Comparative and Foreign Law Commons^™

Biosimilar Naming: A Call For Uniformity In A Complex Field, Jacqueline Genovese

Brooklyn Journal of International Law

Recombinant technology has opened a pathway for a means of producing a variety of therapeutic proteins and generating the growth of the biopharmaceutical industry. Further, due the patent expirations of a number of biologics in the coming years, there has been an increased interest in the development of generic biologics, also known as biosimilars, and a widespread push for biosimilar FDA approval in the United States. While the pressure for the expansion of biosimilar approval is warranted, the FDA must be cautious when implementing regulatory guidelines. Since biologics differ greatly from small-molecule drugs, biologics have a distinct approval process. The …

The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites

Brooklyn Journal of International Law

On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.

This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …

Liberte, Egalite, Fraternite: The United Nations Declaration Of The Rights Of Indigenous Peoples Fails To Protect Hopi Katsinam From The Auction Block In France, Samantha K. Nikic

Brooklyn Journal of International Law

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) compels member states to take action in order to protect the rights of the world’s 370 million indigenous peoples, including the right to their cultural property. Notwithstanding the UNDRIP’s robust set of protections, its status as a nonbinding piece of international law remains its ultimate and most fatal flaw. France was an enthusiastic supporter of the UNDRIP at ratification, but has effectively abandoned their position. French auction houses and courts have allowed for sales of Native American sacred property to proceed despite the objections of the Hopi Tribe. In …

Reservations And The Cisg: The Borderland Of Uniform International Sales Law And Treaty Law After Thirty-Five Years, Ulrich G. Schroeter

Brooklyn Journal of International Law

No abstract provided.

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Retroactivity In The 1970 Unesco Convention: Cases Of The United States And Australia, Katarzyna Januszkiewicz

Brooklyn Journal of International Law

As the current trend of returning looted artifacts to their countries of origin continues to grow, the need for stricter law enforcement and a reevaluation of the 1970 UNESCO Convention and its application has become apparent. Recently, museums and national governments worldwide have engaged in a repatriation dialogue through mutual cooperation with foreign institutions, rather than international litigation, which is both a long and expensive process. This is a result of both a shifting public opinion towards museums, and the growing awareness of the countries of origin regarding the value of their looted cultural heritage. Looted artifacts continue to flood …

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

International Power On "Power", Steven Ferrey

Suffolk University Law School Faculty Works

Can international power be effectively used to control ‘power’? Power sector carbon emissions to the environment must be solved for a solution to the international problem of climate change. Many of the large developing countries are underwriting the largest in world history push into more high-carbon coal-fired power, which will wholly frustrate world climate control goals. The United Nations scientific panel concluded, with high certainty, that the world is passing the point of being able to control increase in world temperature to less than 2 degrees C. (3.8 degrees Fahrenheit), the so-called ‘tipping point’ of the Planet’s climate.

Tightening the …

Unstable Constitutionalism, Mark Tushnet, Madhav Khosla

Faculty Scholarship

One of the most significant developments in the study of constitutional law in recent years has been the comparative turn in the field. Although debates continue over whether and how domestic courts should rely on (or even refer to) foreign law in domestic legal disputes, the appropriate methodology for comparative analyses, and the potential and limits of comparative constitutional studies, many scholars and practitioners – including well-known judges – no longer believe that the task of constitutional law is solely domestic in nature. Yet, despite the enthusiasm for comparative constitutional law and the emerging systematization of comparative work, the field …

A War For Liberty: On The Law Of Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked …

Innovation And The Role Of Public-Private Collaboration In Contract Governance: Governing Global Finance: Towards Contractual Governance, Katharina Pistor

Faculty Scholarship

The global financial crisis demonstrated the vulnerability, if not failure, of existing governance structures for financial markets. Even if it is true that financial crises cannot be avoided, there may be room for improving existing structures. This chapter suggests that such an improvement might lie in switching from exclusive, hierarchical, and coercive forms of governance to inclusive, horizontal, cooperative ones—and uses the shorthand ‘contractual governance’ for the latter. Starting from the presumption that new forms of governance are frequently born in crisis, the chapter analyses several responses to the crisis and asks whether they display features of alternative forms of …

Is Europe Falling Behind In Data Mining? Copyright's Impact On Data Mining In Academic Research, Christian Handke, Lucie Guibault, Joan-Josep Vallbé

Articles, Book Chapters, & Popular Press

This empirical paper discusses how copyright affects data mining (DM) by academic researchers. Based on bibliometric data, we show that where DM for academic research requires the express consent of rights holders: (1) DM makes up a significantly lower share of total research output; and (2) stronger rule-of-law is associated with less DM research. To our knowledge, this is the first time that an empirical study bears out a significant negative association between copyright protection and innovation.

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

Presentation at the Private Use in EU Copyright Law Seminar, Adam Mickiewicz University in Poznań, Poland.

Indonesia Has It Backward: It's Not E-Cigarettes That's The Problem But Smoking, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Indonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead.

Accident Of Birth Or Matter Of Choice: Legal Recognition Of Transsexual People In The Common Law, Kevin K.S. Tso

Cardozo Journal of Equal Rights & Social Justice

The purpose of the Article is to look at the recognition-or lack thereof-of transsexual people at common law in relation to the "proper" sex and gender with which they associate themselves. This Article will begin by addressing and defining transsexualism and how the medical community's position on this topic has evolved over the years. It will then look at the historical foundations of transsexualism in the common law, especially at the Corbett decision that held sway in England and Wales for over thirty-five years and was followed internationally. The Article will then provide an overview of the current positions in …

Nowhere To Run, Nowhere To Hide: The Absence Of Public Policy On Intimate Partner Violence Abrogates The Rights To Health Care And Bodily Integrity Under The South African Constitution, Stu Woolman, Courtenay Sprague

Cardozo Journal of Equal Rights & Social Justice

An estimated 31-55% of South African women experience lfetime intimate partner violence ("IPV'). The imminent danger of physical, psychological or sexual violence that all South African women face daily not only threatens their very existence, it impairs their development and agency, and thus the ability of each woman to pursue a lfe that reflects her own comprehensive vision of a fulfilling way of being in the world. This article first establishes the legal basis for the proposition that the South African Constitution and South Africa's international obligations require a form of public intervention that has the ability to diminish IP …

Contested Spaces During Transition: Regime Change In Myanmar And Its Implications For Women, Amy Barrow

Cardozo Journal of Equal Rights & Social Justice

This article examines recent political and legal developments in Myanmar to promote and protect Buddhism and their implications for women. Myanmar is currently undergoing political regime change. While periods of transition often present an opportunity to contest stereotypical gender roles and discriminatory cultural practices, a rise in Buddhist ethno-nationalism risks undermining women's "spaces" in society. Drawing on qualitative research interviews with members of civil society and other actors in Yangon, this article discusses the accelerated development of laws on the protection of race and religion alongside the parallel development of Myanmar's first law specifically addressing violence against women, to explore …