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Pages: 447 - 479 Abstract: This Article examines the right to be acknowledged as the first inventor of a new technology in patent law. Technological inventions usually result from cumulative research and development, and several people sometimes arrive at the same invention almost simultaneously. However, only one person is usually considered to be the “inventor,” and receives all the credit and honor.This Article focuses on the legal systems of Germany and the United States, comparing how they conceptualize the right to be seen as inventor. These systems have developed in substantially different philosophical and cultural climates: while the German legal system has been deeply influenced by Kantian and Hegelian thought, the American legal system has been inspired more strongly by liberal and utilitarian ideas. These two schools of philosophical thought have different perspectives on the relationship between personal identity and work; while the German tradition emphasizes the deeply personal relation between individuals and their work, the Anglo-Saxon approach is, in general, more instrumentalist and utilitarian with regard to work.One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is understood and regulated. The right to be acknowledged as the first inventor is deeply connected with one’s identity as a professional, whether an engineer, technician, or scientist. On the other hand, this right does not necessarily have pecuniary significance. Hence, the protection of the right to be considered as the first inventor allows a glimpse into the different visions of identity and work found in these legal systems.This Article examines to what extent German and American legal systems recognize and protect the right to be perceived as the first inventor. It demonstrates that the two legal systems differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions of professional dignity, German law carefully protects this right, independently from any pecuniary interests. In contrast, American law grants a remarkably weak protection to the right to be considered as the first inventor, focusing primarily on its monetary aspects. Hence, one can here discover different visions of the role of individuals in society, and specifically of the role of individuals as creators and not just consumers. What is at stake here is whether questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system. PubDate: Wed, 22 Feb 2023 00:00:00 GMT DOI: 10.1093/ajcl/avac043 Issue No:Vol. 70, No. 3 (2023)
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Pages: 510 - 557 Abstract: This Article argues that there should be a new legal form for social enterprises in Asia that takes into account the distinctive contexts within which different types of social enterprises operate in the different Asian jurisdictions. In order to understand and evaluate social enterprise law, this Article advances an analytic framework consisting of (i) corporate purpose; (ii) directors’ duties; (iii) decision-making powers; (iv) reporting and certification; and (v) distribution of dividends, assets, and tax benefits. Using the four leading common law jurisdictions (Singapore, Hong Kong, Malaysia, and India) as a case study, the Article challenges the dominant assumption that the existing legal forms in Asia are adequate and appropriate to achieving the aims of social enterprises in Asia. It also critiques the legal forms for social enterprises in the United Kingdom and the United States, and finds them unsuitable for adoption by the Asian jurisdictions. PubDate: Thu, 13 Apr 2023 00:00:00 GMT DOI: 10.1093/ajcl/avad005 Issue No:Vol. 70, No. 3 (2023)
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Pages: 558 - 596 Abstract: In both Britain and France, pollution from emergent chemical manufacturing during the early industrial era presented a choice between two regulatory approaches. One option, consistent with longstanding restrictions in both countries on the location of malodorous trades, insisted on the separation of chemical plants from (upper-class) residences. The alternative approach allowed polluting firms to operate near residences, subject to incremental technology-based mitigation. By 1810, France issued a decree that conferred on most chemical manufacturers the right to operate inside cities, subject to permitting requirements. For residents of working-class industrial neighborhoods, who never stood a realistic chance of removing polluters, a regulatory regime geared at incremental mitigation held the potential for modest environmental improvement. For wealthy landowners, however, partial technological mitigation was far inferior to the complete relief obtainable through the removal of pollution sources.France’s example loomed large over chemical pollution debates in nineteenth-century Britain. Manufacturers hoped the courts would remove locational restrictions on chemical plants, while the near absence of pollution mitigation within working-class areas alarmed liberal reformers. The road to a compromise solution patterned after France’s was impeded in Britain, however, by a deep-seated aversion to uniform, centralized pollution control. This reticence was rooted in common-law-inspired understandings of nuisance law as the sole and inviolable constitutional means for the regulation of land use. By the 1860s, through the combined impact of St. Helens v. Tipping (1865) and the Alkali Act of 1863, Britain moved towards the French approach. Nevertheless, compared with France, British law remained more protective of landowners, more reactive in its implementation, and more willing to vary required mitigation based on sociodemographic factors. Beyond its contribution to comparative environmental history, in revealing the legal-ideological underpinnings of the Franco-British divide over the regulation of early chemical pollution, this Article also seeks to shine a light on the lingering role of legal ideology within contemporary cross-national divisions over the efficacy and legitimacy of centralized technology-based regulatory instruments PubDate: Tue, 04 Apr 2023 00:00:00 GMT DOI: 10.1093/ajcl/avac046 Issue No:Vol. 70, No. 3 (2023)
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Pages: 597 - 640 Abstract: Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights.This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity.However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies. PubDate: Sat, 25 Mar 2023 00:00:00 GMT DOI: 10.1093/ajcl/avac047 Issue No:Vol. 70, No. 3 (2023)
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Pages: 641 - 645 Abstract: Anu Bradford, The Brussels Effect: How the European Union Rules the World (Oxford University Press, 2020) PubDate: Thu, 23 Feb 2023 00:00:00 GMT DOI: 10.1093/ajcl/avad001 Issue No:Vol. 70, No. 3 (2023)
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Pages: 646 - 650 Abstract: AyoubSamy A., Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence (Oxford University Press, 2020) PubDate: Thu, 05 Jan 2023 00:00:00 GMT DOI: 10.1093/ajcl/avac045 Issue No:Vol. 70, No. 3 (2023)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 480 - 509 Abstract: Described by the U.S. Attorney General as “kleptocracy at its worst,” 1MDB, a Malaysian state-owned company, was a vehicle for theft of billions by the former prime minister for nine years. Malaysian corporate law is largely aligned with international standards, raising questions as to why it failed to effectively safeguard against the expropriation of corporate property. The Article investigates empirical evidence of the strength and implementation of Malaysian corporate law that ostensibly protects shareholders from expropriation. It examines the translation of global norms into local practice and highlights the contextual influences that have impeded effective enforcement.The analysis draws on broader theoretical approaches to illuminate the evolution of Malaysian shareholder protection and explain the gap between law in the books and law in practice. While Malaysian corporate law has been modeled on benchmarks of international standards, its corporate ownership structures, political economy, and form of political governance have developed in a distinctly different manner from institutions in Western developed countries. This research explores the limitations of prescribing formal law based on global standards, highlighting the need to consider the implications of political economy. Broader implications for the discourse on legal transplants and global norms for corporate law are considered, along with potential reforms. PubDate: Tue, 27 Dec 2022 00:00:00 GMT DOI: 10.1093/ajcl/avac041 Issue No:Vol. 70, No. 3 (2022)
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