University of Colorado Law Review
Volume 71, Issue 2, Spring 2000
FOREWORD
In our lead article, Eric L. Richards and Martin A. McCrory examine a recent decision by the Appellate Body of the World Trade Organization rejecting legislation enacted by the United States for the protection of sea turtles. The authors argue that at the foundation of this and other decisions there exists a seething antagonism between liberalized trade as envisioned under the General Agreement on Tariffs and Trade (GATT) and environmental protection. Professors Richards and McCrory review the policy debate engendered by the sea turtle legislation from its enactment to the present day. This review demonstrates how separation of powers issues compound the struggle faced by the executive branch of government in attempting to balance domestic environmental policy with international trade obligations. The authors then review the World Trade Organization's decision to strike down United States legislation protecting sea turtles to illustrate how the development of rule-based trade law affects the environment and national sovereignty. Professors Richards and McCrory caution the United States against abandoning the international rule of law and plotting a power-oriented, isolationist approach to environmental protection. Finally, the authors provide an outline for future environmental regulations so that they may pass GATT scrutiny.
In our next article, Sam Kalen reviews recent efforts by Secretary of the Interior Bruce Babbitt to transform the 1872 Mining Law to meet the needs of the coming century. Following failed attempts by the 103rd Congress to pass legislative reform for the Mining Law, Secretary Babbitt initiated an intensive effort to update the law through a series of administrative reforms. Mr. Kalen gives special attention to a recent opinion by Department of the Interior Solicitor John D. Leshy to the effect that applicants have no vested rights in a mining claim until the Department has completed its review of an application and concluded that the application meets all of the requirements set forth under the Mining Law. Although supported by legal precedent and the historical administration of the Mining Law, recent practice and opinions by the Interior Board of Land Appeals have assumed the Mining Law gives applicants vested rights to public lands after they submit a patent application, tender the statutory purchase price, and receive a certificate to that effect from the Department of the Interior. The Solicitor's opinion has important implications for future reforms, as it reduces the risk that patent applicants who lose their claims to public lands through reform will have rights to compensation because of a governmental taking. Finally, Mr. Kalen outlines several additional administrative measures-such as developing enhanced surface use regulations and restricting the availability of mining millsites to five acres per claim-that he believes could have a substantial impact on modernizing the Mining Law.
In our book review, Professor Vine Deloria, Jr. reviews Fire on the Plateau: Conflict and Endurance in the American Southwest, by Charles Wilkinson. The book discusses the history of the Colorado Plateau, including various disputes between indigenous populations and subsequent settlers, exploitation of the land by industry, and the shortcomings of the legal establishment in upholding its obligations to the region. Wilkinson conveys his account of the region's history through his experiences as a law professor and as an attorney representing Indian interests within the Colorado Plateau. As a scholar and an advocate who has been personally involved in many of the matters discussed in Wilkinson's book, Professor Deloria offers a unique perspective in his review. He ultimately praises the book's approach as providing a thorough understanding of the history of the Southwest through the atypical medium of an autobiographical adventure story.
In our essay, Professor M. Cherif Bassiouni examines the conflicting policies of realpolitik and accountability in the context of international crimes. He demonstrates, through several examples from the twentieth century, how politicians around the world have granted impunity, whether de jure or de facto, to those suspected of committing international crimes. All hope is not lost, however, as Professor Bassiouni explains how the attitudes of international civil society have changed in recent years. As more citizens pressure their governments to hold war criminals accountable for their actions, the global community has begun to recognize the need for a system of international criminal justice. Professor Bassiouni concludes that the International Criminal Court is a step towards accountability for international crimes, and shares his vision of the future of that Court. Professor Bassiouni originally presented a modified version of this essay in April 1999 as part of the John R. Coen Lecture Series at the University of Colorado School of Law. The Coen Lecture series is made possible by a gift from Adrian S. Coen in memory of her husband, a distinguished member of the Colorado Bar Association and an able public speaker. The income from the Coen Trust is used to invite lawyers, jurists, and scholars to the University of Colorado School of Law to speak for the purpose of "prompt[ing the] understanding of the functions and responsibilities of the legal profession in a democratic society."
Our first comment examines the current state of the law regarding the patentability of computer software. The author first explains the unique nature of computer software, and considers the possible methods of intellectual property protection for software. After this examination, the author concludes that patents currently provide the best protection for computer software. The author then discusses the important case law that addressed patentability of computer software prior to 1998. Next, the author addresses the effects of the Federal Circuit's 1998 decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc. on the patentability of computer software, and predicts the continued viability of State Street. The author concludes with several suggestions for the improvement of the present patenting system for computer software, including an amendment to section 101 of the Patent Act that would reflect the holding in State Street and allow patent examiners to direct their attention to more important issues in determining whether a patent should issue for computer software.
Our second comment explores the definition of race within legal and social parameters. In particular, the author examines race within the framework of Critical Race and anti-essentialism theories. The comment provides a history of legal racial classifications enforced through the "one-drop rule" and naturalization laws, and demonstrates that the law and legal institutions have aided in the construction of race. In addition, the author exposes the problems faced by mixed-race individuals within this legal construction of race. This discussion presents the advantages and disadvantages of the Mixed-Race Category Movement and the problems with a multiracial category. The author explains that the absence of a multiracial subject in law has forced individuals to choose one race or another rather than a multiracial identity. In conclusion, the author suggests that "multiple consciousness" would be the preferred tool for building a new construct of multiracial identity, allowing multiracial individuals to choose "one and the other."
THE EDITORS