Law Commons^™

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

Patently Unconstitutional: The Geographical Limitation On Prior Art In A Small World, Margo A. Bagley

Faculty Articles

Part I of this Article provides an overview of § 102 of the Patent Act, the role of prior art in the patentability analysis, and the origin of the limitation on relevant non-patent, nonpublished art to that existing "in this country." Part II then analyzes the constitutional deficiency of the limitation in light of the express and implied purposes of the Intellectual Property Clause as informed by judicial decisions, technological changes, global contraction, and expanded notions of inventive research sources. Policy concerns are the focus of Part III, which discusses how § 102's geographical limitation facilitates forms of "biopiracy," conflicts …

Still Patently Unconstitutional: A Reply To Professor Nard, Margo A. Bagley

Faculty Articles

In Defense of Geographic Disparity is Professor Craig Nard's response to my article Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World (Patently Unconstitutional). According to Professor Nard, my article advocates "the elimination of [the] geographic disparity" of 35 U.S.C § 102 in order to "protect developing nations and indigenous peoples from Western countries' patent law regimes." Professor Nard is correct in his assertion that I seek the elimination of the geographical disparity in U.S. patent law; however, he misses the mark as to my reasons. My opposition to the geographical limitation does not derive from …

Globalization In A Fallen World: Redeeming Dust, Emily A. Hartigan

Faculty Articles

The paradigm used in discussions about academic globalization is the “rational” discourse of the late twentieth century. This paradigm is manifested in university and political-cultural commentary in the United States and Great Britain. The term “globalization” immediately evokes a paradox. The paradox of the globe is it risks confusing itself with the universe. One key axis of of the paradox is between “good” globalization and “bad” globalization, another between the “is” and the “ought” of globalization.

A world-wide culture, democracy, or economy is inherently fallen. Attending to the forces that would pull us back together is one key to overcome …

Dueling Democracies: Protecting Labor Representation Elections From Governmental Interference, John W. Teeter Jr

Faculty Articles

Public officials should be free to support or oppose unionization, but we must prevent their electioneering from undermining the industrial democracy of labor representative elections. Such elections are designed to be freely held; workers decide whether they wish to be represented by a union for purposes of collective bargaining. This choice of whether to unionize is for the workers alone without any governmental favoritism or coercion.

Government officials however have repeatedly jeopardized laboratory conditions by campaigning in labor representation elections. The Board should reassure workers of their right to cast uncoerced ballots, clarify that the political officials are not declaring …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The Texas Legislature passed Sunset Legislation that distinguished between securities dealers and investment advisors that allowed the Texas Securities Act (“TSA”) to comply with national trends in securities regulation. The court struggled with definitions of “control person” and “evidence of indebtedness.” However, the Sunset Legislation allowed the expanded Board to submit emergency cease and desist orders and to conduct surprise inspections of registered dealers and sellers of securities. Violation of a cease and desist order became a criminal offense.

The Sarbanes-Oxley Act increased the existing statute of limitations under the federal securities laws for private causes of action involving claims …

Las Marcas En El Tratado De Libre Comercio De America Del Norte, Roberto Rosas

Faculty Articles

In this essay, the author analyzes the regulation of trademarks in the NAFTA and its influence on Mexico's legislation on that matter. In the first part, the author explains in general terms the content of the NAFTA, and afterwards, he refers to the rules of Chapter XVII on industrial property. Moreover, he explains the protection derived from this agreement in connection with trademarks, and later, he refers to the normative framework of trademarks in Mexico, which is a result both of legislation and international treaties. Finally, he makes a comparison between Spanish Law on Trademarks of 2001, the rules of …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas

Faculty Articles

A comparative analysis of electronic contract formation law in the United States, Mexico, and the international arena is necessary to understand the evolution and future of electronic contracting. Using new communication technologies, such as developmental instruments of electronic commerce, has clear benefits, but also brings risks and uncertainties to electronic contracting. Although modern laws tend toward uniformity in modern transactions, certain aspects may still cause controversy. In purely electronic transactions, the most important legal determination concerns the establishment of an offer and an acceptance, memorialized through electronic messages absent written documentation and the human intervention of an automatic exchange. Consequently, …

Letters And Postcards We Wished We Had Sent To Gary Bellow And Bea Moulton, Marilyn Berger, John Mitchell, Annette Clark

Faculty Articles

To celebrate the 25th anniversary of the publication of Gary Bellow's and Bea Moulton's The Lawyering Process, this essay consists of eleven letters and postcards about how The Lawyering Process inspired the writing of the authors’ books - Pretrial Advocacy: Planning, Analysis & Strategy and Trial Advocacy: Planning, Analysis & Strategy. Alas, this correspondence is imaginary because that exchange of ideas did not take place. This method was inspired by the medieval letters of Abelard and Heloise and the modern-day fictional postcards and letters of Griffin and Sabine. Tracing the evolution of their thoughts from first reading the Bellow and …

(Racial) Profiles In Courage, Or Can We Be Heroes, Too?, Robert S. Chang

Faculty Articles

This article begins with the controversy over a proposed monument based on a widely disseminated photograph of three firefighters raising the American flag over the ruins of the World Trade Center. The three firefighters were White. The proposed monument would have had one White firefighter, one Black, and one Hispanic. This article argues that the controversy over the proposed monument serves as a microcosm for the larger and more important struggle over racial and gender diversity within fire departments, generally.

Serving Pro Se Patrons: An Obligation And An Opportunity, Kerry Fitz-Gerald

Faculty Articles

Historically, non-lawyer patrons in law libraries have been viewed with discomfort, and library services, even in libraries open to the public, have been geared toward members of the legal community. However, changes in both the needs of the public and in the demographics of library patrons are challenging the traditional allocation of services in public law libraries. This article discusses the reasons for the traditional allocation of services, the cultural and economic forces that are bringing the public to law libraries in greater numbers, and new modes of service that can better meet the needs of public patrons.

Risk Avoidance, Cultural Discrimination, And Environmental Justice For Indigenous Peoples, Catherine O'Neill

Faculty Articles

This article begins with the recognition that environmental justice for Native peoples requires attention to the interrelated cultural, spiritual, social, ecological, economic, and political dimensions of environmental issues. It observes, moreover, that “environmental justice requires an appreciation of each tribe’s particular historical circumstances and contemporary understandings, including each group’s aspirations for the flourishing of its culture.” It contends that some environmental decision makers and commentators have increasingly come to embrace “risk avoidance” – strategies that call upon risk-bearers to alter their practices in order to avoid the risk of environmental harms – in lieu of risk reduction – strategies that …

Policy Choices And Model Acts: Preparing For The Next Public Health Emergency, Ken Wing

Faculty Articles

This article explores policy choices and model acts related to public health administration in the U.S. This article provides information of the general public or state policymakers concerning important policy choices, variation of the pre-existing legal structure in each state, and the principles of separation of powers in limiting legislature's ability to delegate legislative-type decisions.

Erisa: A Co-Fiduciary Has No Right To Contribution And Indemnity, George Lee Flint Jr, Philip W. Moore Jr

Faculty Articles

Because retirement plans involve large amounts of money, large numbers of people, and fiduciaries with conflicts of interests, Congress designed ERISA to differ from traditional trust law to meet these specific needs and important policy concerns. Before ERISA, fiduciaries and employers often manipulated lack of oversight and conflict of interests to the detriment of the beneficiaries. ERISA raised the standards owed by fiduciaries and established a policing system that required professional fiduciaries to monitor non-professional fiduciaries, thereby forcing non-professional fiduciaries to leave the field or seek expert advice. These provisions created co-fiduciary liability by imputing the liability of the co-fiduciary …

Proposal For A New Executive Order On Assassination, Jeffrey F. Addicott

Faculty Articles

Both clarity and respect for the rule of law demands that a new executive order on assassination be enacted that properly defines the term “assassination” and is couched in the legal parameters of self-defense. In prosecuting the War on Terror, the United States has confronted myriad issues concerning how best to deal with the new threat of al-Qaida-styled terrorism and those rogue nations that support terrorism. The two principle documents associated with these concerns are the National Security Strategy of the United States of America ("National Security Strategy") released by the White House on September 17, 2002 and Executive Order …

Law School Branding And The Future Of Legal Education, Michael S. Ariens

Faculty Articles

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

Involuntary Treatment Of The Mentally Ill: Autonomy Is Asking The Wrong Question, Dora W. Klein

Faculty Articles

When determining if involuntary treatment is appropriate, the proper question for courts to ask is not whether autonomy is preferable to involuntary treatment, but whether no treatment at all is preferable to involuntary treatment. When legislatures develop and courts apply statutes governing civil commitment, the interests at stake should be considered not at the abstract level of "freedom" or "autonomy," but rather at the concrete level of the consequences that are likely to result from providing or not providing involuntary treatment. Only by examining the particular interests that are likely to be affected can informed decisions be made about when …

“Soldiering On In Hope”: United Nations Peacekeeping In Civil Wars, Anna Roberts

Faculty Articles

This note will examine the consequences of the Security Council’s decisions to deploy under-resourced operations to civil war situations and various proposed means by which the Security Council might more effectively fulfill its responsibilities. Part II will look at a number of post-Cold War U.N. operations in civil wars—UNPROFOR in Croatia and Bosnia, United Nations Operation in Somalia I (UNOSOM I), United Nations Assistance Mission for Rwanda II (UNAMIR II), and United Nations Mission in Sierra Leone (UNAMSIL)—and show how, at least partly because of the Security Council’s failure to ensure that the operations it authorized were provided with sufficient …

Seasons Of Resistance: Sustainable Agriculture And Food Security In Cuba, Carmen G. Gonzalez

Faculty Articles

Beginning in the mid-1990s, Cuba embarked upon a transformation of the agricultural sector that has been hailed by some observers as a model of socially equitable and ecologically sustainable agriculture. Cuba shifted from an export-oriented, chemical-intensive agricultural development strategy to one that promoted organic agriculture and encouraged production for the domestic market. This article places Cuba's agricultural reforms in historical context by examining the evolution of Cuban agriculture from the colonial period until the present through the lens of food security and ecological sustainability. The article argues that Cuba, for most of its history, was food insecure and ecologically compromised …

“Forget The Alamo”: Race Courses As A Struggle Over History And Collective Memory, Robert S. Chang

Faculty Articles

This article discusses issues related to the study and teaching of race and ethnicity. Professor Chang explains the way race is taught or not taught in law schools is reflective of the historical and factual predicates we want our students to have. Faculty diversification can have an impact on the courses that are taught. Most, if not all, of the courses on critical race theory are taught by faculty-of-color. Most of the primary courses on Latinas/os and the law are taught by Latinas/os. If more related and primary courses are going to be offered by schools, then it seems that …

Syllabus: Asian Americans And The Law, Robert S. Chang

Faculty Articles

This is the accompanying syllabus to the essay by Professor Chang, “Teaching Asian Americans and the Law: Struggling with History, Identity, and Politics.” The article explores the goals and challenges in constructing a course on Asian Americans and the Law. In his course on Asian Americans and the Law, Professor Chang tries to include in the weekly reading packets history, narratives, and cases. Professor Chang includes the narratives because he has found that the students often have a difficult time relating to the history without them. After all, narratives bring life to history, making it easier for students to relate …

Teaching Asian Americans And The Law: Struggling With History, Identity, And Politics, Robert S. Chang

Faculty Articles

In this brief article, Professor Chang explores the goals and challenges in constructing a course on Asian Americans and the Law. In his course on Asian Americans and the Law, Professor Chang tries to include in the weekly reading packets history, narratives, and cases. Professor Chang includes the narratives because he has found that the students often have a difficult time relating to the history without them. After all, narratives bring life to history, making it easier for students to relate to and/or identify with the historical persons who occupy very different subject positions with regard to race, nationality, immigration …

Resisting Medicine/Remodeling Gender, Dean Spade

Faculty Articles

In this article, Dean Spade explores the problematic role of medicine in pushing for trans rights. Spade uses a combination of personal narrative of his own interaction with the healthcare system and his experience with legal advocacy on behalf of transgender and gender nonconforming clients. He reveals how the medicalization of trans identity, by categorizing it as a mental health disorder called Gender Identity Disorder, serves to reaffirm that everyone should either be male or female. Spade further asserts this medicalization can be problematic when advocating for the legal rights of gender nonconforming individuals. For example, he points out that …

The Sojourner’S Truth And Other Stories, Robert S. Chang

Faculty Articles

In this introductory essay to a cluster of articles on Migrations, Citizens, and Latinas/os, Professor Chang frames the work of Ruben Garcia, Camille Nelson, and Victor Romero as setting forth what might be described as truths that can be learned from the sojourner/immigrant. This essay argues that the sojourner/immigrant's contributions to U.S. society are often ignored or discounted, which may be due to a willful amnesia because we do not want to think about what we might owe the sojourner/immigrant with regard to her entry into the United States, her stay, and her departure.

Legal Obstacles To Bringing The Twenty-First Century In The Classroom: Stop Being Creative, You May Already Be In Trouble, Andre Hampton

Faculty Articles

There are unimaginable benefits available if legal educators can bring the law classroom into the twenty-first century through the use of popular media and celebrities in their teaching. With the introduction of “pop culture,” the professor can permanently alter the student's view of the course material. Bringing pop culture into the classroom will make the course material more relevant to our students’ lives outside the classroom. This will enhance both their willingness and their ability to master legal concepts.

There are two major obstacles to bringing pop culture into the classroom. The initial major obstacle is the Copyright Act of …

The Princess And The Pea: The Assurance Of Voluntary Compliance Between The Texas Attorney General And Aetna's Texas Hmos And Its Impact On Financial Risk Shifting By Managed Care, Brant S. Mittler, Andre Hampton

Faculty Articles

The Texas Attorney General attempts to regulate managed care organizations and their shifting of financial risk by utilizing Assurance Voluntary Compliance to make the costs associated with the provisions of health insurance more transparent. A primary technique used to shift financial risk to providers of healthcare services is through the use of downstream entities which are commonly provider-sponsored organizations. It is the relationship between the downstream entity and the individual physicians that ultimately affects patient care, the doctor-patient relationship, and the quality of care. The regulatory community throughout the United States has made the regulation of downstream entities its number …

A Resource Guide To Tax Law Careers, Robert H. Hu

Faculty Articles

This Guide is designed to assist law students and attorneys in the pursuit of careers in tax law. It is also intended for librarians and career counselors to readily find tax law career information so that they can assist their clients effectively. It includes resources in both print (for example, books and articles) and electronic formats (for example, Web sites). Each item included has a brief annotation so that the user can quickly decide the relevancy and value of that item.

Distinguishing The Concept Of Strict Liability In Tort From Strict Products Liability: Medusa Unveiled, Charles E. Cantú

Faculty Articles

The justifications for strict products liability and other cases of strict liability in torts are different and distinct. The United States judiciary has limited strict liability in tort law to seven distinct scenarios: (1) animals that are trespassing, are domesticated but vicious, or are wild by nature; (2) fact situations involving ultra-hazardous activities; (3) nuisance; (4) misrepresentation; (5) vicarious liability; (6) defamation; or (7) a workman’s compensation statute.

Strict liability is imposed for harm caused by animals capable of inflicting extensive harm. It also justifies liability for ultra-hazardous activities on the basis that an individual undertakes an activity that is …

Secured Transaction History: The Impact Of English Smuggling On The Chattel Mortgage Acts In The Spanish Borderlands, George Lee Flint Jr, Marie Juliet Alfaro

Faculty Articles

Spanish colonies, including the territories of Florida, Louisiana, and southwestern America, acknowledged the jurisdiction of Spanish royal decrees. The colonies approached the registration of mortgages in a similar but more tentative fashion, recognizing the distances between the borderlands and the registrar’s offices. The law developed differently in Florida and Louisiana, which were administered by a different governmental body. While the registration process was required for chattel mortgages on slaves, there is no evidence the rules were enforced or applied to other types of mortgages on personalty. However, in 1770, Louisiana adopted a filing requirement for chattel mortgages for all slaves …