Digital Commons Network^™

Predicting Outcomes In Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …

Gender Perspectives On Torture And Other Cruel, Inhuman, Or Degrading Treatment Or Punishment: Expert Consultation, Brenda V. Smith

Reports

The aim of this consultation with experts is to ensure that the Special Rapporteur receives the necessary exposure to the different practices, international standards and jurisprudence, and expert opinions that will help him draft his forthcoming thematic report for the United Nations Human Rights Council. The report will focus on assessing the unique experiences of women, girl children and LGBTI persons from the perspective of torture and other cruel, inhuman or degrading treatment and punishment (“CIDTP”) in international law. The consultation will focus on specific practices where the mistreatment rises to the level of torture or CIDTP to identify gaps …

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

Articles in Law Reviews & Other Academic Journals

In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Exclusionary Conduct Of Dominant Firms, R&D Competition, And Innovation, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This paper evaluates the innovation consequences of antitrust enforcement against the exclusionary conduct of dominant firms through a Nash equilibrium model of research and development (R&D) competition to create new products. In the two-firm model, whether one firm regards the other firm’s R&D investment as a strategic complement or strategic substitute turns on an increasing differences condition: whether the first firm’s incremental benefit of increased R&D investment is greater if its rival’s R&D effort succeeds or if its rival’s R&D effort fails. Antitrust prohibitions on pre-innovation exclusion and post-innovation exclusion are found to be effective in different strategic settings: preventing …

Sharing Research Data And Intellectual Property Law: A Primer, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security …

Sharing Research Data And Intellectual Property Law: A Primer, Michael Carroll

Articles in Law Reviews & Other Academic Journals

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security …

The Road To Precautionary Review Of Financial Products, Hilary Allen

Articles in Law Reviews & Other Academic Journals

Financial innovation introduces new and complex products into the financial system, providing market participants with more bespoke ways to manage their risk, return and liquidity. However, by increasing the complexity of the financial system, financial innovation also compromises financial stability. Faced with the rapid pace of financial innovation, regulators have two options. One is to seek to meet the complexity of the industry with complex regulation, in an arms race that under-resourced regulators are bound to lose. The less explored (and more controversial) path is for regulators to try to reduce the complexity of the financial system by limiting financial …

Boys, Rape And Masculinity: Reclaiming Boys' Narratives Of Sexual Violence In Custody, Brenda V. Smith

Project on Addressing Prison Rape - Articles

This article examines a little studied area at the intersections of masculinity, feminist studies, and criminal justice – sexual abuse of boys in custody by female staff. Professor Smith will outline the scope of the problem and discusses competing narratives that attempt to explain the phenomena: (1) female staff as “mother, sister, friend”; (2) adolescent development theory; (3) complex early childhood trauma; and (4) female authority and power. There is a gap in both masculinity and feminist theory in analyzing sexual aggression and power by women over boys. The talk will colclude with policy and practice prescription and recommendations for …

Reframing The Socratic Method, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and upper-level courses. This article highlights how the Socratic method limits the depth and breadth of innovations in law teaching and can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms. Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward …

The Many Faces Of Transparency, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

Transcript from the Proceedings of the Annual Meeting of American Society of International Law panel on the "Role of Transparency at the World Trade Organization."

Should The American Grand Jury Survive Ferguson, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

The Financial Stability Oversight Council (Fsoc): It's Not All About The Designation, Hilary Allen

Articles in Law Reviews & Other Academic Journals

The recession that followed the financial crisis of 2007-2008 illustrated just how important financial stability is:when the financial system fails, it results in credit contractions that can cause seismic problems for the economyat large. Because financial institutions lack the incentives, information and tools to reduce the amount of risk inthe financial system as a whole, the vital task of overseeing and regulating for financial stability must necessarilybe carried out by a public body.

In Search Of The Real Roberts Court, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Brief Of Professors Peter S. Menell, J. Jonas Anderson, And Arti K. Rai As Amici Curiae In Support Of Neither Party, Teva V. Sandoz, No. 13-854, Slip Op., Jonas Anderson, Peter Menell, Arti Rai

Amicus Briefs

No abstract provided.

Les Catastrophes Enironnementales Et Leurs Conséquences Sur La Santé Publique" Une Année Passée En Revue, Susan Johnson, Blythe Brauer, Samantha Bird, Andrea Abergel, Jon Davey, Mary Strayhorne

PEEL Alumni Scholarship

Cette annee, plusieurs catastrophes environnementales ont eu des consequences tres graves sur la sante publique. Cet article analyse les causes, les effets et les implications juridiques et politiques de quatre différents désastres industriels recenses cette année. En premier lieu, I'article traite d'une explosion industrielle qui s'est produite dans l'Etat du Texas en avril 2013. Cette explosion est le résultat de I'entassement négligeant de matériaux chimiques dans une zone rurale du Texas. Dans un second temps, est aborde l'effondrement d'une usine de textile située au Bangladesh, symptôme d'une mondialisation sauvage hors de contrôle des gouvernements. Enfin, I'article aborde trois différents événements …

Recommendations For Addressing Environmental Impact Of African Development Projects Funded By Chinese Banks, Tais Ludwig

PEEL Alumni Scholarship

The past decade has seen a significant increase in Chinese investment in infrastructure and development projects abroad, particularly in Africa. Although China is not the largest investor in African economies, it is the largest investor of the BRIC countries to invest in the region, with total investments valued at US$27.7 billion in 2012.2 Chinese direct foreign investment in Africa also increased from $317 million in 2004 to $2.52 billion in 2012, or by nearly 8 times. China's Premier Li announced in a speech delivered at the African Union's Chinese built headquarters in Ethiopia that Chinese direct foreign investment is also …

The Absence Of Northern Nigeria's Social Development And The Rise Of Boko Haram, Ryan Schmidt

PEEL Alumni Scholarship

A wave of euphoria swept across Nigeria when Muhamadu Bihari was declared victory of the 2015 presidential election. Although Mr. Buhari remains a controversial figure today, originally gaining his power in December 1983 via military coup, in April 2015 the citizens of Nigeria enthusiastically elected him to retake the reins as the country's next president. Mr. Buhari faces a seemingly insurmountable number of challenges, as he will attempt to steer Africa's wealthiest country away from disaster. Mr. Buhari will inherit an economy that is extremely dependent on oil revenue and a market system that has enabled only a small minority …

"Made In Ethiopia" -- The New Norm In The Garment Industry, Marie Durane

PEEL Alumni Scholarship

Ethiopia is one of the fastest growing economies in the world, achieving enormous economic growth averaging 10.6% over the past decade and leading in Foreign Direct Investment (FDI). According to the 2014 United Nations Conference on Trade and Development (UNCTAD) World Investment Report, FDI in Ethiopia has increased by 242% from 2012 to 2013. However, the excessive speed at which Ethiopia is seeking foreign investment into the country, specifically in the garment industry, has led to an exploitation of garment workers who are paid extremely low wages. To ensure garment workers are paid fairly, Ethiopia should establish a minimum wage …

Mexican Energy Revolution: But Is It A Solution?, Katrina Tomecek

PEEL Alumni Scholarship

Mexico’s recent energy reform has received much praise for the economic benefits it promises to bring, but one piece of the puzzle most politicians seem to overlook is the environmental impact that will result and the issues with postponing the inevitable: the need to look to alternative resources. With its ample sun and wind resources, Mexico would be an ideal candidate for transitioning to greener energy. However, without strategic planning the country’s energy reform will threaten to undo recent progress towards the transition to renewable resources.

He Quest For Sustainable Energy: Germany's Nuclear Scrutiny Vs. "All Of The Above", Adam Arnold

PEEL Alumni Scholarship

A widely applicable legal doctrine states that the value of an activity must outweigh the cost of that activity in terms of risk. The purpose of this paper is to argue that the risks of nuclear power outweigh its benefits, even when greenhouse gas (“GHG”) emissions are considered.

Closing The Halliburton Loophole In New Mexico: Letting Developers Choose Between R&D Dollars And Trade Secrets, Christian Johnson

PEEL Alumni Scholarship

During the last fifteen years, the southwestern United States has recorded exceptional levels of drought and is experiencing a severe water crisis. At the same time, billions of gallons of freshwater are being used each year to supply a booming natural gas development. While not much can be done about the drought, water use could be better monitored and controlled. Deep fracturing technology, or “fracking,” permanently denies human beings the future use of billions of gallons of freshwater because the water used to extract natural gas must be mixed with toxic chemicals, most of which cannot be economically removed.

London Calling To The Underground: Waste Heat In Urban Morphology Is Going Down The Tube, Nicholas J. Thies

PEEL Alumni Scholarship

Buildings in urban areas are entirely lacking in significant energy-use developments. Energy production and distribution in urban areas are hugely inefficient, losing most of their production to waste heat. Over the past 100 years, the clay surrounding London’s Underground has warmed and is no longer able to absorb the trapped waste heat, causing the Underground temperature to increase to over 30°C.

Empirical Studies Of Claim Construction, Jonas Anderson

Working Papers

Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Patent prosecutors devote substantial effort to crafting patent claims so as to maximize the scope of their right without “reading on” prior art (and thereby defeating novelty). Businesses seeking to enter a technology marketplace must be careful to avoid encroaching patent claims. Thus, when patentees enforce their rights, the interpretation of claim boundaries guides both validity and infringement analysis. Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, …

Hoop Dreams Deferred: The Wnba, The Nba, And The Long-Standing Gender Inequity At The Game’S Highest Level, N. Jeremi Duru

Articles in Law Reviews & Other Academic Journals

Introduction: The top three picks in the 2013 Women's National Basketball Association (WNBA) draft were perhaps the most talented top three picks in league history, and they were certainly the most celebrated.' Brittney Griner, Elena Delle Donne, and Skylar Diggins were phenomenal youth players, attracting attention from collegiate coaches shortly after they began playing competitively. Delle Donne received her first major university scholarship offer when she was in the seventh grade, and Diggins received her first in the eighth. Griner did not start playing competitive basketball until her freshman year of high school, but before long, she too was receiving …

Exploited At The Intersection: A Critical Race Feminist Analysis Of Undocumented Latina Workers And The Role Of The Private Attorney General, Llezlie Green

Articles in Law Reviews & Other Academic Journals

Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Specialized Standards Of Review, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

ABSTRACT The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for "clear error, " and questions of discretion for "abuse of discretion. Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of "deference " should be altered when the appellate court is a specialized court. Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly …

Giving As Governance: Philanthrocapitalism And Modern-Day Slavery Abolitionism, Janie Chuang

Articles in Law Reviews & Other Academic Journals

This Essay examines the potential influence of a new breed of actor in the global antitrafficking arena: the venture philanthropist, or "philanthrocapitalist." Philanthrocapitalists have already helped rebrand "trafficking" as "modern-day slavery," and have expressed their ambitions to lead global efforts to eradicate the problem. With their deep financial resources and access to powerful networks, philanthrocapitalists hold tremendous power to shape the future trajectory of the antitrafficking movement. this Essay warns, however, against the possibility that philanthrocapitalists could also reconfigure the landscape of global antitrafficking policymaking, marginalizing or even displacing other actors' efforts to address the problem.

Preventing Private Inurement In Tranched Social Enterprises, Benjamin Leff

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …