Comparative and Foreign Law Commons^™

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.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Introduction: Constitutional Conflict And Development: Perspectives From South Asia And Africa, Sudha Setty, Matthew H. Charity

Faculty Scholarship

This Introduction was written for an eponymous joint program held on January 4, 2014 and hosted by the Section on Africa and the Section of Law & South Asian Studies, both of the Association of American Law Schools.

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 …

Unilateral Non-Colonial Secession And The Criteria For Statehood In International Law, Glen Anderson

Brooklyn Journal of International Law

The following article examines the interactions between the right of peoples to unilateral non-colonial (“UNC”) secession and the criteria for statehood in international law. In this respect a three-point thesis is developed. First, it is argued that the law of self-determination has resulted in a less strict application of the criteria for statehood based on effectiveness, particularly the effective government criterion. This means that a state created by UNC secession pursuant to the law of self-determination will not have its statehood called into question if lacks an effective government. Second, it is argued that the declaratory approach to recognition is …

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 …

State-Owned Enterprises In Singapore: Historical Insights Into A Potential Model For Reform, Cheng-Han Tan, Dan W. Puchniak, Umakanth Varottil

Research Collection Yong Pung How School Of Law

This article argues that the Singapore GLC Model is so closely intertwined with Singapore’s idiosyncratic history and unique regulatory culture that, although the model has been extremely successful within Singapore, transplanting it to China could be difficult. The article also explores the extent to which the success of the Singapore GLC Model and China’s ambition to emulate it challenge notions that corporate governance systems are converging towards a market-oriented (American) model of the shareholder centric corporation and the extent to which the success of the Singapore GLC Model challenges the basic conception that private enterprise rather than the state is …

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 …

Foreign Relations Law And The Purported Shift Away From "Exceptionalism", Curtis A. Bradley

Faculty Scholarship

In prior writings, I coined the term “foreign relations exceptionalism” to refer to the view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers. In a recent article in the Harvard Law Review, The Normalization of Foreign Relations Law, the authors contend that during the past twenty-five years there has been a revolutionary shift away from foreign relations exceptionalism, that this “normalization” trend is likely to continue, and that this development should be welcomed and encouraged. This essay points out various conceptual …

All Over The Map: The Diversity Of Western Water Plans, Vanessa Casado-Pérez, Bruce E. Cain, Iris Hui, Coral Abbott, Kaley Dodson, Shane Lebow

Faculty Scholarship

Water presents a complex challenge to western state governments. Water is scarcer in the West than in the East and western states face challenges unknown to eastern ones. The textual analysis of their state water planning summaries produced by the US Army Corps of Engineers between late 2008 and 2009 confirms the differences in their policy priorities. However, there is also a wide variance among western states’ policies as the diversity in their water plans show.

Water planning is a challenge not only because of the variability of the resource but also because water basins do not map our local, …