Tag Archives: my writings

New article: History and Tradition in First Amendment Intellectual Property Cases: A Critique

Posted on August 11, 2025 by rtushnet

 Preprint available here. Abstract There are indications that the “history and tradition” approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical … Continue reading →

Posted in Uncategorized | Tagged , , , , | Leave a comment

I write letters

Posted on July 31, 2025 by rtushnet

To Alan Garber & John Manning: As a member of the law faculty (and, not for nothing, a professor of the First Amendment), I am writing you to express my strong opposition to any “settlement” with the Trump Administration. Harvard … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

New book chapter on advertising, TM, and antitrust

Posted on July 16, 2025 by rtushnet

Misleading advertising as a matter of unfair competition law  Graeme B Dinwoodie and Ansgar Ohly (eds), Research Handbook on Unfair Competition and Passing Off (Edward Elgar, forthcoming 2026) Abstract The prohibition of false and misleading advertising should be the prototypical … Continue reading →

Posted in Uncategorized | Tagged , , , | Leave a comment

Two recent amicus briefs: Santos v. Kimmel and Sedlik v. Von Drachtenberg

Posted on December 23, 2024 by rtushnet

 In the Second Circuit, supporting fair use on a motion to dismiss in Santos v. Kimmel, and in the Ninth Circuit, supporting the jury’s verdict of lack of substantial similarity in Sedlik v. Von Drachtenberg.  from Blogger http://tushnet.blogspot.com/2024/12/two-recent-amicus-briefs-santos-v.html

Posted in Uncategorized | Tagged , | Leave a comment

Engagement rings in the news

Posted on September 6, 2024 by rtushnet

 I’m quoted in this story about a dispute in front of the Massachusetts Supreme Judicial Court this week. In the courts of talking to the reporter, I learned that there have been a couple more state supreme court cases since I … Continue reading →

Posted in Uncategorized | Tagged | Leave a comment

Announcing the Seventh Edition of Advertising & Marketing Law Casebook by Goldman & Tushnet

Posted on July 23, 2024 by rtushnet

Eric Goldman and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. It is available for purchase in the following formats: * DRM-free PDF file. Price: $12* Kindle. Price: $9.99* Print-on-demand paperback from Amazon. … Continue reading →

Posted in Uncategorized | Tagged , , , | Leave a comment

Podcast on Bass Notes and Base Rates

Posted on April 1, 2024 by rtushnet

 I’m on Excited Utterance with Ed Cheng discussing my article with Chris Buccafusco. from Blogger http://tushnet.blogspot.com/2024/04/podcast-on-bass-notes-and-base-rates.html

Posted in Uncategorized | Tagged , , | Leave a comment

New article: Three Sizes Fit Some: Why Content Regulation Needs Test Suites

Posted on January 25, 2024 by rtushnet

 At the Berkeley Tech LJ:  ABSTRACT The European Union’s Digital Services Act (DSA) offers a new model for regulating online services that allow users to post things. It uses size-based tiers to delineate the different levels of obligation imposed on various … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

new article w/Mark Lemley: First Amendment Neglect in SCOTUS IP Cases

Posted on January 16, 2024 by rtushnet

First Amendment Neglect in Supreme Court Intellectual Property Cases Mark A. Lemley & Rebecca Tushnet (forthcoming, Supreme Court Review) Abstract The Supreme Court decided two cases of central importance to free speech during the 2022 term – in both cases … Continue reading →

Posted in Uncategorized | Tagged , , , , | Leave a comment

Of Bass Notes and Base Rates: Avoiding Mistaken Inferences about Copying

Posted on December 14, 2023 by rtushnet

 New article with Chris Buccafusco: Houston Law Review, Vol. 61, 2023 Abstract To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases … Continue reading →

Posted in Uncategorized | Tagged , , , | Leave a comment