Law Commons^™

Who’S Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crises, Christopher J. Morten, Charles Duan

Faculty Scholarship

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict – indeed, have already begun to conflict – with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point …

Privative Copyright, Shyamkrishna Balganesh

Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the …

Contre-/Counter-, Bernard E. Harcourt

Faculty Scholarship

Examines the “counter-” move in Balibar’s thought, analysing it not in the Kantian or Hegelian sense of a synthesis that resolves an antinomic opposition (not the least of which, because the particle “contre-” functions differently than the particle “anti-”), but rather as an original counterpoint that itself becomes so powerful as to liberate itself from the oppositional relationship and transform itself into a free-standing concept, intervention, or even mode of governmentality. It is not an opposition that leads to a synthesis, but instead to a stage of “perfection” that (1) merely indexes its former counter-partner, and (2) becomes a fully …

The Proportionality Rule And Mental Health Harm In War, Sarah Knuckey, Alex Moorehead, Audrey Mccalley, Adam Brown

Faculty Scholarship

The foundational international humanitarian law rule of proportionality — that parties to an armed conflict may not attack where civilian harm would be excessive in relation to the anticipated military advantage — is normally interpreted to encompass civilian physical injuries only. Attacks may cause significant mental harms also, yet current interpretations of the law lag behind science in understanding and recognizing these kinds of harms. This article analyzes legal, public health, psychology, and neuroscience research to assess the extent to which mental health harms should and could be taken into account in proportionality assessments.

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

Criminal Deterrence: A Review Of The Missing Literature, Alex Raskolnikov

Faculty Scholarship

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-known yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the areas …

Introduction: The Roles Of The Restatements In U.S. Foreign Relations Law, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This introductory chapter serves as a foreword for the volume. It sketches the history of past restatements and the evolution of the latest one. The first (confusingly called Second) Restatement of the Foreign Relations Law of the United States brought widespread attention to the term “foreign relations law.” It staunchly defended the proposition that foreign relations, no matter how imbued with discretion and prerogative, still must rest on law. The Third Restatement, prepared during a period of what to many seemed constitutional retrenchment and a loosening of judicial supervision over public life, offered a robust defense of the proposition that, …

Internet Jurisdiction: Using Content Delivery Networks To Ascertain Intention, Patrick Lin

LL.M. Essays & Theses

Specific jurisdiction in civil litigation centers on the rather general,yet immutable, concept of intention. Although the word “intention” does not surface prominently in the personal jurisdiction case law, it is clearly intrinsic to the concept of “purposeful availment”. On the Internet, however, intention is hard to ascertain: how does a court, for example, determine whether the defendant intended that its website, application, or advertisement within a mobile application should end up in the forum state? In answering such a question, courts have historically used one of two approaches to establish intent: (i) a targeting test or (ii) a degree of …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

Costs Allocation In International Arbitration: What Normative Source, If Any?, George A. Bermann

Faculty Scholarship

Costs in arbitration is one of those many issues that arises constantly (at least in any arbitration that gets underway), but as to which there is by no means any universally accepted standard of judgment. It is also not particularly usual for parties to address the issue of costs directly in their arbitration agreement, or for the matter to be addressed in the law of arbitration of the seat. If the rules of arbitral procedure that the parties may have incorporated into their arbitration agreement address the matter, they may not do so in highly informative terms. The Rules of …

Exemplary Legal Writing 2019: Five Recommendations, G. Edward White, Sarah Seo

Faculty Scholarship

In the song “Natalie Cook” from the musical podcast “36 Questions,” a married couple deals with the fallout from the husband’s discovery that his wife is really an individual named Judith, who “built a past / Made up a history / Details that fit this person named / Natalie.” When the husband accuses the wife, “You’re the one who made her up,” Natalie/Judith responds, “It was a bit more collaborative than you’re remembering.”

Climate Recommendations For A New Democratic President And A New Congress: A Compilation, Clara Grieder, Jordan Gerow

Sabin Center for Climate Change Law

Congress has not enacted a major new environmental law since 1990, when President George H.W. Bush signed the Clean Air Act Amendments and the Oil Pollution Act. He also supported, and the Senate ratified, the United Nations Framework Convention on Climate Change in 1992. The administration of President Bill Clinton supported the Kyoto Protocol, which was designed to achieve the objectives of the Framework Convention, but could not secure Senate ratification. President George W. Bush rejected the Kyoto Protocol and many other actions on climate change. President Barack Obama supported action on climate change; when he was unable to secure …

Climate Change, Coming Soon To A Court Near You – Report Three: National Climate Change Legal Frameworks In Asia And The Pacific, Dena Adler, Hillary Aidun, Michael Burger, Ama Francis, Briony Eales, Maria Cecilia T. Sicango

Sabin Center for Climate Change Law

National legal and policy frameworks underpin international climate action because they are the backbone of domestic responses to the climate emergency. Unless they support global objectives, local climate action stalls. Concerned by sluggish national responses to climate change or injured by its impacts, citizens are filing lawsuits, making courts central to national climate governance. To adjudicate these lawsuits, courts require current information about their climate change legal and policy frameworks. This report provides holistic syntheses of the climate legal and policy frameworks of 32 countries in Asia and the Pacific and discusses key legislative trends and climate-relevant constitutional rights.

The Law And Science Of Climate Change Attribution, Michael Burger, Jessica A. Wentz, Radley Horton

Sabin Center for Climate Change Law

There is overwhelming scientific agreement that human activities are changing the global climate system and these changes are already affecting human and natural systems. The observational record shows that the planet is getting significantly warmer, with eighteen of the nineteen warmest years on record occurring since 2001. Other observed changes include rising sea levels, ocean warming and acidification, melting sea ice, thawing permafrost, increases in the frequency and severity of extreme events, and a variety of impacts on people, communities, and ecosystems. There are multiple lines of evidence linking these changes to anthropogenic influence on climate.

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …