Indiana Journal of Global Legal Studies » Volume 13, Number 1

The Parallel Worlds of Corporate Governance and Labor Law

oneditor — Thu, 02 Feb 2012 15:48:44 +0000

This paper engages the concept of transnational law (TL) in a way that goes beyond the by now accustomed usages with regard to the development of legal norms and the observation of legal action across nation-state boundaries, involving both state and nonstate actors. The concept of TL can serve to illustrate a much further-reaching set of developments in norm creation and legal regulation. TL is here understood not only as a body of legal norms, but it is also employed as a methodological approach to illustrate common and shared challenges and responses to legal regulatory systems worldwide. In the case of corporate governance, TL captures the specific regulatory mix of formal, hard, public regulation, on the one hand, and of informal, soft, private regulation, on the other, that characterizes the contemporary evolution of corporate governance norms. Corporate governance norms give testimony of an ongoing search for answers to persisting problems in the organization of the firm, the distribution of power between shareholders, stakeholders, and the firm, as well as the responsibility of the corporation to its environment while-at the same time-reflecting on fundamental changes of the nature of norm creation and legal interpretation. While this approach is likely already to undermine some of the contentions regarding a universal convergence of corporate governance systems towards an outsider-control, shareholder-value-maximization model at the “end of history of corporate law,” its risks lie in the misappropriation of the described processes of private ordering as processes of natural evolution. After all, the shift away from formal law making to processes of societal self-regulation-as reflected in the rise of corporate governance codes, standards, best practices or, in the area of labor law, of codes of conduct and core labor rights-might turn out to be a less fortunate answer to the redistributive and participatory questions that are posed when one views corporate governance in the context of a larger set of welfare state norms, comprising not only company law and securities regulation, but also labor and employment law, industrial relations, and insolvency law. Eventually, a careful study of the transformation of the process of law making and rule enforcement suggests the necessity of taking a broader view on corporate governance than is often the case. Seen against the background of a globalization of economic activity, capital flows, and the erosion of many protective norms and rights-in particular in the area of labor law-the study of transnational corporate governance can contribute to a better understanding of the regulatory challenges of a globalized market economy.

The International Tribunal for the Law of the Sea: A Great Mistake?

oneditor — Thu, 02 Feb 2012 15:46:31 +0000

This article discusses the International Tribunal for the Law of the Sea and questions its role and value. The U.N. Convention on the Law of the Sea seems to contemplate fairly extensive jurisdiction for the Tribunal, but since its inception, the Tribunal has heard a very limited number and scope of cases, in part because disputants have other options for adjudication. This article provides a detailed discussion of the jurisdiction of the Tribunal. The Tribunal has compulsory jurisdiction in “prompt release” cases and in claims for provisional measures where the arbitral tribunal before which the claim will ultimately be brought has not yet been constituted. These two types of jurisdiction comprise the majority of applications to the Tribunal. This article suggests ways that the Tribunal might seek to expand its competence and relevance and contribute to the interpretation of the Convention.

The Use and Misuse of Comparative Constitutional Law

oneditor — Thu, 02 Feb 2012 15:44:44 +0000

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States; and (2) as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout this article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s is used as a case study to give the arguments context and greater substance.

Workers’ Rights Provisions in Fast Track Authority, 1974-2007: An Historical Perspective and Current Analysis

oneditor — Thu, 02 Feb 2012 15:39:42 +0000

This article examines the trajectory of workers’ rights provisions in “fast track” authority legislation allowing the U.S. president to negotiate free trade agreements that Congress can only approve or reject, not amend. I begin my analysis with the Trade Act of 1974 and continue through the expiration of fast track authority in 1994. Against this backdrop, I critique the workers’ rights negotiating objectives and priorities in the Bipartisan Trade Promotion Authority Act of 2002 (TPA). Relying on TPA’s confused legislative history and basic rules of statutory interpretation, the article seeks to interpret TPA’s workers’ rights provisions. It concludes by examining the practical implications of TPA’s workers’ rights negotiating objectives and priorities, as currently applied, by assessing the workers’ rights provisions in the trade accords concluded under TPA. Ultimately, I find that, despite pronouncements to the contrary, TPA is a step backward from the Trade Act of 1974, which instructed U.S. trade negotiators to ensure that “the global trading system, as governed by GATT, included an enforceable requirement that countries adhere to international fair labor standards.”

Making Visible the Invisible: Strategies for Responding to Globalization’s Impact on Immigrant Workers in the United States

oneditor — Thu, 02 Feb 2012 15:31:34 +0000

This article explores the impact of globalization on immigrant workers in the United States. Although Congress created programs to provide vocational training services and cash allowances to workers who qualified by virtue of having lost their jobs as a result of the adverse impacts of trade, these programs have done little to assist many of the immigrant workers displaced by shifting labor markets. Through critical review of two case studies, the article pursues a more comprehensive understanding of the reasons the system failed these workers, in order to better respond to systematic barriers placed in the way of limited-English proficient immigrant workers seeking retraining and related services. Part I explores the experiences and legal claims of more than 125 limited-English proficient employees of a large mushroom operation in Berks County, Pennsylvania. Part II discusses the ongoing efforts of the members of the Asociación de Trabajadores Fronterizos, a private organization fighting to achieve better working conditions and wages for workers displaced by El Paso’s vanishing apparel and textile manufacturing industry. Part III delves further into how notions of citizenship serve as barriers to recognition of the workers as vital and permanent members of an integrated working class in the United States. Ultimately, the article argues for the development of a more comprehensive strategy to identify, evaluate, and overcome those barriers, to ensure that advocacy efforts undertaken are more successful.

The Organization of Care Work in Italy: Gender and Migrant Labor in the New Economy

oneditor — Thu, 02 Feb 2012 15:28:58 +0000

This article discusses social, political, and economic aspects-particularly, gender and race-based implications-of the organization of elder care work in Italy and globally. Care work for the elderly is a particularly acute concern in Italy and across Europe, as the population is aging while women (the traditional caregivers) have joined the labor force in record numbers and family size has decreased. As the supply of informal female carers has decreased, the need for elder care is increasing. In Italy, a significant trend is the employment of migrant female workers (many from Latin American, Eastern European, and African nations) for home-based elder care, a development supported by institutional, political, cultural-social, and economic contexts within the country. This article emphasizes that the shift to a “migrant-minder” model, however, remains embedded in the ideal of family care for the elderly. Moreover, the trend does not challenge traditional gendered notions of the division of labor between men and women. However, the shift to migrant carers creates new racial- and class-based divisions between Italian (or other European) women and the women who serve as migrant carers. Stereotypes based on the characteristics of migrant women (for example, their acceptance of low wages and willingness to work without protest) are used to devalue their care labor as “real” work, as was previously the case for female carers more generally. The gendered and racial implications of this new paradigm of care should be carefully considered as the trend toward migrant caregiving in richer countries continues.

The New Politics of Linkage: India’s Opposition to the Workers’ Rights Clause

oneditor — Thu, 02 Feb 2012 15:26:20 +0000

This article examines why India has opposed a World Trade Organization (WTO) workers’ rights clause, and calls for a new way of thinking about international institutions and the link between trade and labor rights. Many labor rights supporters argue that labor rights principles should be integrated into the WTO, either via the addition of a workers’ rights clause or through a “judicial” reading of labor rights values into the existing WTO framework. But India has led a large block of developing countries in opposing any link between labor rights and the WTO. This opposition has been based primarily on economic arguments that suggest linkage is motivated by protectionism, concerns about political sovereignty and neocolonialism, and structural arguments about the proper institutional roles of the ILO and WTO. These arguments, it is suggested, must be understood in both a contemporary and historical context. In light of this opposition by developing countries, the article proposes a transition from a WTO-centered view of trade and labor linkage to a paradigm based on bilateral and regional market-based agreements that utilize the ILO-a model that would engage more dynamically with the concerns presented by India and other stakeholders in the developing world.

Protecting Families in a Global Economy

oneditor — Thu, 02 Feb 2012 15:24:21 +0000

The globalization of the economy has placed tremendous pressure on the modern family. Throughout the developed world, marriage rates are declining, birth and fertility rates are falling, real wages are flat or declining, and hours of family external labor supplied are rising. Finding a spouse and raising children can be inconsistent with the demands of careers in the global economy of the new information age. Globalization of the economy tends to encourage individualism and mobility, in direct opposition to family relationships. Moreover, the extensive period of training that is necessary to compete in the global economy interferes with marriage and childrearing and increases the costs of raising children. Finally, the global economy has resulted in increased demand for flexible labor, requiring many lower- and middle-class families to increase time spent in the paid workforce, often with few or no additional benefits.

This essay examines the different ways industrialized countries have responded to these problems and discusses the effectiveness of these possible solutions in the context of the global economy. In Part I, we present a definition of the family and some of the costs and benefits of family relationships. In Part II, we explore the reasons behind the current underinvestment in families, including the demands of the marketplace and government policies that promote market labor and undervalue children. In Part III, we discuss the “new” family and the fact that people are getting married less, and later in life, having fewer children, and spending less time raising children. Finally, in Part IV, we survey the ways in which several industrialized countries have addressed the problems of families in the global economy both through the market and government policies.

Beyond a Snapshot: Preventing Human Trafficking in the Global Economy

oneditor — Thu, 02 Feb 2012 15:21:22 +0000

Current legal responses to the problem of human trafficking often reflect a deep reluctance to address the socioeconomic root causes of the problem. Because they approach trafficking as an act (or series of acts) of violence, most responses focus predominantly on prosecuting traffickers, and to a lesser extent, protecting trafficked persons. While such approaches might account for the consequences of trafficking, they tend to overlook the broader socioeconomic reality that drives trafficking in human beings. Against this backdrop, this article seeks to reframe trafficking as a migratory response to current globalizing socioeconomic trends. It argues that, to be effective, counter-trafficking strategies must target the underlying conditions that impel people to accept dangerous labor migration assignments. The article recommends that existing counter-trafficking strategies be assessed with a view to assessing their potential for long-term effectiveness. It also advocates strategic use of the nondiscrimination principle to promote basic economic, social, and cultural rights, the deprivation of which has sustained the trafficking phenomenon.