Law Commons^™

The Brcko Arbitration: A Blueprint For Ending Current And Future Ethnic Territorial Conflicts, Emma Delaney Strenski

Indiana Journal of Global Legal Studies

Within the fields of conflict resolution, political science, and history, I am researching the effectiveness of mediating an end to current and future ethnic, territorial conflicts through international law specifically an international arbitration process. I am using the Brcko Arbitration, completed as part of the Dayton Peace Accords, as a case study of the effectiveness of international arbitration in peace building. After three years of war in Bosnia and Herzegovina from 1992-1995, Brcko was a multiethnic and multireligious city and was a cultural dividing line between the two ethnically autonomous regions of Bosnia and Herzegovina. Its options were to join …

Calling The Shots: Balancing Parental And Child Rights In The Age Of Anti-Vax, Mahrukh Badar

Indiana Journal of Global Legal Studies

Vaccinations have become a contentious issue in recent times. Although there has always been opposition to vaccines, the internet has made it possible for pseudoscience and false information to spread like never before. This has led to alarming declines in vaccine confidence and adherence rates globally. High-income countries have seen the sharpest drop in vaccine confidence rates. Factors such as the complacency effect and religious objections likely explain this decline. Most countries have attempted to raise vaccine confidence levels by enacting laws that make vaccinations for children compulsory, with strict penalties for parents who refuse to comply. In addition to …

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 …

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 …

The Right To Access To Justice: Its Conceptual Architecture, Daniel Bonilla Maldonado

Indiana Journal of Global Legal Studies

The aim of this article is descriptive and analytical, rather than normative. This article aims to contribute to the current understanding of the ways in which modern legal consciousness builds, and is built by, the concept of access to justice. This concept, as part of the web of meanings that structures modern legal culture, provides the context in which modern subjects make sense of who they are and how they should interact with the world around them. This article examines the subjectivities, conceptual geographies, and interpretations of history created by the right to access to justice. It also examines a …

Public Law, Precarity, And Access To Justice, Amnon Lev

Indiana Journal of Global Legal Studies

In the first part, I examine Thomas Hobbes' theory of commonwealth to see how it situates subjects in relation to justice. Hobbes famously founds his commonwealth on the equal subjection of all to the Leviathan, which is the equal subjection of all to law. We need to understand why he nevertheless needs to accommodate the diversity of society-the basic fact that some are weak while others are not-into the operation of the public law machine. As we shall see, the accommodation of social diversity is tied to a proto-liberal distinction between social spheres that relegates much of human life to …

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 …

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 …

Understanding The Politics Of Resentment: Of The Principles, Institutions, Counter-Strategies, Normative Change, And The Habits Of Heart, Tomasz Tadeusz Koncewicz

Indiana Journal of Global Legal Studies

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for …

Law, Politics, And Populisim In The U.S.A. P.A.T.R.I.O.T. Act, Jothie Rajah

Indiana Journal of Global Legal Studies

The U.S.A. P.A.T.R.I.O.T. Act is legislation that simultaneously brings into being very particular notions of the American 'national' and, as its counterpart, a post-9/11 "global." Through a study of the Patriot Act, my paper unpacks the co-constitutions of national/global and a related series of binaries: domestic/foreign; patriot/terrorist; us/them; and innocence/evil. By exploring the structuring logics and language of these binaries in the Act, my paper scrutinizes the global role of U.S. legislative text in our world: a world in which "a global society has come into being but possesses as yet, no institutions proper to its name."1 In the context …

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 …

Globalization: The Next 25 Years (Introduction), Alfred C. Aman

Indiana Journal of Global Legal Studies

A warm welcome to you all. Thank you for your participation in this very special milestone for this Journal. As you know, this symposium conference marks the twenty-fifth anniversary of the journal. Our first symposium conference was entitled "The Globalization of Law, Politics and Markets." Those papers were published in our first issue. I went back to that first issue not long ago, and found these lines:

"We currently stand at a watershed in the public law history of the United States. We have moved from local and state common-law, regulatory regimes that dominated the 19th and early 20th centuries, …

Reflections On The Future Of Global Legal Studies, Mark Fathi Massoud

Indiana Journal of Global Legal Studies

This Article proposes a set of theoretical ideas and practical innovations for the future of global legal studies in the three areas that make up the academic profession: research, teaching, and service. The future directions of global legal studies will involve building intellectual bridges that connect law with global politics, society, history, religion, and human behavior. Constructing these bridges preserves global legal studies as both an interdisciplinary enterprise and a movement for justice. This twin commitment to rigorous inquiry and social justice involves sustaining a welcoming community for graduate students and early career scholars, and prioritizing the experiences of those …

Three Theses On The Current Crisis Of International Liberalism, David S. Grewal

Indiana Journal of Global Legal Studies

This essay advances three theses on the current crisis of international liberalism. First, it is a composite one, comprising interrelated crises of domestic political representation and of global governance affecting the international and supranational arrangements that were constructed in the post-war period. Second, the crisis is a specific development of neoliberal governance, which requires distinguishing international liberalism's two historical variants: "embedded liberalism" and "neoliberalism." The turn from the post-war regime of "embedded liberalism" to the "neoliberalism" of recent decades has had the effect of undoing the domestic social contracts that underlay post-war political stability even while failing to secure peace …

The Rome Statute: Global Justice And The Asymmetries Of Recognition, Hans Lindahl

Indiana Journal of Global Legal Studies

Given the emergence of challenges that are increasingly global in nature, and given the irreducible contingency of state borders, it would seem that justice must become global justice: justice that takes shape through a legal order that holds for all of humanity and everywhere. But is justice for all and everywhere possible? At issue, in this question, is not a rearguard defense of the state and state law. Instead, the question concerns the globality of global law and global justice. Is any legal order possible, global or otherwise, that organizes itself as an inside without an outside, that is, which …

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- …

The Temptation Of Executive Authority: How Increased Polarization And The Decline In Legislative Capacity Have Contributed To The Expansion Of Presidential Power, Edward G. Carmines, Matthew Folwer

Indiana Journal of Global Legal Studies

This paper argues that our increasingly polarized politics has led to political stalemate and policy gridlock in Congress which, in turn, have contributed to a change in the balance of power between the executive and legislative branches of government; specifically, executive power has increased at the expense of a diminished legislature. The paper will trace the extent to which Congress has become increasingly polarized and how this increased polarization has reduced Congress's capability and productivity while simultaneously increasing policy gridlock resulting in the expansion of executive power (and judicial authority) relative to legislative authority

The Rise Of The Executive And The Post-Political Drift Of European Public Law, Marco Dani

Indiana Journal of Global Legal Studies

Contemporary European public law is marked by the uneasy relationship between national constitutional democracies and the executive-based supranational governance of the European Union. Whereas constitutional democracy remains the dominant source of inspiration for European institutional imagination, the supranational executive has relentlessly expanded its scope and institutional culture to key policy fields at the core of national constitutional democracies. This article tracks the rise of the supranational executive by examining three relational paradigms developed between national constitutional democracies and the European Union in distinct phases of the European integration process (i.e., the complementarity paradigm in the foundational period; the competition paradigm …

The Politics Of Law And The Laws Of Politics: The Political Paradoxes Of Transnational Constitutionalism, Pablo Holmes

Indiana Journal of Global Legal Studies

This essay addresses the ongoing debate on transnational constitutionalism and the theoretical assumptions related to the possibilities of internal politicization of transnational governance. After reconstructing the debate on the transnationalization of law and the emergence of fragmented forms of transnational governance, I engage with the description of emerging forms of constitutional law within the fragmented legal regimes of global governance. After doing that, I explore the assumption exposed by some legal scholars, which insists on the possibility of an internal politicization of legal discourse as a way to challenge the so-called "rule of experts" in transnational law. Drawing on the …

On The Politics Of Societal Constitutionalism, Emilios Christodoulidis

Indiana Journal of Global Legal Studies

This paper is an internal critique of the theory of societal constitutionalism as developed by Gunther Teubner, with a specific emphasis on the constitutional and the political dimensions of the theory. As critique it focuses on the arguably unacknowledged dangers of co-option: the danger that constitutionalization, as an ongoing process, undercuts what we typically associate with the constitutional, which is its framing function; that this problem is accentuated when it comes to the transnational; and that its reflexivity runs the danger of market capture, in which case it remains only nominally political. The danger of market capture for societal constitutionalism …

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 …

Values To Be Added To An "Eastphalia Order" By The Emerging China, Chang-Fa Lo

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

Autochthony, Citizenship, And Exclusion - Paradoxes In The Politics Of Belonging In Africa And Europe, Peter Geschiere

Indiana Journal of Global Legal Studies

Our world seems to be globalizing, yet in practice, it is marked more than ever by what Tania Murray Li calls "a conjuncture of belonging." The notion of autochthony plays a special role in this obsession with belonging as some sort of primordial claim: How can one belong more than if one is born from the soil itself? Since the 1990s, the notion has played a key role in politics in several parts of Africa. Yet, its spread has now become truly global. Comparisons with other parts of the world show that this notion retains its apparently "natural"s elf-evidence and, …

Seeking Civilian Control: Rule Of Law, Democracy, And Civil-Military Relations In Zimbabwe, Jeremiah I. Williamson

Indiana Journal of Global Legal Studies

Rule of law and democratic reform projects often concern lofty questions of constitutional law. But in many countries desperate for reform, deeply entrenched social and political problems present preconditions to any discussion of constitutional reforms aimed at democracy and the rule of law. Zimbabwe is one such nation, which like many others faces the problem of military intervention into domestic politics. This Note examines structural and historical aspects of Zimbabwe's military problem and utilizes the theory of objective civilian control to demonstrate the plausibility of meaningful reforms. In so doing, this Note provides a demonstrative model for reforming civilmilitary relations …

Eastphalia As The Perfection Of Westphalia, Tom Ginsburg

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

East Asian Order Formation And Sino-Japanese Relations, Men Honghua

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

Human Security With An Asian Face?, Sung Won Kim

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

Pursuing Health As Foreign Policy: The Case Of China, Yanzhong Huang

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

Introduction: Eastphalia Emerging?: Asia, International Law, And Global Governance, David Fidler

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009

India And Eastphalia, David Fidler, Sumit Ganguly

Indiana Journal of Global Legal Studies

Eastphalia Emerging?: Asia, International Law, and Global Governance, Symposium. Indiana University Maurer School of Law, Bloomington, Indiana, 2009