Law Commons^™

Weathering Rising Seas In A Sinking Ship: The Constitutional Vulnerabilities Of The Regional Greenhouse Gas Initiative Note, Eric Maher

Fordham Environmental Law Review

No abstract provided.

The Rule 23(B)(3) Superiority Requirement And Transnational Class Actions: Excluding Foreign Class Members In Favor Of European Remedies, Michael P. Murtagh

UC Law SF International Law Review

This Article analyzes the way federal courts conduct their superiority inquiries on motions for class certification in transnational class actions. Opt-out class actions under Rule 23(b)(3) conflict with an important premise of legal systems around the world, namely, that one cannot be bound to a judgment unless one affirmatively participated in the lawsuit. Federal courts sometimes either decline to certify the class or exclude foreign class members from the class because of the risk that the courts of foreign countries will not enforce the class action judgment. This Article argues that the current approach inefficiently exposes the parties to costly …

Health, Human Rights, And Violence Against Women And Girls: Broadly Redefining Affirmative State Duties After Opuz V. Turkey, Cheryl Hanna

UC Law SF International Law Review

This Paper was initially presented at the Hastings International & Comparative Law Review symposium Heath as a Human Right: The Global Option. The symposium was held in memory of Professor Virginia Leary, a leader in international law. Professor Hanna takes this theme and applies it to global problem of violence against women and girls and makes two assertions. First, while there has been tremendous progress in our understanding of how male violence against women and girls undermines gender equality and impacts their right to autonomy and full citizenship, the most fundamental and basic consequence of such violence - physical and …

Hiv/Aids And Human Rights In Botswana And Swaziland: A Matter Of Dignity And Health, Vincent Iacopino, Sheri D. Weiser, Madhavi Dandu, David Tuller

UC Law SF International Law Review

A health and human rights framework provides a comprehensive perspective for understanding complex interactions between HIV/AIDS, human rights, and the health of individuals and communities. By helping to identify a broad range of social factors that affect health, such a framework also facilitates the development of interventions and policies that maximize both health and human rights benefits. In this Article, we discuss the various linkages between health and human rights and review the literature on HIV/AIDS and human rights, with a focus on under-resourced settings. In particular, we examine how the framework is relevant to the specific epidemics in Botswana …

Immigration, Crime, And Public Perception: Victimization Legislation In The United States And Canada - Can The U Visa Serve As A Model?, Bettina Rodriguez Schlegel

UC Law SF International Law Review

This Note compares the forces behind the creation and the implementation of crime victim visa legislation in the United States and Canada. Both are recognized globally as important immigrant-receiving nations with long histories of reliance on immigrant populations for economic growth and expansion. Both states have crafted immigration policies in line with their economic needs and societal perceptions of immigrants in relation to the dominant culture mores. This Note analyzes the two nation's historical trends in relation to immigration as a stepping stone towards understanding the current realities of immigrant life in North America and delves in to the impacts …

International Alchemy Within The Post-Copenhagen World: Transforming Critical Infrastructure Across Two Hundred Divergent Economics, Steven Ferrey

UC Law SF International Law Review

International solutions, reaching across different types of economies and systems of governance in two hundred world nations, have achieved a new urgency: Leading world climate scientists declare that in the next five years, the world is at a "tipping point" beyond which there is scant redemption from climate catastrophe. It is clear that solutions must quickly focus on a new energy infrastructure, somehow implemented across fundamentally different systems of national governance and economy, to abate rapidly exploding CO₂ emissions from unrestrained, cheap fossil-fuel energy use.

While the press coverage of the recent Copenhagen and Cancun international climate conferences concentrated …

Universal Jurisdiction To Prosecute Human Trafficking: Analyzing The Practical Impact Of A Jurisdictional Change In Federal Law, John Reynolds

UC Law SF International Law Review

Human trafficking is fast-growing international dilemma. This note evaluates the potential of universal jurisdiction to prosecute human trafficking to mitigate the crime's impact. Analogies are drawn to slavery and piracy, the paradigm crimes subject to universal jurisdiction. This note will also explore alternative approaches to combating human trafficking - political and economic approaches that attempt to undercut the root causes of human trafficking.

Immunity, Italian Style: Silvio Berlusconi Versus The Italian Legal System, Brendan Quigley

UC Law SF International Law Review

Italian Prime Minister Silvio Berlusconi is Italy's longest serving Prime Minister since the founding of the First Italian Republic in 1946. He is also one of Italy's richest men, owed largely to a vast media empire encompassing private television, film production, publishing, insurance, and banking. In conjunction with this private wealth and influence, the Prime Minister's political clout has afforded him virtually unparalleled power within Italy. Despite the scope of his influence, however, Berlusconi has been a constant subject of legal controversy since his rise to power in the early to mid 1990s. Over the years, he has been accused …

The Impunity Gap Of The International Criminal Tribunal For Rwanda: Causes And Consequences, Leslie Haskell, Lars Waldorf

UC Law SF International Law Review

The International Criminal Tribunal for Rwanda (ICTR) has achieved considerable success in bringing to justice those most responsible for the 1994 genocide in Rwanda. However, the ICTR's Prosecutor has failed to indict a single member of the Rwandan Patriotic Front (RPF), a rebel group that now governs Rwanda, for war crimes and crimes against humanity committed in 1994 as a result of state noncooperation. Instead, the Prosecutor allowed Rwanda to conduct a sham trial into a notorious massacre involving thirteen clergy that his office had investigated. This Article takes a close look at this case and is based on the …

Electronic Medical Records And The Challenge To Privacy: How The United States And Canada Are Responding, Elana Rivkin-Haas

UC Law SF International Law Review

The rapid and continual advances in electronic record keeping create new and challenging privacy concerns in a variety of contexts. This Note examines the particular privacy issues countries face as their health care systems move towards more centralized, electronic medical record keeping. Electronic medical records provide for the increased collection, availability, aggregation, and dissemination of medical data which can facilitate more effective care, but can also leave people vulnerable to having private information misused. This Note focuses on the current privacy law framework in the United States and Canada. It will then explore whether the legal standards in these countries …

Fragrant Or Foul? - Regulation Of The Global Perfume Industry And The Implications For American Sovereignty, Caroline M. Reebs

UC Law SF International Law Review

The regulation of fragranced personal care products is increasingly scrutinized in the United States. As the FDA's cosmetic product requirements are minimal, particularly when compared to those followed by food producers and drug manufacturers, consumer groups emphasize the negative health implications. Industry, on the other hand, maintains that fragrances are safe for use and are effectively monitored by international trade associations. Because the government plays a modest role in cosmetic regulation, an arbiter is needed.

This Note examines the above concerns in a comparative light. The European Union's Cosmetic Directive imposes more requirements on cosmetic manufacturers and maintains a lengthier …

Workplace Bullying As An Occupational Safety And Health Matter: A Comparative Analysis, Susan Harthill

UC Law SF International Law Review

Workers who are bullied at work suffer physically and mentally, and can even be driven to suicide. There ought to be a law against workplace bullying, and in some countries, there is. Despite a growing body of interdisciplinary work highlighting the prevalence and costs of workplace bullying in the United States, there are currently no U.S. state or federal laws expressly addressing the issue, despite the ground breaking work and legislative efforts of workplace bullying pioneers, David Yamada and Drs. Ruth and Gary Namie. The dismal fact for American workers is that the U.S. lags behind many other countries when …

Empowering The Collaborative Citizen In The Administrative State: A Case Study Of The Federal Communications Commission, Peter M. Shane

University of Miami Law Review

No abstract provided.

Generation Mixtape: A User's Guide To Online Copyright, Matthew D. Catania, Gaetano D. Marretta

Tribeca Square Press

In conjunction with the Program in Law and Journalism at New York Law School, Tribeca Square Press publishes a monograph series, Legal Backgrounders, to provide those who regularly report on law and the legal profession, including print and broadcast reporters, editorial writers, bloggers, and editors, with concise, objective, timely, and readable information on legal topics currently in the news. Monographs in this series are not intended to advocate legal or policy positions but to describe and summarize the state of the law. An electronic version of each Legal Backgrounder, including links to sources, will be available on the Tribeca Square …

Dean Emeritus E. Donald Shapiro Memorial Service, Roger J. Miner '56

Memorials and Eulogies

No abstract provided.

The Tenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law. Corporate Accountability: Governance And Compensation Issues, Stanley Sporkin, Todd Lang, Gary Naftalis, Jeffrey Sonnenfeld, Louise Story

Fordham Journal of Corporate & Financial Law

CORPORATE ACCOUNTABILITY: GOVERNANCE AND COMPENSATION ISSUES

Enforcing International Insurers’ Expectations: Can States Unilaterally Quash Commercial Arbitration Agreements Under The Mccarran-Ferguson Act?, Mary Pennisi

Fordham Journal of Corporate & Financial Law

This Note examines the split in federal circuit courts created by Safety National Casualty Corp. on whether the MFA reverse-preempts the New York Convention and allows states to quash arbitration agreements in international insurance contracts.

Review Of Seeds Of Destruction: Why The Path To Economic Ruin Runs Through Washington, And How To Reclaim American Prosperity, Michael S. Barr

Reviews

The United States has just gone through the worst financial crisis since the Great Depression. Our financial system came to brink of collapse, saved only by a massive intervention by the federal government. Although officially the Great Recession is now over, high unemployment and slow growth persist. Deficits that were ballooning in the 2000s with the weight of tax cuts, increased health care expenditures, and defense spending related to Iraq and Afghanistan, even before the financial crisis, have continued to climb, as lower tax receipts, automatic stabilizers, and fiscal stimulus kicked into gear.

Constitutional Rigidity In Kosovo: Significance, Outcomes, And Rationale, Fisnik Korenica, Dren Doli

Pace International Law Review Online Companion

This article discusses the issue of constitutional rigidity from the perspective of the Constitution of Kosovo.  At the outset, the article analyzes the amendment procedure within the Constitution and its nature in terms of the actors and procedures involved.  Next, the article questions the nature of constitutional rigidity in Kosovo and seeks to address the position of veto players.  Arguing that the Constitution of Kosovo is rather rigid, the article then questions the significance of constitutional rigidity in light of the model of separation of powers, human rights, and the Constitutional Court’s constitutional “updating” role.  The article concludes that constitutional …

Counterfeits, Copying And Class, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

When Sixteen Ain't So Sweet: Rethinking The Regulation Of Adolescent Sexuality, Nicole Phillis

Michigan Journal of Gender & Law

Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental …

The Failure Of Consent: Re-Conceptualizing Rape As Sexual Abuse Of Power, Michal Buchhandler-Raphael

Michigan Journal of Gender & Law

This Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual …

Does Law Matter Online - Empirical Evidence On Privacy Law Compliance, Michael Birnhack, Niva Elkin-Koren

Michigan Telecommunications & Technology Law Review

Does law matter in the information environment? What can we learn from the experience of applying a particular legal regime to the online environment? Informational privacy (or to use the European term, data protection) provides an excellent illustration of the challenges faced by regulators who seek to secure user rights and shape online behavior. A comprehensive study of Israeli website compliance with information privacy regulation in 2003 and 2006 provides insights for understanding these challenges. The study examined the information privacy practices of 1360 active websites, determining the extent to which these sites comply with applicable legal requirements related to …

Paper Tigers: Rethinking The Relationship Between Copyright And Scholarly Publishing, Alissa Centivany

Michigan Telecommunications & Technology Law Review

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries' two main inputs-articles and peer-review-are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with "non-essential" materials altogether. The situation is even more dire for non-elite schools, …

Information Anxieties, G. S. Hans

Michigan Telecommunications & Technology Law Review

The constant access and instant publication that the Internet allows have given every pundit an online soapbox. This content explosion has created two related problems for consumers and industry: how to find valuable content online (whatever "valuable" means) and how to moderate the flow of the content itself. Tim Wu argues in The Master Switch that the second issue of content control and mediation has been fiercely debated in the United States as far back as the invention of the telephone in the late nineteenth century. Consumers, creators, companies, and government officials have disputed the appropriate regulations for the devices …

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams

Michigan Telecommunications & Technology Law Review

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation …

Hatch-Waxmanizing Copyright, Michal Shur-Ofry

Michigan Telecommunications & Technology Law Review

This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the …

The Endowment Effect In Ip Transactions: The Case Against Debiasing, Ofer Tur-Sinai

Michigan Telecommunications & Technology Law Review

This Article contains a critical discussion of recent studies by Christopher Buccafusco and Christopher Sprigman concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine. The thesis as presented is groundbreaking and would have broad implications. This Article, however, points out several shortcomings of …

Governments, Privatization, And Privatization: Icann And The Gac, Jonathan Weinberg

Michigan Telecommunications & Technology Law Review

The Internet Corporation for Assigned Names and Numbers (ICANN) sets the rules for the Internet addressing systems that make it possible for users to send email, view webpages, or otherwise connect to Internet resources. Its most visible function is to supervise the domain name system, which identifies Internet resources by "domain names" such as "wayne.edu" or "threecats.net." ICANN's control gives it authority over how domain names are structured and what they look like; it gives it regulatory and economic power over a substantial set of businesses involved with Internet addressing.[...] What kind of organization, then, is ICANN? It is in …