Law Commons^™

The Problem Of Enforcing Environmental Norms In The Wto And What To Do About It, Sanford E. Gaines

UC Law SF International Law Review

National and international focus and efforts on trade has led to the comparative disadvantage of international environmental policy relative to trade policy in what is known as the trade-environment problematique. The tension between trade and the environment does not exist because trade norms trump environmental norms, but because of the tension between environmental protection and the intensification of economic activity to provide for the world's growing population. This article argues that rather than creating a new international institution to address the trade-environment problematique, international environmental policy should instead be more fully and deeply integrated into economic policy, which can only …

Out Of The Crooked Timber Of Humanity: The Conflict Between South Africa's Truth And Reconciliation Commission And International Human Rights Norms Regarding Effective Remedies, Sherrie L. Russell-Brown

UC Law SF International Law Review

Judicial review in the United States is a strong and effective remedy. However, it is a limited remedy because the courts act only when asked and because courts have developed an entire jurisprudence of reasons why they cannot hear cases. For past violations there is no constitutional remedy; and there is no constitutional obligation upon Congress, or upon the States, to provide remedies, or to compensate victims for violations of their rights.

In contrast to the U.S. Constitution, various comprehensive human rights and regional human rights treaties explicitly include, in some form, the right to a remedy for violations of …

Enforcing Arms Control Agreements By Military Force: Iraq And The 800-Pound Gorilla, Davis Brown

UC Law SF International Law Review

Despite Iraq's complete disdain for international law, the community of States, acting in accordance with international law, had allowed the Ba'ath regime to remain in power. Iraq therefore enjoyed the benefits of the principles of sovereign equality, non-interference with internal affairs, and, for the most part, non-use of force, without shouldering any of the responsibilities that come with the privilege of recognition as a State. This article begins with a presentation of a new approach to jus ad bellum which takes just war theory to the next level, where force is used as a remedy to a grave injury caused …

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

UC Law SF International Law Review

In the space of one generation, through both national and international agreements, nations have established norms and a framework for environmental stewardship of the Earth. One sign of the acceptance and maturation of environmental norms is that nations now worry about how to enforce environmental law and how to achieve compliance. Enforcement of environmental laws is essential to attaining the international objective of sustainable development. To be effective, this enforcement must be routine, reasonably resourced and predictable-an arduous challenge. In order to build a sustainable global community, the nations of the world must renew their commitment to the United Nations, …

Remedying Past Abuses Of Governmental Power - Legal Accountability For The 1968 Events In Poland, Susanne Starecki

UC Law SF International Law Review

Since the 1968 events in Poland, the Polish government has systematically subjected Polish Jews to degrading treatment, denied them their rights to freedom of religion, denied them their right to the enjoyment of property and engaged in numerous acts of discrimination. The issue of justice and reparations for these Polish Jews must be addressed. This note examines the means Polish Jews may explore to remedy Polish governmental abuses. Due to the absence of applicable domestic laws and reparations by Poland, Polish Jews need to utilize international tribunals, particularly the European Court of Human Rights.

The European Union V. The North Atlantic Treaty Organization: Estonia's Conflicting Interests As A Party To The International Criminal Court, Barbi Appelquist

UC Law SF International Law Review

The United States has requested that states party to the ICC sign agreements-referred to as Article 98 treatiesexempting U.S. citizens from ICC jurisdiction. The EU has opposed Article 98 treaties on the grounds that they threaten the legitimacy of the ICC. This note evaluates the conflicting political pressure exerted on Estonia to either sign or refrain from signing an Article 98 treaty. Part One summarizes the theory of transplantation and how Estonia's relationships with the EU, NATO and the ICC have affected Estonia's international legal obligations and diplomatic options. Part Two analyzes Estonia's relations with the United States, NATO and …

The Byrd Amendment Battle: American Trade Politics At The Wto, Claire Hervey

UC Law SF International Law Review

The Byrd Amendment has been controversial in both domestic U.S. politics and in international trade law since its enactment. In the international sphere, the controversy surrounds its validity under the WTO, the world's strongest supranational legal regime. In the largest joint dispute resolution action in the history of the WTO, thirty countries challenged the Byrd Amendment as a violation of the ban on governmental subsidies, and won. The U.S. Congress failed to comply with this ruling by its implementation deadline (December 27, 2003) as well as with several other decisions of the WTO, deepening the rift between America and its …

Introduction Symposium Of The Japan Association Of The Law Of Civil Procedure: The Role Of The Judge In The Development Of Civil Litigation, Makoto Ito

UC Law SF International Law Review

This year's symposium focused on the role of the judge in development of civil litigation. The role of the judge is surely central to many aspects of civil procedure; as the authority and latitude of the judge expand, the authority and latitude of the lawyers may diminish. There is significant evolution of the role of the judge in Japan, Germany and the United States, but whether this evolution is proceeding at the same speed, or in the same direction, is a matter for discussion and further study.

Justice For Some - U.S. Efforts Under Article 98 To Escape The Jurisdiction Of The International Criminal Court, Cosmos Eubany

UC Law SF International Law Review

In April 2002, ten countries ratified the Rome Statute and deposited their instruments with the United Nations. These actions brought the International Criminal Court into force with over sixty ratifications. A month later, the United States declared that it no longer intended to pursue ratification of the treaty and asked to remove its signature from the statute. The United States then launched a campaign to ensure that its nationals would not fall within the jurisdiction of the Court. To ensure that the ICC does not gain jurisdiction over its nationals under any circumstance, the United States is currently seeking "non-surrender" …

Unmasking Crack_Smoking_Jesus: Do Internet Service Providers Have A Tarasoff Duty To Divulge The Identity Of A Subscriber Who Is Making Death Threats, Jon B. Eisenberg, Jeremy B. Rosen

UC Law SF Communications and Entertainment Journal

Based on a personal experience. During ongoing litigation, the authors' clients began receiving pseudonymous threats by email and on an Internet message board maintained by Yahoo! Inc. This experience led the authors to ask themselves a question: What should lawyers do when their clients receive anonymous death threats electronically during the pendency of litigation? In their case, the Federal Bureau of Investigation (FBI) determined the identity of the perpetrator and the local United States Attorney's office eventually commenced prosecution. However, pursuant to rules of federal grand jury secrecy, the perpetrator's identity still remained a secret. When the identity was sought …

The Perils Of Telemarketing Under The Telephone Consumer Protection Act Sending Unsolicited Faxes Costs Dallas Cowboys $1.73 Million, Leaves Dallas Mavericks Under Full Court Pressure, Paul J. Batista

UC Law SF Communications and Entertainment Journal

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to "protect the privacy interests" of outraged constituents who received annoying phone calls from telemarketers. The Act prohibits sending unsolicited faxes to unwilling recipients, and creates fines up to $1,500 for each individual fax. The Dallas Mavericks have been sued under the Act, creating potential liability of $135 million. Fax broadcasters have unsuccessfully challenged the Act under the First and Fifth Amendments. The Act grants jurisdiction to individual state courts, and a Georgia case has resulted in a final judgment of $11,899,000.

Jazz Photo And The Doctrine Of Patent Exhaustion: Implications To Trips And International Harmonization Of Patent Protection, Daniel Erlikman

UC Law SF Communications and Entertainment Journal

The doctrine of patent exhaustion prevents the patent owner from controlling the further destiny of the patented invention once the owner authorized the first sale or use of the product in the marketplace. In recent years, the United States Court of Appeals for the Federal Circuit advanced a modified rule of exhaustion, which permits the U.S. patent holder to contractually restrict the first purchaser's subsequent re-use or re-sale of the product. The recent Jazz Photo decision is a controversial and unjustified switch from existing U.S. jurisprudence in the field of patent exhaustion and parallel imports. By applying a territorial rule …

How To Constitutionally Protect Against Virtual Child Pornography, Emanuel Shiarzi

UC Law SF Communications and Entertainment Journal

The improvement of computer graphics and its resulting burden on prosecuting real child pornography led Congress to pass the Child Pornography Prevention Act (CPPA) of 1996. However, in addition to prohibiting virtual child pornography the CPPA banned many other areas of protected speech and was held unconstitutional in 2002. This article gives an overview of the First Amendment concerns of future virtual child pornography laws, the laws currently being proposed in Congress, and then proposes its own constitutional virtual child pornography law.

China And The Prior Consent Requirement: A Decade Of Invasion And Counter-Invasion By Transfrontier Satellite Television, Mei Ning Yan

UC Law SF Communications and Entertainment Journal

This paper examines and analyzes why the majority of television viewers in China can only have access to domestic television at the beginning of the 21st century, despite direct broadcasting by satellite, which respects no national borders being widely employed in Asia for a decade. By applying national broadcasting rules, this paper argues, the Chinese authorities have successfully given effect to the "prior consent requirement," a concept which was fiercely debated in the international arena and has supposedly long been discarded because of disagreement among nations and technological advances.

Speaking With Complete Candor: Shareholder Ratification And The Elimination Of The Duty Of Loyalty, J. Robert Brown Jr.

UC Law Journal

Under their fiduciary obligations, directors must act with complete loyalty to the companies they manage. This duty prohibits selfdealing by directors unless the transaction is fair to the corporation. Delaware courts have, however, weakened this standard by providing that self-dealing transactions approved by "disinterested" and informed shareholders are subject to the business judgment rule and can only be challenged for waste, which is virtually impossible to prove. The effect has been to eliminate fairness as a component of the duty of loyalty. This approach is inappropriate because "disinterested" approval does not eliminate interested influence, something not true in the context …

Identity Theft, Privacy, And The Architecture Of Vulnerability, Daniel J. Solove

UC Law Journal

No abstract provided.

Foreword: Expanding The Debate On Race, Poverty, Social Justice, And The Law, Margaret M. Russell

UC Law Journal of Race and Economic Justice

No abstract provided.

The Sound Of Silence: Thoughts Of A Sitting Judge On The Problem Of Free Speech And The Judiciary In A Democracy, Robert H. Alsdorf

UC Law Constitutional Quarterly

In the recent case of Republican Party of Minnesota v. White, the Supreme Court proclaimed a First Amendment right of free speech for elected judges. The majority's holding is marked by a critical omission: it reached its decision without performing an analysis of the role of either the state or the federal judiciary in the American democracy. The Court failed to acknowledge the Founders' apparent intent that state and federal courts perform the same function.

In our democratic and adversarial system, judges are to act essentially as referees, as impartial decision-makers. Judicial officers do not act in a representative capacity …

A Comparative Look At Anti-Stalking Legislation In The United States And Japan, Nga B. Tran

UC Law SF International Law Review

Even with anti-stalking laws in place in the United States, the persistence of stalking crimes is alarming. Providing victims with maximum protection under a legal system requires drafting constitutionally valid statutes, mandatory police education and training on the subject and prevention and early intervention. In addition, comparing the anti-stalking laws in the United States with the newly implemented anti-stalking laws in Japan, which have been very effective in curbing the activities of stalkers, leads to the conclusion that anti-stalking laws in the U.S. should incorporate many of Japan's victim-oriented measures.

Roles Of Judges And Attorneys Under The Non-Sanction Scheme In Japanese Civil Procedure, Koichi Miki

UC Law SF International Law Review

In many jurisdictions, the roles of judges and attorneys in modern civil procedure are becoming multi-faceted and, accordingly, more and more complex. This paper outlines the Japanese situation, focusing on the most recent reform of the Japanese Code of Civil Procedure (the New Code), which occurred in 1996. The reform introduced several innovative devices, none of which contained sanction provisions for implementation or enforcement of their legal effect. The inclination towards non-sanction schemes of this kind reflects the recent trend in reforms. The non-sanction scheme inevitably has an influence on the roles of judges and attorneys. Therefore, it is necessary …

Consent Forms As Part Of The Informed Consent Process: Moving Away From "Medical Miranda", Victor Ali

UC Law Journal

This Note examines the current ills of the law of informed consent and seeks to address these problems by calling for change on two levels. From a theoretical perspective, informed consent can be improved through closer adherence to a collaborative, autonomyenhancing model of medical decision-making, rather than the current harm-avoidance approach. On a practical level, this Note advocates for changes to the manner in which consent forms are used. Specifically, consent forms should be used as tools to increase patients' understanding of and participation in medical decisions, in contrast to the commonly held view of such forms as waivers of …

Golden Gateway And The Search Of A Fairer Application Of California's Constitutional Right To Free Expression, Eileen K. Chauvet

UC Law Journal

Over twenty years after its landmark decision in Robins v. Pruneyard Shopping Center, the California Supreme Court revisited the issue of constitutionally protected speech on private property. The resulting plurality opinion in Golden Gateway Center, Inc. v. Golden Gateway Tenants Ass'n clarified that free expression on private property may be protected by the state constitution only when that private property is freely open to the public. While the case showed a strong desire by members of the court to return to free speech jurisprudence more in line with the First Amendmentrequiring state action before a constitutional claim could be madethere …

Reclaiming Civil Rights In Uncivil Times, Eric K. Yamamoto

UC Law Journal of Race and Economic Justice

Three Cs: Celebration, Caution, and Challenge. Three C's of both worry and hope. The first C is to celebrate the Civil Rights Movement's accomplishments, then and now-the innumerable ways as the movement broadened it has bettered the daily lives of communities of color and, indeed, all Americans. The second C is caution-to caution against the dismantling of civil rights fueled in part by the conservative New Federalism. The third C is challenge-to envision our role in justice struggles in the post-September 11th Bush-Ashcroft era and, specifically, to think hard about what "Civil Rights" now means and why "Reclaiming Civil Rights' …

Beyond Reparations: Accommodating Wrongs Or Honoring Resistance, Natsu Taylor Saito

UC Law Journal of Race and Economic Justice

Reparations for historic wrongs, particularly those done to large groups of people on the basis of their racially constructed identity, is a topic of much current debate. Because the harm caused by such injustices can never really be repaired, the question becomes one of what kind of acknowledgement and direct compensation to victims is appropriate and, more fundamentally, whether the institutional structures that perpetuate such wrongs have been changed to ensure that the injuries are not perpetuated or repeated. Applying some lessons learned from redress to Japanese Americans interned during World War I, this essay suggests that movements for reparations …

Officer, Where's My Stuff - The Constitutional Implications Of A De Facto Property Disability For Homeless People, Kevin Bundy

UC Law Journal of Race and Economic Justice

As municipalities across the nation employ increasingly aggressive anti-homeless policies, homeless people are suffering seizure and destruction of their personal belongings without due process or compensation. Courts generally have not proven receptive to homeless people's claims based on loss of personal property, in some instances refusing to recognize that the homeless can exercise any legally protected property interest at all. Homeless existence itself-a lack of private, defensible space in which to perform basic life functions and secure ownership over personal belongings-leaves homeless people with no legally sanctioned place in which to dwell, and exposes them to arbitrary deprivations of whatever …

Immigration, Civil Rights, And Coalitions For Social Justice, Kevin R. Johnson

UC Law Journal of Race and Economic Justice

The treatment of "aliens," particularly noncitizens of color, under the U.S. immigration laws reveals volumes about domestic race relations in the nation. A deeply complicated, often volatile, relationship exists between racism directed toward U.S. citizens and that aimed at noncitizens. The United States has a long history of treating racial minorities in the United States harshly, at times savagely. Noncitizen racial minorities, as foreigners not part of the national community, generally have been subject to similar, although not identical, cruelties but also have suffered deportation, indefinite detention, and more. One need look to further than the treatment of Arab and …

Refugee Policy And Cultural Identity: In The Voice Of Hmong And Iu Mien Young Adults, Bill Ong Hing

UC Law Journal of Race and Economic Justice

U.S. refugee admission and resettlement policies have helped to shape the cultural identities of refugees in America in unanticipated ways. In this article, the author examines the effects of these policies on the young adult members of two small Laotian refugee groups-the Hmong and the Iu Mien. After reviewing the ad hoc admission and resettlement programs of the federal government, the author reviews a collection of interviews of young college students and discovers a range of attitudes on identity, mainstream culture, religion, and the desire to maintain ethnic culture. The cultural identity being developed by Ju Mien and Hmong young …

The Biology Of The Broadcast Flag, Susan P. Crawford

UC Law SF Communications and Entertainment Journal

The Motion Picture Association of America (MPAA) and its content affiliates would like all consumer electronics and information technology companies to innovate "according to the rules." The arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. But the content industry has hit on a very important way of thinking about law. We should pay attention to the evolutionary ecosystem of the law as the background medium in which innovation …

Racial Minorities And The Quest To Narrow The Digital Divide: Redefining The Concept Of “Universal Service”, Patricia M. Worthy

UC Law SF Communications and Entertainment Journal

The future of the United States as a nation depends, in large measure, on its ability to achieve equality for each member of its society. Historically there has been a national policy, known as universal service, of requiring that everyone should be provided the opportunity to receive basic telephone service at an affordable rate, regardless of geographic location or economic status. As computer technology developed, Congress and the Federal Communications Commission appropriately recognized its value. They have, through statutory mandates and regulatory policies, implemented various initiatives to achieve a universally level "playing field" to prevent a gap between information "haves" …

The Right Of Abode Cases: Hong Kong's Constitutional Crisis, Anne R. Fokstuen

UC Law SF International Law Review

This note examines the relationship between the Hong Kong Special Administrative Region ("HKSAR") and the People's Republic of China ("PRC") after the handover, and focuses on recent Court of Final Appeals ("CFA") decisions involving the interpretation of Hong Kong's Constitution, the Basic Law, in the "right of abode" context. The author analyzes the most recent decisions in the context of the unacknowledged political balancing act required by the judiciary in post handover Hong Kong and explores the outlook for the "one country, two systems" framework set up at the time of the handover.