Law Commons^™

Silencing The Silk Road: China's Language Policy In The Xinjiang Uyghur Autonomous Region, Aurora Elizabeth Bewicke

San Diego International Law Journal

As part of its push for mono-culturalism throughout China in general, and in the XUAR in particular, China's language policy is at the forefront of what some have labeled China's program of "cultural genocide." While most agree that this provocative terminology is overstated, China's language policy may well be at the root of various human rights violations. Part II of this article will describe the historical context and modern realities of China's language policy in the XUAR, which is compromised of both overt policies in the form of laws, regulations, and policy statements as well as more covert policies, which …

Towards A New Transitional Justice Model: Assessing The Serbian Case, Roozbeh (Rudy) B. Baker

San Diego International Law Journal

This Article will survey the key episodes of transitional justice in various countries since the 1970s, and then apply the lessons gleaned to the transition of Serbia during the first five years following the deposition of authoritarian ruler Slobodan Milosevic in October 200, and the subsequent establishment of democratic rule...This article will show that the empirical evidence demonstrates that the outcome of the transitional justice process a country undertakes, upon its political stability, needs to be taken into account when fashioning said process.

Making Transfer Of Clean Technology Work: Lessons Of The Clean Development Mechanism, Mei Gechlik

San Diego International Law Journal

This Article takes a closer look at the case of China to fill the gap. It draws on numerous sources including Chinese laws and regulations, the country's policies on climate change, the country's technological capabilities and business environment, observations made by CDM specialists, and other studies of CDM projects. Such a comprehensive discussion, together with Dechezleprete et al.'s findings, will present a more complete picture of what actually drives the transfer of clean technologies to China and will, therefore, help design an effective post-Kyoto framework to facilitate international diffusion of clean technologies.

An International Perspective On Battling The Bulge: Japan's Anti-Obesity Legislation And Its Potential Impact On Waistlines Around The World, Christin Lawler

San Diego International Law Journal

This Comment identifies six factors which my be analyzed to predict the outcome of Japan's new "Metabo" legislation: (1) the compelling need for anti-obesity legislation; (2) the broad authority vested in Japanese physicians and medical policymakers; (3) the Japanese cultural emphasis on harmony; (4) the structure of the Japanese Constitution; (5) the legislation's enforcement mechanisms; and (6) the costs of the program. This Comment predicts that although the cost of implementing the program could pose a serious impediment to initiating the anti-obesity campaign on a national scale, the new legislation is likely to succeed in decreasing Japanese obesity.

Copyright Or Trademark? Can One Boy Wizard Prevent Film Title Duplication?, Anna Phillips

San Diego International Law Journal

This Comment will examine the various approaches that India, the United Kingdom, and the United States take in dealing with film title disputes. Second, this Comment will discuss a case brought by Warner Brothers regrding a Harry Potter film title dispute in India and how the outcome of the case affects title infringement issues... Finally, this Comment will discuss a possible loophole in current trademark regulations regarding film titles that will support the argument that countries should use both copyright and trademark law to minimize the release of film titles that are similar or identical to those already on the …

Front Matter, Volume 35, Number 1, University Of Dayton

University of Dayton Law Review

No abstract provided.

Subprime Bailouts And The Predator State, Steven A. Ramirez

University of Dayton Law Review

No abstract provided.

An Arctic Race: How The United States' Failure To Ratify The Law Of The Sea Convention Could Adversely Affect Its Interests In The Arctic, Marta Kolcz-Ryan

University of Dayton Law Review

No abstract provided.

Modified Plans Of Reorganization And The Basic Chapter 13 Bargain, David G. Carlson

Articles

A very large number of chapter 13 plans are confirmed each year. Unlike chapter 11 plans (for non-individuals), these plans may be revised after confirmation. The modification provisions of the Bankruptcy Code, however, give very little guidance as to what constitutes a permissible modification. In contrast, confirmation of the original plan is very carefully governed. This article theorizes that modification must honor the basic chapter 13 bargain. According to this bargain, the debtor is entitled to the bankruptcy estate and the creditors are entitled to net surplus income. The article assesses whether the diffuse and disorganized caselaw of modification adheres …

The Continental Shelf Beyond 200 Nautical Miles, Vladimir Jares

Vanderbilt Journal of Transnational Law

As policymakers, academia, and the media have paid increased attention to the Arctic region, there is more evidence of a certain lack of knowledge concerning the applicable international law.

The United Nations Convention on the Law of the Sea of December 10, 1982--adopted in 1982 and in force since November 16, 1994--provides both a legal framework within which all activities in oceans and seas must be carried out and, as far as the seabed of the Arctic Ocean international law is concerned, answers to questions related to its legal status and applicable regulations.

If a coastal State wishes to delineate …

Where Have All The (Legal) Stories Gone?, Nancy B. Rapoport

Scholarly Works

This essay examines whether law schools are doing a good job of teaching the art of storytelling to law students.

Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan

Dalhousie Law Journal

Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …

Proceeding With (Pre)Caution: Environmental Principles As Interpretive Tools In Applications For Pre-Trial Injunctions, Heather Mcleod-Kilmurray

Dalhousie Law Journal

In many cases of imminent environmental harm, a trial may take years. To prevent harm in the meantime, pre-trial injunctions are essential. The author highlights the important role of interlocutory injunctions in Canadian environmental litigation, uncovers the judicial assumptions and attitudes toward the environment which these decisions reveal, and proposes a precautionary approach to interpreting the interlocutory injunction test in environmental cases. She argues that prevailing judicial attitudes and presumptions in relation to environmental claims often negatively influence how the discretionary elements in procedural rules governing pre-trial injunctions are applied. Although there has been much analysis of principles such as …

Off The Grid: Federal Jurisdiction And The Canadian Electricity Sector, Ian Blue

Dalhousie Law Journal

The author argues that the federal government should empower the National Energy Board to regulate transmission access on provincial electricity systems including the authority to order a provincial utility to construct new facilities, for the purpose of creating a truly national electricity system and facilitating interprovincial and international electricity sales. First, because Canada needs a national regulator who can address the creeping Americanization of the Canadian electricity sector arising from the U.S. legislation and decisions of the Federal Energy Regulatory Commission. Second, because Canada needs a nationalbody to facilitate the movement ofnon-greenhouse gas sources of electricity to markets where it …

Ministerial Misfeasance: R. V. Morris And A Unique Early Privacy Breach, Barry Cahill

Dalhousie Law Journal

According to Klein &Kratchanov (Government Information: The Right to Information and Protection of Privacy in Canada, 2nd ed., 2009), "there is one reported case of a successful private prosecution for violation of an access statute through the unauthorized release of personal information. The matter arose under a former Nova Scotia Act and resulted in a modest fine being imposed against a Minister of the Crown who had disclosed information about the complainant." What follows is a close, contextual study of a case unique in the short history of privacy law in Canada, from the perspective of the thirty-year development of …

Journeys To 20th Street: The Inner City As Critical Pedagogical Space For Legal Education, Sarah Buhler

Dalhousie Law Journal

This essay draws on critical geographical theories to propose that the location of clinical legal education programs in inner city space can affect the production of professional identities and ideologies oflaw students. It anchors its analysis in an examination of the clinical law program at the University of Saskatchewan College of Law, where students work at a poverty law clinic in Saskatoon's inner city. The paper first turns to a critical examination of law school space, which can function to promote dominant notions about law and legal practice. The author cautions that ifnot navigated attentively, thejourney to inner city space …

The Definition Of "Accident" In Canadian Coverage Cases And The Unspoken "Useful Purpose" Test, Eric J. Adams

Dalhousie Law Journal

Thispaper argues that courts tacitly weigh risks againstrewards when constructing the meaning of the term "accident." It suggests the phrase "courting the risk" takes on two distinct meanings. Firstly, at some point, the risks associated with an activity are said to be so substantial as to suggest an insured expected and, thus, courted any resulting losses.. Secondly, a party is deemed to court the risk of. loss if acting solely for the experience of risk, in and of itself,and not for any other redeeming benefit. The author outlines the evolution of the term "accident" in the case law and contrasts …

R' Blake Brown, A Trying Question: The Jury In Nineteenth-Century Canada, Mary Stokes

Dalhousie Law Journal

In a 1984 review essay on the inter-relationship(s) oflaw and society in English criminal law historiography, Doug Hay observed that "in history, there is no 'background,"" His point was that there are an infinite number ofbackgrounds, all of which are moving and changing, often in non-linear fashion, at different paces, either in counter-point or direct dialogue with the foreground which is the immediate subject ofexposition. Legal historians who put their topics "in context" by treating the background as static are now fortunately few, at least when this background is conceived of as social or economic. But as Hay observed, the …

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …

Pierson V. Post: The New Learning, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

Pierson v. Post, 3 Caines 175 (N.Y. 1805), one of the most commonly assigned cases in the first-year Property course, was a dispute over the ownership of a fox discovered at large “upon a certain wild and uninhabited, unpossessed and waste land, called the beach.” For a very long time, all that was known about the case, other than the report itself, was a vivid but antiquarian account published in the Sag Harbor Express of October 24, 1895, by the judge and local historian Henry Parsons Hedges (1817-1911). Hedges claimed to have met Jesse Pierson (1780-1840) and Lodowick Post …

A Critical Introduction To The Symposium, Kyron J. Huigens

Articles

No abstract provided.

Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier

Michigan Law Review

A tidal wave of high drug prices has recently crashed across the U.S. economy. One of the primary culprits has been the increase in agreements by which brand-name drug manufacturers and generic firms have settled patent litigation. The framework for such agreements has been the Hatch-Waxman Act, which Congress enacted in 1984. One of the Act's goals was to provide incentives for generics to challenge brand-name patents. But brand firms have recently paid generics millions of dollars to drop their lawsuits and refrain from entering the market. These reverse-payment settlements threaten significant harm. Courts nonetheless have recently blessed them, explaining …

Failure Of A "Basic Assumption": The Emerging Standard For Excuse Under Mae Provisions, Nathan Somogie

Michigan Law Review

The onset of the current economic crisis has led many strategic and financial acquirers to reconsider the desirability of transactions to which they had previously agreed. Because many of these agreements contain substantial termination fees, buyers have increasingly sought to be excused from their contractual obligations by invoking Material Adverse Effect ("MAE") provisions. Reliance on MAE clauses as a basis for termination has historically been risky due to a lack of clarity in the case law regarding the standard for excuse under such provisions. A recent decision by the Delaware Chancery Court, Hexion v. Huntsman, the third in a …

Examining Presidential Power Through The Rubric Of Equity, Eric A. White

Michigan Law Review

In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …

Organophosphates, Friend And Foe: The Promise Of Medical Monitoring For Farm Workers And Their Families, Adriane J. Busby, Gabriel Eckstein

Faculty Scholarship

Millions of farm workers nation-wide who load, mix and/or apply pesticides are exposed to incredible amounts of pesticides on a daily basis. Various inefficiencies and inconsistencies in the regulatory system - including insufficient illness reporting data systems, lack of regulatory compliance and enforcement, and inadequate data and information on the chronic effects of exposure and overexposure to various pesticides - increase the likelihood that these workers will continue to be exposed to dangerous amounts of pesticides.

This Article assesses the existing mechanisms designed to protect farm workers from occupational exposure to pesticides and identifies and analyzes some of the shortcomings …

The Us-China Wto Cases Explained, Peter K. Yu

Faculty Scholarship

In August 2009, the WTO dispute settlement body released a panel concerning the US-China dispute over the trading rights and distribution services for publications, sound recordings and audiovisual entertainment products. Earlier this year, a different WTO panel addressed a related US-China dispute on the protection and enforcement of IP.

The recent decision provides an excellent opportunity to revisit the earlier decision, exploring its implications for IP protection and enforcement. That decision focuses on three main issues: the high thresholds for criminal procedures and penalties in the IP area; the failure of the Chinese authorities to properly dispose of confiscated infringing …

Copyright, Private Copying, And Discrete Public Goods, Glynn S. Lunney Jr

Faculty Scholarship

Understanding if, and when, copyright should attempt to proscribe private copying deserves far more than the simplistic treatment it has so far received from a handful of courts. This Essay aims to begin that conversation. Part I begins by introducing simple models that compare the market and socially optimal production of continuous and discrete public goods models and discussing their implications for copyright. Part II will then focus on the limits of the market's ability to produce efficiently discrete public goods in the absence of government intervention. Part III will then consider the implications of the discrete public goods model …

Socio-Economic Rights And Refugee Status:Deepening The Dialogue Between Human Rights And Refugee Law, Fatma E. Marouf, Deborah Anker

Faculty Scholarship

reviewing Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (2007)

Rethinking Private Attorney Involvement Through A Low Bono Lens, Luz E. Herrera

Faculty Scholarship

Those who frequent our courthouses and work with low and moderate - income individuals have no illusions about the large gap between the rhetoric of justice and the present reality of our legal system. All over the country, courts are plagued by long dockets, slashed personnel, scarce resources, and self-represented individuals who are not literate in the law and represent themselves in complex legal proceedings or transactions out of necessity. If the accessibility of the legal system remains the top priority for ensuring justice, then perhaps we must consider forging new alliances, healing the political wounds of previous generations, and …

Taking Empirical Research Seriously, Susan Saab Fortney

Faculty Scholarship

This essay considers how empirical research on the legal profession can bridge the divide between theory, social science, and the ethical practice of law. After providing background information on the growing field of empirical legal research, Part I of this essay focuses on developments in empirical legal research on lawyering. Part II discusses how collaboration with practitioners and other stakeholders can help researchers address challenges related to accessing data. Once data are obtained, Part III suggests how dissemination and sharing of research can link the academy and practicing lawyers. The conclusion urges a collaborative course of action for legal ethics …