Law Commons^™

Help The People Help The Governments Help The Planet: Using Markets To Meet The Goals Of The Paris Agreement, Rachel Braby

San Diego International Law Journal

The urgency of the climate challenge requires that we address it in every way we can. Yet, current domestic regulations are insufficient to rise to the occasion, and there appears to be no plan geared toward harnessing the power of collective consumer action to supplement government efforts and push industries in the private sector to engage in greener practices. A majority of developed nations have mixed market-driven economies, and in such economies, consumers have immense power to drive change. Paris Agreement nations with mixed market-driven economies should incorporate a strategic plan in their next NDCs that “represent[s] a progression” beyond …

Saving Genus Claims For Antibody Patents: What We Can Learn From The Foreign Jurisdictions, Ningxi Sun

San Diego International Law Journal

In the United States, therapeutic antibodies play a key role in the innovations for life-saving therapies. Genus claims—broad claims that cover a group of related species – are widely used in antibody patents, allowing the patentee to obtain broad protection of their inventions. However, a recent line of Federal Circuit decisions has created a higher bar to obtaining patent protection for antibodies. Specifically, it is now nearly impossible to maintain an antibody genus claim. Noteworthy, the United States’ treatment for antibody claims is diverging from other major jurisdictions in the world.

This Article argues the Supreme Court and Congress should …

Protecting The Promise To The Families Of Tuskegee: Banning The Use Of Persuasive Ai In Obtaining Informed Consent For Commercial Drug Trials, Jennifer S. Bard

San Diego Law Review

This is the first article to call for a ban on the use of AI technology designed to influence human decision-making, “Persuasive AI,” for the purpose of recruiting or enrolling human participants in drug trials sponsored by commercial entities. It does so from a perspective of precaution, not fear. Advances in Artificial Technology that can assist human decision-making have tremendous potential for good. It makes the case for doing so based on both the substantial risk of harm to the decision-making process and the ineffectiveness of intermediate regulatory measures. This Article looks directly at Persuasive AI, a type of AI …

The Right To Data Encryption, Steven W. Schlesinger, Dr. Shlomit Yanisky-Ravid

San Diego Law Review

Technology drives our society, and we are data-dependent as a people. Though the legal system in the United States lacks neither basic protections nor methods to address data protection-related issues, this Article proposes an essential and more robust alternative.

This Article introduces the prevalence and reliance on data and stored information, noting the growing need for a better balance between enabling users’ ability to access encryption tools and the threats and concerns from a governmental perspective for malicious use of encryption tools for criminal and terror purposes.

The Article first recounts a brief history of encryption, focusing on its growing …

Deportations For Drug Convictions In The United States And The European Union: Creating A More Compassionate Approach Toward Drug Convictions In The Immigration Law, Megan Smith

San Diego International Law Journal

This Comment begins by examining and comparing the legal framework for deportation and other immigration consequences for convictions of drug offenses in the United States, the European Union, and the United Kingdom. This Comment then looks at the harsh effects of current immigration policy on individuals and marginalized communities. Finally, this Comment argues that immigration law should be reformed to adopt a more humanitarian approach toward non-citizens convicted of drug offenses. Deportation and other harsh immigration consequences for drug offenses levy disproportionately severe punishments toward vulnerable minority immigrant communities, exposing them to consequences much harsher than non-immigrants would face for …

K-Pop’S Secret Weapon: South Korea’S Criminal Defamation Laws, Rebecca Xu

San Diego International Law Journal

South Korea’s criminal defamation laws have long been considered an intrusion on the free speech rights of citizens, especially in regard to the usage by politicians against their opponents and journalists to suppress criticisms. This Comment considers the history and effects of these controversial defamation laws through the lens of recent scandals within the Korean entertainment industry, where regular citizens accusing Korean celebrities of past school violence are confronted with threats of defamation charges. To highlight the controversial nature of such laws, comparisons will be drawn between South Korea and other countries to highlight the restrictive nature of Korea’s laws.

Net Neutrality, Antitrust, And Startups In The European Union, Megan Sacher

San Diego International Law Journal

The problem of internet traffic has now entered the personal sphere for individual users, and has gained attention in popular culture and politics. This was inevitable: from fitness tracking, to sending emails, automated surgeries, social media, and everything in between, more and more is happening on the internet. There are so many people using the internet that controlling the traffic and maintaining manageable speeds for users has become a real problem…For years, the European Union and the United States have found themselves in an uphill battle to maintain the open nature of the Internet, or as it was coined in …

Legal Responses To The European Union’S Migration Crisis, Graham Butler

San Diego International Law Journal

The European Union (“EU”) imposes on itself its own constraints in which it performs as an external actor, and yet, there is little acknowledgment of this imposed constraint. It is the post-2015 migration crisis, an unexpected occurrence, which has brought the fields of EU external relation law and EU migration law together. Europe’s external border, on both land and sea, has tightened through legal acts of non-traditional nature, namely, the resort to securitisation and militarisation. Challenges, such as mass irregular migration, require more than just individual responses from a few selected Member States that are directly affected by the issue. …

A Comparison Of The Jurisprudence Of The Ecj And Efta Court On The Free Movement Of Good In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfue And Article 11 Of The Eea?, Jarrod Tudor

San Diego International Law Journal

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

Drawing The Line Between Competing Interests: Strengthening Online Data Privacy Protection In An Increasingly Networked World, Lori Chiu

San Diego International Law Journal

This article seeks to elucidate these issues and provide a roadmap for the U.S. government to create unified federal laws to provide the private sector with specific protocols regarding use and dissemination of consumer personal information. First, this article will provide an explanation of the U.S.’s current sector-by-sector approach to regulating personally identifying information and will provide a case study of the Federal Trade Commission’s (“FTC”) enforcement action against a social networking site in 2011 as one example of the FTC’s recent efforts at regulating online privacy. Next, this article will analyze the U.S.’s current challenge of judicial enforcement of …

Basel Iii And Credit Risk Measurement: Variations Among G20 Countries, Matt Schlickenmaier

San Diego International Law Journal

Most countries require banks to hold extra capital to protect against unforeseen financial calamities; banks with riskier loans must hold more capital than those with safer loans. Basel II, a set of international banking standards, allows banks to measure a loan’s risk in different ways: some banks make their own judgments; others use outside agencies. The recent mortgage crisis prompted banks to reevaluate these methods, in part due to banks having failed to perceive the high level of risk inherent in securitized mortgages. The international community’s response was Basel III, an updated version of its previous standards. This Comment will …

The European Neighborhood Policy And Its Impact On The Israel - European Union - United States Triangle, Guy Harpaz

San Diego International Law Journal

This Article is not intended to deal with the feasibility of successfully implementing the [European Neighbourhood Policy] ENP, nor does it address its normative aspects from the European perspective. Instead, this article assumes that the parties will successfully implement the ENP, and on the basis of that assumption, attempts to provide a first, critical and interdisciplinary examination of the potentially significant impact of the ENP on the legal, economic, social, and trade landscape of the State of Israel, her citizens, economy, and on her relations with the EU and the United States.

The Creation Of International Commercial Law: Sovereignty Felled, Sandeep Gopalan

San Diego International Law Journal

The creation of international commercial law presents an interesting paradox for proponents of sovereignty in international law. Indeed, it could be argued that the creation of international commercial law is the vanishing point of sovereignty in that nation states are becoming increasingly less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the consequent need for international commercial law. The term "harmonization" will be used as a surrogate to discuss the creation of international commercial law, as it is the …

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.

Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp

San Diego International Law Journal

In tackling the issue of sexual orientation discrimination, the European Union must make significant efforts to conform or, perhaps, eradicate incongruous legislation within Applicant Countries. The difficulty of this endeavor is two-fold: first, in terms of the number and complexity of the laws of each Applicant Country; and, second, in the absence of any detailed and systematic documentation of sexual orientation discrimination within those same Applicant Countries. Compounding, if not confounding, such legitimate endeavors are the inconsistent anti-gay legislation prevalent within the present Member States. The stakes are high for Member States and Applicant Countries alike. Thus, the European Union's …

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …