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Indigenous Legal Traditions In Canada, John Borrows Jan 2005

Indigenous Legal Traditions In Canada, John Borrows

Washington University Journal of Law & Policy

Canada is a juridically pluralistic state, and draws on many sources of law to sustain order throughout the land. While civil and common law traditions are generally recognized nationwide, this is not always the case with indigenous legal traditions. Yet, indigenous legal traditions can have great force and impact in people’s lives despite their lack of prominence in broader circles. Indigenous legal traditions are a reality within Canada and should be more effectively recognized as such.


Answering The Call: Public Interest Intellectual Property Advisors, Michael A. Gollin Jan 2005

Answering The Call: Public Interest Intellectual Property Advisors, Michael A. Gollin

Washington University Journal of Law & Policy

Most developing countries do not have access to qualified intellectual property professionals who are willing and able to help them address the myriad issues they now face. Rather, most of the participants on the global and national stage have been economists, academics, anthropologists, scientists, and policy specialists, but not intellectual property professionals. In response to this need, in 2002, an international association of concerned individuals, including the author of this Essay, decided to establish a new public interest organization. The new organization was named Public Interest Intellectual Property Advisors (PIIPA), and was incorporated as a non-profit, tax-exempt global pro bono ...


Introduction: Contemporary And Comparative Perspectives On The Rights Of Indigenous Peoples, Steven J. Gunn Jan 2005

Introduction: Contemporary And Comparative Perspectives On The Rights Of Indigenous Peoples, Steven J. Gunn

Washington University Journal of Law & Policy

No abstract provided.


The New Challenge To Native Identity: An Essay On “Indigeneity” And “Whiteness”, Rebecca Tsosie Jan 2005

The New Challenge To Native Identity: An Essay On “Indigeneity” And “Whiteness”, Rebecca Tsosie

Washington University Journal of Law & Policy

This Essay builds upon Cheryl Harris’s claim that “whiteness” is a form of “property” and suggests that the current challenges to Native “indigeneity” to the racial and cultural identity of Native peoples in recent years through various “special” legal rights. This Essay suggests that, with respect to indigenous peoples, the discourse of “whiteness” requires analysis within a global, as well as national context. This Essay examines four areas within which there is an active debate over “indigenous status”: political rights under international human rights law; cultural rights under international human rights law; rights to land and to ancestral human ...


Testing Whiteness: No Child Or No School Left Behind?, Helen A. Moore Jan 2005

Testing Whiteness: No Child Or No School Left Behind?, Helen A. Moore

Washington University Journal of Law & Policy

Omi and Winant argue that racial formation is a “fundamental organizing principle” for all macro-social relationships, including schooling in the United States. At micro-levels, we interact with others in a variety of social and educational settings, including the conditions under which we, or our students or children, take tests, and how we use those tests to shape individual educational opportunities. At the macro-level of collectivity, Omi and Winant encourage us to understand the complex relationships of whiteness to economic, cultural and ideological structures. Today, the category of “whiteness” itself is an unstable and “decentered” complex set of social meanings constantly ...


Liberty And The Rule Of Law After September 11, Viet D. Dinh Jan 2005

Liberty And The Rule Of Law After September 11, Viet D. Dinh

Washington University Journal of Law & Policy

The topic of this paper is liberty and the rule of law in a post- 9/11 society. Their relationship is frequently presented as a trade-off, as if somehow liberty must yield in order to preserve national security at a time when we feel insecure as a nation and unsafe as people.

At the core of this conversation are the essential questions: What does one mean by liberty? What does one mean by security?


‘Att Hascu ‘Am O ‘I-Oi? What Direction Should We Take?: The Desert People's Approach To The Militarization Of The Border, Eileen Luna-Firebaugh Jan 2005

‘Att Hascu ‘Am O ‘I-Oi? What Direction Should We Take?: The Desert People's Approach To The Militarization Of The Border, Eileen Luna-Firebaugh

Washington University Journal of Law & Policy

Tohono O’odham means the people of the desert. For the Tohono O’odham, the Sonoran desert is their jewedga, their homeland. It is here that they have lived in peace from time immemorial, where their sacred places are located, where their crops are grown and plants collected, where their people are born and pass away. When the Treaty of Guadalupe-Hidalgo was made, and later when the Gadsden Purchase occurred, the O’odham remained the O’odham, whether born in Mexico or in the United States. But in recent years war has come to the O’odham, not of their ...


Across The Apocalypse On Horseback: Imperfect Legal Responses To Biodiversity Loss, Jim Chen Jan 2005

Across The Apocalypse On Horseback: Imperfect Legal Responses To Biodiversity Loss, Jim Chen

Washington University Journal of Law & Policy

Life on Earth overcomes mass extinction events on a temporal scale spanning millions of years. By this measure, “the loss of genetic and species diversity” is probably the contemporary crisis “our descendants [will] most regret” and “are least likely to forgive.” Biodiversity loss is the “scientific problem of greate[st] immediate importance for humanity.” If indeed biodiversity loss has reached apocalyptic proportions, it is fitting to describe the engines of extinction in equine terms. Jared Diamond characterizes the deadly horsemen of the ecological apocalypse as an “Evil Quartet” consisting of habitat destruction, overkill, introduced species, and secondary extinctions. Edward O ...


Protecting Traditional Agricultural Knowledge, Stephen B. Brush Jan 2005

Protecting Traditional Agricultural Knowledge, Stephen B. Brush

Washington University Journal of Law & Policy

Until the end of the last century, crop genetic resources were managed as public domain goods according to a set of practices loosely labeled as “common heritage.” The rise of intellectual property for plants, the commercialization of seed, the increasing use of genetic resources in crop breeding, and the declining availability of crop genetic resources have contributed to extensive revisions to the common heritage regime. Changes include specifying national ownership over genetic resources and use of contracts in the movement of resources between countries. This Essay explores the impact of these changes in cradle areas of crop domestication, evolution and ...


Predatory Pricing And Bundled Rebates: The Ramifications Of Lepage's Inc. V. 3m For Consumers, Roberto Ramirez Jan 2005

Predatory Pricing And Bundled Rebates: The Ramifications Of Lepage's Inc. V. 3m For Consumers, Roberto Ramirez

Washington University Journal of Law & Policy

No abstract provided.


Illinois' Affordable Housing Planning And Appeal Act: An Indirect Step In The Right Direction—A Survey Of Housing Appeals Statutes, Jennifer Devitt Jan 2005

Illinois' Affordable Housing Planning And Appeal Act: An Indirect Step In The Right Direction—A Survey Of Housing Appeals Statutes, Jennifer Devitt

Washington University Journal of Law & Policy

No abstract provided.


When God And Costco Battle For A City's Soul: Can The Religious Land Use And Institutionalized Persons Act Fairly Adjudicate Both Sides In Land Use Disputes?, Mark Spykerman Jan 2005

When God And Costco Battle For A City's Soul: Can The Religious Land Use And Institutionalized Persons Act Fairly Adjudicate Both Sides In Land Use Disputes?, Mark Spykerman

Washington University Journal of Law & Policy

No abstract provided.


Unconscious Parallelism: Constitutional Law In Canada And The United States, John C. Major Jan 2005

Unconscious Parallelism: Constitutional Law In Canada And The United States, John C. Major

Washington University Journal of Law & Policy

As neighbors, Canada and the United States share not only the border but essentially common values and beliefs. As well, the Supreme Court in each country is viewed as the ultimate protector of rights. This paper will outline some of our constitutional differences and use freedom of expression as an example of how we seem to arrive at an arguably satisfactory result by different means. There is a difference of opinion on the application of freedom of expression, yet each country considers it a basic and fundamental right. In part, the variance in approach is directly related to our citizen ...


How Quickly We Forget: The National Flood Insurance Program And Floodplain Development In Missouri, Beth Davidson Jan 2005

How Quickly We Forget: The National Flood Insurance Program And Floodplain Development In Missouri, Beth Davidson

Washington University Journal of Law & Policy

No abstract provided.


Introduction: Biodiversity, Biotechnology, And The Legal Protection Of Traditional Knowledge, Charles R. Mcmanis Jan 2005

Introduction: Biodiversity, Biotechnology, And The Legal Protection Of Traditional Knowledge, Charles R. Mcmanis

Washington University Journal of Law & Policy

This symposium volume is composed of five articles that were originally presented as papers at a conference, held at Washington University School of Law on April 4–6, 2003, on the general topic, “Biodiversity, Biotechnology, and the Legal Protection of Traditional Knowledge,” as well as a concluding article which discuss an important post-conference development at Washington University School of Law. Like the conference itself, these articles address the three general topics that are implicit in the title of the conference and this symposium volume.


Forced Feeding: New Legal Issues In The Biotechnology Policy Debate, Neil D. Hamilton Jan 2005

Forced Feeding: New Legal Issues In The Biotechnology Policy Debate, Neil D. Hamilton

Washington University Journal of Law & Policy

In the fall of 2000, I presented a paper, Legal Issues Shaping Society’s Acceptance of Biotechnology and Genetically Modified Organisms, at the American Agricultural Law Association annual meeting in St. Louis. The paper inventoried the legal and policy issues shaping America’s approach toward biotechnology and was designed to serve as a tool for understanding the ongoing debate. Thirty months have passed and the pace of consideration of issues relating to society’s acceptance of biotechnology has not slowed. Just as the article was being finished, the StarLink fiasco was beginning. That episode alone has provided the grist for ...


From The Shaman's Hut To The Patent Office: In Search Of A Trips-Consistent Requirement To Disclose The Origin Of Genetic Resources And Prior Informed Consent, Nuno Pires De Carvalho Jan 2005

From The Shaman's Hut To The Patent Office: In Search Of A Trips-Consistent Requirement To Disclose The Origin Of Genetic Resources And Prior Informed Consent, Nuno Pires De Carvalho

Washington University Journal of Law & Policy

The introduction in patent statutes of a requirement to disclose the origin of genetic resources and prior informed consent of the use of traditional knowledge in claimed inventions (hereinafter “the Requirement”) has been at the center of an international debate for the last few years. Many developing, biodiversity-rich countries consider that the Requirement is an essential component of a broader approach to patent law, which should be informed by considerations of economic development. At the other end of the spectrum, a few industrialized countries believe that the Requirement is not only incompatible with current international law, in particular the TRIPS ...


Answering The Call: The Intellectual Property & Business Formation Legal Clinic At Washington University, Charles R. Mcmanis Jan 2005

Answering The Call: The Intellectual Property & Business Formation Legal Clinic At Washington University, Charles R. Mcmanis

Washington University Journal of Law & Policy

The five articles in this symposium volume have focused on specific aspects of three broad issues: (1) biodiversity loss and what is to be done about it; (2) the national and international debates over the appropriate legal protection and regulation of agricultural biotechnology in view of its potential impact on the problem of biodiversity loss; and (3) the legal protection of traditional knowledge as a means of conserving and promoting sustainable use of biological diversity. As the last of these five articles, by Michael Gollin, points out, one of the principal obstacles in responding effectively to any of these international ...


Can The Television And Movie Industries Avoid The Copyright Battles Of The Recording Industry? Fair Use And Visual Works On The Internet, Katherine M. Lieb Jan 2005

Can The Television And Movie Industries Avoid The Copyright Battles Of The Recording Industry? Fair Use And Visual Works On The Internet, Katherine M. Lieb

Washington University Journal of Law & Policy

No abstract provided.


Prescription For Compromise: Maintaining Adequate Pharmacist Care Contraindicates Imposition Of A General Duty To Warn, Jaclyn Casey Jan 2005

Prescription For Compromise: Maintaining Adequate Pharmacist Care Contraindicates Imposition Of A General Duty To Warn, Jaclyn Casey

Washington University Journal of Law & Policy

No abstract provided.


Is Boutique Medicine A New Threat To American Health Care Or A Logical Way Of Revitalizing The Doctor-Patient Relationship?, Jennifer Russano Jan 2005

Is Boutique Medicine A New Threat To American Health Care Or A Logical Way Of Revitalizing The Doctor-Patient Relationship?, Jennifer Russano

Washington University Journal of Law & Policy

No abstract provided.


Foreword: Whiteness As Metaprivilege, Barbara J. Flagg Jan 2005

Foreword: Whiteness As Metaprivilege, Barbara J. Flagg

Washington University Journal of Law & Policy

Whiteness is a social location of power, privilege, and prestige. It is a “an invisible package of unearned assets.” As an epistemological stance, it sometimes is an exercise in denial. Whiteness is an identity, a culture, and an often colonizing way of life that is largely invisible to Whites, though rarely to people of color. Whiteness also carries the authority within the larger culture it dominates to set the terms on which every aspect of race is discussed and understood. Whiteness thus is many-faceted and pervasive.

The papers that make up this symposium reflect the diversity of the topic. One ...


Dreaming Of A Self Beyond Whiteness And Isolation, John A. Powell Jan 2005

Dreaming Of A Self Beyond Whiteness And Isolation, John A. Powell

Washington University Journal of Law & Policy

In this Essay I want to engage racial boundaries and social boundaries in general. I want to poke them, prod them, and examine how these boundaries are constructed—not only in the structures and arrangements of our society, but within our processes of self-identification. I want to look at how we create these boundaries, and how they, in turn, create us. I assert that these external boundaries and manifestations of whiteness and internal white identity are linked at a deep level and that a better understanding of this relationship helps to explain why whiteness and racial hierarchy are still reproduced ...


Make-Believe Families And Whiteness, Judy Scales-Trent Jan 2005

Make-Believe Families And Whiteness, Judy Scales-Trent

Washington University Journal of Law & Policy

By examining Senegalese and Iroquois societies, this article puts forth the claim that "White Americans" have maintained racial purity by making believe that some family groups do not exist. The paper argues that rather than creating fictive family ties or acknowledging real family units, whites have created racial warfare by ignoring multi-racial family units.


Whiteness As Audition And Blackness As Performance: Status Protest From The Margin, John O. Calmore Jan 2005

Whiteness As Audition And Blackness As Performance: Status Protest From The Margin, John O. Calmore

Washington University Journal of Law & Policy

This Essay seeks to make visible a white social identity that presents itself as abstract individualism while masking its support from systems of dominance. Against this hidden connection, blacks must not only represent our reality, but also advocate on its behalf to bring some balance to a form of dominant white voyeurism that places us in the ricocheting tension “between hypervisibility and oblivion.” Finally, I hope that my personal story provides an illustration of racialized experience that performs identity beyond this voyeurism and beyond what many whites cannot, or will not, see. In short, this Essay addresses racialized identity (blackness ...


Understanding Patriarchy As An Expression Of Whiteness: Insights From The Chicana Movement, Gerald Torres, Katie Pace Jan 2005

Understanding Patriarchy As An Expression Of Whiteness: Insights From The Chicana Movement, Gerald Torres, Katie Pace

Washington University Journal of Law & Policy

Race, of course, is but one aspect of the self or of political or social categorization. Class and gender relations (in addition to other considerations) also combine to structure social relations and individual consciousness. One of the questions that feminists like Catharine MacKinnon and Marylyn Frye asked early on was whether patriarchy has a color. This is not as simple or as odd a question as it might first appear. What this question asks is whether the pattern of racial management is structurally similar to or part of the system of gender management, and vice versa. This Essay examines this ...


What's Wrong With These Pictures? Race, Narratives Of Admission, And The Liberal Self-Representations Of Historically White Colleges And Universities, David Roediger Jan 2005

What's Wrong With These Pictures? Race, Narratives Of Admission, And The Liberal Self-Representations Of Historically White Colleges And Universities, David Roediger

Washington University Journal of Law & Policy

This Essay focuses on the interpretation of several iconic images used to represent racial inclusion at what the sociologist Eduardo Bonilla-Silva has tellingly called “historically white colleges and universities.” All of the images come from schools in the Midwest, and, churlishly enough, a memorial in the law school publishing this Journal comes in for the most extended criticism. In mitigation, I conclude with discussions of my own institution, University of Illinois, whose use of a racist caricature of American Indians to rally its fans now makes it the (pun intended) chief offender among Midwestern universities where race and representation are ...


Whiteness After 9/11, Thomas Ross Jan 2005

Whiteness After 9/11, Thomas Ross

Washington University Journal of Law & Policy

In this Essay, I explore a particular set of ripples outward from 9/11, namely, the effects on the racial identity we call “being White.” I want to show that these contemporary ripples are part of a historical narrative about national identity that runs like a thread through our nation’s history. This narrative about “America” expresses the notion of White supremacy through an amalgam of civic and racial nationalism and thus serves to assuage the racial anxiety of White Americans at a time when that reassurance is perhaps most needed. This will be tricky business. Tracing threads from one ...


The Persistence Of White Privilege, Stephanie M. Wildman Jan 2005

The Persistence Of White Privilege, Stephanie M. Wildman

Washington University Journal of Law & Policy

Socio-cultural factors, such as societal practices and thinking patterns, including language itself, operate in conjunction with material forces to reinforce white privilege, enabling whites to self-perpetuate as a dominant racialized identity, albeit a transparent one. This Essay focuses on four of these socio-cultural factors: (1) the contemporary cultural push to colorblindness; (2) the sleight of mind that typifies the relation between an individual and groups in American culture; (3) a comfort zone in whiteness, which includes whiteness as the fabric of daily life for whites and white participation in the construction of race from a white-privileged viewpoint; and (4) the ...


Introduction: The Social Responsibility Of Lawyers, Karen Tokarz Jan 2005

Introduction: The Social Responsibility Of Lawyers, Karen Tokarz

Washington University Journal of Law & Policy

No abstract provided.