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A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten Jan 2015

A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.

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Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun Jan 2015

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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/="/">But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of …

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Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill Jan 2015

Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill

Osgoode Legal Studies Research Paper Series

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …

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The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten Jan 2015

The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …

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The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant Jan 2015

The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant

Osgoode Legal Studies Research Paper Series

The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …

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Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood Jan 2015

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Osgoode Legal Studies Research Paper Series

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …

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The Misguided Search For The Nature Of Law, Dan Priel Jan 2015

The Misguided Search For The Nature Of Law, Dan Priel

Osgoode Legal Studies Research Paper Series

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence …

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The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol Meidinger Jan 2015

The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol Meidinger

Osgoode Legal Studies Research Paper Series

Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role …

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Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh Jan 2015

Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh

Osgoode Legal Studies Research Paper Series

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of …

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Answering Canadian Tax Questions: An Introduction To Tax Law Research, Sas Ansari Jan 2015

Answering Canadian Tax Questions: An Introduction To Tax Law Research, Sas Ansari

Osgoode Legal Studies Research Paper Series

Income taxation is a complicated area of law that requires a researcher to master not only a large volume of complex legislation, but because of its ‘accessory-law’ nature, also requires good knowledge of many other areas of law (both statutes and common law). This paper provides an introduction to tax law research in the Canadian context. It begins by introducing the tax research process in Part 1 before moving on to discuss how to find the law and material with legally enforceable consequences in Part 2. The paper, in Part 3, discusses primary sources of tax law, and explains how …

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How Atrocity Becomes Law: The Neoliberalisation Of Security Governance And The Customary Laws Of Armed Conflict, Tracey Leigh Dowdeswell Jan 2015

How Atrocity Becomes Law: The Neoliberalisation Of Security Governance And The Customary Laws Of Armed Conflict, Tracey Leigh Dowdeswell

Osgoode Legal Studies Research Paper Series

This article discusses the impact of neoliberal ideologies of security governance on the laws of armed conflict, and describes how neoliberal practices of privatisation, outsourcing, and risk management within the security sector have facilitated the legalisation of atrocities. Neoliberal mentalities of governance have significantly impacted military administration in combat operations by decentralising control, by promoting discretion and freedom of action down the chain-of-command, and by institutionalising intent-based orders and standing Rules of Engagement. In so doing, the military has shifted the criteria for attack from one based upon an individual's status as a combatant to one of defining and containing …

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Malingerer Or Maligned: A Comparative Study Of Multiple Chemical Sensitivity Case Law, Odelia R. Bay Jan 2015

Malingerer Or Maligned: A Comparative Study Of Multiple Chemical Sensitivity Case Law, Odelia R. Bay

Osgoode Legal Studies Research Paper Series

People with invisible illnesses are challenged both by their impairments and the additional hurdles they face when it comes to being believed by others. This presents particular difficulties when seeking to convince those with the authority to make legal findings of discrimination or entitlement to accommodation. By focusing on the historically contested diagnosis of multiple chemical sensitivities (“MCS”), this paper examines the outer limits of how disability is defined and the legal rights given to people whose claims are viewed as suspect. Specifically, comparison is made between MCS employment cases in the United States and Canada.

In both jurisdictions, plaintiffs …

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Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant Jan 2015

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant

Osgoode Legal Studies Research Paper Series

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.

This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …

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Climate Change And Human Rights: How? Where? When?, Basil E. Ugochukwu Jan 2015

Climate Change And Human Rights: How? Where? When?, Basil E. Ugochukwu

Osgoode Legal Studies Research Paper Series

Climate change poses a threat to several internationally recognized human rights, including the rights to food, a livelihood, health, a healthy environment, access to water and the rights to work and to cultural life. Actions taken to mitigate and adapt to the adverse impacts of climate change have to be centred on human rights. In negotiations for a binding international climate change instrument, nation states have been called upon to fully respect human rights in all climate-related actions. As important as this demand is, there is also the need to describe and plan how human rights can be integrated into …

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“Contagious Co-Motion”: Student Voices On Being Change Agents, Vicki L. Reitenauer, Tetiana Korzun, Kimberly Lane, Melinda Joy Roberts Jan 2015

“Contagious Co-Motion”: Student Voices On Being Change Agents, Vicki L. Reitenauer, Tetiana Korzun, Kimberly Lane, Melinda Joy Roberts

Women, Gender, and Sexuality Studies Faculty Publications and Presentations

Designed in response to students’ requests for a capstone where they could form their own individual partnerships in the communities of their choosing, Effective Change Agent offers a structure for community-based learning that allows for high levels of student choice-making and agency. In this article, the authors describe the course; connect it to literature on grassroots change-making, integrative learning, and service-learning; and, through the inclusion of student authors, allow the sharing of insights in the students’ own voices.

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Three Hundred Nos: An Empirical Analysis Of The First 300+ Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews Prior To In Re Cuozzo Speed Technologies, Llc, 14 J. Marshall Rev. Intell. Prop. L. 112 (2015), Jarrad Wood, Jonathan Stroud Jan 2015

Three Hundred Nos: An Empirical Analysis Of The First 300+ Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews Prior To In Re Cuozzo Speed Technologies, Llc, 14 J. Marshall Rev. Intell. Prop. L. 112 (2015), Jarrad Wood, Jonathan Stroud

UIC Review of Intellectual Property Law

Tasked in 2011 with creating powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeal Board—set to creating a fast-paced trial with limited discovery and concentrated efficiency. For two years, the proceedings have proved potent, holding unpatentable many of the claims that reached decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. The AIA exempted institution decisions from appellate …

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Public Standards And Patent Damages, 14 J. Marshall Rev. Intell. Prop. L. 199 (2015), Ben Johnson Jan 2015

Public Standards And Patent Damages, 14 J. Marshall Rev. Intell. Prop. L. 199 (2015), Ben Johnson

UIC Review of Intellectual Property Law

Some markets require legislation in order to exist. The products and/or services offered by those markets may be covered by one or more letters patent. In certain of those markets, a situation arises in which a private party owns a right to exclude others from participating in that publicly-enabled market. These situations may be referred to “public standards.” Like their cousins in the private sector, public standards require special consideration when it comes to determining potential compensation to the patentee from its competitors. Following the lead of the Western District of Washington, this paper recommends a modification of the traditional …

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Patently Preempted, 14 J. Marshall Rev. Intell. Prop. L. 268 (2015), Nick Vogel Jan 2015

Patently Preempted, 14 J. Marshall Rev. Intell. Prop. L. 268 (2015), Nick Vogel

UIC Review of Intellectual Property Law

Small and medium size businesses often take advantage of the latest advancements in technology. Doing so, however, now seems to carry the risk of patent infringement. In 2012, so called patent trolls, also known as Non Practicing Entities, began sending letters to small and medium sized businesses demanding money in exchange for a license to use allegedly patented technology. Many saw the demands as an abuse of the patent system. In response, states have passed or are considering statutes that outlaw patent holders from delivering a bad faith notice of infringement. The State of Vermont was the first to address …

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Did Copyright Kill The Radio Star? Why The Recorded Music Industry And Copyright Act Should Welcome Webcasters Into The Fold, 14 J. Marshall Rev. Intell. Prop. L. 292 (2015), Patrick Koncel Jan 2015

Did Copyright Kill The Radio Star? Why The Recorded Music Industry And Copyright Act Should Welcome Webcasters Into The Fold, 14 J. Marshall Rev. Intell. Prop. L. 292 (2015), Patrick Koncel

UIC Review of Intellectual Property Law

The Copyright Act has not kept pace with the times, and the next revolution is going full stream ahead. Rather than adapt, entrenched interests at the Copyright table push for more protection, while new technologies are demonized and underrepresented. The resulting Copyright Act’s provisions relating to internet-based radio, ranging from passive over-the-air broadcasts to fully interactive music hosting sites, are a patchwork of accommodations and concessions to these interests. For all non-interactive services, licensing music typically occurs within the Copyright Act’s compulsory licensing system. For interactive webcasters, licensing negotiations take place with the copyright holders directly. These negotiations have proven …

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How Law Defines Art, 14 J. Marshall Rev. Intell. Prop. L. 314 (2015), Derek Fincham Jan 2015

How Law Defines Art, 14 J. Marshall Rev. Intell. Prop. L. 314 (2015), Derek Fincham

UIC Review of Intellectual Property Law

Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art community has largely neglected the task of defining artworks. This neglect has crept into legal disputes, particularly those involving conceptual art which has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition of art even more challenging. Yet the Law has an important part to play in resolving art disputes—courts end up defining art no matter how cautiously they approach the question. They do not set out to …

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The Next Great Copyright Act And The Future Of Radio, 14 J. Marshall Rev. Intell. Prop. L. 378 (2015), Christopher Doval, Don Anque, Maesea Mccalpin Jan 2015

The Next Great Copyright Act And The Future Of Radio, 14 J. Marshall Rev. Intell. Prop. L. 378 (2015), Christopher Doval, Don Anque, Maesea Mccalpin

UIC Review of Intellectual Property Law

With the advancement of digital broadcasting technologies, the lack of a revision to copyright law has created a creative and distribution bottleneck for artists by companies. The current range for compulsory licensing agreements does not protect the interests of artists through modern digital transmission tools, and leaves them fending for themselves if they wish to have access to new digital platforms. Moreover organizations, such as the Recording Industry Association of America, are in greater positions of power when applying existing copyright laws and definitions to new technologies that innovators never intended to be analogous to pre-existing technologies to begin with. …

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On Art Attacks: At The Confluence Of Shock, Appropriation, And The Law, 14 J. Marshall Rev. Intell. Prop. L. 392 (2015), Rachel Buker Jan 2015

On Art Attacks: At The Confluence Of Shock, Appropriation, And The Law, 14 J. Marshall Rev. Intell. Prop. L. 392 (2015), Rachel Buker

UIC Review of Intellectual Property Law

Does the law adequately recognize the expansive nature of art, especially in scenarios involving controversial acts of appropriation art? Of particular curiosity is just how the law should treat acts of artistic appropriation involving the creation of artwork on top of other original works of art, or art attacks. This is an issue that has been largely unaddressed by the courts outside the realm of criminal proceedings. However, the legal implications of such acts reach far beyond crimes and property torts, involving copyright, moral rights, freedom of expression, and the preservation of cultural heritage. Indeed, the issues are not just …

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Some Speculation About Mirror Neurons And Copyright, 14 J. Marshall Rev. Intell. Prop. L. 410 (2015), Stephen Mcjohn Jan 2015

Some Speculation About Mirror Neurons And Copyright, 14 J. Marshall Rev. Intell. Prop. L. 410 (2015), Stephen Mcjohn

UIC Review of Intellectual Property Law

Copyright plays a central role in regulating cultural transmission. Authors are given exclusive rights to copy, adapt, distribute, perform and display their works. These rights have limits, most notable fair use and the non-protection of ideas. In setting the bounds of those limits, courts implicitly follow some basic folk psychology. This paper would explore how neuroscience can be used to illuminate and challenge those background assumptions. Copyright law implicitly assumes that literal copying is not necessary for cultural transmission. If there are many ways to express the same idea, then transmission of an idea will not be restricted by prohibiting …

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Pulling The 'Trigger' On The Hatch-Waxman Act's 180-Day Exclusivity Using Inter Partes Review, 14 J. Marshall Rev. Intell. Prop. L. 453 (2015), Jaimin Shah Jan 2015

Pulling The 'Trigger' On The Hatch-Waxman Act's 180-Day Exclusivity Using Inter Partes Review, 14 J. Marshall Rev. Intell. Prop. L. 453 (2015), Jaimin Shah

UIC Review of Intellectual Property Law

The America Invents Act has put in place quick and efficient mechanisms for challenging granted patents in an Article I adversarial setting. And the Hatch-Waxman Act has been the roadmap for generic drug approval-related patent infringement action in Article III courts. An interesting, heretofore unaddressed question lurks at an intersection of the two pieces of enterprising legislation: What impact should a final decision canceling patent claims under the AIA setting have on the forfeiture of 180-day exclusivity under the Hatch-Waxman Act? The 180-day exclusivity is an important piece in the Hatch-Waxman game of chess. This comment presents both the case …

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The Law As Art Material, 14 J. Marshall Rev. Intell. Prop. L. 418 (2015), Daniel Mellis Jan 2015

The Law As Art Material, 14 J. Marshall Rev. Intell. Prop. L. 418 (2015), Daniel Mellis

UIC Review of Intellectual Property Law

Daniel Mellis is an artist who incorporates the law and legal language into his work. This article discusses four such works: I. A postcard that predicts when its copyright will expire. II. A performance piece that uses the Visual Artists Rights Act to turn money into Art. III. An installation about the fourth amendment on the paper bags at a liquor store. IV. A bureaucratic entity that allows people to renounce, not their citizenship, but rather their symbolic attachment in a nation state or empire.

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Revisited 2015: Protection Of U.S. Trade Secret Assets: Critical Amendments To The Economic Espionage Act Of 1996, 14 J. Marshall Rev. Intell. Prop. L. 476 (2015), R. Mark Halligan Jan 2015

Revisited 2015: Protection Of U.S. Trade Secret Assets: Critical Amendments To The Economic Espionage Act Of 1996, 14 J. Marshall Rev. Intell. Prop. L. 476 (2015), R. Mark Halligan

UIC Review of Intellectual Property Law

In order to protect the national and economic interests of the United States, the Economic Espionage Act was enacted in 1996. Although intended to prevent and deter trade secret theft, the EEA is limited to criminal prosecutions. Critical amendments to the EEA are required to create a civil cause of action in the new information-based economy and the international marketplace. In 2008, the author recommended two critical amendments to the Economic Espionage Act that have been vetted and have been the subject of legislative proposals for the past 7 years. The author now revisits developments since 2008 and underscores the …

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Who Owns Ellen's Oscar Selfie? Deciphering Rights Of Attribution Concerning User Generated Content On Social Media, 14 J. Marshall Rev. Intell. Prop. L. 564 (2015), Michael Reed Jan 2015

Who Owns Ellen's Oscar Selfie? Deciphering Rights Of Attribution Concerning User Generated Content On Social Media, 14 J. Marshall Rev. Intell. Prop. L. 564 (2015), Michael Reed

UIC Review of Intellectual Property Law

One of the most memorable moments of the 2014 Academy Awards was Ellen DeGeneres’s famous selfie taken with Bradley Cooper, Meryl Streep, and other famous friends. This so-called “Oscar Selfie” has been estimated to be worth millions of advertising dollars for the event’s sponsor, Samsung. DeGeneres’ use of selfies as a promotional tool was novel method of documenting Hollywood’s greatest night which proved an undeniable successful. However, the fact that Bradley Cooper actually captured the Oscar Selfie raises a number of important questions about how user-generated content distributed through social media fits into existing intellectual property law. At the heart …

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Can I Show You Something? The Public Use Bar And Overemphasis On Public Access, 14 J. Marshall Rev. Intell. Prop. L. 590 (2015), Benjamin Lee Jan 2015

Can I Show You Something? The Public Use Bar And Overemphasis On Public Access, 14 J. Marshall Rev. Intell. Prop. L. 590 (2015), Benjamin Lee

UIC Review of Intellectual Property Law

The public use bar has long been a shield protecting the public against unscrupulous inventors hoping to create public dependency before seeking patent monopolization. Courts have repeatedly sided in favor of protecting the public interest. But how much protection do inventors themselves deserve in this battle of interests? This comment examines the history and application of the tests for public use utilized by the courts. Going further, the comment highlights the Federal Circuit’s low corroborating evidence requirement in Pronova Biopharma Norge AS v. Teva Pharmaceuticals USA and questions whether this comports with the policies underlying patent law or too readily …

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The Building Blocks Of Copyright Protection For Architectural Works: Roadblock Or Masterpiece?, 14 J. Marshall Rev. Intell. Prop. L. 607 (2015), Vaughn Drozd Jan 2015

The Building Blocks Of Copyright Protection For Architectural Works: Roadblock Or Masterpiece?, 14 J. Marshall Rev. Intell. Prop. L. 607 (2015), Vaughn Drozd

UIC Review of Intellectual Property Law

The current test for determining substantial similarity for architectural works is detrimental to the utility of the United States as well as architects’ creativity. The “total concept and feel” test is ill-equipped to determine whether architectural copyright infringement has occurred, as it does take into account the value that many architectural works provide to society. Further, the “ordinary observer” is an artificial concept that cannot be used to determine whether copyright infringement has occurred with such a highly technical field as architecture. This comment breaks down the current system used to analyze copyright infringement for architectural works. Then, this comment …

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Patent Troll: The Brewing Storm Of Patent Reform In The United States Of America, 15 J. Marshall Rev. Intell. Prop. L. 63 (2015), Prachi Agarwal Jan 2015

Patent Troll: The Brewing Storm Of Patent Reform In The United States Of America, 15 J. Marshall Rev. Intell. Prop. L. 63 (2015), Prachi Agarwal

UIC Review of Intellectual Property Law

“Patent trolls” have been a problem in the U.S. for many years, creating a storm of patent reform in all three branches of the U.S. government. The modus operandi of these companies (known as non-practicing entities “NPEs” or Patent Assertion Entities “PAEs”) is to acquire patents with no intention of practicing the invention or developing their products and with the sole purpose of licensing them aggressively or instituting lawsuits against infringers. This practice has been criticized as being anti-competitive as it curbs economic growth and technological development and stifles competition. The U.S. Congress’ first attempt to control the patent troll …

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