Digital Commons Network^™

Anti-Circumvention: Has Technology's Child Turned Against Its Mother?, Terri B. Cohen

Vanderbilt Journal of Transnational Law

Because its function is to protect and support innovation, copyright has been deemed a child of technology. Yet, as copyright laws increase the scope of protection for copyrighted material, one may wonder when such protection will begin to stymie, rather than encourage, emerging technology. The global trend toward internationalizing copyright protection has resulted in the World Intellectual Property Organization (WIPO) Copyright Treaty, which was intended, in part, to bring international copyright protection into the digital age. The treaty, however, extends traditional copyright protections by including a requirement that member nations implement anti-circumvention provisions into their laws.

Great debate has emerged …

Nafta Chapter 11 And Professional Sports In Canada, Robert A. Schmoll

Vanderbilt Journal of Transnational Law

Modern professional sports leagues are significant economic enterprises, the most prominent of which span the political border between the United States and Canada. In recent decades, local governments in the United States have invested heavily in professional sports franchises by building stadiums and arenas, hoping either to prevent the home team from moving out or to entice someone else's home team to move in. The willingness to pay of U.S. local governments, coupled with apparently disadvantageous economic conditions in Canada, has resulted in a net loss of professional franchises for Canadian cities, in particular franchises in Canada's national game, hockey. …

Category Iii Films And Vcds: The Failure Of Deterrence In The Copyright Ordinance Of Hong Kong, Allen Woods

Vanderbilt Journal of Transnational Law

In 1997, the government of Hong Kong enacted the Copyright Ordinance. The goal of the Ordinance was to establish a strong deterrent against the illegal manufacture and sale of copyright infringing materials, especially pirated video and digital compact discs. Courts have interpreted the Ordinance to allow the Customs and Excise Department sweeping powers of search and seizure. As a result, the government has seized many thousands of copyright infringing video compact discs and courts have enforced lengthy custodial sentences against guilty parties.

Despite these efforts, though, film piracy continues to grow throughout Hong Kong and transnational film interests have begun …

Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui

Vanderbilt Journal of Transnational Law

The Spratlys are a scattered group of islands in the South China Sea over which China, the Philippines, Vietnam, Malaysia, and Brunei have made conflicting jurisdictional claims. Although there has been significant academic discussion of this dispute, the Author argues that much of it is hampered by a discourse obsessed with the regional balance of power and security-related strategies that are only tenuously related to each nation's specific legal claims in the Spratlys. In this Article, the Author suggests that a more productive approach to the Spratly disputes is one focused on finding a solution that is "fair" to all …

From Unwritten To Written: Transformation In The British Common-Law Constitution, David Jenkins

Vanderbilt Journal of Transnational Law

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition …

Who Decides The Arbitrators' Jurisdiction? Separability And Competence--Competence In Transnational Perspective, John J. Barcelo, Iii

Vanderbilt Journal of Transnational Law

Separability and competence-competence are two of the best known concepts in international commercial arbitration. They are different, but often linked, because they share a common goal: to prevent early judicial intervention from obstructing the arbitration process. Both concepts address the question, "Who decides arbitrability--courts or arbitrators?" but in different ways. I will discuss those differences later in this comment.

In his excellent paper delivered at this Symposium, "Everything You Really Need to Know About 'Separability' in Seventeen Simple Propositions, Professor Rau focuses principally on separability. His purpose is to defend separability in U.S. arbitration law from the surprisingly common and …

Choice Of Law In Third-Millennium Arbitrations, Fabrizio Marrella

Vanderbilt Journal of Transnational Law

There is little doubt that third-millennium international arbitrators will face the flowering of a transnational rule such as the UNIDROIT Principles for international commercial contracts. They will be used to solve problems of characterization, preliminary questions, and choice of law to the merits of the dispute. In this sense, it appears clearly that these rules are to be construed under a triangular scheme. Thus, lex mercatoria and transnational rules like the UNIDROIT Principles will intervene more and more in the arbitral choice-of-law process in three competing contexts: (1) as a lex contractus; (2) as a means to interpret, supplement, or …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

Taking Stock Of Nafta Chapter 11 In Its Tenth Year, Jack J. Coe, Jr.

Vanderbilt Journal of Transnational Law

The North American Free Trade Agreement (NAFTA) came into force on January 1, 1994. Its Eleventh Chapter establishes substantive guarantees and an arbitral mechanism by which qualifying investors may seek damages for breach of those guarantees. The much-discussed investor-state arbitration apparatus was first invoked in September 1996, and since then has been resorted to several times against each NAFTA state. Many cases have concluded, while others are nearing completion. Though a mature jurisprudence has by no means emerged, substantive trends have been established and several of Chapter l's distinctive features, strengths, and weaknesses have been illuminated.

NAFTA's investor-state docket has …

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda

Vanderbilt Journal of Transnational Law

Professor Dr. Klaus Berger, in Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators, proposes that international investment contracts include a clause allowing the parties to renegotiate the terms of their contract if certain events take place.' If they are unable to reach an agreement, Professor Berger advocates that the parties agree to permit an arbitral tribunal to modify the terms of the contract to restore the economic equilibrium assumed by the parties when they concluded the agreement. Although commentators have often championed these clauses, private parties involved in international transactions have included them infrequently. …

Nafta's Investment Chapter: Initial Thoughts About Second-Generation Rights, Charles H. Brower

Vanderbilt Journal of Transnational Law

In this Article Professor Brower argues that most observers of NAFTA's investment chapter have missed an important and surprising development: Although the treaty's text shares a philosophical affinity with civil and political rights, its application has revealed an astonishing level of support for economic and social rights (ESCRs) in North America. Professor Brower examines the practical implications of this development both for the presentation of claims in investor-state arbitration and for the better integration of ESCRs into the mainstream of international law.

Slings And Arrows Of Outrageous Fortune: The Deportation Of "Aggravated Felons", Valerie Neal

Vanderbilt Journal of Transnational Law

Any foreign national who is convicted of an "aggravated felony," as that term is defined in the Immigration and Nationality Act, is subject to deportation from the United States. Deportation of so-called "aggravated felons" is in no way contingent upon the particular facts and circumstances in a given case. More troublingly, on the judiciary has no authority to review a deportation order based "aggravated felony" grounds. In the past decade, Congress has expanded the definition of "aggravated felony" to encompass many minor crimes that are neither aggravated nor felonious.

The deportation of foreign nationals on "aggravated felony" grounds is effectively …

The Black Market For Wildlife: Combating Transnational Organized Crime In The Illegal Wildlife Trade, Mara E. Zimmerman

Vanderbilt Journal of Transnational Law

Trade in endangered wildlife has been a concern in the global community since the dawn of international environmental law. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), one of the most successful international environmental treaties established, addresses the issue through regulation of international trade in certain wildlife species. However, the effectiveness of the treaty has been greatly undermined through illegal wildlife trading. Recently, the illegal wildlife trade has attracted the attention of organized criminal groups, whose participation in the trade have helped make the black market for wildlife the second largest in the world. …

How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai

Vanderbilt Journal of Transnational Law

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …

Front Matter - Table Of Contents - Preface

Iowa Journal of Communication

No abstract provided.

Introduction, Kimberly A. Powell

Iowa Journal of Communication

No abstract provided.

Patriotism Or Patronizing Protective Surveillance? Big Brother And The Usa Patriot Act, Edward C. Brewer

Iowa Journal of Communication

The terrorist attacks on September 11, 2001 changed American life as we know it. The USA PATRIOT Act of 2001 and the Homeland Security Act of 2002 have the potential for stifling the private communication of Americans beyond what most Americans would consider acceptable, even under the guise of "protection.'' This essay examines those implications and argues that it was the communication climate, created primarily by the media on September 11th, and the days and weeks immediately following that encouraged an acceptance of a rhetoric (in passing the USA PATRIOT Act) that would have been unacceptable prior to the attack.

An Ill-Wind That Blows No One Good: Cluster Analysis Of A Constitutional Scholar's Illness Metaphor And Resistance Rhetoric Targeting The President, Congress, And November 13th Military Order, Pamela Lutgen-Sandvik

Iowa Journal of Communication

In response to the terrorist attacks of September 11, 2001, President George W. Bush issued a military order authorizing the Department of Justice to detain and hold persons suspected of terrorism or of having connections with terrorists. This article analyzes a constitutional scholar’s rhetoric of resistance to the president’s military order in the face of nearly overwhelming popular support for the president’s actions. Through the use of Kenneth Burke’s cluster and agon analysis, the author examines the December 4, 2001 testimony of Dr. Laurence H. Tribe to the Senate Judiciary Committee of the 107th United States Congress.

"The Boss" Of Rhetoric: Bruce Springsteen's The Rising As A Response To 9/11, Tony Smith

Iowa Journal of Communication

Bruce Springsteen’s The Rising album has been hailed by numerous critics as one of pop culture’s most significant reactions to the tragedy of 9/11. This article offers an evaluation of the cathartic properties of the album and its potential to provide comfort to those directly and indirectly affected by the tragedy. Specifically, it is argued that The Rising achieves its rhetorical power through: 1) the significant level of ethos and identity Springsteen possesses with fans of his music; 2) the multiple tones and personas Springsteen employs throughout the album; 3) the album’s balanced use of vivid imagery and metaphoric language: …

The Ideology Of The Body-Slam: A Critical Examination Of Professional Wrestling, Scott R. Stroud

Iowa Journal of Communication

"Professional" wrestling has experienced a recent surge in its popularity, both among the lower working class and among the upper middle class. Examining the World Wrestling Federation's televised event, ''Unforgiven-- In Your House," this inquiry finds that ideological issues of mythical framing, patriarchal power structures, group construction of identity, and stereotyping of bureaucracy/white-collar working groups are found within this artifact. Of particular note is the modern reversal of previous research findings that argue that wrestling identity is constructed on the individual level and the ideology enshrined in wrestling is that of an opposition to dominant ideologies. Both of these claims …

Using Email Technology As A Peer Teaching Methodology In Interpersonal Communication, Vickie L. Harvey

Iowa Journal of Communication

This paper introduces an exercise that requires students to correspond and teach other students using the technology of email. Student self-assessment data from a quasi-experimental study involving 81 undergraduates from two universities in different regions of the United States suggest that a peer teaching activity provides a learning environment beyond the confines of the traditional classroom in which students learn by teaching others.

Front Matter

Journal of the Iowa Academy of Science: JIAS

No abstract provided.

Restoration And Monitoring Of The River Otter Population In Iowa, J. A. Pitt, W. R. Clark, R. D. Andrews, K. P. Schlarbaum, D. D. Hoffman, S. W. Pitt

Journal of the Iowa Academy of Science: JIAS

Northern river otters (Lontra canadensis) were widespread in North America at the time of European settlement. However, river otters were extirpated from most of Iowa in the early 1900s due to habitat degradation and unregulated harvest. In 1985, the Iowa Department of Natural Resources began an effort to restore the river otter population throughout the state, including a pilot study of survival to determine if establishment was feasible. Annual survival was estimated to be 86% during the pilot study. River otters dispersed an average of about 11 km from the point of release and exhibited habitat use typical for the …

The Influence Of Soil Water Content, Calcite Content, And Temperature On Bulk Electrical Conductivity, Eric C. Brevik, Jaehoon Lee, Thomas E. Fenton, Robert Horton

Journal of the Iowa Academy of Science: JIAS

Electrical conductivity (EC) as measured by the Geonics® EM-38 has shown promise as a soil survey tool. EC is determined by a combination of soluble salts, clay content and mineralogy, water content, and temperature. While investigating use of the EM-38 for soil survey purposes, it is important to understand the relative contribution of each of these variables on EC. A laboratory experiment was set up to determine the relative influence of water content, temperature, and calcite content on EC using time-domain reflectometry (TDR) probes. TDR was used as a proxy for the EM-38 because of the large volume of soil …

Mexican Elites And Language Policy In Tucson’S First Schools, Elise M. Dubord

Faculty Work

Educational institutions developed in Tucson, Arizona in the last quarter of the 19th Century during a critical time in cultural and political shifts of power between Anglo and Mexican elites in Southern Arizona. This paper examines unofficial language policies in both public and parochial schools in Tucson that reflect the accommodation of power between the two groups. The data used to reconstruct these de facto language policies comes from school documents, newspaper articles and advertisements, memoirs of teachers, politicians and others as well as historical accounts of the formation of Tucson’s first schools. Tollefson (1991) suggests that “language policy is …

Deterrence Rhetoric In A Post-Cold War Security Environment, Michael D. Griffin

Dissertations and Theses @ UNI

This thesis examines changes in United States deterrence policy from a communications perspective. The shift in policy was first made public in national strategy documents released in the fall of 2002. Using Kenneth Burke's dramatism, both the Cold War and the current security environment are examined. The pentadic analysis provides a better understanding of how the Bush administration views the world, unmasking motives for the shift in deterrence policy. The new policy of deterrence is examined to determine if it functions effectively as a persuasive argument. This analysis will then look at the implication of the new policy in addressing …