Monday, December 29, 2008

Reading list: critiquing falsity by necessary implication

Sarah Samuelson, Note, True or False: The Expanding “False by Necessary Implication” Doctrine in Lanham Act False Advertising, and How a Revitalized Puffery Defense Can Solve This Problem, 30 Cardozo L. Rev. 317 (2008)

Summary:

This Note explains why the “false by necessary implication” doctrine is a harmful development in false advertising law and proposes a better way for courts to deal with tricky distinctions between truth and falsity. Part I will introduce Section 43(a) and describe the development of the “false by necessary implication” doctrine in greater detail. Using Time Warner Cable as a model, Part II will show that courts are expanding the doctrine too far and applying it inconsistently, often confusing its doctrinal underpinnings. Part II will also demonstrate that the expansion of 43(a) false advertising liability implicates the First Amendment's guarantee of free speech and may impede an open marketplace of information. In addition, it will explain that overregulation of false advertising underestimates the modern reality of consumer intelligence and ignores the technological resources available to debunk false advertisements. Finally, Part III will argue that courts should apply a new framework when deciding Section 43(a) false advertising cases. This new structure would redefine and expand the puffery doctrine, turning its application into a threshold inquiry instead of a defense. As a result, courts could eliminate trivial or non-credible claims at the outset and focus their attention on the type of false advertising that actually harms consumers.

I think it’s wrong in pretty much every respect, but I'm a big fan of falsity by necessary implication, and there’s a lot of stuff out there that’s not even wrong, so you might want to check it out if you’re interested in false advertising law.

2 comments:

Anonymous said...

Could you possibly point out the major differences you have with Ms. Samuelson's Note and how it's wrong?

Rebecca Tushnet said...

Well, briefly: implicature is a necessary and ordinary part of communication, so it's perfectly sensible for courts to recognize that certain claims are necessarily implied even if they aren't spelled out in every respect in an ad. If anything, courts should be more willing to use general principles of communication (Cialdini's book Influence has a lot of the background that I think they should use) rather than requiring consumer surveys to show deception. And using puffery to limit liability is at least as bad from the perspective of "what consumers really think": puffery is determined by a court as a matter of law, usually with no reference to any evidence about how consumers actually decide. You have to believe that courts are overimposing liability for her argument to persuade, and I don't believe that.