Law Commons^™

Dependency By Law: Poverty, Identity, And Welfare Privatization, Frank Munger

Indiana Journal of Global Legal Studies

Privatization of welfare reflects the political pressure to limit public responsibility for protection of social citizenship. Recent welfare reforms incorporate three classic market-like privatization mechanisms--contracting out services forcing allocation of a limited pool of benefits, and deregulation. Deregulation entails strategic diversion and disqualification of large numbers of would-be applicants who are left without alternatives to the labor market. In this article I discuss an empirical study of the effects of deregulation of welfare on the self-perceptions of recipients. Interviews with recipients and with low-wage health care workers, former recipients, show that, criticisms of welfare notwithstanding, they have embraced welfare reform's …

Modern Condottieri In Iraq: Privatizing War From The Perspective Of International Human Rights Law, Antenor Hallo De Wolf

Indiana Journal of Global Legal Studies

No abstract provided.

The Forgotten Threat: Private Policing And The State, Elizabeth E. Joh

Indiana Journal of Global Legal Studies

What do Disneyland, the Abu Ghraib U.S. military prison, the Mall ofAmerica, and the Y-12 nuclear security complex in Oak Ridge, Tennessee have in common? They have wildly different purposes, but they share a common characteristic as employers of private police. This answer-indicative of the prevalence and numbers of private police today-would have struck the nineteenth -century observer as evidence of a gross failure by the state. Yet that reaction, in turn, would seem odd to us. Vocal support of private police can be found among public police chiefs, lawmakers, and even President Bush.

What kinds of criticisms were once …

Separation Of Church And State In The United States: Lost In Translation, Carol J. Greenhouse

Indiana Journal of Global Legal Studies

In this article, the absence of an American equivalent to the French word laĭcité becomes an ethnographic opening to an exploration of the church-state divide in the U.S. context. Drawing on classic social theory, sociological accounts, and current events, I suggest that the constitutional separation of church and state-in addition to whatever it may mean in legal terms-also expresses a cultural proposition. Specifically, the separation of church and state posits a dual role for local communities as both the source of federal power (through representative government) and the foundation of its moral authority. The latter role can be sustained only …

Secularization, Religiosity, And The United States Constitution, Christopher L. Eisgruber

Indiana Journal of Global Legal Studies

This article draws upon leading works in the sociology of religion to assess what I shall call "the secularization claim" regarding the United States. It endeavors, in particular to clarify the possible meanings of "secularization,"and then to use these conceptual refinements to examine what sort of evidence exists that the United States has been secularized. Though it is not possible to falsify every version of the secularization claim, there is little evidence to support it, especially in its most prominent and politically relevant variations. The article then goes on to offer a preliminary analysis of to what extent, if any, …

Church And State In The United States: Competing Conceptions And Historic Changes, Douglas Laycock

Indiana Journal of Global Legal Studies

This article, originally written for a French audience, attempts to explain the American law of church and state from the ground up, assuming no background information. Basic legal provisions are explained. The relevant American history is periodized in three alignments of religious conflict: Protestant-Protestant, Protestant-Catholic, and religious-secular. Some frequently heard concepts are explained, distinguished, and related to each other-separation, voluntarism, equality, formal and substantive neutrality, liberty, toleration, and state action. Finally, the principal disputes over religious liberty are assessed in three broad areas-funding of religiously affiliated activities, religious speech (with and without government sponsorship), and regulation of religious practice. These …

Religious Exemptions, Formal Neutrality, And Laïcité, Frederick Mark Gedicks

Indiana Journal of Global Legal Studies

Rights to free exercise in the United States are governed by a doctrine of formal neutrality, which seems to resemble the French doctrine of la'cit6. This resemblance tempts one to conclude that the doctrinal regimes of religious liberty in the United States and France are also essentially the same. Despite their superficial resemblance, however formal neutrality and laĭcité generate regimes of religious liberty that are substantially, even radically, different. Notwithstanding conceptually similar organizing principles, there is a significant difference in the substance of religious liberty in the United States and France owing to very different conceptions of the proper role …

Why Religion In Politics Does Not Violate La Conception Américaine De La Laïcité, Michael J. Perry

Indiana Journal of Global Legal Studies

La conception Am6ricaine de la Laĭcité consists principally of a constitutional norm-the nonestablishment norm-and of the laW that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government-both the national government and state government-to "establish" religion. American laYcit6 also consists of what we may call "the morality of liberal democracy. " My aim in this essay is to explain why religion in politics does not violate American laYcit6; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal …

Help For Hotspots: Ngo Participation In The Preservation Of Worldwide Diversity, Bradley M. Bernau

Indiana Journal of Global Legal Studies

This Note explores the role that nongovernmental organizations can and do play in the preservation of global biodiversity hotspots. The hotspot concept-developed in the late 1980s alongside the new field of conservation biology-identifies particular areas of the world that contain high levels of endemic species that are highly threatened or endangered. Some experts have argued that by focusing species conservation efforts on these areas, a maximum amount of species can be protected and preserved using a minimum amount of time, money, and effort, allowing the remaining, scarce funds and resources to be directed toward species conservation efforts elsewhere.

Without commenting …

Using Global Themes To Reframe The Bioprospecting Debate, Jonathan B. Warner

Indiana Journal of Global Legal Studies

The objective of this Note is to use global themes and perspectives to aid in reframing the bioprospecting debate. The current state of this debate, its problems, and proposed solutions are reviewed. In looking at the impact of local responses to globalization on bioprospecting themes, I propose that more internationally competitive laws could allow an escape from some of the undesired effects of bioprospecting, while promoting more desired effects. I also suggest, independently, that undesired effects could be avoided and desired effects promoted through methods that seek to recognize the global identity of concerned citizens.

Challenges For Private Sector Conservation: Sanderson's The Future Of Conservation In Tierra Del Fuego, Julia Amrock

Indiana Journal of Global Legal Studies

To date, global protection of biodiversity has been largely dominated by governmental actors. Ecosystems transcending state boundaries find themselves at the mercy of international agreements, for better or for worse. Steven Sanderson of the Wildlife Conservation Society (WCS) suggested for worse in The Future of Conservation, but he gave hope for more effective environmental conservation, if the private sector could gain more standing globally. The plan that Sanderson created for self-assertion of nongovernmental environmental groups describes approaches typically endorsed not by NGOs but by governments: global alliances, political strategy, human-centered conservation, and economic development. This Note isolates the current use …

Religious Expression And Symbolism In The American Constitutional Tradition: Government Neutrality, But Not Indifference, Daniel O. Conkle

Indiana Journal of Global Legal Studies

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition. Comparing these three principles …

Laïcité In The United States Or The Separation Of Church And State In Pluralist Society, Elisabeth Zoller

Indiana Journal of Global Legal Studies

No abstract provided.

The International Tribunal For The Law Of The Sea: A Great Mistake? (The Earl Snyder Lecture In International Law), Jillaine Seymour

Indiana Journal of Global Legal Studies

This article discusses the International Tribunal for the Law of the Sea and questions its role and value. The U.N. Convention on the Law of the Sea seems to contemplate fairly extensive jurisdiction for the Tribunal, but since its inception, the Tribunal has heard a very limited number and scope of cases, in part because disputants have other options for adjudication. This article provides a detailed discussion of the jurisdiction of the Tribunal. The Tribunal has compulsory jurisdiction in "prompt release" cases and in claims for provisional measures where the arbitral tribunal before which the claim will ultimately be brought …

Workers' Rights Provisions In Fast Track Authority, 1974-2007; An Historical Perspective And Current Analysis, Carol J. Pier

Indiana Journal of Global Legal Studies

This article examines the trajectory of workers' rights provisions in 'fast track" authority legislation allowing the U.S. president to negotiate free trade agreements that Congress can only approve or reject, not amend. I begin my analysis with the Trade Act of1974 and continue through the expiration of fast track authority in 1994. Against this backdrop, I critique the workers' rights negotiating objectives and priorities in the Bipartisan Trade Promotion Authority Act of 2002 (TPA). Relying on TPA's confused legislative history and basic rules of statutory interpretation, the article seeks to interpret TPA's workers' rights provisions. It concludes by examining the …

Beyond A Snapshot: Preventing Human Trafficking In The Global Economy, Janie Chuang

Indiana Journal of Global Legal Studies

Current legal responses to the problem of human trafficking often reflect a deep reluctance to address the socioeconomic root causes of the problem. Because they approach trafficking as an act (or series of acts) of violence, most responses focus predominantly on prosecuting traffickers, and to a lesser extent, protecting trafficked persons. While such approaches might account for the consequences of trafficking, they tend to overlook the broader socioeconomic reality that drives trafficking in human beings. Against this backdrop, this article seeks to reframe trafficking as a migratory response to current globalizing socioeconomic trends. It argues that, to be effective, countertrafficking …

The Use And Misuse Of Comparative Constitutional Law (The George P. Smith Lecture In International Law), Cheryl Saunders

Indiana Journal of Global Legal Studies

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in …

Making Visible The Invisible: Strategies For Responding To Globalization's Impact On Immigrant Workers In The United States, Sarah Paoletti

Indiana Journal of Global Legal Studies

This article explores the impact of globalization on immigrant workers in the United States. Although Congress created programs to provide vocational training services and cash allowances to workers who qualified by virtue of having lost their jobs as a result of the adverse impacts of trade, these programs have done little to assist many of the immigrant workers displaced by shifting labor markets. Through critical review of two case studies, the article pursues a more comprehensive understanding of the reasons the system failed these workers, in order to better respond to systematic barriers placed in the way of limited-English proficient …

The New Politics Of Linkage: India's Opposition To The Worker's Rights Clause, Kevin Kolben

Indiana Journal of Global Legal Studies

This article examines why India has opposed a World Trade Organization (WTO) workers' rights clause, and calls for a new way of thinking about international institutions and the link between trade and labor rights. Many labor rights supporters argue that labor rights principles should be integrated into the WTO, either via the addition of a workers' rights clause or through a 'judicial" reading of labor rights values into the existing WTO framework. But India has led a large block of developing countries in opposing any link between labor rights and the WTO. This opposition has been based primarily on economic …

The Organization Of Care Work In Italy: Gender And Migrant Labor In The New Economy, Dawn Lyon

Indiana Journal of Global Legal Studies

This articled discussed social, political, and economic aspects--particularly, gender and race-based implications-of the organization of elder care work in Italy and globally. Care work for the elderly is a particularly acute concern in Italy and across Europe, as the population is aging while women (the traditional caregivers) have joined the labor force in record numbers and family size has decreased. As the supply of informal female carers has decreased, the need for elder care is increasing. In Italy, a significant trend is the employment of migrant female workers (many from Latin American, Eastern European, and African nations) for home-based elder …

The Parallel Worlds Of Corporate Governance And Labor Law, Peer Zumbansen

Indiana Journal of Global Legal Studies

This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate much further-reaching set of developments in norm creation and legal regulation. TL is here understood not only as a body of legal norms, but it is also employed as a methodological approach to illustrate common and shared challenges and responses to legal regulatory systems worldwide. In the case of …

Theocratic Constitutionalism: An Introduction To A New Global Legal Ordering, Larry Catá Backer

Indiana Journal of Global Legal Studies

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political selfconstitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance …

Protecting Families In A Global Economy, Kenneth G. Dau-Schmidt, Carmen Brun

Indiana Journal of Global Legal Studies

The globalization of the economy has placed tremendous pressure on the modern family. Throughout the developed world, marriage rates are declining, birth and fertility rates are falling, real wages are flat or declining, and hours of family external labor supplied are rising. Finding a spouse and raising children can be inconsistent with the demands of careers in the global economy of the new information age. Globalization of the economy tends to encourage individualism and mobility, in direct opposition to family relationships. Moreover; the extensive period of training that is necessary to compete in the global economy interferes with marriage and …