Penn State Law Legal Studies Research Paper Series最新文献

{"title":"Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China","authors":"L. Backer","doi":"10.2139/SSRN.2195251","DOIUrl":"https://doi.org/10.2139/SSRN.2195251","url":null,"abstract":"From the middle of the last century, socio-economic rights have been bound up in the ideology of the state within national legal orders and through the construction of an important edifice of public international law and institutions. Globalization may be changing both the focus and locus of socio-economic rights, adding a private sector dimension to what had been an almost purely public institution project. The state and public international organizations have been making room for the multinational corporation and global civil society. In lieu of a hierarchically arranged global system of public power managing socio-economic rights, governance fracture and polycentricism have complicated the regulatory landscape, making it sometimes harder to see where public law ends and private affairs begin. This study examines the ways in which the development of socio-economic rights has moved beyond the state in two of the most important emerging free market economies — China and India. After introducing the current formal division of human rights between political and civil rights (a focus of the Global North discourse) and social and economic rights (a focus of Global South discourse), Part II of this Article briefly focuses on the way in which social and economic rights are understood within India and China. Part III then considers two case studies as a means of structuring discussion; the first from India, involving two large multinational enterprises and the rights-based approach; the second from China, involving the development of complex administrative and rules-based private corporate social responsibility (CSR) codes of conduct. Part IV concludes with some general observations about globalization, privatization, and the advancement of human rights regimes. In China, privatization is grounded in state obligation, administrative approaches, and private rule systems. In India, privatization is grounded in individual rights-based and civil and political rights-based judicial approaches. Though both incorporate international norms, they achieve this incorporation in substantially different ways. These examples will serve to suggest the ways in which both privatization and corporate actors now play an increasingly important role in realizing socio-economic rights, and the way approaches to economic and social rights are fracturing at the private as well as the public law level. Indeed, within the forms of privatized frameworks for the development of economic and social rights, India and China evidence the ways in which political division has now also been privatized and replicated — providing an additional space within which the tensions, already quite evident in the state system’s difficulties with human rights, may be replayed.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121049854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Enabling Patentless Innovation","authors":"C. Asay","doi":"10.2139/ssrn.2289326","DOIUrl":"https://doi.org/10.2139/ssrn.2289326","url":null,"abstract":"Do patents promote innovation? Many in open innovation communities — or those that collaborate to create and make technology publicly available under permissive terms — have long argued that patents stifle rather than promote innovation. Indeed, it has become nearly conventional wisdom in open innovation circles that the patent system imposes undue burdens on open innovation communities in particular. This may be especially true because, for a variety of reasons, open innovation communities have traditionally failed to pursue patents on their technologies. Consequently, some argue that the best way for these communities to protect themselves is by bucking this trend and acquiring significant numbers of patents for defensive purposes. Some in open innovation communities have begun to follow this approach. What remains underexplored in this discussion, however, is the extent to which patents actually threaten open innovation communities. Previous assessments treat these communities monolithically in terms of patent risk, but open innovation communities by definition consist of a broad spectrum of participants with distinct risk profiles. This Article disaggregates open innovation communities and assesses the actual risks that patents may pose to different categories of participants in those communities. It argues that several factors diminish the actual patent risks in some cases, at least as they are generally presented. However, the Article also highlights certain previously unexamined patent risks that arise based on incompatibilities between the decentralized nature of open innovation and the centralized nature of patent rights. These risks suggest that using patents to combat patent risks may not be a viable long-term strategy for open innovation communities. Based on these conclusions, the Article then assesses other possibilities for better reconciling the patent system with the phenomenon of open innovation. In particular, it suggests as one such possibility a two-track patent system that would grant open innovators an independent invention defense to patent infringement in exchange for an agreement not to assert patents except defensively. The Article concludes by suggesting that such a system would not only benefit open innovation communities, but may also help address broader concerns with the patent system as well.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116757981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intellectual Property Doctrine and Midlevel Principles","authors":"David Blankfein-Tabachnick","doi":"10.15779/Z38ZF9B","DOIUrl":"https://doi.org/10.15779/Z38ZF9B","url":null,"abstract":"Recent scholarship on intellectual property (\"IP\") law argues that doctrinal and theoretical sophistication in IP requires an understanding of \"midlevel\" principles, purportedly constitutive of IP's positive law. Proponents of this line of scholarship claim these principles serve as a bridge, connecting IP doctrine and practice with deeper foundational philosophical principles. They assert that such midlevel principles - the principles of proportionality, nonremoval, dignity, and efficiency, for instance - explain, predict, and justify IP cases. According to this scholarship, IP doctrine, case outcomes, and statutes are suffused with midlevel principles. In turn, the scholarship treats midlevel principles as consistent with broadly conflicting foundational accounts of property entitlement, from Lockean liberalism on the economic right, to Rawlsian egalitarianism on the left. The result is an account of IP law that unifies practice and the positive law with facially conflicting accounts of foundational property theories. This Essay argues that such claims to IP unification-however revolutionary-are untenable. Drawing from prominent IP cases, including cases addressing the patentability of DNA, this Essay demonstrates that midlevel principles are not rigorously embodied in the positive law of IP and therefore cannot serve to explain or predict case outcomes. Further, these midlevel principles conflict with important liberal \"foundational\" accounts of property, thereby calling into question the justificatory force such principles might hold. Moreover, contrary to Professor Robert P. Merges's view, different foundational principles, whether maximizing wealth, net aggregate value, or the position of the least well-off, will yield different substantive outcomes in IP cases. Accordingly, this Essay shows that any project conjoining this set of midlevel principles with maximizing distributive principles cannot be sustained. A sophisticated understanding of IP, its theory, and crucially its legal doctrine and practice, does not, and should not, include midlevel principles understood to be consistent with such variously competing foundations. Instead, this Essay acknowledges that courts deciding IP cases often invoke forward-looking foundational principles, whether aimed at utility or distributive justice.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124225353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Testing the Effects of Striker Replacement and Employer Implementation of Final Offers on Employer and Union Bargaining Power","authors":"E. Dannin, T. Wagar, Gangaram Singh, M. Dean","doi":"10.2139/ssrn.2150863","DOIUrl":"https://doi.org/10.2139/ssrn.2150863","url":null,"abstract":"Many sorts of quantitative and qualitative empirical research are regularly used to answer questions related to work and workplace issues. However, some issues involving human behavior may be difficult to capture using standard empirical methods. Common barriers include access to people or information; problems with accurate or honest reporting; behavior that occurs over long periods of time; cost; and ethical barriers as to research using human subjects. Important information related to collective bargaining can be difficult to collect for all of these reasons. Participants in collective bargaining may not want outsiders present for all or critical parts of negotiations. They may not be candid about motives or actions, or they may be honest but not fully self-aware as to motives or actions. Bargaining sessions may be long and extend over months or years. In the case of gathering information about collective bargaining within the larger union-employer-employee contexts may require decades of access and involvement. As a result, costs in terms of time and funding and other issues may rule out examining certain sorts of questions using actual participants engaged in collective bargaining. Thus, one important area that would benefit from empirical research – testing the effects of law and proposals for law reform in general and collective bargaining law reform in particular – has so many of these problems that many important issues cannot be tested using standard methods. In addition, testing law reform proposals requires gathering data on actions that have not yet happened. Simulations provide one useful way to overcome many of these problems. In effect, simulations create a law reform laboratory. Of course, simulations are only useful if they are reflect reality. This article examines evidence as to participants’ actions in a simulation used to test various iterations of laws governing how collective bargaining impasses are to be resolved and whether those actions sufficiently mirror those of employer and union negotiators as to provide reliable data on the likely effects of law reform.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122891181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"NLRA Values, Labor Values, American Values","authors":"E. Dannin","doi":"10.15779/Z38JK9Q","DOIUrl":"https://doi.org/10.15779/Z38JK9Q","url":null,"abstract":"The National Labor Relations Act (NLRA) was drafted to be far more than a technocratic exercise. The NLRA's policies do play the role - or should play the role - of any legislative policy: providing guidance in interpreting and applying the law. However, the important social, justice, and economic values expressed in - and underpinning - the NLRA's policies found in sections 1, 2(3), 7, and 13 means the policies also provide a means for transforming the fundamental values of this country. My book, Taking Back the Workers' Law, presents a comprehensive program for using the NLRA's policies - and its values - as part of a litigation strategy to restore its power to promote worker collective action. But, more important, it emphasizes that enforcing the law is but one part of a broader educational and litigation strategy to create a more just and democratic society. In other words, Taking Back the Workers' Law is more than a manual for smart litigation. Its basic premise is that unions cannot survive - and certainly cannot thrive - in a country whose core values are inhospitable to the essence of what unions as worker representatives are and do. Taking Back the Workers' Law urges taking a fresh look at the NLRA, seeing it as the Workers' Law with a potential for reinvigorating the labor movement and saving the soul of this country. That potential springs from the NLRA's policies - not as a list of simple statements of purpose, but, rather, as mapping to values of industrial and social democracy, solidarity, social and economic justice, fair wages and working conditions, equality, and industrial and social peace. The NLRA itself and its policies embody values that were intended to, and still can, transform our workplaces and our society.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127622550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding How Employees' Rights to Organize under the NLRA Have Been Limited: The Case of Brown University","authors":"E. Dannin","doi":"10.2139/ssrn.1240779","DOIUrl":"https://doi.org/10.2139/ssrn.1240779","url":null,"abstract":"The National Labor Relations Board's (NLRB's) 2004 Brown University decision held that graduate student teaching and research assistants were not employees, and therefore, were not protected by the National Labor Relations Act (NLRA). Deciding whether individuals are employees as defined by the NLRA is critical to labor law, as it determines whether individuals have a protected right to engage in freedom of association, self-organization, collective bargaining, and acts of mutual aid or protection. This article explains and critiques the Brown decision as a departure both from precedent as well as from the central purposes of the NLRA. It also examines how Brown University \"foreshadowed other cases in which the Board would ignore precedent and the policies underlying the NLRA.\" The piece advises readers about the importance of precision in criticizing such decisions, because \"if that criticism is not targeted to the specific wrong, it can do damage.\" It further cautions that, while criticizing specific failures to enforce NLRA rights is essential, it is important to not wholly abandon the NLRA as a vehicle for protecting such rights, stating \"We must insist that the promise of the NLRA to actively promote freedom of association in order to create equality of bargaining power between employers and employees . . . is kept.\"","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132129522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Framework for Policymakers to Analyze Proposed and Existing Antitrust Immunities and Exemptions","authors":"D. Bush, Gregory K. Leonard, S. Ross","doi":"10.2139/SSRN.956597","DOIUrl":"https://doi.org/10.2139/SSRN.956597","url":null,"abstract":"This paper proposes a general framework to assist policymakers in framing the key issues and objectively weighing the relevant evidence and policy considerations for the purpose of determining whether to create, modify, or eliminate any statutory immunity to the federal antitrust laws. The framework also sets forth procedural standards for passage of immunities that could be useful to state legislatures. The two key provisions are a sunset provision (so that the effects of the statutory provision could be studied) and the requirement of a detailed legislative history. The latter requirement would greatly enhance the likelihood that the courts would make a proper determination of whether state action doctrine applies in a particular case. Should the legislative history set forth the reasons for the statute, the perceived benefits and costs of the statute, and other factors, it would be easier for the courts to determine whether the conduct at issue fits within the scope of the authorized activity under the statute, and whether the conduct is consistent with the intent of the legislature.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125245143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"You and Me Against the World: Marriage and Divorce from Creditors' Perspective, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution","authors":"Marie T. Reilly","doi":"10.2139/ssrn.910249","DOIUrl":"https://doi.org/10.2139/ssrn.910249","url":null,"abstract":"The Principles of the Law of Family Dissolution addresses the financial rights and obligations of family participants with respect to each other. But, legal regulation of families affects more than just family participants. It affects relationships with outsiders such as credit card issuers, tort claimants, taxing authorities, and medical care providers. Although the Principles expressly do not address these non-family relationships, the subjects the Principles do address necessarily affect creditors in ways that may be surprising. This chapter shows that family law and creditors' rights are inescapably related. Part I explains how two or more persons can collaborate to shield wealth from their creditors and how creditors can protect themselves from this behavior. Part II explains some of the ways marital and divorce law facilitate wealth-shielding behavior. Part III makes some observations about the Principles' potential effect on the balance between the property rights of adults in marital or cohabiting relationships inter se and the rights of their creditors. To understand the full impact of the Principles, we must consider creditors' perspective. Indeed, only when we take into account how creditors will perceive changes in regulation of marriage and families, can we fully appreciate the social impact of the proposed regulation.","PeriodicalId":413086,"journal":{"name":"Penn State Law Legal Studies Research Paper Series","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114854485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}