Law Commons^™

Reflections On The Christchurch Massacre: Incorporating A Critique Of Islamophobia And Twail, Cyra Akila Choudhury

Faculty Publications

On March 15, 2019 in Christchurch, New Zealand, a white supremacist entered a mosque full of worshippers and gunned down over 50 people. He was welcomed into the house of worship as Muslim immigrants and converts were about to start their Friday prayers. News of the attack spread quickly across the globe. Social media news feeds and online sources provided near-instantaneous updates. There were calls to prioritize the lives and stories of the victims and survivors. Although there were calls not to glorify or even humanize the shooter, people understandably professed interest in his writings and his motivation. Once it …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Bilateral Investment Treaties And Domestic Institutional Reform, Richard C. Chen

Faculty Publications

The bilateral investment treaties (BITs) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. At the same time they are failing to produce meaningful benefits, these treaty commitments create substantial costs for the host states that make them, exposing them to liability and constraining their regulatory authority. Given this state of imbalance, the time seems ripe for a new approach, but existing proposals for revising …

Developing A Matrix For Intellectual Property As Subject Of International Law, Sam F. Halabi

Faculty Publications

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer's Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman. Paul Uhlir. and Tom Dedeurwaerdere have …

Rerum Novarum: New Things And Recent Paradigms Of Property Law, M C. Mirow

Faculty Publications

The two most recent paradigmatic moments in the development of property law were the construction of "social property" about a hundred years ago and of "international property" quite recently. This study analyses two important texts as illustrations of these changes: Leo XIII's encyclical Rerum Novarum (1891) and John Sprankling's book The International Law of Property (2014). Each text signals a paradigm shift in our understanding of property.

Corporate "Human Rights" To Intellectual Property Protection?, J. Janewa Oseitutu

Faculty Publications

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major …

Agricultural Biotechnology: Drawing On International Law To Promote Progress, J. Janewa Oseitutu

Faculty Publications

In Bowman v. Monsanto, the Supreme Court declined to apply the principle of exhaustion to limit the patentee’s ability to control the reproduction of self-replicating inventions. This decision was justified from a patent law perspective on the basis that patent holder has a right to prevent others from making the invention. But what happens when we take other perspectives into account? For instance, a farmer might have human rights or other rights that may need to be balanced against the patentee’s right. Since globalized intellectual property standards were established through international agreements and much of the resistance to intellectual property …

The United States As A Refuge State For Child Abductors: Why The United States' Fails To Meet Its Own Expectations Relative To The Hague Convention, Andrew Zashin

Faculty Publications

This paper asserts that the only way true progress can be made regarding this problem is for the United States to acknowledge that this serious problem actually exists. One has to look beyond the feel-good statistics and congratulatory press releases to see that the existing system, including the application of the Hague Convention on Child Abduction, fails LBPs. Until the nature and scope of the problem is identified and examined, the United States will continue to be a refuge state for child abductors.

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Prosecuting Those Bearing 'Greatest Responsibility': The Lessons Of The Special Court For Sierra Leone, Charles Chernor Jalloh

Faculty Publications

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …

The Full Story Of U.S. V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

Faculty Publications

No abstract provided.

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

Taking International Law At Its Word And Its Spirit: Re-Envisioning Responsibility To Protect As A Binding Principle Of International Law, Tessa R. Davis

Faculty Publications

No abstract provided.

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

The Latin American Tradition Of Legal Failure, Jorge L. Esquirol

Faculty Publications

No abstract provided.

A Sui Generis Regime For Traditional Knowledge: The Cultural Divide In Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law.

Developing countries have been more supportive of an international traditional knowledge …

Law On The Books Vs. Law In Action: Under-Enforcement Of Morocco’S Reformed 2004 Family Law, The Moudawana, Ann M. Eisenberg

Faculty Publications

Morocco shares cultural, religious, and linguistic roots with more conservative countries in the region, yet the Moroccan government has interpreted similar traditions to yield the starkly different stance that gender equality is desirable. Morocco’s Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women. Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its fidelity to other Islamic law principles in giving Moroccan women unprecedented rights. While the new Moudawana has provisions addressing inheritance, children’s rights, and assets within a marriage, this …

Traditional Knowlege: Is Perpetual Protection A Good Idea?, J. Janewa Oseitutu

Faculty Publications

Most of the international dialogue about traditional knowledge has taken place within the context of an intellectual property framework with the World Intellectual Property Organization (WIPO) as the primary facilitator of the discussion. Following more than a decade of dialogue, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) has been given until the Fall of 2011 to come up with something concrete. Due to the intersection between traditional knowledge and intellectual property, the resulting text is likely to be a significant development for international intellectual property law.

Developing countries have long advocated …

Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford

Faculty Publications

No abstract provided.

From Kosovo To Catalonia: Separatism And Integration In Europe, Christopher J. Borgen

Faculty Publications

In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo's declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the …

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele

Faculty Publications

In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

The Language Of Law And The Practice Of Politics: Great Powers, Small States, And The Rhetoric Of Self-Determination In The Cases Of Kosovo And South Ossetia, Christopher J. Borgen

Faculty Publications

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages.

This Article seeks to elucidate what …

Bus Bombings And A Baby's Custody: Insidious Victories For Terrorism In The Context Of International Custody Disputes, Andrew Zashin

Faculty Publications

This article will address the problematic intersection of terrorism and child custody battles. The most immediate consequences of a terrorist attack are loved ones lost and buildings reduced to rubble. These losses are devastating, shocking and scary. But to end an analysis of terrorist victories with a body count is a fatal mistake. Americans fervently shout we cannot let "them" win, but how do we decide if they are winning? What do the terrorists want? It is not the goal of terrorists to simply kill Americans, causing death and destruction. That is merely a horrific means to their end. Terrorists …

Babes With Arms: International Law And Child Soldiers, Timothy Webster

Faculty Publications

This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.

Whose Public, Whose Order? Imperium, Region, And Normative Friction, Christopher J. Borgen

Faculty Publications

Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning …