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Indiana International & Comparative Law Review INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW VOLUME 8 1997-1998 Indiana International & Comparative Law Review Vol.. No. I 1997 Indiana University School of Law- Indianapolis 735 West New York Street, Indianapolis, Indiana 46202-5194 Cite this publication as IND. INT'L & COMP. L. REV. The Indiana International and Comparative Law Review publishes professional and student scholarly articles in the fields of international or comparative law. The Review welcomes submissions of scholarly legal articles on those topics. The ideas, views, opinions, and conclusions expressed in articles appearing in this publication are those of the authors and not those of the Review or of Indiana University School of Law-Indianapolis. Currently, the Review is published twice per year. The cost of single issues is $9.00, and the subscription rate is $18.00 per volume. The annual sub- scription rate for a foreign subscriber is $21.00. Inquiries regarding submission of articles and comments or subscription information may be directed to: Indiana International & Comparative Law Review 735 W. New York St. Indianapolis, IN 46202-5194 (317) 274-1050 (317) 274-8825 (fax) COPYRIGHT AND FAIR USE Copyright © 1997 by the Trustees of Indiana University Except where expressly noted in this publication, permission is granted to reproduce, distribute, or display individual works from this publication in whole or in part for nonprofit educational purposes. All copies made, distributed, or displayed for such purposes must carry copyright notice of the author and source of the work on every copy, and each copy may be distributed only at or below cost. The permission herein granted is in addition to rights of reproduction conferred by Sections 107, 108, and other provisions of the U.S. Copyright Act and its amendments. The Review is printed and distributed by Western Newspaper Publishing Company, Inc., 537 E. Ohio St., Indianapolis, IN 46204-2173. INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW VOLUME 8 1997 NUMBER 1 TABLE OF CONTENTS ARTICLES Law and Governance Affecting the Resolution of Academic and Disciplinary Disputes at Scottish Universities: An American Perspective ............ Fernand N. Dutile 1 Noncompliance with TRIPs by Developed and Developing Countries: Is TRIPs Working? ............ John E. Giust 69 ADDRESS The Russian Courts and the Russian Constitution ........................ Peter B. Maggs 99 COMMENTS Squatters' Rights and Adverse Possession: A Search for Equitable Application of Property Laws . ............................... 119 The United States and the World Need an International Criminal Court as an Ally in the War Against Terrorism .......................... 159 Discretion and Valor at the Russian Constitutional Court: Adjudicating the Russian Constitutions in the Civil-Law Tradition . ............................. 189 LAW AND GOVERNANCE AFFECTING THE RESOLUTION OF ACADEMIC AND DISCIPLINARY DISPUTES AT SCOTTISH UNIVERSITIES: AN AMERICAN PERSPECTIVE FernandN. Dutile" I. INTRODUCTION At the entrance to St. Mary's College, a part of the University of St. Andrews in Scotland, one encounters the opening words of the Gospel of St. 2 John: "In principio erat verbum."I Eschewing the usual translation, students there irreverently render the passage thus: "The Principal has the last word." 3 The existence of the position of Principal in a university and the substantial power of that official cause only part of the fascination experienced by the American observer of universities in Scotland. This article will assess, from an American perspective, the law and governance affecting the resolution of academic and disciplinary disputes involving students at Scottish universities. This analysis will reflect the many ways in which the treatment of such disputes in Scotland both differs from and resembles their treatment in the United States. 4 In a compromise of manageability and comprehensiveness, the eight (of thirteen)5 Scottish universities first constituted provide the focus for this Article.6 Among those * Associate Dean and Professor of Law, Notre Dame Law School; A.B., Assumption College, 1962; J.D., University of Notre Dame, 1965; Admitted to the Maine Bar, 1965. The author did much of the research for this article as a Senior Visiting Fellow at the University of Aberdeen (Scotland) during the summer of 1996. He is deeply indebted to Christopher H. W. Gane, Professor of Scots Law and Dean of the Faculty of Law at the University of Aberdeen, for making that appointment possible and the period in residence both productive and enjoyable. The author thanks as well all those who provided informtion, oral or written, to this project; many of them are cited in footnotes to this piece. Thanks go also to my secretary, Nancy Beaudoin, for her good help. A research grant from the Notre Dame Law School greatly facilitated my work in Scotland. 1. St. John 1:1. 2. "In the beginning was the Word." 3. Interview with Frank Quinault, Hebdomadar, Univ. of St. Andrews, in St. Andrews, Scot. (July 18, 1996). 4. For a similar study regarding Australian universities, see Fernand N. Dutile, Law, Governance, and Academic and Disciplinary Decisions in Australian Universities: An American Perspective, 13 ARIz. J. INT'L. & COMP. L. 69 (1996). 5. See infra text accompanying note 18. 6. The eight universities are St. Andrews, with 5,414 students in 1994-95, UNIVERSITY OF ST. ANDREWS, PROSPECTUS 1996 ENTRY, at 8; Glasgow, with 16,555 students in 1994-95, UNIVERSITY OF GLASGOW, FACTS AND FIGURES: 1995; Aberdeen, with 9,650 students, EDUCATION YEARBOOK 1995/96, at 349; Edinburgh, with 15,208 students, UNIVERSITY OF EDINBURGH, FACTS AND FIGURES: 1995; Strathclyde, with 12,600 students in 1994-95, interview with Susan Mellows, Academic Registrar, Univ. of Strathclyde, in Glasgow, Scot. (July 5, 1996) [hereinafter Mellows Interview]; Heriot-Watt, with 4,500 students in 1995-96, interview with Ralph Parkinson, Senior Assistant Secretary, Heriot-Watt Univ., in Edinburgh, IND. INT'L & COMP. L. REv. [Vol. 8:1 eight, the University of Aberdeen, at which the author did most of the research for this piece, garners particular attention. Scotland is the northern constituent part of the United Kingdom. This resulted from the union of its Parliament with that of England under the Treaty of Union in 1707, just over a century after the union of the crowns of these two countries.7 Though not a state, to this day most Scots consider Scotland a nation.8 Today, Scotland has a population well over 5,000,000.9 Three of Scotland's universities, recognized as such by papal decree,10 date from before the Reformation: St. Andrews, founded in 1411; Glasgow, founded in 1451; and Aberdeen, founded in 1494. Because, early on, Scots tended to seek higher education on the Continent rather than in the south of Britain, Scottish education took on a European rather than an English tradition; accordingly, these three universities reflected the "student- led pattern of Bologna rather than the master-dominated pattern of Oxford."" This pattern builds on the idea of an academic community, with students as full-fledged members carrying rights and responsibilities."2 King James VI of Scotland-later to be James I of England-chartered the University of Edinburgh, founded in 1583 as the first post-Reformation university in the country. 3 These four so-called "ancient universities" 4 Scot. (July 19, 1996) [hereinafter Parkinson Interview]; Dundee, with 6,498 students, EDUCATION YEARBOOK 1995/96, at 349; and Stirling, with 5,200 students, interview with Dennis Farrington, Deputy Secretary and Clerk to the Court, Univ. of Stirling, in Stirling, Scot. (July 4, 1996) [hereinafter Farrington Interview]. Comparisons with specific American universities appear principally in the footnotes. These comparisons focus on two large public universities-the University of Michigan and Indiana University (at Bloomington). In the fall of 1994, the University of Michigan enrolled 36,543 students, the fourteenth largest enrollment in the United States; Indiana University enrolled 35,594, the seventeenth largest enrollment in the United States. CHRON. OF HIGHER EDUC.: ALMANAC ISSUE, Sept. 2, 1996, at 16. Much of the information relating to the University of Michigan and to Indiana University first appeared in Dutile, supra note 4, passim. 7. THE CAMBRIDGE ENCYCLOPEDIA 987 (David Crystal ed., 2d ed. 1994). 8. ROBIN M. WHITE & LAN D. WILLOCH, THE SCOTTISH LEGAL SYSTEM 6 (1993). 9. THE CAMBRIDGE ENCYCLOPEDIA, supra note 7, at 986. 10. At Aberdeen, for example, "the Papal Bull of February 10, 1495 granted by Pope Alexander VI (Roderigo Borgia) on the petition of King James IV of Scotland erected a studium generale and university for the study of, inter alia, civil law." Michael C. Meston, The Civilists of Aberdeen: 1495-1995, 1995 JURID. REV. 153, 153. 11. COLLINS ENCYCLOPAEDIA OF SCOTLAND 346 (John Keay & Julia Keay eds., 1994). 12. UNIVERSITY OF STIRLING, HANDBOOK FOR STUDENTS 3 (1995-96) [hereinafter STIRLING HANDBOOK]. 13. ASSOCIATION OF COMMONWEALTH UNIV., 2 COMMONWEALTH UNIVERSITIES YEARBOOK 1290 (1995-96). 14. Charles Henderson & Frank Mattison, Universities and the Law, in CONFERENCE OF UNIVERSITY ADMINISTRATORS, UNIVERSITIES AND THE LAW 9 (Dennis Farrington & Frank Mattison eds., 1990). They are referred to as "the older Universities" in THE UNIVERSITIES 1997] DISCIPLINARY DIsPuTEs AT SCOTTISH UNIVERSITIES stood alone until well into the twentieth century. In the 1960s, four new universities were constituted (the University of Strathclyde in 1964, Heriot- Watt University in 1966, and both the University of Dundee and the University of Stirling in 1967). These four universities are controlled by Royal Charter.' 5 Only one of these four, the University of Stirling, was wholly new,' 6 the other three having evolved from pre-existing institutions.17 Finally, in 1992-93, five new universities, all descendants of former colleges, emerged (Abertay, Napier, Robert Gordon, Paisley and Glasgow Caledonian).' 8 For the 1993-94 academic year, Scotland boasted a total of 68,004 full-time university students, of whom 58,637 were undergraduates.' 9 Some universities have faced enormous growth; the student population at St.
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