Law Commons^™

The U.S. Supreme Court And Medical Ethics: From Contraception To Managed Health Care, George J. Annas

Faculty Scholarship

Review of The U.S. Supreme Court and Medical Ethics: From Contraception to Managed Health Care (2004) by Bryan Hilliard

Chapter 3: Open Source Software: Free Provision Of Complex Public Goods, James Bessen

Faculty Scholarship

Open source software, developed by volunteers, appears counter to the conventional wisdom that private provision of public goods is socially more efficient. But complexity makes a difference. Under standard models, development contracts for specialized software may be difficult to write and ownership rights do not necessarily elicit socially optimal effort. I consider three mechanisms that improve the likelihood that firms can obtain the software they need: pre-packaged software, Application Program Interfaces (APIs) and Free/Open Source software (FOSS). I show that with complex software, some firms will choose to participate in FOSS over both "make or buy" and this increases social …

The Obstacles In Women's Pathway To Principalship, Mahshid Pirouznia

Theses: Doctorates and Masters

The research problem is to investigate the obstacles of women seeking the principalship in public education; and also to explore major changes of different obstacles to women's principalship because women's roles have changed over time. Different obstacles in women's pathway to principalship are: low self-image; lack of encouragement; myths about women's work; sex stereotyping; lack of aspiration; role conflict; low self-esteem; family responsibilities; lack of mobility; and hiring and promoting practices. The research questions are: 1. what are the barriers for women who did not obtain a principalship or assistant principalship. 2. what are the barriers for women who obtained …

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

China’S Legal Battles In The Wto, Henry S. Gao

Research Collection Yong Pung How School Of Law

For many observers, a major practical question raised by China’saccession to the WTO is the following: Can the DSScopewithChina? On the one hand, there is alegalistic rule-based disputesettlement system, which has been regarded by some aS the“crown-jewel of the WTO” as well as “the most important

Interview With Michael Leathes, Nadja Alexander

Research Collection Yong Pung How School Of Law

Alexander: Can you describe your professional role and how it relates to international mediation?Leathes: I have been an in-house counsel for most of my 36-year career, including general counsel of Pfizer International and of International Distillers & Vintners and general manager of BAT’s intellectual propertycompany. In all these roles I have been responsible for litigation portfolios internationally—in total, thousands of cases. Before I figured out a better way, I’m certain that I must have been responsible for about as many losses as wins. Then, in the late 80s, I discovered mediation…A: And what happened?L: Together with the teams of people …

Expanding The Protection Of Geographical Indications Of Origin Under Trips: Old Debate Or New Opportunity, Irene Calboli

Research Collection Yong Pung How School Of Law

Geographical indications of origin (GIs), their definition, and rationale for protection have historically been the subjects of heated debates in the international community. Fierce defenders of GIs protection, European countries have traditionally advocated that GIs should not be used by unrelated parties because GIs identify the unique qualities, characteristics, and reputation of the products to which they are affixed. To this claim, the United States and other "new world" countries have generally responded by pointing out that many GIs are generic terms on their soil, and, thus, consumers could not be confused as to the origin of the products identified …

Mediating In The Shadow Of Australian Law: Structural Influences On Adr, Nadja Alexander

Research Collection Yong Pung How School Of Law

Mediation has grown rapidly in many Anglophone jurisdictions such as USA, Australia, Canada, New Zealand and England. The current state of mediation practice in many of these jurisdictions can be traced back to the establishment of community justice centres in the 1970s and 1980s. Mediation is practised in the private sector as well as in a wide range of court-referred programs. In many common law jurisdictions mediation is no longer a form of alternative dispute resolution, it has become primary dispute resolution.

Numerus Clausus: An Economic Perspective, Wei Zhang

Research Collection Yong Pung How School Of Law

Numerus clausus refers to the principle that both the form and the substance of a property right shall be prescribed by the law, which essentially restricts the freedom to “customize” the legally enforceable property interests.2 It has long been regarded as a basic principle in Civil Law countries, while the recent studies of U.S. scholars suggest that its essence exists in the Anglo-American law as well.

Comments On Stealth Marketing And Editorial Integrity, R. Polk Wagner

All Faculty Scholarship

No abstract provided.

Of Takeovers, Foreign Investment And Human Rights: Unpacking The Noranda-Minmetals Conundrum, Aaron A. Dhir

Articles & Book Chapters

In September 2004 Toronto-based Noranda Inc., one of the world's largest producers of nickel and copper, and China Minmetals Corp., a state-owned Chinese company, announced exclusive talks regarding a potential 100 percent buy-out of Noranda. The proposed friendly takeover was expected to be valued at approximately $7.4 billion USD. The dynamic shifted, however, in mid-November when Noranda announced that the exclusivity period for negotiations had expired and would not be renewed. In early March 2005 Noranda expressed frustration at the continuing lengthy process, which was depressing its share value. At the time, Noranda owned 59 percent of leading Canadian nickel …

Mexican Law, Michael W. Gordon

UF Law Faculty Publications

The Herget-Camil book remained the sole overview of the Mexican legal system for two decades. In 1998, Professor Jorge A. Vargas of the University of San Diego began his series of volumes on Mexican Law: A Treatise for Legal Practitioners and International Investors, published by West. That series has proven to be very successful, serving well its intended audience — foreigners (non-Mexicans) engaging in transactions with Mexico. However, it was not intended to be an introduction to the Mexican legal system with regard to its history, culture, institutions, actors, procedure, rules or sources of law.

Now the gap is …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

Articles

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …

Giving Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The interdisciplinarity of intellectual property and taxation poses many challenges to the disparate existing norms in each respective field of law. This Article identifies and critiques the current tax regime governing the giving of intellectual property as a manifestation of the failure to understand the principles and policies underlying intellectual property and the firm. It proposes an economic, incentives-based system that would encourage firms to extricate part of their repository of residual rights by surrendering their monopolistic ownership of intellectual property for the benefit of charitable organizations and, in turn, the development and growth of society.

Confronting Barriers To The Courtroom For Animal Advocates: Legal Standing For Animals And Advocates, David Cassuto, Jonathan Lovvorn, Katherine Meyer, Joyce Tischler

Animal Law Review

Panelists: David Cassuto, Jonathan Lovvorn, and Katherine Meyer

Moderator: Joyce Tischler

For animal advocates, one of the most significant barriers to the courtroom is standing. In order to litigate on behalf of an animal’s interests in federal court, the advocate must first establish standing by meeting three requirements: (1) the plaintiff must have suffered an injury in fact, (2) the injury must be causally connected to the act about which the plaintiff is complaining, and (3) the court must be able to redress the injury. When it comes to non-human animals, how does an advocate demonstrate an injury to establish …

Confronting Barriers To The Courtroom For Animal Advocates: Animal Advocacy And Causes Of Action, Carter Dillard, David Favre, Eric Glitzenstein, Mariann Sullivan, Sonia Waisman, Leonard Egert

Animal Law Review

Panelists: Carter Dillard, David Favre, Eric Glitzenstein, Mariann Sullivan, and Sonia Waisman

Moderator: Leonard Egert

In the third panel of the NYU Symposium, distinguished animal law professionals discuss various causes of action which may be used on behalf of animals in the courtroom. Panelists talk about traditional forms of standing, make suggestions for innovation using existing laws, and discuss visions of how they would like to see the law develop as it pertains to standing for animals.

The Need For A Reduced Workweek In The United States, Vicki Schultz, Allison K. Hoffman

All Faculty Scholarship

This paper argues that a reduced workweek offers a way to alleviate work-family conflict without exacerbating the sex-based division of labor in paid work and unpaid family work. We distinguish our position from two other approaches: (1) one that compensates unpaid family work directly (through such policies as traditional welfare provision, or alimony), policies we argue can discourage women from labor force attachment and contribute to sex-stereotyping and sex-segregated employment; and (2) an approach that spurs employers to accommodate workers' family responsibilities (through such policies as part-time work for parents), policies workers often avoid out of a well founded fear …

Legitimating Global Trade Governance: Constitutional And Legal Pluralist Approaches, Ruth Buchanan

Articles & Book Chapters

This article will take up the conversation about legal pluralism in the context of debates over transnational governance, where legal pluralism has of late attracted considerable attention. Legal pluralism has its roots in legal sociology and anthropology, and particularly in the study of the co-existence of non-state, customary law or community norms with formal law. In the transnational context, this original focus is expanded to include the coexistence, within a particular territory, of multiple normative regimes, local, national and international. What is important to note, however, is that in this shift the conceptual orientation of the term remains the same: …

Dilution, Clarisa Long

Faculty Scholarship

Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement …

Who Are "Clients"? (And Why It Matters), Allan C. Hutchinson

Articles & Book Chapters

Although the lawyer-client relationship is fundamental to the lawyer’s ethical and legal role, there has been little close attention paid to defining exactly who “clients” are. This article explores the shifting and multi-dimensional nature of the lawyer-client relationship. Consistent with the aspirational and pragmatic function of law and practice that underlies legal ethics and professional responsibility, the article argues there is no ideal taxonomy for categorizing “clients” and the obligations owed them. The identity of a client is neither fast nor fixed, and lawyers are subject to a spectrum of differing ethical duties and legal obligations that can vary in …

The Metamorphosis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

Re-Framing The Sharia Arbitration Debate, Trevor C. W. Farrow

Articles & Book Chapters

This article is a response to Mr. McGuinty regarding his response to religious arbitration in the province of Ontario. First, the issue is not about simply prohibiting religious tribunals. Second, it is not only an Ontario issue. Third, it is not necessarily even a Sharia (or religion) issue. This article focuses on these three problems.

Poverty, Agency And Resistance In The Future Of International Law: An African Perspective, Obiora Chinedu Okafor

Articles & Book Chapters

This article enquires into the likely posture of future international law with respect to African peoples. It does so by focusing on three of the most important issues that have defined, and are likely to continue to define, international law’s engagement with Africans. These are: the grinding poverty in which most Africans live, the question of agency in their historical search for dignity, and the extent to which these African peoples can effectively resist externally imposed frameworks and measures that have negative effects on their social, economic and political experience. International law’s future posture in these respects is considered through …

The Civilised Self And The Barbaric Other: Imperial Delusions Of Order And The Challenges Of Human Security, Ikechi Mgbeoji

Articles & Book Chapters

In the aftermath of the military conflicts of 1936 - 45, there seemed to be a global renunciation of war as an instrument of state policy. Shortly thereafter, however, decades of ideological attrition between the major powers and the inherent perversion of postcolonial states reduced the solemn declarations of 1945 to ineffectual rhetoric. Underpinning the decline and demise of a human-centred approach to global peace and security is the enduring notion of the civilised self and the barbaric other. The polarisation of humanity between camps of the savage and the civilised has continued to animate international policy making despite denials. …

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships.

However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can …

Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard Harcourt, Jens Ludwig

Faculty Scholarship

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States – New York, Chicago, and, most recently, Los Angeles – have all adopted at least some aspect of Wilson and Kelling's theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime.

According to a recent National Research Council report, existing research does not provide …

Domesticating The Exotic Species: International Biodiversity Law In Canada, Natasha Affolder

All Faculty Publications

While a significant body of international and regional agreements now addresses habitat preservation, wildlife protection, and biological diversity, these advances on the international level often fail to be effectively translated into domestic law. In this article, the author argues that international biodiversity law is being treated in Canada as "exotic". It is peppered into parties' submissions without a principled explanation of its role in Canadian law, receives little consideration from the courts, and must ultimately rely on non-legal means of enforcement. The author examines the jurisprudence dealing with four major biodiversity treaties. She notes that the judicial treatment of these …

Domestic Partnerships, Implied Contracts, And Law Reform, Elizabeth S. Scott

Faculty Scholarship

The domestic partnership chapter of the Principles is the shortest chapter, but, as the contributions to this volume suggest, among the most interesting to many people. The legal regulation of informal intimate unions generally and particularly the Principles' approach of creating a status that carries the legal rights and obligations of marriage between cohabiting parties have generated considerable debate. In some quarters, the domestic partnership provisions are admired as an effective mechanism to protect dependent partners in marriage-like unions who otherwise may be unable to establish claims to property and support when their relationships end. Others praise the Principles for …

Turning Jails Into Prisons—Collateral Damage From Kentucky's War On Crime, Robert G. Lawson

Law Faculty Scholarly Articles

The primary purpose of this article is to scrutinize Kentucky's ever-increasing reliance on local jails for the incarceration of state prisoners. This objective cannot be achieved without an examination of the problems that compel counties and cities to allow (and even encourage) the state to capture their jails for this use. The first half of the article (Parts I-IV) provides general information about jails (including some pertinent history), contains a detailed description of jail functions (including some that have descended upon jails by default), and concludes with a discussion of what the state has done over two decades to convert …