Law Commons^™

Rebalancing Intellectual Property In The Information Society: The Human Rights Approach, Ana Eduarda Santos

Cornell Law School Inter-University Graduate Student Conference Papers

In today's Information Society, one of the most salient paradoxes is the fact that the law of intellectual property has been systematically used in ways that erect barriers around the very building blocks that lie at its foundation. As intellectual property law stretches to cover all kinds of information-intensive goods at an atomic level, access to raw data and educational materials is hindered, creative inputs shrink and scientific research becomes harder, costlier and, in some cases, virtually impossible.

The set of limitations and exceptions offered by intellectual property laws around the world tends to be either too frail or too …

Reflections On The Development Of The Eu Law, Novitet Xh. Nezaj

Cornell Law School Inter-University Graduate Student Conference Papers

My aim in this article is to examine ways in which the present system of legal thinking and legal methodologies could be improved through careful examination and verification of factual data. There is a widely held view among legal scholars that legal global system is in need of reform. By studying the real operations of law, one should discover the facts constituted the law. This article will examine the extent to which it is possible to identify a coherent legal method that may be applied when analyzing European Union Law and the law of European Member States within application of …

Evidence Obtained By Cruel, Inhuman Or Degrading Treatment: Why The Convention Against Torture’S Exclusionary Rule Should Be Inclusive, Akmal Niyazmatov

Cornell Law School Inter-University Graduate Student Conference Papers

Convention against Torture (CAT) prohibits admissibility of evidence obtained by torture but fails to extend similar prohibition to evidence obtained by cruel, inhuman or degrading treatment (CIDT evidence). Manfred Nowak argues that CAT's failure to prohibit CIDT evidence can be resolved if in interpreting torture we take the purposive element, instead of severity, as the main element that distinguishes torture from CIDT. He argues that both torture and CIDT require infliction of severe pain and thus it must be the purpose for which severe pain was inflicted that distinguishes torture from CIDT. If the purposive element is key in distinguishing …

Universal Jurisdiction Not So Universal: A Time To Delegate To The International Criminal Court, Dalila V. Hoover

Cornell Law School Inter-University Graduate Student Conference Papers

The exercise of universal jurisdiction in cases involving crimes under international law remains highly debated and underlines a certain number of legal and political issues in its implementation. Because the principle of universal jurisdiction relies on national authorities to enforce international prohibitions, pivotal decisions are expected to reflect, to a greater or lesser extent, domestic decision-makers’ positions as to the interests of justice, the national interest and other criteria. In many States, the legal system lacks the means to investigate or prosecute on the basis of universal jurisdiction. Indeed, many legal systems do not define the term “crimes” that can …

Piracy Off The Coast Of Somalia: In Search Of The Solution, Alexandr Rahmonov

Cornell Law School Inter-University Graduate Student Conference Papers

Piracy it is not a phenomenon of the past. Modern piracy has become a profitable business, especially off the coast of Somalia, where thousands of pirates are currently involved in criminal activity targeting all kinds of vessels from fishing boats to oil supertankers. Only in 2009, Somali pirates committed about 217 attempted and actual attacks. As a response, the UN Security Council has passed several resolutions authorising military raids against pirates "on land and by air" and requested the Secretary-General to submit a report offering effective counter-piracy measures. Drafted in July 2010, the "Report on possible options to further the …

Veil Or No Veil? Are We On The Right Track?, Rayhan Asat

Cornell Law School Inter-University Graduate Student Conference Papers

In recent years, it is ironic that a simple Muslim headscarf became one of most contentious and controversial political, culture, religious and human rights issue in various countries around the world. The Muslim headscarf affair has given rise to heated debate in Europe in particular. Extensive scholarship literature contributed to this debate from various aspects, including from the banning of the Niqab from a public sphere, to institutional education and from the courtroom context. One has to acknowledge that few expressions of faith today cause as much fear and loathing in plural democracies as the Muslim headscarf has. I intend …

Jurisprudence Of A Fledgling Federation: A Critical Analysis Of Pakistan’S Judicial View On Federalism, Umer Akram Chaudhry

Cornell Law School Inter-University Graduate Student Conference Papers

Although the impediments in development of federation in Pakistan can be explored from different facets, this paper aims to critically analyze the constitutional history and judicial interpretation of federalism in Pakistan against the scholarly and conceptual debates over the idea. The paper argues that Pakistan’s judiciary, despite recognizing federalism as cornerstone of the Constitution, has not upheld the principle as strongly as other salient features of the Constitution. The superior judiciary has strengthened the official discourse of a unitary national identity leaving little room for ethnical pluralism and participatory nationalism. The paper shall also review measures introduced by the recent …

Biases In Domestic Violence Criminal Decision Making: Are System Actors Lenient In Domestic Violence Cases?, Silvana Del Valle

Cornell Law School Inter-University Graduate Student Conference Papers

This essay makes a review of studies about the presence of biases against victims in the Judicial Decisionmaking of Domestic Violence (DV) crimes. The global recognition of the phenomenon has promoted a legal reform movement, in which the United States has been part. The first reform in the topic in the US was the Violence Against Women Act (VAWA) of 1991. This federal statute detected biases not only in the judges, but also in other criminal prosecution actors -police departments and prosecutors. Then, it introduced research funds and legal tools to fight against biases, under the premise that DV is …

Sks Microfinance And For-Profit Mfis, Unscrupulous Predators Or Political Prey? Examining The Microfinance Credit Crunch In Andhra Pradesh And Assessing The Applicability Of The Un Global Compact "Protect Respect Remedy" Framework, Ashley Feasley

Cornell Law School Inter-University Graduate Student Conference Papers

Microfinance is the practice of originating small loans and capital infusions in developing countries to poor individual families and small businesses that are outside traditional banks. Today microfinance has grown into a multi-billion dollar industry that has stakeholders in the financial services industry, private international organizations (including non-governmental organizations ("NGOs")) and global politics. The successful initial public offering ("IPO") of SKS Microfinance, ("SKS") a for-profit microfinance institution ("MFI") in August 2010 marked the pinnacle of success for the theory that for-profit MFIs could eradicate poverty while simultaneously making a huge profit through microfinance. The extremely successful SKS IPO bolstered the …

Name Calling On The Internet: The Problems Faced By Victims Of Defamatory Content In Cyberspace, Sarudzai Chitsa

Cornell Law School Inter-University Graduate Student Conference Papers

In the past decade or so, internet libel has become one of the hot topics in internet law. Internationally, courts have dealt with an enormous amount of cases brought by both the suppliers and consumers of the internet services. Although the advent of the World Wide Web has come with many legal problems; this paper will only focus at the problems that are being faced by the victims of defamatory speech on the internet in trying to seek compensation through the courts. These problems include, inter alia, the reluctance of the courts in unmasking the identity of the authors of …

In Light Of Oklahoma Sq 755: How Islamic Law Antecedes In Solving Minorities’ Personal Law Issues?, Mansour A. Alhaidary

Cornell Law School Inter-University Graduate Student Conference Papers

In November 2010, a proposal was passed to amend Section 1 of Article VII of the Oklahoma State Constitution to prevent considering Sharia Law in making judicial decisions as well as international law. This amendment is being challenged in the court by Muslims and a temporary restraining order has been granted. In this paper, I will show, in contrast to what Oklahoma legislators wanted to enact, how Islamic law of 1400 years ago provided freedom of application of personal law for religious minorities more than any other legal system. Although other legal systems provide one type of freedom or another, …

The China Currency Issue: Why The World Trade Organization Would Fail To Provide The United States With An Effective Remedy, Marcus Sohlberg

Cornell Law School Inter-University Graduate Student Conference Papers

A critical issue in the global trading system that came to the forefront in 2010 concerns exchange rates. Having suffered to various degrees through the worst economic and financial downturn since the Great Depression, many large trading nations have sought to achieve economic recovery through export-led growth. In order to boost international competitiveness, many have engaged in competitive devaluations, i.e. interventions in currency markets to devalue domestic currency. According to Brazilian Finance Minister Guido Mantega this situation has escalated into a “global currency war”.

This paper focuses on China’s practice of maintaining an artificially undervalued currency, and addresses the question …

Rebalancing Oil Contracts In Venezuela, Julián Cárdenas García

Cornell Law School Inter-University Graduate Student Conference Papers

During the last decade, the Venezuelan government has pursued a reform of the legal regime of hydrocarbons tailored to its interests as an oil producing country. However, the ongoing consequences of the global economic recession which negatively impacted the Venezuelan economy, call into question the suitability of such scheme. Confronting the challenge of attracting foreign investment, the methods of awarding contracts used by the Venezuelan Government have contributed to the approval of a series of incentives which are rebalancing the contractual conditions for new oil ventures. Royalty and tax reductions, access to international arbitration and the protection granted through bilateral …

Rethinking Free Trade, Fernando L. Leila

Cornell Law School Inter-University Graduate Student Conference Papers

This paper examines the present theories and shortcomings of current free trade policy, and the consequences thereof, which promote protectionist behavior among countries on an international scale. Theoretically, free trade should encourage progress within the global community. However, developing countries, with astonishing growth rates, like Brazil, China or India, have based their economies on opposing economic policies, closer to mercantilism than liberalization or free trade, allowing for poor countries to question whether free trade is the right way to improve their economies. Furthermore, a huge gap exists between what developed countries preach and what they practice, presenting a major obstacle …

Electricity Merger Control In The Light Of The Eu "Third Energy Package", Jorge Velasco Fernández

Cornell Law School Inter-University Graduate Student Conference Papers

After more than two years of legislative proceedings within the European Union Institutions, the “third energy package” –a set of legislations conceived to lead the EU electricity and gas markets to a complete integration and liberalization - was published on August 2009. Nonetheless, the set of legislations was not passed without long discussions on some of its cornerstones, particularly in that related to the unbundling provisions in the electricity markets.

Against this backdrop, the EU merger control applied by the European Commission faces new challenges. The role that the EU merger regulation should play in the liberalization process arena is …

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

National Security Review Of Foreign Mergers And Acquisitions Of Domestic Companies In China And The United States, Kenneth Y. Hui

Cornell Law School Inter-University Graduate Student Conference Papers

China’s recently enacted Anti-Monopoly Law has received much academic attention. In particular, many articles and comments have been written about Article 31 of the Anti-Monopoly Law, a provision on national security review of foreign mergers and acquisitions of domestic companies. The provision has often been labelled as draconian and protectionist. This paper argues that Article 31 is not necessarily so. Article 31 is actually, to a large extent, in line with the national security provisions found in liberal economies. By taking a comparative approach, this paper will demonstrate the similarities between the national security laws in China and the United …

A Legal Appraisal Of The West African Free Trade Area, Adedokun O. Ogunfolu

Cornell Law School Inter-University Graduate Student Conference Papers

African countries after independence in the latter half of the twentieth century embraced the formation of Free Trade Areas (FTAs), provided for under Article XXIV of the General Agreement on Trade and Tariffs (GATT 1947), as an exception to Article I Most Favored Nation (MFN) clause. FTAs were the adopted anodyne to reverse systemic underdevelopment wrought by departing colonialists from Europe and the emergence of the European Union. Sub-Saharan Africa encompasses West Africa, and accounted for 1.1 per cent of world trade in 1991. West African share of world exports with the exception of Nigeria fell from 1.6% in 1980 …

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must …

Does One Size Fit All? A Comparative Study To Determine An Alternative To International Patent Harmonization, Rohan K. George

Cornell Law School Inter-University Graduate Student Conference Papers

The Agreement for Trade Related Aspects of Intellectual Property Rights (TRIPS) was ratified by a majority of the countries of the world in 1994 as a precondition to membership in the World Trade Organization. Today, 153 of the countries of the world are parties to the TRIPS Agreement. The effect of the TRIPS Agreement was to create the first international substantive standards of patent harmonization, and to cause many countries to adopt intellectual property laws far stronger than they had in existence at the time. Today, the process of patent harmonization initiated with the TRIPS Agreement moves forward, through a …

Behind Close Doors: Governance Issues In Private Equity Driven Industries – The Close Corporation Paradox And Its Impact On Private Equity In The Us And Sweden, Kristian Hermanrud

Cornell Law School Inter-University Graduate Student Conference Papers

Publicly traded companies make up only a small fraction of the vast number of corporations operating in the US today. Only about 10,000 companies are traded publicly while there are roughly 20 million corporations doing business in the US. Likewise, over 245 private corporations’ annual revenues exceed $1 billion. Among these, more than twelve employ more than 50,000 employees. Despite the influence on vast amounts of people and capital legislature has, to a large degree, focused on publicly traded companies. The reasons for this stem, in large, back to the years of the market crash in the early thirties and …

‘Right Of Selfishness’ Vis-À-Vis Media Pluralism In The Us And In Europe: The Crucial Role Of Broadcasting At The Verge Of Private Enterprise And Public Trusteeship, Niels Lutzhoeft

Cornell Law School Inter-University Graduate Student Conference Papers

Few areas of law raise the question as to the delimitation of the public vis-à-vis the private sphere as forcefully as broadcasting does. And few businesses display the dual nature inherent in nature radio and TV broadcasting: economic versus cultural good. In Continental Europe, until the 1980s, broadcasting was subject to State monopolies that ought to ensure media pluralism. Likewise, the U.S. Supreme Court, embracing a scarcity rationale, qualified the First Amendment in the realm of broadcasting primarily as a right of the listeners and viewers to receive a wide array of information and opinions. In Red Lion, the Court …

Banking Supervision And Its Regulations — Comparative Study Between U.S. And China, Han Deng

Cornell Law School Inter-University Graduate Student Conference Papers

The health of the economy and the effectiveness of monetary policy depend on a sound financial system. A smoothly functioning banking supervision regime is one of the cornerstones of any financial system. Only a stable financial system, which is one of the key aims of state regulation and oversight, can optimally fulfill its macroeconomic function of efficient and low-cost transformation and provision of financial resources. A global financial meltdown will affect the livelihoods of almost everyone in an increasingly inter-connected world. The primary goals of supervision and regulations include protecting depositors' funds, maintaining a stable monetary system, promoting an efficient …

Toward A Public Trust Doctrine In Copyright Law, Haochen Sun

Cornell Law School Inter-University Graduate Student Conference Papers

As a full-fledged legal tool in property and environmental law, the public trust doctrine has played an important role in deterring inappropriate exploitation of natural resources and improving protection of the environment. In this article, I explore the possibility of introducing the public trust doctrine into copyright law and explain why we need to expand the use of the public trust doctrine from natural resources to knowledge and information as informational resources. By and large, I demonstrate that compared with the Copyright Clause and the First Amendment, the public trust doctrine, if introduced into copyright law, can create more effective …

The United Nations Declaration On The Rights Of Indigenous Peoples: A New Dawn For Indigenous Peoples Rights?, Ronald Kakungulu

Cornell Law School Inter-University Graduate Student Conference Papers

Governments in many countries of the world struggle with how to accommodate properly the needs and claims [rights] of native/indigenous peoples within their jurisdictions whose presence long predates European conquest and occupation. In this paper, a comparison and contrast of the approaches of the African and other jurisdictions whose jurisprudence is informative to the protection of the rights of African indigenous peoples, like the Inter-American Court of Human Rights compared with the US, Canada, New Zealand and Australia ‘the big four’ who voted against the UN Declaration on the Rights of Indigenous on September 13, 2007 at the UN General …

Minimalism: An Implication For American Judicial Review Of Legislation In Deciding Over Rights?, Luz Helena Orozco Y Villa

Cornell Law School Inter-University Graduate Student Conference Papers

The diverse theories of constitutional interpretation in the United States share one strong common purpose: to constrain the adjudicator. Whether is text, tradition, structure or democracy, the prevailing fear behind these reasons is the inescapable empowerment of the “least dangerous branch” that comes with judicial review. This anxiety can be explained through the analysis of the systemic and contextual factors in American constitutionalism. Furthermore, because of the constitutional structure of the United States, there is a permanent tension in judicial activity between certainty and legitimacy. Therefore, I defend a minimalistic approach for judicial review of legislation, particularly in cases dealing …

Gender Equality In Reconciling Work And Childcare In South Korea, Kook Hee Lee

Cornell Law School Inter-University Graduate Student Conference Papers

This paper presents an ideal legislative model for South Korea to realize gender equality in reconciling work and childcare. The comparative study on the U.S. and German system is the basis for the legislative model. This paper selects the U.S. and German systems as a comparison group because they are representing the equal treatment approach and special treatment approach in the feminist legal theory. The current system in South Korea fails to realize gender equality because it provides maternity leave exclusive to women to limit women’s right to work and lacks financial support for parental leave. Maternity leave limits women’s …

Judicial Adherence To A Minimum Core Approach To Socio-Economic Rights – A Comparative Perspective, Joie Chowdhury

Cornell Law School Inter-University Graduate Student Conference Papers

Today’s world is witness to extraordinary inequality and the most desperate poverty. Millions of people across the world have no access to adequate food or water, basic health care or minimum levels of education. There are many avenues through which to approach the issue of improving socio-economic conditions. Courts, especially recently, have in certain countries, been seeking to ameliorate these conditions, to some extent, through the means of socio-economic rights adjudication.

For courts to effectively empower people to realize their socio-economic rights, attention to implementation of judgments is essential. A strong normative base for such judgments is just as crucial, …

The Us Subprime Mbs Crisis: New Legislative Agenda And Potential Ramifications For Foreign Jurisdictions, Yuliya Guseva

Cornell Law School Inter-University Graduate Student Conference Papers

The recent US liquidity crisis, triggered by the failure of mortgage-related securities, produced long-lasting ramifications inside and outside of the US. International financial indicators and the housing markets demonstrate that the mortgage-related liquidity problems keep reverberating throughout the US and the global economy. In the US, even such giants as Freddie Mac and Fannie Mae, which were expected to inject market liquidity, have declared considerable losses from subprime MBS. The ongoing crisis provided a fertile ground for a number of publications and research. However, a range of fundamental issues regarding legislative responses to the US MBS crisis and its international …