Comparative and Foreign Law Commons^™

Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they …

Cocaine And Corruption: The Rise In Drug Trafficking In Ecuador And Why It Isn’T Being Stopped, Ella Sicking

The International Law Review Association Student Forum

A state of emergency in Ecuador continues to be in effect as cocaine trafficking and gang violence become increasingly problematic. What started as cartel rivalries and increased cocaine production in bordering countries, Peru and Colombia, has turned into a full-scale drug war in Ecuador, stirring humanitarian and governmental concerns about the mounting violence in the once peaceful country. Increased regulation and United States intervention might be the only approach to save Ecuador from becoming a country ravaged by violence and run by the cartels, but local governmental corruption is currently acting as a barrier to a timely solution. While quick …

The Consequences Of Gender-Affirming Care: A Survey Of U.S. And U.K. Law, Caroline Hoch

The International Law Review Association Student Forum

The prevalence of youth experiencing “gender dysphoria” over the last decade has exploded. More minors than ever before are identifying as a different gender than their biological sex. Yet, there is a divergence among nations regarding what care is best for minors questioning their gender identity. The United Kingdom has begun to move away from prescribing minors puberty blockers and hormone therapies, as the federal government in the United States seeks to protect and promote gender-affirming care for youth. The response among the states is far more fractured. Some states have imposed bans on gender-affirming care for minors. While there …

Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

The Low-Hanging Fruit: Health, Rights, And The Commission, Bright Nkrumah

Washington and Lee Journal of Civil Rights and Social Justice

The year 2022 marked the 35th anniversary of the African Commission on Human and Peoples’ Rights. As it is a custom in many communities, when one reaches this milestone, it is an opportune time to introspect and reflect on the successes and challenges encountered in one’s journey. It is this template that the paper adopts to measure the prospects and setbacks of the African Commission in the advancement of the right to health. The Article argues that while the body remains the poster child of the continent’s human rights architecture, its inability to clearly articulate how states ought to advance …

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

A Closer Look At The "Eye" Test: The British Influence On Early American Design Patent Infringement Law, Mark D. Janis

IP Theory

The Supreme Court has asserted that “[t]he Patent Clause in our Constitution ‘was written against the backdrop’ of the English system.” That notion has a long lineage. In 1818, the author of an anonymous “Note on the Patent Laws,” widely assumed to be Justice Story, claimed that “[t]he patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject.”

But these generalizations significantly overstate—and oversimplify—the influence of British law on the nascent American jurisprudence of patents. Early American jurists felt no reluctance …

The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin

William & Mary Bill of Rights Journal

In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …

Nerds V. Nintendo: Video Game Decompilations Versus Rights-Holder Interests, Kirk A. Sigmon

Cardozo Law Review

Video game “decompilations”—a potentially technically inaccurate term referring to fan efforts to entirely reprogram video games based on reverse engineering those games—present an interesting case study for evaluating the scope of video game copyrightability, fair use, and public expectations about content availability. Decompilations usually comprise entirely new code and do not comprise any assets of the original video game, suggesting that the decompilations, if viewed as mere code, do not apparently infringe any video game copyrights. That said, decompilations illustrate why copyright protects more than the discrete assets (e.g., art or music) of a video game, as decompilations are generally …

Cleaning Up The Corporate Opportunity Doctrine Mess: A First Principles Approach, Yifat Naftali Ben Zion

Washington and Lee Law Review

Almost a century ago, a legal dispute over who is the rightful owner of Pepsi-Cola, at the time an unknown syrup company on the verge of bankruptcy, led the Supreme Court of Delaware to develop what is now famously known as the corporate opportunity doctrine. This doctrine is the central framework Delaware courts use to this day to determine whether an officer who seized a business opportunity has breached his fiduciary duties. Despite the doctrine’s old roots, it has thus far failed to reach stable ground. For one, while many corporate law scholars have supported the rule developed following this …

The Right To Access Information On Land Recovery, Compensation, Assistance, And Resettlement: Case Study, City Of Can Tho, Vietnam, Hien Trung Phan, Hugh D. Spitzer

Articles

Land recovery in Vietnam is the process of compulsory transfer of land use rights from the hands of land users to the hands of the State by way of local government agencies. Land recovery frequently raises issues of compensation, assistance, and resettlement. It is vital for affected land users and the general public to have access to reports on land recovery, compensation, and resettlement. The article describes a limited survey of Vietnamese people whose land was subject to government recovery and evaluates their access to and understanding of information at each stage of the land recovery process. The study revealed …

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Bordering On Solutions: A Comparative Study Of Mexican And U.S. Policies To Address Human Trafficking Along The Mexico-United States Border, Taylor Rosenbleeth

The International Law Review Association Student Forum

Mexico and the United States both contend with the issue of human trafficking and implement measures to address this prevalent challenge, not only within their respective territories, but also along their shared border region. Despite significant efforts, both nations encounter obstacles in their anti-trafficking endeavors. The U.S. promotes a comprehensive legal framework, exemplified by the Victims of Trafficking and Violence Protection Act, yet faces criticism regarding deportation policies and inadequate victim support mechanisms. In contrast, Mexico has demonstrated progress through legislative advancements such as the 2012 anti-trafficking law and initiatives like the "Blue Heart" campaign, yet the country struggles with …

U.S.-Canadian Wildfire Cooperation, Nicholas Smetzer

The International Law Review Association Student Forum

Record-breaking wildfires are striking the United States and Canada with troubling, increasing frequency. As wildfires know no borders, climate change-related wildfires will increasingly damage the ecosystems and economies of both nations unless they develop an efficient system of cooperation to deal with this shared threat. As the U.S. and Canada share similar cultures, legal systems, and interests in preserving their ecosystems and air qualities, these countries are in a unique position to share intelligence and resources to properly address the scale of these disasters. Scholars such as Madison Gaffney have noted the potential for current legislation to expand and treat …

The Future Of Peace: Solutions For Arbitration Procedures Between Israeli And Saudi Arabian Entities, Avi Steinberg

The International Law Review Association Student Forum

Israel and Saudi Arabia are not natural partners. Despite a murky future at the present, peace between the two is on the horizon. With the advent of the Abraham Accords, a historic initiative by the Trump Administration to foster peace between Israel and its Arab neighbors, Israel has reached previously unthinkable diplomatic heights. Israeli citizens can now visit places like Dubai. Through remarkable events such as this, now the future beckons that an Israeli deal with Saudi Arabia appears to be the next step towards comprehensive peace in the region. Of course, with peace comes a trade agreement. With that …

Anti-Hero Or Villain: Analyzing Varying Competition Laws By Comparing Global Responses To Continued Competition Concerns Surrounding Ticketmaster After The Eras Tour, Ashley Watson

The International Law Review Association Student Forum

Antitrust laws in the United States regarding ticket sellers and re-sellers have failed to properly protect consumers and ensure sufficient competition. Ticket sales for Taylor Swift’s The Eras Tour demonstrated how the current Ticketmaster and Live Nation monopoly creates a system where consumers have no choice but to deal with website failures, price-gouging, and hidden fees. The original approval of the Ticketmaster and Live Nation merger must be re-evaluated to protect consumer interests and ensure a lack of competition is not resulting in consumer harm. Scholars have written extensively about antitrust law in the United States and beyond, but The …

Peninjauan Kembali Demi Keadilan, Alfret Alfret

Jurnal Hukum & Pembangunan

Abstract

As the world of law develops, there are more and more new provisions related to the implementation of Judicial Review (PK). Some concrete examples related to the development of PK provisions themselves are that a PK can only be carried out once. Apart from that, there is also a provision that the public prosecutor cannot carry out request for reconsideration. This raises the question of whether these restrictions do not conflict with the principles of justice. This research was studied using normative juridical methods based on existing legal provisions and decisions. So the results of this research show that …

Justice Collaborator Dalam Pertimbangan Hakim Memutus Perkara, Amalina Fikriyah, Ali Masyhar, Cahya Wulandari

Jurnal Hukum & Pembangunan

Justice Collaborator, which refers to the cooperation between a non-primary perpetrator and law enforcement in uncovering organized crimes, is often used to expose cases of extraordinary crimes. The concept of a Justice Collaborator has become a topic of public discussion following the case involving the murder ordered by Ferdy Sambo, where Ferdy Sambo instructed Richard Eliezer to kill Jhosua Hutabarat. Richard Eliezer was found guilty by the court and was designated as a Justice Collaborator.

Upaya Mediasi Melalui Lembaga Alternatif Penyelesaian Sengketa Sektor Jasa Keuangan (Laps Sjk): (Studi Kasus Sengketa Rehabilitasi Daftar Hitam Nasional (Dhn) Pt X Dan Bri), Benedetto Setyo Utomo

Jurnal Hukum & Pembangunan

Salah satu upaya penyelesaian sengketa di luar pengadilan yang dapat dilakukan oleh LAPS SJK adalah mediasi. Mediasi selain untuk menyelesaikan sengketa, dapat pula bertujuan untuk melindungi hubungan baik yang telah ada di antara para pihak, sehingga walaupun terjadi sengketa, hubungan antara para pihak, di mana dalam hal ini adalah bank dan nasabah, dapat dijaga secara berkesinambungan. Mediasi pada LAPS SJK bersifat rahasia dan mengutamakan win-win solution, sehingga memberikan kenyamanan bagi para pihak yang bersengketa dan mampu menjaga kepercayaan nasabah terhadap sektor jasa keuangan seperti bank. Selain itu, upaya mediasi melalui LAPS SJK menawarkan proses penyelesaian yang lebih cepat, lebih murah, …

Four Pathbreaking Women Judges To Participate In Iu Conference And Public Discussion Monday, Sept. 25, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four distinguished women judges from the Middle East and North Africa—including the first female judge in Jordanian history—will visit the Indiana University Bloomington campus Sept. 25-26 for a conference titled “Women Judges in Dialogue,” where they will discuss their own experience as women in the judiciary as well as issues surrounding constitutional adjudication in the region. They will be joined by faculty from the Hamilton Lugar School of Global and International Studies and the Maurer School of Law.

Sponsored by the Center for the Study of the Middle East (CSME) at HLS and the Center for Constitutional Democracy (CCD) …

Narrowing The Scope Of Public Order Payment Under Uae Private International Law: A Critical Study, Mariam Ahmed Alsandal Dr.

UAEU Law Journal

Private international relations are the legal relations of a foreign component, for which the legislator has permitted the application of foreign law to their disputes, which is approved by the Emirati legislator in the Federal Civil Transactions Law No. 5 of 1985 and its amendments, through a set of legal rules known as the rules of attribution contained in texts 10 to 28 of this law. The Emirati legislator also approved the application of the foreign law in the Federal Personal Status Law No. 28 of 2005 and its amendments, stipulating that the litigants or one of them must adhere …

The Future Of Freedom Of Press In Indonesia After The Personal Data Protection Law Era, Untung Sumarwan, Arief Hidayat, Lita Tyesta Alw

Indonesia Law Review

The press is a manifestation of the sovereignty of the Indonesian people. Unfortunately, the spirit of freedom of the press seems to be still experiencing shocks from various angles, one of which is the birth of Law number 27 of 2022 concerning Personal Data Protection (PDP Law). On the one hand, the presence of the PDP Law should be appreciated as a form of government effort to protect citizens' rights to privacy. However, unfortunately, several article provisions in the PDP Law still intersect with the Press, which are not a form of restriction in positive terms but have the potential …

Understanding The Typology Of Health Sector Corruption In Indonesia, Ratna Juwita

Indonesia Law Review

Health sector corruption is considered as one of the most serious barriers to the realisation of the right to health due to the complexity of the health care system structure. This research aims firstly to explain the international legal obligations of Indonesia concerning the right to health and anticorruption and subsequently explain the measures taken by Indonesia to realise its international legal obligations. Secondly, legally binding judgments on health sector corruption will be collected to formulate the typology of health sector corruption in Indonesia. The construction of the typology of health sector corruption is to pinpoint the pattern of corruption …

Indonesian Capital Market Investor Protection In Cases Of Embezzlement, Arman Nefi, Adiwarman Adiwarman

Indonesia Law Review

Law Number 8 of 1995 on Capital Market, in Articles 90 to 98, regulates fraud, market manipulation and insider trading. There is no regulation of embezzlement in the Indonesian Capital Market. Have the legislators forgotten, or have anticipated that there will never be embezzlement in the legal realm of the Indonesian Capital Market? The paper deals with the absent of criminalization of embezzlement in capital market act and produce the recommendation to cope with the issue. This study uses a normative legal analysis method with a conceptual, an analytical, and a case study approach. Several legal cases that are strongly …

The Implementation Of The Religion Rights For Transgender In Indonesia, Ratih Andani Setyo Budhi

Indonesia Law Review

The rights to conduct religious practice are undoubtedly essential for all human beings, including transgender people. However, in practice, they often found obstacles in implementing their fundamental rights to pray to God. The main objectives of this paper are to understand the statutory laws applicable in Indonesia regarding the rights of the religion of the Indonesians for transgenders, and how is the actual implementation by the government in fulfilling the rights, as well as examining case experienced by the transgenders who live in Pondok Pesantren Waria (Female Transgender Madrasa) Al- Fatah Yogyakarta. The Author was using a combination of library …

Morality In Law: An Analysis Towards The Legal Philosophy And Indonesia National Legal System, Ade Adhari, Tundjung Sitabuana, Indah Siti Aprilia

Indonesia Law Review

The philosophy of law schools, such as positivism and naturalism, always have opposing arguments about moral and law separation. Positivism on one side, believes that morality is a non-law element that has to be strictly separated from the law, while on the other side, naturalism says moral can not be separated from the law and that moral has to become the basis of every law. However, the positivism idea is arduous to be implemented in the current situation as the legal product is constantly managed to conform with the moral values. The objectives of this paper are to study: (1) …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow

Law & Economics Working Papers

The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …