Law Commons^™

The Trade Origins Of Privacy Law, Anupam Chander

Indiana Law Journal

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

Managing Digital Resale In The Era Of International Exhaustion, Seth Niemi

Indiana Journal of Global Legal Studies

The Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament both guarantee copyright holders’ exclusive rights of reproduction and distribution of their copyrighted material. Starting from a similar statutory basis, United States and European Union courts have diverged in their interpretation of these protections with respect to the first sale rule for digital goods. This paper analyzes the treatment of such “digital exhaustion” arguments under copyright law between the two legal systems from both the statutory interpretations employed and the policy rationales considered. The paper concludes by discussing the implications of adoption of digital exhaustion, within international law, …

Overview Of Bicameral Legislatures’ Potential Impact On The Executive Selection Process, Kyle Kopchak

Indiana Journal of Constitutional Design

Bicameral legislature is a common constitutional design model, with bicameral legislatures making up roughly 41 percent of all legislatures worldwide. As of April 2014, 79 bicameral and 113 unicameral systems were recorded in the database of the Inter-Parliamentary Union. In general, “bicameralism is more common in federal, large, and presidential states, while unicameralism is more common in unitary, small, parliamentary ones”. Bicameral systems operate two legislative chambers, both of which play a role in drafting and passing national legislation. However, each house often fulfills a unique role in the legislative process and is usually elected by different methods. Proponents of …

Taxonomy Of Ministerial Appointment Processes, Michelle Johnston

Indiana Journal of Constitutional Design

In parliamentary governments, executive power rests in an executive body of ministers commonly referred to as “the cabinet” or “the government.” Cabinet ministers, including the prime minister, are tasked with researching, drafting, and proposing laws and policies to their legislative counterparts in parliament. Because cabinets are generally comprised at least partially of select members of parliament, parliamentary systems are characterized by the interactions and interdependence of the legislative and executive branches. Whereas presidential systems lean into separation of powers to restrict governmental power, parliamentary systems rely on integration of the branches to ensure that political powers remain in check. Executive …

Understanding The Nansen Passport: A System Of Manipulation, Kacey Bengel

Indiana Journal of Global Legal Studies

The aftermath of World War I, the "war to end all wars," left the world with as many new problems as it did resolutions. State powers tested and expanded the boundaries and interpretations of international law; in the end, there were the triumphant Allied Powers, the heavily wounded Central Powers, and millions of displaced individuals left adrift in the wake. Never before had the international community attempted to address the issue of refugees, and the product of the postwar efforts did not provide a complete solution. This paper will analyze the international community's] response to the massive refugee crisis and …

How The World's Largest Economies Regulate Data Privacy: Drawbacks, Benefits, & Proposed Solutions, Alexander J. Pantos

Indiana Journal of Global Legal Studies

National data privacy regimes are quickly gaining traction and ubiquity around the globe. Moving forward, countries will face a range of difficult decisions surrounding how best to engage internationally in cross border data flow, particularly in the context of personal information (PI).

This article takes a bird's-eye view of the current state of data privacy regimes in the world's four highest GDP regions. In part, this article hopes to provide a succinct analysis of these data privacy regimes, with a focus on the balance they strike between granting individuals rights in their data and placing responsibilities on businesses that deal …

Polish Road Toward An Illiberal State: Methods And Resistance, Adam Bodnar

Indiana Law Journal

Since 2015, Poland has experienced a backsliding in democratic and rule of law standards. The ruling party, “Law and Justice,” has adopted a series of legislative changes affecting the independence of courts and checks and balances mechanisms. Some reforms were copied from Hungary, which, as the first Member State of the European Union, started the way toward illiberal democracy in contemporary Europe. Despite pressure from international organizations, the process of changes in Poland did not stop. However, it is important to look at methods implemented to dismantling democracy, as they can be used in other countries. This paper also analyzes …

Rising Authoritarianism(S) And The Globalization Of Law: An Initial Exploration, Z. Umut Türem

Indiana Journal of Global Legal Studies

This article explores the question "what does the future hold for the globalization of law?" In analyzing the future of legal globalization, I suggest that analyzing the recent rise of authoritarianism, both at the national as well as transnational plane, offers significant insights. I make three related observations regarding the rise of authoritarian politics. First, the rise of authoritarian and semi-authoritarian regimes and the blend of populism with authoritarianism at the national contexts seems to obstruct globalization of law. This is likely due to the fact that the power of authoritarian politics mostly comes from their populist appeal to the …

Rethinking Social Resistance Through The Consolidating Politics Of Humanitarian Populism In Mytilene, Greece, Othon Alexandrakis

Indiana Journal of Global Legal Studies

During the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges …

Draining The Flooded Markets: Tariffs, Suniva & Solar Energy Investment, Michael A. Stroup

Indiana Journal of Global Legal Studies

Demand for solar energy in the United States has increased significantly over the past half century. Despite the falling costs of solar infrastructure, the United States solar energy market is at a turning point. In 2017, two insolvent U.S. solar manufacturers, Suniva and SolarWorld America, successfully petitioned the International Trade Commission (ITC) to invoke Section 201 of the 1974 Trade Act. The two U.S. manufacturers argued that a surplus of imported Chinese solar panels has driven the cost of solar infrastructure too low and forced them out of the market. The ITC responded by recommending tariffs on global solar photovoltaic …

Marching To The Beat Of The Eu's Drum: Refining The Collective Management Of Music Rights In The United States To Facilitate The Growth Of Interactive Streaming, Gary W. Hunt Iii

Indiana Journal of Global Legal Studies

In the digital era, interactive streaming is now the preferred method for music consumers to access their favorite albums and songs. The traditional copyright system used to administer music rights and royalties has not evolved accordingly, which not only impedes progress by music platform innovators, but also frustrates artist, labels, and composers who are unable to reap the benefits of their music rights. This Note examines the complex process interactive streaming services undergo to obtain the rights necessary to stream music through their platforms, which involves a discussion of collective rights organizations. This Note then argues that the European Directive …

The Politics Of Electoral Systems In The Former Yugoslav Republic Of Macedonia, Dardan Berisha

Indiana Journal of Constitutional Design

The Former Yugoslav Republic of Macedonia (“FYROM”) experienced four major changes to its electoral system in the eight parliamentary elections held between 1990 and 2014. The Macedonian 1990 and 1994 parliamentary elections were held under a majority system, in which 120 members of the Parliament were elected from 120 constituencies, one member per constituency. A mixed-majority/proportional representation (“PR”) system was adopted for the 1998 elections, in which eighty-five seats were elected under the majority system from the constituencies, and thirty-five seats were elected proportionally from a nation-wide electoral district. Yet another system was adopted for the 2002 elections, in which …

"I'M Just Some Guy": Positing And Leveraging Legal Subjects In Consumer Contracts And The Global Market, Tal Kastner

Indiana Journal of Global Legal Studies

This article considers how legal frameworks shape the autonomous subject in a global economy. It makes salient the ways that different legal frameworks presume and enforce a particular subjectivity by positing certain behavioral expectations of various subjects. It does so through a focus on the underexplored rhetoric and implicit narratives of consumer contract law and transactional practice in the American and European regimes. By comparing the approach of the European Union to consumer contract, which posits the consumer as facing significant constraints on agency, to that in the United States, which elides functional limits of consumer knowledge and choice, this …

A World Elsewhere: Secession, Subsidiarity, And Self-Determination As European Values, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

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 …

The Politics Of Fiscal Austerity: Democracies And Foresight, Paul L. Posner

Indiana Journal of Global Legal Studies

Daunting fiscal policy challenges face democratic systems throughout the world. Fiscal austerity in the wake of the Great Recession prompted nations in the Organisation for Economic Co-operation and Development (OECD) to institute major spending cuts and tax increases, increases that caused political and social fallout for years to come. While economies and budgets have improved in the past several years, significant fiscal adjustments lie ahead due to aging populations and the seemingly inexorable growth of health care costs. Faced with larger cohorts of retirees and fewer workers, nations will have to come to grips with a fiscal reality of higher …

Pringle And The Nature Of Legal Reasoning, Paul Craig

Articles by Maurer Faculty

The Pringle judgment generated significant academic comment, concerning all aspects of the case. It raises, as will be seen, broader issues as to the nature of legal reasoning and the role played therein by text and background purpose or teleology.

Gunnar Beck is very critical of the CJEU, castigating it for reasoning that is said to be absurd, and accusing it of crossing the line between legal reasoning and political judgment. He is also critical of much academic analysis of the case, contending that this was too uncritical of the Court's judgment, and contending also that the interpretation of the …

Social Movements As Constituent Power: The Italian Struggle For The Commons, Saki Bailey, Ugo Mattei

Indiana Journal of Global Legal Studies

The Italian commons (beni comuni) movement is a powerful example of the way in which social movements are emerging as the new pouvoir constituant serving not only to enforce the protections and guarantees of national constitutions but also, in the context of the declining power of the nation-state, as a counter hegemonic force against the neoliberal economic constitutionalism of the international economic institutions. The common goods social movement in Italy was born out of the concerted action of a number of civil society groups combatting neoliberal privatizations. This commons movement, as will be argued in this paper, is an instance …

The Expansion Of Trademark Rights In Europe, Irina Pak

IP Theory

No abstract provided.

Pringle: Legal Reasoning, Text, Purpose And Teleology, Paul Craig

Articles by Maurer Faculty

The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case.

The first was that the ESM was in reality …

Eu Accession To The Echr: Competence, Procedure And Substance, Paul Craig

Articles by Maurer Faculty

The issues raised by EU Accession to the ECHR have already generated a valuable and growing literature. This article seeks to contribute to this literature. The discussion begins with an overview of the European Union’s competence to accede to the European Convention on Human Rights, and the process by which the Accession Agreement was negotiated. The focus then shifts to analysis of whether the EU needs its own Charter of Rights in addition to membership of the ECHR.

This is followed by examination of a range of procedural issues raised by EU accession to the ECHR. This includes the choices …

“Advancing With The Times: Industrial Design Protection In The Era Of Virtual Migration”, Horacio E. Gutiérrez

IP Theory

No abstract provided.

Consumer Watchdog: The Fcc’S Proposed Rulemaking To Help Consumers Avoid Bill Shock, Cameron Robinson

Federal Communications Law Journal

This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.

Transnational Adoption And European Immigration Politics: Producing The National Body In Sweden, Barbara Yngvesson

Indiana Journal of Global Legal Studies

This article explores the role of transnational adoption in the production of a multicultural but Swedish national body during the second half of the twentieth and the first decade of the twenty-first century, when Sweden became a multiethnic, multicultural, and racially divided country. I examine the development of international adoption policies in the 1970s, 1980s, and 1990s, emphasizing the erasure of the child's connection to a preadoptive past, even as the child's cultural difference was celebrated in adopting nations. In Sweden, which in the late 1970s and early 1980s had the world's highest adoption ratio (number of transnational adoptions per …

Human Rights And The Elusive Universal Subject: Immigration Detention Under International Human Rights And Eu Law, Cathryn Costello

Indiana Journal of Global Legal Studies

The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human …

Book Review. European Copyright Law: A Commentary., Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.