental areas of trademark doctrine and policy. Elsewhere I have set forth at length a semiotic analysis of trademark law. My purpose here is not to reprise that account, nor is it simply to celebrate, as a matter of intellectual history, the parallel development of, and many striking homologies between, semiotic thought and trademark doctrine. Nor do I seek to suggest that the law should simply defer to the authority of the semiotic—rather than the economic—tradition. Instead, my purpose is more pragmatic. It is to demonstrate that the semiotic account of trademark law is worthwhile because, as a descriptive matter, it explains many areas of trademark doctrine better than other accounts and because, as a normative matter, it recommends practical and sensible improvements in the doctrine that other accounts are unable—or unwilling—to recommend. To demonstrate this, I will set forth here only the most basic of semiotic concepts because that is all that is needed to achieve this goal.