Law Commons^™

Defragmentation Of Public International Law Through Interpretation: A Methodological Proposal, Anne Van Aaken

Indiana Journal of Global Legal Studies

Fragmentation of public international law (PIL) is perceived as a growing problem and answers to it are proliferating. International courts and tribunals are adjudicating ever more on issues that would be considered-were they not transnational or international in nature-constitutional problems. In national law, countervailing values, or intra-constitutional conflicts, are reconciled through a balancing of those values that is usually embedded in the application of the proportionality principle. A similar mechanism in PIL remains underdeveloped from a methodological point of view. This article aims to develop a methodological proposal for defragmentation through interpretation, drawing on legal theory, to be more precise …

Is There An International Environmental Constitution?, Daniel Bodansky

Indiana Journal of Global Legal Studies

The surge of interest among international lawyers in "constitutionalism" represents one of several efforts to reconceptualize internationa governance; others include the research projects on global administrative law and legalization. The article applies the constitutionalist lens to international environmental law-one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality oft he terms "constitution"and "constitutionalism,"t he article begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have more determinate, unambiguous meanings, we can answer the question, "Is there an international environmental constitution?", …

Civil Rights In International Law: Compliance With Aspects Of The "International Bill Of Rights", Beth Simmons

Indiana Journal of Global Legal Studies

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-à-vis their own governments. This article discusses the development of aspects of international law relating to civil rights and argues that if this body of law is meaningful, we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because doing so is not generally in the interest of potential "enforcers"), I argue that international civil rights treaties will have their greatest effect where stakeholders-local citizens-have …

When Common Interests Are Not Common: Why The Global Basic Structure Should Be Democratic, Andreas Føllesdal

Indiana Journal of Global Legal Studies

The global constitution-the fundamental international norms and structures that serve constitutional functions-should include mechanisms of democratic contestation and accountability. This central claim of global constitutionalism faces three objections extrapolated from arguments made by Andrew Moravcsik and Giandomenico Majone in debates about the democratic deficit of the European Union (EU): the global constitution only regulates issues of low salience for citizens; democratic control is explicitly counter to the self-binding system that international regulations aim to achieve; and the EU's track record suggests that democratic control at the international level may be unnecessary to ensure congruence between voters' preferences and actual regulations. …

Constitutionalization And The Unity Of The Law Of International Responsibility, André Nolkaemper

Indiana Journal of Global Legal Studies

The law of international responsibility fulfills essentially two functions: reparation for injury and protection of the rule of law and global order. Notwithstanding the fundamental difference between these objectives, the law of international responsibility traditionally has been conceived in unitary norms consisting of a single set of principles that applies to all breaches of rules of international law. With the further development of international law that unity becomes difficult to maintain. On the one hand, there is an increasing need for a further refinement of liability principles for the determination of compensation for injury. On the other hand, the process …

On The Constitutionability Of Global Public Policy Networks, Petra Dobner

Indiana Journal of Global Legal Studies

Global Public Policy Networks (GPPNs) are increasingly influential in the global policy-making process. According to the Global Public Policy Institute, GPPNs are cross-sectoral coalitions of actors from governments, international organizations, civil society, and private industry. In structure, these networks differ from traditional hierarchical organizations, but their primary functions-negotiation, coordination, rulemaking, and implementation-pick up the classic tasks of formal international organizations and intergovernmental cooperation.

The power and acceptance of these networks are based on the real or alleged expertise of their members, their former or current formal positions in national or international organizations or private industry, and their personal connections. Although …

Constitutionalism, Legal Pluralism, And International Regimes, Alec Stone Sweet

Indiana Journal of Global Legal Studies

The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part L I argue that most accepted understandings of "constitution" would readily apply to at least some international regimes. In Part II,I discuss different notions of "constitutional pluralism," and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of Justice, the European Court of Human Rights, and …

International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann

Indiana Journal of Global Legal Studies

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …

Multilayered Governance, Pluralism, And Moral Conflict, Thomas Cottier

Indiana Journal of Global Legal Studies

The quest for multilayered governance faces the problem of endemic tensions and disagreements in international relations and doubts as to whether nations truly share common values upon which an international society can be solidly built. Values, however, are equally controversial within the nation-state. We find similar tensions within domestic and regional layers of governance. In any system of governance, diverging and competing values are inevitable. There are differences in degree, but not in principle, when comparing traits of domestic and international governance. Legal experience in the fields of human rights and international trade regulation indicates that under such conditions, procedures …

Freedom Of Expression In The United Kingdom Under The Human Rights Act 1998, Eric Barendt

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The European Court Of Human Rights And The Freedom Of Expression, Jean-François Flauss

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Feminist Theory And Freedom Of Speech, Free Speech Theory, Susan H. Williams

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

A Comparison Of The Freedom Of Speech Of Workers In French And American Law, Patrick Morvan

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Shooting Blanks: The War On Tax Havens, Timothy V. Addison

Indiana Journal of Global Legal Studies

The United States Treasury conservatively estimates that tax havens cost the United States over $100 billion annually in lost tax revenue. In response to this epidemic, the United States and the Organization for Economic Cooperation and Development entered into Tax Information Exchange Agreements with states considered to be tax havens. These agreements received widespread recognition as a means of remedying this growing problem. These agreements, however, are largely symbolic and provide very few additional weapons to combat tax evasion enabled by tax havens. As evidence of this, the estimated annual loss of tax revenue due to tax havens has increased …

Freedom Of Expression In The Federal Republic Of Germany, Oliver Jouanjan

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Free Speech And National Security, Geoffrey R. Stone

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Toward A Coherent Test For Disparate Impact Discrimination, Jennifer L. Peresie

Indiana Law Journal

Statistics are generally plaintiffs' primary evidence in establishing a prima facie case of disparate impact discrimination. Thus, the use, or misuse, of statistics dictates case outcomes. Lacking a coherent test for disparate impact, courts choose between the two prevailing tests, statistical significance and the four-fifths rule, in deciding cases, and these tests frequently produce opposite results. Litigants thus face considerable uncertainty and the risk that a judge's preferred outcome will dictate which test is applied. This Article recognizes that the two tests perform complementary functions that both play a useful role in determining whether liability should be imposed. statistical significance …

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The First Amendment And Commercial Speech, C. Edwin Baker

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

A Look At Traditional Islam's General Discord With A Permanent System Of Global Cooperation, Meghan E. Tepas

Indiana Journal of Global Legal Studies

In today's world, nation-states do not operate in isolation. Rather, the myriad global organizations and cross-border treaties evidence that the post-World War II political climate is one of interconnectedness and cooperation between states. Against this backdrop, this Note surveys the tension between the current global world order and a strict adherence to traditional source-based application of Islamic law, Shari'a. The tension begins with the concept of statehood, seemingly absent in traditional Islam, and continues with the Islamic unification of religion and state and its limited role for a political leader. Using Iran as an example, this Note argues that political …

The Bursting Of The Pedigree Bubble, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

Foreword: Freedom Of Expression: "Precious Right" In Europe, "Sacred Right" In The United States?, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Restraining The Heartless: Racist Speech And Minority Rights, Jeannine Bell

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Editor's Note, Christopher J. Harayda

Federal Communications Law Journal

No abstract provided.

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

Viewpoint Diversity And Media Ownership, C. Edwin Baker

Federal Communications Law Journal

A recent technically sophisticated study of the impact of media mergers on viewpoint diversity that found the impact is contextually variable should be entirely irrelevant to proper policy debates about regulation of media ownership. This Article examines the real reasons to oppose concentrated ownership and considers how the recent study went wrong.

Trustworthiness As A Limitation On Network Neutrality, Aaron J. Burstein, Fred B. Schneider

Federal Communications Law Journal

The policy debate over how to govern access to broadband networks has largely ignored the objective of network trustworthiness-a set of properties (including security, survivability, and safety) that guarantee expected behavior. Instead, the terms of the network access debate have focused on whether imposing a nondiscrimination or "network neutrality" obligation on network providers is justified by the condition of competition among last-mile providers. Rules proposed by scholars and policymakers would allow network providers to deviate from network neutrality to protect network trustworthiness, but none of these proposals has explored the implications of such exceptions for either neutrality or trustworthiness.

This …

Masthead Vol.61 No.3 (2009)

Federal Communications Law Journal

No abstract provided.

The Role Of Theory And Evidence In Media Regulation And Law: A Response To Baker And A Defense Of Empirical Legal Studies, Daniel E. Ho, Kevin M. Quinn

Federal Communications Law Journal

We thank Professor Baker for a stimulating response to an Article in which we offered empirical evidence of editorial viewpoint diversity in the face of media consolidation. We appreciate his praise of the Article as "apply[ing] innovative statistical techniques" and as "far superior methodologically to most empirical studies" he has seen. At the same time, Baker "denies the policy relevance" to our Article because empirical evidence is "entirely irrelevant" to the field of media regulation under his preferred normative theory. Baker argues sweepingly that the legal academy's increased willingness to consider the perspectives of quantitative empiricists and positive theorists is …