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Foreword: Global Justice, History, and Law: Between Fela\u27s Teachers Teaching Nonsense and Bob Marley\u27s Small Axe for a Big Tree
Get PDFGlobal Injustice, Past and Future: Examples from Arab Uprisings, International Law, and Torture
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The North American Free Trade Agreement and Its Legacy on the Resolution of Intellectual Property Disputes
Get PDFThis essay focuses on NAFTA and the contributions that this regional trade pact made to protect IPR and settle intellectual property (IP) disputes. It also explores the legacy of NAFTA in the context of the eventual WTO, and the rights provided by the TRIPS Agreement that was concluded as part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. Section II provides a brief historical background on how NAFTA fit into the world as countries began aligning themselves by creating various trade agreements. Section III surveys the provisions and legacy of NAFTA with respect to IPR, and the lack of real progress in the resolution of disputes using NAFTA\u27s pioneering independent arbitration process. Next, section IV of this essay looks to the manner in which Mexico has attempted to comply with NAFTA. Section V of this essay examines NAFTA\u27s legacy for the rest of the Americas, and section VI concludes with a discussion on how NAFTA can further improve the protection of IPR in the future
Taming the Beast of Health Care Costs: Why Medicare Reform Alone is Not Enough
Get PDFThe Patient Protection and Affordable Care Act\u27 ( ACA ) has, as its primary goal, universal access to health insurance for all American citizens and legal residents. When fully implemented, the ACA will provide insurance to an additional 32 million people who are currently uninsured and to many millions of others who are underinsured. While universal health insurance is certainly a public health goal that this country has sought for many decades, the additional lives that will be added to the insurance rolls as well as new minimum coverage requirements mandated by the ACA will create fiscal burdens for the already expensive U.S. healthcare system. In 2009, Americans spent $2.5 trillion or 17.6 percent of gross domestic product ( GDP ) on health care, a number that is predicted to continue to rise absent serious interventions. The ever-escalating costs of health care as well as the anticipated costs of healthcare reform for the additional 32 million Americans who will be required to have health insurance by 2014 may well prove to be a crucial tipping point for an already fiscally overblown healthcare system
The Coordination Conundrum
Get PDFJustice Souter\u27s oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court\u27s reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon which the coordinated and independent dichotomy rests. This Article argues that the Court has introduced a new standard, used in both cases-a coordination standard-that conflates the government\u27s interest in restricting speech with the nature of the speech at issue. This leads to a largely outcome-determinative standard that is not content neutral, and is a cardinal departure from settled First Amendment law. This Article tests its hypothesis by applying the contradicting uses of coordination found in the two cases to a hypothetical test case restrictions on private aid to impoverished foreign nations in furtherance of a new development model-and proposes a framework for future analysis of First Amendment issues which avoids the pitfalls revealed by the coordination divide
Some Thoughts on the Porous Boundary between Ordinary and Extraordinary Frauds
No full textThis is a book review of Tom Baker and Sean Griffith’s \u27Ensuring Corporate Misconduct\u27. Their book provides an exhaustive and illuminating analysis of how corporations contract for director and officer (D&O) liability insurance. Based on extensive interviews with insurance carriers and corporate risk officers, Baker and Griffith conclude that D&O liability insurance has created a moral hazard within the public corporation. Managers, who have incentives to take advantage of shareholders, are inadequately deterred by civil liability for securities fraud because D&O insurance effective shields them from any payout. Accordingly, Baker and Griffith argue for reforms that would reduce this moral hazard.
Baker and Griffith’s arguments are persuasive and should make any reader think twice about the value of D&O insurance. Their critique, however, seems to make light of the fact that corporate fraud can trigger criminal investigations, and ultimately criminal penalties for individuals who engage in or conspire to commit fraud. Although the authors agree that D&O insurance provides no protection against criminal penalties and investigations, they nevertheless presume that much of the conduct that gives rise to civil securities fraud litigation (so-called “ordinary fraud”) is unlikely to trigger criminal and public enforcement proceedings. This Review questions whether there in fact exists such a distinct boundary between “ordinary” and “extraordinary” corporate frauds. To the contrary, one would expect the rational corporate officer to be wary that any fraud case might trigger an investigation by public enforcers. If that is the case, then the porous boundary between criminal and civil fraud may lessen Baker and Griffith’s rightful concerns about moral hazard. With these thoughts in mind, the Review then addresses several of Baker and Griffith’s proposed reforms
Find the Cost of Freedom: The State of Wrongful Conviction Compensation Statutes Across the Country and the Strange Legal Odyssey of Timothy Atkins
Get PDFTim Atkins was wrongfully convicted of a crime he did not commit and spent 23 years in prison. Although compensation statutes like California\u27s have admirable goals, Tim Atkins\u27s case fell through some substantial cracks that prompted the Authors to write this Article. As two of the many lawyers who have worked on Tim\u27s case over the years, it has been an incredibly frustrating journey to see him denied compensation after all that has been done to prove his innocence. California\u27s statute is flawed and is being misinterpreted, just as other compensation statutes are flawed and misinterpreted around the country. This Article looks at those statutes and contextualizes the problems using Tim\u27s legal odyssey as a framework. Specifically, this Article addresses the following questions:
1. What should the process be for adjudicating innocence compensation claims?
2. What should the standard be for a successful claim?
3. Should the court record be given any deference in the compensation process?
4. Should contributory negligence be considered?
5. How much should exonerees be compensated?
6. What should the time requirements be for filing and responding to a compensation claim?
7. Should a denial of compensation be appealable?
8. Should compensation be applied retroactively?
9. Should compensation be assignable