Law Commons^™

Legal Protections For Environmental Migrants: Expanding Possibilities And Redefining Success, Jayesh Rathod

Working Papers

This working paper describes international and domestic efforts to enact legal protections for environmental migrants, with attention to Latin America, and examines why efforts to craft a comprehensive international instrument to address this phenomenon have yet to succeed. It details factors contributing to this impasse, including: the lack of an existing framework; the inherent complexity and variability of environmental migration; the trend towards restrictive migration policies; and the lack of a clear institutional leader at the international level. Citing the limits of an exclusive focus on the creation of a new international instrument, the paper also points to the need …

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul Gugliuzza

Working Papers

Imagine the following advertisement popping up on Craigslist: "FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of!"That probably seems bizarre. Still — and startlingly — it accurately portrays what’s happening right now in the Western District of Texas. One judge, appointed to the court less than …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.

Working Papers

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Wipo Conversation On Intellectual Property (Ip) And Artificial Intelligence (Ai), Sean Flynn

Working Papers

No abstract provided.

The User Rights Database: Measuring The Impact Of Copyright Balance, Sean Flynn, Michael Palmedo

Working Papers

International and domestic copyright law reform around the world is increasingly focused on how copyright user rights should be expanded to promote maximum creativity and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We developed such a tool, which we call the “User Rights Database.” …

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, …

Taming The Mongrel: Aligning Appellate Review Of Claim Construction With Its Evidentiary Character In Teva V. Sandoz, Jonas Anderson, Peter Menell, Arti Rai

Working Papers

In its seminal Markman decision, the Supreme Court sought to usher in a more effective, transparent patent litigation regime through its ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In the aftermath of this decision, the Federal Circuit adhered to its prior holding that claim construction is a “purely legal issue” subject to plenary de novo review, downplaying the Supreme Court’s more nuanced description of claim construction as a “mongrel practice” merely “within the province of the court.” Over nearly two decades of experience in the …

The Role Of The Ombuds In A Knowledge-Intensive Corporation: A Partner For Conflict Prevention And Mitigation, David P. Clark

Working Papers

No abstract provided.

Rethinking Rand: Sdo-Based Approaches To Patent Licensing Commitments, Jorge Contreras

Working Papers

So-called “reasonable and nondiscriminatory” (RAND) licensing commitments have been utilized by standards-development organizations (SDOs) for years in an attempt to alleviate the risk of patent hold-up in standard-setting. These commitments, however, have proven to be vague and offer few assurances to product vendors or patent holders. A recent surge of international litigation concerning RAND commitments has brought this issue to the attention of regulators, industry and the public, and many agree that a better approach is needed. In this paper, I identify seven “first principles” that underlie the licensing and enforcement of standards-essential patents (SEP)s. These can be summarized as …

How Well Does The G20 Reflect African Interests And Priorities?: Some Thoughts Following The Los Cabos, Mexico Summit, Daniel Bradlow

Working Papers

The leaders of the G20 countries have now held seven summits -- enough to begin critically evaluating how well the G20 serves the interest of specific sub-parts of the international community. The purpose of this paper is to assess how well the G20 responds to African interests. It is divided into three parts. The first is a brief description of the most recent summit, held on June 18-19, 2012 in Los Cabos, Mexico. The second part is a brief discussion of the criteria that will be used in this evaluation. The third part is an assessment of the G20 against …

Open Access Scientific Publishing And The Developing World, Jorge Contreras

Working Papers

Responding to rapid and steep increases in the cost of scientific journals, a growing number of scholars and librarians have advocated “open access” (OA) to the scientific literature. OA publishing models are having a significant impact on the dissemination of scientific information. Despite the success of these initiatives, their impact on researchers in the developing world is uncertain. This article analyses major OA approaches adopted in the industrialized world (so-called Green OA, Gold OA, and OA mandates, as well as non-OA information philanthropy) as they relate to the consumption and production of research in the developing world. The article concludes …

Standards And Related Intellectual Property Issues For Climate Change Technology, Jorge Contreras

Working Papers

Almost every product sold today must conform to standards, whether relating to its design, manufacture, operation, testing, safety, sale or disposal, and sometimes to many of these at once. At their root, standards are no more than written requirements or design features of a product, service or other activity. They can be breathtakingly detailed or disarmingly general, ranging from thousands of pages in length to just a few sentences. Standards are set by a wide range of bodies, from governmental agencies to industry consortia to multinational treaty organizations. Some standards are adopted into local, state or federal legislation and attain …

Reclaiming Global Environmental Leadership: Why The United States Should Ratify Ten Pending Environmental Treaties, Mary Jane Angelo, Rebecca M. Bratspies, David Hunter, John H. Knox, Noah Sachs, Sandra B. Zellmer

Working Papers

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. In the last two decades, however, U.S. environmental leadership has faltered. The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only shortfall. The United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. This white …

The Evolution Of Operational Policies And Procedures At International Financial Institutions: Normative Significance And Enforcement Potential, Daniel Bradlow, Andria Naude Fourie

Working Papers

The exact contours of international organizations’ (IO) responsibility have not yet been clearly defined. While IOs – and international financial institutions (IFIs) in particular – have in the past avoided drawing those contours in more certain terms, this position is slowly changing: IFIs have been changing expectations about their standards of conduct, as reflected in their evolving operational policies and procedures (OP&P). This report provides an overview of the content, formulation, adoption, amendment and enforcement of OP&P at multilateral development banks (MDB) (a subset of IFIs). It highlights the impact of three developments that are strengthening the normative significance and …

Catalyzing Technology Development Through University Research, Jorge Contreras, Charles R. Mcmanis

Working Papers

Research universities have traditionally been catalysts for technological innovation, particularly in new and emerging industries. Against this backdrop, it is not surprising that some of the most promising new technologies relating to climate change are being developed at research universities. In this chapter, we first summarize several modes of university technology development and licensing. Next we describe the evolution of university technology commercialization and the Bayh-Dole Act of 198'8 which is widely credited with establishing the intellectual property structure of current university licensing and technology transfer. We then discuss some important legal and intellectual property considerations relevant to the development, …

Reforming Global Economic Governance: A Strategy For Middle Powers In The G20, Daniel D. Bradlow

Working Papers

In this paper I argue that middle powers that are members of the G20 can extract substantial benefit from their participation in the G20 if they have both a clear long term vision of global economic governance and a plan of action that is based on obtainable short term objectives. In the article I address four issues. The first is that the institutional arrangements for global economic governance will remain unstable until the current process of changes in the balance of global political and economic power plays itself out. The second is that, given the changing international power dynamics, the …

A Brief Reflection On The Stages Of The Clinical Year: Group Process With Existentialist Roots, Richard J. Wilson

Working Papers

This short article focuses on "units," or stages of group process, part of my shared experience in law teaching and in adult education at St. Mark’s Church, Capitol Hill, Washington, DC. The article explores the context of the functional education program of church teaching and its common elements with clinical law teaching. The unit structure from church teaching translates well, I conclude, into the structure of clinical legal education.

Clinical Legal Education In Dutch Legal Culture: Clashes Of Tradition, Tolerance, And Progress In Global Law's Capital, Richard J. Wilson

Working Papers

This paper examines the current context of legal education within Dutch legal culture as a case study focusing on the growing role of clinical legal education in the Netherlands, a progressive country in Western Europe, where traditional legal education has held sway for centuries. The Dutch experience with clinical legal education, though limited, is expanding even as the traditional apprenticeship phase of law training there is undergoing major reform, responsive to the growth of "big law." These reforms are largely attributable to a history of innovation and openness in Dutch legal culture, one dimension of which is the general acknowledgment …

Peer-To –Peer Financing For Development: Regulating The Intermediaries, Anna Gelpern

Working Papers

Private actors channel capital to inhabitants of developing countries through a growing variety of intermediaries. Some of those intermediaries operate much like conventional charities, some operate more like for-profit financial institutions, yet others combine features of these models. The last category is growing fast. It also holds the promise of integrating foreign aid and private development finance to bring diversification opportunities for investors, new funding for development, and creative ways to improve development outcomes. Considering the potential reach of such hybrid finance, determining the appropriate regulatory framework for it is an important challenge, which joins policy debates about regulating financial …

The Role Of Practice In Legal Education, Richard J. Wilson

Working Papers

This document is one of several general reports presented at the 18th International Congress on Comparative Law, held in Washington, DC in July 2010. The report covers the topic of The Role of Practice in Legal Education, and includes the text of the general report, as well as the original questionnaire to national reporters and two charts, one on general law school organization and one on how practice is taught in the legal academy. The report synthesizes information received from the reporting countries - Australia, Belgium, Canada (Quebec Province), Czech Republic, England and Wales, France, Germany, Greece, Hungary, Ireland, Italy, …

Reconciliation Financing: An Innovative Approach To Poverty, Inequality, And Social Conflict, Daniel D. Bradlow

Working Papers

This paper focuses on the problem of addressing historical injustices and raising finance for small scale revenue generating projects that benefit those victims of these past injustices who still lack access to jobs, services and opportunities. These projects always experience funding problems. They are considered both "too rich" for grant funding because they generate a stream of revenues but "too poor" for commercial funding because either they are too small or they generate an insufficient income stream to be attractive to commercial funders. In proposing a debt-based solution to these funding problems, the paper proposes 3 principles of "reconciliation financing".

Langston Hughes: The Ethics Of Melancholy Citizenship, Robert L. Tsai

Working Papers

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward political renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how …

'From Savigny Through Sir Henry Maine': Roscoe Pound’S Flawed Portrait Of James Coolidge Carter’S Historical Jurisprudence, Lewis A. Grossman

Working Papers

In Roscoe Pound's scathing 1909 review of Law: Its Origin, Growth and Function, American jurist James Coolidge Carter's magnum opus, Pound asserted that Carter's conception of law "comes from Savigny through Sir Henry Maine." Frederich Karl von Savigny and Sir Henry Maine were the most prominent representatives of the German and English historical schools of jurisprudence, respectively. For his part, Carter was the leading representative of historical jurisprudence in the United States.

Other scholars, following Pound, have similarly linked Carter to Savigny and Maine, especially to the former. Moreover, various authors have noted the great effect these European jurists had …

Targeted Killing In U.S. Counterterrorism Strategy And Law, Kenneth Anderson

Working Papers

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for …

Reforming The Global Financial Architecture: Is Real Change Coming?, Daniel Bradlow

Working Papers

This article evaluates the prospects for meaningful reform of the global financial architecture. It begins by looking at the most significant problems with the current architecture. Thereafter it classifies the current reform efforts into three areas -- reforms that in fact have been implemented, reforms that have been proposed but not yet implemented, and reforms that are only under discussion. The paper then evaluates the adequacy of these reform efforts and makes some brief proposals for future reform efforts.

The G20 And Sustainable Imf Reform, Daniel D. Bradlow

Working Papers

This article explores the problems with the current arrangements for international financial governance and the prospects for the IMF being sufficiently reformed to play an effective role in future arrangements for international financial governance. It proposes that the G20 initiate a multi-step process of reform.

Developing Country Debt Crises, International Financial Institutions, And International Law: Some Preliminary Thoughts, Daniel Bradlow

Working Papers

While the question of how effectively the IFIs have performed their international economic, financial, social, environmental and developmental responsibilities in their work with these debtor countries has been extensively analyzed and debated, their compliance with their applicable international legal obligations has been less examined. The IFIs' responsibility in this regard, is based on their mandates, as defined in their Articles of Agreements, and general principles of customary international law. Their customary international legal obligations include upholding such principles as pacta sunt servanda and rebus sic stantibus and respecting the sovereignty of their member states. The thesis of this paper is …

A Long, Strange Trip: Guantanamo And The Scarcity Of International Law, Richard J. Wilson

Working Papers

From June of 2004, through June of 2007, I represented Omar Khadr, a detainee at Guantanamo Bay, Cuba. Omar, a Canadian citizen, was 15 years old when captured, and he was - and is - one of the very few detainees facing trial by a military commission. President Obama's decision to close Guantanamo and to put the commission trials on hold leaves us all with questions as to what will happen. This reflection was written in 2007, just about when I stopped representing Omar. The lower federal courts have not, in my view, used international law in any meaningful way …

Materials For A 4-Part On-Line Course On Global Financial Governance Offered By United Nations Institute On Training And Research (Unitar), Daniel Bradlow

Working Papers

This is the material for a 4-part on-line course on global financial governance offered by the United Nations Institute for Training and Research (UNITAR). The course, which is offered over 4 weeks, is designed to help participants understand international financial governance and the challenges that it faces. Second, it seeks to aid participants in assessing both the impact the current arrangements for international financial governance have on their countries and regions and the options they may have in responding to the challenges this creates for them. The first module provides a general framework for understanding international financial governance. The second …

Charting A Progressive International Financial Agenda, Daniel Bradlow

Working Papers

This paper argues that the current financial crisis offers the best opportunity for progressive reform in international financial governance in many years. It cautions that developing countries and civil society will only be able to fully exploit this opportunity if they are well prepared and realistic in their expectations. It concludes with a set of recommendations on what reforms developing countries and civil society should promote in the current negotiations about international financial governance.