Digital Commons Network^™

Currents And Crosscurrents In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and …

The Origins Of Cctld Policymaking, Peter K. Yu

Faculty Scholarship

Extract:

A long time ago in a galaxy not so far away, there was a decentralized global network of computers. These computers shared information with each other regardless of how far apart they were and whether there was any direct line of communication between them. In the very beginning, this network was used exclusively by government and military agencies, educational and research institutions, government contractors, scientists, and technology specialists. Instead of the domain names we use today, such as “www. amazon.com,” users typed in numeric addresses, such as “123.45.67.89,” and, later, host names to send information to other computers.

This …

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Faculty Scholarship

At such a crucial time in our history, major concerns exist regarding the viability of labor unions and the capability of employees to pursue racial justice in the workplace with any success. Continued improvement within both movements may depend upon finding a cohesive intersection between them. With the race and class divide affecting relations between organized labor and black workers (a dilemma which must be explored in more detail), this Article offers the thesis that there remains an area of opportunity for justice where interests of unions and black employees may coalesce: providing legal assistance to unrepresented black employees in …

Muss Es Sein? Not Necessarily, Says Tort Law, Anita Bernstein

Faculty Scholarship

No abstract provided.

Longevity Research And Bioethics, Robert A. Bohrer

Faculty Scholarship

AS THE PACE OF SCIENTIFIC ADVANCE accelerates and the era of globalization brings new threats as well as new promises, the world of biotechnology is increasingly forced to confront bioethical issues that once would have been merely theoretical discussions of purely speculative issues in the distant future. This article is intended to provide a perspective on the general problem of ethical frameworks in social decision making and provide an introduction to three fundamental ethical systems: utilitarianism, Kantianism, and Rawlsian justice or fairness. Those frameworks can be used to discuss most areas of significant ethical controversy in biotechnology; however, the focus …

The Enterprise Of Liability, Anita Bernstein

Faculty Scholarship

No abstract provided.

Hipaa Privacy And Security: Issues For Employer-Sponsored Health Plans, Mary Leto Pareja

Faculty Scholarship

This article discusses issues about privacy standards and provides an overview of security issues related to the Health Insurance Portability and Accountability Act ("HIPAA"). Some of the privacy issues include who must comply, what information is protected, and permissible disclosure of protected information. The overview of security issues covers administrative, physical, and technical safeguards, as well as organizational requirements. Any practitioner who works with employers that sponsor a health plan for their employees should be aware of these issues, as this is a new area of potential risk for those clients.

Development Of A Safe Neutralization Assay For Sars-Cov And Characterization Of S-Glycoprotein, Dong P. Han, Hyung G. Kim, Young B. Kim, Michael W. Cho

Faculty Scholarship

The etiological agent of severe acute respiratory syndrome (SARS) has been identified as a novel coronavirus SARS-CoV. Similar to other coronaviruses, spike (S)-glycoprotein of the virus interacts with a cellular receptor and mediates membrane fusion to allow viral entry into susceptible target cells. Accordingly, S-protein plays an important role in virus infection cycle and is the primary target of neutralizing antibodies. To begin to understand its biochemical and immunological properties, we expressed both full-length and ectodomain of the protein in various primate cells. Our results show that the protein has an electrophoretic mobility of about 160–170 kDa. The protein is …

Confrontation Of Modified Newtonian Dynamics Predictions With Wilkinson Microwave Anisotropy Probe First Year Data, Stacy S. Mcgaugh

Faculty Scholarship

I present a model devoid of nonbaryonic cold dark matter (CDM) that provides an acceptable fit to the Wilkinson Microwave Anisotropy Probe (WMAP) data for the power spectrum of temperature fluctuations in the cosmic background radiation. An a priori prediction of such no-CDM models was a first-to-second peak amplitude ratio A1:2 ≈ 2.4. WMAP measures A1:2 = 2.34 ± 0.09. The baryon content is the dominant factor in fixing this ratio; no-CDM models that are consistent with the WMAP data are also consistent with constraints on the baryon density from the primordial abundances of 2H, 4He, and 7Li. However, in …

The Mass Discrepancy-Acceleration Relation: Disk Mass And The Dark Matter Distribution, Stacy S. Mcgaugh

Faculty Scholarship

The mass discrepancy in disk galaxies is shown to be well correlated with acceleration, increasing systematically with decreasing acceleration below a critical scale a0 ≈ 3700 km2 s-2 kpc -1 = 1.2 × 10-10 m s-2. For each galaxy, there is an optimal choice of stellar mass-to-light ratio that minimizes the scatter in this mass discrepancy-acceleration relation. The same mass-to-light ratios also minimize the scatter in the baryonic Tully-Fisher relation and are in excellent agreement with the expectations of stellar population synthesis. Once the disk mass is determined in this fashion, the dark matter distribution is specified. The circular velocity …

False Conflicts And Faulty Analyses: Judicial Misuse Of Governmental Interests In The Second Restatement Of Conflict Of Laws, James P. George

Faculty Scholarship

The Second Restatement of Conflict of Laws has the irony of dominating the field while bewildering its users. The result is a set of choice-of-law decisions so lacking in uniformity that the Second Restatement's balancing test has become chimeric, taking on vastly different forms in different courts. Erratic applications may be partly due to its code-like function, which can require the application of two or more black letter sections, each with multiple analytical steps. Critics also point to the political and academic compromises that pervaded the American Law Institute's drafting process for this project, leading to ambiguity in some sections. …

Conflict Of Laws (2004), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2002, through November 1, 2003. The article excludes cases involving federalstate conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

Fallacies Of American Constitutionalism, Christian G. Fritz

Faculty Scholarship

Fallacies of American Constitutionalism' examines the pervasive assumptions in the scholarship of historians, lawyers, and political scientists that impute the central role of the federal Constitution to how Americans understood written constitutions after their Revolution. American struggles to come to grips with the meaning of the sovereignty of the people before and after 1787 reveals very different views about the people as the sovereign from those reflected in the federal Constitution and dispel the notion that our prevailing constitutional view is an unbroken chain stretching back to 1787.

Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, S. W. Waller

Faculty Scholarship

No abstract provided.

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Fla. St. U. L. Rev., Huyen Pham

Faculty Scholarship

In the fanfare that surrounded the announcement of the National Security Entry-Exit Registration System,' Attorney General John Ashcroft's comment that the Department of Justice (DOJ) would ask state and local police to enforce both civil and criminal immigration laws seemed like an afterthought. State authorities, DOJ concluded, have "inherent authority" as sovereign entities to enforce these laws, though Ashcroft was careful to limit this invitation to local participation only to "our narrow anti-terrorism mission."

But to attorneys, law enforcement officers, and others working in the immigration field, Ashcroft's announcement was a bombshell. Not only was DOJ's announced position a reversal …

History In Journalism And Journalism In History: Anthony Lewis And The Watergate Crisis, Pnina Lahav

Faculty Scholarship

Let me plunge right into a Lewis column to convey his marvelous craft in weaving the past into a contemporary moment. This one is from July 8, 1974. The column is about the oral argument before the Supreme Court in the Executive Privilege case, which was about to enter the constitutional canon as United States v. Nixon. Lewis writes as both eyewitness and commentator. He begins with constitutional history invoking Marbury v. Madison:

"It seemed at times like a constitutional casebook come to life. Marbury v. Madison was not only cited but, for a moment, debated. What exactly …

Analyzing The Constitutional Tensions And Applicability Of Military Rule Of Evidence 505 In Courts-Martial Over United States Service Members: Secrecy In The Shadow Of Lone Tree, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes MRE 505 in both a comparative and Constitutional context. Part I provides a procedural overview of both MIRE 505, and its federal counterpart, CIPA, for protecting evidence vital to national security in the criminal court context. Both mechanisms for protecting sensitive information are analyzed for their efficiency from a prosecutorial perspective. Part II analyzes the defendant's twin Constitutionally-based rights to present a complete defense and to a public trial. MRE 505, impacts to some degree, these twin rights. Part III then reviews the legal framework of MRE 505 within the salient Lonetree case. Within the context of …

Universal Jurisdiction And The Concept Of A Fair Trial Prosecutor V. Fulgence Niyonteze: A Swiss Military Tribunal Case Study, Joshua E. Kastenberg

Faculty Scholarship

It is the overall goal of this article to assess and evaluate concepts of universal jurisdiction and the interrelated right to a fair trial within the capsule of Prosecutor v. Niyonteze. This article analyzes the Niyonteze trial both within a framework of comparative law and against contemporary international law theories of universal jurisdiction and fair trial standards. In this article the term "due process" is subsumed into the larger concept of a fair trial. Likewise, a specific theory of universal jurisdiction is adopted. While universal jurisdiction and the right to a fair trial are often seen as exclusive areas, this …

The Use Of Conventional International Law In Combating Terrorism: A Maginot Line For Modern Civilization Employing The Principles Of Anticipatory Self-Defense & Preemption, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes the existing concepts of the right of self-defense and preemption under international law. Part I quickly reviews both the evolution of warfare and the state of religious-based terrorism. The former presents a useful starting point for understanding customary international law and its subset, generally referred to as "the laws and customs of war. Customary international law provides context to the application and shortcomings of contemporary codified international law, and, therefore, serves an important heuristic function in understanding the international legal limits on combating this increasingly frequent form of terrorism. In the end, this article concludes that both …

Agreeing To Disagree: Security Council Resolution 1441 And Intentional Ambiguity, Michael Byers

Faculty Scholarship

No abstract provided.

Between Mandate And Market: Contract Transition In The Shadow Of The International Order, Robert B. Ahdieh

Faculty Scholarship

Boilerplate in sovereign debt contracts issued in the United States has long dictated the unanimous consent of bondholders to any debt restructuring. This requirement persisted for decades, notwithstanding wide consensus that such unanimous action provisions increased transaction costs, produced inefficient delays in debt restructuring, enhanced the moral hazards of the sovereign debt market, and otherwise encouraged collective action failures. Yet the sovereign debt markets has recently made an about-face, replacing the unanimity requirement for debt restructuring with a less demanding provision for collective, or majority, action by creditors. Completed over the course of just a few months in 2003, this …

The Reliance Interest In Insolvency Law: A Response To Harris And Mooney, Edward J. Janger

Faculty Scholarship

No abstract provided.

Temporary Protection As An Instrument For Implementing The Right Of Return For Palestinian Refugees, Susan M. Akram, Terry Rempel

Faculty Scholarship

The article argues for an internationally harmonized approach to temporary protection for Palestinian refugees and stateless persons. Temporary protection offers protection rights to this huge population of refugees that they lack in any of the main regions in which they have sought refuge. The article establishes the legal framework for temporary protection in the particular historical, legal and political context of the Palestinian refugee situation. It argues for the urgency of a harmonized rights-based protection regime.

A Constitution For Judicial Lawmaking, Adam N. Steinman

Faculty Scholarship

When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or …

The Law's Many Bodies, And The Manuscript Tradition In English Legal History, David J. Seipp

Faculty Scholarship

Sir John Baker's recent book The Law's Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker's unique place within the field of English legal history today

Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modem age. The narrow neck of the hourglass can be imagined as the mind of …

The Other In International Law: 'Community' And International Legal Order, Maxwell O. Chibundu

Faculty Scholarship

There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate …

Ancient Roman Munificence: The Development Of The Practice And Law Of Charity, William H. Byrnes Iv

Faculty Scholarship

This article traces Roman charity from its incipient meager beginnings during Rome’s infancy to the mature legal formula it assumed after intersecting with the Roman emperors and Christianity. During this evolution, charity went from being a haphazard and often accidental private event, to a broad undertaking of public, religious, and legal commitment. Charitable giving within ancient Rome was quite extensive and longstanding, with some obvious differences from the modern definition and practice of the activity.

The main differences can be broken into four key aspects. First, as regards the republican period, Roman charity was invariably given with either political or …

"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

Faculty Scholarship

Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …

Labor And Finance As Inevitably Transnational: Globalization Demands A Sophisticated And Transnational Lens, Timothy A. Canova, Claire Moore Dickerson, Katherine V.W. Stone

Faculty Scholarship

No abstract provided.

Dramatic Decline Of Wild South China Tigers Panthera Tigris Amoyensis: Field Survey Of Priority Tiger Reserves, Ronald Tilson, Hu Defu, Jeff Muntifering, Philip J. Nyhus

Faculty Scholarship

This paper describes results of a Sino- American field survey seeking evidence of South China tigers Panthera tigris amoyensis in the wild. In 2001 and 2002 field surveys were conducted in eight reserves in five provinces identified by government authorities as habitat most likely to contain tigers. The surveys evaluated and documented evidence for the presence of tigers, tiger prey and habitat disturbance. Approximately 290 km of mountain trails were evaluated. Infrared remote cameras set up in two reserves captured 400 trap days of data. Thirty formal and numerous informal interviews were conducted with villagers to document wildlife knowledge, livestock …