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Macarena Sáez
This Chapter gives a brief analysis of the status of same-sex marriage in the United States prior to the US Supreme Court decisions of 2013 and the current status of litigation and political reforms triggered, in part by the court decisions. It shows that marriage is a central institution in the country’s rationale of family law in ways that separate it from other Western countries that have allowed same-sex marriage.
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Robert Tsai
This contribution explores the development of legal language in nineteenth-century America as a species of political discourse. In particular, I sketch the broad, competing trends in legal language. On the one hand, legal rhetoric became more popular and fragmented, as the sources of law multiplied. On the other hand, the law also became increasingly sophisticated and specialized with the rise of institutions. These features on the surface of legal rhetoric hinted at deeper changes in the imperatives of political development and efforts at cultural resistance.
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Padideh Ala'i and Matthew D'Orsi
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Jonathan Baker
This essay was written for a festschrift in honor of Professor William E. Kovacic. It discusses Prof. Kovacic’s work on the design of antitrust enforcement institutions, the interplay between the Chicago and Harvard schools in the transformation of antitrust that took place a generation ago, and the extent to which antitrust norms exhibit continuity over time. It will published in "William E. Kovacic - Liber Amicorum: An Antitrust Tribute - Vol. II," which is scheduled to be released in February 2014 by the Institute of Competition Law.
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Mary L. Clark
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Robert Dinerstein and E. Milstein
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Christine Farley
This chapter argues that the 1929 General Inter-American Convention for Trade Mark and Commercial Protection ("Pan-American Convention") should be remembered, and will explain why it has been forgotten. The chapter recounts the history of the convention and shows how that history fits into the development of a practice in the U.S. of requiring implementing legislation in order for treaty provisions to become directly operative. Foreign caselaw demonstrates that the convention has not been forgotten in member states (Colombia, Cuba, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay and Peru) and therefore has played a very different role abroad. Finally, the chapter reveals how the convention makes at least two important contributions to international trademark law. First, it provides a novel approach to the protection of well-known marks by limiting their availability in cases where the mark was known to have been previously used in the region. Second, the convention goes well beyond the Paris Convention to provide a detailed set of protections against unfair competition. Given these substantive provisions, the fact that the convention is still in force in the U.S., and that is self-executing, it is a wonder that there have been so few U.S. cases to date that have invoked this convention.
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Christine Haight Farley
Currently, U.S. trademark and copyright law both adopt employ a regime of international exhaustion of rights with respect to parallel importation after the Supreme Court ruled in Kirtsaeng last term. This agreement belies the fact that these two areas of law have developed in nearly divergent directions and have resulted in faltering intellectual property and trade policies. Currently, interpretation of the first sale doctrine hinges on the particular legal characteristics of both trademarks and copyrights. When dealing with trademarks, courts ultimately focus on the source of origin, taking into account consumer expectations or, instead, focusing on the business relationship, if any, between the two parties. With copyrights, courts’ decisions build upon how extensive authors’ rights were intended to be and where an author’s actions can be regulated. In addition to these considerations, however, I propose that U.S. law’s treatment of parallel imports should be informed by the policy concerns at stake. In doing so, courts can and legislators can strike a balance between a national and international exhaustion regime; create compatibility between trademark and copyright law; and effectively eliminate abuse of these discrepancies by parties who can easily disguise their trademark disputes as copyright disputes to bar such imports.
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Amanda Leiter
This chapter from The Year in Review, published by the ABA Section on Environment, Energy and Resources, covers developments during 2013 in the areas of standing, Commerce Clause, political question doctrine, preemption, takings, due process, First Amendment, Tenth Amendment, and state constitutional law.
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Jeffrey Lubbers
In the last two decades transparency has become a ubiquitous and stubbornly ambiguous term. Typically understood to promote rule of law, democratic participation, anti-corruption initiatives, human rights, and economic efficiency, transparency can also legitimate bureaucratic power, advance undemocratic forms of governance, and aid in global centralization of power. This path-breaking volume, comprising original contributions on a range of countries and environments, exposes the many faces of transparency by allowing readers to see the uncertainties, inconsistencies and surprises contained within the current conceptions and applications of the term.
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Adeen Postar and Khelani Clay
This chapter is intended to cover Maryland Law in its entire complexity and for the most part is intended for current use by practitioners. Whenever possible, it includes references to online sources of material, including LexisNexis, Westlaw, and authoritative sites available on the Internet. We have not included references to WestlawNext as many Maryland specific materials have not been included there as this project was concluding in November 2011.
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Susana SaCouto
The article analyzes certain aspects of the first judgment issued by the International Criminal Court, as well as the accompanying decisions relating to sentencing and the principles according to which reparations will be awarded to victims of the convicted individual, Thomas Lubanga Dyilo. Specifically, the article addresses: (i) the considerable amount of time that elapsed between the close of trial and the issuance of the judgment in the Lubanga Case; (ii) the Trial Chamber's failure to adequately clarify in its judgment certain aspects of the crimes with which Mr. Lubanga was charged; (iii) the lack of claiification in the sentencing decision regarding the relationship among factors relevant to the sentence and the means by which the majority of the Chamber reached its conclusion that 14 years was the appropriate length of the sentence; and (iv) the purpose and timing of the Chamber's decision relating to reparations. In sum, the article finds that, while the overall approach of Trial Chamber I in presiding over the Court's first trial is to be commended, and the judgment is largely sound, the Court and its constituents - including the parties, affected communities and the broader public - may be better served if future Trial Chambers strive to deliver judgments within a shorter period of time, while also ensuring that their reasoning on the crimes charged is fully explained. Furthermore, future decisions on sentencing will benefit from greater clarity. Finally, Trial Chambers in other cases should reconsider whether it is wise to issue any decisions on reparations prior to a final judgment on the guilt of the accused.
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Robert Tsai
This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Comparative Law in Legislative Drafting: The Increasing Importance of Dialogue amongst Parliaments (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) are characterized by a receptivity to foreign and international law. A commitment to legal pluralism can be especially pronounced in countries seeking to escape a colonial past. While a newfound preference for increased formality in using foreign models can be detected, experts disagree whether the quality and frequency of actual usage has improved. Additionally, there may be certain undesirable consequences of heightened proceduralism and professionalism. Attention to the role of particular institutions, bureaucratic innovations, and lawmakers' motivations in borrowing (or not borrowing) from foreign law would be most fruitful for research going forward.
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Paul Williams and Anna Triponel
The case of Libya demonstrates the extent to which the law plays a role in enabling, shaping and constraining complex military and diplomatic operations. The law underpinned a number of decisions made at the policy level regarding military and diplomatic engagement. Although prior military operations can provide guidance for decision-making in future military operations, the application of the law to each case will be unique. The Libyan case study provides an example of how the law and politics intertwined to achieve the U.S. government’s objectives of protecting the Libyan people against violent attacks by their leader. This chapter examines the role law played in five key political-military decision points relating to the case of Libya. First, should the United States join France and Great Britain in using force to protect the people of Libya? Second, what is the extent of military force that could be used to accomplish this objective? Third, to what extent should Congress be involved in the decision to use force? Fourth, should the United States recognize the National Transitional Council as the legitimate government of Libya? Finally, should the United States and its allies seek a negotiated settlement if the military campaign failed to adequately protect civilians or to prompt a regime change?
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Padideh Ala'i
The book discusses some notable debates in the arena of international trade law and globalisation. It looks at the basic structure of the WTO, its function, and decision-making, and explores key economic and legal concepts underpinning the WTO, including Most-Favoured Nation Treatment and National Treatment.
The need of the hour is to discuss tariff barriers and non-tariff barriers, as they assist in promoting economic development. Besides these, the WTO attempts to control illegal trade practices, including dumping and subsidies, which are also pertinent topics in the current climate.
The book examines many of these issues through exploring the jurisprudence and regulatory framework of WTO. It examines the existing WTO jurisprudence to reconcile trade liberalisation with other societal values and interests. Furthermore, it highlights the regulation of international trade in agricultural products. Overall, this book shows that international trade law of the WTO is not a self-contained discipline, but has clear connections with other social, economic, and environmental subjects.
The WTO interacts with these issues, and thus the book discusses, clarifies and identifies its relationship with human rights, intellectual property rights and the environment. It discusses the following topics in single chapters; Trade, Globalisation and Economic Policy; WTO and Environment; WTO and Human Rights; WTO and Regulation of International Trade in Agricultural Products; WTO and Developing Countries. The book provides a unique, interdisciplinary, and refreshing approach to the study of international trade law and the WTO.
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Kenneth Anderson and Benjamin Wittes
American University, WCL Research Paper No. 2014-3 Abstract "The President's NDU Speech" is the third chapter of a book, "Speaking the Law," which analyzes the speeches of the Obama administration on national security law and policy. The book is being published online by the Hoover Institution, Stanford University on its website, chapter by chapter as they are completed. Once all chapters are done (end of 2013), the full book will be published by Hoover Institution Press in hard copy. Chapter 3 (the earlier chapters are available for open source download at the Hoover Institution website or through links at the Lawfare national security site) provides a close analysis of the speech delivered by President Obama on May 23, 2013 at the National Defense University, Washington DC - a speech at the beginning of President Obama's second term and billed as a comprehensive, forward-looking examination of US counterterrorism policy. The speech covered issues as diverse as conditions that would define "end of the conflict" under the 2001 AUMF; targeting, drone warfare, and what the authors call "counterterrorism-on-offense"; Guantanamo and detentions; secrecy and leaks of classified information; and the two documents provided along with the President's text - a White House release on drone targeting policies outside of conventional active zones of hostilities and a letter from the Attorney General addressing the targeting of a radical Yemeni-American cleric, Anwar Al-Awlaki, a senior operational commander of an Al-Qaeda associated force under the AUMF, with a drone strike. The authors integrate this speech with the earlier speeches delivered by top administration officials and lawyers, and evaluate it to identify the good and the bad, the unaddressed and the flat-out contradictory. The best parts address targeting and drone warfare, where the president offers a persuasive defense on moral and policy grounds, and a defense of the Awlaki killing - a drone strike against an American citizen, on grounds of his being a senior operational commander of an associated force under the AUMF, Al Qaeda in the Arabian Peninsula. Another bright feature addresses the administration's understanding that counterterrorism policy must deny "territory" to terrorist groups, and political or "governance" territory to Islamist insurgent groups allied with or hosts to terrorist groups and what this means as a matter of legal policy and strategy. The worst parts deal with Guantanamo and detention, and the gap between what the administration says and what it actually does. The overall premise of "Speaking the Law" is that the speeches of the Obama administration collectively are more than simply the public relations statements that many journalists, academics, and others reflexively assume them to be. They offer an evolving, but still relatively coherent and articulated, framework of legal policy for counterterrorism - one that is seeking to find institutional settlement, legitimate settlement, of basic terms of US counterterrorism policy on a stable, long-run basis. Whether that institutional settlement will, in fact, be achieved by the end of President Obama's second term, no one can say; whether it is, on balance, a reasonable or just or lawful settlement, and not merely a short term, politically expedient one depends on one's political and ideological priors. However one sees those issues, the authors' view is that the speeches analyzed in this book provide the skeleton of US national security law and policy; they are not merely a public relations add-on after the fact.
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Angela J. Davis
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Susan Franck
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Robert K. Goldman
Chapter 6 of Research Handbook on Human Rights and Humanitarian Law
In the wake of the September 11, 2001 attacks in the United States, the US, with the assistance of its coalition partners – all parties to various human rights instruments – initiated the so-called ‘war on terror’ by invading Afghanistan, where their armed forces killed or captured hundreds of ‘terrorist suspects’. Some of those detained were taken to the US military facility at Guantanamo Bay, Cuba, while others have languished in US custody in Afghanistan. These actions raise the question whether a State is bound by its human rights obligations when its agents operate outside of national territory. And, if so, how do those obligations interrelate with the State’s other obligations under international humanitarian law when its counter-terrorism operations coincide with situations of armed conflict.
This chapter addresses these questions. In particular, it examines the extraterritorial reach of two fundamental human rights during two situations recognized in international law. These rights are the right to life and the right to liberty and the related procedural safeguard of habeas corpus. The two situations examined are: (1) international armed conflicts, including occupation; and (2) non-international armed conflicts. The paper surveys the jurisprudence on the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (American Convention) and American Declaration of the Rights and Duties of Man (American Declaration), and the European Convention on Human Rights (European Convention), and the extent to which rights in these instruments can be derogated from. It also examines how the treaty bodies supervising these instruments view the relationship between international human rights law (HRL) and international humanitarian law (IHL) in situations of armed conflict. Relevant decisions of the International Court of Justice are also referenced in this connection. The chapter also identifies certain gaps in legal protection.
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William Snape
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William Snape
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Lindsay Wiley
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