Digital Commons Network^™

The Preemptive Effect Of The Cisg On Tort Claims Under Us Law, Phutchaya Numngern

Maurer Theses and Dissertations

This thesis emphasizes a core concept of the preemptive effect that uniform law may have on other domestic norms. It exemplifies the situation in which the laws and principles of contracts, particularly the uniform laws and principles formulated for transnational sales, can exclude or limit tort liability. This study does not object to the recognition of concurrency of claims under contract and tort law. On the contrary, it accepts that the contracting party’s right to both contract and tort actions is commonly recognized in many legal systems, especially the common law system. Tort liability could be actionable insofar as the …

Vol. 59, No. 02 (August 31, 2020)

Indiana Law Annotated

No abstract provided.

Vol. 59, No. 01 (August 24, 2020)

Indiana Law Annotated

No abstract provided.

Addressing Transplant Tourism Problems And Proposed Solutions: Regulation Instead Of Prohibition, Colleen Naumovich

Indiana Journal of Global Legal Studies

Medical tourism, as defined by scholar Glenn Cohen, is "the travel of residents of one country to another country for treatment."' Transplant tourism, a type of medical tourism, is traveling abroad to purchase an organ for transplant. Although organ sale is currently illegal in every country except Iran, many countries-such as India, the Philippines, Pakistan, Bangladesh, and Egypt-have thriving black markets for these goods. Organ transplants are often the only effective means of treating end state organ failure, and the demand for transplants is especially high in developed and middle-income countries. Shortages of available donors and organs, however, have caused …

Hate Speech And Democracy: Deciding What Sort Of Legal Doctrine Is Best Suited To Hate Speech Regulation In Taiwan, Yen-Hsiang Chang

Maurer Theses and Dissertations

Taiwanese people are committed to the values of freedom, democracy, and human rights. Nowadays, according to the rating posted on the Freedom House website, Taiwan is considered one of the world’s free countries and is among the best in providing political rights and civil liberties. Knowing this current state, it is hard to believe that the small island was under a period of martial law lasting for 38 years in the middle of the twentieth century.

Tremendous progress and transition in Taiwanese politics and society has happened after democratization. One significant change is the progression of the right to freedom …

Immunity From Suit For International Organizations: The Judiciary's New Que Of Separating Lawsuit Sheep From Lawsuit Goats, Ylli Dautaj

Indiana Journal of Global Legal Studies

I. Introduction

II. Immunity from Suit in Public International Law

(A) Sovereign Immunity

(i) Sources of Sovereign Immunity

(ii) Legal Theory on Sovereign Immunity

(iii) Doctrinal Evolution of Sovereign Immunity

(B) Jurisdictional Immunity for International Organizations

(C) Sovereign Immunity and Immunity for International Organizations

Domestically

III. Jam v. Int'l Finance Corporation:

A New Dawn for International Organizations in the United States

(A) Jam v. Int'l Finance Corporation: Majority View

(B) Jam v. Int'l Finance Corporation: Dissenting Opinion by Justice Breyer

IV. The Exception that Proves but does not Swallow the rule on Virtually

Absolute Immunity: Criticism of the Majority in …

Authority And The Globalisation Of Inclusion And Exclusion: Author Meets Readers, Hand Lindahl, Christine Bell Prof, Friedrich Kratochwil, Hans-W. Micklitz, Carlos Thiebaut, Bert Van Roermund

Indiana Journal of Global Legal Studies

Authority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when …

Afghanistan Legislative Commitments To The Wto: A Deeper Look At Afghanistan's Compliance With Trips, Hafizullah Seddiqi

Indiana Journal of Global Legal Studies

In 2016, Afghanistan formally acceded to the World Trade Organization (WTO) to improve its worldwide trading prospects. However, this journey began much earlier. To join the WTO, one of Afghanistan's commitments was to reform its then-existing trademark laws. Intellectual property (IP)-related laws are, in general, one of the fields that countries must reform prior to joining the WTO, so as to be in accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). While Afghanistan has enacted some IPrelated statutes, including the 2009 Law on Trade Marks Registration, it continues to fall short of conforming to TRIPS because …

Temporary Protection Status: A Yugoslavian Precedent, Medina Dzubur

Indiana Journal of Global Legal Studies

Analyzing the past use of temporary protection status to shield those facing "ethnic cleansing, massacres, mass rapes, and cultural vandalism" is fundamental in understanding how this tool can be utilized to protect modern refugees, and why EU members have refused to implement this status further. In other words, should temporary protection status, considering the legal framework and the socioeconomic effects, be granted to Syrian refugees? This note argues in favor of granting temporary protection status to Syrian refugees because the status (1) offers a recourse for displaced persons that would not be covered by traditional legal protections, (2) produces quicker …

When Freedom Of Speech Comes At A Cost: A Case Study Of E.S. V. Austria, Rachael Taylor

Indiana Journal of Global Legal Studies

In the fall of 2018, the European Court of Human Rights (ECtHR) issued a decision upholding the criminal conviction of an Austrian national (E.S.) in violation of Austria's Criminal Code against the disparagement of religious doctrines. Her initial conviction in the Austrian court was based on statements she made about the Prophet Muhammad while teaching a series of seminars entitled "Basic Information on Islam." In upholding her conviction, the ECtHR found that there had been no violation of the Austrian's right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights (Convention), and …

Who Is A Refugee?: Twenty-Five Years Of Domestic Implementation And Judicial Interpretation Of The 1969 Oaw And 1951 Un Refugee Conventions In Post-Apartheid South Africa, Tiyanjana Maluwa, Anton Katz

Indiana Journal of Global Legal Studies

As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1998 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government, arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend …

The Dangers Of Humanitarian Intervention And The Responsibility To Protect Doctrine, And A Partial Solution, Matthew Bellinger

Indiana Journal of Global Legal Studies

When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to "save succeeding generations from the scourge of war." When President Franklin D. Roosevelt first described his vision for a post-World War II international organization, he envisioned an organization that would promote and facilitate "international cooperation . . . to consider and deal with the problem of world relations." He also wanted a council that would "concern itself with peaceful settlement of international disputes." The UN Charter itself took the then-unprecedented step of …

Passport To Plastics: Cosmetic Surgery Tourism, Medical Malpractice, And The Automatic Establishment Of Personal Jurisdiction By Way Of The Joint Commission International, Elizabeth Astrup

Indiana Journal of Global Legal Studies

For centuries, tourists have visited lands near and far in search of experiences unavailable in their home countries. From golfing the best courses in the world, to yoga retreats in remote locations, many tourist activities provide experiential opportunities along with health and wellness benefits. Currently, an increasing number of individuals are opting to cross international borders to receive medical treatments, often at reduced costs. While many scholars use the term health tourism to encompass all health and wellness travel purposes, this note uses the term medical tourism to distinguish tourism for the specific purpose of medical treatments or procedures. Medical …

Multilateralism, Pushback, And Prospects For Global Engagement?, Michael Donald Kirby The Honourable

Indiana Journal of Global Legal Studies

In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HI V/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of '"pushback" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite …

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist in the …

Blockchain Wills, Bridget J. Crawford

Indiana Law Journal

Blockchain technology has the potential to radically alter the way that people have

executed wills for centuries. This Article makes two principal claims—one

descriptive and the other normative. Descriptively, this Article suggests that

traditional wills formalities have been relaxed to the point that they no longer serve

the cautionary, protective, evidentiary, and channeling functions that scholars have

used to justify strict compliance with wills formalities. Widespread use of digital

technology in everyday communications has led to several notable cases in which

individuals have attempted to execute wills electronically. These wills have had a

mixed reception. Four states currently recognize electronic …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Sharenting And The (Potential) Right To Be Forgotten, Keltie Haley

Indiana Law Journal

Part I of this Note serves as an evaluation of parental use of social media and

further seeks to draw attention to the social and developmental impact parental

oversharing can have on children. Part II examines the tension between parents’

constitutional rights to direct the upbringing of their children, as well as their First

Amendment interest in online expression, and their children’s interest in personal

data security and privacy. Part III provides an overview of the European Union’s

right to be forgotten framework in the sharenting context and considers the

plausibility of implementing such a framework in the United States. …

The Changing Face Of Terrorism And The Designation Of Foreign Terrorist Organizations, Patrick J. Keenan

Indiana Law Journal

In this Article, I take up one slice of what should be a broad re-examination of

U.S. law and policy. I argue that the new attacks have been undertaken by entities

that can and should be designated as foreign terrorist organizations. Doing this would

permit prosecutors to target those who support these entities with tools that are not

currently available. This Article is both a doctrinal argument that directly addresses

the many legal hurdles that make designating groups, such as foreign hackers and

troll farms, terrorist organizations a complicated endeavor, and a policy argument

about how U.S. law and policy …

When Standards Collide With Intellectual Property: Teaching About Standard Setting Organizations, Technology, And Microsoft V. Motorola, Cynthia L. Dahl

IP Theory

No abstract provided.

Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan

Indiana Law Journal

This Comment argues that the Policy should be repealed because it undermines

firmly held First Amendment values and would be considered unconstitutional if

applied to domestic nongovernmental organizations (DNGOs). It proceeds in four

parts. Part I describes the inception of the Policy and contextualizes it among other

antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s

landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on

FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues

that the Policy undermines democratic processes abroad and fails to achieve its stated

objective: reducing …

Judicial Independence: Tweak The Guiding Paradigm, Charles G. Geyh

Articles by Maurer Faculty

Over time, the public has simply ceased to believe judges when say that they follow the law, and nothing but. If judges impose their ideological policy preferences, the argument goes, why should they be independent from political controls, when other policymakers are not? We have reached the point where, when judges seek to defend the customs and conventions that have guarded against incursions upon their independence by arguing that “we are all about the law and nothing else,” the public response has increasingly become, “No, no, no, your nose is growing.”

The Folly Of Credit As Pandemic Relief, Pamela Foohey, Dalie Jimenez, Chrisopher K. Odinet

Articles by Maurer Faculty

Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations but required that they eventually pay amounts subject to payment moratoria later.

In passing the CARES Act, Congress primarily chose the …

Rethinking The Reasoning Of Verdugo-Urquidez, Alan Mygatt-Tauber

Indiana Journal of Law and Social Equality

No abstract provided.

Who Sues The Supreme Court, And Why? Pro Se Litigation And The Court Of Last Resort, Jona Goldschmidt

Indiana Journal of Law and Social Equality

No abstract provided.

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

Mental Illness In Prison & The Objective Unreasonableness Of The Estelle Test, Jack Mcallister

Indiana Journal of Law and Social Equality

No abstract provided.

Save It For The Judge? A Case Study On The Effects Of Big Money On State Judicial Elections And The Call For Stronger Recusal Rules, Gustavo A. Jimenez

Indiana Journal of Law and Social Equality

No abstract provided.

Virtual Reality As Punishment, Jose A. Moncada

Indiana Journal of Law and Social Equality

No abstract provided.