Labor Law\u27s Impact on the Post-Dobbs Workplace

The Supreme Court’s Dobbs decision has left many workers, especially in states with restrictive abortion-related laws, in a precarious position. Labor laws and unions, however, provide one avenue for providing these workers with more protections. Unions can demand bargaining to protect or expand health care, leave, and other terms of employment that give workers with means to obtain abortion-related care. Unions can also provide members legal defense and other support if they face prosecutions. Additionally, both union and non-union workers who make up the vast majority of workers in states with restrictive laws may have labor law protection for discussing and pushing for abortion-related benefits from their employers. Finally, these federal labor rights raise questions of preemption when they conflict with state abortion laws that attempt to restrict employer-provided abortion benefits

Whither the Wagner Act: On the Waning View of Labor Law and Leviathan

The National Labor Relations Act’s (NLRA) well-documented weaknesses in substance and enforcement, combined with legislators’ inability to adapt the Act to the modern economy, have understandably created many cynics in the field of labor law. For several decades, legal scholars have almost unanimously derided the NLRA and the agency which administers it, the National Labor Relations Board (NLRB), for failing to prevent rampant anti-union conduct by employers and the collapse of the union formation process through the Board’s election machinery. This “ossification” of the law, as it has come to be known, is considered to be a key contributor to the United States’ private-sector unionization rate declining from its mid-century high of 35 percent to a mere six percent in recent years. While most scholars have generally lamented the diminishing relevance of the NLRA or the squandering of its transformational potential, others have questioned the labor movement’s preoccupation with obtaining favorable federal legislation. This clustering of academics and activists are skeptical not only of unions’ current reliance on the state for assistance in reversing its fortunes, but of the very decision of New Deal-era politicians to pass the NLRA amidst the high point of worker insurgency and radical organizing in the 1930s. This Article seeks to correct this narrative. It argues that Senator Robert Wagner was justified in crafting a national labor policy from the barbaric conditions which accompanied pre-New Deal union organizing. Wagner’s crusade to convert the state from an impediment to a facilitator of collective bargaining was “the most dramatic statutory assault on corporate prerogatives in American history,” and it represents the rare instance where a political elite pursued an ambitious economic agenda on behalf of labor and succeeded in the teeth of ferocious internal and industrial opposition. Although this Article takes no position on any recommended path forward, the story of the NLRA’s creation and an examination of the NLRB’s early history casts significant doubt on any theory of union growth that treats the state as a uniformly enervating force on the American labor movement

IPR Estoppel and a Search for the Skilled Searcher Standard

Interpretation of post-AIA IPR estoppel, codified in U.S.C. § 315(e)(2), is an issue at the forefront of patent litigation and plays an important role in the litigation process and strategy. The Federal Cir-cuit’s April 2023 ruling in Ironburg Inventions Ltd. v. Valve Corp., adopted the “skilled searcher standard” and provided some clarity re-garding the meaning of the § 315(e)(2) language, “reasonably could have raised.” While Ironburg did hold that prior art which “reasonably could have been raised” is that which “a skilled searcher conducting a diligent search reasonably would have been expected to discover,” questions pertaining to what exactly is a “diligent search,” what a “dil-igent search” entails, what such a search could be “expected to discov-er,” as well as how might this be established remains unanswered. This note seeks to provide answers and insight into those questions

Iconic CopiesTM

There is a word that is prevalent today in marketing campaigns, ed-itorials, and our everyday language: iconic. “Iconic” is not only preva-lent as a word in everyday life. Iconic can also have legal significance. As I introduce in this article, the concept of iconic and its use by brands in trademark registrations, oppositions, and litigation has significant and underappreciated consequences under the law. There has yet been no study on the word “iconic” or the legal significance of iconic, de-spite the word’s creeping use in legal filings and claims. My article fills this gap by introducing the concept of iconic as a legal term. It argues that the invocation of “iconic” may inappropriately expand trademark’s origin of the goods to expressive messages that are usually in the prov-ince of copyright. Brands describe designs copied from their history or other communities’ traditions as “iconic” when they seek or enforce their trademark rights. Brands also lean on consumers and the media’s christening of their designs as “iconic.” Hermès’ Birkin, for example, is iconic in part for the design’s connections to Jane Birkin and the idea-tion of the design’s creation. Trademark validity is about the origin of goods, including messages about sponsorship and affiliation. Trade-mark infringement is about consumer confusion. The Supreme Court told us that trademark law is about the origin of goods. The origin of goods cannot indicate the originator of the content that goods embody — such an indication should belong to copyright. The concept and use of iconic in trademark law challenges this boundary between trademark law and copyright law. In the concept of iconic as a legal term, there can be little difference between goods and ideas. I argue that when evaluating trademark rights, we should be skeptical about how the word “iconic” is used. This skepticism should mean a legal concept of iconic that signals a smaller scope of trademark rights for iconic designs like the Hermès Birkin if it means any trademark rights at all