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.

Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain

Working Papers

Food and gastronomy are at the heart of every culture. In 2010, The Gastronomic Meal of the French was listed as Intangible Cultural Heritage of Humanity by UNESCO. Interest in gastronomy became mainstream in the U.S. starting in the late ‘70s/early ‘80s. The emergence of cooking literature, television cooking, celebrity chefs, and competitive cooking programs have now permeated American and French popular culture like never before. It is also a huge business for restaurants. This article examines the legal status of recipes and culinary creations in U.S. and French law, and what can be done to stop others from copying …

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.” …

Stylish Legal Citation, Alexa Z. Chew

Working Papers

Can legal citations be stylish? Is that even a thing? Yes, and this Article explains why and how. The usual approach to writing citations is as a separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the “real” words in their documents. This Article argues that the usual approach is wrong. Instead, legal writers should strive to write stylish legal citations—citations that are fully integrated with the prose to convey information in a readable way to a legal audience.

Prominent legal style expert Bryan Garner …

Citation Literacy, Alexa Z. Chew

Working Papers

New lawyers and law students spend a lot of time worrying about legal citation. But most of that time is spent worrying about the wrong thing—formatting. The primary purpose of legal citation is to communicate information to the reader. Thus, legal citations are integral parts of the legal documents that lawyers read and write. But rather than viewing citation as communication, law students, and the new lawyers they become, tend to view it as a formatting sideshow dictated by the Bluebook or other citation style guides. This view is both inaccurate and counterproductive.

I argue that the reason for this …

Framing Failure In The Legal Classroom: Techniques For Encouraging Growth And Resilience, Kaci Bishop

Working Papers

This Article argues that law schools should endeavor to help students maximize their learning and their potential as attorneys by helping them accept and learn from failure.

A Legal Theory Of Shareholder Primacy, Robert J. Rhee

Working Papers

Shareholder primacy is the most fundamental concept in corporate law and corporate governance. It is widely embraced in the business, legal, and academic communities. Economic analysis and policy arguments advance a normative theory that corporate managers should maximize shareholder wealth. Academic literature invariably describes shareholder primacy as a “norm.” But whether the concept is “law” is contested because, remarkably, we still do not have a coherent legal theory. Our understanding of a fundamental tenet of the field is flawed and incomplete. This article presents a positive legal theory of shareholder primacy. It answers the questions: Is shareholder primacy law? What …

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, …

A Matter Of Trust: Why The Time Is Right To Adopt The Uniform Electronic Legal Materials Act (Uelma) In Florida, Patricia Morgan

Working Papers

The Uniform Electronic Legal Materials Act is an important piece of legislation created by the Uniform Law Commission. It has been adopted in many states and is pending in several more. The Florida Bar is part of a national movement for Access to Justice – seeking solutions for citizens who need to access the judicial system but are of limited resources. UELMA would ensure that online state legal publications (such as Florida’s Administrative Code) would be authenticated and preserved. This would ensure that citizens can access the documents they need in order to pursue legal solutions.

The Political Economy Of Oil Spill Damage Assessment: Nrda And Deepwater Horizon, Matt Nichols, Judith T. Kildow Dr

Working Papers

The federal effort to quantify and capture non-market damages to coastal ecosystems from the 2010 Deepwater Horizon oil spill, Phase II of United States of America v. BP Exploration and Production, centers on the Natural Resource Damage Assessment (NRDA) process. This paper makes the case that the current NRDA process has done a poor job protecting the public interest and resolving the issues surrounding oil spills from deep water drilling activities. After 5 years, the findings of the NRDA still remain sealed from both affected maritime communities and academic researchers until litigation is settled with civil and criminal fines …

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 …

Employee Say-On-Pay: Monitoring And Legitimizing Executive Compensation, Robert J. Rhee

Working Papers

This Article proposes the adoption of employee say-on-pay in corporate governance. The board would benefit from an advisory vote of employees on executive compensation. This proposal is based on two considerations: firstly, the benefits of better monitoring and reduced agency cost in corporate governance; secondly, the link between executive compensation and income inequity and wealth disparity in the broader economy.

If adopted, shareholders and employees would monitor executive performance and pay at different levels. Shareholders through the market mechanism can only monitor at the level of public disclosures and share price. Employees can leverage private information. Non-executive managers in particular …

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 …

Worldwide Access To Foreign Law: International & National Developments Toward Digital Authentication, Claire M. Germain

Working Papers

This paper was originally presented at the World Library & Information Congress of the International Federation of Library Associations and Institutions (IFLA), Helsinki, Finland, August 2012, as part of a panel on Promoting Global Access to Law: Developing an Open Access Index for Official Authenticated Legal Information, Part II. Europe. http://conference.ifla.org/ifla78/programme-and-proceedings-day/2012-08-14. It focuses on worldwide access to the official word of the law, specifically to statutes, codes, regulations, court decisions, and international agreements in different foreign countries. The importance of improving global access to foreign law was highlighted at a 2012 joint European Commission/Hague Conference on Private International …

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, …

Digitizing The World's Laws, Claire M. Germain

Working Papers

Where does one find the foreign investment laws of Botswana? What about the copyright law of the Netherlands, the corporation laws of Japan, or the English translation of the Egyptian Civil Code? Already back in 1991, just before the internet, Wallace Baker remarked that “foreign law has become the daily bread of lawyers everywhere who formally had totally domestic practices.” Since then, the need to access the content of foreign law has increased exponentially. The importance of global access to foreign laws on the internet and how to improve it was recently highlighted at an international Meeting of Experts on …