Law Commons^™

Corporate Criminal Liability: Toward A Compliance-Orientated Approach, Gustavo A. Jimenez

Indiana Journal of Global Legal Studies

Under U.S. federal law, a corporation can be held criminally liable for the crimes of its employees and agents. The Department of Justice's U.S. Attorneys' Manual lays out a list of factors prosecutors can evaluate when deciding whether or not to prosecute a corporate entity. The Department of Justice (DOJ) prosecutors have various tools at their disposal, including deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) as alternatives to going to trial. Prosecutors have used DPAs and NPAs in recent cases, allowing the government to ensure that corporate entities comply with investigations, enact compliance programs, and continue to follow laws …

The Domino Effect: How Inadequate Intellectual Property Rights In The Fashion Industry Affect Global Sustainability, Cassandra Elrod

Indiana Journal of Global Legal Studies

This note discusses an unexplored problem at the nexus of fashion and intellectual property law: how "fast fashion" leads to unsustainability of global resources and human rights issues pertaining to overseas manufacturing facilities. This unnecessary chain of events could be avoided if fashion designers were granted more substantial intellectual property rights rather than an overall lack of protection. Instead of turning a blind eye to the consequences of consumer demand and "fast fashion," Congress needs to address these issues head on through legislation that mirrors some of the copyright protections afforded fashion designers overseas

Legalization Under The Premises Of Globalization: Why And Where To Enforce Corporate Social Responsibility Codes, Anna Beckers

Indiana Journal of Global Legal Studies

This contribution advances the argument that global self-regulation through corporate social responsibility codes can and should be enforced under domestic private laws. Corporate social responsibility codes are defined as unilateral corporate commitments that indicate a corporation's willingness to take on a global regulatory role in the absence of a global political government-a phenomenon that is difficult to grasp from the perspective of traditional private law categories. The contribution thus starts by discussing the aspects in which private corporate codes and private law categories seem not to fit, and points to recent developments in substantive private law that could change this …

Enforcing Corporate Social Responsibility Codes Under Private Law: On The Disciplining Power Of Legal Doctrine, Jan M. Smits

Indiana Journal of Global Legal Studies

A central question in the debate on corporate social responsibility is to what extent CSR codes can be enforced among private parties. This contribution argues that this question is best answered by reference to the applicable doctrinal legal system. Such a doctrinal approach has recently regained importance in American scholarship, while it is still the prevailing method of legal analysis in Europe. Applying a doctrinal analysis of CSR codes allows for the possibility of private law enforcement, that is, enforcement by means of contract or tort, dependent on three different elements: the exact type of claim that is brought, the …

Why Domestic Enforcement Of Private Regulation Is (Not) The Answer: Making And Questioning The Case Of Corporate Social Responsibility Codes (Introduction), Anna Beckers, Mark Kawakami

Indiana Journal of Global Legal Studies

This issue aims to contribute to this debate by providing different perspectives on whether and how domestic enforcement of transnational private regulation through private law can and should be furthered, if at all. This is accomplished by narrowing the broader topic and focusing on the investigation of one particular area: the starting point of all the contributions will be the debate over private corporate social responsibility (CSR) codes and the case for or against their enforcement under domestic private law. These CSR codes are understood as codes of conduct developed and published by transnational corporations to show their globally applicable …

Corporate Codes In The Varieties Of Capitalism: How Their Enforcement Depends On The Differences Among Production Regimes, Gunther Teubner

Indiana Journal of Global Legal Studies

Globalization has reinforced the conflicts among the varieties of capitalism. The colliding units are not just nation states, but transnational production regimes, which cut through national boundaries. The conflicts lead global corporate codes, which are developed by international organizations, to take different directions when they are concretized on the enterprise level. They will be differently enforced according to whether they are located in Liberal Market Economies (LME), adapted to the New Sovereignty of enterprises, or in Coordinated Market Economies (CME) with greater components of social welfare state and economic democracy.

Different patterns of enforcement emerge particularly when the courts have …

A Treaty On Enforcing Human Rights Against Business: Closing The Loophole Or Getting Stuck In A Loop?, Pierre Theilbörger, Tobias Ackermann

Indiana Journal of Global Legal Studies

This Article takes a human rights law perspective on the issue of enforcing corporate social responsibility. While corporations receive a variety of rights under international law, they do not equally hold a corresponding set of duties. The Article assesses the merits and shortcomings of existing initiatives to bridge this gap, in particular the Special Representative to the Secretary-General's (legally nonbinding) Framework and Guiding Principles, as well as the most recent initiative at the United Nations Human Rights Council on developing a (legally binding) treaty on business and human rights. While emphasizing that existing legal frameworks-such as human rights law, international …

Corporate Codes As Private Co-Regulatory Instruments In Corporate Governance And Responsibility And Their Enforcement, Jan Eijsbouts

Indiana Journal of Global Legal Studies

Corporate Social Responsibility (CSR) codes have gained a prominent role as tools in self-regulation for companies to establish their basic values, norms, and rules that condition the conduct of directors, managers, employees, and-increasingly-of suppliers. This development must be seen in the light of two important paradigmatic changes in the concepts both of CSR and corporate governance. The former is no longer purely voluntary and the latter has become inclusive of CSR, each with far-reaching consequences for the raison d'itre and the place and function of the codes in the smart regulatory mix governing corporations. While the codes were based originally …

A Lex Mercatoria For Corporate Social Responsibility Codes Without The State? A Critique Of Legalization Within The State Under The Premises Of Globalization, Larry Catá Backer

Indiana Journal of Global Legal Studies

Recent efforts have sought to theorize the legalization of the social and economic sphere that is undiminished by time. Though the context has changed over time, the project remains the same-to embed behavior control within a network of mandatory proscriptions attached in some authoritative way to the state. Corporate social responsibility has been bound up in corporate codes of behavior and related private governance standards systems. In that form, it serves as a key site for the evolution of legalization and legitimacy in governance. That evolution appears to take corporate social responsibility from its twentieth century formalist rigidity into something …

Adrift In The Sea: The Impact Of The Business Supply Chain Transparency On Trafficking And Slavery Act Of 2015 On Forced Labor In The Thai Fishing Industry, Katharine Fischman

Indiana Journal of Global Legal Studies

Hundreds of thousands of men and boys are trafficked and enslaved on long-haul fishing boats in the waters off the coast of Thailand. These captives endure physical and mental abuse, inhumane working conditions, meager sustenance, and little sleep as they are forced to catch fish used in products such as cat food. This Note will focus on whether a proposed Act-the Business Supply Chain Transparency on Trafficking and Slavery Act of 2015 (BSCT)-would impact the issue of forced labor linked to the seafood industry in Thailand, and particularly the portion of the industry that supplies fish used in American brand …

Pitfalls Of Over-Legalization: When The Law Crowds Out And Spills Over, Mark Kawakami

Indiana Journal of Global Legal Studies

While some academics argue that enforcing voluntary corporate codes of conduct with private law backed sanctions can improve the working conditions of marginalized workers in the global supply chain, there are various risks associated with this "legalization" process. Relying on evidence from the fields of sociology, psychology, and evolutionary anthropology, this contribution will discuss how external incentives like threats of legal sanctions can actually be detrimental to the intrinsic motivations of companies that want to be socially responsible. This paper will also analyze how the crowding out effect and the spillover effect that come with legalizing otherwise voluntary norms could …

Transatlantic Influences On American Corporate Jurisprudence: Theorizing The Corporation In The United States, Tara Helfman

Indiana Journal of Global Legal Studies

In interpreting and evaluating the history of the Supreme Court's corporate jurisprudence, legal scholars have deployed three broad theories of corporate legal personality: the aggregate entity theory, the artificial entity theory, and the real entity theory. While these theories are powerful ways of conceptualizing the corporation, this article shows that they have not been as central to the Supreme Court's corporate jurisprudence as recent scholarship suggests. It instead argues that historic transformations in the high court's corporate jurisprudence are best understood in light of contemporary intellectual currents rather than through an expost facto application of the aggregate, artificial, and real …

Contract-Boundary-Spanning Governance Mechanisms: Conceptualizing Fragmented And Globalized Production As Collectively Governed Entities, Jaakko Salminen

Indiana Journal of Global Legal Studies

Conceptualizing how private actors can and should control their supply chains is a tricky question with both economic and legal dimensions. The topic is of extreme importance in today's global economy. On the one hand, this importance is highlighted by events such as the catastrophic and deadly collapse of the Rana Plaza factory building in Bangladesh and the economic fiasco of the Olkiluoto 3 nuclear power plant construction project in Finland, both arguably caused by the lack of effective supply chain governance. On the other hand, the potential benefits of successful supply chain governance, shown by examples such as open …

The Race To Safety: How Private Lawmaking And Voluntary-Standard Adoption Can Inspire A Global Regime That Strengthens And Harmonizes Product Safety Standards, Alexandra Muir

Indiana Journal of Global Legal Studies

Today's economy is dominated by global actors. Over the past few decades, transnational corporations have increased in number and importance while domestic corporations have turned to outsourcing to cut costs and increase efficiency. The globalized economy has caused a breakdown in both physical and legal boundaries, as products in international commerce move from one jurisdiction to another, often adhering to safety standards of an entirely different jurisdiction than the one in which they are sold. This breakdown raises concerns about product safety and illustrates the importance of creating a consistent products liability regime for the international market. At the same …

Global Data Meets 3-D Printing: The Quest For A Balanced And Globally Collaborative Solution To Prevent Patent Infringement In The Foreseeable 3-D Printing Revolution, Tyler Macik

Indiana Journal of Global Legal Studies

This Note explores a potential global solution to the foreseeable patent infringement problems with 3-D printing and do-it-yourself users. More specifically, at a time when 3-D printing is quickly gaining popularity and recognition for its many beneficial applications through advancements in printing and scanning technology, the current state of patent law lacks the ability to detect and prevent patent infringement among do-it-yourself users of 3-D printing. I propose a potential global solution that would provide a balance between fostering growth in 3-D printing and upholding patentees' rights by exploring the possibility of creating a collaborative, intergovernmental 3-D CAD file database …

Breaking The Curse: A Multilayered Regulatory Approach, Hunter Dekoninck

Indiana Journal of Global Legal Studies

Eastern Africa has been plagued for generations with what Richard Auty considers 'The Resource Curse." This curse, translated into modern economic tragedies, is the exploitive extraction and use of precious minerals from Eastern Africa, specifically the Democratic Republic of the Congo (DRC). As a result of attempts to combat the international market that perpetuates this curse, Section 1502 of the Dodd-Frank Wall Street Reform Act, largely in response to human rights activism, passed into law a provision requiring companies to account to the Securities and Exchange Commission (SEC) for their use of certain listed foreign minerals. Although such regulation is …

A Call For Truth In The Fashion Pages: What Global Trend In Advertising Regulation Means For U.S. Beauty And Fashion Advertisers, Ashley O'Neil

Indiana Journal of Global Legal Studies

The advertising industry serves an important purpose in our society by acting as the main source of information for consumers about products. Global advertisement spending reaches into the hundreds of billions of dollars annually. Because advertising plays such a large role in the economy, regulators across the globe have increasingly sought to promote truth in advertising. As a result, advertising regulation has exploded in the recent decades. Recently, the beauty and fashion industries have come under fire from advertising regulatory bodies, most notably in Europe, for misleading and offensive advertising practices. Regulators and interest groups are concerned by the unrealistic …