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Susan Franck
Used for hundreds of years and adapted to a variety of contexts, arbitration is a form of adjudicative dispute settlement where parties consent to selecting third-party neutrals that resolve a specific dispute by applying the applicable law to the facts. Part of arbitration’s success involves its flexibility in adapting procedures and selecting applicable law to meet parties’ unique needs, including having some control over the appointment of an arbitrator who may have unique substantive expertise. Parties may agree to arbitration hoping to avoid the time-consuming, expensive, and complex process of litigation by streamlining or tailoring dispute mechanics. Yet, it is not empirically verifiable that arbitration always saves time and costs, as assessing relative savings requires comparison to a national court and there are over 190 national judiciaries to which arbitration could be compared, as well as nonadjudicative forms of dispute resolution like direct negotiation and mediation. As parties inevitably negotiate in the “shadow of the law,” arbitration aids the assessment of conflict management options; and, particularly internationally, arbitration remains a powerful tool that incentivizes voluntary compliance with awards and streamlines enforcement.
Despite the availability of many types of arbitration with different policy considerations, the parties’ consent to it and their agreement to arbitrate (including the applicable law) is the backbone of this form of dispute settlement. Arbitration agreements require parties to make core choices, such as deciding on the scope of agreements submitted to arbitration, the legal place of arbitration, and applicable rules. Such an agreement then provides the framework for fundamental elements of the proceedings, namely, the basis of the tribunal’s jurisdiction and power over the dispute, the standards for appointing arbitrators, the structure and rules of the proceedings, and the content and form of derivative awards. Having a valid arbitration agreement (and an arbitration proceeding conducted in accordance with those legal obligations) also influences whether courts at the place of arbitration will set the award aside and whether courts at a place of enforcement will recognize and enforce an arbitration award. In the modern era, arbitration will continue evolving to address concerns about local policy considerations (particularly in national arbitration), confidentiality and ethics, technology and cybersecurity, diversity and inclusion, and to ensure arbitration is an ongoing value proposition.
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Claudio Grossman
La pandemia actual ha cobrado un tremendo precio a la humanidad. A la fecha, más de un millón de personas han fallecido, varios millones han sido infectadas y no se vislumbra un final para las trágicas consecuencias que la COVID-19 ha infligido a las personas. La pandemia ha afectado a todas las naciones, debido a las interconexiones en numerosos campos, incluido el comercio, las inversiones y el turismo, que, como resultado de la globalización, han multiplicado los contactos entre las personas. No obstante, la pandemia ha demostrado también que las poblaciones más vulnerables son las que más sufren. Los países con sistemas de salud inexistentes o subdesarrollados tienen una capacidad limitada para adoptar medidas preventivas y/o responder con éxito a la pandemia. En general, las poblaciones vulnerables se ven más afectadas, debido a la pobreza, la falta de conocimientos sobre salud, el acceso a la tecnología o prácticas discriminatorias profundamente arraigadas. La pandemia también ha demostrado que las posibilidades internacionales para afrontar con éxito este tremendo desafío son enormemente insuficientes.
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Claudio Grossman
Book Description: Advocating Social Change through International Law, edited by Professors Daniel Bradlow and David Hunter, explores the use of hard and soft international law in advocating for social change. Using case studies rooted in inter aliahuman rights, international crimes, environmental protection, public heath, and financial regulation, the book focuses on both state and non-state actors’ strategic choices regarding the use of hard and soft international law in advocating for social change. Looking through the social change lens provides new insights into the interplay between soft and hard international law, the perceived costs and benefits associated with hard and soft international law in different contexts, and the factors affecting the effectiveness of hard and soft approaches to international law.
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Claudio Grossman
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Rebecca Hamilton
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Fernanda Nicola
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Fernanda Giorgia Nicola Dr.
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Fernanda Giorgia Nicola Dr.
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Susana Sacouto
The International Criminal Court (ICC) is a court of global jurisdiction. Without unlimited resources, the Court cannot be present in every place where crimes within its jurisdiction may be committed. The Office of the Prosecutor (OTP) must, therefore, regularly rely on organizations on the ground that have access to witnesses, contacts, and other information that may be crucial to its investigations and/or prosecutions. The OTP's reliance on these organizations is particularly pronounced in the context of situations or cases involving sexual and gender based crimes (SGBC), as these crimes are often under-reported in situations of conflict or mass violence, making evidence collection of such crimes particularly challenging for the Court.
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Brenda V. Smith, Margo Schlanger, Sheila Bedi, David M. Shapiro, and Lynn S. Branham
In the age of American mass incarceration, a complex legal regime governs prison conditions and presents a host of controversial questions at the intersection of constitutional liberty, statutory interpretation, administrative regulation, and public policy. This is a completely overhauled, re-titled, and much-expanded version of the leading casebook about incarceration. It addresses both pretrial and post-conviction incarceration, presenting Supreme Court and leading lower court case law, statutes, litigation materials, professional standards, academic commentary, and prisoner writing. Topics include conditions of confinement, civil liberties, particular prisoner populations and relevant legal issues (race and national origin discrimination, the particular issues/law governing treatment of incarcerated women, LGBTQ people, and people with disabilities). Litigated remedies (injunctive litigation, damages, the Prison Litigation Reform Act, and criminal prosecution of prison staff), are also covered in detail, as is non-litigation oversight. The casebook is supplemented by an open-access website that offers additional resources and sources for further reading.
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Jonas Anderson
Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Patent prosecutors devote substantial effort to crafting patent claims so as to maximize the scope of their right without “reading on” prior art (and thereby defeating novelty). Businesses seeking to enter a technology marketplace must be careful to avoid encroaching patent claims. Thus, when patentees enforce their rights, the interpretation of claim boundaries guides both validity and infringement analysis.
Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court,” district judges began the practice of construing patent claims in advance of trial following so-called “Markman” hearings. These constructions became subject to appellate review after the trial or summary judgment ruling.
The Markman decision thus opened a valuable window into an important facet of patent law and the litigation process. This has led to a wide range of empirical studies examining: (1) reversal rates; (2) the sources and methodologies that judges employ in construing patent claims; and (3) appellate behavior generally. This chapter examines the hypotheses underlying these studies, the data used, the empirical methods deployed, and the principal results. It also suggests directions for further research.
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Jonathan Baker and Andrew Gavil
This essay, written for a volume in honor of Judge Douglas H. Ginsburg, explores the evolution of the rule of reason and its development into a common structured, burden shifting approach guiding judicial decisions under Sections 1 and 2 of the Sherman Act and under Section 7 of the Clayton Act. It highlights the influential role that Judge Ginsburg and the Court of Appeals for the D.C. Circuit, on which he served, played in that evolution.
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Michael W. Carroll
My goal in this chapter is to advance the argument that access denied to resources in digital form is a more serious, and more solvable, problem than one might glean from the literature. Digital networks make access possible to a degree that would have been unimaginable in the analog era. What was once a mix of technological and economic constraints on access is now reduced to legal, rather than technological, constraints. The library community should more explicitly commit itself to the goal of ubiquitous access to digital content.
The role of the library in public life should be to minimize or eliminate these legal barriers to access and use through a mixture of creative and fair licensing arrangements, and policy advocacy on behalf of those currently denied access. To begin to solve this problem, libraries should develop a more robust network consciousness, by which I mean they should realign institutional priorities and resources to explicitly position individual libraries and consortia as network nodes through which patrons can access networked resources or as a site of publication of networked resources. This argument recognizes that a network consciousness should not be the sum total of a library’s attentional focus. For the library has also been, and remains, an intensely local institution whose physicality through its architecture, geography, and relation to its analog resources are as important to library patrons as ever. I am convinced that libraries are capable of meeting the challenges of balancing their local and global roles if institutional leaders make this a priority.
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Michael W. Carroll
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Jennifer C. Daskal
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Christine Farley
This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.
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Andrew G. Ferguson
Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.
This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.
This chapter then examines predictive policing technology as a choice about policing theory and how the purchase of a particular predictive tool becomes – intentionally or unintentionally – a statement about police role. Interestingly, these strategic choices map on to existing policing theories. Three of the traditional policing philosophies – hot spot policing , problem-oriented policing, and community-based policing have loose parallels with new place-based predictive policing technologies like PredPol, Risk Terrain Modeling (RTM), and HunchLab. This chapter discusses these leading predictive policing technologies as illustrative examples of how police can choose between prioritizing additional police presence, targeting environmental vulnerabilities, and/or establishing a community problem-solving approach as a different means of achieving crime reduction. -
Rebecca Hamilton and Molly K. Land
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Benjamin Leff
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Ezra Rosser
This is the introduction to Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019). The table of contents for the book, with links to the other chapters, can be found below: Introduction (this document) Ezra Rosser Part I: Welfare and Federalism Ch. 1 Federalism, Entitlement, and Punishment across the US Social Welfare State Wendy Bach Ch. 2 Laboratories of Suffering: Toward Democratic Welfare Governance Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed Ch. 3 The Difference in Being Poor in Red States versus Blue States Michele Gilman Part II: States, Federalism, and Antipoverty Efforts Ch. 4 States’ Rights and State Wrongs: Supplemental Nutritional Assistance Program Work Requirements in Rural America Rebecca H. Williams and Lisa R. Pruitt Ch. 5 State and Local Tax Takeaways Francine J. Lipman Ch. 6 Early Childhood Development and the Replication of Poverty Clare Huntington Ch. 7 States Diverting Funds from the Poor Daniel Hatcher Ch. 8 States’ Evolving Role in the Supplemental Nutritional Assistance Program David A. Super Part III: Advocacy Ch. 9 Federalism in Health Care Reform Nicole Huberfeld Ch. 10 Poverty Lawyering in the States Andrew Hammond Ch. 11 Conclusion: A Way Forward Peter Edelman
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Ezra Rosser
Native nation economies have long been dominated by public sector activities - government programs and services and tribal government-owned businesses - which do not generate the same long-term benefits for local communities that the private sector does. In this work, editors Robert Miller, Miriam Jorgensen, Daniel Stewart, and a roster of expert authors address the underdevelopment of the private sector on American Indian reservations, with the goal of sustaining and growing Native nation communities, so that Indian Country can thrive on its own terms. Chapter authors provide the language and arguments to make the case to tribal politicians, Native communities, and allies about the importance of private sector development and entrepreneurship in Indigenous economies. This book identifies and addresses key barriers to expanding the sector, provides policy guidance, and describes several successful business models - thus offering students, practitioners, and policymakers the information they need to make change.
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Susana SáCouto and Chanté Lasco
Introduction:
An estimated 20,000 girls and women and an unknown number of men and boys were victims of sexual violence during the war in the former Yugoslavia. This sexual violence took many forms and occurred in many different contexts: in victims ‘own homes when soldiers came to the door; in perpetrators’ homes, with victims sometimes being held for months as sexual slaves; and in detention centres and police stations in the context of interrogations and imprisonment. Since 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) has prosecuted some of these violations, along with other serious war crimes, crimes against humanity and acts of genocide. Yet only a fraction of these crimes – including the widespread sexual and gender-based violence (SGV) that occurred during the war – have been addressed by the ICTY. In light of the tribunal's mandate to complete its work within a limited timeframe, since 2003, the ICTY has focused on the prosecution ‘of the most senior leaders suspected of being most responsible for crimes within the ICTY's jurisdiction and transferr[ed] cases involving those who may not bear this level of responsibility to competent national jurisdictions‘, meaning the vast majority of serious crimes that occurred during the war remain to be addressed by domestic criminal justice systems in the former Yugoslavia, including in Bosnia and Herzegovina (BiH). Although an internationally supported special War Crimes Section was established over a decade ago within the national judicial system of the BiH to deal with such cases, a significant backlog remains, in particular with respect to cases involving SGV. This chapter explores the issues faced by justice system actors trying these cases. While some of the challenges relate to evidentiary difficulties, others stem from the withdrawal of international support of the War Crimes Section, rendering accountability efforts vulnerable to attack by domestic actors opposed to such efforts.
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Padideh Ala'i and David Gantz
This is Chapter 14 of the book entitled "Research Handbook on Intellectual Property and Climate Change", edited by Joshua D. Sarnoff and published in Spring 2016 by EE Elgar. The co-authors are Professors of Law specializing in International Trade Law.
The chapter aims to identify some of the major sources of tension between climate change-related measures proposed or implemented on the national level and the trading rules as they have been applied by the WTO dispute settlement bodies over the past nearly 20 years. The chapter first describes three categories of national approaches to climate change, and highlights the potential competitiveness concerns raised by each. It then discusses selected WTO provisions that are most likely to be used to evaluate WTO treaty-compliance of the three categories of national measures. These include an analysis of Articles of the General Agreement on Tariffs and Trade 1994 (GATT 1994), other Annex 1A Agreements addressing trade in goods, and a brief discussion of the General Agreement on Trade in Services (GATS). Finally, the chapter focuses on WTO and US trade remedy laws, as countries may utilize these provisions and mechanisms to address competitiveness issues that will inevitably come about, such as from subsidizing green technologies. The chapter ultimately discusses the importance of reaching an international agreement on reducing tariffs on international trade in environmentally friendly goods, and of reducing greenhouse emissions so that national actions are less likely to be unilateral measures.
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