Law Commons^™

Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson

Indiana Law Journal

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. Recent scholarship …

Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu

Indiana Law Journal

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …

How Nations Share, Allison Christians

Indiana Law Journal

Every nation has an interest in sharing the gains they help create by participating in globalization. Citizens should be very interested in discovering how well their governments fare in claiming an adequate share of this international income stream, since a government that cannot or will not exert its taxing jurisdiction internationally is potentially missing out on a very large and very productive source of revenue. Yet it is all but impossible for citizens to observe exactly how, or how well, their governments navigate this aspect of economic globalization. The vast majority of international tax law plays out in practice through …

Why Copyright Falls Behind The Requirement For Protecting Graphic User Interfaces: Case Studies On Limitations Of Copyright Protection For Guis In China, Ling Jin, Yihong Ying

IP Theory

No abstract provided.

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

IP Theory

No abstract provided.

Dimensions Of Rights Consciousness, Carol J. Greenhouse

Indiana Journal of Global Legal Studies

Commenting on David Engel's Article, this Comment responds particularly to Engel's formulation of horizontal and vertical axes as a metaphor for the ways different analytical approaches to law and legal consciousness potentially yield *recombinant interpretive questions. Pursuing Engel's concerns with the embeddedness of local norms and social relations in state-based and global legal processes, this Comment suggests expanding the two dimensions of Engel's matrix to four, so as to highlight the relevance of social distance and temporality in the differing accounts of law he assays, and in appreciating their stakes. In so doing, this Comment situates Engel's essay as a …

Against Wishful Scholarship: The Importance Of Engel, Duncan Mccargo

Indiana Journal of Global Legal Studies

David Engel's Article on global consciousness' crystallizes a set of arguments he recently made in a number of publications, most notably in his coauthored book Tort, Custom, and Karma.2 To me, the main point of his argument is by no means limited to questions of law or globalism. Rather, he argues against the dominant mode of writing among scholars across a wide range of social science and related disciplines-a mode of writing that might best be termed "wishful scholarship." In wishful scholarship, the starting point of the author is the world as she or he wishes to see it, or …

Redress: Rights And Other Remedies, A Comment On David Engel's Article On Rights Consciousness, Arzoo Osanloo

Indiana Journal of Global Legal Studies

In responding to David Engel's Article, this Comment analyzes how Engel situates contemporary perspectives on rights drawing from his research in Thailand. Engel shows how the discourse of rights carries with it meanings that have multiple and changing connotations and on the ground effects. Following on Engel's questions about how consciousness of rights spreads and takes shape in local contexts, this Comment calls for expanding the substantive and methodological bases for understanding the changing effects of rights discourses. This Comment suggests that a study of the broader social and political implications, including the costs, of rights discourses (internationally, nationally, and …

Vertical And Horizontal Perspectives On Rights Consciousness, David M. Engel

Indiana Journal of Global Legal Studies

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide are demonstrating an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a "vertical" perspective, tracing the flow of legal forms and practices from prestigious and authoritative centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on global rights consciousness have broadened and enriched the field of law and society by …

Expanding The Horizons Of Horizontal Inquiry Into Rights Consciousness: An Engagement With David Engel, Michael W. Mccann

Indiana Journal of Global Legal Studies

This Comment interprets and reflects on the key features of David Engel's argument about the importance of balancing vertical models of rights diffusion with horizontal ethnographic studies of how rights consciousness develops out of practical experience in everyday social contexts. The primary focus is on endorsing the general argument and amplifying some understated or undeveloped dimensions of Engel's position. In particular, this reflection makes the case for: 1) expanding the range of subjects and contexts subjected to horizontal study, including especially greater attention to "haves" and elite actors; 2) studying subjects expected to have high rights consciousness as well as …

Editor's Note: Rights Consciousness In A Globalized World

Indiana Journal of Global Legal Studies

No abstract provided.

Forward Contracts - Prohibitions On Risk And Speculation Under Islamic Law, Nicholas C. Dau-Schmidt

Indiana Journal of Global Legal Studies

Forward contracts allow buyers and sellers of goods to reduce risk by contracting for sale at a predetermined price and quantity prior to the actual exchange of goods and payment. While forward contracts are extensively used in the Western world without restriction, those who adhere to Islamic law are often constrained by principles intended to reduce risk, gambling, and usury. These principles can prove overly restrictive; however, Islamic law restrictions also illuminate the problems associated with the overly permissive Western system in which speculators contract in a manner tantamount to gambling-a problem associated with the recent financial crisis. This Note …

The Global Crackdown On Insider Trading: A Silver Lining To The "Great Reccession", Christopher P. Montagano

Indiana Journal of Global Legal Studies

The wake of the Great Recession marked a period of increased enforcement of insider trading violations by nation-states and self-regulatory organizations overseeing stock markets around the world. Before discussing the heightened global enforcement of insider trading, this Note explains the development of insider trading regulation by focusing on U.S., EU, and China law. This Note argues that the heightened global enforcement of insider trading violations in the wake of the Great Recession is a sign of a shared perception by market regulators around the world that there is a need to restore market confidence. Strong enforcement of insider trading regulations …

The Human Right To Water: Will Its Fulfillment Contribute To Environmental Degradation?, Alezah Trigueros

Indiana Journal of Global Legal Studies

Human rights and environmental protection are two often overlapping bodies of law, each of which by their nature seeks to take priority over other applicable law. For this reason, these two bodies of law often find themselves in tension with one another. This Note aims to illustrate the tension between human rights and environmental protection in the context of the recent push for a codified human right to water. My thesis is that ideally these two bodies of law should balance each other out-a human right to water would be subject to environmental safeguards, and, likewise, conservation efforts would be …

Public Interest Litigation In India As A Paradigm For Developing Nations, Zachary Holladay

Indiana Journal of Global Legal Studies

Public interest litigation (PIL) in India can serve as a vehicle for creating and enforcing rights and is critical to the sustenance of democracy. PIL in India can address the needs of its citizens when legislative inertia afflicts the Indian National Congress. This Note discusses how PIL in India can serve as a model for other developing nations struggling with legislative inertia and can provide recourse to marginalized and disadvantaged communities. Furthermore, while PIL obscures the traditional boundaries of power in a liberal democratic polity, democracy is in fact strengthened by the expansion of standing to include any citizen who …

Should Cyber Exploitation Ever Constitute A Demonstration Of Hostile Intent That May Violate Un Charter Provisions Prohibiting The Threat Or Use Of Force?, Anna Wortham

Federal Communications Law Journal

More and more, the United States and other countries rely on complex infrastructures that are primarily controlled by information technology. Although extremely destructive cyber threats and attacks against nations are a reality, the laws governing cyber exploitation have not kept pace with this threat. Because the United States and other nations may use cyber capabilities offensively as well as defensively, it is important that the laws for engaging in such cyber conflict be well defined. Currently, it seems unlikely that cyber exploitation can ever be regarded as a threat or use of force under the UN Charter because it is …

A Developing Norm Under International Law: A Case Study Of The Proliferation Security, Sunan J. Rustam

Maurer Theses and Dissertations

Introduced in 2003, the Proliferation Security Initiative (PSI) has developed into a norm of international law. The PSI statement of interdiction has gained status as a principle for conducting maritime interdiction to stop the illicit trafficking of weapons of mass destruction. As of 2011, ninety-eight countries, more than 50% of all countries in the world, have committed to practicing PSI. In addition, eleven ship-boarding agreements concluded with major flag-state countries have given the PSI access to more than 75% of commercial ships worldwide. In the international forum, the PSI has influenced international law, evidenced by the passing of U.N. Security …

Oklahoma And Beyond: Understanding The Wave Of State Anti-Transnational Law Initiatives, Martha F. Davis, Johanna Kalb

Indiana Law Journal

In the past year, initiatives to block judicial consideration of foreign or international law have been introduced in over half of the states. The proposals vary, ranging from the “softer” versions, which codify existing common law principles governing judicial decision making to the more extreme versions, which aggressively bar all consideration of foreign and international law, virtually eliminating judicial discretion regarding the relevance of such law in a particular case. This Essay contends that in all their variations, these anti-transnational law measures pose serious and fundamental challenges to the American judicial system. They undermine our federalist system by ignoring federal …

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

Openness, Intellectual Property And Standardization In The European Ict Sector, Carl Mair

IP Theory

No abstract provided.

The Criminalization Of The Theft Of Trade Secrets: An Analysis Of The Economic Espionage Act, Nicola Searle

IP Theory

No abstract provided.

Editor's Note, Alfred C. Aman, Micah J. Nichols

Indiana Journal of Global Legal Studies

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

Changing Burma From Without: Political Activism Among The Burmese Diaspora, David C. Williams

Indiana Journal of Global Legal Studies

This Article examines the role that the Burmese diaspora plays from afar in influencing reform inside the country. It offers a brief history of the crisis in Burma as background for identifying the various elements of the diaspora: those on the run from the military; those in camps for internally displaced persons and refugees; migrant workers; leaders of the democracy movement active on Burma's borders; asylees; and professional activists with influence on the international community. The different groups use the different strategies available to them. The leadership on the borders is helping to lead the democracy movement inside the country; …

Troubling The Victim/Trafficker Dichotomy In Efforts To Combat Human Trafficking: The Unintended Consequences Of Moralizing Labor Migration, Kay Warren

Indiana Journal of Global Legal Studies

This analysis examines the violent predator/innocent victim paradigm employed by many governmental and nongovernmental organizations active in monitoring and combating transnational human trafficking. One common treatment of the issue moralizes victims as innocent women and children who have been deceived and coerced into exploitative sex work; another constructs human trafficking as modern day slavery which takes a variety of forms and requires foreign intervention to organize rescues and redemption. Both views see human trafficking, most especially sex trafficking, as an exceptional crime with distinct predators and victims and cultivate moral outrage as a strategic tool to combat coerced labor. This …

Immigration Control In An Era Of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening The State, Valsamis Mitsilegas

Indiana Journal of Global Legal Studies

In stark contrast to the field of legislation on the rights of third country nationals or to the requirements and conditions for access to the territory of states, the field of the enforcement of immigration control has been increasingly subject to legal harmonization: either by the adoption of global law on immigration control or by the convergence of domestic law and policy in the field. This convergence is particularly marked when one compares legal responses to immigration control in the United States and the European Union, where globalization has been used to justify the extension of state power-by proclaiming state …

"Coming Out Of The Shadows": Dream Act Activism In The Context Of Global Anti-Deportation Activism, Laura Corrunker

Indiana Journal of Global Legal Studies

This Article, based on ethnographic fieldwork with an undocumented, youth-led immigrant rights organization, explores undocumented youth activism in the United States in relation to global anti-deportation movements. The strategies that undocumented youth utilize in their fight for the DREAM Act, a bill that creates provisions for certain undocumented youth to legalize their status, are compared with examples of anti-deportation activism outside the United States. In comparing the DREAM Act movement with anti-deportation movements globally, three points of commonality emerge: (1) leadership of undocumented immigrants; (2) visibility; and (3) measures of "deservingness." This Article argues that comparing examples of immigrant activism …

Disposable Workers: Applying A Human Rights Framework To Analyze Duties Owed To Seriously Injured Or Ill Migrants, Lori A. Nessel

Indiana Journal of Global Legal Studies

The practice of medical repatriation, or the extrajudicial deportation of seriously ill immigrants directly by hospitals, was largely unknown and under-theorized until recently. In the past few years, a number of scholars have focused on the legal and ethical issues raised by this practice. However, medical repatriation has most often been analyzed in isolation as an example of an anomalous unlawful or unethical action undertaken by hospitals, rather than as a predictable, if horrifying, extension of a legal regime that treats migrant labor as disposable. In contrast, this Article contextualizes the private deportation of migrant workers by hospitals within broader …

Global Anti-Anarchism: The Origins Of Ideological Deportation And The Suppression Of Expression, Julia Rose Kraut

Indiana Journal of Global Legal Studies

On September 6, 1901, a self-proclaimed anarchist named Leon Czolgosz fatally shot President William McKinley at the Pan-American Exposition in Buffalo, New York. This paper places the suppression of anarchists and the exclusion and deportation of foreigners in the aftermath of the "shot that shocked the world" within the context of international anti-anarchist efforts, and reveals that President McKinley's assassination successfully pulled the United States into an existing global conversation over how to combat anarchist violence. This paper argues that these anti-anarchist restrictions and the suppression of expression led to the emergence of a "free speech consciousness" among anarchists, and …

International Human Rights In Canadian Immigration Law - The Case Of The Immigration And Refugee Board Of Canada, Catherine Dauvergne

Indiana Journal of Global Legal Studies

This article analyzes the use of international human rights in the decision making of Canada's Immigration and Refugee Board. At the center of the analysis is a data set including all the publically available decisions of the Board since the introduction of the 2002 Immigration and Refugee Protection Act. This data set has been coded for varying degrees of engagement with international human rights law, and the results are presented and scrutinized. At the broadest level, the results are disappointing for migrant advocates as international law is relied on in an infinitesimally small number of decisions.

Globalization and Migration Symposium, …

Citizenship And Marriage In A Globalizing World: Multicultural Families And Monocultural Nationality Laws In Korea And Japan, Erin Aeran Chung, Daisy Kim

Indiana Journal of Global Legal Studies

This Article analyzes how individual and local attempts to address low fertility rates in Korea and Japan have prompted unprecedented reforms in monocultural nationality laws. Korea and Japan confront rapidly declining working-age population projections; yet, they have prohibited the immigration of unskilled workers, until recently in Korea's case, on the claim that their admission would threaten social cohesion. Over the past two decades, both countries have made only incremental reforms to their immigration policies that fall short of alleviating labor shortages and the fiscal burdens of maintaining a large elderly population. Instead, prompted by the growth of so-called multicultural families …