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Charles Duan
This chapter explores the possibility of offering a form of insurance to patent-holding inventors, protecting them against the risk that their patents are invalidated in administrative proceedings before the Patent Trial and Appeal Board. Although this kind of “patent title insurance” does not appear to exist to date, it would potentially have tremendous public benefits, helping to resolve heated policy debates over both low patent quality and those administrative proceedings. Yet the potentially high cost of underwriting not only explains why this insurance is not readily available on the market today, but also sheds light on fundamental difficulties with the patent system as a whole.
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Charles Duan and Christopher J. Morten
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Claudio Grossman, Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi
The Inter-American System of Human Rights (IASHR) is certainly a source of innovation in human rights law and policy. However, uncertainty reigns over its true legal, political, and social effects as many decisions face serious problems of compliance. To better grasp the System's effects, this book broadens the focus from compliance to impact as the key criterion of effectiveness. Thus, The Impact of the Inter-American Human Rights System: Transformations on the Ground can reveal the IASHR's deep and multifaceted effects, not least by embedding a common law of human rights.
Outlining the IASHR's historic path and contemporary practice, this book shows legal, political, and social effects with respect to the main problems that trouble the Americas. Though most of these certainly continue to exist, the System is having a transformative impact on them on the ground, though with huge differences between issues and countries. These achievements as well as the variations should be of interest to academics, judges, and policymakers in Latin America as well as other regions undergoing similar stress, such as Central and Eastern Europe or Africa.
The Impact of the Inter-American Human Rights System brings together leading scholars in international and constitutional law, social sciences, and international relations to present a systematic and critical analysis of the impact of the IASHR in the various fields of its activity. These include issues of internal conflicts, transition to democracy, rights of vulnerable groups, social rights, the environment, digital rights, and the accountability of private actors. The book also offers evidence-based proposals to further enhance the transformative impact of the Inter-American System that could be taken up by courts and policymakers at the national, Inter-American, and global levels.
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Maya Manian
This chapter describes the U.S. Supreme Court's momentous decision to overturn Roe v. Wade and legal and public health consequences of that decision in a post-COVID world. The COVID-19 pandemic provided opportunities to both restrict and expand access to abortion care. During the height of the pandemic, the Supreme Court agreed to hear several cases on abortion rights, ultimately leading to the demise of the constitutional right to abortion in Dobbs v. Jackson Women's Health Organization. This chapter analyzes the Dobbs decision and its impact on state legislatures’ attempts to regulate abortion through criminal, regulatory, and civil penalties during and after the height of the pandemic. This chapter also highlights the public health consequences of overturning Roe during the long tail of the pandemic. The pandemic both exposed and exacerbated health disparities for low income people and people of color. The reversal of Roe v. Wade portends worsening reproductive health disparities among communities already ravaged by the pandemic.
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Ezra Rosser
Property rights depend upon the respect, or at least acquiescence, of non-owners to owners’ assertions of priority and control over things. Property is often theorized in such a way that it is easy to lose sight of all that a stable property rights regime demands of non-owners. This chapter resists the standard proposed solutions—magically giving disadvantaged groups more resources or expand the definitions of property to include the poor—to the linked problems of inequality and inequity dominate academic and policy discussions. It considers a third option: destabilizing property. Rather than being content with the often incomplete and grudging efforts to bring non-owners up to the level of owners by giving them more resources or employing expansive approaches to property rights, selectively destabilizing property rights offers a way of forcing owners to confront all that property rights demand of non-owners.
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Christine Farley
This chapter questions the continuing relevance of the search cost theory of trademarks as markets shift online where algorithms shape and influence consumer purchasing decisions. Long the dominant approach to trademarks, the search cost theory posits that trademarks help consumers quickly and easily identify the precise product they desire in a crowded marketplace. As markets shift online, surveillance capitalism keeps careful track of what consumers look at, what they buy, and what they re-buy. To a computer, a trademark is just a particular collection of zeros and ones, and could be readily replaced by any other set of zeros and ones, uniquely associated with the consumer’s shopping and purchasing decisions. This chapter explores how the law should approach trademarks in this new digital age.
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Susan Franck
Achieving the Arbitration Dream is a compendium of high-quality contributions providing valuable perspectives and extensive analyses by preeminent arbitration professionals and scholars on a wide range of cutting-edge topics in the field of law, of which Julian Lew is a leader, and in which he remains an outstanding arbitrator and teacher. This exceptional book is a celebration of the multi-faceted legacy of a key figure in the evolution of international arbitration.
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Susan Franck
Empirical research into investment treaty conflict is simultaneously promising and potentially perilous. This chapter identifies both its costs and benefits while striving to provide a clear set of guidelines for quality research in an effort to identify the potential uses and abuses of empiricism in international investment law. Empirical research is not immune from the polarization within the field, but certain steps can ensure that empirical work is not influenced by narrow or ideological perspectives. First, we need to understand norms of quality social science to enable a data-driven, rather than emotive, conversation. Second, we need to create time and space for balanced contemplation that cuts across ideological groupings – rather than having conferences and events attended by one selected segment – and ensuring that alternative perspectives are welcomed. Third, we need to work on developing empathic dialogue to engage productively about empirical research and normative reform, including focusing upon aspects that are valuable and those that require development. The objective should be to organize conversations about international investment law around data to engage productively, so that reason and intuition can interact to create solutions that are constructive and sustainable for the longer term.
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Jeffrey Lubbers
Completely rewritten, this handbook reflects important developments in federal agency adjudication. Government and private counsel engaged in administrative adjudication will benefit from its expanded treatment of law and practice, and its new, in-depth discussion of organizational and management issues will prove invaluable for government policymakers, judges, researchers, advocates, and others.
Jeffrey Lubbers contributed three chapters to the ABA Guide to Federal Adjudication (3d ed. 2023):
Chapter 6 (Congressional Delegation of Adjudicative Authority),
Chapter 9 (Selection, Supervision and Oversight of Adjudicators), and
Chapter 15 (Constitutional and Statutory Foundations).
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Fernanda Giorgia Nicola Dr. and Jeffrey Miller
This chapter grapples with the absence of the concept of racial capitalism in European constitutionalism in spite of centuries of racial subordination in European colonies abroad and discrimination towards ethnic minorities at home. The rise of the European Economic Community in the late 1950s is often portrayed by scholars as a means to correct the legacies of racial and gender subordination that culminated with the Holocaust and the Second World War. Purportedly, the European Community seized the opportunity to start anew with a modernist and quasi-federal constitutional project inspired by the United States and its progressive Warren Court. However, by bracketing the dark sides of US federalism and building bridges across the Atlantic to construct European constitutionalism, prominent scholars such as Eric Stein, Mauro Cappelletti, and Joseph H. Weiler dismissed how the jurisprudence of the US Supreme Court over time protected the legal entitlements of slaveowners, businesses, and states at the expense of slaves, workers, women, and children. This selective reception of US constitutionalism, which portrayed law only as a tool of emancipation rather than oppression, has obscured the embeddedness of racial capitalism in the European political economy.
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Roger Fairfax
Roger Fairfax analyzes LL Cool J’s 1990 song, “Illegal Search,” as a precursor to later hip-hop critiques of policing. This song represented LL Cool J’s awakening to social consciousness in the 1990s. “Illegal Search” represented helped advance a narrative about policing that remains prominent in hip-hop to this day. “Illegal Search” might have been overlooked completely since the only track to follow is “Power of God,” a low-energy, spiritual offering that, while delivering a positive message, is perhaps the least familiar of the fourteen cuts on the album.“Illegal Search” surveys a number of discrete topics, including racial profiling, the manufacture and planting of evidence, police brutality, incarceration, and even seems to reference a specific case of police misconduct in New Jersey. The lyrics display the angst experienced by many African Americans who are subjected to law enforcement scrutiny simply because of their skin color. “Illegal Search,” with its literal, unobscured narrative, gives descriptive voice to the phenomenon we would later term “Driving While Black.”
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Chiara Giorgetti and Mark Pollack
This introduction reviews scholarship on international legal fragmentation, lays out a framework for understanding international judicial cross-fertilization, and previews the contributions and their findings. Existing scholarship on international legal fragmentation, we argue, has moved through three phases over the past several decades. In the first, legal scholars and practitioners reacted with alarm to the judicial proliferation of the post–Cold War years, which they feared would create overlapping jurisdiction and conflicting interpretations of law. Following this period, the new century saw the pendulum swing toward a second, more optimistic picture in which international courts addressed fragmentation through “management” techniques, producing unity in international law. We can detect the opening salvos of a third wave, as skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization. In this volume, we build on the existing literature by theorizing the actors of cross-fertilization and their motives, and by distinguishing between procedural and substantive cross-fertilization.
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Rebecca Hamilton
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Jeffrey Lubbers
In the United States, while the practice of medicine itself is regulated by the individual states, federal administrative agencies play a crucial role in the promulgation and implementation of national health policy, and the provision of health insurance and disability benefits. This chapter discusses the activities of these agencies and the limitations on them as imposed by administrative law. It provides a general overview of federal administrative law, and then a more detailed look at how these principles are applied (or differ) in the key federal health-related agencies, primarily the Department of Health and Human Services and its many important agencies such as the Food and Drug Administration, the Centers for Medicare and Medicaid Services, the Centers for Disease Control and Prevention, and the National Institutes of Health. It also covers the activities of the Social Security Administration and benefit programs in the Departments of Labor and Veterans Affairs.
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Maya Manian
This chapter of FEMINIST JUDGMENTS: REWRITTEN HEALTH LAW OPINIONS (Seema Mohapatra and Lindsay F. Wiley, eds., forthcoming 2021) provides commentary on Leslie Griffin’s rewritten majority opinion in Means v. United States Conference of Catholic Bishops, 836 F.3d 643 (6th Cir. 2016). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for health law. Tamesha Means was eighteen weeks pregnant when she rushed to her local hospital suffering from a miscarriage. Similar to many women living outside of major metropolitan areas, the only hospital within a reasonable distance of Means’ residence was a Catholic-owned hospital which Means alleged mistreated her. Despite evidence that Means endured mistreatment as a result of Catholic entities’ health care directives, federal courts dismissed Means’ lawsuit against the religious entities. Leslie Griffin’s rewritten opinion brings a feminist perspective to bear on the broader problem of increasingly widespread assertions that objections based on “conscience” entitle health care providers to depart from appropriate standards of medical care and impose harms on vulnerable third parties. The feminist revision of Means not only exposes the inequitable impact on patient well-being of sectarian institutions’ medical care restrictions, but also insists that the law more broadly must safeguard the health of patients. While religious freedom remains an important principle, Griffin’s feminist judgment underscores that in any health care setting, freedom of conscience does not justify exemptions from legal and ethical standards of medical care that would inflict harm on unwitting patients.
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Jamie Abrams
Feminism has had a broad influence in legal education. Feminist critiques have challenged the substance of legal rules, the methods of law teaching, and the culture of legal education. Following decades of advocacy, feminist pedagogical reforms have generated new fields, new courses, new laws, new leaders, and new feminist spaces. There are many reasons to celebrate the accomplishments of our feminist pioneers and champions. Yet, COVID-19 has also exposed all the vulnerabilities and tenuousness of feminist gains too. Critical work remains for faculty, administrators, and students to carry the work forward with a vigilant purpose and determination.
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Padideh Ala'i
with Katayoon Beshkardana
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Jonathan Baker
in David S. Evans, Allan Fels & Catherine Tucker, eds., The Evolution of Antitrust in the Digital Era: Essays on Competition Policy, 2021, vol. 2, pp. 11-19
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Susan Carle
This is the third volume in a trilogy on gender issues in legal occupations. An overview of Women in the World ’ s Legal Professions (Schultz and Shaw 2003) was followed by Gender and Judging (Schultz and Shaw 2013), finally to be completed by this study on women teachers of law. All three books have been published by Hart Publishing, to whom we are grateful for their unceasing support over so many years. Our thanks also go to the International Institute for the Sociology of Law for facilitating the inclusion of all three volumes in their O ñ ati Socio-Legal Series.
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Susan D. Carle
Article Abstract
The article explores the uses in anti-discrimination law of social neuroscience—a broad interdisciplinary field that draws on the insights of brain science, medicine, epidemiology, social psychology, behavioral economics, moral cognitive neuroscience and many other experimentally based disciplines. It discusses the promising uses of social neuroscience findings from all these subfields on such matters as the irrational biases of “fast” thinking processes in general, and implicit biases against “out” groups more specifically, as well as group conformity, the black sheep effect, and more. The article traces a few of the ways these insights can help inform anti-discrimination law in both particular cases and in reform of law-related policies, rules, structures and systems more generally. Social neuroscience, for example, exposes the typical fallacy of demanding proof of intentional discrimination in most cases, and exposes the problems in using other doctrines that make discrimination and retaliation claims unduly hard to prove. Social neuroscience findings about the social pain of exclusion and the ongoing physical and social harm of discrimination further show that the damages caused by illegal discrimination are far greater than the restitution courts typically impose on respondents. Finally, social neuroscience and other science-related disciplines, in consilience with political theory, philosophy, and legal history and theory, support the recognition of a broader human right to “act differently,” subject to the rights of others not to encounter harm.
Finally, this article examines the potential ethical pitfalls of using social neuroscience in the numerous ways proposed above. It concludes that neuroscience should not be used in individual cases to establish unconscious but “intentional” discrimination by particular individuals, and that social reform crusaders should be reflective about the potential irrationalities of their own biases and moral tastes as they go about attempting to transform law by drawing on their interpretations of brain-based science. Such reform campaigns will necessarily require invoking political process that depend on resorting to moral emotions, values, rhetoric, and potentially overly simplistic or reductionist glosses on more complex and qualified ideas. Thus even social crusaders who aim to make the world a better place must retain skepticism and an ethic of restraint in insisting on their viewpoints as to the arrangements that could leader to a more moral and less discriminatory world.
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Susan D. Carle
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Janie A. Chuang
Since the international community adopted the UN Trafficking Protocol nearly two decades ago, our approach to the problem of human trafficking has shifted significantly. With too few traffickers prosecuted and too few victims protected, there is growing recognition of the need for more robust efforts to prevent trafficking in the first instance. Trafficking is not simply the product of deviant, criminal behavior that once rooted out, can be easily eliminated. Also to blame are deeply embedded societal structures that facilitate, and even reward, exploitation – in particular, weak labor and migration frameworks that perpetuate precarity for migrant workers in their search for economic opportunities. Because worker exploitation and trafficking differ in degree, not in kind, addressing worker exploitation more broadly can help prevent the abuses from escalating into trafficking. This Chapter explores how emerging global governance over labor migration – with the recently-adopted UN Global Compact for Safe, Orderly, and Regular Migration and the now-elevated role of the International Organization for Migration – could play a role in preventing human trafficking.
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