Current Issue

  • Volume 67,
  • Number 1 -
  • October 2017

Articles

The Black Hole Problem in Commercial Boilerplate
Stephen J. Choi, Mitu Gulati & Robert E. Scott
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Rote use of a standard-form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. When they occur, rote usage and encrustation weaken the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is emptied of meaning, it can create a contractual black hole in which, as the term loses meaning, random variations in language appear and persist. What, then, are the consequences if parties exploit these variations in language by successfully advancing an interpretation the market disavows? Traditional doctrine holds that even if the court errs in the meaning it gives to a clause, parties have an incentive promptly to revise the standard language to exclude the aberrant interpretation. But what if the assumptions about the costs and motivations to revise this type of boilerplate are wrong? We seek purchase on this question with a study of the pari passu clause, a standard provision in sovereign debt contracts that almost no one seems to understand. This clause gained fame in 2011 because of a series of court decisions in New York arguably misinterpreting a particular variation of the clause. Even though the courts’ interpretation put at risk a multitrillion dollar debt market, meaningful revisions to the language of the boilerplate term did not begin to appear until late 2014. In the interim, trillions of dollars in bonds were issued with an uncorrected version of the term. Market forces, in other words, worked slowly to remedy a systemic problem that caused substantial costs. We ask whether the state could do more to avoid the problem at the front end rather than depend on market forces to correct court error at the back end.

Polygamous Marriage, Monogamous Divorce
Michael J. Higdon
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Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists–that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions–dubbed “sequential polygamy”–would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty–the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens.

Notes

This Name is Your Name: Public Landmarks, Private Trademarks, and Our National Parks
Megan Elaine Ault
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To generations of Americans, Yosemite National Park and its landmarks have symbolized the core democratic ideals of the United States–spaces truly owned by the people and open to all. For those who created our national parks, “[t]he purpose of preserving this land was to cultivate a kind of rare experience [they] saw as endangered by a social world that turned every thing, moment, and human being to profit.” It is striking, then, that Yosemite, one of the nation’s first national parks, has become the focus of a battle over whether our landmarks and their names belong to us all or to a select few. In 2016, several Yosemite National Park landmarks were renamed due to an ongoing trademark dispute between a concessions company and the National Park Service (NPS). At the end of its contract with the park, the departing concessions company demanded compensation for the trademarks to the words “The Ahwahnee,” “Wawona,” “Badger Pass,” “Curry Village,” and perhaps most shockingly, “Yosemite National Park” itself. During its contractual relationship with the NPS–and apparently unbeknownst to NPS administrators–the concessions company filed for and received trademarks for use of these landmark names in hospitality and merchandising contexts.

Allowing short-term concessionaires to trademark the names of publicly owned and culturally treasured assets implicates key trademark principles in several ways. The oft-recited aims of trademark law are providing information to the consumer, promoting competition, and avoiding dilution of brands by protecting accrued goodwill. Allowing short-term concessionaires to register national park landmark names conflicts with each of these aims, as this Note explains. A limited contractual relationship fits poorly with the enduring cultural value of well-known landmarks and raises complex questions about business operations and intellectual property in the national park context. This Note contends that principles of trademark law and policy are undermined if federal contractors can establish long term proprietary rights over national park landmark names. To provide a comprehensive picture of the Yosemite case, Part I will further explore the facts surrounding the trademarks and landmarks in question, as well as the contractual relationship between DNC Parks & Resorts at Yosemite, Inc. (DNCY) and the NPS. Part II considers the NPS’s claims for cancellation of the Yosemite-linked trademarks under existing U.S. trademark law. Part III argues that concessionaire registrations are inconsistent with the baseline goals of trademark law. Finally, Part IV suggests that legislation, similar to a statute recently enacted in California, represents a possible solution to the issues surrounding private trademarking of public landmark names. This Note asserts that the purposes of trademark law support taking the names of national parks and landmarks off the bargaining table and out of would-be profiteers’ reach, and that providing our national park landmark names with statutory protection from commercial interests fits perfectly within the American tradition of preserving the parks themselves.

Rule 24 Notwithstanding: Why Article III Should Not Limit Intervention of Right
Zachary N. Ferguson
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The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court’s narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free to require standing of defendant-intervenors and, it stands to reason, plaintiff-intervenors even if they do not pursue different relief.

With this debate yet unresolved, this Note takes a less conventional approach. In addition to arguing that the Supreme Court’s precedents implicitly resolved this question before Town of Chester, this Note argues that the nature of judicial decisions raises two concerns that a liberal application of Rule 24(a)(2) would mitigate. First, this Note argues that stare decisis limits the right of litigants to be heard on the merits of their claims and defenses in a way that undermines the principles of due process. Second, this Note argues that the process of judicial decisionmaking is fraught with potential epistemic problems that can produce suboptimal legal rules. After considering these two concerns, this Note argues that Rule 24(a)(2) is a better and more practical way to mitigate these problems than are Rule 24(a)(2)’s alternatives.