11929 research outputs found
Sort by
The Limits of a Peace Agreement: An Analysis of the Havana Agreements
Get PDFIn 2016, the government of Colombia and the former Revolutionary Armed Forces of Colombia (FARC) signed the “Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace” in Havana, Cuba. This article provides a close examination of Chapter 5 of the Havana Agreement
Searching for Justice: Incorporating Critical Legal Research Into Clinic Seminar
Get PDFThis Article provides educators with a roadmap for incorporating Critical Legal Research into Clinical Pedagogy. Critical Legal Research is a social justice-oriented critical intervention that provides a theoretical framework and practical application. Critical Legal Research provides lawyers with tools to deconstruct but also reconstruct legal research and analysis modes to engender more just, client-focused outcomes that fall outside dominant legal narratives. The problematic advent of ChatGPT and the broader incorporation of Artificial Intelligence (AI) within the legal research regime has made the Critical Legal Research project more urgent than ever. Ultimately, introducing Critical Legal Research in the clinic seminar is both a necessity and an opportunity: It liberates the minds of our students and challenges them to think creatively in the greater fight against injustice
The Stunted Development of Unfair Competition Law in the United States and Canada
No full textBoth the United States and Canada present unfair competition law in a way that is complex and indicative of their kindred beginnings. Sharing a closely paralleled history in the development of unfair competition law, these countries exhibit unique similarities in both substance and approach, likely not found in any other jurisdiction
Born out of English common law, the early trajectory of unfair competition was inextricably linked to trade mark law. Both countries’ legislatures passed ambitious trade mark statutes that created federal regulation of certain areas of unfair competition, while also reserving large areas for the state or provincial legislatures to regulate. Claimants therefore navigate substantial variety in unfair competition protections depending on the cause of action. Even so, obligations under international agreements such as the Paris Convention and interaction with other bodies of law further extend the unfair competition legal landscape.
Despite its complexity, the United States and Canada share remarkably similar paths to unfair competition protection. Understanding their history, limited national legislative powers, policy rationales, obligations under international agreements and the interplay between federal and state or provincial law create a rich and multifaceted unfair competition landscape
Codifying Prior Informed Consent to Govern Unregistered Pesticide Export
No full textEPA should immediately initiate rulemaking requiring “prior informed consent” (PIC) for the export of pesticides unregistered in the United States under FIFRA
Digital Rummaging
Get PDFThe digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes.
The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about “reasonable expectations of privacy” and “trespass” searches. While the Supreme Court has acknowledged that “digital is different,” it has not yet provided a coherent theory to protect individuals from growing digital surveillance.
This Article offers an alternative Fourth Amendment theory based on the harm of rummaging—a principle that can trace its lineage from the Founding debates around General Warrants and the Writs of Assistance to the Supreme Court’s most recent cases on cell phone location data. Fear of government agents rummaging into private homes and papers motivated the passage of the Fourth Amendment and has remained a doctrinally coherent throughline recurring in Fourth Amendment cases.
This Article develops the “rummaging test” as a new way to see the harms of government collection of digital evidence. The Article excavates rummaging as an original justification for the Fourth Amendment and then demonstrates how the digital rummaging concept perfectly responds to the harms of government surveillance in the digital age. The rummaging test recognizes that the arbitrary, overbroad, invasive, exposing collection of personal data reflects the same harms that gave rise to the Fourth Amendment in the first instance.
The Article seeks to refocus attention on the government’s power to rummage through personal data by examining legal challenges around smart-home data and long-term pole cameras. The hope is to move the longstanding background principle against rummaging to the foreground of Fourth Amendment analysis and thereby answer some of the hardest questions facing courts confronting challenges to digital surveillance
Blacklisting or Banning Technologies that Scare Us: AI, Cryptocurrencies, and More
Get PDFPolicymakers often play a critical role in regulating the use and advancement of technology. Their decisions can have significant positive impacts on the development, adoption, and use of various technologies, but also negative ones if they decide to limit or even block a certain technology. Italy’s temporary banning of the Generative Artificial Intelligence (GenAI) platform ChatGPT, much like New York City’s Department of Education, demonstrates administrations’ and policymakers’ reliance on blacklisting and banning.
Blacklisting and banning are often used interchangeably. Nevertheless, in the context of regulation, the terms are different and used for different purposes, and it is key to understand why, how, and what consequences are associated with each term, particularly when used in connection with innovative and disruptive technologies, such as GenAI.
This Article explores the use of blacklisting as a regulatory tool while differentiating it from the practice of banning. In doing so, this Article examines the impact of any related explicit and implicit sanctions, especially as such sanctions include reputational damage, increased hardship in getting credit, and the potential costs of “doing business.” Additionally, the Article makes the important distinction between two rationales for blacklisting: (1) Blacklisting for participating in or advancing an illegal activity or failing to comply with binding legal requirements; and (2) blacklisting for moral or ethical reasons. It also describes why sanctions do not always work. Finally, this Article makes policy recommendations that would help increase the effectiveness of blacklisting as a regulatory tool, while acknowledging the problematic nature of regulation by enforcement
Silence As Consumer Consent: Global Regulation of Negative Option Contracts
Get PDFWorldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. Although these subscriptions use various contract forms, many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers’ side. Unsurprisingly, then, consumers complain in great numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even worse, consumers pay—sometimes for years—for scams or marginal “subscriptions” that they never meant to sign up for in the first place.
Governments around the globe have scrambled to respond (with mixed success) to this wave of complaints. This Article surveys that landscape, assessing the consumer risks and benefits of negative option contracts, cataloging the regulatory responses across countries, and taking stock of why much of that regulation falls short (especially when it focuses on consumer disclosures). We propose a new model law that retains essential consumer disclosures but affords greater substantive protections for consumers. In particular, the model law would prevent free trials from rolling over into paid negative option contracts, extend the cancellation periods for automatically renewed contracts, and require sellers to stop charging consumers who have stopped using their services (or eliminate automatically renewing term contracts altogether). With negative option contracts and consumer discontent on the rise, now is the moment to take stock of best practices and shore up protections for consumers worldwide
Petition Power
Get PDFThe law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty as citizens. And yet, a substantial body of law applied in this country is difficult for anyone but federal agency insiders to piece together. Rather than publishing regulations that lay out standards of conduct for the future, many agencies interpret the law, and articulate and implement new policies, as they go. Those subject to the law they implement are left to piece the rules together by studying whatever information is available about the individual decisions. This undermines the rule of law. This Article describes an administrative mechanism that can help restore the rule of law. That mechanism is a petitioning procedure, and this suggestion is based on studying decades of petitioning at the one federal agency with a formal procedure for accepting and considering any type of petition from any interested party — the Food and Drug Administration. If an agency faces a meaningful threat of judicial review in litigation brought by a petitioner, a petition can prompt it to articulate and explain its statutory interpretations and regulatory policies publicly, rather than simply implementing and illustrating policy as it makes case-by-case decisions. A petition back by the meaningful threat of judicial review can also force an agency to comply with a statutory mandate or correct errors in law or fact. In short, petitions—some petitions, that is—can increase transparency and through it contribute to the accountability of the administrative state
Seed Patents: Enabling Innovation Beyond Biological Deposits
Get PDFIn J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court held that new sexually reproducing plant varieties are patentable subject matter. This allowed breeders and seed companies to protect their intellectual property in new seeds by obtaining utility patents so long as they meet the other statutory requirements, such as enablement. Unlike other intellectual property protection for new plant varieties, utility patents require the patent disclosure to include enough information that a person of ordinary skill in the art could make and use the invention without undue experimentation. In In re Wands, the Federal Circuit established eight factors courts should consider when determining whether a patent disclosure satisfies enablement (the Wands factors).
Due to decisions such as In re Argoudelis in 1970 and Ex Parte C in 1992, the United States Patent and Trademark Office (USPTO) continues to allow utility patents covering new plant varieties to satisfy the enablement requirement with a biological deposit of a claimed seed (a “seed deposit”), regardless of the type of plant variety claimed; however, this trend does not adequately evaluate the difficulty associated with reproducing different variety types from a sample seed. This Comment examines whether a seed deposit is sufficient to satisfy enablement under the Wands factors for different types of plant varieties, concluding that a biological deposit of a claimed seed is insufficient for all but one commonly claimed variety—inbred varieties