Undocumented consciousness: Citizenship and illegality in the lives of US citizen youth

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.     

WTO: US and Argentina settle dispute over patents and data protection

In May 2000, supplementing an earlier complaint filed in May 1999, the US filed a complaint against Argentina, alleging that its patent laws violate the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement). The gist of the US complaint was that Argentina's law failed to provide: (1) adequate protection against "unfair" commercial use of undisclosed test data submitted in order to get market approval of pharmaceutical products; (2) certain safeguards for compulsory licences on an invention granted on the basis of inadequate working by the patent holder; and (3) adequate measures to prevent infringements of patent rights. The US also alleged that Argentina denies certain exclusive rights of patent holders, such as the exclusive right to import the patented product into the country. At the end of May 2002, the US and Argentina notified the WTO that they had reached a "mutually agreed solution," without prejudice to their respective rights and obligations under WTO agreements, and the US has withdrawn its complaint.     

美国单边主义对抗WTO多边主义的第三回合——“201条款”争端之法理探源和展望

本文概述2002—2003年“201条款”争端案的内容、进程和结局,并回溯到1994年的美国“主权大辩论”以及1998—2000年的“301条款”争端案,进行宏观的综合考察,指出“201条款”争端案实质上乃是晚近十年来美国单边主义与WTO多边主义大交锋的第三回合,是此前两次大交锋的继续和发展。三次交锋的实质都是美国经济霸权与各国经济主权之间限制与反限制的争斗;都是植根于美国在1994年“入世”之初就已确立的既定方针:力图在“入世”之后仍然推行其单边主义政策,以维护和扩大其既得的经济霸权。美国在“201条款”争端案中败诉之后,对上述既定方针毫无改弦易辙之意,其单边主义的霸权顽症可能随时复发,WTO多边主义仍然前途多艰。     

Property rights in personal data: Learning from the American discourse

This contribution is an attempt to facilitate a meaningful European discussion on propertization of personal data by explaining the idea as it emerged in its ‘mother-jurisdiction’, the United States. The piece starts with an overview of how the current US legal system addresses the data protection problem and whether, according to the US commentators, the law does it effectively. Furthermore, the contribution presents propertization of personal information as an alternative to the existing data protection regime and one of the ways to fill in the alleged gaps in the US data protection system. The article maps the US propertization debate. Pro-propertization arguments are considered from economic perspective as well as from the perspective of the limitations of the US legal and political system. In continuation it analyses proposals on how property rights in personal data would have to be regulated, if at all, in case the idea of propertization is accepted. The main points of criticism of propertization are also sketched. The article concludes with a brief summary of the US propertization discourse and, most importantly, with a list of the lessons Europeans can learn from their American counterparts engaging in the debate in the home jurisdiction. Among the main messages is that the outcome of the debate depends on the definition of the problem propertization is called on to tackle, and that it is the substance of the actual rights with regard to personal data that matters, and not whether we label them as property rights or not.     

The Evolving American Policy on Investment Protection: Evidence from Recent FTAs and the 2004 Model BIT

Twelve years after the inception of the North American FreeTrade Agreement (NAFTA), the US policy on the protection offoreign investment is evolving. This article compares the provisionson investment in the recent US free trade agreements (FTAs)and the 2004 model bilateral investment treaty (BIT) with NAFTA’s.While most of the provisions are similar, some differences canbe identified, both in substantive and procedural forms. Weexplain this evolution by a learning process of the US administrationfrom the NAFTA experience. We argue that the new features ofthe FTAs and of the revised model BIT result from the US interestin reaching a better balance between the protection of investmentand the protection of state sovereignty. This American concernstems from a reaction to the claims filed by foreign investorsunder NAFTA Chapter 11, at least some of which were perceivedas ‘frivolous’ by the US government. However, therecent US FTAs and model BIT do not reveal a thorough policyreorientation but rather adjustments to the policy at the basisof NAFTA’s investment chapter.     

‘US, China and the Economics of Climate Negotiations’

Despite the entry into force of the Kyoto Protocol, the US decision not to comply with its Kyoto commitments seems to drastically undermine the effectiveness of the Protocol in controlling GHG emissions. Therefore, it is important to explore whether there are economic incentives that might help the US to modify its current decision and move to a more environmentally effective climate policy. For example, can an increased participation of developing countries induce the US to effectively participate in the effort to reduce GHG emissions? Is a single emission trading market the appropriate policy framework to increase the signatories of the Kyoto Protocol? This paper addresses the above questions by analysing whether the participation of China in the cooperative effort to control GHG emissions can provide adequate incentives for the US to re-join the Kyoto process and eventually ratify the Kyoto Protocol. This paper analyses three different climate regimes in which China could be involved and assesses the economic incentives for the major world countries and regions to participate in these three regimes. The main conclusion is that the participation of the US in a climate regime is not likely, at least in the short run. The US is more likely to adopt unilateral policies than to join the present Kyoto coalition (even when it includes China). However, a two bloc regime would become the most preferred option if both China and the US, for some political or environmental reasons, decide to cooperate on GHG emission control. If the US decides to cooperate, the climate regime that provides the highest economic incentives to the cooperating countries is the one in which China and the US cooperate bilaterally, with the Annex B_?US countries remaining within the Kyoto framework.     

BioChem Pharma wins patent dispute over 3TC

In December 2000, the US Board of Patent Appeals and Interferences, a branch of the US Patent and Trademark Office (USPTO), upheld BioChem Pharma's claim to hold the patent on 3TC.     

Extradition on the Two Sides of the Atlantic: The U.S. Model as Blueprint for the European Arrest Warrant?

This article compares the EU’s enhanced extradition model, in the form of the European Arrest Warrant, with the more mature American interstate extradition mechanism. The US Constitution’s Extradition Clause mandates interstate extradition and, after a slow start-up, has led to a smooth and obligatory procedure. In the EU, the European Arrest Warrant, based on the principle of mutual recognition, has made a number of significant changes to traditional extradition and has simplified extradition between EU member states. Yet, it does not operate without problems and the first decade has revealed what the difficulties with extradition on the basis of mutual recognition are. The comparison with the US seeks to draw lessons from the US experience. The main finding is that in a number of areas the US example can direct the EU toward further improving its extradition scheme, while at the same time it is not realistic to expect that the EU will achieve a similar degree of harmony as in the US, required for an obligatory extradition scheme. The article argues that it is important to recognise these limits in order to make the European Arrest Warrant a success.     

CHINA’S WTO PARTICIPATION IN ANTI-DUMPING DISPUTES (2001–2011)

The anti-dumping war between the US and China has attracted much attention lately, especially after a March WTO ruling and a November US domestic court ruling on the issue in 2011. While the former held that the current US method of applying countervailing and anti-dumping duties simultaneously on imports from China and other non-market economies was “inconsistent” with the WTO rules, the latter ruled that such action was “illegal” under the US countervailing law. China has been one of the most frequent anti-dumping investigation targets by both developed and developing countries for decades. Although it currently has more than one hundred anti-dumping actions against its trading partners at the domestic level, China is a very new player of anti-dumping litigation at the WTO level. China filed its first WTO claim on anti-dumping in December 2007 against the US, since when it has made frequent appearance at the WTO dispute settlement in this regard. This Article examines China’s participation in anti-dumping disputes during the first ten years of its WTO membership, five as complainant and four as respondent. The alleged undervalued Chinese currency has been claimed to provide unfair price advantages to Chinese products and consequently tops trade frictions between China and its trading partners. It to some extent contributes to the rising anti-dumping disputes of China. With the continuing pressure to appreciate the Chinese currency globally as well as the current debit crisis in the EU, more anti-dumping and countervailing investigations against China are expected to emerge as countries are pushing more exports to assist the gloomy domestic economies. This becomes more likely taking into account the mounting claims on the job lost in the US due to the flux of cheap and competitive Chinese products.     

美国自由贸易协定研究——以生物技术内容为视角

在生物技术企业巨头的主导下,近年来美国自由贸易协定竭力维护美生物技术利益集团的利益,在食品、农业、生物多样性的私有化和商品化以及在全球范围内推广转基因生物等方面均表现出比TRIPs协议更加强烈的意图,推行更加强硬的做法,对签约国家和地区的生物安全、农业生产和粮食安全造成威胁.我国应当高度重视自由贸易协定中的生物技术内容,从维护本国生物安全的角度出发商定条款内容,保护国家生物安全和粮食安全.     

美国行政协定的合宪性分析

对三种具体行政协定的合宪性讨论随着美国总统和国会之间就对外贸易政策制定权中主导权的争夺而开始兴起。大多数学者和美国法院都承认行政协定的合宪性。确认美国行政协定的合宪性,有利于理清行政协定和美国对外贸易政策的关系,有利于利用行政协定更好地实施美国对外贸易政策,促进其不断发展。     

On the Use of Law in Transatlantic Relations: Legal Dialogues between the EU and US

Law plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non‐bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so‐called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.     

Global Environment Threats and a Divided Northern Community

The EU, Japan, and the US now share many environmental norms, laws, and institutions and cooperate on international environmental matters through numerous bilateral and multilateral channels. They disagree, however, on how to deal with some of the most serious issues facing the global environment and the quality of human life including wide-scale biodiversity loss, climate change, the use of genetically modified (GM) organisms; the trans-boundary movement of hazardous wastes, and chemical safety. As these are all issues that require the involvement of developing countries if global environmental protection efforts are to be effective, the discord that exists among the Northern states is of tremendous significance. The US has pulled out of the Kyoto Protocol arguing that the treaty is poorly designed and would be detrimental to the US economy. Japan and the EU have had to try to find a way to bring the treaty into force without the participation of the world’s largest emitter of greenhouse gases and to convince participating countries to meet their targets even though this may put them at a competitive disadvantage. In the case of biodiversity loss, although the US initiated international negotiations on biodiversity preservation, it has refused to join the EU and Japan in ratifying the Convention on Biological Diversity. There are also differences between the US, on the one side, and Japan and the EU on the other, regarding the use of GM organisms. This article analyses the reasons for the differences that have emerged among northern states in their international environmental policy positions and what the implications of this northern policy divide are for the effectiveness and legitimacy of international environmental protection efforts.     

When Art and Commerce Collide: Colorization and the Moral Right

ABSTRACT

This article challenges the dominant framework that drives US public diplomacy initiatives and insists that, short of major structural changes, US public diplomacy lacks ethical legitimacy. Based on a review of past US public diplomacy practices, the article finds that these efforts were mainly characterized by a one-way flow of information and an emphasis on image management. Using the theories of hegemony, American exceptionalism, Orientalism, and cultural imperialism, the author lays a theoretical framework for analyzing public diplomacy. The author suggests that, for public diplomacy to move beyond propaganda, it needs to incorporate two-way communication and symmetry.     

Listening to children: Participation rights of minors in Italy and the United States

This article compares laws and policies in Italy and the US regarding children's right to be heard and to engage in the life of the community. Italy has adopted a strong children's rights perspective, informed by the principles of the Convention on the Rights of the Child (CRC). The US, with its pre-modern constitution and resistance to international law, has been slow to recognise children's rights to voice and agency. The US Supreme Court has extended some due process rights to children in criminal court proceedings, but the US lags far behind Italy in recognition of children's rights to participate in civic life and collective decision-making. Child well-being rankings may reflect these differences in attitudes towards children's rights. Italy ranks significantly higher than the US on objective measures of child well-being and Italian children report superior peer and family relationships.     

The US SOPA and PIPA − a European perspective

According to US House Judiciary Chairman Lamar Smith, ‘the theft of American intellectual property costs the American economy over $100 billion annually?…?and thousands of jobs’. Both houses of the US congress have been working on corresponding bills intending to give the US government and copyright holders more effective tools to curb access to so-called rogue websites that disseminate copyright-infringing content, especially those registered outside the US. Following a wake of protest, the Protect IP Act (PIPA) by the Senate and its counterpart in the House of Representatives, the Stop Online Piracy Act (SOPA), were postponed ‘until there is wider agreement on a solution’. This paper examines how the bills tried to strengthen the ability of US law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. It will also outline the recent developments and assess the implications that the bills have for freedom of speech online and cybersecurity, not only in the US but also in Europe.     

美国法学教育和法律职业养成

美国法学教育是普通法传统下三年制研究生层次的职业教育。美国法学院力求教会学生学会在广泛学科领域中进行法律分析、掌握法律技能和理解职业价值。美国法学教育也遭到了各种各样的批评,有人批评法学院是否有效地为学生从事法律职业提供了充分准备。本文对美国法学教育作了概括介绍,分析了美国法学教育面临的挑战,并介绍了对当前的法学教育模式所提出的批评等内容。     

Recovering fraudulent claims for Australian federal expenditure on pharmaceuticals and medical devices

The Australian Federal Government expends increasingly large amounts of money on pharmaceuticals and medical devices. It is likely, given government experience in other jurisdictions, that a significant proportion of this expenditure is paid as a result of fraudulent claims presented by corporations. In the United States, legislation such as the False Claims Act 1986 (US), the Fraud Enforcement and Recovery Act 2009 (US), the Stark (Physician Self-Referral) Statute 1995 (US), the Anti-Kickback Statute 1972 (US), the Food, Drug and Cosmetic Act 1938 (US), the Social Security Act 1965 (US), and the Patient Protection and Affordable Care Act 2010 (US) has created systematic processes allowing the United States Federal Government to recover billions of dollars in fraudulently made claims in the health and procurement areas. The crucial component involves the creation of financial incentives for information about fraud to be revealed from within the corporate sector to the appropriate state officials. This article explores the opportunities for creating a similar system in Australia in the health care setting.