Digital Commons Network^™

Cognition And Star Trek: Learning And Legal Education, Kate Bloch

Faculty Scholarship

No abstract provided.

Trademarks And Human Rights: Oil And Water - Or Chocolate And Peanut Butter, Megan M. Carpenter

Faculty Scholarship

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights. Whether there is a direct connection between intellectual property, or the subjects of intellectual property, on the one hand, and human rights, on the other, has been the subject of lively debate. Most recently, the discussion has turned to the field of trademarks, which has prompted the question, Are trademarks human rights? In this article I seek to explore this question, and to consider directly whether there is a proper place for trademarks within the human rights framework-whether trademarks and human rights …

Dying To Dine: A Story Of The Suicidal Indian Farmers, Srividhya Ragavan

Faculty Scholarship

The realities of the food crisis form the background to the discussion of India’s endeavor to tackle the issues relating to agriculture with special emphasis on the nation’s efforts to promote farmers’ rights under the Protection of Plant Varieties and Farmers’ Rights Act, 2004 (PPVFA). The story of the PPVFA is interesting because the legislation represents India’s fulfillment of its international obligations by introducing breeders’ rights while simultaneously recognizing farmers’ traditional rights. Thus, Part I of this article outlines the steps India took to promote farmers’ rights as part of enacting a legislation to protect breeders’ rights to fulfill its …

A Tale Of Two Development Agendas, Peter K. Yu

Faculty Scholarship

In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of development agendas less developed countries advanced in the 1960s and 1970s. Bringing together these two sets of development agendas, this article examines whether the present agenda can avoid the path of …

The Comparative Law And Economics Of Judicial Councils, Nuno Garoupa, Tom Ginsburg

Faculty Scholarship

In recent decades, many countries around the world have institutionalized judicial councils, institutions designed to enhance judicial independence and accountability. Our paper, the first comparative inquiry into this phenomenon, has two aims. First, we provide an economic theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we discuss the national experience of several legal systems in light of our theory.

Building Intellectual Property Coalitions For Development, Peter K. Yu

Faculty Scholarship

The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.

Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) …

Disaggregating The Regional-Multilateral Overlap: The Nafta Looking-Glass, Elizabeth Trujillo

Faculty Scholarship

This short piece explores regionalism through the lens of NAFTA and examines its relationship to the multilateral trade regime and its effects on domestic policy. It tries to better understand the legal paradigm that allows the public aspects of trade law to intersect with the private interests of private investors. The rich jurisprudence of the Chapter 11 investment chapter of NAFTA provides a looking-glass into the complex interplay of state and non-state actors who navigate through the regional and multilateral trade and investment frameworks to further their interests. By disaggregating these overlaps, the paper illuminates this interplay which allows private …

The Gaelic Goetz: A Case Of Self-Defense In Ireland, Stacy Caplow

Faculty Scholarship

No abstract provided.

Untold Stories: Restoring Narrative To Pleading Practice, Elizabeth Fajans

Faculty Scholarship

No abstract provided.

Fellow-Feeling And Gender In The Law Of Personal Injury, Anita Bernstein

Faculty Scholarship

No abstract provided.

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Faculty Scholarship

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Punishment For Ecological Disasters: Punitive Damages And/Or Criminal Sanctions, Leo M. Romero

Faculty Scholarship

This article addresses the means of punishing conduct that causes serious environmental harm like the Exxon Valdez oil spill. In particular, it considers the appropriateness and effectiveness of both punitive damages and criminal sanctions as remedies in such cases in light of the U.S. Supreme Court's approaches to reviewing both punitive damages awards and criminal sentences for excessiveness. This article recommends, first, that state legislatures should authorize and regulate punitive damages so that appellate courts will not interfere with punitive damages awards, as happened in the Exxon case. Second, states should enforce criminal provisions in environmental statutes against both corporate …

Law(Makers) Of The Land: The Doctrine Of Treaty Non-Self-Execution, David H. Moore

Faculty Scholarship

No abstract provided.

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …

The Globalization Of Environmental Law, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law”-law that is neither …

Eu Law, International Law And Economic Sanctions Against Terrorism: The Judiciary In Distress?, P. Takis Tridimas

Faculty Scholarship

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations in pursuance of UN Security Council (UNSC) Resolutions seeking …

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

Secondary Human Rights Law, Monica Hakimi

Faculty Scholarship

In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What's striking about the treaty bodies' dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It's the extent to which the two sides talked past each other. Each presumed a different set …

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health …

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …

Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, on the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALl Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from overweening …

The Duty To Avoid Wrongful Convictions: A Thought Experiment In The Regulation Of Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care to prevent the conviction of the innocent. The inquiry provides a new vehicle for thinking about the nature of the disciplinary process, the work of prosecutors, the challenge of preventing erroneous convictions and, ultimately, the complexities of prosecutorial regulation.

The Article demonstrates that it would be plausible to interpret the attorney competence rule as encompassing prosecutorial negligence …

The Subordination Of Shareholder Loans In Bankruptcy, Martin Gelter

Faculty Scholarship

Bankruptcy and corporate laws in several countries allow or require courts to subordinate loans by shareholders to corporations. Examples include the German Eigenkapitalersatzrecht and the equitable subordination and recharacterization doctrines in the US. I use a model to show the incentive effects of subordination when a controlling shareholder attempts to rescue a closely held corporation by extending a loan. Even though subordination has some beneficial effects, it deters some desirable rescue attempts and is an insufficient deterrent for some undesirable ones. Legal reform should thus focus on narrowing down the scope of application to undesirable shareholder loans, where more severe …

From Here To Beijing: Public/Private Overlaps In Trade And Their Effects On U.S. Law, Elizabeth Trujillo

Faculty Scholarship

Recent news involving contaminated pet food and unsafe toys imported from China makes us question the legal frameworks that facilitated such incidences and stirs anti-globalization sentiment. While consumers wonder about the role of their governments in this context and look for judicial remedies, deeper questions arise regarding the international forces lying beneath the surface of the legal remedial work of our domestic courts. This paper explores the international trade paradigm in place that facilitates the inner workings of private investors and has trickling effects on domestic law. Furthermore, it will show that the trade regime is transnational in nature, consisting …

The Global Intellectual Property Order And Its Undetermined Future, Peter K. Yu

Faculty Scholarship

As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s.

The essay then examines the increasingly polarized debate on intellectual property law and policy. Although the debate’s growing divisiveness is understandable, given the rapid expansion of intellectual property rights …

Balancing The Pleading Equation, Paul Stancil

Faculty Scholarship

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants' …

The Electronic Lawyer, Richard L. Marcus

Faculty Scholarship

No abstract provided.