Law Commons^™

The Virtue Of Vulnerability: Mindfulness And Well-Being In Law Schools And The Legal Profession, Nathalie Martin

Faculty Scholarship

This article examines the role of vulnerability in transforming individual relationships, particularly the attorney-client relationship. In this essay, Martin argues that broadening our expressions can improve our client relations and decrease the likelihood that when that inevitable mistake occurs, we will be sued for it. Also, based upon virtue ethics, that practicing vulnerability is also virtuous and thus worthwhile in and of itself.

This essay starts by describing the traits people look for in lawyers as well as evidence that clients often feel that their lawyers are less than human. Then examines how legal education contributes to this problem by …

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

Congressional Administration Of Foreign Affairs, Rebecca Ingber

Faculty Scholarship

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not …

Building Intellectual Property Infrastructure Along China’S Belt And Road, Peter K. Yu

Faculty Scholarship

In the past decade, China has played pivotal roles in developing initiatives such as the BRICS Summit, the Regional Comprehensive Economic Partnership, the New Development Bank and the Asian Infrastructure Investment Bank. China has also negotiated a number of bilateral and regional free trade agreements, connecting the country to markets in Asia, Australasia, Europe, South America and other parts of the world. Many of these agreements include provisions or chapters on intellectual property protection and enforcement.

One new initiative that has not received much scholarly and policy attention from intellectual property commentators concerns the slowly emerging "One Belt, One Road" …

Spill-Over Reputation: Comparative Study Of India & The United States, Srividhya Ragavan

Faculty Scholarship

This paper compares India’s position with that of the US on the question of protection of well-known marks in the light of applicable international legal prescriptions. The discussion in this paper compares protection for famous foreign marks (as opposed to a famous mark). Famous foreign marks are those that have acquired fame in one country and hence, well-known in another country.

The Asean Way Or No Way? A Closer Look At The Absence Of A Common Rule On Intellectual Property Exhaustion In Asean And The Impact On The Asean Market, Irene Calboli

Faculty Scholarship

The Symposium in which this essay is published features recent developments in the law of intellectual property (IP) in Asia. In this essay, I focus on the Association of South East-Asian Nations (ASEAN), a region that I have had the opportunity to visit extensively in the past several years. In particular, I analyze the enforcement of IP rights in the context of the application of the principle of IP exhaustion in individual ASEAN Members, and the relationship between this principle and free movement of goods within the ASEAN region. In the past, I have addressed the same topic with respect …

Data Producer's Right And The Protection Of Machine-Generated Data, Peter K. Yu

Faculty Scholarship

In October 2017, the European Commission advanced a proposal for the creation of a new data producer's right for non-personal, anonymized machine-generated data. Driven in large part by the automotive industry, this proposal has thus far attracted considerable criticisms. While commentators have questioned whether the proposed right is needed in the first place, the EU proposal has also generated more questions than answers.

Written for a special issue on the "Legal Implications of the Platform Economy," this essay begins by revisiting the debate on sui generis database protection in both the Europe Union and the United States. It then discusses …

Fair Use And Its Global Paradigm Evolution, Peter K. Yu

Faculty Scholarship

This Article closely examines the transplant of the fair use model in US. copyright law on to foreign soil. It begins by reviewing the literature concerning paradigm shift, in particular Thomas Kuhn's seminal work. The Article then documents a growing trend toward the worldwide adoption of the U.S. fair use model and a countertrend toward the retention of the status quo. The juxtaposition of these two trends explain why jurisdictions that set out to transplant U.S. -style fair use ended up adopting a hybrid model. The second half of this Article interrogates the different primary causes behind such a paradigm …

A Hater's Guide To Geoblocking, Peter K. Yu

Faculty Scholarship

Geoblocking restricts access to online content based on the user's geographical location. Territorially based access control is strongly disliked, if not passionately hated, by those who travel abroad frequently as well as those who consume a considerable amount of foreign content. While the past has seen the use of geoblocking as technological self-help, such a technique has now received growing support from policymakers and judges.

Commissioned for a symposium on "Intellectual Property in a Globalized Economy: United States Extraterritoriality in International Business," this article begins by briefly recounting five sets of arguments against geoblocking. The article then draws on the …

Contracting Around The Hague Service Convention, Robin Effron, John F. Coyle, Maggie Gardner

Faculty Scholarship

No abstract provided.

Suing Russia: How Americans Can Fight Back Against Russian Intervention In American Politics, William J. Aceves

Faculty Scholarship

The evidence of Russian intervention in American politics is overwhelming. In the midst of the 2016 US presidential campaign, a growing number of inflammatory social media posts addressing various political topics emerged on Facebook, Instagram, and Twitter. These posts supported the candidacy of Donald Trump, condemned the influx of refugees and migrants, and promoted racial divisions in the United States. Through clicks, likes, shares, and retweets, these messages reached millions of Americans. But, these messages did not originate in the United States; they were drafted and disseminated through inauthentic social media accounts created and controlled by the Internet Research Agency, …

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

International Arbitration: Out Of The Shadows, George A. Bermann

Faculty Scholarship

This article discusses a diverse number of issues that have affected the strength and popularity of international arbitration among its users. It emphasises the importance of the arbitration community recognising the force and validity of a number of critiques of the process and developing strategies for dealing with them. It is an edited version of a Keynote Address delivered at the ADR in Asia Conference on 29 October 2018.

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison

Faculty Scholarship

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory …

The Ilo At 100: Institutional Innovation In An Era Of Populism, Laurence R. Helfer

Faculty Scholarship

The centenary of the International Labor Organization (ILO) provides an opportunity to take stock of the organization’s many achievements. But the centenary also calls for a clear-eyed assessment of the profound challenges that the ILO currently faces – including the growth of the informal and gig economies, digitization and automation, and rising material inequality – and the populist ferment that those trends have helped to engender. This essay, part of a forthcoming AJIL Unbound symposium on "The Transnational Futures of International Labor Law," sketches the ILO’s rich history of legal and policy innovation in response to changes in labor conditions …

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

If International Law Is Not International, What Comes Next? On Anthea Roberts’ Is International Law International?, Rebecca Ingber

Faculty Scholarship

I am thrilled that the editors of the Boston University Law Review have chosen to review Anthea Roberts’ recent book, Is International Law International?, for their annual symposium. In order to answer the title’s question, Roberts develops a research project to scrutinize a world she knows well: the field of teaching international law, her colleagues, and their students. The result is a rigorous disaggregation of the multifarious ways that international law is taught across the globe, thus demonstrating the lack of universality in the study of international law.

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Soft And Hard Strategies: The Role Of Business In The Crafting Of International Commercial Law, Susan Block-Lieb

Faculty Scholarship

Part I returns to the classic definition of hard international law initially put forward by Kenneth Abbott and Duncan Snidal and related IR scholars and analyzes existing commercial law treaties in light of this definition. It concludes that virtually none of these commercial law treaties constitute “hard” international law because nearly all commercial law treaties rely on national courts for enforcement. But Abbott and Snidal’s focus on the extent to which international law is legalized—and especially the extent to which it is enforced by international actors—may matter less with commercial than other more public international lawmaking. This is because the …

The Private Law Critique Of International Investment Law, Julian Arato

Faculty Scholarship

No abstract provided.

The Sources Of Immunity Law – Between International And Domestic Law, Lori Fisler Damrosch

Faculty Scholarship

The immunities regimes covered by this volume presuppose the existence of juridically equal States whose interactions are governed by international law. States engage in international relations with each other through a variety of agents, who could be individuals or legal persons; and States likewise establish international organizations for carrying out shared purposes. Each State has a domestic legal system through which State actors generate various sorts of executive, judicial and legislative practice, all of which can in principle be evidence of the international law of immunities.

The several regimes relevant to the immunities of the State itself, and of international …

Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer

Faculty Scholarship

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

The Legitimacy Of Economic Sanctions As Countermeasures For Wrongful Acts, Lori Fisler Damrosch

Faculty Scholarship

This essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures …

European Union Law And International Arbitration At A Crossroads, George A. Bermann

Faculty Scholarship

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the "fragmentation" of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually "collide." By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. …