-
Jennifer C. Daskal
-
Angela J. Davis
-
Robert Dinerstein
-
Christine Farley
The current divide within the international community over the appropriate level of protection for geographical indications (GIs) is epitomized by the conflict between the European Union (EU) and the United States (US) in the context of the Transatlantic Trade and Investment Partnership Agreement (TTIP). While GIs receive extensive protections that go beyond international treaty standards within the EU, the US (along with other "New World" countries) has repeatedly opposed strengthening the existing international GI protections.
The US's resistance to strong protection of GIs has become a popularized account. The history of the US's interest in GI protection, however, is more complex. Since 1929, the US has been bound by a little-known international convention that ensures strong protection of GIs: the General Inter-American Convention for Trade Mark and Commercial Protection (Inter-American Convention). The Inter-American Convention is a regional agreement that was instituted by the US with several countries in the Americas. At the time in which the Convention went into force, the provisions on GIs in the Inter-American Convention were the most developed and strongest protections available in any international agreement. And remarkably, these provisions were developed by the US.
This history of the protection of GIs in the US remains enigmatic. Few scholars and lawyers are aware of the Inter-American Convention, let alone its chapter on GI protection. Why was such a chapter included, and why were similar provisions not included in the 1946 Trademark Act or subsequent international agreements? The treatment of GIs both in this convention and in the US Trademark Act is largely the result of the work of Edward Rogers and Stephen Ladas, two of the leading practitioners of US trademark law in the twentieth century. These two men had as sophisticated an understanding of US common law and international obligations as anyone at that time. The resulting texts of the Inter-American Convention and the Trademark Act - both of which they were instrumental in drafting – were no accident.
As the Inter-American Convention is still in force, it indicates the minimum standards for the protection of GIs in the US, at least with respect to beneficiaries of the Convention. It is also arguably a self-executing treaty in the US. Understanding this agreement therefore offers more than historical insight; it may offer an alternate approach to the protection of GIs. The Inter-American
Convention also offers lessons for developing GI protection standards in other regions, such as Asia. One reason for the Convention's inconspicuousness is that it was primarily intended to be used by US business in Latin America; it was not designed for the equal benefit of all member states. In addition, it was negotiated without the benefit of any experience protecting GIs on the part of the Latin American trading partners. Perhaps, it is not surprising then that the largely theoretical origins of the protections have resulted in the absence of a robust practice of applying them.
While the focus of this book is to consider GIs in Asia, this chapter will examine a particular historical moment in the legal protection of GIs that will expose a different view of the American approach to the protection of GIs. The reason to introduce this history is to offer policy makers in this region alternative approaches to GI protection beyond the current models advanced by the EU and the US. The short story is that the EU favors strengthening the current protections of GIs - it is said to be one of their greatest assets – while the US disfavors the development of additional protection for Gls beyond those offered by trademark law. The Inter-American Convention certainly complicates this story and provides a possible alternate approach. -
Jeffrey Lubbers
Jeffrey S. Lubbers, Is the U.S. Supreme Court Becoming Hostile to the Administrative State?, prepared for the Administrative Law Discussion Forum held at the University of Luxembourg, July 1-2, 2015; published (with other papers) by Carolina Academic Press in Comparative Perspectives on Administrative Procedure Global Papers Series Volume III pp. 31-50 (Russell W. Weaver, et. al. eds 2017). Draft available at http://ssrn.com/abstract=2645036
-
Fernanda Giorgia Nicola Dr.
The impact of European Union (EU) law and policy on social groups has been examined in important scholarly work on European Law. Mainstream European legal scholarship, however, makes seldom use of a ‘law and society’ methodology, committed to an understanding of law, its internal logic and its practice yet influenced by external political and social forces. By means of two different theoretical perspectives, American legal realism and Amartya Sen’s idea of comparative justice, this chapter focuses on the impact of European decision-making on social groups and local actors embracing different conceptions of justice from below. Lawyers, judges and policy-makers in the EU appear more concerned with institutional demands of justice rather its social realization as revealed by local actors with conflicting visions of justice. The chapter uses distributive justice as a means to reconcile such different visions of the good life.
-
Jane Aiken, Ann Shalleck, Elizabeth Mertz, Stewart Macaulay, and Thomas Mitchell
-
Susan Bennett
Highlighting the displacement and loss of community created by urban renewal in the District of Columbia neighborhood of Barry Farm, this chapter summarizes the work of the National Commission on Urban Problems and the consequences of the Uniform Relocation Assistance Act (42 USC 4601), the HOPE VI plan, the Gautreaux program, and the Moving to Opportunity program. As a means of responding to the needs of residents facing redevelopment-generated upheaval, the author proposes the use of social impact statements (SIS), the urban renewal equivalent of an environmental impact statement. These statements would evaluate how all residents measure their investment in their community, capturing values that transcend the supposed fair market value of a home. The first of those values is substantive, an articulation of the tangible and intangible elements of losing “place attachment” (the emotional bonds built over time with physical and social features of a locale) and “place dependence” (a more concrete assessment of how a place fulfills a range of needs). The second of those values involves process: residents would participate in the articulation of loss, but would also receive standing to petition for suspension of the development process until they are relocated in a way that assures that their “comparable replacement dwellings” truly compensate for the physical, social, and psychological dislocation which the social impact statement illuminates. These measurements have great potential to provide both a practical tool to broaden meaningful involvement in redevelopment and a new measure for just compensation in eminent domain. The author argues that the construction and adoption of social impact statements could be incorporated into existing requirements for land use developments in general, and public housing redevelopment in particular, and would inject rigor into the assumptions upon which dislocations of poor people are based.
-
Michael W. Carroll
This chapter focuses on the ways in which intellectual property law can act as a barrier to data sharing. Intellectual property laws supply exclusive rights that can enable a researcher, employer or funder to ‘own’ data; they can then bring legal claims against persons who access or reuse data without permission. Some of these rights attach automatically to data, data sets, or databases, and thus must be managed properly to enable robust data sharing in climate science. Other rights are created by contract, and the policies around such privately created rights must be understood and analyzed. This chapter briefly describes the variety of climate data needed by researchers and the role of intellectual property and related rights in governing access to and use of such data.
-
Michael W. Carroll
-
Jennifer C. Daskal
-
Christine Farley
This chapter addresses the proliferation of green marks (both trademarks and certification marks) and the role that they may play in addressing climate change. It emphasizes the important role played by consumers and their buying power, so long as consumers possess good information about environmental standards and companies adhere to those standards, in forcing companies to meet environmental standards. But it also addresses the problem of “green fatigue” and “greenwashing” as consumers become overwhelmed with insufficiently regulated information regarding environmental compliance. The chapter also discusses barriers to registration of eco-friendly marks and recommendations for improving the informational value of green certification marks.
-
Christine Farley
In this chapter, we outline the provisions introduced by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with respect to trademarks. Similar to the provisions related to patents, copyright, and other rights, section II of Part II of TRIPS (Articles 15–21) mandates minimal trademark standards – such as requirements for protection, rights granted, duration of protection, and requirements for trademark transactions – for the Members of the World Trade Organization (WTO). Following the general principles adopted as part of the TRIPS’ framework, section II does not require that WTO Members to adopt specific mechanisms to implement the mandated TRIPS' standards on trademarks into their national laws. Instead, WTO Members remain free to implement the mandated trademark standards based on their existing and/or preferred national laws, subject to the general principles of: (a) national treatment that is provided under Article 3 of TRIPS (specifically dictating equal treatment for, or non-discrimination between, foreign and domestic individuals and companies in their respective territories); and (b) the most-favored-nation treatment under Article 4 of TRIPS (under which any “advantage, favor, privilege, or immunity” granted to the nationals of a WTO Member will be extended to the nationals of other WTO Members). Following the general rule in Article 64 of TRIPS, WTO Members are also empowered to challenge other Members under the WTO Dispute Settlements Understanding (DSU) should they believe that the national laws of the challenged Member violates or does not fully comply with the TRIPS mandated trademark standards.5 Article 1 of TRIPS additionally imposes the compliance of WTO Members with certain provisions on trademarks of the Paris Convention for the Protection of Intellectual Property (Paris Convention).
-
Jeffrey Lubbers
-
Maya Manian
This chapter of FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathryn Stanchi, eds. 2016) provides commentary on Lucinda Finley’s rewritten majority opinion in Geduldig v. Aiello, 417 U.S. 484 (1974). 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 what the law of sex equality could have been. In Geduldig, the United States Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women’s access to substantive equality and reproductive liberty. Lucinda Finley’s feminist judgment responds to the faulty formalist logic of the original opinion in several important, distinctively feminist ways. Finley’s feminist judgment reaches beyond the formal appearance of justice and seeks substantive fairness for women in the public sphere. The landscape of sex equality law would look dramatically different if the Court had adopted Lucinda Finley’s feminist judgment — a tantalizing possibility since the intellectual foundations for this feminist judgment existed at the time.
-
Nancy D. Polikoff
Summary
INTRODUCTION
Joan Stanley died of cancer in 1968, leaving behind her unmarried partner of eighteen years, Peter Stanley, and their two young children, Kimberly, one and a half years old, and Peter Jr., two and a half years old. In Illinois, a legal “parent” included both married and unmarried mothers but only married fathers. Therefore, the State of Illinois instituted a court proceeding to make the children wards of the state because they lacked parents.
The hearing that followed was brief. The evidence showed that Peter and Joan Stanley were not married, that Peter Stanley was the father of the children and had lived with and supported them, and that at some point after Joan Stanley's death, Peter Stanley had arranged for the toddlers to live with his friends, the Nesses. The state's attorney did not allege that Peter Stanley had neglected the children. The judge concluded that the children lacked parents as a matter of law, made them wards of the state, and appointed the Nesses as guardians.
Stanley appealed to the Illinois Supreme Court, where he again lost. He then obtained review in the U.S. Supreme Court, where he argued that declaring his children to be wards of the state without a showing of his parental unfitness violated his right to due process under the Fourteenth Amendment. He prevailed. The Court determined that Stanley had a substantial interest in “the children he had sired and raised.” The Court had never before made such a statement about a nonmarital father. It ruled that as a matter of due process, all parents, including Peter Stanley, were constitutionally entitled to a hearing on fitness before the state could assume custody of their children. The Court rejected the state's argument that unmarried fathers were so seldom fit that it was administratively inefficient to provide them all hearings. It reasoned that “the Constitution recognizes higher values than speed and efficiency.”
LARGER CONTEXT
For hundreds of years, a set of laws had punished sex outside of marriage, imposed catastrophic consequences for bearing children outside of marriage, assumed and fostered “separate spheres” for men and women, and imposed gendered requirements within marriage. By the end of the 1970s, those laws had changed, with the U.S. Supreme Court playing a major role in the legal transformation.
-
Macarena Saez
Summary
In 1980, after the divorce of Randy and Melody DeShaney, a court granted Randy DeShaney custody of his one-year-old son, Joshua.1 In 1982, Winnebago County Department of Social Services (DSS) received the first report that Joshua may have been subject to abuse by Randy. DSS, however, took no action until 1983, when hospital authorities notified DSS that Joshua had been admitted with injuries consistent with child abuse. DSS ordered Joshua’s temporary removal from the parental home and formed an ad hoc team to review Joshua’s situation. The team decided that there was no conclusive evidence of abuse and returned Joshua to Randy, issuing several recommendations agreed to by Randy, including that he obtain counseling services, enroll Joshua in a preschool program, and that his girlfriend move out of the home (on suspicion that she may be abusing Joshua).
-
Brenda Smith, Maria L. Ontiveros, Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford
What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? Feminist Judgments brings together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant US Supreme Court cases on gender from the 1800s to the present day. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions reveal that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice. Feminist Judgments opens a path for a long overdue discussion of the real impact of judicial diversity on the law as well as the influence of perspective on judging.
- Contains contributions from more than 50 feminist scholars and lawyers, so readers will learn about feminist reasoning from experienced writers and thinkers
- People interested in the Supreme Court, politics, feminism and women's studies will gain from varied and informed perspectives through a feminist lens
Printing is not supported at the primary Gallery Thumbnail page. Please first navigate to a specific Image before printing.
