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Jeffrey Lubbers
This book offers a comparative introduction to the most important aspects of administrative law in various EU Member States (France, Germany, the Netherlands, the United Kingdom), at the level of the EU and in the United States of America. It aspires to contribute to the ætransboundaryÆ understanding of different regimes related to actions and decisions of the administration.
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Fernanda Giorgia Nicola Dr.
During the twentieth century, the center of production of legal ideas shifted from France to Germany and then to the United States. Here, the dominant legal reasoning framed the law as a phenomenon of social organization that was not confined to a specific legal system. There were both external and internal factors influencing U.S. legal thought which explain this change of wind from continental Europe to the United States. Externally, after World War II the United States garnered influence by positioning itself for political and economic global leadership. Internally, the critique of social purpose functionalism articulated by the legal realists provided new problem-solving approaches integrated in a reconstructive and pragmatic understanding of law called positive-sociology functionalism. Finally, legal diffusion occurred through public law disciplines based on U.S. constitutional law theories of rights, neo-formalism, and balancing conflicting policy analysis.
The diffusion of legal education takes place through law schools, non-governmental organizations (NGOs), international financial institutions (IFIs) and other avenues, and with different political agendas, often in conjunction, for instance, with law and development reforms or more broadly due to the prestige of U.S. legal training and academia. U.S. legal thought reached Latin America, Asia, Europe and Africa through the transplant of legal institutions. The diffusion of U.S. legal styles often changed the process rather than the content of legal education, which resulted in local curriculum reforms that reflected the more pragmatic U.S. education style. Some scholars have harshly criticized the export of U.S. legal thought for its distinct adversarial judicial process that decentralizes power and privatizes disputes while creating advantages for the powerful and wealthy, expanding inequality and social stratification. Others have instead claimed that the diffusion of teaching methods geared to the adoption of U.S.-based clinical legal education aims at informing, adapting, and promoting social justice in a way that addresses the contextual realities of the importing country.
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Fernanda Giorgia Nicola Dr. and Daniela Caruso
The propensity to engage in a sustained critique of EU law marbles several contributions in this Volume and certainly animates this chapter. This generally critical stance takes the present stage of legal Europeanization as a fact and aims to make full use of the possibilities for political and social justice it can currently support, but at the same time it decries its many structural and dynamic drawbacks. In doing so, this critical project borrows liberally from CLS without fear of misreading or misappropriation. Irreverence in this context is a feature, not a bug. The CLS toolkit is clearly useful to European scholars, but there is no pretense here of fidelity to the original CLS conception. Transformations can be productive on EU soil, and there is no reason not to utilize, albeit in a different epistemic environment, the motivational force of lessons drawn from far-away places or times.
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Diane Orentlicher
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Lindsay Wiley
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Kenneth Anderson
An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of humans and machines in the context of lethal weapons of war. Although the Chapter concludes that a categorical ban on AWS is unjustified morally and legally — favoring the law of armed conflict’s existing case-by-case legal evaluation — it offers an exposition of arguments on each side of the AWS issue.
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Jennifer C. Daskal
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Angela J. Davis
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Robert Dinerstein
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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
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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.
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Jane Aiken, Ann Shalleck, Elizabeth Mertz, Stewart Macaulay, and Thomas Mitchell
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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.
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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.
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Michael W. Carroll
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Jennifer C. Daskal
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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.
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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).
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