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Divided By Common Language: 'Capture' Theories In Gatt/Wto And The Communicative Impasse, Dongsheng Zang
Divided By Common Language: 'Capture' Theories In Gatt/Wto And The Communicative Impasse, Dongsheng Zang
UC Law SF International Law Review
Since the 1999 ministerial conference in Seattle, the WTO has been plagued by a series of collapses in trade negotiations: 2001 in Doha, 2003 in Cancun, 2006 in Hong Kong, and most recently, July 30th, 2008 in Geneva. How to understand the stalemates? What is behind the communicative impasse between the developing countries and the developed countries? This article examines a key conceptual framework in the discourse on trade policy: "capture" theories. It tracks two groups of "capture" theories: first, "capture" theories during the 1980s GATT which set the foundation for the WTO, and second, "capture" theories espoused by developing …
Closing The Tax Gap: Encouraging Voluntary Compliance Through Mass-Media Publication Of High-Profile Tax Issues, Elizabeth Branham
Closing The Tax Gap: Encouraging Voluntary Compliance Through Mass-Media Publication Of High-Profile Tax Issues, Elizabeth Branham
UC Law Journal
In 2001, the IRS estimated the gross tax gap was approximately $345 billion dollars. Each dollar not collected represents lost revenue for the federal government, the collection of which would be contributed to federally-funded public works. Within the tax gap, underreporting of individual income represented over half of uncollected revenue. Among that group of noncompliant taxpayers, most are generally not subject to third-party reporting and are therefore capable of choosing to file or to evade. This Note discusses the impact of high-profile tax prosecutions on social norms and values as an avenue to address and encourage voluntary compliance.
A Law Of No Gods, No Masters - Developing And Defending A Participatory Legal System, Matt Halling
A Law Of No Gods, No Masters - Developing And Defending A Participatory Legal System, Matt Halling
UC Law SF International Law Review
This note develops and analyzes a new legal vision consistent with recent activist literature about a participatory society. A participatory society (in this note) consists of collectively owned property, a decentralized state, and attempts to maximize citizen participation in politics. Rather than nation states, society is structured as a federation of councils deliberating and coordinating with each other to solve political issues. Participatory society's structure demands a "participatory law" be developed to manage it, and this note attempts to develop the overarching features of such a system. Once the basic legal model is outlined, the article then looks for comparisons …
The Influences Of The West On The 1993 Russian Constitution, Victoria Schwartz
The Influences Of The West On The 1993 Russian Constitution, Victoria Schwartz
UC Law SF International Law Review
This article explores the influences of the West on the text of the 1993 Russian Constitution. Although previous scholarship has identified Western influences on the Russian Constitution, these works do not trace how or why the particular transplant occurred. This article has a descriptive and analytical, but not normative goal of filling that gap by explaining the transplants that occurred, and why and how they were made. Among its conclusions, the article finds that the choices made by the framers of the 1993 Russian Constitution can often be explained by the contemporaneous political situation within Russia. Part of the uniqueness …
Victims Of Armed Conflict And Persecution In South Africa: Between A Rock And A Hard Place, Edwin Odhiambo Abuya, Dulo Nyaoro
Victims Of Armed Conflict And Persecution In South Africa: Between A Rock And A Hard Place, Edwin Odhiambo Abuya, Dulo Nyaoro
UC Law SF International Law Review
This paper examines the extent to which African States have cemented their commitments to protect persons forced to flee from their home states owing to armed conflict and/or persecution. Using South Africa as a case study, this paper examines the experience of refugees and asylum seekers at the hands of South African Police. Two central issues are, first, the identity documents that are issued to asylum seekers and refugees coming to South Africa, and second, the constitutional rights to privacy and security, which are promised to all. It is contended that although law enforcement officials are generally required by law …
Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla
Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla
UC Law SF International Law Review
The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court's functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with …
Trade Sanctions, Human Rights And Multinational Corporations: The Eu-Acp Context, Olufemi Amao
Trade Sanctions, Human Rights And Multinational Corporations: The Eu-Acp Context, Olufemi Amao
UC Law SF International Law Review
This paper examines the human rights dimension of trade agreements between the European Union ("EU") and the African Caribbean and Pacific ("ACP") group of countries and their relevance to the control of multinational corporations ("MNCs"). It notes that even though MNCs are the major beneficiaries of the agreements, they have not been prominent in the discourse. The paper explores the foundation for the inclusion of human rights issues in trade agreements, and argues in favour of their legitimacy. The study contends that human rights clauses in the agreements should be triggered where there are human rights violations in the territory …
Mere Words: The Enemy Entity Designation Of The Gaza Strip, Carey James
Mere Words: The Enemy Entity Designation Of The Gaza Strip, Carey James
UC Law SF International Law Review
Israel has occupied the West Bank and Gaza Strip since June of 1967. Despite the withdrawal of Israeli military forces and the dismantling of Israeli settlements in 2005, Gaza is still generally considered occupied territory as a matter of international law. In September 2007, Israel declared the Gaza Strip a "hostile territory." This note examines the probable aims and legal effects of the hostile territory designation.
Reassessing The Dialogic Possibilities Of Weak-Form Bills Of Rights, Christine Bateup
Reassessing The Dialogic Possibilities Of Weak-Form Bills Of Rights, Christine Bateup
UC Law SF International Law Review
In recent years, weak-form bills of rights have generated much excitement in contemporary constitutional scholarship because they are believed to create a new balance between parliamentary and judicial supremacy based on inter-branch "dialogue" between courts and legislatures. Few scholars, however, have examined the foundational question of whether judges and legislators can actually be expected to behave in a way that realizes the dialogic potential of weak-form instruments. This Article takes a new approach to this question, applying the insights of positive theory to engage in a comprehensive assessment of the behavior we can realistically expect of courts and legislatures in …
Law Across Borders: What Can The United States Learn From Japan, Eric A. Feldman
Law Across Borders: What Can The United States Learn From Japan, Eric A. Feldman
UC Law SF International Law Review
No abstract provided.
Symbol Of Freedom: Atsa And International Efforts To Increase Security, Valerie Kraml
Symbol Of Freedom: Atsa And International Efforts To Increase Security, Valerie Kraml
UC Law SF International Law Review
In 2002, the United States ("U.S.") p assed the Aviation and Transportation Security Act ("ATSA"), under the umbrella of the Patriot Act, which required the collection and dissemination of all international airline passengers' private data, such as name, address, credit card, before foreign airlines could pass over land on U.S. territories. Compliance with the ATSA was highly controversial in the European Union ("E.U."), which maintains strong domestic privacy and personal liberty laws. Efforts to bridge the conflict in domestic privacy laws have led to numerous attempts by the U.S. and E.U. to reach an agreement to increase international security within …
Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi
Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi
UC Law SF International Law Review
No abstract provided.
China's Anti-Monopoly Law: Insights From U.S. And Eu Precedents On Abuse Of Dominance And Ip Exemption Provisions, Yin Zhou
UC Law SF International Law Review
Since opening to the global market in 1978, China has enjoyed consistent and rapid economic growth for the past three decades. Such liberalization and economic growth created a need for regulations to maintain a smoothly functioning market. By the mid-1990s, the need for a set of antitrust laws became apparent in light of the rise in domestic consumerism and investments from large foreign corporations. After thirteen years of drafting and revisions, China passed its Anti-Monopoly Law ("AML") on August 30, 2007. The AML came into effect a year later on August 1, 2008, but many companies started seeking legal advice …
Panel Iv - "Can The West Learn From The Rest?" - The Chinese Legal Order's Hybrid Modernity, Nicholas Calcina Howson
Panel Iv - "Can The West Learn From The Rest?" - The Chinese Legal Order's Hybrid Modernity, Nicholas Calcina Howson
UC Law SF International Law Review
No abstract provided.
Ksr Fallout: Questions Of Law Based On Findings Of Fact And The Continuing Problem Of Hindsight Bias, Adam Powell
Ksr Fallout: Questions Of Law Based On Findings Of Fact And The Continuing Problem Of Hindsight Bias, Adam Powell
UC Law Science and Technology Journal
The KSR v. Teleflex decision marked the Supreme Court's first significant return to the issue of "obviousness" in over four decades. While KSR may make it easier to invalidate a patent by a finding of obviousness, it is unclear how lower courts will implement the decision. The resulting uncertainty presents an opportunity to rethink the jury's role in an obviousness determination. This note discusses current model jury instructions and jury verdict forms, the jury's continuing role in obviousness decisions, and how new jury instructions that conform to KSR's standards can aid lower courts in addressing a jury's use of hindsight.
A Better Carrot Incentivizing Patent Reexamination, James W. Beard
A Better Carrot Incentivizing Patent Reexamination, James W. Beard
UC Law Science and Technology Journal
Patent reexamination provides a potentially powerful alternative to full invalidity litigation, but it has been underutilized because of deficiencies in the patent reexamination system. The system's appeal as an alternative to invalidity litigation is greatly diminished by constraints on forms of evidence and grounds for invalidity, the limited potential for challengers to participate in the process, and the significant risk a challenger takes in pursuing patent reexamination. While reforms have been proposed, most have focused on enlarging the procedure within the context originally established by Congress. Although such reforms may be important, they do not address the central obstacle to …
The Patent Prosecution Highway: Is Life In The Fast Lane Worth The Cost, Alicia Pitts, Joshua Kim
The Patent Prosecution Highway: Is Life In The Fast Lane Worth The Cost, Alicia Pitts, Joshua Kim
UC Law Science and Technology Journal
Globalization has led to a rapid increase in the number of patent applications filed in the United States and abroad. In response, individual patent offices have introduced preliminary programs to share the workload and reduce redundancy, giving rise to the "patent prosecution highway." Setting grandiose visions aside, the patent prosecution highway is generally failing. This article examines the strengths and weakness of the patent prosecution highway and suggests some methods through which the highway should be navigated and used as part of a global patent strategy.
Exceeding The Scope Of The Patent: Solving The Reserve Payment Settlement Problem Through Antitrust Enforcement And Regulatory Reform, William J. Newsom
Exceeding The Scope Of The Patent: Solving The Reserve Payment Settlement Problem Through Antitrust Enforcement And Regulatory Reform, William J. Newsom
UC Law Science and Technology Journal
Reverse payment settlements in pharmaceutical patent litigation, also known as "pay for delay" settlements, are almost universally anticompetitive. Nonetheless, because of the current regulatory framework and a failure of courts to address the definition of patent scope, many of these settlements are upheld as legal, falling under a patent "exception" to antitrust liability. The patent "exception", however, does not apply to pay-for-delay settlements, because paying to protect a patent is inherently beyond the scope of that patent. This note addresses the problem of reverse payment settlements and proposes a new comprehensive solution.
Reach-Through Rights And The Patentability, Enforcement, And Licensing Of Patents On Drug Discovery Tools, Alfred C. Server, Nader Mousavi, Jane M. Love
Reach-Through Rights And The Patentability, Enforcement, And Licensing Of Patents On Drug Discovery Tools, Alfred C. Server, Nader Mousavi, Jane M. Love
UC Law Science and Technology Journal
A novel, nonobvious Discovery Tool and its use can be the subject of valid patent claims, but patent claims that reach through to cover as-of-yet-undiscovered drug products generally fail to meet the written description and enablement requirements of 35 U.S.C. § 112. Notwithstanding the Supreme Court's broad reading of the scope of the statutory exemption to infringement-under 35 U.S.C. § 271(e)(1)-in Merck v. Integra, and the occasionally misapplied common law experimental use exception, valid claims to Discovery Tools and their use are enforceable against unauthorized users. This article analyzes the legality of one form of compensation occasionally sought by Discovery …
What's Sex Got To Do With It - A Cinematic Critique On The Arguments Against Same-Sex Marriage, Scott Norton
What's Sex Got To Do With It - A Cinematic Critique On The Arguments Against Same-Sex Marriage, Scott Norton
UC Law SF Communications and Entertainment Journal
For years, the same governmental interests have been presented to justify prohibitions on same-sex marriage. Supporters of the ban argue that marriage promotes procreation and child-rearing, neither of which can supposedly be done within the confines of a same-sex relationship. This note suggests the movie I Now Pronounce You Chuck & Larry illustrates that in practice, these justifications have become antiquated. Instead of defining marriage as two individuals in a committed relationship, courts tend to inject social mores into their decisions regarding the legality of same-sex marriage.
C.B.C. Distribution And Marketing, Inc. V. Major League Baseball Advanced Media, L.P.: The First Amendment Versus The Right Of Publicity In The Eighth Circuit, Surina Mann
UC Law SF Communications and Entertainment Journal
This note examines the friction between the First Amendment and the right of publicity by examining the case of C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., a case regarding fantasy league baseball. This note begins by discussing the legacy of the right of publicity, the policy goals that the right of publicity was devised to further, and several different tests that courts have designed to balance the right of publicity with the rights guaranteed by the First Amendment. This note then goes on to illustrate the background of fantasy league baseball and critique the C.B.C. …
The Nation's Broadband Success Story: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer
The Nation's Broadband Success Story: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer
UC Law SF Communications and Entertainment Journal
The Federal Communications Commission regularly promotes the competitiveness of the American broadband market and the availability of robust services to consumers. Since 2000, the Commission has reported on broadband deployment by zip code, and by late 2006 broadband was supposedly available in 99% of American zip codes, with those zip codes representing 99% of the population. However, the viability of the FCC's zip code-based measurement methodology has long been a matter of controversy, because until recently broadband was counted as "available" in a zip code even if as few as one household in the area has obtained service. This paper …
How Hands-On Will Regulation Of Hands-Free Be - An Analysis Of Sb 1613 And The Effectiveness Of Its Proposed Regulation, Jessica Croze
How Hands-On Will Regulation Of Hands-Free Be - An Analysis Of Sb 1613 And The Effectiveness Of Its Proposed Regulation, Jessica Croze
UC Law SF Communications and Entertainment Journal
In order to prepare for the consequences of this new law, it will be extremely valuable to understand how "hands-free laws" are regulated in other states. Comparing California's new regulations to these existing laws and recognizing the history behind its inaction are crucial. An analysis of these previous attempts to regulate cell phone use while driving will ease the adoption of this new legislation in California. Since California's legislation, Bill 1613, regarding the ban on hand-held cellular devices while driving, was enacted the resulting public effect may have failed to fulfill the intention of the law.
The Politics Of Power: A Social Architecture Analysis Of The 2005-2008 Federal Shield Law Debate In Congress, Cathy Packer
The Politics Of Power: A Social Architecture Analysis Of The 2005-2008 Federal Shield Law Debate In Congress, Cathy Packer
UC Law SF Communications and Entertainment Journal
Would a federal shield law hamper the U.S. Department of Justice's power to combat terrorism and other crimes? Would the law protect the media from the chilling effects of federal subpoenas? Or would the law unwisely grant the already powerful media legal rights denied to other citizens? And who should have the power to decide whether to allow the media to refuse to comply with federal subpoenas? These and similar questions about how power should be distributed among branches of the federal government and the media were at the center of the Congressional hearings and debate on the proposed federal …
Is Free Riding Aided By Parody To Sneak Between The Cracks Of The Trademark Dilution Revision Act, Corina I. Cacovean
Is Free Riding Aided By Parody To Sneak Between The Cracks Of The Trademark Dilution Revision Act, Corina I. Cacovean
UC Law SF Communications and Entertainment Journal
Dilution as a form of intrusion on a trademark has been the object of intense consumer and competition discourses in United States. From the United States Supreme Court decision in Moseley v. VSecret Catalogue, in 2003, to the Fourth Circuit's decision in Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, in 2006, the concept of dilution has become more sophisticated and its intersection with unfair competition and First Amendment law is far from being settled. This note is an attempt to answer the questions of whether the courts, by broadly interpreting the TDRA as being designed to protect freedom …
Intellectual Property Infringement: The Question Of Advertising Injury, Hilary Ditch
Intellectual Property Infringement: The Question Of Advertising Injury, Hilary Ditch
UC Law SF Communications and Entertainment Journal
Over the past several decades, business entities have increasingly relied on Commercial General Liability insurance for coverage and protection against the significant costs of defending against intellectual property lawsuits. However, despite this increased usage, the coverage provided for intellectual property infringement claims by Commercial General Liability insurance policies remains uncertain and indeterminate. This frustrating conclusion, reached by numerous courts, legal scholars and insurance practitioners, captures the current state of the law as it applies to coverage for intellectual property infringement claims. Consequently, many business entities seeking to apply their insurance policies to defend against intellectual property claims may face uncertainty …
Targeting Bad Behavior: Why Federal Regulators Must Treat Online Behavioral Marketing As Spyware, Heather Ng Osborn
Targeting Bad Behavior: Why Federal Regulators Must Treat Online Behavioral Marketing As Spyware, Heather Ng Osborn
UC Law SF Communications and Entertainment Journal
The FTC has sanctioned more than a dozen companies during the past two years for privacy violations involving the improper installation of spyware software on personal computers. The spyware software allowed companies to watch and control consumers' online activities, either without the consumer's knowledge or with the consumer's knowledge but without reasonable means for the consumer to stop it. The practice of online targeted advertising raises similar privacy issues as the use of spyware software because it also involves behind-the-scenes tracking, which most consumers never notice. Online targeted advertising allows marketing companies to engage in the same behavior as companies …
Mobile Messaging Making E-Discovery Messy: Mobile Messaging And Electronic Discovery, Daniel B. Garrie, Maureen Duffy-Lewis, Richard L. Gillespie, Mari Joller
Mobile Messaging Making E-Discovery Messy: Mobile Messaging And Electronic Discovery, Daniel B. Garrie, Maureen Duffy-Lewis, Richard L. Gillespie, Mari Joller
UC Law SF Communications and Entertainment Journal
Mobile e-discovery spans the globe and creates a multitude of issues for litigants and the courts. The issue of privacy, jurisdiction, privilege, and consent intersect in the mobile space with users sending text messages, twittering, posting notes and videos on-line, and sharing pictures all in the span of a work day. Of course this is further complicated by the integration of the 24/7 workplace and the electronic discovery issues of retention, preservation, and production of the data that mobile devices create. This article examines these issues and provides an overview of some of the more common underlying mobile telecommunication technologies.
Trademark Battles In A Barbie-Cyber World: Trademark Protection Of Website Domain Names And The Anticybersquatting Consumer Protection Act, Kiran Nasir Gore
Trademark Battles In A Barbie-Cyber World: Trademark Protection Of Website Domain Names And The Anticybersquatting Consumer Protection Act, Kiran Nasir Gore
UC Law SF Communications and Entertainment Journal
Mattel's Barbie doll is more than just a trademarked toy produced for child consumption-Barbie has entered public discourse and taken on a life of her own as a cultural phenomenon. The Ninth Circuit Court of Appeals has referred to Mattel's Barbie doll as "possibly the most famous toy in history." With this popularity, also comes unwanted attention. She has become an American icon and taken on additional meanings and status at a societal level; attracting the attention of artists, writers, academics, and commentators in a way that is beyond the scope of Mattel's trademark property rights. The tension between Mattel's …
I'M A Highway Star: An Outline For A Federal Right Of Publicity, Sean D. Whaley
I'M A Highway Star: An Outline For A Federal Right Of Publicity, Sean D. Whaley
UC Law SF Communications and Entertainment Journal
The federal government has failed to codify a federal publicity right. This has caused numerous problems recently, as varying state laws unevenly restrain the commercial speech of many actors in interstate commerce. However, the nature of the publicity right as a property right and its essential function in interstate commerce calls for Congress to adopt a federal publicity right. Similar to the dual system of trademark protection, a federal publicity right will not preempt such rights at the state level. Rather, establishing such a right will detail proper justification and contours of the right. By establishing a federal right, the …