David Schwartz (Northwestern Pritzker School of Law),
Christopher Cotropia (The George Washington University Law School), DOGE Days
at the USPTO? Evidence from a Natural Experiment in Administrative Reform
PTO provides some employees w/union protections and others
not. As soon as DOGE hits, nonunion staff productivity goes way down, while
examiner productivity remains constant. Admin has acknowledged patent examiner
union; did not try to enforce return to office mandate.
Staff makes sure drawing is sufficient and application has
all necessary parts. There’s a lot of activity; staff does more than examiners—total
nearly 53% of events while applicants represent about 30% (necessary activity
before next step is triggered for someone else), and examiners do the rest. There’s
a strong correlation b/t how busy examiners are and how busy staff is. Relatively
parallel trends.
But after DOGE, activity dropped—not because people were
fired/left although examiners dropped by 1% and staff dropped by 5%; result
holds even normalized by employee—a 40% drop in productivity for staff and
nothing significant for examiners.
What if threat of tariffs spooked applicant behavior?
Checked for that; enormous PTO backlog makes unlikely, but maybe it could delay
responses to OAs. Even when we sample to just account for things where
applicant delay won’t matter, same results.
Implications: significant costs from admin reforms like
DOGE. Abrupt intervention in administrative state that created a lot of
uncertainty & ambiguity. Unappreciated benefit of benefits of unions/job
security: unions are accused of resisting change. Will be studying longer term
effects as well.
We didn’t look at quality, but we did look at whether they
changed the mix of things they did (maybe initial responses are easier) but
they didn’t.
Rebecca Tushnet (Harvard Law School) History and Tradition
in First Amendment Intellectual Property Cases
I’m going to skip over as much IP doctrine as I can make
myself ignore on the theory that most of you know at least some of Zacchini,
Eldred, Golan, Jack Daniel’s, and Elster. I’m going to focus on trying to draw
connections between the First Amendment IP cases and what we might expect from
seeing history and tradition as a method expand to more of the First Amendment.
The news is not good. “History and tradition” as
constitutional theory is originalism unconstrained by textualism. Unlike in the
Second Amendment context, where the Court has reasoned from things earlier
regulators didn’t do to strike down gun regulations today, in “history and
tradition” First Amendment law the Court has reasoned by broad analogy to allow
new speech restrictions.
This is not a result of politicization, even if the adoption
of the method is politically driven because originalism wasn’t getting the
right results. It is the result of the impossibility of using history and
tradition without a theory of how to make good analogies from the past to the
present. History and tradition thus does not meaningfully constrain Justices
even in low-political-salience areas like copyright and trademark.
Most discussion of the risks of Bruen-izing the First
Amendment has so far focused on the risks of reviving speech controls in their
historical form such as blasphemy, obscenity, and unfettered defamation law.
The IP story shows that it’s worse than that: it is fully possible to appeal to
history and tradition to further expand control of speech beyond historic
limits. At a bare minimum, the considerations present in other modes of free
speech reasoning—the considerations involved in tailoring regulation to
regulable harm—remain necessary even when consulting history and tradition.
As Richard Fallon noted, the strict scrutiny test “evolved
simultaneously in a number of doctrinal areas” by the 1960s and quickly came to
“dominat[e] numerous fields of constitutional law.” Strict scrutiny as a standard means that the
government must show that its actions were “narrowly tailored” to further a
“compelling government interest,” and that they were the “least restrictive
means” to further that interest. In First Amendment cases, it is usually strict
in theory and fatal in fact.
Not too long ago, the Roberts Court seemed destined to use
strict scrutiny liberally to invalidate many government speech regulations. The
court struck down campaign finance laws, privacy laws, and anti-animal crush
video laws, and in 2015, the Court announced that strict scrutiny would apply
to all content-based regulations, including noncensorious regulations like
those of a city trying to specify which signs can go where and for how long.
But, the composition of the federal courts has changed, and the Supreme Court
is clearly open to throwing out decades of precedent.
In the Second Amendment case Bruen v. New York, the Supreme
Court held that only gun restrictions that met a stringent historical
compatibility test would be allowed. But judges are rarely trained historians,
and history tends not to speak in one voice. Reflecting some of the resulting
problems, in a followup case, Rahimi, a majority of the Court reiterated that
its test did not require a “historical twin,” but rather a “historical
analogue.”
To understate matters, it is not yet clear what constitutes
a sufficiently close analogy. One possibility is that the analogy is
sufficiently close when the Court tells us it is. But that’s not law.
Any serious attempt to apply history and tradition as a
legal standard has to grapple with the well-known challenges of analogical
reasoning. And unfortunately the IP cases do not suggest that the Court will be
able to do so. The unifying factor in
the First Amendment IP cases is their reliance on history and tradition to
uphold a speech restriction whose contours had been substantially expanded from
those known when the Constitution—or the Fourteenth Amendment—was adopted.
In the gun cases, the Court begins with the presumptive
coverage of gun rights (the people have such rights, for self-defense) and then
looks for whether history approves of the challenged limits on those rights. In
the First Amendment IP cases, the Court does not begin with the presumptive
coverage of “the freedom of speech,” but rather with the historical
compatibility of intellectual property claims with free speech. This sets up
the result: new IP rights are also fine.
In Zacchini, for example, the Supreme Court consistently
characterized the conflict as one between the television station’s First
Amendment rights to report news and the performer’s interest in his “entire
act,” the latter of which was equivalent to a well-recognized common-law
copyright claim. Lower courts then
immediately disregarded the Court’s analogy and started approving almost
anything called “right of publicity.” But Common-law copyright in an entire
performance is very different from controlling any mention or evocation of an
identity. Bruen-type attention to the right of publicity’s different subject
matter (what Justice Thomas called the “how” of regulation) and justifications
(what he called the “why” of regulation) compared to copyright could have
helped limit overreaching claims.
More recently, the Court used history and tradition to
reject two First Amendment challenges to new copyright legislation. Rather than
analyzing whether these changes were speech regulations subject to intermediate
or strict scrutiny, the Supreme Court reasoned that term extension and creating
federal copyrights where none had previously existed were both things Congress
had done before, so no additional First Amendment analysis was required.
As long as Congress acted within the “traditional contours”
of copyright, the Court told us, its acts required no further scrutiny. But
what are those traditional contours, since we know after Eldred and Golan that
those contours don’t include “a work’s term of protection is the term specified
when it was created” or “a work in the public domain stays in the public
domain”? Copyright’s subject matter, covered rights, and scope of what
constitutes infringement of a right have all expanded dramatically since the
Founding. I should note that I don’t generally oppose these expansions; my
argument is instead that the thing we call copyright is very different from
what the Framers called copyright, so saying that their copyright was
consistent with the freedom of speech doesn’t tell us an awful lot about our
copyright without a theory of how to compare theirs to ours even if “the
freedom of speech” remains constant.
The Court did identify fair use and the idea/expression
distinction as key traditional contours of copyright. But Congress has passed
laws that cut sharply back on fair use in the digital context. Lower courts
both before and after Golan have said it’s constitutional to prohibit
“circumvention” of digital access controls even if that makes many fair uses
impossible. If your only guideline is “traditional contours” and there is a
history of contracting freedom to use copyrighted works, then it’s difficult to
tell when the traditional contours have been unconstitutionally reshaped.
Even more recently, trademark law has seen the same
untethered use of history and tradition. In Jack Daniel’s, the court
essentially reasoned that, because trademark law is historically grounded,
source-identifying uses that cause deception must not be part of the speech
historically protected by the First Amendment.
But there are even worse problems with the analogy to
founding-era trademark than there are with analogizing to founding-era
copyright, given the lack of a substantive federal registration system until
the mid-20th century, the vast expansion of subject matter, and the vast
expansion of what constitutes infringement, not to mention the invention of
dilution.
Then, in Vidal v. Elster, most of the Justices appealed to
history and tradition as supporting the names clause that bars registration of
a living person’s name without their consent. But the cracks in history and
tradition were finally noticeable even to them: Should the analysis be at the
level of the purpose of having a trademark registration system? A registration
system needs to make content based distinctions to function. Does that mean
that any content-based regulation is ok? That would allow Congress to, for
example, deny registration to any trademark that made reference to birth
control or abortion. That’s a very broad analogy.
Justice Thomas’s opinion for the Court relied on the long
tradition of providing unfair competition protection to names in tort lawsuits
brought by the person whose name it is, as well as of allowing people to use
their own names in commerce even when someone else has already used that name
in a line of business. That is, “a tradition of restricting the trademarking of
names has coexisted with the First Amendment … Though the particulars of the
doctrine have shifted over time, the consistent through line is that a person
generally had a claim only on his own name.”
This is mostly true, but unhelpful: First, the reference to
“trademarking” a name is ahistorical because, historically, trademarks arose
from use in commerce. “Trademark” wasn’t a verb. The registration system is not
the same thing as allowing a private right of action for name confusion. This
is a clear example of how the history and tradition approach expands judicial
freedom—Justice Thomas didn’t even seem to notice that he was generalizing from
individual private infringement suits to a government-run registration system
that bars certain registrations even in the absence of private opposition.
Second, even if we accept the jump between private tort
claims challenging specific uses and a statutory restriction on registration,
that common-law history has an obvious link with Section 2(a), the prohibition
on false association. Section 2(c) goes further—its only independent utility is
when it applies to a mark that wouldn’t falsely suggest a connection. Barring
registration of DEMOCRATS AGAINST ELON MUSK doesn’t seem like it’s going to
facilitate source identification. This is especially true given the difference
between registration and actual use: Even without a registration, Elster can
(for now) sell his TRUMP TOO SMALL T-shirts, thus inflicting the same source-
or reputation-affecting consequences on the world.
Bruen directed courts to consider whether new gun
regulations were sufficiently analogous to past ones in the “how” and the “why”
of their burden on a law-abiding citizen’s right to armed self-defense. By
contrast, in Elster, Justice Thomas’s opinion ignored both the how of past
regulations—through infringement claims—and the why—fraud prevention instead of
protection for a free-floating interest in personality.
Justice Barrett’s concurrence was attentive to this gap. As
she wrote: “[T]he Court’s evidence, consisting of loosely related cases from
the late-19th and early-20th centuries, does not establish a historical
analogue for the names clause.” The ability to cherry-pick a few cases out of
the historical record allows for a lot of manipulation, especially in a
common-law nation where there is no such thing as an unbroken, consistent line
of cases.
The majority approach has both a timing problem and a
conceptual problem. For timing, why is the late-19th and early-20th century
important when it was neither the Founding nor immediately around
Reconstruction? Conceptually, Barrett wrote: “[T]he Court never explains why
hunting for historical forebears on the restriction-by-restriction basis is the
right way to analyze the constitutional question.”
A key issue is that the founding era had comparatively few
laws and more reliance on judicially recognized causes of action than we do
now. In common law adjudication, even when judges articulated general
principles, they were applying them to particular facts, so limiting principles
that weren’t presently relevant in the case before them were often omitted from
discussion. Perhaps more importantly, the analogy between the historical
caselaw and a statute would have to come from identifying the rule emerging
from the caselaw and comparing it to the statute. And any grouping of cases to
give a “rule” has to have an underlying theory of what unites these cases: a
classic level of generality problem. “Historical cases were about protecting
rights when names were used as source-identifiers” is one theory, but so is
“historical cases were about protecting rights when names were used deceptively
as source-identifiers,” which creates a different baseline.
History and tradition is probably going to play a bigger
role in future First Amendment cases, as this year’s Paxton v. NetChoice
decision upholding age verification requirements for certain websites
signals. In Paxton, the Court used a
history of regulating minors’ access to obscene-for-minors speech to identify a
legitimate state interest in identity verification legislation. But website age
verification is unlike brick-and-mortar age verification because it can potentially
be saved for government review or exposed to hackers (something that just
happened with the identity verification for a women-only app, Tea and its male
competitor TeaOnHer), and it is very expensive, as opposed to the very low
marginal cost of checking IDs in a store staffed by humans.
The broader lesson is that a law’s overbreadth,
underbreadth, and harms compared to the alternatives for achieving the
government’s interests are necessary considerations, but ones not facially
addressed by history and tradition. History simply doesn’t supply its own
analytic framework, and “sufficiently close analogy” is not all that helpful.
The flabbiness of history currently works differently for
different constitutional rights. Most of the work of the history and tradition
test in Second Amendment law comes from what legislators didn’t do—they didn’t
regulate guns in particular ways. In the First Amendment context, by contrast,
courts have extrapolated from private rights courts and legislatures granted in
the past to allow them to grant new and expanded private rights in the present
for similar reasons. Anti-gun regulation judges can dismiss inconvenient past
examples of gun regulation as misunderstandings. Pro-IP rights judges can seize
on outlier cases, or simply use the general justifications for IP rights
expressed in past cases and treat them in isolation from the countervailing
considerations that formerly limited those rights.
The expansion of relevant evidence beyond text to any
practice (or nonpractice) of legal regulation aids in the project of judicial
freedom: In such a vast corpus, who could deny that there must be some errors
and misunderstandings in there? At the same time, judges can dismiss
inconvenient past limits on IP rights as matters of legislative grace, and can
always find at least some expansive descriptions of the private interest at
issue, which then justifies further expanding the scope of the right.
The manipulability of levels of generality in defining an
interest grounded in history and tradition requires more legal tools than are
currently on display—and those tools cannot be found in “the past.” They
require interpretation and judgment.
Therefore, although the tiers of scrutiny may be shaky for
various reasons, the concerns they implement will not go away. In the First
Amendment, those animating concerns include: worry about government suppression
of views it doesn’t like, whether by viewpoint-based laws or laws that in
practice discriminate against particular viewpoints; related worry about
government’s ability to identify when speech actually causes harm rather than
just causing upset; not unrelated but separate concerns about overbreadth and
underbreadth, where poor targeting of a regulation may reveal bad motives or
just unwarranted discrimination against certain kinds of speakers when other
speech causes the same harm but remains unregulated.
One useful question is whether a speech restriction matches
well to the putative harm it addresses. If its harm-prevention claim relies on
an extended causal chain that could be interrupted by other factors, or is
unpersuasive as a justification for the law at issue because of the amount of
harmful speech it leaves untouched or the amount of harmless speech it
suppresses, then we should identify a constitutional problem.
That is, considerations of fit—usually considered as part of
the second and third prongs of strict or intermediate scrutiny—cannot and
should not disappear even if the “compelling government interest” and
“substantial government interest” standards are replaced by a test that
requires the government interest asserted to be recognized by US history and
tradition. Indeed, tailoring concerns are likely the only way to evaluate
whether newly enacted laws are consistent with a history and tradition of
allowing some speech regulations and not others. Historical analogies can start
us off, but we will still need to ask about tailoring and alternatives.
Zacchini, the right of publicity case, could even offer us a
potential model if we took the historical analogy seriously as a limit on what
lawmakers can enact, as in the Second Amendment context. After all, there were
reasons why common-law copyright in unfixed performances didn’t prevent most
reporting about what people said or looked like. Better still though would be to take on
directly the project of identifying the relevant government interest and the
extent of a regulation’s impact on speech that ought to be protected.
[very good questions I didn’t get a chance to write down,
sorry! Among others, Mark Lemley suggested a Bruen-type approach: if they didn’t
do it before, they can’t do it now. There’s a lot of debate in the broader con
law literature, but I think it’s probably more important to make sure that the
competing interests are defined at the same level of generality—freedom to
choose nonconfusing marks, for example, instead of freedom to use someone else’s
name in a nonconfusing way, if you’re going to describe “source indication” at
a very high level of generality as a justification for the names clause.
Jake Linford asked whether the relatively recent historical pedigree
of strict scrutiny gave me any pause. No. First, I carry no brief for strict
scrutiny as such; European congruence and proportionality also provide tools to
address causation/harm/tailoring issues that history & tradition can’t
alone address. Second, there is a difference between a constitutional
commitment and how that constitutional commitment is implemented. NYT v.
Sullivan is a good example—defamation was well known as a legitimate cause of
action, but its dangers were also well known and the SCt thought we’d learned
enough about them to put new procedural barriers in place. Another example I
didn’t mention is the Miranda warning—when we know that specific problems recur,
we can change our implementation of the constitutional guarantee even as the
guarantee remains the same.]
Elizabeth Townsend Gard (Tulane University Law School), Zvi
Rosen (University of New Hampshire Franklin Pierce School of Law), 50 Year
Review of the 1976 Copyright Act
Gard is new EIC of J of © Society; looking back on 50 years
and forward to next 50 years b/c Next Great © Act seems unlikely. Doing
interviews w/prominent scholars/lawyers/legislators. We want to take a snapshot
of © in 2026, so engagement is welcome; there’s going to be a conference at GW
in Oct. 2026. Younger scholars encouraged. Copyright Society Research Guides: for
scholars to use.
from Blogger http://tushnet.blogspot.com/2025/08/ipsc-closing-plenary-doge-first.html
Rebecca Tushnet 
){kind=link}
){kind=link}
){kind=link}
){kind=link}