Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0199
Hiroshi Fukurai
Much of the combat and conflict around the globe today involves struggles between the nation and the state. The state’s promotion of globalization and neoliberal policies has long resulted in the radical transformation of the nation’s homeland, propelled the forced eviction and displacement of already-marginalized nations and peoples, contaminated the natural environment, and destroyed much cultural and biological diversity.2 In areas of strong opposition and resistance by
{"title":"Original Nation Approaches to \"Inter-National\" Law (ONAIL): Decoupling of the Nation and the State and the Search for New Legal Orders","authors":"Hiroshi Fukurai","doi":"10.2979/INDJGLOLEGSTU.26.1.0199","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0199","url":null,"abstract":"Much of the combat and conflict around the globe today involves struggles between the nation and the state. The state’s promotion of globalization and neoliberal policies has long resulted in the radical transformation of the nation’s homeland, propelled the forced eviction and displacement of already-marginalized nations and peoples, contaminated the natural environment, and destroyed much cultural and biological diversity.2 In areas of strong opposition and resistance by","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"199 - 261"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49293724","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0001
Z. U. Türem
ABSTRACT:This article explores the question "what does the future hold for the globalization of law?" In analyzing the future of legal globalization, I suggest that analyzing the recent rise of authoritarianism, both at the national as well as transnational plane, offers significant insights. I make three related observations regarding the rise of authoritarian politics. First, the rise of authoritarian and semi-authoritarian regimes and the blend of populism with authoritarianism at the national contexts seems to obstruct globalization of law. This is likely due to the fact that the power of authoritarian politics mostly comes from their populist appeal to the masses who stand to lose from globalization. For such appeal to continue, authoritarian politicians cultivate antiglobalization rhetoric and practices. The end result is a move away from globalized relations and institutional connectedness between different national legal systems. The similarity of the grammar out of which such authoritarianism is produced in various different national contexts, however, urges us to reflect on the globalized relations that structure such similarity. Second, the rise of authoritarian tendencies in domestic and supranational institutions, particularly in the name of political and economic emergency, may bring about a level of legal uniformity and thus globalization of law. I suggest, however, that what globalizes in such context is an essentially instrumentalized version of law, and a deeper reflection on "what globalizes?" is required as well as whether it could properly be called "law." Third, as an extension of the second point, this article focuses on neoliberalism as the broad political economic background that informs the globalization of law in the post-1980 period. I suggest that the instrumentalization of law, both domestically and internationally, is rendered possible by the fact that, under a neoliberal economic way of thinking and practice, economization spreads to all spheres of life and renders other institutional settings adjunct to itself. Such instrumentalization also includes the law and takes away from the power of this institutional field.
{"title":"Rising Authoritarianism(s) and the Globalization of Law: An Initial Exploration","authors":"Z. U. Türem","doi":"10.2979/INDJGLOLEGSTU.26.1.0001","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0001","url":null,"abstract":"ABSTRACT:This article explores the question \"what does the future hold for the globalization of law?\" In analyzing the future of legal globalization, I suggest that analyzing the recent rise of authoritarianism, both at the national as well as transnational plane, offers significant insights. I make three related observations regarding the rise of authoritarian politics. First, the rise of authoritarian and semi-authoritarian regimes and the blend of populism with authoritarianism at the national contexts seems to obstruct globalization of law. This is likely due to the fact that the power of authoritarian politics mostly comes from their populist appeal to the masses who stand to lose from globalization. For such appeal to continue, authoritarian politicians cultivate antiglobalization rhetoric and practices. The end result is a move away from globalized relations and institutional connectedness between different national legal systems. The similarity of the grammar out of which such authoritarianism is produced in various different national contexts, however, urges us to reflect on the globalized relations that structure such similarity. Second, the rise of authoritarian tendencies in domestic and supranational institutions, particularly in the name of political and economic emergency, may bring about a level of legal uniformity and thus globalization of law. I suggest, however, that what globalizes in such context is an essentially instrumentalized version of law, and a deeper reflection on \"what globalizes?\" is required as well as whether it could properly be called \"law.\" Third, as an extension of the second point, this article focuses on neoliberalism as the broad political economic background that informs the globalization of law in the post-1980 period. I suggest that the instrumentalization of law, both domestically and internationally, is rendered possible by the fact that, under a neoliberal economic way of thinking and practice, economization spreads to all spheres of life and renders other institutional settings adjunct to itself. Such instrumentalization also includes the law and takes away from the power of this institutional field.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"1 - 29"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44475116","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0381
T. Cook
Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous “Brexit.” And in 2017, Catalonia’s grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is “The South is My Country,” a coalition of three southern Brazilian states that wish to secede from Brazil. This paper will examine the Brazilian separatist movement. After introducing the movement and the history of modern Brazil in Part I, Part II will examine what Brazilian law has to say on secession with the Catalan crisis as a comparison. Part III will attempt to navigate the murky waters of international law to determine whether a group such as “The South is My Country” has a right to unilaterally secede.
{"title":"To Secede or Not Secede? Is It Even Possible?","authors":"T. Cook","doi":"10.2979/INDJGLOLEGSTU.26.1.0381","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0381","url":null,"abstract":"Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous “Brexit.” And in 2017, Catalonia’s grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is “The South is My Country,” a coalition of three southern Brazilian states that wish to secede from Brazil. This paper will examine the Brazilian separatist movement. After introducing the movement and the history of modern Brazil in Part I, Part II will examine what Brazilian law has to say on secession with the Catalan crisis as a comparison. Part III will attempt to navigate the murky waters of international law to determine whether a group such as “The South is My Country” has a right to unilaterally secede.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"381 - 400"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47833485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0173
Othon Alexandrakis
ABSTRACT:During the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges as a mode of social resistance that evokes a populist expression of the political. Two specific examples are discussed drawing on my recent ethnographic fieldwork in Mytilene, the capital city of Lesvos.
{"title":"Rethinking Social Resistance Through the Consolidating Politics of Humanitarian Populism in Mytilene, Greece","authors":"Othon Alexandrakis","doi":"10.2979/INDJGLOLEGSTU.26.1.0173","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0173","url":null,"abstract":"ABSTRACT:During the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges as a mode of social resistance that evokes a populist expression of the political. Two specific examples are discussed drawing on my recent ethnographic fieldwork in Mytilene, the capital city of Lesvos.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"173 - 198"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45679022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0133
F. Munger, Peerawich Thoviriyavej, Vorapitchaya Rabiablok
New courts in Asia’s rapidly developing states offer an opportunity to understand how a court system takes root in a society. This article presents a case study of the development of administrative court structure, functions, and practice in Thailand: Southeast Asia’s newest system of administrative courts. The study examines why courts made sense to those who established them and how the courts’ authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiff’s legal rights. Thailand lacks many of the supporting institutions and practices typical of developed Western democracies, such as a politically savvy and powerful legal profession, a rights-conscious judiciary, influential public and private organizations supporting litigation for rights, and public consciousness of rights. Yet following constitutional reform, rights-oriented litigation emerged in the administrative courts through the efforts of a small, self-sustaining community of activist attorneys. In the second part of the article we describe the career of a leading environmental litigator and his network and the mutually constructive effects of the outcomes of this litigation on the support structures for the courts.
{"title":"An Alternative Path to Rule of Law? Thailand's Twenty-First Century Administrative Courts","authors":"F. Munger, Peerawich Thoviriyavej, Vorapitchaya Rabiablok","doi":"10.2979/INDJGLOLEGSTU.26.1.0133","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0133","url":null,"abstract":"New courts in Asia’s rapidly developing states offer an opportunity to understand how a court system takes root in a society. This article presents a case study of the development of administrative court structure, functions, and practice in Thailand: Southeast Asia’s newest system of administrative courts. The study examines why courts made sense to those who established them and how the courts’ authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiff’s legal rights. Thailand lacks many of the supporting institutions and practices typical of developed Western democracies, such as a politically savvy and powerful legal profession, a rights-conscious judiciary, influential public and private organizations supporting litigation for rights, and public consciousness of rights. Yet following constitutional reform, rights-oriented litigation emerged in the administrative courts through the efforts of a small, self-sustaining community of activist attorneys. In the second part of the article we describe the career of a leading environmental litigator and his network and the mutually constructive effects of the outcomes of this litigation on the support structures for the courts.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"133 - 171"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45476590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0263
L. Compa
Quitting the Trans-Pacific Partnership (TPP) and demanding renegotiation of the North American Free Trade Agreement (NAFTA)— along with its supplemental labor pact, the North American Agreement on Labor Cooperation (NAALC)—were among the first actions of the new U.S. Administration in 2017.1 NAFTA renegotiations concluded— for the time being—in October 2018 with announcement of the United States-Mexico-Canada Agreement (USMCA) to replace NAFTA.2
{"title":"Trump, Trade, and Trabajo: Renegotiating NAFTA's Labor Accord in a Fraught Political Climate","authors":"L. Compa","doi":"10.2979/INDJGLOLEGSTU.26.1.0263","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0263","url":null,"abstract":"Quitting the Trans-Pacific Partnership (TPP) and demanding renegotiation of the North American Free Trade Agreement (NAFTA)— along with its supplemental labor pact, the North American Agreement on Labor Cooperation (NAALC)—were among the first actions of the new U.S. Administration in 2017.1 NAFTA renegotiations concluded— for the time being—in October 2018 with announcement of the United States-Mexico-Canada Agreement (USMCA) to replace NAFTA.2","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"263 - 304"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45357835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0305
J. Bell
ABSTRACT:Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States—from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies used to address bias-motivated violence.The eight-year period between 2008 and 2016 has been a fascinating time for assessments of the state of race relations in America. After the election of Barack Obama, America's first Black president, commentators described the country as "post-racial." In a dramatic turn of events for a country that had transcended race just eight years later in 2016, Donald Trump's election as president was followed by a dramatic increase in the number of documented race-based hate crimes—crime motivated by bias on the basis of the target race.The increase in reported hate crimes continued well into the Trump Administration's first year. What was most compelling about the new hate activity was the rise of a new, open presence of extremists—those ideologically committed to White supremacy. For decades, racial extremists—members of organized hate groups and others ideologically attached to the tenants of White supremacy—had lived in the shadows. After Trump's election, racial extremists stepped into the light.This article grapples with the rise of racial extremist behavior—both by ideologues who are part of hate groups and those who commit hate crimes seemingly randomly—in the wake of the 2016 presidential election. In this article, I explore the roots of bias-motivated activity that many found surprising in the election. I demonstrate how bias-motivated behavior has been part and parcel of recent American history. The article addresses not only the origins of such activity but also resistance to it and the capacity of American institutions created to address bias-motivated behavior. In the end, I argue that to effectively address extremist behavior, we must examine the seriousness of our societal commitment to racial separation.
{"title":"The resistance & The Stubborn But Unsurprising Persistence of Hate and Extremism in the United States","authors":"J. Bell","doi":"10.2979/INDJGLOLEGSTU.26.1.0305","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0305","url":null,"abstract":"ABSTRACT:Though the far right has a long history in the United States, the presidential campaign and then election of Donald Trump brought the movement out of the shadows. This article will analyze the rise in White supremacist activity in the United States—from well-publicized mass actions like the White supremacist march in Charlottesville in August 2017 to individual acts of violence happening since November 2016. This article focuses on contextualizing such incidents within this contemporary period and argues that overt expressions of racism and racist violence are nothing new. The article closes with a call to strengthen the current legal remedies used to address bias-motivated violence.The eight-year period between 2008 and 2016 has been a fascinating time for assessments of the state of race relations in America. After the election of Barack Obama, America's first Black president, commentators described the country as \"post-racial.\" In a dramatic turn of events for a country that had transcended race just eight years later in 2016, Donald Trump's election as president was followed by a dramatic increase in the number of documented race-based hate crimes—crime motivated by bias on the basis of the target race.The increase in reported hate crimes continued well into the Trump Administration's first year. What was most compelling about the new hate activity was the rise of a new, open presence of extremists—those ideologically committed to White supremacy. For decades, racial extremists—members of organized hate groups and others ideologically attached to the tenants of White supremacy—had lived in the shadows. After Trump's election, racial extremists stepped into the light.This article grapples with the rise of racial extremist behavior—both by ideologues who are part of hate groups and those who commit hate crimes seemingly randomly—in the wake of the 2016 presidential election. In this article, I explore the roots of bias-motivated activity that many found surprising in the election. I demonstrate how bias-motivated behavior has been part and parcel of recent American history. The article addresses not only the origins of such activity but also resistance to it and the capacity of American institutions created to address bias-motivated behavior. In the end, I argue that to effectively address extremist behavior, we must examine the seriousness of our societal commitment to racial separation.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"305 - 315"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49183398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0335
Tiffany Kim
Since the nineteenth century, privacy concerns have increased with the growth of technology. The invention of instantaneous photography, coupled with the enlarged presence of press, was met with concerns of degraded privacy.1 Society has formed expectations of privacy, but as time passes, those expectations continue to diminish. Younger generations have been socialized to accept lessened levels of privacy in this digitalized world of mass data and connectivity.2 Individual privacy expectations vary globally. The construction of China’s government and culture produces a lesser expectation of individual privacy than that of the United States. As outlined in the U.S. Constitution, U.S. citizens expect freedom from government surveillance without an authorized warrant,3 which is inconsistent with the privacy expectations of Chinese citizens. This essay first discusses an article by Cyrus Farivar,4 followed by an article by Ava Kofman, 5 both of which relate to mass data collection
{"title":"Younger Generations are Infected by Continuous Socialization to Accept Diminished Privacy: A Global Analysis of How the United States' Constitutional Doctrine Is a Main Contributor to Eroded Privacy","authors":"Tiffany Kim","doi":"10.2979/INDJGLOLEGSTU.26.1.0335","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0335","url":null,"abstract":"Since the nineteenth century, privacy concerns have increased with the growth of technology. The invention of instantaneous photography, coupled with the enlarged presence of press, was met with concerns of degraded privacy.1 Society has formed expectations of privacy, but as time passes, those expectations continue to diminish. Younger generations have been socialized to accept lessened levels of privacy in this digitalized world of mass data and connectivity.2 Individual privacy expectations vary globally. The construction of China’s government and culture produces a lesser expectation of individual privacy than that of the United States. As outlined in the U.S. Constitution, U.S. citizens expect freedom from government surveillance without an authorized warrant,3 which is inconsistent with the privacy expectations of Chinese citizens. This essay first discusses an article by Cyrus Farivar,4 followed by an article by Ava Kofman, 5 both of which relate to mass data collection","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"335 - 352"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47695895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0353
G. Jiménez
ABSTRACT:Under U.S. federal law, a corporation can be held criminally liable for the crimes of its employees and agents. The Department of Justice's U.S. Attorneys' Manual lays out a list of factors prosecutors can evaluate when deciding whether or not to prosecute a corporate entity. The Department of Justice (DOJ) prosecutors have various tools at their disposal, including deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) as alternatives to going to trial. Prosecutors have used DPAs and NPAs in recent cases, allowing the government to ensure that corporate entities comply with investigations, enact compliance programs, and continue to follow laws and regulations. The use of DPAs and NPAs are on the rise, and these agreements are now used in cases concerning the Foreign Corrupt Practices Act (FCPA) and the U.S. Commodity Future Trading Commission (CFTC). Comments from the Trump Administration suggest that these agreements will continue to be used to deter corporate criminal misconduct. Many Latin American countries have recently enacted laws to impose corporate criminal liability and use some type of compliance-based program to help deter future wrongdoing. Mexico, in particular, has recently amended its Federal Penal Code to prosecute and punish corporate entities. Since the Mexican case law in this area is still developing, it is very important that Mexico adopt deferred prosecution agreements, non-prosecution agreements, or a variation thereof that require compliance programs to enhance the public perception of the Mexican government and the judiciary. Mexico is just one of many countries amending its laws, suggesting a shift toward an implied understanding of the importance of a compliance-oriented approach. Foreign jurisdictions and the U.S. DOJ continue to enact programs to help regulate laws and deter criminal activity in many industries. The acceptance of the corporate criminal liability doctrine in several jurisdictions promotes the public interest and the integrity of the legal system, deters future illegal activity, and helps ensure corporate compliance with the law.
摘要:根据美国联邦法律，公司对其雇员和代理人的犯罪行为负有刑事责任。美国司法部(Department of Justice)的《美国检察官手册》(U.S. Attorneys’Manual)列出了检察官在决定是否起诉一家公司实体时可以评估的一系列因素。司法部(DOJ)检察官可以使用各种工具，包括延期起诉协议(dpa)和不起诉协议(npa)，作为审判的替代方案。检察官在最近的案件中使用了dppa和npa，使政府能够确保企业实体遵守调查，制定合规计划，并继续遵守法律法规。dpa和npa的使用正在增加，这些协议现在被用于涉及《反海外腐败法》(FCPA)和美国商品期货交易委员会(CFTC)的案件中。特朗普政府的评论表明，这些协议将继续用于遏制企业犯罪行为。许多拉丁美洲国家最近颁布了法律，要求企业承担刑事责任，并利用某种基于合规的计划来帮助阻止未来的不法行为。特别是墨西哥最近修订了其联邦刑法，以起诉和惩罚公司实体。由于墨西哥在这一领域的判例法仍在发展中，墨西哥采用延期起诉协议、不起诉协议或其变体是非常重要的，这些协议要求遵守程序，以提高公众对墨西哥政府和司法机构的认识。墨西哥只是许多修改法律的国家之一，这表明人们对以合规为导向的方法的重要性有了一种隐含的理解。外国司法管辖区和美国司法部继续制定项目，以帮助规范许多行业的法律和阻止犯罪活动。一些司法管辖区对公司刑事责任原则的接受促进了公共利益和法律制度的完整性，阻止了未来的非法活动，并有助于确保公司遵守法律。
{"title":"Corporate Criminal Liability: Toward a Compliance-Orientated Approach","authors":"G. Jiménez","doi":"10.2979/INDJGLOLEGSTU.26.1.0353","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0353","url":null,"abstract":"ABSTRACT:Under U.S. federal law, a corporation can be held criminally liable for the crimes of its employees and agents. The Department of Justice's U.S. Attorneys' Manual lays out a list of factors prosecutors can evaluate when deciding whether or not to prosecute a corporate entity. The Department of Justice (DOJ) prosecutors have various tools at their disposal, including deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) as alternatives to going to trial. Prosecutors have used DPAs and NPAs in recent cases, allowing the government to ensure that corporate entities comply with investigations, enact compliance programs, and continue to follow laws and regulations. The use of DPAs and NPAs are on the rise, and these agreements are now used in cases concerning the Foreign Corrupt Practices Act (FCPA) and the U.S. Commodity Future Trading Commission (CFTC). Comments from the Trump Administration suggest that these agreements will continue to be used to deter corporate criminal misconduct. Many Latin American countries have recently enacted laws to impose corporate criminal liability and use some type of compliance-based program to help deter future wrongdoing. Mexico, in particular, has recently amended its Federal Penal Code to prosecute and punish corporate entities. Since the Mexican case law in this area is still developing, it is very important that Mexico adopt deferred prosecution agreements, non-prosecution agreements, or a variation thereof that require compliance programs to enhance the public perception of the Mexican government and the judiciary. Mexico is just one of many countries amending its laws, suggesting a shift toward an implied understanding of the importance of a compliance-oriented approach. Foreign jurisdictions and the U.S. DOJ continue to enact programs to help regulate laws and deter criminal activity in many industries. The acceptance of the corporate criminal liability doctrine in several jurisdictions promotes the public interest and the integrity of the legal system, deters future illegal activity, and helps ensure corporate compliance with the law.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"353 - 379"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44494603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-18DOI: 10.2979/INDJGLOLEGSTU.26.1.0061
Jothie Rajah
ABSTRACT:The U.S.A. P.A.T.R.I.O.T. Act is legislation that simultaneously brings into being very particular notions of the American 'national' and, as its counterpart, a post-9/11 "global." Through a study of the Patriot Act, my paper unpacks the co-constitutions of national/global and a related series of binaries: domestic/foreign; patriot/terrorist; us/them; and innocence/evil. By exploring the structuring logics and language of these binaries in the Act, my paper scrutinizes the global role of U.S. legislative text in our world: a world in which "a global society has come into being but possesses as yet, no institutions proper to its name." In the context of our global perpetual war, I challenge our understandings of the categories structuring the Patriot Act to point to the specific ways in which law and war are co-constituted in our present.
{"title":"Law, Politics, and Populism in the U.S.A. P.A.T.R.I.O.T. Act","authors":"Jothie Rajah","doi":"10.2979/INDJGLOLEGSTU.26.1.0061","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.26.1.0061","url":null,"abstract":"ABSTRACT:The U.S.A. P.A.T.R.I.O.T. Act is legislation that simultaneously brings into being very particular notions of the American 'national' and, as its counterpart, a post-9/11 \"global.\" Through a study of the Patriot Act, my paper unpacks the co-constitutions of national/global and a related series of binaries: domestic/foreign; patriot/terrorist; us/them; and innocence/evil. By exploring the structuring logics and language of these binaries in the Act, my paper scrutinizes the global role of U.S. legislative text in our world: a world in which \"a global society has come into being but possesses as yet, no institutions proper to its name.\" In the context of our global perpetual war, I challenge our understandings of the categories structuring the Patriot Act to point to the specific ways in which law and war are co-constituted in our present.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"26 1","pages":"61 - 85"},"PeriodicalIF":0.0,"publicationDate":"2019-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41600270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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