Law Commons^™

Nanotechnology And The United States National Plan For Research And Development In Support Of Critical Infrastructure Protection, Lisa Campbell

Canadian Journal of Law and Technology

In an effort to predict and avert threats to national security, governments in general, and that of the United States in particular, have devoted considerable resources to developing technological systems that gather information about individuals. In the past five years, the U.S. government has collected information about the movement of individuals across and within its national borders from various sources, including border security stations, law enforcement officials, and immigration authorities. Until recently, it seemed impossible for the U.S. government to draw useful analyses from all of the data it is collecting. The sheer volume and complexity of the information made …

Intellectual Property: The Law In Canada By Daniel Gervais & Elizabeth F. Judge (Toronto: Thomson Carswell, 2006), David Lametti

Canadian Journal of Law and Technology

No abstract provided.

The Crtc's Enforcement Of Canada's Broadcast Legislation: 'Concern', 'Serious Concern' And 'Grave Concern', Monica Auer

Canadian Journal of Law and Technology

This paper describes results from a quantitative study of the enforcement by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) over the last several decades of Canada’s broadcasting legislation and its own regulations. Established by Parliament in 1968, the CRTC is a quasi-judicial regulatory agency that administers Canada’s Broad- casting Act, 1991 as well as the nation’s telecommunications legislation. Parliament has accorded the CRTC a broad range of discretionary powers over broadcast licensees, from granting, denying or revoking licences, to issuing mandatory orders. It is one of many federal regulatory agencies that administer and enforce Parliament’s legislation.

Electronic Trespass In Canada: The Protection Of Private Property On The Internet, James Macdonald

Canadian Journal of Law and Technology

This paper argues that Canadian courts can, and should, adopt electronic trespass as a viable cause of action for the protection of property rights on the Internet. Of course, this conclusion presupposes that property rights in fact exist on the Internet. While American courts have accepted the existence of property rights on the Internet without any real controversy, a significant body of criticism has developed around American jurisprudence. Part III examines the critiques levelled against the assumption of property rights inherent in electronic trespass, and argues that there are property rights that need to be protected on the Internet. Part …

Step In The Wrong Direction: The Impact Of The Legislative Protection Of Technological Protection Measures On Fair Dealing And Freedom Of Expression, Graham Reynolds

Canadian Journal of Law and Technology

This paper will investigate whether legislation granting protection to TPMs infringes the freedom of expression (s. 2(b)) guarantee as contained in the Canadian Charter of Rights and Freedoms. This paper will proceed in five parts. Part I will discuss Bill C-60 and the legislative protection of TPMs in Canada. Part II will discuss the effect of TPMs on fair dealing. Part III will analyze whether the freedom of expression guarantee can be used to challenge provisions in the Copyright Act. Part IV will evaluate whether amendments to the Copyright Act granting protection to TPMs are consistent with the freedom of …

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Same-Sex Marriage In New York, Lewis A. Silverman

Scholarly Works

No abstract provided.

Of Snakes And Butterflies: A Reply, Cass R. Sunstein

Public Law and Legal Theory Working Papers

This brief essay, a reply to a forthcoming essay by Radicals in Robes by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when …

Governor's Task Force On Ethics Reform Materials: Part One (Bibliography), Governor's Task Force On Ethics Reform

Governor Richardson's Task Force on Ethics Reform (2006)

This is a listing of citations of state laws governing governmental ethics. This list includes citations from state ethics commissions as well as publications from the State Conference of State Legislatures.

New Mexico's Current Anti-Corruption/Ethics Laws: A Bibliography, Governor's Task Force On Ethics Reform

Governor Richardson's Task Force on Ethics Reform (2006)

A listing of citations for current (as of 2006) New Mexico anti-corruption and ethics laws.

Governor's Task Force On Ethics Reform Materials: Part Two (Bibliography), Governor's Task Force On Ethics Reform

Governor Richardson's Task Force on Ethics Reform (2006)

This is a listing of citations of state laws governing governmental ethics. This list includes citations of material from state ethics commissions and the National Conference of State Legislatures.

Unprotected Migrants: Zimbabweans In South Africa’S Limpopo Province, Norma Kriger, Erika George

Faculty Scholarship

Unprotected Migrants: Zimbabweans in South Africa’s Limpopo Province documents the vulnerability of undocumented and documented Zimbabwean migrants to human rights abuses in South Africa.

Using the testimonies of Zimbabwean migrants, commercial farmers who employ them, and state officials in Limpopo province, Human Rights Watch describes how state officials disregard provisions in South Africa’s Immigration Act as they detain and deport undocumented migrants, and how farmers contravene the law governing employment conditions for their workers. The report also identifies deficiencies in immigration and labor legislation.

The human rights of foreign migrants are guaranteed in the Constitution ofSouth Africa, but are infringed …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Faculty Scholarship

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

Beberapa Aspek Kenisbian Dan Kesamaran Perjanjian Internasional, Ko Swan Sik

Indonesian Journal of International Law

The article does not purport to analyse an international law problem relating to a speific international agreement, nor does it pretend to develop any theoritical paradigm. It merely puts on stage the apparently clear and simple notion of international agreement while at the same time confronting the reader with its essenially relative nature by signalling the many ambiguities and ambivalences hidden behind the term. The author’s sole intention is to invite the reader’s attention to this feature of relativity so as to prevent him from taking the concept of international agreement too easily for granted. The following aspects relating to …

Post-Katrina New Orleans: The Strangely Vacant Article Ii Actor Denying Or Delaying Right Or Justice, Cynthia A. Drew

ExpressO

Because this work is not literature but at its most essential is a mirror of the conundrum presented by the rapidly approaching moment of Constitutional politics in our present American national life, that mirror perforce shows but a pastiche, a mosaic not yet complete, a jigsaw puzzle whose pieces keep shifting in space before they can be placed. As yet no “final answer” has appeared on any horizon to the dilemmas posed by the consequences of the Presidential actions analyzed in the Leitmotif -- particularly the decidedly non-heroic failures to act that had such lethal consequences for so many of …

The Equivalence Approach To Securities Regulation, Tzung-Bor Wei

ExpressO

Abstract

In the past, academics and regulators debated two competing approaches to international securities regulation, namely “harmonization” and “regulatory competition.” More recently, a third approach to securities regulation has emerged – the “equivalence” approach. Under this model, a host country exempts foreign firms from certain host country rules when the firms’ home country rules are sufficiently similar, or “equivalent.” Many regulators have come to embrace equivalence, which is rapidly becoming a key principle in international finance.

This paper studies the concept of equivalence. It begins by defining “equivalence,” highlighting that different regulators manipulate the term to give it contrasting meanings. …

Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn

ExpressO

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went about resolving its differences …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Can The Un Secretary-General Say "No": Revisiting The "Peking Formula", Jorge E. Vinuales

ExpressO

The study explores the extent to which the U.N. Secretary-General can uphold his or her own views when confronted with adverse stances from powerful States. More specifically, it analyzes a particular modus operandi originally developed by Dag Hammarskjold, known as the “Peking formula”. This form of good offices is discussed in two contexts, namely the 1954-1955 Sino-American hostage crisis when it was first used and the more recent attempts of Javier Perez de Cuéllar and Kofi Annan at solving the subsequent Iraq crises. Drawing upon these two case-studies, the author offers a theoretical account of the complex interactions between law …

The How And Why Of The New Public Corporation Tax Shelter Compliance Norm, Susan Cleary Morse

ExpressO

This paper examines the recent shift toward an anti-tax shelter federal income tax compliance norm at public corporations, as evidenced by practitioner and government comments and survey results. The paper focuses on the organizational behavior of tax decisionmakers within public corporations as they respond to Sarbanes-Oxley, enforcement and publicity initiatives, and tax shelter regulation.

The paper identifies three elements that have contributed to the development of a stronger tax compliance norm. First, Sarbanes-Oxley has resulted in the expansion and increased transparency of public corporation tax decisionmaking groups. Organizational behavior insights suggest that this may produce more considered decisions. Second, civil …

Sox, Statutory Interpretation, And The Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims And Jury Trials, Jarod S. Gonzalez

ExpressO

Section 806 of the Sarbanes-Oxley Act of 2002 prohibits a publicly-traded company from retaliating against an employee whistleblower who reports suspected corporate fraud to a company supervisor or to a governmental entity. The SOX whistleblower provision is unique in employment discrimination law in that Congress adopted a two-track civil enforcement system for whistleblowers. A complainant must initially pursue a claim in a Department of Labor administrative proceeding. The administrative proceeding involves a trial-like hearing before an administrative law judge and review of the judge's decision by the Administrative Review Board. However, if the Department of Labor does not make a …

Open Source, Free Software And Contractual Issues, Jose Javier González De Alaiza

ExpressO

“Free software” is an increasingly used form to license computer programs, which on the one hand gives users the rights to use, modify and redistribute the program; and, on the other, forces any person redistributing an original or modified version of the program to license it with the same rights. Such a forced obligation is introduced through the so called “copyleft clause” and, basically, uses Copyright in a creative way to achieve freedom instead of control.

This paper discusses the “free software” foundations and contractual issues. The discussion is structured in two main parts and Conclusion. In Part II, the …

The Case Against Mandatory Annual Director Elections And Shareholders' Meetings, William K. Sjostrom

ExpressO

The article examines the mandatory requirement under state corporate law and stock exchange listing standards that public corporations hold annual shareholders’ meetings for the election of directors. Specifically, I question the value of requiring corporations to (1) elect directors annually, and (2) hold shareholders’ meetings annually. I critique the various justifications for these requirements and find none of them persuasive. I then explore a different approach taken by Minnesota with respect to the frequency of director elections and shareholders’ meetings and conclude that the approach is superior to the current scheme. Recognizing, however, that any less strict state approach is …

Public Comments From July 26, 2006, Suellyn Scarnecchia

Governor Richardson's Task Force on Ethics Reform (2006)

After the taskforce adjourned on July 26, 2006, a group of people arrived to participate in the public comment portion of the meeting. The following is a summary of those comments and recommendations.

Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu

ExpressO

The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as …

Getting Control Of Waiver Of Privilege In The Federal Courts : A Proposal For A Federal Rule Of Evidence 502, Daniel J. Capra

ExpressO

No abstract provided.

As The Enterprise Wheel Turns: New Evidence On The Finality Of Labor Arbitration Awards, Michael H. Leroy

ExpressO

Our study examines 281 federal court decisions from April 2001- May 2006 that ruled on challenges to labor arbitration awards. These award appeals are regulated by the Supreme Court’s Enterprise Wheel decision. District courts confirmed 77.6% of challenged awards, an increase of about 7 percentage points compared to our earlier studies of litigated awards from 1960 - 2001. The result was very similar for appellate cases— a confirmation rate of 76.3%, and nearly the same gain in percentage points.

These results clearly suggest that the Supreme Court’s rebuke of lower courts in Eastern Associated Coal Corp. (2000) and Garvey (2001) …

Eliding In New York, Monte Neil Stewart

Duke Journal of Constitutional Law & Public Policy Sidebar

In January 2006, this Journal published an article that set forth the social institutional argument for man/woman marriage, demonstrated how that argument is a sufficient response to all constitutional attacks leveled at the laws sustaining that social institution, and detailed how the courts mandating genderless marriage (and the dissenting judges favoring that result) had elided the argument (“the Judicial Elision article”). Since the Judicial Elision article’s early December 2005 cut-off date, two more instances of judicial elision of social institutional realities have cropped up in New York. Both are dissenting opinions, one in the Appellate Division and one in the …

Approved Minutes Of The Fourth Meeting Of The Governor's Ethics And Campaign Finance Reform Task Force, Governor's Task Force On Ethics Reform

Governor Richardson's Task Force on Ethics Reform (2006)

These are the minutes for the July 26, 2006 meeting of the Governor's Task Force on Ethics Reform.

Agenda--July 26, 2006, Governor's Task Force On Ethics Reform

Governor Richardson's Task Force on Ethics Reform (2006)

This is a proposed agenda for the July 26, 2006 meeting of the Governor's Task Force on Ethics Reform.