Law Commons^™

An Evaluation Of The Proposals In The Fcc's Intercarrier Compensation Reform Docket Related To Tandem Transit Services, John R. Harrington, Ronald W. Gavillet, Matt D. Basil, Melissa L. Dickey

Federal Communications Law Journal

As part of its Intercarrier Compensation Reform Docket, the Federal Communications Commission (FCC) has received many proposals advocating for the adoption of regulations relating to tandem transit services. As transiting affects virtually every carrier in the telecommunications industry, including traditional CLECs, cable telephony providers, wireless carriers, and even traditional ILECs, the industry is sharply divided over which, if any, of those proposals should be adopted. This Article provides an in-depth look at the issues dividing the industry, and the various proposals before the FCC. The Authors then hypothesize that the FCC should follow the lead of several state commissions who …

Masthead Vol.61 No.2 (2009)

Federal Communications Law Journal

No abstract provided.

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Paying The Price For Sports Tv: Preventing The Strategic Misuse Of The Fcc's Carriage Regulations, David Hutson

Federal Communications Law Journal

Cable companies and sports leagues have embarked upon parallel courses of vertical integration by creating and acquiring interests in cable sports networks. Cable companies carry regional sports networks (RSNs) on basic cable tiers. Some league-owned networks have sought high prices for carriage on basic tiers, causing some cable companies to balk because of the price increase they would have to pass on to consumers. The 1992 Cable Act prohibits cable companies from discriminating in carriage terms between affiliated and nonaffiliated networks. Cable companies that own RSNs are, therefore, left vulnerable to discrimination complaints by league-owned networks. This Note argues that …

Business Solutions To The Alien Ownership Restriction, Greg Snodgrass

Federal Communications Law Journal

The alien ownership restriction on broadcast licenses has had a profound effect on the entertainment industry over the past few decades. While the origins of the restriction were based on national security fears that no longer apply, the restriction is unlikely to be repealed without significant lobbying. Given the unlikelihood of repeal, this Note concludes that entertainment conglomerates should apply a two-pronged approach to overcome the barrier imposed by the ownership restriction. First, conglomerates should build powerful nonbroadcast superstations. Second, conglomerates should push the FCC to gradually loosen its application of the restriction. While this is not a perfect solution, …

The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid

Indiana Law Journal

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where …

Introduction: Operationalizing Global Governance, Hannah Buxbaum

Indiana Journal of Global Legal Studies

Operationalizing Global Governance, Symposium. Indiana University Maurer School of Law-Bloomington, Indiana, March 19-21, 2008

Emerging Global Environmental Governance, N. Brian Winchester

Indiana Journal of Global Legal Studies

Environmental thinking and activism are steadily gaining widespread, even global acceptance, but are often in conflict with economic interests and international politics. Environmental priorities are further challenged by scientific uncertainty involving effects that in some cases will only become manifest far into the future. Nonetheless, accompanying this global environmental awakening has been an extraordinary number of international agreements on a wide range of critical environmental issues. While many of these environmental regimes lack adequate financial support and sanctions for non-compliance, they involve a variety of non-state actors, suggesting meaningful movement towards an evolving, complex form of global environmental governance. Indeed, …

Deliberative Democracy In Severely Fractured Societies, Adeno Addis

Indiana Journal of Global Legal Studies

The world is full of boundaries. Whatever their nature, boundaries provide the conditions for communal or individual identity and agency, and they make collective action possible. That very capacity to define and contain, however, allows boundaries to "close off possibilities of being that might otherwise flourish." Paradoxically, boundaries "both foster and inhibit freedom." This article explores how one particular boundary-ethnicity- has served both as an important source of identity and a cause of deep fracture in societies that this article calls "severely fractured." The purpose of the article is to explore what institutional structures and processes might be appropriate to …

An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor

Indiana Journal of Global Legal Studies

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …

Pain, Gain, Or Shame: The Evolution Of Environmental Law And The Role Of Multinational Corporations, Michael Ewing-Chow, Darryl Soh

Indiana Journal of Global Legal Studies

The evolution of environmental law in the past century has been linked to the growing acceptance of the notion of collective global responsibility, which entails the notion of sustainable development. At the turn of this century, the focus in environmental law has shifted from the creation of a global framework to deal with environmental problems to that of compliance with these frameworks. As a result, the primary actor of environmental policy has shifted from the state to the corporation. How has environmental law developed so as to encourage compliance by this new primary actor? Conversely, how has the corporation been …

"We're Very Apolitical": Examining The Role Of The International Legal Assistance Expert, Blake K. Puckett

Indiana Journal of Global Legal Studies

International rule of law practitioners are important sources of knowledge transmission in the promotion of global governance. Yet they face significant barriers in their role as bearers of a globalizing legal culture. This article analyzes three of these barriers in the context of rule of law promotion in Central Asia. First, practitioners tend to dismiss the political nature of their work, which local actors then appropriate for their own purposes. Second, this misconception is amplified by the lack of adequate training, experience and continuity among rule of law practitioners. Third, the language barrier and the challenge of translation remain underappreciated. …

Civil Society And Disability Rights In Post-Soviet Ukraine: Ngos And Prospects For Change, Sarah D. Phillips

Indiana Journal of Global Legal Studies

This article uses an anthropological approach to critically examine the limitations and successes of the contemporary disability rights movement in post-Soviet Ukraine. Case studies of rights legislation and the work of disability advocacy NGOs are detailed to illustrate the paradoxes and problems that imbricate disability rights issues, and the strategies some activists have leveraged to successfully navigate these challenges. The article suggests specific tactics that rights groups in Ukraine might pursue to further enact change in their communities, including pursuing more international partnerships fielding candidates for political office, and launching informational and image campaigns.

Operationalizing Global Governance, Symposium. Indiana University …

Integration Of Corporate Social Responsibility Through International Voluntary Initiatives, Tim Baines

Indiana Journal of Global Legal Studies

Many multinational companies and financial institutions have adopted corporate social responsibility programs, often relying on the implementation of international voluntary initiatives. This article describes two such mechanisms. The first, the Equator Principles, provides guidance to financial institutions involved in project finance. The second, the Organization for Economic Cooperation and Development's Guidelines for Multinational Enterprises, helps governments to encourage businesses to be socially and environmentally responsible. This article suggests means by which voluntary initiatives can be implemented to benefit both the wider community and companies themselves. It also suggests ways of overcoming shortcomings resulting from the lack of access to formal …

A Framework For Understanding Accountability Of International Ngos And Global Good Governance, Michael Szporluk

Indiana Journal of Global Legal Studies

International non-governmental organizations (INGOs) promote good governance through global advocacy and through relief and development work. This article focuses on the latter role. While there are legitimate criticisms of INGOs' lack of accountability, this article argues that a review of the different stakeholders in the relief and development sector and their relationships with one another reveals valuable information about what accountability means and to whom stakeholders should be accountable. The article posits that INGOs should be accountable, above all, to the communities where they are implementing projects. Finally, the article points to many efforts being undertaken by INGOs to improve …

Representativity, Civil Society, And The Eu Social Dialogue: Lessons From The International Labor Organization, Faina Milman-Sivan

Indiana Journal of Global Legal Studies

This article addresses representativity questions that arise from the formal insertion of private,functional groups within the European Union (EU) governance via the EU social dialogue. It depicts the representativity debate at the EU social dialogue and suggests that important lessons can be learned through the examination of another institutional context in which similar questions have been raised and addressed: the International Labor Organization (ILO) tripartite structure. In addition, it ascertains that the issue of representativity of the EU social partners would further benefit from viewing it in the broader context of the EU "democratic deficit." The article concludes that such …

Privacy By Deletion: The Need For A Global Data Deletion Principle, Benjamin J. Keele

Indiana Journal of Global Legal Studies

With global personal information flows increasing, efforts have been made to develop principles to standardize data protection regulations. However, no set of principles has yet achieved universal adoption. This note proposes a principle mandating that personal data be securely destroyed when it is no longer necessary for the purpose for which it was collected. Including a data deletion principle in future data protection standards will increase respect for individual autonomy and decrease the risk of abuse of personal data. Though data deletion is already practiced by many data controllers, including it in legal data protection mandates will further the goal …

Navigating The Turbulent Waters Connecting The World Trade Organization And Corporate Social Responsibility, Gustavo Ferreira Ribeiro

Indiana Journal of Global Legal Studies

This paper uses the metaphor of a fisherman's journey into the World Trade Organization (WTO) and Corporate Social Responsibility (CSR) "seas" to explore the relationship between them. It is intended to provide the reader with a basic understanding of this relationship. An argument can be made that the WTO and CSR waters are not connected at all: the WTO is an intergovernmental organization regulating rights and duties of its members (mainly states), while CSR concerns primarily non-governmental initiatives dealing with corporate behavior, such as voluntary codes of conduct and certification processes involving social and environmental standards. However, this paper explores …

"The Momentous Gravity Of The State Of Things Now Obtaining": Annoying Westphalian Objections To The Idea Of Global Governance, Timothy W. Waters

Indiana Journal of Global Legal Studies

Are there situations in which otherwise attractively complex, sub- and cross-national networks are unlikely to replace the hoary old Westphalian state? Perhaps, but whatever the answer, global governance as a discipline seems to have a hard time fully considering the question. One oft he problems with operationalizing global governance may be the simultaneous profligacy and poverty of the idea itself: its definitional overemphasis on change and consequent inattention to the state's capacity to reconstitute its core functions and thus to achieve a predictable continuity. As a result, for all the excellent work done under its name, global governance as a …

No Boy Left Behind? Single-Sex Education And The Essentialist Myth Of Masculinity, David S. Cohen

Indiana Law Journal

No abstract provided.

The Myth Of Home Ownership And Why Home Ownership Is Not Always A Good Thing, A. Mechele Dickerson

Indiana Law Journal

Home ownership is viewed as key to achieving the "American Dream " and is now an essential element of the American cultural norm of what it means to be a success. The metastasizing mortgage crisis suggests, however, that our home ownership policies are out-dated, misguided, and largely ignore the actual market realities many potential homeowners now face. After briefly describing the current home ownership crisis, this Article argues that the United States should radically revise and restrict home ownership subsidies. Rather than encouraging universal home ownership, the Article argues that the government should replace existing home ownership subsidies with targeted …

Midwestern Juvenile Drug Courts: Analysis & Recommendations, Nicole A. Kozdron

Indiana Law Journal

No abstract provided.

Copytraps, Ned Snow

Indiana Law Journal

Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when Web sites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the Web site appears legitimate, whether a user's good-faith belief is reasonable, or whether the Web site owner is unaware that the material is infringing, users who download infringing material face strict liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The …

Bottom-Up Or Top-Down? Removing The Privacy Law Obstacles To Healthcare Reform In The National Healthcare Crisis, John W. Hill, Arlen W. Langvardt, Jonathan E. Rinehart

Indiana Law Journal

Issues of healthcare availability and quality are among the most profound facing our nation. If a high-quality, accessible healthcare system of a truly national nature is to be devised, electronic connectivity—including increased use of electronic medical records and similar technological advances—must be a key feature. Yet such connectivity may give rise to patients’ concerns regarding the privacy of their medical information. Because such concerns demand respect, a challenge lies in balancing patients’ privacy interests against the important information-sharing interests underlying a national healthcare network. The Health Insurance Portability & Accountability Act (HIPPAA) is a key federal law that addresses many …

Rethinking Judicial Deference To Legislation Fact-Finding, Caitlin E. Borgmann

Indiana Law Journal

It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts in turn are tasked with deciding the law and must defer to legislative fact-finding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts' confused approach to legislative fact-finding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative fact-finding would not be a wise general rule. Because social fact-finding …

Scientific Avoidance: Toward More Principled Judicial Review Of Legislative Science, Emily H. Meazell

Indiana Law Journal

Courts increasingly confront legislative enactments made in light of scientific uncertainty. Even so, the degree of deference appropriate to this type of judicial review is a moving target, seemingly determined on an ad hoc, unprincipled basis. On one hand, the decision of how to legislate in light of scientific uncertainty is quintessentially one of policy, suggesting that the highest degree of deference is appropriate. But certain classes of cases, and certain types of scientific questions, seem singularly inappropriate for extreme judicial deference. While significant scholarly attention has focused on the comparative institutional competence of courts and legislatures with respect to …

Anti-Horse Slaughter Legislation: Bad For Horses, Bad For Society, Laura J. Durfee

Indiana Law Journal

No abstract provided.

The Failure Of Adversarial Process In The Administrative State, Bryan T. Camp

Indiana Law Journal

No abstract provided.

What About The Children? A Call For Regulation Of Assisted Reproductive Technology, Cahterine A. Clements

Indiana Law Journal

No abstract provided.

The Uses And Abuses Of Religion In Child Custody Cases: Parents Outside The Wall Of Separation, Joshua S. Press

Indiana Law Journal

Religious custody disputes such as those at the Fundamentalist Church of Jesus Christ of Latter-Day Saints compound in April, 2008 are very complex and are finding their way into courts with increasing regularity. This Essay argues that in responding to these religious custody disputes, courts should abstain from either analyzing a parent’s religious practices for their perceived “risks of harm” to the child, or from applying a flat rule to ensure that the custodial parent’s religious preferences take primacy. Instead, courts should employ the actual or substantial harm standard—which would only bar a parent from fully practicing her religion if …