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An Exception to Jesner: Preventing U.S. Corporations and Their Subsidiaries from Avoiding Liability for Harms Caused Abroad
Get PDFAfter the Supreme Court’s rulings in Jesner and Kiobel, the Alien Tort Statute includes a “presumption against extraterritorial application,” and no suits may be brought against foreign corporate defendants. These barriers limit the ability of victims of human rights violations to find justice. The courts or Congress should create an exception to the Alien Tort Statute for foreign corporate subsidiaries of domestic corporations. This exception will help improve American soft power and will hold human rights violators liable for their crimes. This Comment examines the policies of countries like France, England, Canada, and the Netherlands. The exception proposed by this Comment differs from the policies in these countries because it only asks the U.S. to create an exception for foreign corporations owned by American companies. The U.S. should not protect its corporations and grant them immunity when their subsidiaries engage in egregious human rights violations
Can Copyright Law Protect People from Sexual Harassment?
Get PDFThe scandals stemming from the sexual harassment allegedly committed by Harvey Weinstein, Roger Ailes, Les Moonves, Matt Lauer, Bill O’Reilly, Charlie Rose, Bryan Singer, Kevin Spacey, and many other prominent figures in the creative industries show the ineffectiveness of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace, in protecting artists and others in the creative industries. Among other deficiencies, Title VII does not protect independent contractors and limits recovery to, at most, 300,000 in less than a week. Not surprisingly, many of the accused harassers in Hollywood had no shortage of funds to pay “hush money” to their accusers, yet allegedly continued to sexually harass people for years. In an original survey of over 670 alleged incidents of sexual harassment, this Article analyzes the problem of sexual harassment in the creative industries—and the insidious role copyrighted works often played in facilitating a harasser’s ability to carry out and continue the harassment or retaliation. This Article proposes a new way to address sexual harassment in the creative industries: enact federal legislation that prohibits sexual harassment in the development of works of authorship that receive federal copyrights. The proposed legislation is modeled on Title IX’s prohibition of sex discrimination in educational institutions that receive federal funding—which carries, potentially, the ultimate penalty of the loss of federal funding for educational institutions that violate Title IX. Similarly, the proposed federal legislation authorizes a court to order the forfeiture of copyright for any work that has the requisite nexus to the sexual harassment or retaliation, if the violation was willful or wanton. A court-appointed trustee will oversee the copyright in the best interests of the public and the innocent individuals who participated in the development of the underlying work. The work would remain copyrighted for the remainder of the term, but the copyright would no longer be owned by the harasser or any entity complicit in the harassment
In Defense of Culture: Protecting Traditional Cultural Expressions in Intellectual Property
Get PDFFrom Hakuna Matata to Bula to Dia de los Muertos, federal trademark registrations by commercial entities seeking to profit from rising interest in the traditions of indigenous peoples and local communities is commonplace. This issue is only a small part of a much broader issue around indigenous peoples’ traditional knowledge and traditional cultural expressions being appropriated without any benefit to the communities. The misappropriation has attracted global concern, leading to national and international efforts to create legislation to protect the cultural resources of indigenous peoples and local communities around the world. Countries have engaged in national and regional initiatives to solve the issue by adapting their current intellectual property laws or creating sui generis laws specifically geared to remedy the misappropriation of indigenous peoples’ cultural resources, and negotiations are ongoing at the World Intellectual Property Organization to provide sui generis protection for traditional knowledge and traditional cultural expressions. U.S. federal trademark law currently contains provisions that may provide defensive protection to traditional cultural expressions by preventing their registration by nonindigenous entities. However, structural deficiencies in the trademark registration system have resulted in these provisions being virtually ineffective in providing this protection. This Comment first proposes the creation of a wide database of traditional cultural expressions that examiners would be required to consult before granting trademark registrations. The database would be an official acknowledgment of the limitations of the current system of trademark registration in preventing trademarks containing traditional cultural expressions from being granted in violation of the Lanham Act. This Comment then proposes an adaptation of the collective and certification marks regime to strengthen defensive protection and grant positive protection of indigenous peoples and local communities’ cultural resources
A Response to Professor Baird’s Essay on Unwritten Law: Writing Some Unwritten Law
Get PDFRich Levin comments that Professor Baird makes a useful point about the bankruptcy judge’s policing role and the importance of the boundaries of the field in which the players joust. Levin argues, however, that Baird’s unwritten rules are, in fact, available in writing to all who would search. Levin does not consider case law to be unwritten rules and concludes that we appoint judges to provide the elasticity in the rules so that they are applied sensibly and constructively to achieve fair and equitable results in reorganization cases that are consistent with Congress’s design
The Human Right to Education: Definition, Research and Annotated Bibliography
Get PDFThe role and function of education cannot be emphasized enough. Education enhances and develops human abilities, consciousness, identity, integrity, potential, and even power. However, no literature or other instrument comprehensively and consistently defines education. This inconsistent approach to the human right to education is more harmful than beneficial. Considering a wide variety of international instruments and literature, this Article will seek to provide a comprehensive and consistent definition of the human right to education. This Article will also provide an annotated bibliography of various sources which can facilitate the research of scholars and practitioners in this field. A list of primary source instruments, including domestic laws of selective countries, is also introduced
Jinping and the Beanstalk: The Tale of Feuding International Giants and How the Planting of Agricultural Tariffs Cultivated a Trade War
Get PDFThe 2018 Trade War between the United States and China debilitated the world economy. In particular, the Trade War crippled the agricultural industry and resulted in irreversible agricultural waste. Both countries should consult the World Trade Organization (WTO) and use the WTO\u27s dispute resolution process to end the Trade War. In turn, the WTO would likely address the wrongs committed by both countries, the U.S.\u27s national security defense, China\u27s usurpation of WTO regulations, and China\u27s unusual economic structure
Corporate Panel: An Essay on the Unwritten Law of Corporate Reorganizations
No full textCorporate Panel: An Essay on the Unwritten Law of Corporate Reorganizations, by Douglas Baird
Sarah R. Borders, Partner, King & Spalding LLP (Moderator)Douglas Baird, Harry A. Bigelow Distinguished Service Professor of Law, The University of Chicago School of LawRichard Levin, Partner, Jenner & BlockBruce Markell, Professor of Bankruptcy Law and Practice, Northwestern Pritzker School of LawDavid Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Carey Law Schoo
The Dead Hand Revisited
Get PDFPerhaps the oldest and most central question in constitutional theory is what gives the Constitution its special status as fundamental law. One of the oldest answers, and the answer many originalists still give today, is that the Constitution is the command of the sovereign people. Originalism, in its canonical form, may be seen as a corollary of this view. Yet almost before this argument was made, it attracted a powerful criticism, most commonly associated with Thomas Jefferson, who declared: “[T]he earth belongs in usufruct to the living. The dead have neither powers nor rights over it.” This is the famous dead hand problem, which many nonoriginalists have thought decisive, even unanswerable. Needless to say, originalists have not been persuaded. Indeed, many originalists today seem to have forgotten that the dead hand problem requires any response at all. This essay serves as a reminder, examining the best responses to the dead hand problem and finding them wanting. In the process, it clarifies the stakes of the dead hand problem for originalists and nonoriginalists alike. As the United States confronts a mass movement for racial justice and a catastrophic pandemic presenting problems never anticipated by the founders, those stakes have seldom been more pressing
State Obligations Under Public International Law During Pandemics
Get PDFCOVID-19 became an international pandemic affecting every country and threatening a global economic collapse. This Article examines countries\u27 obligations under public international law to prevent and contain pandemics, and subsequent responsibilities to help other countries during pandemics. International Human Rights law recognizes a right to health and includes obligations. Nonetheless, it lacks a sufficient enforcement mechanism. Pandemics are analogous to war; therefore, the Responsibility to Protect (R2P) can help as countries utilize R2P to protect against atrocities. This Article argues that R2P is not merely a responsibility to protect against the worst that humankind has to offer but against the worst that can be offered to humankind