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The COVID-19 TRIPS Waiver and the WTO Ministerial Decision
No full textIn October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for the partial suspension of the TRIPS Agreement to facilitate the ‘prevention, containment or treatment of COVID-19’. This chapter traces the TRIPS waiver debate from the submission of the original proposal to the final adoption of the Ministerial Decision on the TRIPS Agreement at the Twelfth WTO Ministerial Conference in Geneva in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat COVID-19 and future pandemics
Intellectual property, foreign investment and sustainable development
No full textFocusing on issues lying at the intersection of intellectual property rights, investment promotion regimes, and the UN Sustainable Development Goals, this chapter begins by reviewing the ambiguous causal relationships between intellectual property, foreign direct investment and technology transfer. The chapter then discusses the protection of foreign intellectual property investments through international investment agreements, which are broadly defined to cover investment chapters in international trade agreements. Specifically, the discussion explores the standards of protection commonly found in international investment agreements and the investor-state dispute settlement mechanism. This chapter concludes by identifying eight strategies that host states in the Global South may deploy to ensure that their investment promotion regimes, as used in the intellectual property area, can better align with the UN Sustainable Development Goals
Reframing A Data Sharing Mechanism for the Riparian Nations of Helmand River Basin: Theory of Planned Behavior is Revisited
No full textData and information exchange plays a crucial role in fostering water cooperation between the riparian nations of a shared watercourse. Taking an integrated approach combining Discourse Analysis and Document Analysis, this research aims at elucidating the challenges and the potential opportunities of data and information exchange on the Helmand River, a drought-stricken river basin shared between upstream Afghanistan and downstream Iran. Drawing on the Theory of Planned Behavior (TPB), we offer nuanced perspectives on the data exchange model developed by Wehn. We argue that there are other underlying and essential elements that hinder the meaningful engagement of the riparian nations of the Helmand River Basin in data and information exchange. As water is perceived as a critical national interest for both riparians, decisions regarding water allocation in the basin are deeply embedded in their emotional attachments to the flow of the Helmand River, thereby hindering their effective engagement in data and information exchange. Finally, we discuss the steps and procedures for successful data and information exchange and how commitment to reliable data and information exchange contributes to the re-establishment and enhancement of trust between the two riparian nations
Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence
Get PDFFederal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary
The NCAA\u27s Challenge in Determining NIL Market Value
Get PDFThis Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed by a neutral body. The NCAA is not neutral when it comes to college athletes. Finally, Part IV calls on Congress to enter the NIL dialogue if only to even out the recruiting advantages NIL is creating. While fair market value may be impossible to establish, national uniform laws can be put in place to ensure that recruiting wars depend on educational and athletic opportunities rather than the wealth of collectives. Unless Congress acts, college athletics will remain mired in the Wild, Wild, unregulated West
Virtual Energy
Get PDFFrom employment to education, many areas of our daily lives have gone virtual, including the virtual workplace and virtual classes. By comparison, the way we generate, deliver, and consume electricity is an anachronism. And the electric industry’s outdated business model and regulatory framework are failing. For the last century-and-a-half, we have relied on ever larger power plants to generate the electricity we consume, often hundreds of miles away from the point of production. But the outsized carbon footprint of these power plants and the need to transmit their output over long distances threaten the electric grid’s reliability, affordability, and long-term sustainability. There is hope, however.
We here make the case for “virtual energy” as a diverse suite of widely dispersed resources that can combine and interconnect to provide, in the aggregate, the same services as a far-away conventional power plant. In computing, “virtual” refers to something simulated by software to appear real when, in fact, it does not exist. A virtual computer exists only in the cloud—and commonly consists of multiple computers that interconnect to maximize performance. In the same vein, solar panels, battery storage, electric vehicles, and other virtual energy resources (VERs) can coordinate to become virtual power plants that mimic, and ultimately replace, conventional power plants. Along the way, VERs offer a cost-effective strategy for making our electricity system more sustainable, more reliable, and more democratic.
To realize virtual energy’s full potential, however, requires a radical rethinking of how the electric grid is managed, and by whom. While large-scale power plants connect to high-voltage transmission networks run by independent operators, most VERs tap into the low-voltage distribution grid. For much of the country, that grid is owned and operated by electric utilities who view virtual energy as a threat to their business model of delivering electricity they generate in-house. For VERs to renew America’s ailing electricity sector, they must first gain easier access to the grid. To achieve this goal, we propose a novel approach to grid governance: the creation of Independent Distribution System Operators (IDSOs) to level the playing field and promote competition among traditional and virtual sources of energy. Incumbent utilities may be reluctant to embrace such radical change but, we argue, can be persuaded to enter into a grand bargain modeled after the great compromise over workers’ compensation that reshaped relations between employers and employees at the dawn of the 20th century
Four Futures of Chevron Deference
Get PDFIn two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s policymaking utility over the long haul, given certain institutional constraints that the Supreme Court justices must operate under. The model produces four possible futures of Chevron deference, with each possible future’s probability depending on how certain the Court is about the future allyship or opposition of the executive branch.The essay unfolds as follows. Part I provides a brief political history of Chevron deference. Recent work in this vein has helped us to appreciate much better that the rise and decline of Chevron deference was politically contingent. Part II builds on this insight, formalizing a simple model thatcan tell us under what political conditions something like Chevron deference is likely to arise, as well as when it is likely to fade or disappear completely. The model I offer differs from other accounts that proclaim Chevron’s “inevitability” in its parsimonious focus on political circumstance andpreference maximization, as well as in its forthright acknowledgment that Chevron may very well not be inevitable in any given moment if the right political circumstances for its erosion exist. Part III then engages with political science literature to argue that, while political conditions do not favor Chevron deference currently, in the long run they are almost certain to. Indeed, I will argue that regime theory teaches us that the conditions favoring Chevron deference are a natural default for our political system. Thus, if the model bears any relationship to the reality of what is really driving the Court’s construction of deference doctrines, we likely have not seen the last of Chevron deference
FULL SPEED AHEAD? Reexamining Texas\u27s Approach to Eminent Domain
Get PDFProperty rights are traditionally held sacred in Texas. But through eminent domain, landowners lose their property rights, purportedly in service of the broader public. Sometimes, the legislature confers eminent domain power on for-profit companies. Landowners are then forced to surrender their property while the companies benefit economically. The result is that landowners are stripped of the right to fully use and enjoy their property.
The recent Texas Supreme Court case, Miles v. Texas Central Railroad & Infrastructure, Inc., demonstrates the tension between property rights and economic development created by eminent domain. Facially, Miles concerns whether a for-profit company’s high-speed rail qualifies as an interurban rail or railroad for purposes of eminent domain authority. But like many cases involving eminent domain, Miles is really about power: who has it, where it comes from, and what happens to those who do not have it. This Article functions as a starting point for reexamining how the Texas Legislature can better balance the scales between a landowner’s property rights and the economic benefits of eminent domain
Expanding the Ban on Forced Arbitration to Race Claims
Get PDFWhen Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers.This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results.This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA’s ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race
Left Behind: Funding Climate Action in the Global South
Get PDFGlobal clean energy transition envisions zero greenhouse gas emissions by 2050, as set by the United Nations. Consequentially, developed economies have made giant strides in reducing greenhouse gas emissions and achieving full decarbonization. However, the opposite remains true in the Global South, lagging in financing its climate action. Despite being disproportionately impacted by climate change, financial efforts by developed economies and the Global South have failed in placing the latter’s countries at par with clean energy investments of developed countries. Absent adequate financing of climate action in the Global South, the net zero goal will be nothing but a mirage.
This Article contends that financial incapacity to finance climate change has left the Global South behind in the global energy transition movement and, if left unchecked, will sabotage global energy transition efforts. Using Africa as a case study, this Article explores the need to develop realistic financing options for global energy transition in the region. This Article recognizes that financing climate change is expensive and much more strenuous on African economies that barely have the fiscal infrastructure to finance the transition. It unpacks the extant climate financing avenues and the inherent challenges in attracting climate finance in Africa and argues for improvements