Law Commons^™

The Appellate Body Crisis: Consent Within The Dispute Settlement Body Of The World Trade Organisation, Diana María Beltrán-Vargas, Mariana Puentes-Jaramillo, Pablo Andrés Aponte-González, Maria Alexandra Ortíz-Cabrera

Indian Journal of International Economic Law

No abstract provided.

International Investment Agreements And Regulation Of Utilisation Of Water Resources In Africa, Dominic Npoanlari Dagbanja

Indian Journal of International Economic Law

African constitutions and domestic water legislation provide for the human right to clean and safe drinking water. This right is also sourced from international human rights treaties and declarations to which African states are parties or signatories. Both municipal law and public international law impose the duties of protection and fulfilment of the right to safe drinking water on states. Domestic water laws and regulations require African states to regulate and manage the utilisation of water resources including by approving the grant of rights, concessions, or contracts in respect of the exploitation of water resources. These laws also require the …

Unilaterally Altering The Bargain: Trips, Section 107a, And The Regulatory Review Exception Under Indian Patent Law, Eashan Ghosh, Afzal B. Khan

Indian Journal of International Economic Law

In 2003, Section 107A of the Patents Act wrote a regulatory review exception into Indian law. Its beholden purpose is to enable patent-protected pharmaceutical products to be brought to Indian markets quicker and in large numbers. Emboldened by a WTO decision brake-testing a similar Canadian statute, Indian pharmaceutical manufacturers have consistently claimed Section 107A benefits from domestic courts. Lately, the economic trail of these benefits has grown to implicate entities abroad. Pushback to this trend from patentees has duly arrived. It has culminated in a stack of Delhi High Court decisions in Bayer v. Union of India. Bayer writes three …

Special And Differential Treatment At The World Trade Organization: Analysis And Observations, Maureen Irish

Indian Journal of International Economic Law

A debate is underway at the WTO over developing country status. As well, various proposals have been made to reform special and differential treatment (SDT). This essay summarizes views expressed and analyzes them against the background of the history of SDT, the Generalized System of Preferences and WTO provision of technical assistance and capacity building. The argument presented is that many of the current concerns can be accommodated in existing provisions without need for the radical changes that have been proposed. The author concludes by offering observations on the path forward for the WTO and its Members.

Bottom-Rung Appeals, Merritt E. Mcalister

Fordham Law Review

There are “haves” and “have-nots” in the federal appellate courts, and the “haves” get more attention. For decades, the courts have used a triage regime under which they distribute judicial attention selectively: some appeals receive a lot of judicial attention, and some appeals receive barely any. What this Article reveals is that this triage system produces demonstrably unequal results, depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce significant disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length …

Access To Medicines And Pharmaceutical Patents: Fulfilling The Promise Of Trips Article 31bis, Ezinne Mirian Igbokwe, Andrea Tosato

Fordham Law Review

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has long stood accused of reducing access to medicines for the poorest and most vulnerable nations. Enacted in 1994 as one of the founding pillars of the World Trade Organization, TRIPS has enabled pharmaceutical companies to enforce their patent rights in almost every country, precluding cheaper generics from being distributed, save for very limited exceptions.

But in 2001, TRIPS was amended expressly to address this issue, allowing countries with limited resources to lodge a formal request to obtain patented medicines at a sustainable cost. Generics manufacturers worldwide can answer this …

“Can I Post This?”: A Call For Nuanced Interpretation Of Dmca Enforcement In The Age Of Social Media, Erin E. Bronner

Fordham Law Review

This Note advances recent scholarship critiquing the notice-and-takedown procedures used by online service providers (OSPs) under the safe-harbor provision of the Digital Millennium Copyright Act (DMCA)—specifically in the context of user-generated content (UGC) posted by end users on social media. Rights holders have increasingly put legal pressure on technology platforms to fortify their copyright protection mechanisms. Over the past decade, this imperative has manifested through an increased use of automated content recognition (ACR) technology to remove allegedly infringing UGC. ACR technology has gradually overtaken the manual, human review of UGC that the DMCA envisioned.

However, reliance on mass automated takedowns …

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Harsh Creditor Remedies And The Role Of The Redeemer, Christopher D. Hampson

Fordham Law Review

The concept of the judgment-proof or collection-proof debtor is fundamental to our understanding of civil law and of what distinguishes it from criminal law. But when civil creditors can threaten unduly harsh or cruel debt collection measures (whether legally or not), they extend their reach into the pockets of those whom this Article calls “redeemers,” third parties with a familial or quasi-familial relationship to civil debtors who have reason to pay on their behalf. This Article examines four such measures—imprisonment, homelessness, destitution, and deportation—remedies that sound like they come from another time and place, but which are threatened by some …

Representing Noncitizens In The Context Of Legal Instability And Adverse Detention Precedent, Nancy Morawetz

Fordham Law Review

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation. Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet. This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens. The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate. The second is the individuation and …

A Living Legacy: The Katzmann Study Group On Immigrant Representation, The Honorable Denny Chin

Fordham Law Review

On March 9, 2023, hundreds of individuals—including immigration lawyers, advocates, government officials, academics, journalists, and philanthropists—gathered for a symposium at Fordham University School of Law entitled Looking Back and Looking Forward: Fifteen Years of Advancing Immigrant Representation. The symposium was organized by the Fordham Law Review and sponsored by law school centers and clinics, nonprofit organizations, and the Katzmann Study Group on Immigrant Representation (the “Study Group”). For members of the Study Group, the day was particularly poignant because several sessions at the symposium honored the life and accomplishments of the Hon. Robert A. Katzmann, the Study Group’s founder and …

The Crisis Of Unrepresented Immigrants: Vastly Increasing The Number Of Accredited Representatives Offers The Best Hope For Resolving It, Michele R. Pistone

Fordham Law Review

The U.S. immigration system is exceedingly complex, and access to legal representation is the primary determinant in obtaining a just immigration outcome. Immigrants must navigate a byzantine, burdensome, and high stakes legal process, conducted in a language they often do not speak. They often must do so without any legal representation. Unlike criminal defendants, immigrants are not entitled to government-funded lawyers. Legal services organizations, such as Legal Services Corporation, that receive any federal funding are prohibited from providing legal representation to most immigrants. Faith-based and charitable legal services organizations provide some legal representation to immigrants through attorneys, staff members, and …

Interpleader As A Vehicle For Challenging The Constitutionality Of Private Citizen Action Statutes, Delia Parker

Fordham Law Review

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality. State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors. The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of …

The Patent Written Description Requirement: A Requirement In Search Of A Description, Darlene M.J. Staines

Fordham Law Review

Innovation often requires a hefty investment of time and money. The patent system exists to incentivize innovation by granting inventors the exclusive use of their invention for a set period of time. In return, the public receives the benefit of the inventor’s knowledge, as well as the use of the invention once the exclusivity period ends. One of the hurdles for obtaining a patent is the written description requirement, which demands that the inventor disclose enough information to prove that they actually invented what they are seeking patent protection for. This requirement serves to prevent an undeserving “inventor” from obtaining …

A Pleasure To Burn: How First Amendment Jurisprudence On Book Banning Bolsters White Supremacy, Amy Anderson

Mitchell Hamline Law Review

No abstract provided.

Levels Of Generality & Originalism: Proposing A New Way Forward As Originalism Continues To Expand, Marquan Robertson

Mitchell Hamline Law Review

No abstract provided.

Preempting State Prevention: How Fda Regulation Ensures Access To Abortion Medication, Jared Shea

Mitchell Hamline Law Review

No abstract provided.

The Theoretical And Practical Shortcomings Of Necessitating Appreciation For Punishment—Madison V. Alabama, 139 S.Ct. 718 (2019), Martin Sandberg

Mitchell Hamline Law Review

No abstract provided.

Constitutionality Of Reparations For Native Americans: Confronting The Boarding Schools, Monica Shaffer

Mitchell Hamline Law Review

No abstract provided.

Minnesota Statutes Section 243.166 Subdivision 1(B) Has Got To Go: Why Requiring Predatory Offender Registration Based On A Charge As Opposed To A Conviction Violates Procedural Due Process, Alison Baker Faul

Mitchell Hamline Law Review

No abstract provided.

An Appeal To Books, Amir H. Ali

Michigan Law Review

This feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.

As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Michigan Law Review

A Review of Allow Me to Retort: A Black Guy’s Guide to the Constitution. By Elie Mystal.

Mothers In Law, Melissa Murray

Michigan Law Review

A Review of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. By Tomiko Brown-Nagin.

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Michigan Law Review

A Review of Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, By Dorothy Roberts.

The Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

Introduction: Three Responses To Rewritten Opinions In Critical Race Judgments, Gabe Chess, Elena Meth

Michigan Law Review

A Review of Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Status Manipulation In Chae Chan Ping V. United States, Sam Erman

Michigan Law Review

A Review of Chae Chan Ping v. United States. By Rose Cuison-Villazor in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 74, 84. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Comparing Western Australia And South Australia Public High School’S Cyberbullying Policies – Is There A Need For A Legislative Change, Vanessa Tay

Theses: Doctorates and Masters

The internet provides some of the most effective means of communication. Cyberbullying occurs when the internet is used to bully another person. Along with the positive aspects of the internet, cyberbullying is certainly one of the most negative aspects, especially with regard to school students. Victims of cyberbullying may be able to obtain legal sanctions, however, this usually occurs after the harm is done. In Australia, some states such as South Australia have recognised the need for preventive strategies by requiring schools to have an anti-bullying plan in place. Other countries, like Ontario, Canada have implemented similar preventative strategies in …

The Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

The Impact Of Post-Dobbs Abortion Bans On Prenatal Tort Claims, Aviva K. Diamond

Michigan Law Review

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational- age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs …