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Christine Haight Farley
Law’s relations to art--to its creation, its production, and dissemination, its restriction as well as to commercial and contractual agreements about art works—are as multiform and complex as the category of art itself. Acknowledging that there is no discrete body of law that governs art, the author defines art law as “the survey of legal issues raised by art, artist, and the art world” and surveys four central themes: the law as art, the law of art, the law of creativity, and the collision of art and law. Any legal dispute about art usually evokes a plea for special legal rules or approaches, as in the case of Nussenzweig v. diCorcia, 878 N.E.2d 589 (2006). The author points the way toward a study of law in its relationship to creative, cultural practices, particularly to the notion of aesthetic judgment in the domains of art and law. Law typically works to promote and protect, rather than impede, artistic creation on the logic that art is a social good. Questions about art’s role in the creation of culture and the rights of the artist frequently enter the legal domain for their answers. In cases of illegal trade of art treasures, for example, the courts have had to decide whether art constitutes a specific cultural heritage, a broader human achievement, or simply a commodity. Controversies in intellectual property, though they focus on the individual artist, are similarly bound up with creative and economic interests that reveal fundamental inconsistencies between law’s stated mission to encourage the production of art as a common good and law’s so-called creativity threshold, which works to restrict innovation. The author sees in these inconsistencies a collision between art (radically transformative) and law (resistant to change) based on their fundamentally differently cultural functions, and argues that judges apply private ideas about aesthetics instead of openly acknowledging that their judgments are not neutral and nonsubjective.
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Sean Flynn
One of the points of convergence among the many strands of the A2K movement is resistance to the one-size-fits-all ratcheting up of intellectual property provisions around the world. The resistance is grounded in analysis showing that intellectual property rules often create social costs that far outweigh their intended benefits. Much of the A2K movement’s advocacy for limitations of intellectual property rights is located within the field of intellectual property law – promoting the inclusion and use of balancing mechanisms within the laws granting intellectual property rights. But intellectual property rights are also shaped and limited by their interaction with other fields of law, competition law being a prime example. After describing the theoretical and doctrinal underpinnings of a shift of A2K legal advocacy toward the use of competition law, this paper surveys some of the strategic advantages of using competition norms to reframe political debates and shift struggles into new, potentially more hospitable, forums.
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Rebecca Hamilton
The following article is adapted from a speech I gave at the 2007 Global Conference on Genocide Prevention. Firstly, I explore why citizen-generated political will for genocide prevention matters, and why it has historically been lacking in the US context. Secondly, I describe some of the work being done by a new generation of activists who responded to the Darfur crisis.
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Heather Hughes
Is structured finance dead? Many have asked this question after the financial crisis. Or is structured finance “evil” and therefore should it be dead? This book suggests neither nor. Even if structured finance can be misused or applied under inappropriate conditions, it can also be an effective tool for reaching development objectives. The authors in this volume focus on the potential of structured finance in the aftermath of the financial crisis. They explore the conditions under which structured finance is suitable for emerging markets highlighting both its benefits and risks. The book combines professional and scientific perspectives and points towards various useful applications of structured finance in support of small and medium-sized enterprises and microfinance. This also includes activities as diverse as infrastructure development, remittances, rural livelihood, and Shari’ah-compliant Islamic finance.
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Jeffrey S. Lubbers
This comment examines and contrasts government adjudication in the US, Australia, and the UK, and concludes that the Australian system, replicated in the UK serves as a good model, but is unlikely to be used in the US, a larger and more litigious country. The US maintains a system of government adjudication within the bureaucracy itself with judicial review of agency decisions. Australia and the UK, on the other hand, respectively maintain systems whereby national tribunals and specialized courts make decisions subject to judicial review, but only with respect to issues of law. Specialized court tribunals have not emerged in the US as a popular form of adjudication because it was recognized early on that discord would be resolved through federal bureaucratic agencies in the US, particularly in 1932, when the Supreme Court upheld administrative adjudication in Crowell v. Benson, and again with the Administrative Procedure Act of 1946, which provided for administrative proceedings with oversight and adjudication by administrative law judges, and hearings with more flexible rules of evidence and limited cross-examination. These both effectively affirmed administrative adjudication as a manner of formulating regulatory policy, although rulemaking has emerged since as perhaps a more effective technique. A change in the mindset of the bureaucracy would have to occur for cases to be reviewed by independent tribunals outside of federal government agencies. Comparatively, Australia uses tribunals, including the Administrative Appeals Tribunal at the Commonwealth level. Here, an informal agency or ministry proceeding is followed by an internal review, and a decision. Aggrieved parties are able to thereafter petition for a merits review by an administrative tribunal, with the possibility of judicial review, but only on legal questions, in Australia’s courts. The United Kingdom also uses tribunals, which are now a part of their court system. Its tribunals are separated by tiers and divided by subject matter for examination. Like Australia, there is the possibility to appeal to the courts, but only on issues of law.
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Corrine Parver
This essay suggests the creation of specialty health courts to oversee medical malpractice cases, as an alternative to traditional tort reform. Tort reform has primarily focused on reducing litigation by creating impediments for plaintiffs to pursue medical malpractice cases. This has lessened the amount of litigation and reduced the likelihood of medical liability for defendants, but leaves uncompensated plaintiffs and has not served as a deterrence to future injuries. In this respect, specialized health courts, like other specialty courts in the United States, would be established to handle this aspect of litigation, by restoring the connection between medical liability and patient safety. The health courts would have lawyers and health-care practitioners, expedited evidentiary-based proceedings, and fully-compensated economic damages and “scheduled” non-economic damages. Additionally, neutral health experts, established precedent through opinions rendered by these health courts, and a compensation standard of avoidable medical injuries—instead of a negligence standard—would further assist physicians by creating a body of law to help them better assess risks of liability in their provision of medical care, and ultimately foment safer medical practices.
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Diego Rodriguez-Pinzon and Claudia Martin
The goal of this chapter is to describe briefly the functions of the Commission and the Inter-American Court and provide some examples on how these organs have addressed human rights violations in regard to English-speaking States. The States of the Americas currently have a more constructive relationship with the Inter-American Commission on Human Rights (‘Commission’) and the Inter-American Court, which includes a better understanding of the complementary role that such organs play within their national institutions. This atmosphere allows for better dialogue and coordinated action between civil society, States, the Commission and the Inter-American Court in the common goal of safeguarding human rights. Several States have recently adopted national legislation and practices that broadened effective implementation of standards and decisions. The increasing growth and impact of the Inter-American system, however, has simultaneously adversely affected it. This is exemplified by the hesitance of Organization of American States (‘OAS’) members in allocating essential additional funding for the Commission and the Inter-American Court. Additionally, there is a lack of universal ratification by all of the OAS State members of the core treaties of the Inter-American human rights system, in particular, the American Convention on Human Rights (‘IACHR’). Although the Commission monitors human rights compliance in the US, Canada, and a number of Caribbean States under the American Declaration on the Rights and Duties of Man, the effectiveness of that supervision would strengthen if those States became parties to the IACHR. Furthermore, the case law developed by the Inter-American Court demonstrates that access to this tribunal would also benefit the protection of human rights in many of the English-speaking States that have not yet accepted its contentious jurisdiction. Section 2 focuses on the Commission’s powers and functions and contains an overview of the work carried out in monitoring the protection of human rights in the so-called war against terrorism. Section 3 describes the scope of the Inter-American Court’s powers and functions within its contentious jurisdiction, and there is a brief review of a group of emblematic human rights issues which the Inter-American Court addresses, in the context of cases arising from English-speaking Caribbean States.
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Ezra Rosser
This chapter uses the disastrous allotment experience of Indian tribes to question the transformative power of land-titling for the poor as advocated by Hernando de Soto. For Indians, allotment era land-titling resulted in loss of land and hardship, all reflective of non-Indian desires for the land and an unwillingness to acknowledge the rights of Indians to govern themselves. The chapter ends with a brief discussion of the champas of El Salvador and the potential loss in terms of housing for the poor if de Soto’s ideas are implemented without some protection against sales to the wealthy.
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Brenda Smith, Rickie Solinger, Paula C. Johnson, Martha L. Raimon, Tina Reynolds, and Ruby Tapia
Interrupted Life is a gripping collection of writings by and about imprisoned women in the United States, a country that jails a larger percentage of its population than any other nation in the world. This eye-opening work brings together scores of voices from both inside and outside the prison system including incarcerated and previously incarcerated women, their advocates and allies, abolitionists, academics, and other analysts. In vivid, often highly personal essays, poems, stories, reports, and manifestos, they offer an unprecedented view of the realities of women's experiences as they try to sustain relations with children and family on the outside, struggle for healthcare, fight to define and achieve basic rights, deal with irrational sentencing systems, remake life after prison; and more. Together, these powerful writings are an intense and visceral examination of life behind bars for women, and, taken together, they underscore the failures of imagination and policy that have too often underwritten our current prison system.
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William J. Snape III
The role of state governments in protecting not just endangered species but all species can be summed up with one fact: state governments traditionally have been the chief stewards of wildlife within their borders. The states therefore serve a vital role in protecting and conserving their own plants, animals, and habitats. Yet while states historically were given the role of protecting the wildlife within their borders and still retain significant rights and powers, the federal government in many instances has assumed primary responsibility over these national resources under its constitutional authorities. Under the Commerce Clause, inter alia, Congress enacted a wide range of environmental laws, including the Endangered Species Act of 1973 (ESA). Through the ESA, the federal government now exercises its vitally important power to regulate listed species and their associated habitat to achieve conservation and recovery. But the role of the states in endangered species protection was recognized from the outset, as the ESA authorized the Secretary of the Interior to enter into cooperative agreements with states that established “adequate and active” programs of protection. This chapter will explore those programs, enacted statutorily and dubbed “state endangered species acts,” as well as their history, current status, and role. The role of the states, and how to enhance the conservation of threatened and endangered species through greater state involvement, has been and likely will continue to be a topic of national discussion. Although many states have lacked the capacity, both legal and programmatic, to protect nongame species, many states are significantly increasing their focus on nongame management. By increasing their capacity, the states not only can increase their ability to manage threatened and endangered species as an extra safety net but, more important, can fulfill their trust responsibility for all wildlife species in a way that supplements and complements irreplaceable federal protections.
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Stephen I. Vladeck
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Stephen I. Vladeck
The contemporary debate over whether senior Bush Administration officials should be investigated (and potentially prosecuted) for their role in the U.S. government’s torture of individuals detained as “enemy combatants” during the war on terrorism has been curiously indifferent to American history. Even the most modest perusal of that history reveals - perhaps surprisingly - little precedent for holding personally to account those senior government officials most responsible for our gravest civil liberties and human rights abuses. Perhaps the most prominent example comes from one of the darkest civil liberties chapters in American history, the exclusion from the West Coast and internment of over 120,000 Japanese nationals and U.S. citizens of Japanese descent during World War II, and the implicit but unequivocal legal sanction given to these measures by the Supreme Court in a trio of rulings culminating with Korematsu v. United States in December 1944. As this chapter argues, more than just a temporal bookend, both Korematsu’s holding and its history provide illuminating lenses through which to situate these contemporary debates. In particular, the future Justice Jackson warned about in his enigmatic dissent never materialized; and the moral judgments to which he referred have been, at least over time, rather unkind. Korematsu’s reasoning has been soundly discredited (and never again invoked as authoritative); Fred Korematsu’s conviction has been vacated; and the internment camps in general are today almost universally condemned as one of the darkest civil liberties chapters in modern American history - so much so that Congress formally apologized for the camps in 1988. Moreover, and critically, this consensus narrative discrediting internment in general and Korematsu in particular has emerged even though no one was ever held personally liable for the policies that led to the camps. No military or executive branch official was prosecuted or sued for violating the internees’ rights; no government lawyer was disbarred - despite proof that the Justice Department affirmatively misled the courts as to the gravity of the military threat posed by Japan, especially in the second round of briefing before the Supreme Court in Korematsu. In short, we have come to accept the wrongfulness of internment, even without clarity as to the specific legal violation that internment represented or the personal liability of individual government officials for its commission. Somehow, the conclusion seems inescapable today that the rule of law in the United States eventually survived the damage wrought by Korematsu, notwithstanding (or perhaps thanks to) Justice Jackson’s fear that it might not. The question - and the central focus of this chapter - is whether Jackson’s understanding of the relationship between internment and the rule of law, and the subsequent creation of internment’s historical memory, might help us to assess the stakes of today’s debate. Put another way, if, like the majority opinion in Korematsu, the OLC opinions - and not the acts of torture themselves - pose the real danger to the rule of law going forward, are there lessons that we can learn from the creation of internment’s historical narrative (at the expense of Korematsu) that will help us undo whatever damage the OLC opinions have caused, and perhaps without individual criminal liability?
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Jonathan B. Baker
In 1997, the US Federal Trade Commission challenged the proposed merger of two office supply superstores, Staples and Office Depot in US District Court, 970 F.Supp. 1066 (DDC 1997). Both the government and merging parties presented econometric studies examining the merger’s likely impact on consumer pricing, predicting a price increase of 8.6% and 0.9% respectively. This article uses the extensive public record to provide a detailed discussion of the econometric models used in the case and to show how differences between the models led to the discrepancy between the estimates.
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Michael W. Carroll
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Mary D. Fan
This article analyzes the evolution in the doctrine on international law’s crimes of displacement—deportation and forcible transfer—from a focus on sovereign interest to a grounding in the rights of the victim in home, community, and property. The article contrasts the predominant frame of argument and analysis in post-World War II prosecutions for deportation—centered on the interests and duties of authority-holders with present-day doctrine centrally grounding in the criminalization of coerced internal and external displacement in internal and international conflict in the rupture of victims’ rights in home, property, and community. This progressive doctrinal evolution improves the scope of vision in international law on forced displacement and has important implications for human rights law, which is wrestling with how to protect internally displaced people who have historically been harder to help because of traditional n9otions of state sovereignty. This article’s analysis proceeds in three parts. The first part provides background by tracing the crystallization of the criminalization of forcible displacement in international humanitarian law. The second part contrasts the predominant frame of argument and analysis in post-World War II prosecutions and adjudications of crimes of deportation—focused on sovereign interest and authority—with the recent jurisprudence of the international criminal tribunal for the former Yugoslavia (ICTY), explicitly and centrally grounding the criminalization of deportation and forcible transfer in the rights of victims. The third part argues that international humanitarian law’s explicit grounding of the criminalization of forced transfer and deportation in rights in home, community, and property, and protection in both internal and international conflict, has important implications for the human rights dilemma of how to help internally displaced people historically submerged behind the bulwark of traditional notions of sovereignty.
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Claudio Grossman
Claudio Grossman, Chairman of the UN Committee against Torture, introduces Part I, “Recognition and Usage,” of Shedding Light on a Dark Practice. He explicates the value of The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - the Istanbul Protocol, or Protocol. The Protocol provides tools to the medical and legal professions to investigate and document torture and thus increase the likelihood of punishment and reparations. Non-compliance by state authorities with the requirements of the Protocol creates the presumption of torture by the State. The Protocol also identifies specific legal obligations that arise from the prohibition against torture. International and foreign courts use the Protocol as an authority to interpret and apply their own legal obligations.
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Lewis Grossman
This chapter examines the Supreme Court advocacy of James Coolidge Carter, a leading legal theorist, practicing attorney, and political reformer of the Gilded Age. Carter was perhaps the most respected appellate advocate in the country at the end of the nineteenth century. He argued some of the most important cases of the Gilded Age. He defended the federal income tax, a Chinese immigrant denied reentry into the United States pursuant to a racist immigration restriction statute, and also argued seminal cases concerning the Fifth Amendment privilege against self-incrimination and the recognition of foreign judgments in American courts. In this essay, the author focuses on Carter’s advocacy in three other important matters: his 1896 and 1898 briefs for the railroad defendants in the United States v. Trans-Missouri Freight Association and United States v. Joint Traffic Association, two important early interpretations of the Sherman Antitrust Act, and the brief he filed in 1897 on behalf of railroads in Smyth v. Ames, the case that established substantive due process limits on the legislative power to set railroad and utility rates. In these three cases, the author explores the way in which Carter’s jurisprudential and political views shaped his forensic arguments. In particular, he examines how his briefs reflected the mugwump political culture to which Carter, and many other late nineteenth-century urban lawyers, belonged.
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David Hunter
As climate change litigation proliferates around the world, an assessment of what its role is and should be in transnational regulatory governance becomes important. International financial institutions have increasingly adopted environmental and social policies that require them to take environmental and social concerns into account. Concern over the implementation of these policies led environmental and human rights groups to advocate for the establishment of citizen-driven accountability mechanisms in those institutions. This chapter explores the potential use of such mechanisms in filing claims relating to climate impacts as an alternative to litigation. By focusing on the best known of these mechanisms, The World Bank Inspection Panel and the International Finance Corporation’s Compliance Advisor and Ombudsman, and by providing overviews of lesser known mechanisms, the chapter examines their impact on climate change and the importance of raising the profile of contributions to change made by international financial institutions.
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David Hunter
This chapter discusses the awareness-building impacts of climate litigation as well as related impacts such as strategies may have on the development of climate law and policy. Climate advocates are necessarily pushing the development of the law in new directions, as the entire world is at once simultaneously both a potential plaintiff and a defendant. Coupled with implications for mixed jurisdiction and the shaping of remedies are difficult temporal distances between the wrongs (emissions) and the injuries. Climate advocates have had to push for the progressive development of the law and related institutions, emphasizing not only the differences but the similarities of climate change with more familiar issues, such as common law nuisance. The author argues that the implications of climate litigation are far-reaching in part because the simple act of filing often draws media attention. Subsequent legal action focusing on victims and forcing defendants’ response to allegations has in and of itself advanced global awareness of climate change.
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Peter Jaszi
This chapter examines the evolving infrastructure of copyright doctrine from 1880 to 1940 that facilitated developments in the publishing industry. Although these legal changes seem to have chiefly served publishers, their justification was rooted in appeals to the rights of authors. This chapter calls attention to the important role played by a by-product of the Romantic period, the mystification of creative activity, especially writing, which triggered the modern view of authorship as an essentially solitary and originary stage in the process of book production. It was this evolving attitude toward the creative process that led to some of the key legal arrangements needed to support and sustain consolidation of the publishing trade. Significant changes in the law included the judicial articulation of the “work-for-hire” doctrine, the passage of legislation ushering in international copyright relations between the U.S. and the rest of the world, and the rise of the doctrine of “substantial similarity.” All three developments contributed to the expansion and consolidation of the book trade by providing a firmer legal foundation for the effective assertion of publishers’ claims to the literary productions of individual writers.
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Teresa G. Phelps
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Diego Rodriguez-Pinzon
In this chapter, the author describes the evolution of the Inter-American human rights system to protect and promote human rights in member states of the Organization of American States (OAS). OAS members adopted the American Convention on Human Rights (which entered into force in 1978) and created two organs for supervision of States’ compliance with their human rights organizations: the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights. The Commission promotes the observance and protection of human rights, while the Court is the judicial body with both adjudicatory and advisory powers. The author details the development and refinement in the individual complaint proceedings in the Inter-American human rights system. The refinements have improved victims’ access while preserving crucial political tools of the Commission. Further, the system’s judicious treatment of petitions has preserved the jurisdictional rights of States and increased their participation in case adjudication and implementation of the Court and Commission’s decisions.
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Diego Rodríguez-Pinzon
En el presente artículo realizaré una descripción general del funcionamiento de la Comisión Interamericana de Derechos Humanos (en adelante “Comisión Interamericana,” Comisión o “CIDH”), hacienda particular énfasis en el sistema de casos individuales. Inicialmente haré una breve reseña histórica del sistema interamericano y la CIDH, para luego describir los diferentes aspectos que caracterizan el trabajo de la Comisión, incluyendo sus facultades político-diplomáticas tales como las visitas in loco y los informes generales, y las potestades cuasi-judiciales que se concretan en el trámite de peticiones individuales. Es importante mencionar que toda la información de la CIDH en material de casos individuales, informes generales y especiales, comunicados de prensa y otros asuntos, están disponibles en la página de Internet http://www.cidh.oas.org/. Otros recursos para realizar investigación sobre el sistema interamericano se encuentran en la siguiente página de Internet: http://www.wcl.american.edu/humright/hracademy/. This article provides a description of the general function of the InterAmerican Commission on Human Rights (“InterAmerican Commission,” “Commission,” or ICHR), giving particular emphasis to the system of individual cases. First, the author gives a brief historical report on the history of the Inter-American system and the ICHR, later describing the different aspects that characterize the job of the Commission, including political and diplomatic functions such as en loco parentis visits and general reports, and quasi-judicial authority that specifies the steps of individual petitions. It is important to mention that all of the information of the ICHR material from individual cases, general and special reports, press communications, and other matters are available on the internet at http://www.cidh.oas.org/. Other resources for the purposes of conducting an investigation about the inter-American system can be found on the following internet page: http://www.wcl.amercian.edu/humright/hracademy/.
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Susana SáCouto
According to the Rome Statute of the International Criminal Court (ICC), The Pre-Trial Chamber must hold a hearing to confirm the charges against an accused person within a reasonable time after that person has been taken into the custody of the Court. At the close of the hearing, the Pre-Trial Chamber must determine whether there is sufficient evidence to establish substantial grounds to believe that the accused committed the crimes charged by the Prosecutor. The Chamber may then confirm the charges and commit the accused to trial; decline to confirm the charges; or adjourn the hearing and request the Prosecutor to consider providing further evidence or amending a charge. At the time this report was written, the ICC confirmed the charges in two cases—namely, in the case against Thomas Lubanga Dyilo and in the joint case against Germain Katanga and Matheiu Ndgudjolo Chui. Focusing on these two cases, the aim of this report is to analyze the confirmation process as carried out by the Court thus far—both in terms of the manner in which the drafters of the Rome Statute seemed to have envisioned the process, as well as with respect to issues not necessarily anticipated by the drafters—and to make recommendations as to how the process might be improved for future accused.
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Macarena Saez
This book is part of a policy project funded by the EU-U.S. Atlantis Program of the U.S. Department of Education’s Fund for the Improvement of Post secondary Education (FIPSE) and the European Commission’s Directorate General for Education and Culture.
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Joshua D. Sarnoff
This chapter examines the developing law in the US applicable to judicial decisions to grant or to deny various forms of equitable injunctive relief as a tool for intellectual property rights enforcement. It then analyzes the 2006 US Supreme Court decision, eBay, Inc. v. MercExchange, L.L.C., 547 US 388(2006), which reversed a prevailing general rule in US jurisprudence that courts will issue permanent injunctions against patent infringement absent exceptional circumstances, and held that the existence of an IP infringement itself did not necessarily entitle the right-holder to an injunction. The author places the eBay decision’s restoration of flexibility and discretion to trial court judges in regard to injunctive relief in an international context by showing that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is likewise flexible, and pointing to the possible lessons in terms of policy choices that post-eBay jurisprudence in the US may offer the law-makers and the judiciary in developing countries in balancing the right-holders’ interest and public interest when deciding to grant an injunction. These policy choices include the amount of compensation considered to be fair and adequate for different types of intellectual property right-holders; the costs of judicial supervision of injunctive remedies and concerns that such remedies may excessively empower right holders; the potential for injunctive remedies to deter legitimate challenges to the validity of asserted rights; and the public interests that warrant authorizing prospective infringement.
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William Snape
This authoritative guide explains the Endangered Species Act, its implementation, and the issues facing the protection of endangered wildlife and its habitat. Beginning with the act's processes for listing species and designating critical habitat, chapters address key aspects of its application: the duty to consult and avoid jeopardy and the take prohibitions. Other topics include the jeopardy/critical habitats modification prohibition; Native American rights; threatened and endangered plants; international trade restrictions; citizen suits; landowner incentives; nanotechnology; and global warming.
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David V. Snyder
This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even of unilateral, gratuitous promises. In addition, the Scots law of personal bar, which is similar to estoppel and waiver, fulfills other jobs associated with promissory estoppel. Louisiana, on the other hand, long claimed to reject promissory estoppel but then reversed course and adopted the doctrine about twenty-five years ago. The comparison of these two legal systems affords an opportunity to observe the doctrinal mixes and philosophical choices that have long drawn comparative law scholars to mixed jurisdictions. It also reveals the roles that promissory estoppel can play and how it is not entirely tethered to the problems of the consideration doctrine.
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Robert Vaughn
The author describes recent post-employment provisions that restrict lobbying activities to influence the federal government by former employees of the executive and legislative branches of the federal government. These regulations implement the reforms intended by passage of the Honest Leadership and Open Government Act of 2007, as well as President Obama's Executive Order on Ethics Commitments by Executive Branch Personnel, issued on January 21, 2009. The provisions affect many lobbying activities, including attempts to influence executive policy. For example, the restrictions seek to prevent high-ranking former employees from using the information and contacts that they acquired during periods of government service to benefit private interests. Extensive lobbying creates an appearance that favors may be exchanged between private citizens and public officials. Post-employment restrictions on the executive branch reflect concerns about a "revolving door," through which, on the one hand, government regulators leave to work directly for regulated entities or to represent their interests and, on the other hand, employees of regulated interests become employees of the relevant regulatory agencies. The first sections of the chapter examine restrictions on the activities of former executive branch employees by moving from more general to more specific regulations. Enforcement of these provisions may involve criminal sanctions, civil penalties, and, in some instances, administrative action. Recent restrictions on the lobbying activities of the legislative branch - Members, officers, and higher-paid staff of the Congress - reflect themes similar to those supporting executive branch restrictions. The final section of the chapter addresses these restrictions, including the changes introduced by the Honest Leadership and Open Government Act of 2007 (HLOGA).
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Richard J. Wilson
This paper arose from a presentation at the McCoubrey Centre for International Law at Hull University in the United Kingdom, at a conference on "Law and Security, Post 9/11". The conference took place in February of 2005 and represents reflections on the author’s personal experience in the representation of Omar Khadr, a Canadian citizen who was captured by U.S. and Northern Alliance forces near Khost, Afghanistan, in July, 2002. He was held at Bagram Air Force Base for several months, and transferred to Guantanamo Bay, where he has been held ever since. He was 15 years old at the time of his capture. The article discusses who was at Guantanamo as of the date of its writing, why the U.S. government's detention policy unfolded the way it did, who the client was, and what the ideal outcome of his case would be.
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Jonathan Baker
This chapter discusses the FTC’s court challenge, in 2001, to the proposed merger of two baby food producers, Heinz and Beech-Nut. The chapter describes the economic issues at stake in the litigation, with a particular focus on the possibility that efficiencies could justify a merger in an industry in which post-merger concentration would be high.
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Jonathan Baker
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. The authors document this shift and provide examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. The authors show using merger enforcement data and a survey conducted of merger practitioners that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. The authors then argue in favor of reinvigorating horizontal merger enforcement by partially restoring the structural presumption and by requiring strong evidence to overcome the government’s prima facie case. The authors propose several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated vs. unilateral anti-competitive effects.
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Jonathan Baker
This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of US firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare--particularly in deterring the harms from anticompetitive conduct across the economy--appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.
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Jonathan B. Baker
Antitrust law has long been concerned that the loss of a firm, through merger or exclusion, may improve the prospects for tacit or express collusion in a concentrated market. In merger law, this perspective has been codified as a presumption of anticompetitive effect arising from high and increasing market concentration. Antitrust law’s structural presumption has been eroding in the courts, however, in part because its economic underpinnings increasingly are seen as unsettled. This article explains how coordinated competitive effects analysis can be reconstructed around the role of a maverick firm that constrains prices when industry coordination is incomplete. Providing this explanation helps distinguish precompetitive mergers from anticompetitive ones, and may aid in the analysis of alleged exclusion. It also provides a new economic justification for the structural presumption and points toward a continuing role for that presumption when the maverick cannot be identified or when it is not possible to determine the effect of a merger on the maverick’s incentives. The resulting approach to coordinated competitive effects analysis is illustrated with an extended example involving oligopoly conduct in the US passenger airline industry.
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Jonathan Baker and Timothy F. Bresnahan
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Daniel Bradlow
The Reconciliation and Development Project (R&D Bonds) was originally conceived as an attempt to involve the South African expatriate community in the process of national reconciliation that began with the end of apartheid. It has evolved into a broader effort to create a financial instrument capable of raising financing from both expatriates and the domestic market for small scale revenue generating development projects that will produce jobs, services, and opportunities for poor and historically disadvantaged South Africans. Through this evolution, it has become clear that the project, which if implemented will be unprecedented, has the potential to teach some interesting and generally applicable lessons on the roles that private financial markets can play in attracting both domestic and international funding for sub-commercial development projects and in promoting reconciliation in post-conflict societies. The chapter is divided into three sections. The first section describes the genesis of the R&D Bonds Project. The second discusses the design of the R&D Bonds. The final section highlights some of the interesting development financing issues that arise from the project.
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Angela J. Davis
This chapter focuses on the trial story behind the high profile case of People v. Orenthal James Simpson. As the author points out, the Simpson case focused attention on some of the most important issues in the criminal justice system, including class and race disparities, DNA evidence, and police perjury. The author here focuses on the issue of race--its significance in the trial and how it affected the advocacy of the lawyers. She discusses the emotional conflicts over race within the defense and prosecution teams and compares and contrasts the approaches that each side ultimately decided to take. The author examines how race affected the choice of lawyers, venue and jury selection, the direct and cross-examination of the trials most controversial witness, and the closing arguments. She suggests that the strategic decisions about race made by both sides may have largely determined the outcome of the case.
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N. Jeremi Duru
The National Football League (the "NFL" or the "League"), like the National Basketball Association (the "NBA") and Major League Baseball ("MLB"), has a long history of racial exclusion.' And like these other long standing American professional sports leagues, desegregation among players preceded desegregation among coaches. As slowly increasing numbers of minorities assumed NBA head coaching positions and MLB managing positions toward the end of the twentieth century, however, minority NFL coaches were less likely to receive head coaching opportunities than their basketball and baseball counterparts. Indeed, as of 2002, only two of the NFL's thirty-two head coaches were minorities, and only five, including those two, had held head coaching positions during the League's modem era. Four years later, however, the NFL had more than tripled its number of minority head coaches and shone as a model for other athletic institutions seeking to provide head coaching candidates equal employment opportunities. This article seeks to explore the history of racial exclusion in the NFL, the particular barriers minority coaches seeking NFL head coaching positions have faced, and the effort to level the playing field for such coaches. Part I of this article traces the NFL's initial expulsion of African Americans, its eventual reintegration, and the patterns accompanying that reintegration. Part I1 explores the travails of the NFL's first three post-reintegration coaches of color as well as statistical evidence revealing that, as of 2002, NFL coaches of color generally suffered inferior opportunities despite exhibiting outstanding performance. Part III examines the campaign launched by attorneys Cyrus Mehri and Johnnie L. Cochran, Jr. to alter NFL teams' hiring practices, the creation of the Rooney Rule (the "Rule"), and the birth of the Fritz Pollard Alliance of minority coaches, scouts, and front office personnel in the NFL. Finally, Part IV traces the Rooney Rule's success in creating equal opportunity for coaches of color in the NFL.
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Susan Franck
This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.
Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis is on the question of an appellate body for international investment disputes. The authors also seek ways to streamline and improve the system, channeling the benefits of free trade and investment flows to people in both the developing and emerging markets. The Appendices provide readers with extensive background material to place the chapters into context. Selected sections include concise commentaries to further illuminate the timely themes covered by the chapters. The volume is singular in its success at bringing together so many exceptional individuals on a question of growing import-how to improve the international law regime to increase prosperity and further global development. If a reader wants to know what the influential voices in international law are saying right now, and in a concise and readable format, this is the publication to have. -
Susan Franck
International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for a reconsideration of Appropriate Dispute Resolution (ADR) methods for resolving investment treaty conflict and highlights the costs and benefits of particularized dispute resolution methods, including preventative, negotiated, facilitated, fact-finding, advisory and imposed ADR mechanisms. The chapter ultimately argues that, while arbitration has utility, the challenge for the future will be to move beyond investment treaty arbitration to a more holistic approach to conflict management that considers other opportunities, particularly the collaborative design of sustainable dispute resolution systems.
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Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, and Brian J. Rapier
This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.
Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis is on the question of an appellate body for international investment disputes. The authors also seek ways to streamline and improve the system, channeling the benefits of free trade and investment flows to people in both the developing and emerging markets. The Appendices provide readers with extensive background material to place the chapters into context. Selected sections include concise commentaries to further illuminate the timely themes covered by the chapters. The volume is singular in its success at bringing together so many exceptional individuals on a question of growing import-how to improve the international law regime to increase prosperity and further global development. If a reader wants to know what the influential voices in international law are saying right now, and in a concise and readable format, this is the publication to have. -
Claudio Grossman
The author argues that a continued focus by the US legal education establishment on standard courses that remain inextricably attached to an autonomous domestic system is inadequate to prepare lawyers for the new interconnected world reality. All legal issues now have both international and domestic features, in the sense that they influence or are influenced by developments in both the domestic and international arenas. In the author’s proposed model, new skills would be identified, social change and awareness would be emphasized, and a cross-cultural perspective would be sought. This can be done by establishing links between the study of domestic and international law through weaving international law concepts into courses considered domestic; by focusing on the different types of legal systems and cultures--common law, civil law, religious law, and customary law--that exist around the world; and by incorporating into the academic agenda an understanding of how culture affects the action of individuals and their relationship with a legal system. By shifting emphasis in these ways the law school curriculum would create a more open and forward-looking legal education that truly participates in the wider world in which law graduates will have to engage.
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David Hunter
The author begins this chapter with a description of then-current (2007-2008) U. S. climate policy as it related to international relations and negotiations in the wake of the Bush Administration’s rejection of the Kyoto Protocol. Acknowledging that future U.S. negotiating positions would depend significantly on the outcome of the 2008 presidential election, he briefly reviews the platforms of the leading U.S. presidential candidates before turning to federal domestic policy. Summarizing the Bush initiatives to tie greenhouse gas (GHG) emissions to economic output and to reduce emissions by voluntary measures, he also discusses the first U.S. Supreme Court case to address climate change, Massachusetts v. EPA (549 U.S. 497, 2007), wherein the high court chided the EPA for ignoring its statutory obligation to execute the Clean Air Act, while refusing to take a stand on whether greenhouse gases cause or contribute to climate change. The author reviews legislation that was then making its way through the 110th Congress, such as Senator Waxman’s Safe Climate Act, and goes on to analyze activities at the sub-national level that collectively had a major impact on U.S. climate policy. The author concludes the chapter by identifying some of the implications of future U.S. climate policy, expected to be more robust post-Bush, for Canada and Canadian climate policy.
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Candace Saari Kovacic-Fleischer
This chapter describes the difficulty that the US has had in passing social legislation by viewing it through the changing attitudes of US Supreme Court justices toward employment legislation during five defining eras in the twentieth century: laissez-faire economics and wage and hour legislation, 1905-1941; President Franklin D. Roosevelt’s New Deal Social Security Act, 1935-1937; World War II, 1940-1948; the Civil Rights and Women’s movements, 1963-1978; and the Family and Medical Leave Act of 1993. The US has expanded its view of government’s role in the private workplace over time, though not nearly as quickly as has Europe. The author shows that this lagging behind may be explained in part by America’s long tradition of opposing government power, particularly Federal power, and, in the case of maternity leave, by unhelpful attitudes toward women in the workplace, both of which have stifled social engineering initiatives in the United States.
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Diane Orentlicher
In this essay the author addresses several issues raised by emerging trends in the use of universal jurisdiction. She argues that recent developments raise concerns about how jurisdictional authority should be allocated among states as well as between officials of states and officers of international tribunals. Growing recourse to universal jurisdiction raises questions about whose claim should receive priority when more than one court seeks to prosecute an individual for the same crime. The question has been further complicated by the emergence of a new breed of court, such as the Special Court for Sierra Leone, which is shaped by negotiations that reflect political contexts. These courts, fashioned out of international and national elements, present an alternative to familiar fora for prosecution and re-invigorate incountry justice. Recent developments also present a new variant on the familiar punish-or-pardon quandary: if a nation afflicted by mass atrocities forgoes punishment in the name of national reconciliation, how should other authorities that can prosecute the perpetrators take account of the domestic policy? Since it is now possible to suppose that several courts might assert jurisdiction with respect to the same crime, the author contends that the legal community needs to forge principled rules for reconciling the claims of multiple communities—national, transnational, and international.
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Jamin B. Raskin
In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. To resolve the case, the Court grappled with two key questions. The first was whether the debate on a state-controlled station constituted a 'public forum' for First Amendment purposes, and, second, whether the exclusion of Ralph Forbes from the debate constituted 'viewpoint discrimination.' The Court determined that the debate was a 'nonpublic' forum. The majority also saw no viewpoint discrimination in Forbes’s exclusion. Justice Kennedy, who authored the majority opinion, was principally moved by the trial jury’s finding that Forbes was rejected as a participant by the debate managers not because they disliked his politics but because they correctly deemed his candidacy to be 'not viable.' Thus, the AETC’s exclusion of Forbes was not political viewpoint discrimination but a 'reasonable, viewpoint neutral exercise of its journalistic discretion.' In his dissent, Jamin Raskin concludes that the Court decided both of these questions erroneously and that the Court should have found that Arkansas was required to permit Forbes, a balloted candidate who had nearly become lieutenant governor in the prior election, to participate in the debate.
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Richard S. Ugelow
In this chapter the author reviews the enforcement scheme behind Title VII of the Civil Rights Act of 1964 and uses experience gleaned from a 29-year career as a senior trial attorney and deputy section chief in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice (DOJ) to provide an overview of how the DOJ used its enforcement authority during those years. When the DOJ files a Title VII suit it sues in the name of the United States of America, an action which makes the US “the client” and which has significant consequences for the manner in which litigation is conducted and the type of remedial relief sought. Most often, the United States government pursues systemic changes to the employer’s practices, while the individual charging party seeks individualized relief. The author explains the difference between disparate treatment and disparate impact theories in Title VII liability. Under the disparate treatment theory, the plaintiff has the burden to demonstrate by a preponderance of evidence that the alleged discriminatory conduct was intentional or purposeful. In contrast, the disparate impact theory focuses on the effects of the employment practice or the criteria on which the employment decision is based. Of the two, the latter method is more complex and expensive, and so it usually falls to DOJ rather than private individuals to pursue these cases. In this chapter, the author describes the DOJ’s entry into a lawsuit (United States v. City of Buffalo, 457 F. Supp. 612, 1978) wherein a woman sued the Buffalo, New York Fire Department because of discriminatory employment practices. The litigation, which involved both disparate treatment and disparate impact, illustrates the practical and legal issues the Justice Department addressed in seeking to have women employed as firefighters.
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