International Law Commons^™

Anatomy Of A Design Regime, Kathryn C. Moore

Indiana Journal of Global Legal Studies

Since the European Union adopted uniform sui generis design rights, an increasingly complex system of cumulative and overlapping intellectual property rights has emerged. While such harmonization offers several benefits, analyzing the interpretation and application of narrow legal requirements within the EU Community Design Rights may indicate whether such benefits will actually be realized. This paper examines Regulation 6/2002's definitions of "informed user" and "overall impression" as they apply to registered designs. After summarizing relevant case law and considering underlying policy goals of the EU Community design legislation, this paper explores whether these definitions could be more efficient and intellectually honest …

Maintaining The Balance Of Power: A Typology Of Primacy Clauses In Federal Systems, Brady Harman

Indiana Journal of Global Legal Studies

Constitutional design has become a novel and globalized legal profession. As such, practitioners in this new field-advisers and consultants of constitutional formation and reformation processesrequire practical and comparative tools to ply their trade. This Note attempts to fill a gap in constitutional design literature and provide such a tool by methodically examining "primacy clauses." By determining whether national or provincial law prevails when the two are in conflict, primacy clauses play an important role in maintaining federal balances of power. Three primacy approaches are found among the world's federal constitutions: national primacy, provincial primacy, and conditional primacy. This Note explores …

Law, Fiscal Federalism, And Austerity, R. Daniel Kelemen

Indiana Journal of Global Legal Studies

In response to the Eurozone crisis, European Union leaders have undertaken a number of dramatic reforms, including the imposition of a new regime for fiscal governance of Eurozone Member States. The 2012 Fiscal Compact Treaty, one of the lynchpins of this package of reforms, requires states to incorporate judicially enforceable balanced-budget rules into national law. This article explores this effort to judicialize austerity in the European Union, focusing on two interrelated sets of questions. First, why did EU leaders turn to the courts and ask them to become the stewards of fiscal discipline, and second, should we expect the effort …

Evidence-Based Stakeholder Engagement: The Promise Of Randomized Control Trials For Business And Human Rights, Patrick J. Keenan

Indiana Journal of Law and Social Equality

When a large-scale development project comes to a poor country, that project typically comes with a stakeholder engagement plan, which structures the relationship between those affected by the new project and the proponents of the project. The plan sorts those affected by the project into categories, distributes economic benefits differentially based on those categories, allocates other benefits which can increase or decrease the social power of those affected, defines the ways that people harmed by the project may seek redress for their injuries, and might even modify existing governance structures. In the past decade, through the efforts of large institutional …

Nexus Redux, Anjum Gupta

Indiana Law Journal

Pursuant to its obligations under international law, the U.S. government has agreed to provide protection to individuals who fear persecution in their home countries for reasons of race, religion, nationality, membership in a particular social group, or political opinion. This protection in the United States takes the form of asylum, and the asylum statute states that the United States will protect individuals from persecution that occurred or will occur “on account of” one of those grounds. The Supreme Court has stated that in order to meet the “on account of” or “nexus” requirement, an asylum applicant must provide some evidence, …

Big Fish, Small Ponds: International Crimes In National Courts, Elizabeth B. Ludwin King

Indiana Law Journal

The principle of complementarity in the Rome Statute of the International Criminal Court anticipates that perpetrators of genocide, war crimes, and crimes against humanity will be tried in domestic courts unless there is no state with jurisdiction willing or able to do so. This Article examines the situation where a state might be willing to engage in meaningful local justice but temporarily lacks the capability to do so due to the effects of the conflict. It argues that where the state submits a detailed proposal to the International Criminal Court (ICC) outlining the steps necessary to gain or regain the …

At Play In The Field Of Law: Symbolic Capital And Foreign Attorneys In Ll.M. Programs, Jan Hoffman French

Indiana Journal of Global Legal Studies

In this Comment, I would like to pick up a thread of the authors' analysis and, in so doing, shift the emphasis a bit. That thread relates to their use of Pierre Bourdieu's theoretical conceptualizations of "field" and "forms of capital." In their analysis of admissions essays submitted by foreign-lawyer applicants, Lazarus-Black and Globokar consider how the discursive genre of the admissions essay orients itself to the powerladen structures that constitute the particular field within which the essay is playing, or to which it is addressed.8 They also use the Bourdieusian concepts of "cultural and linguistic capital" in relation to …

Editors' Note, Alfred C. Aman, Lydia Barbash-Riley

Indiana Journal of Global Legal Studies

The Article is followed by five comments, which critique and expand on the themes in Lazarus-Black and Globokar's piece. The comments are authored by Professors Bryant G. Garth, Jayanth K. Krishnan and Vitor M. Dias, Jan Hoffman French, Ethan Michelson, and Bonnie Urciuoli. Issue 1 also includes four notes from student authors proposing and analyzing new regulatory, policy, and management solutions for complex global problems.

The Metaculture Of Law School Admissions: A Commentary On Lazarus-Black And Globokar, Bonnie Urciuoli

Indiana Journal of Global Legal Studies

What does it mean for law school applicants to become, as Mindie Lazarus-Black and Julie Globokar put it, "what the ranking[s] count[]"? What does it mean for foreign applicants to develop responses to the application process by writing essays in certain ways, to project themselves (again as Lazarus-Black and Globokar put it) as "commodified persona[s]"? The application process analyzed by Lazarus-Black and Globokar exemplifies what Greg Urban calls metaculture: cultural forms that point actors toward recognizing and understanding what they do as exemplifying a particular cultural pattern. Metaculture is the mechanism by which culture is reproduced, moving through time and …

Technology And The Law On The Use Of Force: New Security Challenges In The Twenty-First Century, By Jackson Maogoto, Asaf Lubin

Articles by Maurer Faculty

Review of:

Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century. By Jackson Maogoto. Oxford, UK: Routledge, 2015. Pp xviii, 111. Price: $117.71 (Hardcover).

Risk Management In Data Protection, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

Comment Le Droit Des Gens Cessa D’Être Un Droit Politique: Le Droit International De John Marshall, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt

Indiana Law Journal

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Global Data Meets 3-D Printing: The Quest For A Balanced And Globally Collaborative Solution To Prevent Patent Infringement In The Foreseeable 3-D Printing Revolution, Tyler Macik

Indiana Journal of Global Legal Studies

This Note explores a potential global solution to the foreseeable patent infringement problems with 3-D printing and do-it-yourself users. More specifically, at a time when 3-D printing is quickly gaining popularity and recognition for its many beneficial applications through advancements in printing and scanning technology, the current state of patent law lacks the ability to detect and prevent patent infringement among do-it-yourself users of 3-D printing. I propose a potential global solution that would provide a balance between fostering growth in 3-D printing and upholding patentees' rights by exploring the possibility of creating a collaborative, intergovernmental 3-D CAD file database …

Immigrant Lawyers And The Changing Face Of The U.S. Legal Profession, Ethan Michelson

Indiana Journal of Global Legal Studies

In this Comment, I extend Lazarus-Black and Globokar's analysis further downstream to consider the stakes for the U.S. legal profession as a whole. Gatekeepers to LL.M. programs are doing far more than determining individual fates and collectively shaping the future of U.S. legal education. I will demonstrate in this Comment that their work helps shape-in concrete, measurable ways-the demographic composition of the U.S. legal profession. In so doing, I will contribute to the emerging field of legal demography, which refers to the study of lawyers through the analysis of data not collected for this specific purpose.

Notes Toward An Understanding Of The U.S. Market In Foreign Ll.M. Students: From The British Empire And The Inns Of Court To The U.S. Ll.M., Bryant G. Garth

Indiana Journal of Global Legal Studies

Mindie Lazarus-Black and Julie Globokar's article on "Foreign Attorneys in U.S. LL.M. Programs: Who's In, Who's Out, and Who They Are" uses interviews, LL.M. student observations, and actual admissions committee documents from one Midwest and one East Coast law school to confirm the tremendous growth of those programs over the past two decades in the United States and indicate who makes the journey to the United States; how foreign LL.M. candidates pitch themselves to admissions committees; how those admissions committees evaluate candidates; and what candidates expect from LL.M. programs. The voices that come through are quite compelling. We now know …

Foreign Attorneys In U.S. Ll.M. Programs: Who's In, Who's Out, And Who They Are, Mindie Lazarus-Black, Julie L. Globokar

Indiana Journal of Global Legal Studies

In recent decades, there has been a remarkable growth in the number of foreign attorneys enrolled at U.S. law schools and particularly in LL.M. programs. To learn more about these students and how they fare, we conducted research in two law schools, one in the Midwest and the second on the East Coast. We examine the admissions process for foreign attorneys from the perspectives and experiences of both the administrators who make admissions decisions and the students who seek admission. We consider the layered international, national, state, and local laws that complicate the selection process, as well as the standards …

The Aspiring And Globalizing Graduate Law Student: A Comment On The Lazarus-Black And Globokar Ll.M. Study, Jayanth K. Krishnan, Vitor M. Dias

Indiana Journal of Global Legal Studies

As a thought experiment, in the next section we present a theoretical frame (that builds on what previous scholars have discussed) for understanding motivation-as it relates to the subject focused on by Lazarus-Black and Globokar. Based on this model, we then postulate an alternative motivation for why foreign applicants might wish to pursue their LL.M. studies. We base our hypothesis on the experiences we have had in two countries we know well: India and Brazil. Because this is just a short Comment, we leave the empirical work on our proposal for future research. Our hope is that this exercise might …

Breaking The Curse: A Multilayered Regulatory Approach, Hunter Dekoninck

Indiana Journal of Global Legal Studies

Eastern Africa has been plagued for generations with what Richard Auty considers 'The Resource Curse." This curse, translated into modern economic tragedies, is the exploitive extraction and use of precious minerals from Eastern Africa, specifically the Democratic Republic of the Congo (DRC). As a result of attempts to combat the international market that perpetuates this curse, Section 1502 of the Dodd-Frank Wall Street Reform Act, largely in response to human rights activism, passed into law a provision requiring companies to account to the Securities and Exchange Commission (SEC) for their use of certain listed foreign minerals. Although such regulation is …

The Greek Debt Crisis: The Need For "Heroic" Economic Policy Reforms In The European Economic And Monetary Union, Peter Robbins

Indiana Journal of Global Legal Studies

Greece is in the midst of a devastating economic and financial crisis that the European Union has been trying ardently to resolve since the default of Lehman Brothers in 2008. A significant number of other European Union (EU) Member States are also in crisis due to various state-level economic and monetary causes. Meanwhile, the European Union has consistently used the existing treaty articles and legislation within its competence to impose traditional and homogenized austerity measures on highly indebted Member States, most notably Greece. In sum, the European Union has zealously advocated for fiscal conservatism driven by the German "diber-fear" of …

Using A Community-Based Strategy To Address The Impacts Of Globalization On Underwater Cultural Heritage Management In The Dominican Republic, Lydia Barbash-Riley

Indiana Journal of Global Legal Studies

This Note addresses the management of the Underwater Cultural Heritage (UCH) in the Dominican Republic as a case study of the effects of two aspects of globalization on cultural and environmental resource management in the developing world: the international convergence of values and the horizontal delegation of state power to private actors due to economic constraints. This Note posits that even as the global community of states moves toward a consensus on the ethical management of the UCH, this convergence combined with the global trend of horizontal delegation may incentivize some lesser-developed countries to deal with the economic pressures of …

Whither The Web?: International Law, Cybersecurity, And Critical Infrastructure Protection, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Clearing The Path: The Perils Of Positing Civil Society In Conflict And Transition, Timothy W. Waters

Articles by Maurer Faculty

Can there be a general theoretical perspective on civil society's involvement in transitional justice? This article considers this question in its application to the Israeli-Palestinian conflict. Within the study of transitional justice and conflict resolution, civil society - a notoriously plastic concept - can be understood narrowly as rights-oriented groups working “for” peace, but the term is equally available to describe a broader array of communities that can either promote or prevent peace and justice.

It is, in fact, quite difficult to sustain a theoretical distinction between them, because transitional justice does not escape the dictates of politics - of …

Internet Balkanization Gathers Pace: Is Privacy The Real Driver?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

The Problem Of Shared Irresponsibility In International Climate Law, Daniel H. Cole

Articles by Maurer Faculty

States have treaty-based and customary international law-based responsibilities to ensure that greenhouse gas emissions emanating from their territory do not cause transboundary harm. However, those international legal responsibilities conflict with the observed behavior of states, which suggests a general rule of irresponsible treatment of the global commons. This paper, written for a conference (and eventual book) on shared responsibility in international law, examines that conflict and two potential mechanisms for resolving it: (1) international litigation and (2) various types of polycentric approaches to climate governance.

Several international legal scholars have been advocating litigation as a means of compensating victims and …

Taking The Measure Of Nations: Testing The Global Norm Of Territorial Integrity, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

The Unconvincing Case Against Private Prisons, Malcolm M. Feeley

Indiana Law Journal

In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled …

Free Exercise After The Arab Spring: Protecting Egypt’S Religious Minorities Under The Country’S New Constitution, James Michael Nossett

Indiana Law Journal

No abstract provided.

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 …

A Call For Truth In The Fashion Pages: What Global Trend In Advertising Regulation Means For U.S. Beauty And Fashion Advertisers, Ashley O'Neil

Indiana Journal of Global Legal Studies

The advertising industry serves an important purpose in our society by acting as the main source of information for consumers about products. Global advertisement spending reaches into the hundreds of billions of dollars annually. Because advertising plays such a large role in the economy, regulators across the globe have increasingly sought to promote truth in advertising. As a result, advertising regulation has exploded in the recent decades. Recently, the beauty and fashion industries have come under fire from advertising regulatory bodies, most notably in Europe, for misleading and offensive advertising practices. Regulators and interest groups are concerned by the unrealistic …