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Indicators As A Technology Of Global Governance, Kevin E. Davis, Benedict Kingsbury, Sally Engle Merry 2010 New York University School of Law

Indicators As A Technology Of Global Governance, Kevin E. Davis, Benedict Kingsbury, Sally Engle Merry

New York University Public Law and Legal Theory Working Papers

The use of indicators is a prominent feature of contemporary global governance. Indicators are produced by organizations ranging from public actors such as the World Bank or the US State Department, to NGOs such as Freedom House, to hybrid entities such as the Global Fund, to private sector political risk rating agencies. They are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and whether states have complied with their treaty obligations. This article defines the concept of an “indicator,” describes how indicators have recently been used in global governance ...


Standard Of Review Under The Sps Agreement After Ec-Hormones Ii, Michael Ming Du 2010 Lancaster University Law School

Standard Of Review Under The Sps Agreement After Ec-Hormones Ii, Michael Ming Du

Michael Ming Du

A recurring and delicate issue in the GATT/WTO dispute settlement processes is whether, and to what extent, WTO Panels and the Appellate Body (AB) should defer to national government decisions. With regard to disputes under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), WTO Panels adopted, and the AB endorsed, a standard of review close to de novo review. As a result, the WTO jurisprudence in SPS disputes has been subject to sharp criticisms over the years. In the recent EC-Hormones II case, the AB has deviated from its established case law and articulated a ...


Reducing Product Standards Heterogeneity Through International Standards In The Wto: How Far Across The River?, Michael Ming Du 2010 Lancaster University Law School

Reducing Product Standards Heterogeneity Through International Standards In The Wto: How Far Across The River?, Michael Ming Du

Michael Ming Du

Heterogeneity in product standards across World Trade Organization (WTO) members adversely affects the international flow of goods and its reduction will increase global economic welfare if legitimate regulatory objectives are not violated. The Uruguay Round has seen the incorporation of international standards in both the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) Agreement as a harmonization device. Despite many benefits that international standards may offer, WTO’s attachment to international standards has been subject to various criticisms. This paper intends to offer a detailed analysis of the role ...


Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin 2010 University of Pennsylvania

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review ...


Mulieris Dignitatem, Ephesians 5, And Domestic Violence, Joseph M. Isanga 2010 Concordia University School of Law

Mulieris Dignitatem, Ephesians 5, And Domestic Violence, Joseph M. Isanga

Faculty Scholarship

This Article considers the contribution of Pope John Paul II’s apostolic letter On the Dignity and Vocation of Women to the deeper understanding of women’s dignity as it relates to the process of articulating and rearticulating international women’s rights, with particular attention on domestic violence.2 This letter, Mulieris Dignitatem, brings together some of the Catholic Church’s most important teachings on gender equality. This Article delineates norms articulated in Mulieris Dignitatem that can inform international standards regarding the protection of women from domestic violence.

To date there are no legally binding global human rights instruments that ...


The United States, The European Union, And China: The Triadic Contest For Africa And Its Implications For International Human Rights And Democracy, Joseph M. Isanga 2010 Concordia University School of Law

The United States, The European Union, And China: The Triadic Contest For Africa And Its Implications For International Human Rights And Democracy, Joseph M. Isanga

Faculty Scholarship

This article argues that unless the three primary international actors in Africa [--the U.S., the E.U., and China--] restructure their strategy towards the continent in a manner that gives [good governance, the rule of law, and human rights] preeminence, both the interests of Africa and the business of these countries will suffer, as the two are intimately bound together. The first section discusses the African paradox-a wealthy continent of impoverished people-and claims that the cause of this paradox is the lack of respect for human rights, the rule of law, and good governance. The second section concerns the ...


What Are We - Laborers, Factories, Or Spare Parts? The Tax Treatment Of Transfers Of Human Body Materials, Lisa Milot 2010 University of Georgia School of Law

What Are We - Laborers, Factories, Or Spare Parts? The Tax Treatment Of Transfers Of Human Body Materials, Lisa Milot

Scholarly Works

Transfers of human body materials are ubiquitous. From surrogacy arrangements, to sales of eggs, sperm and plasma to clinics, to black markets for kidneys, to pleas for donations of body materials, these transfers are covered and debated daily in popular and academic discourse. The associated philosophical and legal issues have been explored by a wide range of commentators. The appropriate tax treatment of these transactions, however, is mostly unexamined.

Current law is unclear about what the tax consequences of these transfers are. There are no statutory provisions directly on point, Internal Revenue Service guidance is outdated and conflicting, and the ...


The Costs Of Abusing Probationary Sentences: Overincarceration And The Erosion Of Due Process, Andrew Horwitz 2010 Roger Williams University School of Law

The Costs Of Abusing Probationary Sentences: Overincarceration And The Erosion Of Due Process, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.


Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel 2010 Yale Law School

Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel

Faculty Scholarship Series

This article analyzes legal language through the rhetorical, argumentative and narrative structures employed by non-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case; and authentic expression of their justice-related concerns, moral standing, and other extra-legal parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, respectively, and acknowledges tradeoffs that lay litigants perform between them. In this research, however, litigants were observed to resist such tradeoffs, requiring that their ...


Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel 2010 Yale Law School

Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel

Faculty Scholarship Series

Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops the notion of “relational formalism” as it emerges from practices of commercial law and from linguistic theory. As an interpretation of practice, relational formalism—although maintaining the precedence of formalist construction over functional analysis—does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds, and must respond to those. The study empirically analyzes a well-known problem of negotiable instruments ...


Intellectual Propriety: Compulsory Licenses Through The Trips Agreement And The Doha Declaration On Public Health, Samuel Mintzer Fuchs 2010 SIT Study Abroad

Intellectual Propriety: Compulsory Licenses Through The Trips Agreement And The Doha Declaration On Public Health, Samuel Mintzer Fuchs

Independent Study Project (ISP) Collection

The Agreement on Trade Related Aspects of Intellectual Property (TRIPS), part of the Uruguay Round of trade negotiations led to the creation of the World Trade Organization (WTO) in 1995, has led to a variety of interpretations and opinions. Though its application goes beyond matters of public health, it is this area that has come under the most scrutiny in the last fifteen years as the gaps between developed and developing countries have widened and exposed the health disparities between the two groups. Tensions over intellectual property and access to newly developed medicines to treat diseases such as HIV and ...


Indicators As A Technology Of Global Governance, Kevin E. Davis, Benedict Kingsbury, Sally Engle Merry 2010 NYU School of Law

Indicators As A Technology Of Global Governance, Kevin E. Davis, Benedict Kingsbury, Sally Engle Merry

New York University Law and Economics Working Papers

The use of indicators is a prominent feature of contemporary global governance. Indicators are produced by organizations ranging from public actors such as the World Bank or the US State Department, to NGOs such as Freedom House, to hybrid entities such as the Global Fund, to private sector political risk rating agencies. They are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and whether states have complied with their treaty obligations. This article defines the concept of an “indicator”, describes how indicators have recently been used in global governance ...


A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd 2010 Franklin Pierce Law Center

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Indiana Law Journal

For much of our nation's history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor's right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities ...


Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag 2010 University of Colorado

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Michigan Law Review

By all external appearances, Nudge is a single book-two covers, a single spine, one title. But put these deceptive appearances aside, read the thing, and you will actually find two books-Book One and Book Two. Book One begins with the behavioral economist's view that sometimes individuals are not the best judges of their own welfare. Indeed, given the propensity of human beings for cognitive errors (e.g., the availability bias) and the complexity of decisions that need to be made (e.g., choosing prescription plans), individuals often make mistakes. Enter here the idea of the nudge-the deliberate effort to ...


James Wilson And The Scottish Enlightenment, William Ewald 2010 University of Pennsylvania Law School

James Wilson And The Scottish Enlightenment, William Ewald

Faculty Scholarship

No abstract provided.


Toward A Defense Of Fair Use Enablement, Or How U.S. Copyright Law Is Hurting My Daughter, Joseph P. Liu 2010 Boston College Law School

Toward A Defense Of Fair Use Enablement, Or How U.S. Copyright Law Is Hurting My Daughter, Joseph P. Liu

Boston College Law School Faculty Papers

This Essay uses a personal anecdote to highlight a gap in current copyright law. Under current copyright doctrine, companies sued for direct copyright infringement are not generally able to assert the fair use arguments of their customers. Thus, for example, a photocopy shop sued for assembling course packs cannot argue that it is facilitating the fair use privileges of its student customers. This Essay argues that this approach is mistaken because it fails to take adequate account of the important role companies can play in practically enabling the fair use privileges of their customers. To fill this gap, this Essay ...


Federal Hill Protest Targets Landlords, Donna M. Hughes Dr., Melanie Shapiro Esq 2010 University of Rhode Island

Federal Hill Protest Targets Landlords, Donna M. Hughes Dr., Melanie Shapiro Esq

Donna M. Hughes

Landlords who rent space to spa-brothels were the target of a protest on Atwells Avenue on Federal Hill in Providence on the evening of March 28th. About two dozen neighbors, friends, and anti-trafficking activists gathered to condemn landlords who rent to spa-brothels.


Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach 2010 Elisabeth Haub School of Law at Pace University

Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach

Pace Law Faculty Publications

The concept of free will is a problematic basis for assessing legal accountability.

First of all, free will could never have evolved in a world of ordinary biological pressures. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds ...


Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating 2010 Stein & Flugge

Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From ...


Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating 2010 University of Southern California

Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive.

In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come ...


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