Emory International Law Review

Volume 34Issue 1
Articles

Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0

Larry Catá Backer, Flora Sapio, & James Korman | 34 Emory Int'l L. Rev. 183 (2020)

This Article considers democratic self-constitution in illiberal states, focusing on the 2019 revision of the Cuban constitution. An important element of that change occurred around the formal and informal constitutional reform debates. This Article attempts to better understand the form, practice, character and influence of these new modalities of popular participation through a close empirical study. The Article first provides a brief conceptual and historical context. It then introduces the empirical study and its methodology. This Article uses data from government web sites, official reports, and social media sites to examine popular participation, its constitution, and its limitations. The Article develops four distinct data sets around which the analysis of popular participation is undertaken. Part IV then considers consequences and applications both within Cuba and beyond as they may point to the further development of the Cuban form of Marxist-Leninist political theory around structures of democratic mechanisms.

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The Elusive Distinctivenes of Trade Dress in EU Trademark Law

Dr. César J Ramírez-Montes | 34 Emory Int'l L. Rev. 277 (2020)

This Article provides a systematic analysis of the case law in which the CJEU has created specific rules for assuming product trade dress as distinctive without market use and thus eligible for registration as EU trademark. Under the CJEU’s modified distinctiveness standard, EU average consumers are ordinarily assumed not to have predisposition to trade dress as source-indentifier in the absence of more conventional marks such as words or labels. For a large number of EU applicants, this “departs significantly” criterion represents a significant barrier for registration even though the proposed trade dress may arguably be free of a non-functionality objection. This Article unpacks the policies underpinning the “departs significantly” criterion and challenges deep-seated misconceptions about its meaning and purpose.

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Comments

An Era of Foreign Political Interference: Impulsive, Overcompensation of Australia, and a Comparison of Legislative Schemes with the United States

Daniel Mack | 34 Emory Int'l L. Rev. 367 (2020)

In an increasingly globalized world, foreign political interference is a growing threat to democratic systems of government. Following events like Russia’s successful attack on the United States 2016 presidential election and growing threats of interference from China to Australia’s democratic process, Australia became the first country to completely overhaul its national security and foreign political interference laws through broad, sweeping reform. While its new legislation aims to provide greater transparency between the Australian government and the public, the impulsive and hastily drafted laws have given rise to the potential for many unwanted consequences. This Comment brings to light some of the most significant changes to Australia’s national security and foreign political interference laws and contemplates the potential repercussions. Further, this Comment compares the United States’ legislative framework for protections against foreign political interference to Australia’s new laws and proposes a solution to correct Australia’s failed reformations.

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Not Your Father’s Marketplace of Ideas: Hate Speech and the Fraudulent Marketplace of Ideas Created by Social Media

George Mixon | 34 Emory Int'l L. Rev. 399 (2020)

Freedom of speech jurisprudence in the United States and Germany is strikingly similar despite resulting in opposing views on the government’s ability to regulate and curtail white supremacist, Nazi-related, and extreme right-wing hate speech on the internet and social media. Recently, however, the Supreme Court has begun to open the door to the possibility of regulation when the speech constitutes a true threat. While still a higher standard to prove than that of Germany, it is now within Congress’s purview to regulate white supremacist, Nazi-related, and extreme right-wing hate speech as these ideologies proliferate and continue to hurt both citizens of the United States and people around the world.

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