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Deborah Gerhardt and Jon McClanahan Lee on Owning Colors

Season 1, Ep. 238

In this episode, Deborah R. Gerhardt, Associate Professor of Law at the University of North Carolina School of Law and Jon McClanahan Lee,

Professor of Practice at the University of Minnesota Law School, discuss their article "Owning Colors," which will be published in the Cardozo Law Review. They begin by explaining that people can own exclusive rights to use particular colors in many different contexts, especially under trademark law. They describe the academic literature on how consumers perceive colors, as well as their own empirical study of consumer protections. Then they describe how the courts and the Trademark Office have conceptualized when trademark can protect colors, focusing on the role of functionality and secondary meaning, as well as their empirical study of color mark registrations. They argue that the Trademark Office registers only a limited number of color marks, and seems to be doing a good job in weeding out weak color marks. Gerhardt is on Twitter at @DebRGerhardt and her scholarship is available on SSRN. Lee's scholarship is also available on SSRN.

This episode was hosted by Brian L. Frye, Associate Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.

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9/22/2020

Pierre Schlag on the Law Review Article as Literary Form

Season 1, Ep. 625
In this episode, Pierre Schlag, University Distinguished Professor & Byron R. White Professor of Law, discusses his article "The Law Review Article," which is published in the University of Colorado Law Review. Here is the abstract:What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article.Drawing upon methodological advances and new learning far beyond anything thought previously possible, we investigate “the law review article” qua genre. What is it? What does it do? What are its implications? How does it make you feel?By teasing out the infrastructural determinations section by section, we demonstrate rigorously that there is both far more (and far less) going on than meets the eye. In what is the first instance in the history of the United States (and perhaps the world) we describe in each section of the law review article (e.g., Part I, Part II) whatever that description is performing. This is what we mean by “performative study.”With this approach, the reader can experience first-hand what the law review article does to him or her IRL. In a more conventional vein, it is hoped that this Article will be useful to junior legal scholars, young scholars’ workshops, elite law school boot camps, faculty evaluation committees, associate deans for research, law review editors and law school deans everywhere.The article closes with a call for improvements to the law review genre, cooperative federalism, daylight savings time, and the nature of the universe generally. The article is addressed not merely to The Court, but to The President, to Congress, and, of course, to “We the People.” Perhaps more than anything, we call for further sustained study of “the law review effect.” A sequel, entitled “Dissertation Disease,” is currently contemplated in order to undertake a similar study of the University Press Monograph.Among other things, Schlag reflects on whether "The Law Review Article" is actually a law review article, or something else; how the form of legal scholarship determines the content of legal scholarship; and why legal scholarship is so banal.This episode was hosted byBrian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at@brianlfrye.