Too Many Probabilities: Statistical Evidence of Tort Causation

Medical scientific testimony is often expressed in terms of two different probabilities: 1. The increased probability of harm if a person is exposed, for example, to a toxin. 2. The observed relationship is an artifact of the experimental method. This article demonstrates that neither probability, taken alone or together, measures whether the preponderance of the evidence test is met

Remedies for Imperfect Transactions in Contracts and Torts

The papers by Professors DeLong, Wonnell, and Kelly in this Symposium address different types of imperfect transactions. Promises that are the subject of section 90 of the Restatement (Second) of Contracts are imperfect in the sense that they lack consideration or are disclaimed in subsequent, formalized, written contracts.\u27 Section 90 authorizes courts to find remedies for reasonable but fruitless expenditures induced by parties who make promises on which they should reasonably expect others to rely.2 Professor DeLong decries courts\u27 formalist strategies for enforcing disclaimers that eliminate these promisors\u27 potential liability for intentionally imperfect transactions.\u27 Taking Professor DeLong\u27s analysis of imperfect promises one step further sheds light on his critique of formalist analysis of disclaimers. I will hypothesize a rationale for disclaimers and alternative methods for limiting their application that might be appealing to both Professor DeLong and the formalist courts

A New Economics of Trademarks

Conventional wisdom holds that trademarks are nothing like other intellectual property. Copyright and patent law are theoretically based in public goods theory and are designed to promote creation and disclosure of original expressions and novel, useful innovations. By contrast, trademarks are private goods and trademark law is designed to promote trade and encourage competition. This article challenges conventional wisdom by demonstrating that trademarks are a type of public good that contributes to the public stock of useful ideas just as patented and copyrighted works do. This economic perspective suggests, again contrary to conventional trademark theory, that competitive markets fail to supply an optimal amount of information about products and their sources. Conventional theory recognizes the difficulty in excluding competitors from using a supplier\u27s trademark unless there is a legal regime to protect marks. Conventional theory fails to consider the non-rivalrous character of referential and customary trademark use by consumers, competitors, non-competitors, and commentators. The public use perspective on trademarks enriches our understanding of the structure of trademark law, the extent to which trademark law addresses the market failures associated with trademarks\u27 public goods character, and the current debate concerning the propertization of trademarks

Abuse of Supreme Court Precedent: The Historic Kinship

In Sony Corp. of America v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a “historic kinship” between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are consistent with the underlying rationale for intellectual property law and the Supreme Court’s cautionary language, lower courts regularly quote the “historic kinship” as a justification for applying rules from one regime to another. This article surveys all of the cases referring to Sony’s “historic kinship” and finds that most lower courts abuse the precedent by failing to consider the rationale and heed the caution. The risk created by this misapplication of Supreme Court precedent is that new intellectual property rules may be inconsistent with the underlying goals or inconsistent with other doctrine

A Common Sense Approach to Understanding Statistical Evidence

This Article presents a straightforward and intuitive method for understanding and interpreting statistical evidence submitted to courts as proof of factual issues. The author\u27s goal is to overcome the reader\u27s fear and loathing of statistics by relating all statistical methods to the concepts of numerical differences between numbers and similarities or correspondences between numbers. The author draws from cases from a wide variety of substantive law areas such as civil rights, employment discrimination, contracts, environmental law, energy law, constitutional law, deceptive advertising, and highway traffic safety. The author begins by discussing the concept of subtraction and proceeds through percentages and correlations to regression analysis. Using the statistical concept of a standard deviation, which is explained in intuitive terms, statistical evidence of all degrees of complexity is described as a mechanism for ascertaining whether an absolute magnitude or measurable effect is big enough to be legally significant