Comparative and Foreign Law Commons^™

Chinese Patents As Copyrights, 34 Campbell L. Rev. 685 (2012), Benjamin Liu

UIC Law Open Access Faculty Scholarship

Although harmonization efforts such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Patent Corporation Treaty regime have brought national patent systems closer, differences among them remain a continuing challenge to innovators in an interconnected global marketplace. The recent development of the Chinese patent system is of particular interest because China is the factory of the world, the most populous market, the home of the patent office that handles the most patent application filings, and the number one source of imports that violate intellectual property rights (IPR). Its patent system affects every company whose supply chain, …

The Word Commons And Foreign Laws, Thomas O. Main

Scholarly Works

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

The Global Impact And Implementation Of Human Rights Norms: Introduction, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Trademark Apologetic Justice: China And The Three Laws, Xuan-Thao Nguyen

Articles

The article will proceed as follows. Part I discusses the three bodies of law constituting China’s trademark jurisprudence by tracing the development of Trademark Law, Anti-Unfair Competition Law and Civil Law. All of these laws contain relevant provisions pertaining to trademark reputation and remedies, including injunction, damages and public apology to eliminate any bad effects. As China Supreme People’s Court has a significant role in shaping trademark jurisprudence and apologetic justice, Part I also analyzes judicial directives that provide guidance and instructions to the lower courts in addressing trademark reputation remedies.

An analysis of only statutes and judicial directives, however, …

Apologies As Intellectual Property Remedies: Lessons From China, Xuan-Thao Nguyen

Articles

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of …

Converging Trends In Investment Treaty Practice, 38 N.C. J. Int’L & Com. Reg. 151 (2012), Karen H. Cross

UIC Law Open Access Faculty Scholarship

No abstract provided.

Still Chasing Chimeras But Finally Slaying Some Dragons In The Quest For Consumer Bankruptcy Reform, 25 Loy. Consumer L. Rev. 1 (2012), Jason Kilborn

UIC Law Open Access Faculty Scholarship

Consumer bankruptcy systems in Europe and the United States have witnessed especially robust and dynamic development during the past decade. The ever-rising volume of seeking entry to these systems now allows for cross-systemic comparisons of substantially differing “markets” for the relief that these systems offer. In particular, the distinct trend toward greater efficiency seen in other financial markets can be increasingly observed in most consumer bankruptcy regimes, with some notable exceptions. In this context, market performance can be gauged in part by the degree to which systems offer efficient and effective relief as a stimulus to deploying available debtor resources …

The Global Subprime Crisis As Explained By The Contrast Between American Contracts Law And Civil Law Countries' Laws, Practices And Expectations In Real Estate Transactions: How The Lack Of Informed Consent And The Absence Of The Civil Law Notary In The United States Contribute To The Global Crisis In Subprime Mortgage Investments, 11 J. Int'l Bus. & L. 133 (2012), Celeste M. Hammond, Ilaria Landini

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Social Psychology Model Of The Perceived Legitimacy Of International Criminal Courts: Implications For The Success Of Transitional Justice Mechanisms, 45 Vand. J. Transnat'l L. 405 (2012), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

There is a large body of literature arguing that positive perceived legitimacy is a critical factor in the success of international criminal courts, and that courts can be engineered in such a way that they will be positively perceived by adjusting factors such as their institutional structure and outreach efforts. But in many situations the perceived legitimacy of international criminal courts has almost nothing to do with these factors. This Article takes the latest research in social psychology and applies it to survey data about perceptions of international criminal courts in order to understand how affected populations form attitudes about …

Export Pioneers In Latin America, Charles F. Sabel, Eduardo Fernández-Arias, Ricardo Hausmann, Andrés Rodriguez-Clare, Ernesto Stein

Faculty Scholarship

Export Pioneers in Latin America analyzes a series of case studies of successful new export activities throughout the region to learn how pioneers jump-start a virtuous process leading to economic transformation. The cases of blueberries in Argentina, avocados in Mexico, and aircraft in Brazil illustrate how an initially successful export activity did not stop with the discovery of a single viable product, but rather continued to evolve. The book explores the conjecture that costly burdens to entrepreneurial self-discovery (due to the deterrent effects of imitation by competitors) have held back potential exporters in post-reform Latin America. It also considers the …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

Articles

China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

Learning From The Unique And Common Challenges: Clinical Legal Education In Jordan, Nisreen Mahasneh, Kimberly A. Thomas

Articles

Legal education worldwide is undergoing scrutiny for its failure to graduate students who have the problem-solving abilities, skills, and professional values necessary for the legal profession.1 Additionally, law schools at universities in the Middle East have found themselves in an unsettled environment, where greater demands for practical education are exacerbated by several factors such as high levels of youth unemployment. More specifically, in Jordan there is a pressing need for universities to respond to this criticism and to accommodate new or different methods of legal education. Clinical legal education is one such method.3 We use the term "clinical legal education" …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

Catholic University Law Review

No abstract provided.

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

A Moot Issue? Rethinking Holocaust Era Restitution Of Jewish Confiscated Personal Property In Poland, Lara Weissman

Cardozo Journal of Conflict Resolution

Part I of this note will recount the historical events in Poland that resulted in the massive and ruthless appropriation of Jewish property, not only by the Nazis and the Communist regime, but also by non-Jewish Poles. The inadequate restitution policies following Poland's independence will then be explored, demonstrating Poland's unwillingness to deal with the theft that occurred within its borders, instead favoring sheer dismissal of the issue in the hopes of concentrating on rebuilding its war-torn country.

Part IIA will explore Poland's continued refusal to create and enforce policies that would assist in the restitution process, marking Poland as …

A Meteorite And A Lost City: Mutually Beneficial Solutions Through Alternative Dispute Resolution, Sam Markowitz

Cardozo Journal of Conflict Resolution

This Note proceeds in a number of parts. Part I will present two case studies: First, the Willamette Meteorite and the agreement between the Grand Ronde Tribe and the AMNH; and second, the recent agreement between Peru and Yale University regarding artifacts from Machu Picchu. Part II will briefly explain and outline Alternative Dispute Resolution (ADR) and the methods through which successful resolution to disputes are achieved, specifically noting that in the last decade, cultural property disputes have been increasingly resolved through ADR. Part III will compare the agreements reached in both instances, proposing several reasons why these agreements worked …

Extraterritorial Protection Of Trade Secret Rights In China: Do Section 337 Actions At The Itc Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523 (2012), Steven E. Feldman, Sherry L. Rollo

UIC Review of Intellectual Property Law

With an ever increasing number of United States ("U.S.") companies conducting business abroad or conducting business with foreign entities there is more need than ever for the U.S. companies to consider how they can protect their intellectual property assets. The Federal Circuit‘s recent TianRui Grp.Co. v. Int’l Trade Comm’n and Amsted Indus. decision highlights the potential of section 337 of the U.S. Patent Act as a tool to prevent the exploitation of misappropriated trade secrets embodied in products that are imported into the United States. This article explores the potential impact of the TianRui decision on business practices abroad, particularly …

Comparison Of Chinese And U.S. Patent Reform Legislation: Which, If Either, Got It Right?, 11 J. Marshall Rev. Intell. Prop. L. 567 (2012), Wayne C. Jaeschke, Zhun Lu, Paul Crawford

UIC Review of Intellectual Property Law

Chinese patent law has a short history whereas the United States ("U.S.") system has a more robust history. This article chronicles important remaining differences between Chinese and U.S. patent laws including the utility model successfully employed at State Intellectual Property Office of the People’s Republic of China ("SIPO") and in the Chinese courts, but not available under U.S. law. Some differences are discussed in regard of patent appeals, reexaminations for invalidity, China’s lack of a reissue process to correct major errors, China’s inventors remuneration process and compulsory licensing of patents, and China’s unique requirement of post termination compensation to support …

Fighting Poison With Poison? The Chinese Experience With Pharmaceutical Patent Linkage, 11 J. Marshall Rev. Intell. Prop. L. 623 (2012), Benjamin Liu

UIC Review of Intellectual Property Law

Countries after countries are adopting a controversial regulatory system of linking the market approval for pharmaceuticals to the status of potentially blocking patents as part of their bilateral and multilateral trade agreement package with the United States. Surprisingly, China took up pharmaceutical patent linkage in the absence of any treaty obligations and became the first country to adopt this regulatory regime outside of North America, despite the presence of a flourishing generics pharmaceutical industry and its developing country status. In fact, the Chinese regulation promised more intellectual property ("IP") protection than what even the United States FDA is capable of …

Exploring Apple’S Ipad Trademark Blunder: Chinese Trademark Approval Procedure Is A Trademark Protection Safeguard Or Another National Protectionism?, 11 J. Marshall Rev. Intell. Prop. L. 777 (2012), Arthur Tan-Chi Yuan

UIC Review of Intellectual Property Law

It is well-reported that Apple’s iPad® product embodies technological advances that are protected by U.S. and foreign patents. One would also assume that it is protected by trademarks in various jurisdictions, including China. However, to this day, Apple struggles to prefect its iPad trademark rights in China, the second largest economy in the world. While the Chinese trademark registration approval process is different from that in the U.S. practice, such approval step is essential to every international corporation doing business in China. This article explains where Apple may have overlooked this step in the overall trademark registration process in China …

Unsex Mothering: Toward A New Culture Of Parenting, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this …

Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott

Book Chapters

When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being? Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and …

Mexico's Dilemma: Workers' Rights Or Workers' Comparative Advantage In The Age Of Globalization?, Ranko Shiraki Oliver

Law Faculty Scholarship

No abstract provided.

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Changing Burma From Without: Political Activism Among The Burmese Diaspora, David C. Williams

Indiana Journal of Global Legal Studies

This Article examines the role that the Burmese diaspora plays from afar in influencing reform inside the country. It offers a brief history of the crisis in Burma as background for identifying the various elements of the diaspora: those on the run from the military; those in camps for internally displaced persons and refugees; migrant workers; leaders of the democracy movement active on Burma's borders; asylees; and professional activists with influence on the international community. The different groups use the different strategies available to them. The leadership on the borders is helping to lead the democracy movement inside the country; …

International Human Rights In Canadian Immigration Law - The Case Of The Immigration And Refugee Board Of Canada, Catherine Dauvergne

Indiana Journal of Global Legal Studies

This article analyzes the use of international human rights in the decision making of Canada's Immigration and Refugee Board. At the center of the analysis is a data set including all the publically available decisions of the Board since the introduction of the 2002 Immigration and Refugee Protection Act. This data set has been coded for varying degrees of engagement with international human rights law, and the results are presented and scrutinized. At the broadest level, the results are disappointing for migrant advocates as international law is relied on in an infinitesimally small number of decisions.

Globalization and Migration Symposium, …

Transnational Adoption And European Immigration Politics: Producing The National Body In Sweden, Barbara Yngvesson

Indiana Journal of Global Legal Studies

This article explores the role of transnational adoption in the production of a multicultural but Swedish national body during the second half of the twentieth and the first decade of the twenty-first century, when Sweden became a multiethnic, multicultural, and racially divided country. I examine the development of international adoption policies in the 1970s, 1980s, and 1990s, emphasizing the erasure of the child's connection to a preadoptive past, even as the child's cultural difference was celebrated in adopting nations. In Sweden, which in the late 1970s and early 1980s had the world's highest adoption ratio (number of transnational adoptions per …

Remedies For Foreign Investors Under U.S. Federal Securities Law, Hannah Buxbaum

Articles by Maurer Faculty

In its 2010 decision in Morrison v. National Australia Bank, the Supreme Court held that the general anti-fraud provision of U.S. securities law applies only to (a) transactions in securities listed on domestic exchanges and (b) domestic transactions in other securities. That decision forecloses the use of the “foreign-cubed” class action, and in general precludes the vast majority of claims that might otherwise have been brought in U.S. court by foreign investors. This article assesses the post-Morrison landscape, addressing the question of remedies in U.S. courts for investors defrauded in foreign transactions. It begins by reviewing the current case law, …

Volume 2 Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Access To Justice And The Ethics And Politics Of Alternative Business Structures, Richard Devlin, Ora Morison

Articles, Book Chapters, & Popular Press

Despite ongoing concern about access to justice in Canada, the problem persists. Meanwhile, the basic model for legal practice in Canada is the same as when the profession first emerged centuries ago in England. Only lawyers can own and control legal practices. This is not the case in other common law jurisdictions where rules have evolved to allow nonlawyers to own the companies that provide legal services. Based on a comparative analysis of the development of these alternative business structures (ABSs) in Australia and the United Kingdom, and the nondevelopment of ABSs in the United States, the authors argue that …