International Law Commons^™

Eccc In The Year 2011: Atrocity Crime Litigation Review For The Year 2011, Melissa Hindman, Victoria Jiha Lee, Alice Lin

Northwestern Journal of Human Rights

No abstract provided.

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

Indiana Journal of Global Legal Studies

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism-just as inevitably-creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: "kill off" all competing laws by declaring that one set of norms-and only one-shall …

Societal Constitutionalism, Social Movements, And Constitutionalism From Below, Gavin W. Anderson

Indiana Journal of Global Legal Studies

Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon …

Expanding Constitutionalism, Gunther Teubner, Anna Beckers

Indiana Journal of Global Legal Studies

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012

The Cosmopolitan Turn In Constitutionalism: An Integrated Conception Of Public Law, Mattias Kumm

Indiana Journal of Global Legal Studies

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn: it has to occupy itself with the global legitimacy conditions for the exercise of state sovereignty. Contrary to widely made implicit assumptions in constitutional theory and practice, constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights-respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is …

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 Corporations' Outward Expression Of Inward Self-Constitution: The Enforcement Of Human Rights By Apple, Inc., Larry Cata Backer

Indiana Journal of Global Legal Studies

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a …

We And Cyberlaw: The Spatial Unity Of Constitutional Orders, Hans Lindahl

Indiana Journal of Global Legal Studies

This paper scrutinizes the fundamental assumption governing Gunther Teubner's theory of societal constitutionalism, namely that societal constitutions are ultimately about the regulation of inclusion and exclusion in global function systems. While endorsing the central role of inclusion/exclusion in constitutions, societal or otherwise, I argue that inclusion and exclusion are primordial categories of collective action, rather than functional categories. As a result, the self-closure which gives rise to a legal collective is spatial as much as it is temporal, and subjective no less than material. Inasmuch as legal orders must establish who ought to do what, where, and when, this entails, …

Transnational Normative Orders: The Constitutionalism Of Intra- And Trans-Normative Law, Poul F. Kjaer

Indiana Journal of Global Legal Studies

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. …

Social Movements As Constituent Power: The Italian Struggle For The Commons, Saki Bailey, Ugo Mattei

Indiana Journal of Global Legal Studies

The Italian commons (beni comuni) movement is a powerful example of the way in which social movements are emerging as the new pouvoir constituant serving not only to enforce the protections and guarantees of national constitutions but also, in the context of the declining power of the nation-state, as a counter hegemonic force against the neoliberal economic constitutionalism of the international economic institutions. The common goods social movement in Italy was born out of the concerted action of a number of civil society groups combatting neoliberal privatizations. This commons movement, as will be argued in this paper, is an instance …

Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl

Indiana Journal of Global Legal Studies

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …

Occupy The System! Societal Constitutionalism And Transnational Corporate Accounting, Moritz Renner

Indiana Journal of Global Legal Studies

Today's most pressing constitutional question is posed by a global economic system whose expansive tendencies seem no longer controllable. In addressing this question, the theory of Societal Constitutionalism apparently shifts established ideological coordinates by developing a theory of the self-constitutionalization of social spheres. It seeks to combine the virtues of grassroots democracy with the sophistication of systemic social theory. Thus, its normative claim can be formulated as an oxymoron: "Occupy the System!" The claim is an oxymoron because it points to the apparent impossibility of critical social theory in a functionally differentiated society: How can a functional system such as …

Constitutionalization Of Nongovernmental Certification Programs, Jaye Ellis

Indiana Journal of Global Legal Studies

Certification programs created by nonstate actors such as the Forest Stewardship Council and Marine Stewardship Council are innovative and potentially highly effective governance initiatives. This article works from the premise that these Councils can be understood as political authorities promulgating law. These Councils, and other actors like them, are generally analyzed from the point of view of governance, which triggers questions about their effectiveness and legitimacy. The approach adopted here shifts the focus to questions of their authority and the validity of the rules, standards, and decision-making processes that they have put in place. The Councils have put in motion …

"Why Is Gender A Form Of Diversity?": Rising Advantages For Women In Global Indian Law Firms, Swethaa Ballakrishnen

Indiana Journal of Global Legal Studies

Women in Legal Practice: Global and Local Perspectives, Symposium, June 5-8, 2012. Annual Meeting of the Law and Society Association.

Gender And Difference Among Brazilian Lawyers And Judges: Public And Private Practice In The Global Periphery, Maria Da Gloria Bonelli

Indiana Journal of Global Legal Studies

This article examines the ways in which Brazilian lawyers and judges experience difference. It focuses on how gender and diversity intersect in identity formation among women and men in public and private practice in the state of Sdo Paulo, Brazil. In attempting not to attach one fixed meaning to the concept of difference, the research works with Avtar Brah's typology, which aids in detecting how difference is perceived and experienced by the interviewees. The results provide a look at the specificities of professional practice in the global periphery, comparing the gender composition of law firms and gender stratification within legal …

Chinese Women In Legal Education, Xiaonan Liu

Indiana Journal of Global Legal Studies

This paper examines the history and development of women entering legal education in China. Based on a survey, interviews, and archival research, this paper attempts to analyze Chinese women's current status in legal education and reaches the conclusion that although women have made significant gains in legal education, they are still facing gender discrimination and bias in the legal sector. The paper also looks into the reasons why women have in the past belonged to "the other" in the legal area, and whether there is any conflict between legal characteristics" and "feminine characteristics." It attempts to break the constraint caused …

The Hague Convention And Domestic Violence: Proposals For Balancing The Policies Of Discouraging Child Abduction And Protecting Children From Domestic Violence, Shani M. King

UF Law Faculty Publications

The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) was enacted in response to a pattern of parental abduction across international borders to thwart or preempt custody arrangements in one country and seek a more advantageous setting for litigating custody issues in another. Consequently, the Convention was designed to discourage the abduction of children across international borders and to encourage respect for custody and access arrangements in countries from which children were abducted. To implement the Convention, the United States enacted the International Child Abduction Remedies Act (ICARA) on April 29, 1988. Much has been written …

Editor's Note, Alfred C. Aman, Kellie F. Rockel

Indiana Journal of Global Legal Studies

No abstract provided.

The Recurring Native Response To Global Labor Migration, Patrick W. Thomas

Indiana Journal of Global Legal Studies

For the past few decades, and increasingly in the past few years, U.S. state governments have supplemented federal immigration law with state laws overtly designed to combat the perceived ills stemming from undocumented immigration to the United States. Proponents of these laws justify them on the basis of a normative negativity associated with "illegal" immigration, and negative economic consequences for natives. They further disclaim any discriminatory motive behind the laws, claiming that the laws only target "illegal" immigration.

This note argues that (1) through a comparison with immigration flows and laws arising in the First Era of Globalization in the …

Amending The Foreign Corrupt Practices Act: Should The Bribery Act 2010 Be A Guideline?, Michael Peterson

Law Student Publications

This paper is divided into four sections. The first section discusses the individual legal aspects of the FCPA and the Bribery Act of 2010; the second section discusses the differing features of the two acts; the third section discusses the criticisms of each of the acts; and the fourth section lays out a proposal of effective amendments which the author feels should be made to the FCPA.

"Ice" Capades: Restitution Orders And The Fcpa, Shane Frick

Law Student Publications

This comment discusses federal restitution orders and why they are not a viable source of compensation for FCPA victims. Section I provides background information on the FCPA and outlines how it is enforced. Section II discusses victims' rights under a series of pieces of federal legislation. Section III looks at the primary precedent in the arena and explains why it shows that the restitution statutes do not provide sufficient FCPA victim restitution. Section IV discusses the pending Wal-Mart case and the issues facing Wal-Mart victims. Section V outlines other avenues of recovery for FCPA victims and proposes new measures for …

Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations, Julian Arato

Faculty Scholarship

No abstract provided.

Scsl In The Year 2011: Atrocity Crime Litigation Review For The Year 2011, William Magenya, Paulina Paz Zavala, Regina Trillo

Northwestern Journal of Human Rights

No abstract provided.

The Supreme Court And The Alien Tort Statute: Kiobel V. Royal Dutch Petroleum Co., Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be …

Book Review: Reimagining Child Soldiers In International Law And Policy By Mark A. Drumbl., Diane Marie Amann

Scholarly Works

Book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl(New York: Oxford Univ. Press, 2012).

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

Private Governance Of Knowledge: Societally-Crafted Intellectual Properties Regimes, Dan Wielsch

Indiana Journal of Global Legal Studies

The evolutionary challenge global society faces is the decentralized development of legal rules that multilaterally protect social autonomies from violating each other. At the national level, democratic constitutions provide for the resolution of conflicts between different normative worlds, although the focus here is certainly on the protection of autonomies from political encroachment. However, political constitutions make sure that legal orders consider a plurality of normative perspectives. In contrast, international lawmaking can exclusively link to a specific social rationality, lacking any impartial forum for normative reconciliation. This is of special importance for the governance of intellectual resources. The incorporation of international …

The Future Of Societal Constitutionalism In The Age Of Acceleration, Riccardo Prandini

Indiana Journal of Global Legal Studies

The aim of this article is to reframe the debate on societal constitutionalism and constitutionalization from a spatial to a temporal framework. This analytical shift is due to the dramatic acceleration of societal processes, which are increasingly crossing the spatial boundaries of nation-states and of all the other social structures embedded in peculiar places. This high-speed society is characterized by the so-called temporalization of complexity, which influences every aspect of social life and, in particular, the "validity" of law. On the basis of this theoretical background, I would like to show that changing the form of observation from a spatial …

The 2002 National Security Strategy: The Foundation Of A Doctrine Of Preemption, Prevention, Or Anticipatory Action, Troy Lorenzo Ewing

Graduate Program in International Studies Theses & Dissertations

The terrorist attacks of September 11, 2001, initiated a strategic shift in American national security policy. For the United States, terrorism was no longer a distant phenomenon visited upon faraway regions; it had come to America with stark brutality.1 Consequently, the administration of President George W. Bush sought to advance a security strategy to counter the proliferating threat of terrorism.

The ensuing 2002 National Security Strategy articulated the willingness of the United States to oppose terrorists, and rogue nation-states by merging the strategies of "preemptive" and "preventive" warfare into an unprecedented strategy of "anticipatory action," known as the Doctrine of …

To Catch A Pirate: Analyzing Processes Of Policy Making On Maritime Piracy, Victoria E. Collins

Sociology & Criminal Justice Theses & Dissertations

There has been a resurgence of political and media interest in maritime piracy, specifically in the Gulf of Aden off the coast of Somalia. This is credited to a rise in the number of piracy attacks that have been committed in Somalia's coastal waters. In response to this rise in attacks there has been an increased deployment of military warships from as many as 30 different countries to the region in efforts to combat piracy. Although the problem of piracy has received much attention there has been little attention paid to the structural conditions within Somalia itself, such as the …