Law School Dissertations and Theses

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  • Publication
    CIVIL LAW AND THE LEGAL EDUCATION CULTURE IN THE KINGDOM OF SAUDI ARABIA: ALTERNATIVE ASPECTS
    (University of Kansas, 2018-08-31) ALANZI, AWAD Ali
    This dissertation is principally devoted to addressing significant aspects of the Saudi Arabian legal education system by comparison with countries who have established strong reputations in the field of legal education. It identifies and examines various international law schools’ current instructional methodologies to better determine negative issues and difficulties encountered and how they were addressed. It is the hope that the results will produce viable information of use to the further development and improvement of Saudi Arabian law schools. While the dissertation is not intended to be an empirical study of either Saudi or international law school curricula, it does attempt to expose existing, and potential problems within the Kingdom’s various law school programs. The goal is to present and perhaps assist in the implementation of substantial updates to modern law school education that will provide the nation with well trained, critical thinking, skilled legal experts dedicated to the law, the land, and the people they serve. Above all else, this paper is an attempt to present comprehensive proposals designed to challenge the disparity between expectation and reality in the education of Saudi Arabian legal professionals—; with an ultimate goal of producing lawyers equipped with extensive training in the vast and complicated system of Saudi Laws. Furthermore, it is envisaged that it will assist in confronting critical issues of modernizing legal curriculum and syllabi while making legal programs more inclusive with the incorporation of international legal education models.
  • Publication
    DRONES: THE ROLE OF LOAC, TARGETED KILLING, INTERNATIONAL LAW, AND PRIVACY LAW
    (University of Kansas, 2017-12-31) Sehrawat, Vivek
    This qualitative research study directly analyzes the legality of drone usage. This project discusses world policy on drone strikes for counterterrorism purposes and the myths about current-generation drone’s capabilities and implications. This project separates fact from fiction by examining drone effects in three different legal contexts— legality under LOAC, targeted killing for counterterrorism, and privacy laws with a comparative study between the U.S., UK, and India. Using unmanned drones against belligerents put forth major legal issues in modern warfare. In the twenty-first century, the use of drones in military combat operations is one of the most legally controversial issues confronting international humanitarian law (IHL) and the law of armed conflict (LOAC). This research argues that drones should be treated as any other component of the United States’ (U.S.) arsenal. A drone can may be a weapons platform or singular weapon system. This research further argues that drones offer extensive and enhanced opportunities for compliance with LOAC and other relevant laws governing the use of certain weapons use. Further, this research gives an overview of the justifications for targeted killings carried out by drones as a means of warfare. The justifications for targeted drone strikes can break down along three lines operational considerations, theories of self-defense, and moral concerns. The research focuses on targeted killing as it pertains to drones employed as a means of warfare by the U.S. in its War on Terror. Further, this research examines whether the use of drones for targeted killings comports with the IHL. This research also examines the effectiveness of targeted killing. This research analyzes the legality of targeted killing, under both domestic law and international law. Additionally, this research provides a comparative chapter on constitutional, privacy, property, and aviation laws of the U.S., U.K., and India in relation to their respective privacy laws. The purpose of this research is to analyze the government and civilian uses of drones in these three countries and identify the “best-practices” for global application. All three nations have drone regulating agencies such as Federal Aviation Administration (FAA) for the U.S., Civil Aviation Authority (CAA) for U.K., and Director General of Civil Aviation (DGCA) for India. These agencies are license drones, but they do not provide any regulations for privacy issues. This leaves a gap between drone usage regulations and privacy protection of the people. The other areas of law can fill this gap, particularly if the drone has a camera mounted on it. These areas of law are constitutional, common-law torts of nuisance and trespass, as well as the privacy, and data protection laws. Also, this research provides appropriate solutions for drone privacy laws. Finally, this research identifies issues unanswered by this dissertation for the future research projects. The next project will be a comprehensive assessment of the consequences of current-generation drone proliferation in disputed territories and vulnerabilities to cyber-attack.
  • Publication
    Legal and Non-Legal Barriers to South Asian Free Trade
    (University of Kansas, 2017-12-31) Islam, Neyamul
    The business potential of the South Asian region is huge. Better regional cooperation in the South Asian region promises large gains in welfare and growth. However, various obstructions stand in the way of realizing the true potential of this region. In trade liberalization, there are always winners and losers. Considering the bigger picture, short run procedures are liable to lose and limited procedures that export will gain because of better input. This business environment causes domestic procedures to encourage increased productivity and consumers will be the ultimate gainers. SAFTA had a modest beginning. Despite this SAFTA has set the pace for tariff reduction for LDCs and non-LDCs Member States and laid down specific guidelines for implementation. SAARC formation was in the background of hostilities between South Asian countries, asymmetrical economies, and several other challenges. The intra-regional integration within this region is very limited. TLP is a step in the right direction. In spite of this, the intra-regional trade is below 5%. To alleviate the situation, the tariff reduction agenda must be complied in the time bound manner. Integration at customs level in SAARC seems to be a distant milestone. However, harmonization of the common external tariffs may mitigate the complexities of the rule of origin. The major recommendations include moving towards a CU, adopting steps like elimination of tariffs and sensitive lists, reduction of NTBs by way of ensuring reporting, monitoring and eliminating NTBs, and moving towards a CET. Moreover, South Asian countries should come under the umbrella of harmonization of rules and standards under an MRA. Moreover, value chains can be established on a pilot basis. Other notable recommendations include promotion of intra-regional investment by pro-actively attracting flagship investors, facilitation of improved connectivity through experimental transit regimes based on corridor on a mutual basis, exploration of idea of joint borders with single clearance, promotion of service trade, and concentrate more on a liberal visa regime both the specialized category of people and general workers.
  • Publication
    FINDING INSPIRATION IN ISLAMIC LAW FOR EXPANDING THE ROLE FOR FAMILIES OF MURDER VICTIMS IN THE UNITED STATES CAPITAL SENTENCING PROCEEDINGS
    (University of Kansas, 2016-08-31) Jeaash, Najla Mahmoud
    Where the death penalty is still applied for murder, a victim’s family participates in the decision-making processes to varying extents depending on the legal system. Under Islamic law, the victim’s relatives play a central role in the sentencing of the offender. They are the ones who decide whether or not death penalty will be imposed. They may choose to have the offender executed. They may also choose to pardon the offender, either for free or in exchange for monetary payment. Yet, forgiveness is preferable and more rewarding according to the Qur’an, the Holy Book of Islam (5:45). The family also may waive the death penalty, but the state maintains an interest in punishing the offender with a discretionary penalty less than death. In the United States, however, the role of capital murder survivors is relatively limited. The only tool that survivors may use to participate in the sentencing processes of a capital trial is to provide victim impact evidence, in which they share their victimization experience with the sentencing authority. Courts do not allow family members of capital murder victims to voice an opinion about the sentence to be imposed. Victim sentencing opinions are deemed irrelevant even when the family members do not want the defendant to receive the ultimate penalty. This Dissertation argues that, inspired by the Islamic approach, the United States should extend the role of victims’ relatives in the capital murder sentencing process. Having suffered the most, family members should, at the very least, be given the opportunity to weigh in on the sentencing process by permitting their views on punishment to be presented to the jury, particularly when they want to speak for mercy.
  • Publication
    THE RISE AND REACH OF 'THE DOCTRINE OF CATEGORICAL EXCLUSION': How the Supreme Court Should More Clearly Define Speech Placed in the 'First Amendment Free Zone' from Chaplinsky to Elonis
    (University of Kansas, 2015-12-31) Schmidt, Derek Larkin
    Chapter 1 introduces the “Doctrine of Categorical Exclusion” which to date has been loosely but persistently articulated by the Supreme Court (without use of the phrase itself). At its core, the Doctrine is a set of rules to identify and analyze certain categories of expression that fall outside the “Freedom of Speech” protected by the First Amendment. Chapters 2 and 3 trace various disjointed roots of the unarticulated doctrine from the mists of history up until the Supreme Court’s first attempt to coalesce and synthesize disparate rulings into what had the appearance of a single doctrine, the landmark 1942 case Chaplinsky v. New Hampshire. Chapters 4 through 7 trace the development of the doctrine, while still unnamed, from Chaplinsky in 1942 to the verge of the Supreme Court’s next attempt, in 2010, at synthesizing the doctrine into a coherent and comprehensive articulation. That 68-year period witnessed the evolution of the excluded categories articulated in Chaplinsky, the rise and fall of an additional category, the enduring recognition of more categories, the rejection of others, and methods developed by the Supreme Court to control the categorical boundaries. Thus, Chapters 4 through 7 travel the jurisprudential path from Chaplinsky to the verge of United States v. Stevens. Chapters 8 and 9 consider the two modern, somewhat comprehensive attempts by the Supreme Court to synthesize the various rules and holdings into a single, coherent doctrine: United States v. Stevens (2010) and United States v. Alvarez (2012). Chapter 10 features a proposal for a simplified, coherent approach to the modern Doctrine of Categorical Exclusion——determining what speech falls in the “First Amendment Free Zone” that is outside the freedom of speech protected by the Constitution. The chapter explains how a simplified approach would promote Speech Clause values and bring greater order and predictability to this aspect of the First Amendment.
  • Publication
    Understanding the Legal Construct Regulating Government Intervention into City Decline and Degeneration in America
    (University of Kansas, 2013-01-01) Parker, Bryant Emerson
    An overview of critical academic thought concerning the character and attributes of American urban development establishes that the presence of unsuccessful, or challenged, development is a transcending problem necessitating government regulation in response. Challenged developments were observed frequently materializing in areas exhibiting urban decline and degeneration, including outward migration. It was conjectured that this cycle of outward migration and urban decline and degeneration might be part of an overall development cycle experienced by more than current day cities. History was probed for evidence of commonality. Cycles of urban decline and degeneration appeared within Mesopotamia, Egypt, the Greek city-states, and the Roman Empire. The form of government, whether a benevolent priest-king, dictator, democratic assembly or republic council appears extraneous. The mere presence of governmental regulation, such as comprehensive planning, zoning, building codes, advanced development techniques or sophisticated legal concepts for the protection of individual rights, did not purport to dissuade or ameliorate these cycles throughout the ages. Historical accounts attributed successful urban concentration to the presence of safety and security, convenience, and quality of life. Conversely, when one or more of these factors were diminished or compromised, cycles of urban decline and degeneration seemed to emerge. Field research was conducted to ascertain how these historical observations fared in the modern context. Residential and commercial developments differentiated as successful and challenged within the fifty (50) fastest growing counties across the United States between 2000 and 2010 pursuant to the U.S. Census Bureau were surveyed to explore the presence of governmental regulation and procedures as well as factors affecting safety and security, convenience, and quality of life. Consistent with historical observations, only items connected with safety and security, convenience and quality of life emerged from this process. Based upon this knowledge, local governments may be prompted to intervene at the development stage of residential and commercial developments in an attempt to counter, forestall or at least lessen the impact of the cycle of outward migration and urban decline and degeneration. While this could be attempted ad hoc, a more prudent approach might be to re-examine and re-constitute existing zoning, subdivision and development regulations and procedures in light of the differential characteristics between successful verses challenged developments. However, such an undertaking does not happen in a legal "state of nature." A synthesis of the jurisprudence that defines the limits of and restraints upon current governmental regulation reveals that land use regulation in America centers around the interaction between the authority of a local government to act, pursuant to "police power" authority granted that local government from the state, and whether that government action violates an individual's Constitutional rights. These Constitutional rights center around the privileges and immunities of citizens, equal protections of the laws and due process clauses of the Fourteenth Amendment and include "regulatory takings" under the theory of inverse condemnation. The United States Supreme Court has undertaken the long and arduous task of defining this interaction. A summation of that current definition is contained in Arkansas Game and Fish Comm'n v. United States where the Court expounded that when regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence of a compensable taking. Also relevant is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So too, is the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use. Severity of the interference figures in the calculus as well. While a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove a taking. Every successive trespass adds to the force of the evidence. This current understanding of the interaction between the exercise of government regulation and takings jurisprudence lays the groundwork for thoughtful and legally permissible implementation and application of zoning, subdivision and developmental regulations and processes aimed at addressing the cycle of outward migration and urban decline and degeneration at the initial development stage as well as subsequently thereto.
  • Publication
    Deciphering the Legal Framework for Locally Addressing Issues Interwoven with Outward Expansion from America's Central Cities
    (University of Kansas, 2013-05-31) Parker, Austin Keith
    American urbanism has come to be defined by migration from deteriorating urban development to new suburban development resulting in population decline within America's urban cores, or central cities. Population decline sets in motion certain self-reinforcing forces, or issues, likely to perpetuate it. These include the withdrawal of high- and middle-income households, a decline in the central city's tax base accompanied by rising local taxes and deteriorating public services, a dwindling consumer base to support utility infrastructure maintenance and improvement, and a rise in criminal activity. Federal, state and local governments have been involved in a variety of "urban renewal" strategies via studies, regulations, tax incentives and even investments of public funds, largely to no avail. During this time, what were once thought to be only urban issues have now also outwardly migrated to the suburbs. While some may assert that the birthplace of modern U.S. Supreme Court jurisprudence defining governmental authority to regulate land use is Euclid, the U.S. Supreme Court outlines in this same case that the true origin of this power is the power of sovereignty, the power to govern men and things within the limits of government's dominion, except in so far as it has been restricted by the Constitution of the United States. The Court explains that the nature and extent of these powers evolve as government is confronted with new issues requiring intervention. The evolution of government's regulatory powers and how these powers have been guided and constrained is defined by the application of Constitutional principles, statutes and ordinances. From Colonial times until the Civil War, state and local government regulation existed apart from U.S. Constitutional restraint. However, with the passage of the Fourteenth Amendment, the United States Supreme Court was charged to ensure state and local legislation complied with guaranteed rights under the U.S. Constitution. The Court in Mugler defined regulatory authority as the "police powers." Therein, state and local governments possess the authority to determine what measures are necessary to protect the public health, safety and welfare. The Court held that valid police power regulation does not violate individual liberty or property rights. Instead of defining this power's reach, the Court chose in this and subsequent case law only to retroactively invalidate regulation bearing no substantial relation to these powers. These powers were broadly interpreted and government operated with only the threat of regulatory invalidation until First English, where the Court determined government may have to compensate where regulation extends beyond these powers. The Court ruled in Penn. Central with recent confirmation in Ark. Game and Fish Comm'n that regulation effects a taking where it interferes with "distinct investment-backed expectations." Since there can be no investment-backed expectation in failure, government regulation designed to promote success should not run afoul of this constraint. Academically proffered philosophies and factor approaches involving residential and commercial developments can be objectively examined for co-relationship with developments identified as successful or challenged within the marketplace. A code based upon development philosophies and factor approaches objectively verified as associated with successful developments would therefore not be arbitrary and unreasonable as having no substantial relation to the general welfare. Such code provisions could be designed to be applicable to all similarly situated property and to produce the widespread public benefit of promoting development success and preventing the negative community-wide effects of development failure. Such a code should not be found to exceed government's regulatory police powers, for there can be no developer economic interest supported by "distinct investment-backed expectations" in development failure.
  • Publication
    THE HOLY SEE, SOCIAL JUSTICE, AND INTERNATIONAL TRADE LAW: ASSESSING THE SOCIAL MISSION OF THE CHURCH IN THE GATT-WTO SYSTEM
    (University of Kansas, 2014-05-31) Ihuoma, Alphonsus Anaele Iyke
    Man, as a person, is superior to the state, and consequently the good of the person transcends the good of the state. The philosopher Jacques Maritain developed his political philosophy thoroughly informed by his deep Catholic faith. His philosophy places the human person at the center of every action. In developing his political thought, he enumerates two principal tasks of the state as (1) to establish and preserve order, and as such, guarantee justice, and (2) to promote the common good. The state has such duties to the people because it receives its authority from the people. The people possess natural, God-given right of self-government, the exercise of which they voluntarily invest in the state. One cannot agree any less with Maritain. During her many years of theological reflection and writing on modern economic issues, the Catholic Church has confirmed that the constitutive purpose of the economy is to serve the common good. The economy is legitimate in the Catholic Church's tradition only if it meets the material needs of every member of the human family and the moral demands of justice and solidarity. In other words, the economy should work to serve the needs of the people and not the other way around. One can understand the rationale behind the teaching of the Catholic Church especially as enunciated in the papal encyclicals and exhortations, the Catholic Social Doctrine, and other teachings of the Magisterium. The whole essence of the Catholic social teaching is to safeguard and promote recognition of, and respect for, human dignity. The Catholic Church does not just teach. She reaches out to the whole world as the central part of her universal mission to announce the Gospel message as a light to dispel any darkness that bedevils the dignity of the human person. God created the world for the common good and development of all human beings. The dignity of the human person is a central issue in the Church's universal mission. The Catholic Church evangelizes the whole world by reaching out to all the nooks and crannies of the earth for that purpose. She reaches out to governments of the world, to every individual, organization, and institution to proclaim the Good News to every soul. The Holy See puts up a presence in the international arena for the purpose of raising the moral voice of the Catholic Church on issues that concern the human person. This mission takes the Holy See to the United Nations and other international and regional organizations. The focus here is the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), hereinafter referred to as "GATT-WTO system." Through its presence at the World Trade Organization, the Holy See gets the opportunity to raise its prophetic voice in defense of the dignity of the human person on economic, social, and political issues. A very important concern that needs to be addressed more is whether the Holy See, the representative body for the Catholic Church, is as effective as it ought to be in raising its moral voice on issues within the GATT-WTO system which may drastically affect the true and full realization of God-given human dignity. Obviously, the Holy See mounts some influence in the international arena, but whether its influence is effective enough is another question.
  • Publication
    Striking a Balance on Due Care Liability of Corporate Directors in Delaware
    (University of Kansas, 2014-08-31) Aydin, Mucahit
    Under the corporate statutes, a board of directors is vested with the power to manage the business and affairs of a corporation. The directors' statutory authority is tempered with fiduciary duties of loyalty and care rooted in the common law. Courts impose the duties of loyalty and care to protect the interests of a corporation and its shareholders from unfaithful and irresponsible directors. The duty of care is in place to assure that directors diligently attend their responsibilities. Directors are personally liable for the entire amount of damages suffered by a corporation as a result of a breach of the duty of care. Directors often make large-scale business decisions, and they may face draconian monetary liability for a breach of the duty of care. This may deter competent people from serving on corporate boards and may undermine responsible corporate risk-taking. Section 102(b)(7) of the Delaware General Corporation Law permits a certificate of incorporation to include a provision eliminating personal monetary liability of directors for a duty of care violation. After the enactment of section 102(b)(7), the duty of care virtually exists as an unenforceable legal standard. Section 102(b)(7) eliminates any meaningful threat of personal liability for "mere" inattentive director conduct. This may cause suboptimal director behavior in corporate decision-making or oversight. Behavioral psychology research indicates that the threat of punishment or even just the awareness of having one's behavior monitored is an important motivator of actor behavior. Accordingly, there should be an efficient enforcement mechanism for the duty of care. Directors should not be afforded a free-pass to ignore their due care responsibilities. Section 102(b)(7) pushes the fulcrum point between authority and accountability too far in favor of director authority. This runs counter to the traditional wisdom that authority should be accompanied by accountability. Therefore, there is a need for a balanced approach to revive an enforceable the duty of care while protecting directors from draconian monetary liability. Directors should not be afforded ex ante protection from personal liability for a duty of care violation. Where directors fail to act with due care, they should justify the challenged conduct in a court room on the basis of good faith. If directors are able to justify their due care failure on the basis of good faith, they should not be held liable for money damages. Under this middle-ground approach, the viability of a duty of care action would be maintained, and directors would be protected from draconian monetary liability.
  • Publication
    A STUDY ON THE INCAPACITATION MECHANISM MODEL OF THE JUCHIST AND MARXIST-LENINIST ARTICLES AGAINST THE CORE IMPLEMENTATION MECHANISM MODEL OF THE FUNDAMENTAL RIGHTS ARTICLES IN THE NORTH KOREAN CONSTITUTION: NORTH KOREA'S VIOLATIONS OF FUNDAMENTAL RIGHTS AND INTERNATIONAL HUMAN RIGHTS TREATIES
    (University of Kansas, 2014-05-31) Jun, Woo-Suk
    In this dissertation, I systematically study whether the arguments of the North Korean government regarding its protection of domestic human rights and its adherence to international human rights treaties in the DPRK Official Reports are accurate. My starting point is the analysis of the sharp conflict of argument on the human rights issue between North Korea and the liberal democratic camp, which includes the U.S., U.K., and South Korea. In the DPRK Official Reports, North Korea uses a theoretical approach, focusing on the presence of Fundamental Rights Articles of its Constitution, to argue that the fundamental rights of the people have been protected internally, and that the particular rights prescribed in the international human rights treaties are guaranteed successfully. In contrast, the liberal democratic camp, in their reports on North Korean human rights compliance, contend that the government of North Korea has seriously infringed the fundamental freedoms of its people and has severely violated the international human rights treaties to which it is party. To make their arguments about North Korea's human rights practices, the U.S., South Korea, and the U.K. use a factual approach, centering on the analyses of testimony by North Korean refugees in the report. This situation leads the North Korean government to aggressively rebuff the arguments of the U.S., U.K., and South Korea by denying and discounting the contents of their annual reports. North Korea especially concentrates on casting doubt on the credibility of the testimony. Notably, the LDC Annual Reports do not thoroughly analyze the core implementation mechanism of the Fundamental Rights Articles of the North Korean Constitution and contain very few logical rebuttals. However, considering that North Korea has attempted to deceive the world under the guise of claiming to provide human rights protections through its core implementation mechanism, the methodology of the liberal democratic camp in dealing with North Korea's claims in defense of its human rights practices is inarguably unsuccessful. Thus, in such a debate, a neutral third party, who does not possess actual information regarding the human rights situation in North Korea, may not only believe that North Korea's arguments are true, but may also believe that the liberal democratic camp's demand for an improvement of North Korea's human rights practices are merely politically-motivated fabrications. Additionally, the fundamental difference in the method of argumentation between the North Korean government and the liberal democratic countries means that there are necessarily few points of direct collision within their arguments. That is to say, these two opposing sides do not actually collide but run parallel, and are left without the real opportunity to challenge each other's arguments as to the fundamental difference between their methodologies. The most effective way to solve the problems inherent in the overreliance by the LDC on a factual approach is to form an opposition structure of a theoretical approach to match the theoretical approach of North Korea. To remedy this failure, I developed and formulated my own detailed theory to refute the assertions of North Korea in its official reports. The heart of the theory proposed by this dissertation is the incapacitation mechanism model of the Juchist and Marxist-Leninist Articles against the core implementation mechanism model of the Fundamental Rights Articles. The incapacitation mechanism model proves that all of the claims of North Korea in the DPRK Official Reports--that it guarantees the fundamental rights of its people or that it complies with the major international human rights treaties--are totally unrealizable, given its constitutional structure, from a theoretical standpoint. Additionally, the mechanism model proves that the liberal democratic countries' arguments about North Korea's violation of the fundamental rights and the international human rights treaties in the LDC Annual Reports, which are based on a factual approach, are true. Thus, we can draw an objective and logical conclusion to the central issue of this dissertation through the new refuting theory and its theoretical mechanism model proposed by this dissertation. I expect the arguments of the new refuting theory and its incapacitation mechanism model presented by this dissertation to be useful reference material, which will enable the liberal democratic camp to make more effective responses against North Korea's specious arguments grounded in the core implementation mechanism of the Fundamental Rights Articles in the DPRK Official Reports and official Implementation Reports to be released in the future.
  • Publication
    Bloc Voting - A New Voting System for the International Monetary Fund
    (University of Kansas, 2014-05-31) Jiang, Yueting
    The international community needs the IMF to fulfill its purposes in monitoring the international financial system. However, the IMF does not satisfy the international community's expectations, because the IMF lacks good governance. After identifying and addressing three key questions regarding IMF governance, I propose that the IMF adopt bloc voting as a new decision-making system, which would require the acceptance of an amendment to the Articles of Agreement. The bloc voting system would create two sets of voting blocs - "econ blocs" and "regional blocs", and the IMF member countries would have to vote through voting blocs to make decisions. By accepting the bloc voting amendment, the IMF would satisfy the principles of participation, accountability, and effectiveness, thereby restoring good governance and fulfilling its purposes.
  • Publication
    A Comparative Study on Human Embryonic Stem Cell Patent Law in the United States, the European Patent Organization, and China
    (University of Kansas, 2011-05-31) Zhu, Huan
    With the recent developments in biotechnology, associated patent law issues have been a growing concern since the 1980s. Among all the subcategories within the general field of biotechnology, human embryonic stem cell research, as one of the most controversial, is receiving different patent system treatment in different countries. China explicitly opposes the patentability of hESCs in its patent regulations on the basis that patenting hESCs is contrary to morality and the public interest. Similarly, the EPO, relying on ambiguous language in the European Patent Convention [EPC], excludes hESCs from patentability by broadly interpreting the morality clause of the EPC. In contrast, the United States has become the main progenitor of hESC patents. By analyzing the reasons to grant or deny patents on hESCs, and considering patent law doctrines and justifications, this dissertation reaches two conclusions. First, patent law should not include a morality clause and should only take into consideration technical concerns. Moral issues should be left to other mechanisms such as administrative law. This is an approach deeply rooted in the American patent system, but not in China or the EPO. Second, by reviewing the requirements of patentability such as novelty, non-obviousness and utility, it can be concluded that hESCs themselves are not patentable because they lack a specific concrete utility and, since they already exist in nature, they lack novelty as well. However, hESC production processes and derivative products are patentable.
  • Publication
    CORPORATE GOVERNANCE IN THE KINGDOM OF SAUDI ARABIA
    (University of Kansas, 2012-12-31) Al-Zaid, Ahmad Abdulaziz
    While in the past the Companies Act has been documented and there have been limited references to the proposed Companies Act, to the author's knowledge there has not been a comprehensive comparison of the existing Companies Act and the first and second proposed revisions thereto. The author has examined these proposed revisions and highlighted the differences between the current Companies Act's provisions and the proposed ones. The author provides commentary on relevant, current and proposed, Companies Act's provisions which describe the function, effect, scope and what they fall short of by themselves and/or within other rules forming the system of corporate governance in Saudi Arabia. In addition, there has been little to no treatment of the issuance of shares or the Corporate Governance regulations applicable to publicly-traded companies. In this work, the author attempts to fill the void left by previous legal authors and to discuss and comment on those topics in an insightful way. With regard to the discussion of the various articles of the Corporate Governance Regulations, this discussion marks the start of elaborate consideration of publicly held corporations in the context of dual regulation under both the Companies Act and the Corporate Governance Regulations. In short, Saudi Arabia's recent reforms advanced its corporate governance structure. Through the adoption of the proposed Companies Act, further development will be achieved.
  • Publication
    Elderly Offenders: An American Corrections Catch-22?
    (University of Kansas, 2012-12-31) McBride, Katherine Lee
    The problem of the aging offender population is an issue that will ultimately need to be addressed by state corrections departments and legislatures. As general prison populations continue to age, the type and extent of inmate health care needs will change. This thesis examines the experiences of the elderly offender in the prison environment. Specifically, the conditions surrounding incarceration are evaluated, including unique age-related impairments, disability accommodations, constitutional protections, and programs and policies addressing the elderly offender population. A review of sentencing policy in Kansas will then be conducted, with specific focus on downward departure sentencing based upon advanced age. Recommendations that are made to address the continued growth of the Kansas elderly offender population include both proposed state agency and legislative policy changes. Agency recommendations relate to the administration of the newly-renovated geriatric correctional facility in Oswego, Labette County, Kansas. Legislative policy proposals address changes in Kansas sentencing policy, for purposes of integrating the factors of extraordinary physical impairment and age in departure sentencing and parole hearings. Amendatory changes to state early release procedures will also be raised to provide early release mechanisms for offgrid offenders.
  • Publication
    Behind the Multilateral Trading System: Legal Indigenization and the WTO in Comparative Perspective
    (University of Kansas, 2012-05-31) Xing, Lijuan
    This dissertation offers a new perspective from which to view and understand the WTO regime and its participants. The central feature of that new perspective is the concept of legal indigenization. This term generally refers to the process or ideology in which domestic authorities make and implement international or domestic rules in a way appealing to their native features (especially legal traditions), as responses to globalization led by a defective global legal system. The dissertation's core thesis is that the key elements of the legal tradition and culture of a society or political system inevitably and fundamentally influence the ways in which WTO members propose multilateral trading rules and implement their WTO obligations - in ways that have not, until now, been adequately explored and explained in the extensive literature relating to international trade law. In developing and elaborating on that core thesis, this dissertation has six chapters, following an Introduction that summarizes the significance, structure and approach, and terminology of the dissertation. Chapter 1, Review of Literature, comprises two parts. The first part surveys the key academic, professional, and official literature regarding a range of issues that are pertinent to this dissertation. These include such topics as the general character and structure of the WTO regime, specific trade mechanisms, the relationship between WTO law and domestic law, the relationship between WTO law and general international law, principles and interpretation of WTO agreements, the position of developing countries in the multilateral trading system, strategies pursued in international trade negotiations, domestic trade legislation, Free Trade Agreements (FTAs), dispute settlement mechanism, and domestic adjudication of trade issues. The second part of this chapter offers the main findings of the relevant literature. It is those findings, of course, that serve as the foundation as well as starting point for further research as reflected in this dissertation. The findings of the literature have helped formulate two hypotheses of the dissertation. One is that the insufficiencies of the WTO legal regime provide the possibility and necessity for the WTO Members to indigenize WTO law by resorting to their own legal traditions and cultures. The other hypothesis is that the WTO Members' practices in dealing with the WTO have demonstrated their willingness and efforts to indigenize WTO law. Chapter 2, Concept of Legal Indigenization, develops the fundamental concept of this dissertation - legal indigenization. This chapter starts in Section I by reviewing legal fragmentation in international trade before World War II. The disaster of world war brought about by legal fragmentation called for international responses thereto, which resulted in (legal) globalization. Then, the section proceeds into the exploration of the problems of (legal) globalization - both inherent and acquired - which explain the need to rely on legal indigenization. Section II of this chapter defines the concept of legal indigenization, based on the various concepts of indigenization that exist in various other disciplines such as anthropology and culture, and dissects the concept of legal indigenization further for clarification. In that same vein, the latter part of this section compares this term with other two relevant terms - that is, globalization and localization. Based on the concept of legal indigenization defined in Chapter 2, the succeeding three chapters proceed to apply this concept to the specific actions adopted by China, the United States, and the EU regarding their interaction with the WTO. Chapter 3, Legal Indigenization of WTO Law in China, examines four aspects of legal indigenization. Section I focuses on China's participation in international trade rule-making. It explains how China emphasizes Special and Differential (S&D) treatment as well as substantive and procedural issues in the Chinese proposals submitted to the WTO. The sources of pertinent features of the Chinese proposals submitted to the WTO are located, partially, in the Chinese legal tradition and culture. Section II of this chapter finds that China's participation in the settlement of international trade disputes reflects certain Chinese ideologies that have been challenged by its trading partners. Those ideologies bear on such issues as whether legal protection is to be provided for subjects involving some illegality, the relationship between publications and public morality, state control of trading rights, and the necessity of criminal thresholds regarding protection of intellectual property rights. This section examines how these features have taken shape, based on Chinese legal tradition and culture. Section III examines key characteristics of the overall Chinese domestic trade legislation, such as the degree of specification of laws at different levels, the use of "temporary" legislation, and a focus on "management." This section explains these features from the perspective of the Chinese legal tradition, focusing specifically on various forms of law in dynastic China and China's contemporary legal system. Section IV examines domestic adjudication of trade disputes arising within China. It reviews administrative and judicial regimes relating to trade issues. Although China has complied with its WTO obligation to provide judicial review of administrative determinations, it still treats adjudication of trade issues as having unique characteristics that other WTO members might find odd or objectionable but that reflect deeply rooted elements of Chinese legal tradition and culture. Chapter 4, Legal Indigenization of WTO Law in the United States, examines the process of legal indigenization (again, relating to trade law) taking place within the United States. Section I explores several aspects of U.S. proposals submitted to the WTO on both substantive and procedural issues, as well as S&D treatment. It also gives some attention to U.S. Free Trade Agreement (FTA) negotiations. This section characterizes U.S. proposals to the WTO from several perspectives - the tendency to submit a series of proposals, to exhibit cautiousness toward S&D treatment, to address institutional reform, to emphasize international rule of law, to pursue procedural justice, etc. This section traces these practices to roots in U.S. legal tradition and culture and specifically in the emphasis on procedural fairness in the common law tradition, the U.S. leadership in the WTO, U.S. reliance on reciprocity, its belief in rule of law, and segmentation of power in its political regime. Section II examines international trade disputes involving the United States as respondent and reveals certain U.S. ideologies challenged by its trading partners, such as the relationship between sovereignty and unilateralism and extra-territorial application of U.S. domestic law. This section also attributes these features to U.S. legal tradition and culture, especially to vestiges of unilateralism. Section III explores domestic legislation on trade within the United States and highlights some of its key characteristics, such as the urge for comprehensive content and codification as well as a subordination of international trade agreements. The origins of these characteristics in U.S. legal tradition and culture mainly involve a mixture of the civil law and common law traditions, the fluctuation of trade policies in the U.S. legal history, and dualism with respect to the relationship between international law and domestic law. Section IV examines domestic adjudication of trade issues arising within the United States. After reviewing pertinent administrative agencies and judicial bodies relating to trade adjudication, the discussion emphasizes certain characteristics of domestic adjudication of trade issues within the United States, such as the use of administrative segmentation and specialized courts. The U.S. legal tradition and culture can help explain these characteristics - for example, in the U.S. deference to "expertise." Chapter 5, Legal Indigenization of WTO Law in the European Union, analyses the process of legal indigenization of WTO law within the EU. Section I examines how the EU has participated in international trade rule-making and explains the EU's emphasis on certain topics, such as the constituents of the Dispute Settlement Body, the style of proposals, the importance of sustainable development and S&D treatment, the establishment of principles guiding negotiations of specific rules, and the role of independent experts in the multilateral dispute settlement mechanism. The origins of the special attention accorded to these topics can be found in the legal tradition and culture of the EU, and particularly in the role of judges in the civil law tradition, the center stage given to general principles, a high status given to jurists, and the heavy importance of sustainable development in the EU. Section II examines international trade disputes involving the EU as respondent. On the grounds of a review of pertinent cases, this section identifies some EU ideologies that seem conflicting with those of its trading partners, such as its broad methods of interpreting WTO agreements, its attitude towards the relationship between trade preferences in the FTAs and multilateral principles, and its application of general principles of law in its arguments. Some of the factors that contribute to the formulation of these features appear also in continental European legal tradition and culture, especially in the civil law's approach to interpretation of international agreements. Section III of this chapter explores the "domestic" trade legislation within the EU. Based on an overview of EU "domestic" trade legislation, this section points out some EU-specific approaches to trade legislation. These features find their roots in continental European legal tradition and culture, especially in the concept of the legal rule as adopted by the civil law tradition and in theories about the relationship between EU law and domestic laws of its member states. Section IV, after reviewing pertinent administrative agencies and courts involved in adjudication of trade issues within the EU, characterizes such "domestic" adjudication of trade issues as giving special emphasis to the judicial protection of individual rights, to the application of general principles of law, to procedural justice, and to the direct application of WTO agreements. Once again, the shared corpus of legal tradition and culture that predominates in the EU can partially account for these features, as explained at the end of Chapter 5. Chapter 6, Legal Indigenization and the WTO, explores these issues from a more integrated perspective. Its aim is to explain how, at a more multilateral level, the WTO provisions have been indigenized by each of these three individual members' legal tradition and culture. Section I reviews how existing WTO provisions or practices were influenced by the legal tradition and culture of certain members. It does this by studying three examples: the United States and the multilateral antidumping mechanism, rules developed by the Dispute Settlement Body (DSB) for applying the principle of "legitimate expectations," and the admissibility of amicus curiae submissions in the DSB. Section II focuses on legal indigenization in the context of further negotiations. This section examines competing (indigenized) views from three members - China, the United States, and the EU - on S&D treatment, environmental issues, fisheries subsidies, and reform of the DSB. Section III addresses on the general implications of legal indigenization for the WTO both in the short term and in the long run. The text of the dissertation closes with a Conclusion that summarizes the main findings of all the above chapters.
  • Publication
    Measuring Compensation from Credit Reporting Damage: A Comparison of Islamic, Saudi, and American Law in Light of Credit Information Reporting Acts
    (University of Kansas, 2012-05-31) Alhaidary, Mansour
    Although there was a simple way to practice credit reporting in the past, in its organized and developed form credit reporting is considered new to international society in general. The first act to regulate credit reporting was established in the last quarter of the twentieth century in the U.S.A. The novelty is even more evident in Saudi laws. The first act in Saudi Arabia was declared in 2008. In Saudi Arabia, credit reporting is associated with many legal issues that must be resolved with reference to both Shariah and Saudi Arabia law. Consequently, legal and Shariah solutions should be provided. This dissertation is a comprehensive study of credit reporting damage and remedies. It tackles issues related to definitions, history, and mechanisms of credit reporting in one section. In another section, this dissertation examines acts or failures to act as the basis for liability. These acts or failures to act may be performed by credit reporting agencies, users, or other entities or persons. This examination is presented in light of the Fair Credit Reporting Act and the Credit Information Act and weighed against Islamic law to examine validity in Islamic law as the predominant law in Saudi Arabia. This dissertation also seeks to find weakness and strength in both laws and suggest improvements. Proving the breaches is an essential part to recovering damages. Methods and standards of proof in both legal systems have similarities and differences. Some types of damages inflicted upon consumers are unique to credit reporting, while other types of damages are similar to other legal theories. The most challenging issue is the measure of remedies in the credit reporting context. The types of damages shared by other legal theories share the same measurements of remedies. Nevertheless, damages unique to credit reporting have their own remedial measurements. This dissertation hopefully adds to legal academia, helps the judiciary in Saudi Arabia in interpreting the Credit Information Act, and helps improve deficiencies in the current legal framework of U.S and Saudi legal systems.
  • Publication
    THE EFFECTIVENESS OF THE WHISTLEBLOWER PROTECTION UNDER SARBANES-OXLEY SECTION 806 IN CORPORATE GOVERNANCE
    (University of Kansas, 2011-05-31) Yeh, Yu-Hao
    Whistleblowing is an action that not only can assist in exposing organizations' illegal activities to the public, but also can give employers an opportunity to find out irregularities that occur in the workplace and to rectify those mistakes in advance. As for corporate governance, it can be regarded as a structure, a system, or a means that companies set up to monitor the operation of business, to make firms' policies, and to achieve objectives more effectively and successfully. The purpose of this dissertation, on the one hand, is to research the connection between whistleblowing and corporate governance and to use whistleblowers to promote internal corporate control. On the other hand, I wish to establish a complete whistleblower provision under SOX Section 806 to prevent employees who make the disclosure from being retaliated against by companies, and to enhance the function of Section 806 to deter corporate corruption. The introduction describes how whistleblowing promotes corporate governance. The second part discusses the background of whistleblowing and employs different points of view to study whistleblowing. The third part researches on common laws, state and federal statutes that have the provision of whistleblower protection and attempts to compare their differences. The fourth part analyzes SOX Section 806 and discovers its defects on shielding corporate whistleblowers. The fifth part refers to legal articles or academic materials, and presents my suggestions or ideas for future amendments of SOX Section 806. In conclusion, I briefly review the advantages of whistleblowing in internal corporate governance and society at large. In addition, I would like to show my expectations on this dissertation, and wish that the dilemma and obstacles in SOX Section 806 can be clarified and resolved.