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Rulemaking Petitions in a World Without Deference to Agencies: A New Lease on Life?
No full textOften overlooked in the study and practice of administrative law, rulemaking petitions are means by which interested persons can prompt federal agencies to implement the statutes they administer in particular ways. After the Supreme Court’s 2024 decisions in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and Ohio v. Environmental Protection Agency, 144 S. Ct. 2040 (2024), rulemaking petitions are about to experience a renaissance—one that could reshape environmental law, should environmental advocates choose to leverage the procedure
The Complex Interplay Between Intellectual Property and the Right to Science
No full textIn April 2020, the U.N. Committee on Economic, Social and Cultural Rights released General Comment No. 25, which provides an authoritative interpretation of the right to science—a right that has hitherto not received much attention. In light of this publication and the recent celebration of the 75th anniversary of the Universal Declaration of Human Rights, this article examines the complex interplay between intellectual property and the right to science, with a view toward the human rights challenges brought about by both the COVID-19 pandemic and the arrival of generative AI.The article begins by documenting the historical evolution of the right to science. It provides the much-needed background for policymakers, commentators, practitioners and NGO representatives interested in intellectual property law and policy. The article then turns to insights provided by General Comment No. 25, focusing on the comment\u27s critique of intellectual property rights, the normative support it provides to pro-development efforts in the intellectual property arena, and the potential complications and hindrances to these efforts.The second half of the article applies these insights to three new technological contexts that have recently garnered considerable attention from intellectual property policymakers and commentators: (1) the right to research; (2) the COVID-19 pandemic; and (3) generative AI. The discussion shows that the right to science can play three distinct functions—enabling, discursive and constraining—all falling within a continuum. Looking toward the future, the article concludes by providing three reflections on human rights strategies and practices: (1) the limitations of the use of human rights as trump cards in international intellectual property debates; (2) the need to develop different balancing processes to address tensions and conflicts within the intellectual property and human rights systems; and (3) the importance of appreciating the interrelationship between the three rights recognized in article 27 of the Universal Declaration of Human Rights and article 15(1) of the International Covenant on Economic, Social and Cultural Rights
Global Impact and Legacy: Smith and Martinez’s Framework for International Dispute Systems Design
No full textThis article proposes a framework for analyzing dispute systems. The framework should be useful to attorneys practicing in a wide spectrum of settings who may need to diagnose or design a dispute system, as well as to professors of law who wish to incorporate dispute systems analysis and design into their curricula. The framework is helpful to understand dispute systems design in three contexts: (1) analyzing a system historically to understand its evolution, functioning, and impacts (as might be done by an academic or a system design advisor); (2) advising on the best process to create the design, or more likely redesign, mechanism for a system; and (3) designing (or redesigning) a system itself
TRIPS and the Tradification of Intellectual Property
No full textThe Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) provides a comprehensive set of international minimum standards for the protection and enforcement of intellectual property rights. Signed on 15 April 1994, this agreement shifted the framework for international intellectual property governance by bringing international intellectual property law and trade law closer together. This chapter examines the ‘tradification’ of intellectual property through the TRIPS Agreement, TRIPS-related WTO disputes, and post-TRIPS developments. It begins by recounting the shift of international intellectual property governance from the World Intellectual Property Organization to the GATT/WTO framework. It also explores the role played by the WTO dispute settlement process in tradification. The chapter then recounts the developing countries’ resistance to the tradification project. It shows that this project has provided more benefits to emerging countries than to other less developed WTO members. The chapter concludes by identifying the different trends and forces that have shaped, and will continue to shape, the international intellectual property domain. These forces include the proliferation of trade agreements containing intellectual property chapters, the incorporation of trade law into international law, and other drivers of change such as traditional knowledge and emerging technology
That Old College Try: Judge-Made Monopolies in the Market for Affinity Goods
No full textThere is a large market for goods such as t-shirts, coffee mugs, posters, and baseball caps that are emblazoned with the names and symbols of culturally prominent institutions—universities, athletic teams, musical bands, automobile brands. We buy, wear, and display those goods to express our affinity with the referenced institution. The owners of the trade symbols that adorn these items, which this Article refers to as “affinity goods,” jealously guard what they claim is their sole right, under the trademark laws, to authorize the use of their symbols as decoration. They have brought numerous lawsuits aimed at establishing and enforcing this claimed right, and in the majority of cases have been successful. The result is a monopolized market for goods decorated with these trade symbols. This Article argues that courts that have granted trademark owners monopoly control over decorative uses of their trade symbols have misapplied trademark law, to the detriment of would-be competitors and of consumers. The root cause of their misapplication of the law is an antipathy to what they consider free-riding by these would-be competitors, who seek to extract value from the goodwill that universities, athletic teams, and others have attached to their trade symbols. But this misunderstands the premises of trademark law and the free-enterprise system. Free-riding is generally permissible and even celebrated as a form of competition that spreads benefits throughout society. The exceptions to the permissibility of free-riding, created by the intellectual property laws, are narrow, and they do not grant trademark owners control over decorative uses of their trade symbols. Once the courts begin rejecting the claims of trademark owners that trade mark law grants them the exclusive right to control the use of their symbols to decorate affinity goods, competitors will introduce their own unauthorized merchandise, resulting in lower prices and a broader selection. Appropriate labeling and prominent disclosures will assure that consumers are aware that these goods are not authorized by the trademark owner. Trademark owners can still promote the products they have authorized as the “officially licensed” ones, and consumers who value that imprimatur will know which products to buy and which to avoid
Per Se Non-Takings
No full textIn the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property. To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per se non-takings. Examples of this underappreciated phenomenon are legion. Many involve blanket limitations on takings liability for interference with elements in the bundle of property rights, such as use and exclusion, through doctrines that include nuisance abatement, customary access privileges, and forms of reserved public ownership. In other instances, courts deny compensation for harming or expropriating private property because of overriding policy concerns such as emergency, necessity, law enforcement, and national security. And, more fundamentally, the legal system at times finds the Takings Clause categorically inapplicable—as with the appropriation of value that results from taxation—or redefines some property interests as no longer legitimate—as with the abolition of enslavement.The Article maps the phenomenon of per se non-takings to provide insights into the complex operation of formalist reasoning in constitutional property. Undercutting long-standing convention, it argues that the rich array of normative justifications underlying the various categorical denials of compensation demonstrate that rule-like reasoning can advance social conceptions of property as much as it can bolster the absolutism underpinning the Supreme Court’s recent takings decisions. The Article’s nuanced picture of the contingent interplay of form and substance in takings jurisprudence offers a critical resource for courts, commentators, and advocates facing an era in which contestation over the balance of public imperatives and private rights in constitutional property will inevitably continue—as it must—but be increasingly displaced into per se terms
WOCC Women\u27s History Month Book Display 09
No full textClose up of book display created by Women of Color Collective in the law library March 2025 highlighting the book My Father’s Eyes, My Mother’s Rage by Rose Brik.
The raw and emotionally charged debut poetry collection by Rose Brik. Rose delves into the intricate layers of the human experience with profound insight. Through her poetry she fearlessly navigates themes of the mother and father wound, childhood trauma, domestic violence, grief, mental health struggles, love, motherhood and ultimately, the process of healing. Her words possess the power to unearth buried emotions and memories, evoking a deep sense of empathy and reflection in her readers. ISBN: 978-1738151004.https://scholarship.law.tamu.edu/womens-history-month-2025-photos/1009/thumbnail.jp
CISG (2025 Survey)
No full textThis survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. The CISG governs unless the parties expressly contract otherwise. It governs contract formation, obligations of buyers and sellers, remedies for breach, and passing of risk. It doesn\u27t apply to consumer sales, services contracts, or certain excluded goods like ships or aircraft. This year’s survey includes cases discussing: (1) the applicability of the CISG, (2) the CISG’s preemption of certain tort claims, (3) contract formation, (4) the lack of a formal statute of frauds writing requirement, (5) contract interpretation, (6) conformity of goods, (7) breach of contract, (8) recovery of attorney’s fees, and (9) recovery of prejudgment interest
Oriented data-generating processes: a categorization of ROC curves
No full textDecision makers attempting to classify a binary state of the world may commit two types of errors. Even when the two alternative states have equal prior probabilities and when the two types of errors are equally costly, a classification criterion may be chosen which leads to one type of error being committed more frequently than the other, because of asymmetries in the data that informs their decisions. We formalize this possibility through a categorization of data-generating processes (DGPs), which may be ‘oriented’ towards evidence favoring one of the two alternatives, or which may be ‘unoriented’. We identify the shape properties of the receiver operating characteristic (ROC) curves associated with DGPs in these three categories. We also identify the orientation of DGPs obtained from common distribution families. Then, we illustrate the usefulness of our categorization with several applications, e.g., the standard decision making problem, ranking intersecting ROC curves for particular classes of decision makers, interpreting Bayesian persuasion strategies, and burden of proof assignments in simple litigation settings
Constitution Day Sept 2025 Book Display 06
No full textClose-Up of the U.S. Constitution and other accompanying books on display commemorating the celebration of Constitution & Citizenship Day on display in the law library September 2025.https://scholarship.law.tamu.edu/constitution-day-2025-photos/1006/thumbnail.jp