Indiana Journal of Global Legal Studies

The Global Crackdown on Insider Trading: A Silver Lining to the "Great Reccession"

Christopher P. Montagano — Fri, 22 Feb 2013 13:01:06 PST

The wake of the Great Recession marked a period of increased enforcement of insider trading violations by nation-states and self-regulatory organizations overseeing stock markets around the world. Before discussing the heightened global enforcement of insider trading, this Note explains the development of insider trading regulation by focusing on U.S., EU, and China law. This Note argues that the heightened global enforcement of insider trading violations in the wake of the Great Recession is a sign of a shared perception by market regulators around the world that there is a need to restore market confidence. Strong enforcement of insider trading regulations is one way market regulators can restore confidence in their marketplaces by showing all investors that they may indeed sit on equal footing. This facilitation of stock market investment in turn promotes capital market development and enables economic growth.

The Human Right to Water: Will Its Fulfillment Contribute to Environmental Degradation?

Alezah Trigueros — Fri, 22 Feb 2013 13:01:06 PST

Human rights and environmental protection are two often overlapping bodies of law, each of which by their nature seeks to take priority over other applicable law. For this reason, these two bodies of law often find themselves in tension with one another. This Note aims to illustrate the tension between human rights and environmental protection in the context of the recent push for a codified human right to water. My thesis is that ideally these two bodies of law should balance each other out-a human right to water would be subject to environmental safeguards, and, likewise, conservation efforts would be subject to human rights concerns-but when this balancing does not occur the consequences would be potentially severe.

Public Interest Litigation in India as a Paradigm for Developing Nations

Zachary Holladay — Fri, 22 Feb 2013 13:01:05 PST

Public interest litigation (PIL) in India can serve as a vehicle for creating and enforcing rights and is critical to the sustenance of democracy. PIL in India can address the needs of its citizens when legislative inertia afflicts the Indian National Congress. This Note discusses how PIL in India can serve as a model for other developing nations struggling with legislative inertia and can provide recourse to marginalized and disadvantaged communities. Furthermore, while PIL obscures the traditional boundaries of power in a liberal democratic polity, democracy is in fact strengthened by the expansion of standing to include any citizen who has suffered a rights abuse.

Forward Contracts - Prohibitions on Risk and Speculation Under Islamic Law

Nicholas C. Dau-Schmidt — Fri, 22 Feb 2013 13:01:04 PST

Forward contracts allow buyers and sellers of goods to reduce risk by contracting for sale at a predetermined price and quantity prior to the actual exchange of goods and payment. While forward contracts are extensively used in the Western world without restriction, those who adhere to Islamic law are often constrained by principles intended to reduce risk, gambling, and usury. These principles can prove overly restrictive; however, Islamic law restrictions also illuminate the problems associated with the overly permissive Western system in which speculators contract in a manner tantamount to gambling-a problem associated with the recent financial crisis. This Note discusses forward contracts representing risk-hedging and pure speculation and then addresses the principles of Islamic law that affect these financial instruments. The Note next explains the forward contracts that are permissible under Islamic law and poses two questions: (1) How important are the motives of the parties involved in the contract? (2) Is there something that the requirements of Islamic law can teach those who do not subscribe to the religion? These questions are answered and conclusions are drawn concerning the permissibility of hedger-hedger forward contracts under Islamic law and whether Islamic law is overly restrictive in its treatment of these, concluding that no reasonable interpretation of Islamic law could deem a purely speculative forward contract as permissible.

Expanding Horizons: Scientific Frontiers, Legal Regulation and Globalization

Belinda Bennett — Fri, 22 Feb 2013 13:01:03 PST

In the six decades since the discovery of the double helix structure of DNA by Watson and Crick in 1953, developments in genetic science have transformed our understanding of human health and disease. These developments, along with those in other areas such as computer science, biotechnology, and nanotechnology, have opened exciting new possibilities for the future. In addition, the increasing trend for technologies to converge and build upon each other potentially increases the pace of change, constantly expanding the boundaries of the scientific frontier. At the same time, however, scientific advances are often accompanied by public unease over the potential for unforeseen, negative outcomes. For governments, these issues present significant challenges for effective regulation. This Article analyzes the challenges associated with crafting laws for rapidly changing science and technology. It considers whether we need to regulate, how best to regulate for converging technologies, and how best to ensure the continued relevance of laws in the face of change.

The George P. Smith II Lecture November 10, 2011, Indiana University Maurer School of Law, Bloomington, Indiana.

Redress: Rights and Other Remedies, A Comment on David Engel's Article on Rights Consciousness

Arzoo Osanloo — Fri, 22 Feb 2013 13:01:02 PST

In responding to David Engel's Article, this Comment analyzes how Engel situates contemporary perspectives on rights drawing from his research in Thailand. Engel shows how the discourse of rights carries with it meanings that have multiple and changing connotations and on the ground effects. Following on Engel's questions about how consciousness of rights spreads and takes shape in local contexts, this Comment calls for expanding the substantive and methodological bases for understanding the changing effects of rights discourses. This Comment suggests that a study of the broader social and political implications, including the costs, of rights discourses (internationally, nationally, and locally) permits greater substantive awareness of the changing social and political landscapes. This can only be done with the kind of on-the-ground longitudinal study that Engel has conducted.

Against Wishful Scholarship: The Importance of Engel

Duncan McCargo — Fri, 22 Feb 2013 13:01:01 PST

David Engel's Article on global consciousness' crystallizes a set of arguments he recently made in a number of publications, most notably in his coauthored book Tort, Custom, and Karma.2 To me, the main point of his argument is by no means limited to questions of law or globalism. Rather, he argues against the dominant mode of writing among scholars across a wide range of social science and related disciplines-a mode of writing that might best be termed "wishful scholarship." In wishful scholarship, the starting point of the author is the world as she or he wishes to see it, or wishes to see it become.

Expanding the Horizons of Horizontal Inquiry into Rights Consciousness: An Engagement with David Engel

Michael W. McCann — Fri, 22 Feb 2013 13:00:59 PST

This Comment interprets and reflects on the key features of David Engel's argument about the importance of balancing vertical models of rights diffusion with horizontal ethnographic studies of how rights consciousness develops out of practical experience in everyday social contexts. The primary focus is on endorsing the general argument and amplifying some understated or undeveloped dimensions of Engel's position. In particular, this reflection makes the case for: 1) expanding the range of subjects and contexts subjected to horizontal study, including especially greater attention to "haves" and elite actors; 2) studying subjects expected to have high rights consciousness as well as those likely to demonstrate low rights consciousness so as to develop more comparative theorizing; 3) adding more refined sociological analysis of context and power to the ethnographic study of subject consciousness, again to advance comparative theorizing about factors that encourage or discourage rights consciousness; and 4) to sharpen attention to variations in the substantive content as well as relative salience of rights consciousness among subjects, which in turn may disrupt assumptions about the assumed automatic identification of rights discourses with neoliberal hegemony. Many examples from sociolegal scholarship are cited to illustrate and support the various analytical points.

Dimensions of Rights Consciousness

Carol J. Greenhouse — Fri, 22 Feb 2013 13:00:42 PST

Commenting on David Engel's Article, this Comment responds particularly to Engel's formulation of horizontal and vertical axes as a metaphor for the ways different analytical approaches to law and legal consciousness potentially yield *recombinant interpretive questions. Pursuing Engel's concerns with the embeddedness of local norms and social relations in state-based and global legal processes, this Comment suggests expanding the two dimensions of Engel's matrix to four, so as to highlight the relevance of social distance and temporality in the differing accounts of law he assays, and in appreciating their stakes. In so doing, this Comment situates Engel's essay as a novel and timely

Vertical and Horizontal Perspectives on Rights Consciousness

David M. Engel — Fri, 22 Feb 2013 13:00:41 PST

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide are demonstrating an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a "vertical" perspective, tracing the flow of legal forms and practices from prestigious and authoritative centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on global rights consciousness have broadened and enriched the field of law and society by examining linkages between local communities and world capitals, individuals and international organizations, and everyday interactions and systems of global regulation and enforcement. Yet, vertical perspectives in themselves cannot determine whether rights consciousness has expanded in relation to other systems of norm enforcement and dispute resolution. To answer this question, vertical perspectives must be combined with horizontal perspectives to ascertain what norms, practices, and beliefs prevail within various social fields where ordinary people engage in everyday interactions. A combination of vertical and horizontal perspectives is illustrated by research on rights consciousness in northern Thailand, which suggests the counterintuitive conclusion that rights consciousness may have diminished and that ordinary people rely instead on new forms of religiosity to justify inaction even in the face of serious legal harms.

Editor's Note: Rights Consciousness in a Globalized World

Fri, 22 Feb 2013 13:00:36 PST

A Review of When Legal Orders Collide: The Role of Courts by Sabino Cassese

Kathleen Claussen — Tue, 06 Nov 2012 11:06:53 PST

The growth and interaction of legal orders beyond the state has precipitated considerable interest among scholars and practitioners. The resulting discussion both in the academy and in the upper reaches of government about the intersection of national legal orders with new areas of non-national law has led to various predictions about possible ramifications of this phenomenon. In recent years, the importance of these transnational questions has grown concurrently with the expansive creation and heightened activity of supranational and global organizations.' Some have gone so far as to herald a new global law, and others have elaborated upon its contours.2 Sabino Cassese begins his latest book, When Legal Orders Collide: The Role of Courts, by tackling a fundamental question underlying these active dialogues: Who holds together the legal orders of the world? What follows is a captivating exploration of the place of quasi-judicial bodies in navigating and directing divergences across the legal orders. A

Department of Defense, Inc.: The DoD's Use of Corporate Strategies to Manage U. S. Overseas Military Bases

Matt Weyand — Tue, 06 Nov 2012 11:06:50 PST

This paper examines the Department of Defense's use of corporate strategies to manage U.S. overseas military bases and concludes that the Department of Defense's continued use of these corporate strategies which have negatively impacted the United States' relationship with host nations-depends on the Department of Defense's ability to successfully strike a balance between efficiency and diplomacy.

Harmonization, But Not Homogenization: The Case for Cuban Autonomy in Globalizing Economic Reforms

Heather Shreve — Tue, 06 Nov 2012 11:06:48 PST

Since 1959, Cuba has been an anomaly in the Western Hemisphere. From its fierce isolationism to its steadfast commitment to-communism and Fidel Castro, the Cuban model shunned many modern conventions and developments of the increasingly globalized world. However, in the last decade, subtle shifts in Cuban governance and control led some scholars to question if and how Cuba could participate in the modern, global economy. President Razil Castro answered the speculation in late 2010 with an announcement regarding Cuban economic modernization and, again, in 2011, as significant economic reforms were implemented. All of these changes beg the ultimate question: Can Cuba engage and interact with the global economy and remain a Marxist-Leninist philosophy, or is an irreversible, fundamental homogenization required? This Note argues that, based on the basic principles of globalization, it is possible for Cuba to enter the globalized economy and to harmonize, rather than homogenize, their economic policies with those of other countries while retaining its Marxist-Leninist philosophy. Globalization unavoidably and transformatively requires all global actors to harmonize their policies but does not require homogenization or uniformity.

Greenpeace, Social Media, and the Possibility of Global Deliberation on the Environment

Michael Roose — Tue, 06 Nov 2012 11:06:47 PST

Greenpeace uses the developmental republican model of democratic
governance for setting organizational policy. This model does an excellent
job of forming members into effective leaders who are committed to the
organization and its mission. However, Greenpeace could more effectively
encourage the global community to become involved in environmental
activism and set more responsive policy by employing an Internet-based
deliberative democracy policy-setting process.

Transnational Adoption and European Immigration Politics: Producing the National Body in Sweden

Barbara Yngvesson — Tue, 06 Nov 2012 11:06:46 PST

This article explores the role of transnational adoption in the production of a multicultural but Swedish national body during the second half of the twentieth and the first decade of the twenty-first century, when Sweden became a multiethnic, multicultural, and racially divided country. I examine the development of international adoption policies in the 1970s, 1980s, and 1990s, emphasizing the erasure of the child's connection to a preadoptive past, even as the child's cultural difference was celebrated in adopting nations. In Sweden, which in the late 1970s and early 1980s had the world's highest adoption ratio (number of transnational adoptions per 1000 live births), debates about the Swedishness of the adoptee and the difference of the immigrant child underscored the assumption that the former but not the latter could become completely Swedish, while hinting at the (in)significance of race in constituting Swedish identity. My research situates transnational adoption in the context of technologies of exclusion that regulate the national body and the complex position of the adoptee as an incorporated but excluded other in adopting nations.

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

International Human Rights in Canadian Immigration Law - The Case of the Immigration and Refugee Board of Canada

Catherine Dauvergne — Tue, 06 Nov 2012 11:06:45 PST

This article analyzes the use of international human rights in the decision making of Canada's Immigration and Refugee Board. At the center of the analysis is a data set including all the publically available decisions of the Board since the introduction of the 2002 Immigration and Refugee Protection Act. This data set has been coded for varying degrees of engagement with international human rights law, and the results are presented and scrutinized. At the broadest level, the results are disappointing for migrant advocates as international law is relied on in an infinitesimally small number of decisions.

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EU Law

Cathryn Costello — Tue, 06 Nov 2012 11:06:43 PST

The right to liberty is ubiquitous in human rights instruments, in essence protecting all individuals from arbitrary arrest and detention. Yet, in practice, immigration detention is increasingly routine, even automatic, across Europe. Asylum seekers in particular have been targeted for detention. While international human rights law limits detention, its protections against immigration detention are weaker than in other contexts, as the state's immigration control prerogatives are given sway. In spite of the overlapping authority of international and regional human rights bodies, the caselaw in this field is diverse. Focusing on the U.N. Human Rights Committee, the European Court of Human Rights, and the Court of Justice of the European Union, this Article explores how greater interaction between these bodies could produce more rights-protective standards.

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

Adjudicating the Intersection of Marital Immigration, Domestic Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains

Sara L. Friedman — Tue, 06 Nov 2012 11:06:42 PST

Cross-border marriages and other forms of family reunification dominate officially recognized migratory flows around the world today, and they offer the most widely recognized path to naturalized citizenship in destination countries. At the same time, however, transnational marriages may also rest on shaky foundations precisely because immigrant spouses depend on their citizen partner for legal status. When marriages fail due to domestic violence, they expose the incompatibility of different legal domains organized around domestic violence prevention and immigration regulation. This Article examines the legal conflicts that emerged in response to a recent case in Taiwan involving an immigrant wife from Mainland China who, after suffering several years of domestic violence, killed her citizen husband in 2006. The case underscores the complex and often unpredictable intersections of domestic violence prevention law, immigration policy, and feminist legal reforms aimed at women's empowerment. Despite the district-level court's unprecedented ruling of legitimate defense, the case continued to serve as a flashpoint for competing ethical orientations as it made its way through the appeals process, in turn exposing conflicting legal principles and gendered family role expectations faced by immigrant as opposed to citizen women. Although the initial ruling pointed to growing judicial recognition of the deep-seated psychological and emotional effects of domestic violence, its overall impact was undercut by the defendant's immigrant status and pervasive suspicions about marital motives triggered by that status. By analyzing the case itself and the various legal and activist strategies mobilized around it, this Article evaluates the limitations and possibilities of law and policy reforms enacted on the uneven terrain of domestic violence prevention and gendered immigration flows.

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011

Citizenship and Marriage in a Globalizing World: Multicultural Families and Monocultural Nationality Laws in Korea and Japan

Erin Aeran Chung et al. — Tue, 06 Nov 2012 11:06:41 PST

This Article analyzes how individual and local attempts to address low fertility rates in Korea and Japan have prompted unprecedented reforms in monocultural nationality laws. Korea and Japan confront rapidly declining working-age population projections; yet, they have prohibited the immigration of unskilled workers, until recently in Korea's case, on the claim that their admission would threaten social cohesion. Over the past two decades, both countries have made only incremental reforms to their immigration policies that fall short of alleviating labor shortages and the fiscal burdens of maintaining a large elderly population. Instead, prompted by the growth of so-called multicultural families in each country, the most significant reforms have appeared in nationality laws: Korea's introduction of dual nationality in 2010 and Japan's 2008 reform to grant Japanese nationality to children born out of wedlock to a Japanese father and a foreign mother. While neither country has introduced birthright citizenship to their nationality laws, both sets of reforms target ethnically heterogeneous immigrant women, their bicultural children, or both. This Article seeks to understand how recent reforms to nationality laws in Korea and Japan have challenged long-held conceptions of blood-based belonging and membership.

Globalization and Migration Symposium, Indiana University Maurer School of Law, Bloomington, Indiana, April 7-8, 2011