Transnational Law Commons^™

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …

Personal Jurisdiction: The Transnational Difference, Austen L. Parrish

Articles by Maurer Faculty

This Article engages with some of the key debates that have emerged among international Iaw and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court's docket. It makes three principal contributions. First, it explains how the recent decisions involving persona jurisdiction should be understood within, and partly limited to, their international contexts. Disputes in involving non-resident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to …

Private International Law's Shadow Contribution To The Question Of Informal Transnational Authority, Horatia M. Watt

Indiana Journal of Global Legal Studies

This contribution attempts to approach informal transnational authority through the lens of critical private international law. It subscribes to the underlying idea within this volume, according to which the workings of the highly complex dynamic between the public and the private are cardinal to understanding contemporary global shifts in transnational authority, placing the rise of informal transnational authority at its epicenter. Expressions of private authority in the global arena take place outside formal legal discourse. Capital expanding beyond state boundaries has organized its own forms of authority, which arbitrate, enforce and legitimize new processes and structures beyond the state. To …

The Judicialization Of Private Transnational Power And Authority, A. Claire Cutler

Indiana Journal of Global Legal Studies

This article examines the judicialization of private systems of governance that are transforming "common sense" understandings of who should govern states, societies, and political economies. The focus is on the private transnational institutions and processes in the global investment and financial regimes. These regimes contribute to the maintenance and expansion of capitalism by assisting in the management and mitigation of risk, but they also participate in the construction of the sorts of risks that require management and mitigation. In so doing, they are deeply involved in determining what requires governance, as well determining the appropriate mechanisms and manner of governance. …

Policing Corruption Post- And Pre-Crime: Collective Action And Private Authority In The Maritime Industry, Hans K. Hansen

Indiana Journal of Global Legal Studies

How are we to understand the proliferating attempts amongst transactional corporations (TNCs) at collectively reducing the risk of corruption in business operations and interactions with state officials around the world? How are these endeavors linked to transformations of public and private authority in the global political economy? Premised on the observation that corruption is globalized and the growing efforts at tackling it equally so, this article draws on the literatures on private authority, governmentality, and criminological studies to explore anticorruption in terms of pre-crime and post-crime policing. The case of the maritime industry is analyzed, including the ways in which …

Shifting Between Public And Private: The Reconfiguration Of Global Environmental Regulation, Orr Karassin, Oren Perez

Indiana Journal of Global Legal Studies

Over the past two centuries, public environmental regulation (PER) has been progressively supplemented by private transnational regulation (PTR), creating a hybrid environmental governance regime. A fivecategory typology is developed to describe the ways in which international and national PER interact with private forms of environmental regulation. We then analyze the policy considerations that are relevant to the design of such hybrid regimes and various forms of interaction. Next, we describe two case studies that demonstrate the diversity of interactions between PER and PTR in a single regime. The case of sustainability reporting illustrates how public law builds on the expertise …

The Public And Its Problems: How The Eu's Capital Market Union Defines The Bounds Of Legitimate Knowledge And Redraws The Boundaries Of (Public) Authority, Timo Walter, Oliver Kessler

Indiana Journal of Global Legal Studies

Recent years have seen increasing theoretical and practical attempts to come to terms with the strains on public authority at the level of transnational regulation and governance. For the most part, these have followed what could be called a strategy of transposition, seeking to install functional equivalents to familiar forms of nation-state or Westphalian public authority. While useful for some analytical purposes, the validity of this strategy depends on the nature of public authority remaining unchanged: the same 'function' is now fulfilled by somebody else. In this article, we argue, in contrast, that the very form of public authority has …

Transnational Private Authority In The Sphere Of Education, Eva Hartmann

Indiana Journal of Global Legal Studies

It seems that an ever-shorter temporal rhythm is gaining ground with the end of the "short twentieth century, 'I challenging the modern temporal horizon. The emerging economy relies on a continuous stream of scientific and technical knowledge closely related to information technology and networks. The increasing compression of both time and space has major consequences for the governance of the economy and the setting of authoritative standards in this sphere. This paper explores the consequences for education and training and its governance, where continuing education has become crucial. It studies the setting of authoritative standards in the field of information …

Efficiency Or Power? The Rise Of The Shareholder-Oriented Joint Stock Corporation, Paddy Ireland

Indiana Journal of Global Legal Studies

This paper explores the attempts to depict the global rise to dominance of the shareholder-orientedj oint stock corporationa s largely economically determined and to portray these corporations as fundamentally 'rivate" in nature. By analyzing the economic nature of the joint stock companies (JSCs) that emerged in growing numbers in the nineteenth century, the historical construction of a corporate legal form to accommodate them, and the very different possible futures contained within their rise (one highly "financialized," the other increasingly "socialized'), the paper argues that special interests and power lie behind what is often dressed up as economic efficiency. Against this …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Indiana Journal of Global Legal Studies

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

The Status Of Authority In The Globalizing Economy: Beyond The Public/Private Distinction, Eva Hartmann, Poul F. Kjaer

Indiana Journal of Global Legal Studies

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one.' Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use a term John Ruggie coined. 2 The concerns have also helped nationalistic movements to gain power in many high-income …

Editor's Note, Alfred C. Aman, Brandon S. Dawson

Indiana Journal of Global Legal Studies

No abstract provided.

The President's Private Dictionary: How Secret Definitions Undermine Domestic And Transnational Efforts At Executive Branch Accountability, Sudha Setty

Indiana Journal of Global Legal Studies

The 2016 EU-U.S. Privacy Shield is an agreement allowing companies to move customer data between the European Union and the United States without running afoul of heightened privacy protections in the European Union. It was developed in response to EU concerns that the privacy rights of its citizens have been systematically abrogated by the U.S. government in the name of national security, and contains a variety of assurances that the United States will respect and protect the privacy rights of EU citizens.

How trustworthy are the U.S. assurances under the Privacy Shield? Both the Bush and Obama administrations secretly interpreted …

Behavioral Public Choice, U.S. National Security Interests, And Transnational Security Decision Making, David G. Delaney

Indiana Journal of Global Legal Studies

Transnational law both shapes and is shaped by policy decisions of public officials addressing global terrorist threats. These and other interrelated security and human rights concerns challenge executive officials in national governments and international organizations to simultaneously advance the rule of law and pursue other important welfare interests. This Article explores opportunities for transnational executives to improve their work and transnational legal frameworks. It proposes that behavioral insights into decision making and public policy making provide essential lessons for those efforts. The U.S. experience developing new policies to interrogate suspected terrorists following the Al Qaeda attacks of September 2001 provides …

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 …

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 …

Fading Extraterritoriality And Isolationism? Developments In The United States, Austen L. Parrish

Indiana Journal of Global Legal Studies

Having the opportunity to deliver the twelfth Snyder Lecture is a privilege in part because of the distinguished scholars who have given the lecture in the past. It is also a privilege because of Earl Snyder himself. Earl was visionary in supporting these cross-Atlantic intellectual exchanges and ahead of his time in appreciating the value of studying transnationalism in its many forms. Today, in that tradition, my aim is to give you a sense of how the procedural rules of international civil litigation are developing and changing in the United States, and how those developments in turn affect more traditional …

Fractured Territories And Abstracted Terrains: Human Rights Governance Regimes Within And Beyond The State, Larry Catá Backer

Indiana Journal of Global Legal Studies

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the …

Decentering Human Rights From The International Order Of States: The Alignment And Interaction Of Transnational Policy Channels, Radu G. Mares

Indiana Journal of Global Legal Studies

This article accounts for recent developments in corporate social responsibility, international trade and investment law, international human rights law, development aid, and the laws of home states reaching extraterritorially in order to advance a regulatory perspective on commerce and human rights. While these developments are remarkable, the analysis documents the prevalence of softer strategies and a corresponding scarcity of coercive legalization strategies. The question, then, is how to reason about these recent developments and their genuine potential for human rights protection. The article proposes two elements-a root-cause orientation and the interaction of policy channels-as indispensable for a regulatory and systemic …

Hydropower Development And Involuntary Displacement: Toward A Global Solution, Ali Vancleef

Indiana Journal of Global Legal Studies

This Note addresses the effects of hydropower development projects on displaced persons globally. This Note recognizes that the increasing global energy demand puts great strain on nations to provide their people with electricity, but it also suggests that sustainable energy development projects can be carried out in a way that is fair to the indigenous populations surrounding hydropower dams. The current global trend in involuntary displacement involves ignoring certain groups of affected persons while undercompensating directly displaced persons, leading to homelessness, social stigmatization, and extreme poverty for millions of people worldwide. Thus far, there has been no sufficient global solution …

No Ordinary Fish Tale: Working Toward A Transnational Solution To The Cod Crisis In The Gulf Of Maine, Michael Ruderman

Indiana Law Journal

In response to a National Oceanic and Atmospheric Administration (NOAA) survey that showed “record-low levels of abundance” of groundfish in the Gulf of Maine (“Gulf”), local fisherman Brian Pearce asserted: “It concerns [me] that what [NOAA is] saying and what we [the local fishermen] are seeing is such a contrast . . . . Who sees more fish in the ocean than the fishermen?” Despite Mr. Pearce’s skepticism, the state of the cod fishery in the Gulf of Maine—home to “critical” and “legendary" fishing grounds in Canadian and American territories—is, in fact, dire. According to the NOAA survey, conducted in …

The Financial Crisis, The European Union Institutional Order, And Constitutional Responsibility, Maastricht Treaty, Democracy Deficit, Lisbon Treaty,, Paul Craig

Indiana Journal of Global Legal Studies

The financial crisis sent shock waves throughout the European Union, the effects of which are still being felt. This article focuses on the institutional dimension of the crisis, and examines its impact on the relationship between the member states and the European Union, and between the organs of the European Union itself. The analysis is undertaken from a temporal perspective. It begins with consideration of the treaty provisions that shaped the balance of power within the European Union, and who bears the primary responsibility for this form of institutional ordering. It is argued that while there is a very considerable …

Law, Fiscal Federalism, And Austerity, R. Daniel Kelemen

Indiana Journal of Global Legal Studies

In response to the Eurozone crisis, European Union leaders have undertaken a number of dramatic reforms, including the imposition of a new regime for fiscal governance of Eurozone Member States. The 2012 Fiscal Compact Treaty, one of the lynchpins of this package of reforms, requires states to incorporate judicially enforceable balanced-budget rules into national law. This article explores this effort to judicialize austerity in the European Union, focusing on two interrelated sets of questions. First, why did EU leaders turn to the courts and ask them to become the stewards of fiscal discipline, and second, should we expect the effort …

Potential Exit From The Eurozone: The Case Of Spain, Antonio Estella

Indiana Journal of Global Legal Studies

According to a recent opinion poll that covered seven members of the Eurozone, Spain would be the Member State of this group that is most in favor of leaving the euro. In this public opinion context, and above all since the summer of 2012, debate has been growing in this country about the prospects of its exiting the European Monetary Union. In this article I argue that there are good reasons for taking this debate seriously. Using Spain as a case study, I analyze what the determinants of this decision could be. In particular, I analyze the economic determinants that …

Austerity, The European Council, And The Institutional Future Of The European Union: A Proposal To Strengthen The Presidency Of The European Council, Federico Fabbrini

Indiana Journal of Global Legal Studies

This article contextualizes the resilience of austerity in Europe, explaining it in light of the transformations in the EU system of governance. As the article maintains, since the eruption of the Eurocrisis, the European Council-the body congressing the heads of state and government of the EU member states together with its President and the President of the European Commission-has risen to the center of EU governance. In an intergovernmental institution such as the European Council, however, larger and wealthier states have been able to impose their preferences on other states-a development that is at odds with the anti-hegemonic nature of …

An Unbalanced Act: A Criticism Of How The Court Of Arbitration For Sport Issues Unjustly Harsh Sanctions By Attempting To Regulate Doping In Sport, Melissa Hewitt

Indiana Journal of Global Legal Studies

To participate in international competitions, countries must submit to the doping rules set forth in the World Anti-Doping Code (the Code), a document brought into being by the World Anti-Doping Agency (WADA). Under the Agency's Code, athletes are required to commit to mandatory binding arbitration in the Court of Arbitration for Sport (CAS), which gives them few chances for review of unjustly harsh sanctions. The CAS needs to re-examine its method of appealing doping cases because WADA's current strict liability scheme, coupled with the CAS's transnational jurisdiction, continually violates the rights of international athletes.

Austerity, Debt Overhang, And The Design Of International Standards On Sovereign, Corporate, And Consumer Debt Restructuring, Susan Block-Lieb

Indiana Journal of Global Legal Studies

Following the Asian Financial Crisis, sovereign debt defaults prompted calls by the International Monetary Fund (IMF) for a statutory Sovereign Debt Restructuring Mechanism (SDRM). In promoting the SDRM, IMF leaders argued that countries' sovereign debt problems needed something like U.S. Chapter 11, which is to say that IMF leaders supported the SDRM proposal with reference to legal claims rather than relying on purely economic arguments about the welfare benefits of resolving debt overhang. Framing the debate in this way caught on, but by 2005 the IMF board of directors had rejected the SDRM proposal. The current Global Financial Crisis similarly …

Anatomy Of A Design Regime, Kathryn C. Moore

Indiana Journal of Global Legal Studies

Since the European Union adopted uniform sui generis design rights, an increasingly complex system of cumulative and overlapping intellectual property rights has emerged. While such harmonization offers several benefits, analyzing the interpretation and application of narrow legal requirements within the EU Community Design Rights may indicate whether such benefits will actually be realized. This paper examines Regulation 6/2002's definitions of "informed user" and "overall impression" as they apply to registered designs. After summarizing relevant case law and considering underlying policy goals of the EU Community design legislation, this paper explores whether these definitions could be more efficient and intellectually honest …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.