Commercial Law Commons^™

The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza

Pepperdine Law Review

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …

Franchising Law In The United States Between Theory And Practice: Heads Up For Foreign Investors, Radwa Elsaman

Touro Law Review

As a dynamic vehicle for fostering investment opportunities, both domestically and internationally, franchising spans a diverse array of industrial sectors, encompassing both goods and services. The United States plays a highly influential role in global franchise industry promotion, with a vast majority of International Franchise Association members representing American companies. Present data underscores that franchising has extended its reach to virtually every sector of the American economy. Notably, the United States stands among just four common law nations that have established dedicated franchise legislation, operating at both state and federal levels. This framework includes provisions for pre-sale disclosure, registration of …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

National Pork Producers Council V. Ross: Reining In The Dormant Commerce Clause, Pushing The Limits Of State Sovereignty, Jessica Kowalski

Loyola University Chicago Law Journal

The dormant Commerce Clause is one of the oldest constitutional doctrines in the United States and is essential in maintaining equal sovereignty among the states. While the doctrine has been substantially refined since it was first recognized, it had gone largely unchanged in recent years, until a controversial California law required further clarification of its scope.

In National Pork Producers Council v. Ross, the Supreme Court considered whether a California law prohibiting the in-state sale of pork produced in cruel conditions was constitutional under the dormant Commerce Clause. The Court ultimately upheld the California law, holding that a regulation …

Updating Standby Letter Of Credit Practice For The 21st Century: Modernizing The International Standby Practices For Digital Transactions, Samuel P. Baycer

Duquesne Law Review

Developing technology and digitalization have impacted nearly every aspect of our lives, including domestic finance and international trade.¹ Letters of credit, in some ways,² naturally lend themselves to an electronic transaction.³ Because of this, some experts note that letters of credit have "one foot in the world of electronic commerce and one foot in the world of paper documentation."⁴ However, there have not been any updates or supplements to the standard standby letter of credit rules since their issuance in 1999.⁵ While the current International Standby Practices (ISP98)⁶ does account for some electronic aspects …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

Artificial Intelligence And Weaponized Illusions: Methodologies For Federal Fraud Prosecutions Involving Deepfakes, Andrew W. Eichner

American University Law Review

Experts in the public and private sectors have vocalized concerns over the potential harms that can be inflicted when artificial intelligence (AI) is used maliciously. As AI technology increases in availability, it will become more accessible to criminal actors and allow for the emergence of new kinds of fraudulent schemes. Deepfakes are highly realistic AI-rendered depictions of individuals that criminals have already used to perpetrate fraud on an international scale. These renderings mimic third parties known to victims, allowing fraudsters to leverage the trust and familiarity of an existing relationship to perpetrate their schemes. The deepfake is used to convince …

Silence As Consumer Consent: Global Regulation Of Negative Option Contracts, Kaitlin Caruso, Prentiss Cox

American University Law Review

Worldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. Although these subscriptions use various contract forms, many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers’ side. Unsurprisingly, then, consumers complain in great numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Emerging Technology's Unfamiliarity With Commercial Law, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central …

Repurposing The United Nations Trusteeship Council To Govern The Establishment Of Outer Space Settlements, Andrew Wulf

Northwestern Journal of International Law & Business

Current existing international law and treaties on outer space do not address or regulate private actors’ property claims or human settlements in outer space. American companies such as SpaceX and Blue Origin, as well as countries like the United States, Russia, and China, are seeking to create colonies on the Moon and Mars. However, there is no international legal authority to allow or regulate this. In order to legitimize and control this impending outgrowth of human settlements, this paper proposes that the U.N. Trusteeship Council be repurposed to govern non-state actors’ claims of outer space property.

First, this paper explains …

Locke-Ing Down Nonsense Trademarks: Applying The Property Theory Of John Locke To The Issue Of Nonsense Trademarks, Jake H. Howell

Catholic University Journal of Law and Technology

In 2019, the United States Patent and Trademark Office received almost half a million trademark applications. This was the tenth year in a row in which the number of applications received broke the record from the previous year. Since 2015 there has been a marked increase in the number of applications for trademarks that are unusual. These applications are for trademarks that consist of an apparently random string of letters unpronounceable in English and with no meaning in another language. These unusual trademarks have come to be known as nonsense trademarks. Nonsense trademarks are a growing problem in intellectual property. …