Tuesday, October 6, 2015

Doctors Without Borders Strike a Tragedy, Likely Not a War Crime

By Professor David Glazier

As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).

Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.

In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.

Monday, October 5, 2015

Prof. Lazaroff's Law Review Article Cited in Pivotal Opinion

Professor Emeritus Dan Lazaroff’s law review article, “The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?” from the Oregon Law Review is cited in the U.S. Court of Appeals for the Ninth Circuit's opinion in O’Bannon v. NCAA.
The NCAA began to strengthen its enforcement capabilities in 1948, when it adopted what became known as the “Sanity Code”—a set of rules that prohibited schools from giving athletes financial aid that was based on athletic ability and not available to ordinary students. See Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329, 333 (2007). The Sanity Code also created a new “compliance mechanism” to enforce the NCAA’s rules—“a Compliance Committee that could terminate an institution’s NCAA membership.” Id.
Professor Emeritus Dan Lazaroff commented on this landmark decision in publications like the The Los Angeles Times, Pittsburgh Post-Gazette, Inside Higher Ed., and The Daily Journal.

Thursday, October 1, 2015

4th Annual US-China IP Conference 2015

Loyola Law School, Los Angeles, Berkeley Center for Law & Technology, and Renmin University of China Law School organized the fourth annual US-China IP Conference to compare developments and trends in two countries critical for any IP creation and protection strategy. Leading scholars, government officials and practicing lawyers from China will join US experts to examine vital current topics including: new trends in transnational technology investment, developments in copyright, and cross-border IP enforcement.

Professor Seagull Song and Director of the Asia-America Law Institute, Professor Justin Hughes, and Professor Jeffrey Atik will be speaking at this event.

Year in Review: Top Chinese Entertainment Law Cases between 2014-15
The year of 2014 has been a fantastic year for Chinese film market. China became the second largest box office in the world, right behind the U.S. In same year, we also witnessed a significant increase in entertainment law cases filed, argued and decided by Chinese courts, covering issues ranging from copyright infringement, trademark, anti-unfair competition, to privacy, right of publicity, defamation, labor law, and of course, contract disputes. This presentation will discuss some top Chinese entertainment law cases decided during the same period of time and addresses key issues of significance to the Chinese entertainment industry. They range from idea/expression dichotomy, movie title protection, director credit, movie revenue sharing, and the balance between privacy and freedom of speech.

Recent Developments on Copyright: Legislation and Cases
As part of a panel discussing recent developments in U.S. copyright law, Professor Hughes discussed the Ninth Circuit's recent Garcia v. Google decision as well as movements in Washington toward ratification of the Beijing Treaty on Audiovisual Performances (2012) and the Marrakesh Treaty for the Blind (2013).
Specialized IP Courts
An almost all-EU patent court is the institutional centerpiece of the new EU 'unitary' patent system. The new court, to be known as the European Unified Patent Court, will have jurisdiction over all invalidation and infringement actions involving patents issued by the European Patent Office that are designated to have 'unitary effect,' that is effectiveness within the great number of EU states participating in the new scheme. The substantive patent law to be applied by the new court is an awkward amalgam of European, treaty and national law - and the national law is determined largely by the formalistic presence of the patent applicant in a particular EU member state. Atik's presentation explores the various sources of this new (and variegated) substantive patent law, and the hierarchical relationship of its various elements.

The conference will be held at University of California Berkeley on October 8-9, 2015. Click here to register.

Thursday, September 24, 2015

Pope Francis Calls for Common Good Before Congress

By: Scott Wood
Professor Emeritus

I join millions of Americans in celebrating the Pope's wise and deeply moving address to the joint meeting of Congress. An hour-long speech, the longest he has every given in English.

He called each of us to be our best selves in the spirit of Lincoln, MLK. Jr., Dorothy Day and Thomas Merton. The four Americans that he spotlighted capture the principles of Catholic Social teaching and, at the same time, the best of our American cultural values. The Pope's wide-ranging talk both resonated with and also challenged liberals and conservatives. His call to promote the common good was a major theme that informed his points on caring for refugees and immigrants, for making a positive difference in climate change, for promoting civil dialogue between factions rather than supplying them with arms. He unequivocally condemned the death penalty saying that "Punishment must never exclude hope or rehabilitation."

More than the content of his speech, the Pope communicated a humility and kindness that reminded his listeners that the universal Golden Rule should govern our lives and guide our actions. Consistent with his open-hearted speech, he closed his visit to the Capitol bidding farewell from the balcony where he blessed the children and then asked non-believers and others who cannot pray to send him their best wishes. The Pope spoke to and for a truly universal church.

The Pope's speech connects directly with the LLS mission to educate lawyers who will commit to ethics and service in their practices, to contribute legal services to the underserved pro bono. The Pope's emphasis on the welfare of children is reflected in Loyola's Center for Juvenile Law & Policy; his opposition to the Death Penalty resonates with Project for the Innocent; his championing the cause of refugees and immigrants is mirrored in Loyola's immigration rights clinic. LLS is part of a Jesuit university that teaches students to be persons for others. Each of the Pope's four American exemplars--two non-Catholics and two Catholics--was a person for others.

Tuesday, September 22, 2015

Pope Francis Spreads Social Justice in U.S.

By Father Luis Arriaga, S.J.
Jesuit Legal Fellow

Those who profess the Catholic faith are rejoicing! Not only is it rare for a pope to visit the U.S., never have we had a visit from a pope with an origin from the Americas. Now, Pope Francis is visiting several American cities.

At a time when religion is in crisis, the Church has a pope who is one of the most important leaders of the world. He is a man who has accepted that the love of God lives within him. He does not believe that the dogma of the Church is as important as that of being human, i.e., the freeing of the poor and those who suffer injustices in this world. Pope Francis has stated that poverty is not eradicated by assistance or charity, but by the public policy of governments that should return dignity to the oppressed and make their citizens autonomous and participatory. In other words, there should be a radical change from the logic of mere financial assistance to the poor to a philosophy that society should provide opportunities for social development for people of all economic levels.

Monday, September 21, 2015

Federalism vs. Individual Rights in Suit Against Court

By Professor Karl Manheim

This op-ed originally appeared in the Sept. 21, 2015 edition of the Daily Journal.

California’s budget crises of recent years had a deleterious effect on state court funding. The same story was repeated around the country as state courts became convenient targets of budget cuts. Unsurprisingly, such cuts adversely affect the administration of justice. Also unsurprisingly, the effect is often uneven, creating special hardship for certain populations.

Los Angeles County Superior Court (LASC) responded to the funding crisis by closing courtrooms around the county and consolidating certain categories of cases into a few “hub” courts. It closed the majority of courtrooms hearing unlawful detainer (eviction) actions, while leaving many other types of civil cases mostly unaffected.

Los Angeles County is the largest in the nation in population and one of the largest in size. Half of its 10 million residents are renters. In 2013, the 26 neighborhood courts that heard eviction actions were “consolidated” into five courts spread across the county. For some tenants facing eviction, now getting to the courthouse became an almost insurmountable obstacle. This was especially true for poor and disabled renters who had to rely on public transportation.

Civil rights groups representing these vulnerable groups filed suit against LASC in federal court under the Americans with Disabilities Act and other statutory and constitutional claims. They cited Tennessee v. Lane, 541 U.S. 509 (2004), which permitted a litigant with disabilities to sue a state court over impediments to courthouse access. Lane rejected state sovereign immunity to such ADA claims.

Friday, September 18, 2015

Bringing Disability into Constitutional Law Discussions

By Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.

Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.