Law Commons^™

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 …

Finding International Law In Private Governance: How Codes Of Conduct In The Apparel Industry Refer To International Instruments, Phillip Paiement, Sophie Melchers

Indiana Journal of Global Legal Studies

Multinational enterprises increasingly use Codes of Conduct to govern the conditions of labor and production among their suppliers' operations around the globe. These Codes of Conduct, produced unilaterally by companies as well as by multi-stakeholder bodies, often include references to public international law instruments. This article takes a closer look at thirty-eight Codes of Conduct from the global apparel industry and uses social network analysis to identify the patterns in these Codes and how they refer to international legal instruments. Although some international legal instruments stipulate rules that can be directly transposed into the private context of supply chains, this …

Introduction, Colin Crawford, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend …

Access To Justice For Collective And Diffuse Rights: Theoretical Challenges And Opportunities For Social Contract Theory, Colin Crawford

Indiana Journal of Global Legal Studies

This analysis consists of three principal parts. First, it briefly reviews the classical contract account that explains how and why individuals enter civil society, found in the writings of both Hobbes and Locke. The analysis then examines the limited extent to which classical contract theory treats questions of rights vindication or, in more modern terms, with questions of access to justice. Second, the analysis examines the nature of collective and diffuse rights claims and will make a case for their importance in the modern world. Third, the analysis seeks to identify arguments from the classical account that might be useful …

Pro Bono Work In Colombia: How Can It Help Broaden, Equalize, And Ensure Access To Justice, Ana Bejarano Ricaurte

Indiana Journal of Global Legal Studies

This article does not discuss whether pro bono programs should exist in Colombia, or whether they cause positive transformation in the legal profession. These issues are examined in other types of legal literature, and this author departs from the standpoint of viewing this type of work as a positive practice within the legal culture. The main thesis of this article is that pro bono work is still developing in Colombia, both in its numbers of participating attorneys and clients, as well as in the ways it is affecting the legal culture. As important as it might be, the work of …

Movement Lawyering, Scott L. Cummings

Indiana Journal of Global Legal Studies

This article examines the relation between movement lawyering and American legal theory, explores the meaning and content of movement lawyering in the contemporary American context, and reflects on the implications of movement lawyering for the theory and practice of access to justice around the globe. It suggests that the rise of movement lawyering signals frustration with process-oriented solutions to fundamental problems of inequality and discrimination in the legal system, and challenges access to justice proponents to frame their work in connection with a political strategy that builds on movements for progressive legal change. In this sense, the article suggests that …

Cause Lawyering And Compassionate Lawyering In Clinical Legal Education: The Case Of Chile, Fernando Munoz L.

Indiana Journal of Global Legal Studies

In order to contribute from a situated perspective to a global narrative of access to justice, in the next sections I will trace the origins of compassionate and cause lawyering in the history of Chilean legal aid and training. Part II will explain how legal assistance to the poor was codified as a duty of legal professionals during the Middle Ages, in both canon law and in Castilian legislation. Part III will show that practical legal training, both in Spain and in Chile, began much later as the result of the ambition among prominent members of the legal profession to …

The Legal Fiction Of The Right To Defense In The Colombian Criminal Justice System, Manuel Iturralde

Indiana Journal of Global Legal Studies

In the first section of the article, I will discuss Omar's case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar's case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated …

Public Defenders' Offices In Brazil: Access To Justice, Courts, And Public Defenders, Alexandre Dos Santos Cunha

Indiana Journal of Global Legal Studies

This essay discusses the impact of public defenders' offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts.

Part I presents the Brazilian public defenders' offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is …

Access To Justice And Legal Clinics: Developing A Reflective Lawyering Space Some Insights From The Italian Experience, Marzia Barbera, Venera Protopapa

Indiana Journal of Global Legal Studies

This paper first provides a brief description of the genesis of legal clinics in Italy, and highlights the motivations and expectations lying behind the emergence of the legal clinic movement in this context. Second, the paper gives a brief description of the institutional context of legal aid in Italy, and assesses its effectiveness in terms of granting legal assistance to those unable to afford a lawyer. The third and fourth parts then offer an account of court enforcement mechanisms that aim to ensure effective access to justice. Part three gives this account through the lens of court enforcement of the …

The Idea Of Property: A Comparative Review Of Recent Empirical Research Methods, Paul T. Babie, Peter D. Burdon Mr, Francesca Da Rimini, Cherie M. Metcalf Prof., Geir Stenseth

Indiana Journal of Global Legal Studies

While theory offers important insights into property's normative content, it sometimes fails to tell us about what people understand property to mean and how they interact with those things said to be owned by them. This has significant implications for some of the challenges facing humanity, including climate change, unequal distributions of wealth and resources, biodiversity loss, and innovation. In response, a growing body of literature is emerging that looks at property through a different lens; rather than theorizing property in an abstract way or attempting to craft a normative account of and justification for the institution, this new scholarship …

Enforcement Mechanisms For International Standards Of Judicial Independence: The Role Of Government And Private Actors, Rachel Stopchinski

Indiana Journal of Global Legal Studies

In 2017, the prevailing political party in Poland, Law and Justice (Prawo i Sprawiedliwos6), proposed a series of radical legislative changes designed to strip the Polish judiciary of its independence. Though the European Union (EU) has extensively investigated this egregious attack on the rule of law, no concrete steps have been taken to impose sanctums on, or otherwise discipline, the Polish government for defying EU ideals. Despite the fundamental importance of judicial independence in maintaining the rule of law, there are presently no widely adopted international standards of judicial independence. Therefore, no guidelines are promulgated for governments to follow, and …

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 …

Is High-Finance An Extractive Sector?, Saskia Sassen

Indiana Journal of Global Legal Studies

The article examines some of the key features of high finance (henceforth, simply finance) from the angle of the mix of capabilities that constitute the sector. It has a radically different organizing logic from that of, for instance, the typical mass consumer-oriented corporation. The article posits that finance has de-bordered the narrowly defined notion of finance as simply "financial firms and markets." It emphasizes its capacity to financialize a growing range of material and non-material elements. This has also meant that the sector by now encompasses a very broad range of financial and nonfinancial institutions, different types of jurisdictions, a …

Lawyers In Africa: Brokers Of The State, Intermediaries Of Globalization - A Case Study Of The "Africa" Bar In Paris, Sara Dezalay

Indiana Journal of Global Legal Studies

Africa is the "Global Economy's Last Frontier"! Images of the African continent as a boon of mineral riches, and a new legal Far West pervade media and scholarly accounts. Yet, these images tend to reflect the protracted political and development dependency of African states, with lawyers involved in corporate dealings on the continent either denounced as mercenaries at the service of neo-colonial "looting" or idealized as missionaries of the rule of law. This article suggests a research strategy that moves away from these ideological and political accounts. It uses lawyers' trajectories and professional strategies as an entry-point to reglobalize the …

Rivals In Arms: Sino-U.S. Cooperation, Problems, And Solutions And Their Impact On The International Uav Industry, Bei-Er Cheok

Indiana Journal of Global Legal Studies

Research and development into drone technology has exploded in the United States in the recent decades. From the operation of killer drones in the military to agricultural survey drones in farms, the proliferation of drone technology is well on its way to radically altering the American future. However, there remains numerous laws, policies, and regulations that place stifling restrictions on drone development and operations in America. Halfway across the world, China has also begun to experience the "drone revolution," but with its relatively laxer laws regarding both commercial and public drone operations and manufacturing, it seems poised to surpass the …

The Inevitable United States Adoption Of Ifrs: How And Why The United States Should Be Prepared, Erika M. Tribuzi

Indiana Journal of Global Legal Studies

In an age where technology makes the world smaller and business transactions happen by the microsecond, both private and public entities have utilized global standards. These standards are often voluntary and span many different industries. In the twenty-first century, financial reporting standards have not been immune toward the pull for global uniformity. The International Financial Reporting Standards (IFRS) are a set of international financial reporting standards that countries can choose to adopt in full or in part. Currently, there are 143 countries that have adopted IFRS in some capacity. This Note addresses the voluntary nature of global standards in the …

How To Improve The Debt Ceiling To Fit A Partisan Government: A Global Examination Of Which International Solutions Excel, Sarah Love

Indiana Journal of Global Legal Studies

This Note explores the changing role the debt ceiling has played within the United States and considers how that role should be altered moving forward. The debt ceiling's history and its political connections are discussed as a backdrop to how the United States might alter the debt ceiling to limit both future government shutdown and political gridlock. This Note examines both domestic and international solutions to the debt ceiling problem with an emphasis on the latter. In particular, the Note focuses on the possible international solution of adopting a system similar to Denmark's debt ceiling, or adopting a high debt-to- …

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 …

Public And Private Authority In A Global Setting: The Example Of Sovereign Debt Restructuring, Matthias Goldmann

Indiana Journal of Global Legal Studies

This article argues that the public-private distinction is essential for safeguarding individual autonomy and democracy. As the article shows at the example of sovereign debt restructuring, global governance has blurred the distinction between public and private actors, instruments, and processes, and this causes immediate risks for human rights and democracy. This raises the question how the public-private distinction can be maintained under the structural conditions of global governance. For that purpose, the article ventures to propose a definition of publicness for global governance inspired by discourse theory. It argues that whenever a community, defined by the prevalence of communicative action, …

The Globalization Of United States Debt: The Real Impact Of China's Rise As A Creditor State, Michael R. Myers

Indiana Journal of Global Legal Studies

In this Note, I seek to answer a simple question: By owning a large quantity of United States debt, can a foreign country influence United States policies at home or abroad? To answer, I apply scholarship in financial leverage theory to China-the largest foreign holder of U.S. debt. As a result, I find no plausible threat of China using financial leverage against the United States.

Instead, I argue that the true impact of China's rise as a creditor state has been its ability to fundamentally undervalue its currency by investing in the sovereign debt of foreign nations. Such monetary policies …

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 …

Making Banks On A Global Scale: Management-Based Regulation As Agencement, Mika Viljanen

Indiana Journal of Global Legal Studies

This article seeks to provide a theoretical account of how management-based regulation (MBR), a new regulatory style used by many global regulators, affects its targets. The article centers on a case study. It introduces agencement theory as the theoretical heuristic to inform the analysis of a global, large-scale MBR scheme, the Basel Committee on Banking Supervision's Internal Capital Adequacy Assessment Program (ICAAP). In agencement theory, agency is understood in a neomaterialist frame. The core idea is that an actor's actions are determined by the material assemblage that constitutes her. The agencement heuristic allows ICAAP to be conceptualized as a regulatory …

The International Investment Regime After The Global Crisis Of Neoliberalism: Rupture Or Continuity?, Nicolas Perrone

Indiana Journal of Global Legal Studies

This article aims to show that the tools being used to recalibrate the international investment regime, in particular proportionality and corporate social responsibility, constitute continuity rather than rupture with neoliberalism and neoliberal legality. Neoliberalism has been discredited, and few actors suggest a return to self-regulation after the 2008 global economic crisis. This call for regulation, however, finds international economic law scholarship divided between those who claim that standards of review and corporate social responsibility can solve the crisis of neoliberalism, and those who believe that the problem is more profound. In the case of the international investment regime, this article …

Transformations In Statehood, The Investor- State Regime, And The New Constitutionalism, A. Claire Cutler

Indiana Journal of Global Legal Studies

This paper examines the changing boundaries of statehood resulting from transformations in the nature and operation of public and private authority over local and global politico-legal orders. Transformations in the political purposes of states are being driven by powerful elites who advance a new form of constitutional governance. New constitutionalism, as evidenced by the investor-state regime, subordinates the interests, purposes, and rights of national citizens to those of foreign, transnational politico-legal, and economic elites. This regime is a highly privatized order that is expanding in influence, both in terms of the commercial activities under its remit, and in terms of …

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

Why 'Fiscal Austerity'? A Review Of Recent Evidence On The Economic Effects Of Sovereign Debt, Catherine Bosner-Neal

Indiana Journal of Global Legal Studies

Concerns about the economic effect of high sovereign debt levels have motivated policy makers to constrain or reduce the growth of fiscal deficits, a practice commonly known now as "fiscal austerity." However, what do we know about the economic impacts of sovereign debt? This article provides an overview of some recent empirical economic research into this question. The article first discusses data and estimation challenges confronted by empirical research into the impact of sovereign debt on economic growth. The article then reviews several studies, which vary by country sample, time period studied, and estimation technique employed. The article also reviews …

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 …

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 …

Changing Tides: Tax Haven Reform And The Changing Views Of Transnational Capital Flow Regulation And The Role Of States In A Globalized World, Jeffrey Kraft

Indiana Journal of Global Legal Studies

The transnational free flow of capital represents one of the core factors driving the globalization of the world since the beginning of the Bretton-Woods era. Under the "traditional" Neoliberal theory of globalization, this free flow of capital remains sacrosanct, an unstoppable force with which state actors cannot and should not interfere. However, the recent financial crisis has caused some to question this absolute faith in the benefits of unregulated transnational capital flows and to assert that the state still has a role to play in influencing the creation of international norms on capital. Tax haven regulation represents one area that …