Comparative and Foreign Law Commons^™

Circumvention Medical Tourism And Cutting Edge Medicine: The Case Of Mitochondrial Replacement Therapy, I. Glenn Cohen

Indiana Journal of Global Legal Studies

'Medical Tourism" is the travel of patients from a home country to a destination country for the primary purpose of receiving health care. "Circumvention Tourism" is a sub-type of such travel where the motivation is circumventing a domestic prohibition on accessing a medical service. This Article focuses on such circumvention tourism for cutting-edge medicine. I use the recently reported case of travel to Mexico for Mitochondrial Replacement Therapy as a springboard for examining the legal and ethical issues raised by the practice and to discuss restrictive regulation in place in the United States.

This Article derives in part from the …

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, …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Indiana Journal of Global Legal Studies

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

Editor's Note, Allison Scarlott

Indiana Journal of Global Legal Studies

No abstract provided.

The Public And Its Problems: How The Eu's Capital Market Union Defines The Bounds Of Legitimate Knowledge And Redraws The Boundaries Of (Public) Authority, Timo Walter, Oliver Kessler

Indiana Journal of Global Legal Studies

Recent years have seen increasing theoretical and practical attempts to come to terms with the strains on public authority at the level of transnational regulation and governance. For the most part, these have followed what could be called a strategy of transposition, seeking to install functional equivalents to familiar forms of nation-state or Westphalian public authority. While useful for some analytical purposes, the validity of this strategy depends on the nature of public authority remaining unchanged: the same 'function' is now fulfilled by somebody else. In this article, we argue, in contrast, that the very form of public authority has …

From The Private To The Public To The Private? Historicizing The Evolution Of Public And Private Authority, Poul F. Kjaer

Indiana Journal of Global Legal Studies

A central assumption in much contemporary scholarship is that a central shift has taken place over the course of the last four decades: a shift from a world largely centered on public authority to a world that is increasingly dominated by private authority. The central expression of this shift is seen to be a concurring move from public to private law and thus from legislation to contract as the central legal instrument structuring economic as well as other social processes.

While developments in this direction can certainly be observed, this article provides a more nuanced perspective. Outlining a long-term historical …

Private International Law's Shadow Contribution To The Question Of Informal Transnational Authority, Horatia M. Watt

Indiana Journal of Global Legal Studies

This contribution attempts to approach informal transnational authority through the lens of critical private international law. It subscribes to the underlying idea within this volume, according to which the workings of the highly complex dynamic between the public and the private are cardinal to understanding contemporary global shifts in transnational authority, placing the rise of informal transnational authority at its epicenter. Expressions of private authority in the global arena take place outside formal legal discourse. Capital expanding beyond state boundaries has organized its own forms of authority, which arbitrate, enforce and legitimize new processes and structures beyond the state. To …

Policing Corruption Post- And Pre-Crime: Collective Action And Private Authority In The Maritime Industry, Hans K. Hansen

Indiana Journal of Global Legal Studies

How are we to understand the proliferating attempts amongst transactional corporations (TNCs) at collectively reducing the risk of corruption in business operations and interactions with state officials around the world? How are these endeavors linked to transformations of public and private authority in the global political economy? Premised on the observation that corruption is globalized and the growing efforts at tackling it equally so, this article draws on the literatures on private authority, governmentality, and criminological studies to explore anticorruption in terms of pre-crime and post-crime policing. The case of the maritime industry is analyzed, including the ways in which …

Shifting Between Public And Private: The Reconfiguration Of Global Environmental Regulation, Orr Karassin, Oren Perez

Indiana Journal of Global Legal Studies

Over the past two centuries, public environmental regulation (PER) has been progressively supplemented by private transnational regulation (PTR), creating a hybrid environmental governance regime. A fivecategory typology is developed to describe the ways in which international and national PER interact with private forms of environmental regulation. We then analyze the policy considerations that are relevant to the design of such hybrid regimes and various forms of interaction. Next, we describe two case studies that demonstrate the diversity of interactions between PER and PTR in a single regime. The case of sustainability reporting illustrates how public law builds on the expertise …

Transnational Private Authority In The Sphere Of Education, Eva Hartmann

Indiana Journal of Global Legal Studies

It seems that an ever-shorter temporal rhythm is gaining ground with the end of the "short twentieth century, 'I challenging the modern temporal horizon. The emerging economy relies on a continuous stream of scientific and technical knowledge closely related to information technology and networks. The increasing compression of both time and space has major consequences for the governance of the economy and the setting of authoritative standards in this sphere. This paper explores the consequences for education and training and its governance, where continuing education has become crucial. It studies the setting of authoritative standards in the field of information …

Behind The Cloak Of Corporate Social Responsibility: Safeguards For Private Participation Within Institutional Design, Fenner L. Stewart

Indiana Journal of Global Legal Studies

This article challenges the reader to consider what modes of governance will ensure that corporations advance collective welfare. It identifies and explores "new governance imagery," which holds out the promise of a governance that is more "effective," "efficient," and "democratic." Such imagery is woven into the arguments used to champion institutional design's reliance on corporate decision-making. The article then questions the use of corporate social responsibility rhetoric, showing how it may lure regulators to disregard valid concerns about the effects of privatization and give them false assurance that the transfer of public power to business actors will inspire them to …

The Judicialization Of Private Transnational Power And Authority, A. Claire Cutler

Indiana Journal of Global Legal Studies

This article examines the judicialization of private systems of governance that are transforming "common sense" understandings of who should govern states, societies, and political economies. The focus is on the private transnational institutions and processes in the global investment and financial regimes. These regimes contribute to the maintenance and expansion of capitalism by assisting in the management and mitigation of risk, but they also participate in the construction of the sorts of risks that require management and mitigation. In so doing, they are deeply involved in determining what requires governance, as well determining the appropriate mechanisms and manner of governance. …

The Politics Of Legal Arrangements: The "Duty Of Care," Justifying, Extending, And Perpetuating The Public-In-The-Private Forms Of Protection, Anna Leander

Indiana Journal of Global Legal Studies

This article explores the place of formal legal arrangements in the politics surrounding the hybrid, enmeshed public-in-the-private forms of authority this special issue focuses on. It does so by analyzing the significance of one specific legal arrangement, the Duty of Care, for the politics surrounding public-in-the-private forms of protection. I show that the Duty of Care does considerable political work. It contributes to decentering, commercializing, and depoliticizing protection. In so doing, the Duty of Care is justifying this specific form of protection, defining and extending its scope, and perpetuating it. The article makes this argument by drawing both on the …

"Dignity In Living And In Dying": The Henry H. H. Remak Memorial Lecture, George P. Smith

Indiana Journal of Global Legal Studies

This Article derives from the Henry H.H. Remak Memorial Lecture given at the Maurer School of Law, Indiana University on March 22, 2017.

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 …

After The European Commission Ordered Apple To Pay Back Taxes To Ireland: Ireland's Future In The New Global Tax Environment, Boyu Wang

Indiana Journal of Global Legal Studies

On August 30, 2016, the European Commission ordered Ireland to collect $14.5 billion plus interest in unpaid taxes between 2003 and 2014 from Apple Inc. The European Union suggested that Ireland made "sweetheart deals" with Apple in exchange for bringing more jobs into the country and concluded that these deals constituted illegal tax benefits, contrary to the European Union's prohibitions against "state aid."

Profit shifting and transfer pricing manipulation dominate the analysis of the corporate tax structure in Ireland and its position in the context of global tax policy. This note explains the European Commission's Apple decision and analyzes how …

Islam's (In)Compatibility With The West?: Dress Code Restrictions In The Age Of Feminism, Lisa M. La Fornara

Indiana Journal of Global Legal Studies

Many secular Western countries have adopted some form of legislation regulating a woman's ability to wear traditional "Islamic" coverings. These governments often cite concerns for gender equality to justify the regulations. Although it is certainly true that some women are forced to wear hijab, many women cover by choice. These women's choices may be rooted in their faith, but the decisions are also commonly linked to other factors like culture. Thus, this Note argues, regulations that prevent a woman from choosing how to dress do not enhance her rights. Rather, the regulations replace a feared authoritarian man with an overly …

The Status Of Authority In The Globalizing Economy: Beyond The Public/Private Distinction, Eva Hartmann, Poul F. Kjaer

Indiana Journal of Global Legal Studies

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one.' Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use a term John Ruggie coined. 2 The concerns have also helped nationalistic movements to gain power in many high-income …

Digital Weberianism: Bureaucracy, Information, And The Techno-Rationality Of Neoliberal Capitalism, Chris Muellerleile, Susan L. Robertson

Indiana Journal of Global Legal Studies

The social infrastructures that constitute both public and private administration are increasingly entangled with digital code, big data, and algorithms. While some argue these technologies have blown apart the strictures of bureaucratic order, we see more subtle changes at work. We suggest that far from a radical rupture, in today's digitizing society, there are strong traces of the logic and techniques of Max Weber's bureau; a foundational concept in his account of the symbiotic relationship between modernity, capitalism, and social order. We suggest the manner through which these techniques have shaped contemporary systems of social administration helps explain the remarkable …

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 …

The Japanese Impact On Global Drone Policy And Law: Why A Laggard United States And Other Nations Should Look To Japan In The Context Of Drone Usage, Kaitlin D. Sheets

Indiana Journal of Global Legal Studies

The global Unmanned Aircraft System, or unmanned aerial systems (UAS) revolution is poised to have an impact across a broad range of industries from agriculture to filmmaking. The United States has taken a difficult and slower path to implementing UAS policy, with Congress essentially mandating the Federal Aviation Administration (FAA) to take action in 2015. The FAA's 624-page rulebook marks the first attempt of any comprehensive plan to regulate remote-controlled and commercial aircraft activity. Across the globe, Japan, a country with a proven track record in electronics and technology, is outpacing other countries in devising regulations that will increase UAS …

Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle

Maine Law Review

The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting positions were …

Complicated-But Not Too Complicated: The Sunset Of E.U. Law In The U.K. After Brexit, Maimon Schwarzschild

Cardozo Law Review

The article examines the complexities of Brexit, focusing on the integration of EU law into UK law and the challenges of disentangling the two legal systems post-Brexit. It explores key areas such as free movement, environmental law, and the forms of EU law, highlighting the interconnectedness of EU and UK legal frameworks. The author suggests a "sunset clause" approach to manage the transition, allowing EU laws to expire unless explicitly retained, to align with the UK's newfound independence and regulatory autonomy.

The Role Of Exit Rights: What The Theory Of The Firm Says About The Conduct Of Brexit Negotiations, Richard A. Epstein

Cardozo Law Review

The United Kingdom's (U.K.) June 2016 decision to exercise its great surprises option to leave the European Union (E.U. or Union) represents one of the in the complex history of supranational organizations. Most of the discussion in the wake of that decision has tended to stress the particulars of the referendum with regard to the short-term advantages and disadvantages of a decision that has clearly divided class and region within the U.K. Older individuals, and those who did not live and work in the Greater London area, tended to vote in favor of exit. Those who were younger and in …

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Faculty Scholarship

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

Does The 1980 Vienna Sales Convention Reflect Universal Values? The Use Of The Cisg As A Model For Law Reform And Regional Specificities, Ulrich G. Schroeter

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Dispute Resolution Mechanisms: An Analysis Of The Indus Waters Treaty, Waseem Ahmad Qureshi

Pepperdine Dispute Resolution Law Journal

Since India and Pakistan’s independence in 1947, both states have fought over the occupied territories of Kashmir to gain control of water supplies, which are strategically valuable. Even in recent times, the countries are facing constant threats from each other over several separate issues. India and Pakistan’s water conflicts are long-standing and relate to Indian infrastructure on the western tributaries. Pakistan is of the view that India is robbing Pakistan’s water supplies and building its water management capacity only as a political maneuver to gain political supremacy by practicing hydro-hegemony. On the other hand, India maintains that it is only …

Uniting Foes Of A Single Nation: Religious Dispute Resolution For India And Pakistan, Abraham Reinherz

Pepperdine Dispute Resolution Law Journal

This article will bring forth the argument that a religious-based dispute resolution mechanism should be employed to, at a bare minimum, build bridges between the two countries that are dominated by Hinduism and Islam. This article is not suggesting that religious-based dispute resolution will be a panacea to the India-Pakistan conflict, but simply a method of putting the countries on a step towards reconciliation. Section II of the article will detail the historical background of the conflict. Section III will highlight existing ADR in both India and Pakistan. Section IV will go over the Islamic perspective on dispute resolution. Section …

The Songs Of Other Birds, Anya Bernstein

Contributions to Books

Published as Chapter 14 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song, Mary Nell Trautner, ed..

In this essay, written for a volume that re-engages with David Engel's classic article, The Oven Bird's Song, I consider how we decide how to situate what we encounter in our research. Comparing the findings of my own research in Taipei with Engel's work in Thailand and America, I ask how we can decide to give different interpretations of seemingly similar social phenomena -- specifically, our interlocutors' evident distaste for invoking the law.

Although many of my interlocutors in Taiwan expressed …

Will The Zika Virus Enable A Transplant Of Roe V. Wade To Brazil?, Amanda Greenberg

University of Miami Inter-American Law Review

No abstract provided.