The American University law review最新文献

{"title":"Fear of Oversight: The Fundamental Failure of Business-like Government","authors":"Steven L. Schooner","doi":"10.2139/SSRN.283369","DOIUrl":"https://doi.org/10.2139/SSRN.283369","url":null,"abstract":"This article discusses the National Performance Review's (NPR's) broad-reaching effort to reinvent government by making it more businesslike, focusing on its successful effort to reform the Federal procurement process. The article shows that the reformed system couples greatly increased buyer discretion with dramatically reduced oversight of government spending - both internal and external. This article asserts that this combination erodes the public's confidence in the procurement system, violates established norms, and is antithetical to a host of Congressional mandates and policies. More particularly, the article provides empirical evidence of the dramatic, sustained reduction in government contract related litigation during the 1990's. The article expresses concern because the trend coincided with two significant changes: (1) a large-scale Congressionally-mandated reduction in acquisition personnel, which materially reduced internal oversight, and (2) the sweeping NPR re-invention initiatives, which considerably increased purchaser discretion. The article offers a provisional list of explanations for the decrease in litigation. It asserts that, in this context, litigation - a form of external monitoring initiated by private attorneys general - is a public good. Reduced litigation relating to the award and performance of the government's contracts threatens the public's trust in the reinvention agenda. Litigants, in this context, serve the public interest while pursuing their own self interest. Moreover, the need for the private sector to provide this service increases as internal oversight decreases. The article suggests that, despite the success of procurement reform, the current paradigm elevates its facially attractive norms - efficiency and discretion - at the expense of other established, yet apparently undervalued, norms that guide the procurement system, e.g., transparency, integrity, and competition. It cautions that businesslike government has diluted existing internal and external oversight mechanisms and threatened sustained public confidence in the procurement system.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"197 1","pages":"16"},"PeriodicalIF":0.0,"publicationDate":"2001-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76953557","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":"Shifting the Paradigm in E-Commerce: Move Over Inherently Distinctive Trademarks--The E-brand, I-brand and Generic Domain Names Ascending to Power?","authors":"Xuan-Thao N. Nguyen","doi":"10.31228/osf.io/ptyzu","DOIUrl":"https://doi.org/10.31228/osf.io/ptyzu","url":null,"abstract":"50 American University Law Review 937 (2001)","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"30 1 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76617794","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":"From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century","authors":"Peter K. Yu","doi":"10.2139/SSRN.245548","DOIUrl":"https://doi.org/10.2139/SSRN.245548","url":null,"abstract":"During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China. Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By 1996, it had become obvious that the existing American foreign intellectual property policy was ineffective, misguided, and self-deluding. The United States not only lost its credibility, but its constant use of trade threats helped China improve its ability to resist American demands. Such threats and bullying also created hostility among the Chinese people, making the government more reluctant to adopt Western intellectual property law reforms. Thus, scholars, policymakers, and commentators have called for a critical assessment and reformulation of the existing ineffective policy. While many commentators have criticized the wrong-headed U.S.-China intellectual property policy, so far no scholarship has utilized the constructive strategic partnership model pronounced in the Joint Statement issued after the 1997 U.S.-China Summit. This Article argues that this partnership model not only presents a new model upon which the two countries are to build their diplomatic relations, but also provides a conceptual framework under which a new bilateral intellectual property policy is to be developed. This Article traces the breakdown of the American intellectual property policy toward China and examines the constructive strategic partnership model. To help policymakers formulate a new policy, this Article develops a twelve-step action plan that aims to cultivate a more stable and harmonious relationship of the two countries, to foster better mutual understanding between each other, and to promote a self-sustainable intellectual property regime in China.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"41 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2000-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87499860","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":"Review of the 1999 Patent Law Decisions of the United States Court of Appeals for the Federal Circuit","authors":"Phil N. Makrogiannis","doi":"10.1089/blr.2006.25.355","DOIUrl":"https://doi.org/10.1089/blr.2006.25.355","url":null,"abstract":"","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"24 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83544528","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":"Pediatric testing of prescription drugs: the Food and Drug Administration's carrot and stick for the pharmaceutical industry.","authors":"K R Karst","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"49 ","pages":"739-72"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21893283","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":"Review of the 1999 Trademark Decisions of the United States Court of Appeals for the Federal Circuit","authors":"Stephen R. Baird","doi":"10.1089/073003102761698025","DOIUrl":"https://doi.org/10.1089/073003102761698025","url":null,"abstract":"ion. Bancorp, 687 F.3d at 1273-74 (“[T]he determination of patent eligibility requires a full understanding of the basic character of the claimed subject matter.”) For the ’505 Patent, the end result of “maintaining the state” is described as the innovation over the prior art, and the essential, “most important aspect”: The most important aspect of the user interface of the present invention is not that it has tabs or that it enables a certain amount of non-sequential (non-linear) access to the various form sets within a virtual application, but that it maintains data state across all panes. INTERNET PATENTS CORPORATION v. ACTIVE NETWORK, INC. 10 Col. 9 ll. 45-49. IPC stresses the unconventionality of the claim elements of maintaining the state, furnishing icons on a web page with a browser having Back and Forward navigation functions, and displaying an online application form. IPC Supp. Br. at 9-10. We agree with the district court that the character of the claimed invention is an abstract idea: the idea of retaining information in the navigation of online forms. Mayo notes the insufficiency of “well-understood, routine, conventional activities previously known” to found an “inventive concept.” 132 S. Ct. at 1298. The ’505 Patent specification refers to the “browser Back and Forward button functionality” as “conventional.” Col. 3 ll. 5-10. The specification also refers to the Back and Forward functionality as “well-known” and “common,” e.g., “Furthermore, the common convenience of the ‘Back’ and ‘Forward’ buttons (provided in all well-known Internet browsers) generally does not function properly when filling in online forms.” Col. 2 ll. 37-40. The specification also states that the use of internet web pages for users to fill out online applications was brought about by “[t]he increasing popularity of the Internet and the World Wide Web,” and describes these online application systems as generating information to the user based on information inputted by the user. Col. 1 ll. 40-60. As the district court observed, claim 1 contains no restriction on how the result is accomplished. The mechanism for maintaining the state is not described, although this is stated to be the essential innovation. The court concluded that the claim is directed to the idea itself—the abstract idea of avoiding loss of data. IPC’s proposed interpretation of “maintaining state” describes the effect or result dissociated from any method by which maintaining the state is accomplished upon the activation of an icon. Thus we affirm that claim 1 is not directed to patent-eligible subject matter. INTERNET PATENTS CORPORATION v. ACTIVE NETWORK, INC. 11","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"7 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79005104","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":"Beyond 43 million: the \"regarded as\" prong of the ADA and HIV infection--a tautological approach.","authors":"B K Esser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"49 2","pages":"471-503"},"PeriodicalIF":0.0,"publicationDate":"1999-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21844493","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":"How Much Fuel to Add to the Fire of Genius? Some Questions About the Repair/Reconstruction Distinction in Patent Law","authors":"Arthur J. Gajarsa, Evelyn Aswad, Joseph S. Cianfrani","doi":"10.2139/ssrn.3474127","DOIUrl":"https://doi.org/10.2139/ssrn.3474127","url":null,"abstract":"Does the right to exclude in patent law give patentees the right to prevent repairs of their inventions? Typically, patentees are considered to have given to the purchasers of their patented devices the authority to use the patented devices. Generally, such authority also includes the ability to repair the device. This grant of authority, however, does not include an unrestricted license to “make” another device. At some point, repairs may be so extensive that they constitute a reconstruction, or unauthorized “making,” of the patented device. The distinction between minor repairs and extensive repairs that result in an impermissible reconstruction is not always clear. This Article raises issues for discussion with respect to the distinction between permissible repair and impermissible reconstruction. Part I explores the emerging inconsistencies in the repair/reconstruction jurisprudence. Part II discusses problems patentees may face in attempting to redefine what constitutes “impermissible reconstruction” through private contracts with purchasers of their patented goods.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"33 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86352178","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":"The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law","authors":"Alan K. Chen","doi":"10.2139/SSRN.125048","DOIUrl":"https://doi.org/10.2139/SSRN.125048","url":null,"abstract":"Individuals may file damages actions against public officials who violate their constitutional rights. The Supreme Court, however, has held that officials are entitled to qualified immunity from such actions if no reasonable official would have believed their conduct violated clearly established constitutional rights. This doctrine is largely driven by the goal of minimizing the social costs of constitutional tort litigation. This Article challenges the conventional understanding of qualified immunity, arguing that the Court has created an analytical paradox by promoting early pretrial resolution of qualified immunity claims on summary judgment, while simultaneously articulating the relevant legal directive as a reasonableness standard, which requires an inevitably fact-intensive inquiry. The Article argues that the confluence of this fact-based immunity standard and conventional summary judgment doctrine has burdened the federal courts and civil rights litigants in their comprehension and application of the doctrine in civil rights litigation. By disaggregating the distinct doctrinal components of qualified immunity and summary judgment, the Article illustrates how these two gatekeeping mechanisms create a confusing and self-contradictory doctrinal structure that makes pretrial resolution of immunity claims unlikely. Moreover, even where qualified immunity's factual nature does not entirely preclude summary resolution of constitutional tort claims, it substantially increases litigation costs, thus conflicting with the doctrine's central objective. The modest step of acknowledging qualified immunity's factual nature will lead to a clearer understanding of the doctrine and may promote a reconsideration of its benefits and burdens.","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"12 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"1998-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86064638","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":"Native Americans and the Vaccine Act: excluding those we found here.","authors":"J D Leach","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80193,"journal":{"name":"The American University law review","volume":"46 6","pages":"1935-43"},"PeriodicalIF":0.0,"publicationDate":"1997-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21050964","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}