Law Commons^™

The Data Heist: Protecting Consumers And Their Information Through Opt-In Consent, John A. Hudson

Arkansas Law Review

This Comment will: (1) compare and contrast the data privacy laws in the United States and the European Union; (2) demonstrate the significant risk American consumers are subject to under the United States’ current laws and regulations; and (3) address the protections provided by the European Union’s explicit opt-in consent requirement that would ensure safer conditions for American consumers.

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …

Hungary, Poland, And Access To Eu Funding: The Eu Charts A New Course Under The Necessity Of Legislation, Conditionality, And The Rule Of Law., Blake S. Rutherford

University of Miami International and Comparative Law Review

In recent years, there has been considerable backsliding in Hungary and Poland regarding the rule of law, media plurality, judicial independence, and emergency powers. In response, the European Union (“EU”) exercised its authority under Article 7 of the Treaty of the Functioning of the European Union to withhold COVID-19 relief funds in an effort to compel these nations to realign with EU principles. This article examines the history, consequence, and legal effect of the landmark decision, Hungary v. Parliament and Council. It argues that the EU was on sound legal footing to utilize money as a means to protect …

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Articles in Law Reviews & Other Academic Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

Achieving A (Copy)Right To Repair For The Eu’S Green Economy, Anthony D. Rosborough, Leanne Wiseman, Taina Pihlajarinne

Articles, Book Chapters, & Popular Press

• The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented.

• This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and …

  ---

  Go to article

Against Imperial Arbitrators: The Brilliance Of Canada's New Model Investment Treaty, Charles H. Brower Ii

FIU Law Review

Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on the need for reform. But there is a dearth of historical research on what went wrong with investment treaties, when it happened, or how to find the way forward in light of the past. As a result, reform efforts have a stumbling quality. One can see this in multilateral fora, such as the United Nations Commission on International Trade Law (UNCITRAL), where over four years of study and negotiations have produced little consensus. One can also see it in …

Deregulation And The Lawyers' Cartel, Nuno Garoupa, Milan Markovic

Faculty Scholarship

At one time, the legal profession largely regulated itself. However, based on the economic notion that increased competition would benefit consumers, jurisdictions have deregulated their legal markets by easing rules relating to attorney advertising, fees, and, most recently, nonlawyer ownership of law firms. Yet, despite reformers’ high expectations, legal markets today resemble those of previous decades, and most legal services continue to be delivered by traditional law firms. How to account for this seeming inertia?

We argue that the competition paradigm is theoretically flawed because it fails to fully account for market failures relating to asymmetric information, imperfect information, and …

Data Privacy Regulations In The United States, China, And The European Union, Charlsey A. Kelly

Honors College Theses

This paper compares and discusses the different data privacy regulations found in the United States, China, and the European Union. It is no secret that big tech companies like Facebook and Google continuously collect data on their users. The big question is what protections and rights one has as a consumer. The answer to this question differs when you are in different parts of the world. Currently the United States does not have a federal data privacy law, China recently adopted a new data privacy law called the Personal Information Protection Law, and the European Union has a data privacy …

Penises, Nipples, And Bums, Oh My!: An Examination Of How Freedom Of Expression Applies To Public Nudity, Clara Gutwein

Indiana Journal of Global Legal Studies

How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order. Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples …

How The World's Largest Economies Regulate Data Privacy: Drawbacks, Benefits, & Proposed Solutions, Alexander J. Pantos

Indiana Journal of Global Legal Studies

National data privacy regimes are quickly gaining traction and ubiquity around the globe. Moving forward, countries will face a range of difficult decisions surrounding how best to engage internationally in cross border data flow, particularly in the context of personal information (PI).

This article takes a bird's-eye view of the current state of data privacy regimes in the world's four highest GDP regions. In part, this article hopes to provide a succinct analysis of these data privacy regimes, with a focus on the balance they strike between granting individuals rights in their data and placing responsibilities on businesses that deal …

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

L’Europe Face Aux Défis De Pluralismes Inattendu, Vivian Grosswald Curran

Book Chapters

This contribution to a Festschrift in honor of Mireille Delmas-Marty explores the challenges for Delmas-Marty’s aim of “ordered pluralism” within the EU, given the departures from fundamental EU values by some of its Member States in recent years. It touches on the divided pasts of the Western and Eastern members of the EU, building on work of C. Joerges and T. Snyder in that area, addressing how the different historical narratives may be understood. It also suggests the utility of Article 17 of the European Convention, as was done by the partially concurring, partially dissenting judges in the Navalny v. …

Narratives Of Quality In European Food Governance And Beyond, Lorenzo Bairati

FIU Law Review

No abstract provided.

Like Oil Floating On Water: Italy’S Olive Crisis And The Politics Of Backlash Against Transnational Legal Orders, Tommaso Pavone

FIU Law Review

No abstract provided.

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

Defending Democracy: Taking Stock Of The Global Fight Against Digital Repression, Disinformation, And Election Insecurity, Scott J. Shackelford, Angie Raymond, Abbey Stemler, Cyanne Loyle

Washington and Lee Law Review

Amidst the regular drumbeat of reports about Russian attempts to undermine U.S. democratic institutions from Twitter bots to cyber-attacks on Congressional candidates, it is easy to forget that the problem of election security is not isolated to the United States and extends far beyond safeguarding insecure voting machines. Consider Australia, which has long been grappling with repeated Chinese attempts to interfere with its political system. Yet Australia has taken a distinct approach in how it has sought to protect its democratic institutions, including reclassifying its political parties as “critical infrastructure,” a step that the U.S. government has yet to take …

Multilateralism, Pushback, And Prospects For Global Engagement?, Michael Donald Kirby The Honourable

Indiana Journal of Global Legal Studies

In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HI V/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of '"pushback" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite …

Temporary Protection Status: A Yugoslavian Precedent, Medina Dzubur

Indiana Journal of Global Legal Studies

Analyzing the past use of temporary protection status to shield those facing "ethnic cleansing, massacres, mass rapes, and cultural vandalism" is fundamental in understanding how this tool can be utilized to protect modern refugees, and why EU members have refused to implement this status further. In other words, should temporary protection status, considering the legal framework and the socioeconomic effects, be granted to Syrian refugees? This note argues in favor of granting temporary protection status to Syrian refugees because the status (1) offers a recourse for displaced persons that would not be covered by traditional legal protections, (2) produces quicker …

Digitizing Scent And Flavor: A Copyright Perspective, Amara Lopez

Michigan Technology Law Review

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor.

Recent developments in technology have led to the digitization …

The Plight Of Women In Positions Of Corporate Leadership In The United States, The European Union, And Japan: Differing Laws And Cultures, Similar Issues, Bettina C. K. Binder, Terry Morehead Dworkin, Niculina Nae, Cindy A. Schipani, Irina Averianova

Michigan Journal of Gender & Law

Gender diversity in corporate governance is a highly debated issue worldwide. National campaigns such as “2020 Women on Boards” in the United States and “Women on the Board Pledge for Europe” are examples of just two initiatives aimed at increasing female representation in the corporate boardroom. Several

European countries have adopted board quotas as a means toward achieving gender diversity. Japan has passed an Act on Promotion of Women’s Participation and Advancement in the Workplace to lay a foundation for establishing targets for promoting women.

This Article examines the status of women in positions of leadership in the United States, …

Introduction, Colin Crawford, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend …

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

The European Union Military: A Debate On The Need For A Common Defense Mechanism, Gonzalo Secaira

CMC Senior Theses

In a region affected by death and destruction brought on by two devastating world wars, the European Union has held peace and economic stability as its primary objective. Since its creation, the EU has expanded both in size and scope, becoming on the largest economic global actors in the world. In recent years, the EU has looked towards expanding its competencies to include common security and defense policies. Efforts on behalf of the EU to further integrate EU members have faced mixed reactions and opposition. One of these policies, the funding, and implementation of a European Union military has been …

Puff Puff Pass The Legislation: A Comparison Of E-Cigarette Regulations Across Borders, Rachel E. Zarrabi

Journal of the National Association of Administrative Law Judiciary

This comment explores the types of legislation, approaches to regulating e-cigarettes, and analyzes whether the FDA’s campaign and current regulations are effective. So far, it appears that the United States is ahead of the game with its new, aggressive proposal for regulating e-cigarettes. The FDA is standing against the companies and products that target youthful consumers. Most countries acknowledge the gaps in current scientific research regarding the long-term health risks of vaping, and some are waiting to take a legislative stance until it is clearer which side of the health line e-cigarettes fall. Section II of this comment discusses the …

Beauty Shouldn’T Cause Pain: A Makeover Proposal For The Fda’S Cosmetics Regulation, Lauren Jacobs

Journal of the National Association of Administrative Law Judiciary

The American cosmetics industry is not required by the Food and Drug Administration (FDA) to conduct pre-market safety assessments of cosmetics. The FDA only reviews personal care products when people voluntarily report problems. Further, companies continue to test animals for cosmetics, despite the FDA’s recommendation that manufacturers seek more humane and accurate testing. Although the FDA does not require animal testing for product safety or premarket approval, the United States is one of the largest users of laboratory animals for product testing. There are two pending pieces of legislation, which if passed would be the first acts of cosmetic regulation …

The Effectiveness And Application Of The Eu Principle Of Consistent Interpretation In Hungarian Courts, Fabio Ratto Trabucco

Indiana Journal of Global Legal Studies

This study of how the Hungarian courts have applied the principle of consistent interpretation demonstrates the striking degree to which this statutory interpretation method has been derived from EU law and embedded in the national courts' practice. Originating in the jurisprudence of the EU Court of Justice and based on the principle of sincere cooperation set out in Article 4(3) EU Treaty, the principle of consistent interpretation consists of a duty incumbent on all public authorities, including national courts, to interpret national law in conformity with EU law. Consistent interpretation plays an important role in enabling individuals to secure rights …

Understanding The Politics Of Resentment: Of The Principles, Institutions, Counter-Strategies, Normative Change, And The Habits Of Heart, Tomasz Tadeusz Koncewicz

Indiana Journal of Global Legal Studies

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for …