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Volume I Issue 1 (January 2014)

Foreword by Pranoto Iskandar & Beth Lyon

1. The Economics of Cultural Property Laws by Adam Wallwork of the University of Chicago Law School, at. 1–35.

Abstract. This Article addresses the question of whether cultural property laws, which require archaeological artifacts to remain in countries of origin, have been a boon for nations with extensive archaeological records, as most archaeologists and lawmakers presume, or have hampered archaeological excavation by limiting source countries’ freedom to enter into artifact-sharing agreements, as economists would predict. The Article provides the first statistical analysis of cultural property laws’ effect on archaeological discoveries by comparing the number of World Heritage Sites discovered before and after the enactment of cultural property laws in 90 countries with at least one archaeological site on UNESCO’s World Heritage List. It concludes that such laws cause a statistically significant diminution in the number of archaeological discoveries in countries that enact such laws.

Keywords: Cultural Property Laws, Comparative Laws, International Law, Law and Economics, Art and Performance, Law and Statistics, Legal Empirical Studies. 

2. Welcome to the New Internet: the Great gTLD Experiment by Edward Nazzaro of St. Thomas University School of Law, at. 36–72.

Abstract. In 2011, the Internet Corporation for Assigned Names and Numbers (ICANN) approved a new policy that will result in dramatically increasing the number of top level domains available on the internet. This article discusses the continuing development of this policy, intending to serve as a substantial footnote for historical reference while remaining a forward-looking article to direct the future policy of top level domain expansion. Using the New Haven Approach, various stakeholders and their conflicting views are analyzed, from commercial interests such as Google and Amazon, to ICANN’s educational and policy-oriented Non-Commercial Stakeholders Group, as are the current policies and procedures around the application and assignment process for generic top level domains (gTLDs). This article is a snapshot of the current state of the internet, looking backwards at the internet’s successes and failures, while at the same time examining what this gTLD expansion means for the future of the internet. As a policy solution, this article advocates for limiting the number of gTLDs an entity can own, conserving critical internet resources for developing countries and other interests, while at the same time forcing applicants to act carefully when applying for gTLDs.

Keywords: Internet Regulation, Domain Name Governance, Electronic Commerce, International Law of Telecommunication, generic Top Level Domains (gTLDs), Cyber Law, Internet Governance. 

Abstract. This article explores the contrast between American and Indian approaches to regulating speech that is either emotionally harmful or socially offensive. Naturally, some of this difference reflects India’s history of communal violence and its colonially inspired censorship regulatory regime. Nevertheless, Indian courts are much more willing to restrict emotionally harmful and socially offensive speech than are American courts. To a great extent, India relies on its judiciary to reconcile the classically Liberal form of government it inherited through the colonial experience with a constellation of cultures that are strikingly more communal than their Western counterparts. These differing approaches are reflected in contrasting constitutional structures that regulate expressive freedom and divergent supreme court jurisprudences that attempt to incorporate the varying needs of communities within each nation.

This article argues that Indian free expression jurisprudence permissively allows the government to impose restrictions on speech in order to preserve mental, emotional, and social tranquility and well-being, which stands in contrast to the more stringent American approach to regulating this category of speech. The difference represents, at least in part, an attempt by the Indian judiciary to resolve a tension that arises through the application of a modern system of democratic republican governance, the offspring of Classical Liberal prioritizations of individualism and personal autonomy, to societies traditionally more oriented toward groups and communalism. Woven throughout the article is a comparison to the American approach to restricting hate speech to illustrate the stark contrast between the two approaches and to demonstrate the idiosyncratic journey that Indian free expression jurisprudence has undertaken since independence. The article demonstrates that a myriad of factors inspired the development of India’s more permissive approach to restricting emotionally harmful and socially offensive speech. These factors include not only the preservation of social harmony and well-being, but also the government’s fear of losing its authority, or at least the appearance thereof, and the impact of oppressive majoritarian communal politics.

The first substantive section outlines the Indian constitutional and statutory framework controlling the government’s ability to restrict speech that causes emotional and social harm. It explores not only Indian constitutional provisions and their geneses, but also statutes that authorize the government to restrict socially offensive and emotionally harmful speech. The second section demonstrates the Indian judiciary’s greater tolerance of restrictions on expression and explores its reasoning for so doing. It focuses on landmark Indian Supreme Court decisions that currently define Indian free expression jurisprudence in this area. The third section considers sociopolitical factors that influence India’s approach to restricting expression. Furthermore, this section will offer a critique of India’s more permissive approach to speech regulation that addresses its detrimental impact on cultivating a healthy national discourse, the legal uncertainty of speakers’ rights, and the framework’s potential for abuse at the hands of dominant social groups.

Keywords: First Amandment, India, Free Speech, Post-Colonialism, Hate Speech, Indian Constitutional Law, Indian Supreme Court, Communal Politics, Natural Rights Theory, Communalism, Human Rights, Civil Rights, Liberalism.

4. Borderline Reasonable: The Circuit Split and the Application of Miranda Rights by Border Patrol Agents by Lauren Fritz of Michigan State University College of Law, at. 105–150.

Abstract. Miranda v. Arizona requires that an individual in custody “be warned prior to any questioning” that he or she has the right to remain silent, anything he or she says can be used against that individual in a court of law, that he or she has the right to the presence of an attorney, and, if the individual cannot afford an attorney, one will be appointed for him or her prior to any questioning if the individual so desires. An interaction between law enforcement officials and an individual generally triggers Miranda’s prophylactic warnings when the interaction becomes a “custodial interrogation.” For Miranda to apply, the defendant must be in custody and subject to interrogation. Many scholars and circuits are currently split on what constitutes a “custodial interrogation” in border situations, when a situation is no longer routine, and at what point law enforcement personnel must give Miranda warnings. By analyzing the circuit split of the application of Miranda rights during border situations, lower courts may now have direction when deciding similar issues and, more importantly, the analysis may signal to the Supreme Court that judicial guidance needs to be developed.

Keywords: Human Rights, Non-Citizens' Rights, Immigration Law, Constitutional Law, Criminal Law and Procedure, Miranda Rights, Custodial Interrogation.

Abstract. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. In other words, the phenomenon of early marriage is not unusual, and has become more of an issue in the modern era. In the first place, this article sets out to assess the harms of early marriage by using critical feminist intersectional theory and legal anthropology as its theoretical lenses. Moreover, in light of international law, early marriage is a clear violation of universal human rights norms. Surely, there is an urgent need to develop a viable approach to reconciling the tensions between the preservation of the right of communities to social and cultural autonomy on the one hand, and the protection of individual human rights on the other. By using the controversies of early marriage in Romanian Roma, or “Gypsy,” communities  as a case study, the article proposes respectful, culturally competent ways to reduce early marriage by engaging communities.

Keywords: Children’s Rights, Human Rights, Feminism, Legal Pluralism, Foreign Laws, Gender Studies, Cultural Relativism.

6. How Serious is Tax Evasion? An Empirical Legal Answer by Robert W. McGee of Fayetteville State University, Wendy Gelman & Thomas J. Tarangelo of the School of Accounting at Florida International University, at. 218–259.

Abstract. Tax evasion has persistently carried severe penalties, although its intended deterrence effect is highly doubtful. We can safely say that it is based on the widely shared assumption among government officials that tax evasion is among the more serious crimes. In other words, the rationale of the current approach is that the punishment should fit the crime. By taking this into account, this empirical work sets out to expand on previous studies by examining the relative seriousness of 75 crimes and analyzing some demographic variables, including gender, age, marital status, religion and others, to determine whether tax evasion is as serious a crime as some policy makers believe it to be, and to determine whether opinions differ based on demographics. The study finding shows that tax evasion is deemed to be less serious than the average crime. The article concludes that since tax evasion was deemed to be less serious than most other offenses, one might reasonably conclude that the punishment for tax evasion should be less than the punishment for most other offenses.

Keywords: Empirical Legal Studies, Tax Laws, Law and Morality, Crime and Punishments, Criminal Legal Theories, Jurisprudence, Legal Theories.

Abstract. In societies where group identities – be they ethnic, religious, linguistic or regional – are socially and politically salient, states face major challenges in balancing conflicting intergroup rights and interests and maintaining public order. That such identities are also overlapping in Malaysia and Indonesia may complicate matters further, especially when fundamental rights questions are implicated. This article examines the theoretical and practical aspects of the constitutionalization of religion and religious freedom in the two countries. I question, in particular, the extent to which constitutional guarantees and arrangements can act as a rallying point for different groups in a divided society and protect the rights promised on paper. To that end, I begin by analyzing provisions on religion and religious freedom and the debates and considerations that led to the drafting of those provisions. I then examine how courts have interpreted and applied the provisions in two controversial cases that have surfaced in Malaysia and Indonesia. I argue that carefully-crafted constitutional provisions have been applied to favor majority opinions and sentiments. This has put into the inability of minority religious adherents to freely practice and express their religion in the two countries under study. More worryingly, these outcomes have deepened religious cleavages and exacerbated tensions and intolerance. 

Keywords: Communalism, The Establishment Clause, Communitarianism, The Separation Thesis, Religious Freedom, Minority Rights, Multiculturalism, Constitutionalism, Muslim World, Constitution-Making.


8. The Future of the Mandatory Death Penalty in Malaysia and Singapore: “Asian Values” and Abolition in Comparative Perspective, with Implications for Indonesia by Andrew Novak of American University, Washington College of Law & George Mason University, at. 301–313.

Abstract. Although Malaysia and Singapore have been stark holdouts to the Commonwealth-wide trend away from the mandatory death penalty toward discretionary capital sentencing, recent legislative reforms in Singapore and a softening of public opinion in Malaysia have brought these countries closer to conformity with the emerging consensus that not all murders or drug trafficking offenses are equally heinous and deserving of death. This shift is all the more remarkable because both countries have strong state-centered constitutional systems with powerful executives and weak fundamental rights protections, justified by communitarian values and wary of outsiders, especially transnational drug and organized crime syndicates. The move away from mandatory capital punishment in Malaysia and Singapore will sharply reduce the size of death row and the number of executions, which will in turn contribute to intraregional pressure to abolish the death penalty as Southeast Asian nations, including Indonesia, are politically sensitive to the treatment of their nationals imprisoned or on death row in foreign countries.

Keywords: Death Penalty, Comparative Constitutional Law, Mandatory Sentencing, Malaysia, Singapore, Human Rights, Capital Punishment, Abolition, Cultural Relativism, Communitarianism.

9. The Outsourcing of Legal Norms and Institutions by the ASEAN Economic Community by Edmund W. Sim, Appleton Luff and National University of Singapore Law School, at. 314–331.

Abstract. ASEAN member states (AMS) have relied on non-ASEAN  sources of law to support their regional economic integration into the ASEAN Economic Community (AEC). AMS have used WTO dispute resolution to resolve issues that could have been resolved using the ASEAN Enhanced Dispute Settlement Mechanism.  AMS conducting cross-border inspections have used UN agreements as legal support rather than use the ASEAN Trade in Goods Agreement. Using non-ASEAN legal instruments to implement ASEAN-level commitments could undermine the legitimacy of the ASEAN agreements. On other hand, using non-ASEAN legal instruments could give AMS greater confidence by giving them more experience in dealing with each other, albeit in a non-ASEAN context. The success of the AEC will depend on which lessons AMS learn from their experiences.

Keywords: ASEAN, Regionalism, Trade Law, Legal Pluralism, Dispute Settlements, Regional Trading Bloc.