Table of Contents

Law in the Flesh: Tracing Legitimation's Origin to 'The Act of Killing'

Richard K. Sherwin, New York Law School

Pakistan's Internal Security Environment

C. Christine Fair, Georgetown University

The International Regulation of Private Security Providers - A Brief Analysis

János Kálmán, Széchenyi István University of Applied Sciences - Faculty of Law and Political Sciences

Troubled Waters: Diana Nyad and the Birth of the Global Rules of Marathon Swimming

Hadar Aviram, University of California, Hastings College of the Law

The Effect of Deferred and Non-Prosecution Agreements on Corporate Governance: Evidence from 1993-2013

Wulf A. Kaal, University of St. Thomas, Minnesota - School of Law, European Corporate Governance Institute (ECGI)
Timothy Lacine, University of St. Thomas (Minnesota)

Tribal Disruption and Federalism

Matthew L. M. Fletcher, Michigan State University College of Law


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Law in the Flesh: Tracing Legitimation's Origin to 'The Act of Killing'" Free Download
No Foundations: An Interdisciplinary Journal of Law and Justice, No. 11, June 2014
NYLS Legal Studies Research Paper

RICHARD K. SHERWIN, New York Law School
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The founding moment of political and legal investiture haunts the baroque and neo-baroque mind, from Shakespeare’s 'Hamlet' to Joshua Oppenheimer’s highly unsettling film, 'The Act of Killing' (2012). In the former, Hamlet finds the resources to act in the face of injustice; in so doing he precipitates a transformative political event that renews the rightful basis for state legitimacy. In 'The Act of Killing', by contrast, restless stasis remains unaltered from beginning to end. It is a state of affairs well suited to contemporary neo-baroque conditions – a time of distracted paralysis, when the availability of the cultural and psychological resources needed to go beyond terror and its purgatorial aftermath remains uncertain.

The exploration of post-secular possibilities requires new experiential sources, new interpretive and critical methods, and new interdisciplinary alliances. Phenomenology, psycho-theology, political theology, and visual jurisprudence are just some of the emerging categories (or perhaps re-emergent fields) that present themselves to us for further consideration.

"Pakistan's Internal Security Environment" Free Download

C. CHRISTINE FAIR, Georgetown University
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Pakistan faces numerous internal security challenges including sectarian, communal, and ethno-nationalist violence as well as terrorist and insurgent violence. The varied groups engaging in this wide array of political violence have targeted ordinary citizens; political leaders and government officials, as well as Pakistan’s security forces. Here, I argue that many of these threats — but no means all — stem from Pakistan’s founding ideology, the Two Nation Theory, and the particular ways in which the Pakistani state — under civilian and military governance — has sought to employ stylized versions of Islamism to manage Pakistan’s religious, sectarian, and ethnic differences. While the communal appeal of Two-Nation Theory had utility in generating support for an independent Pakistan to be carved from the detritus of the Raj, once Pakistan came into being the same ideology became dangerous because the new state was home to many minorities, including Hindus, Parsees, Christians, and Sikhs. Arguably, the divisive rhetoric that successfully tweezed apart the subcontinent, after 1947, should have been tempered if not outright jettisoned if Pakistan’s varied peoples were to live harmoniously within a new nation with a precarious political geography and strained resources. However, the political elites of the new country opted not “to promote an inclusive Pakistani nationalism that would have accommodated the divisive forces of ethnic and cultural diversity of the people of the new country? (Hassan 2014: 42). The consequences of this enduring choice and the enormous failures of managing the deleterious outcomes of this choice have been — and are — horrendous.

In this background paper, I first aim to provide a historical overview of political violence in Pakistan’s recent past. Second, I provide a thumb-nail sketch of the key organizations providing this violence. Third, I exposit how Pakistan’s internal and external security environment are intrinsically interlinked. Here, I detail what is known (or suspected in most cases) about the linkages between these groups and Pakistan’s military and intelligence agencies and even political parties as appropriate. I contend that this linkage between external security policy and domestic security management poses enduring problems for the Pakistani state unless it adopts fundamental changes in the ways in which it manages its external security environment and even the fundamentally ideology of the state. Fourth, I provide an overview of security governance in Pakistan and the key roadblocks that prevent Pakistan from better managing its internal security despite systematic impediments operating in Pakistan (e.g. Pakistan’s commitment to jihad under its nuclear umbrella as a tool of foreign policy). I conclude with a discussion of implications.

"The International Regulation of Private Security Providers - A Brief Analysis" Free Download
K?LM?N, János (ed.): Legal Studies on Contemporary Hungarian Legal System, Universitas-Győr Kft., Győr, 2014. 376 p.

J?NOS K?LM?N, Széchenyi István University of Applied Sciences - Faculty of Law and Political Sciences
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The last decades has seen an enormous explosion in the use of private security providers by governments, industry, the UN and humanitarian organizations. Meanwhile, the accountability of these companies and their personnel for violations of human rights has not kept pace. Some researchers suggested that private security providers functioning in the grey area of the public international law, but in this paper we suggest that the international regulation is existed and the international soft low could transform into hard law.

"Troubled Waters: Diana Nyad and the Birth of the Global Rules of Marathon Swimming" Free Download
Mississippi Sports Law Review, Forthcoming

HADAR AVIRAM, University of California, Hastings College of the Law
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On September 3, 2013, Diana Nyad reported having completed a 110-mile swim from Cuba to Florida. The general enthusiasm about her swim was not echoed in the marathon swimming community, whose members expressed doubts about the integrity and honesty of the swim. The community debate that followed gave rise to the creation of the Global Rules of Marathon Swimming, the first effort to regulate the sport. This Article uses the community’s reaction to Nyad’s deviance to examine the role that crime and deviance plays in the creation and modification of legal structures. Relying on Durkheim’s functionalism theory, the Article argues that Nyad’s perceived deviance contributed to the community in four ways: it fostered solidarity among community members, it provided an opportunity to clarify the rules, it prompted a clarification of the hierarchy between rules, and it offered an opportunity for change and modernization of the sport. The regulation process offers an important window into the role of deviance in creating law, and insights applicable beyond the realm of sports law.

"The Effect of Deferred and Non-Prosecution Agreements on Corporate Governance: Evidence from 1993-2013" Free Download

WULF A. KAAL, University of St. Thomas, Minnesota - School of Law, European Corporate Governance Institute (ECGI)
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TIMOTHY LACINE, University of St. Thomas (Minnesota)
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Non- and Deferred Prosecution Agreements (N/DPAs) are controversial because prosecutors, not judges or the legislature, are changing the governance of leading public corporations and entire industries. To analyze N/DPAs’ corporate governance implications and provide policy makers with guidance, the authors code all publicly available N/DPAs (N=271) from 1993 to 2013, identifying 215 governance categories and subcategories. The authors find evidence that the execution of N/DPAs is associated with significant corporate governance changes. The study categorizes mandated corporate governance changes for entities that executed an N/DPA as follows: (1) Business Changes, (2) Board Changes, (3) Senior Management, (4) Monitoring, (5) Cooperation, (6) Compliance Program, and (7) Waiver of Rights. The authors supplement the analysis of governance changes in these categories with a more in depth evaluation of the respective subcategories of governance changes. The authors also code and analyze preemptive remedial measures, designed by corporations to preempt the execution of an N/DPA or corporate criminal indictment. The paper evaluates the implications of the empirical evidence for boards, management, and legal practitioners.

"Tribal Disruption and Federalism" Free Download
This paper is prepared for the 2014 Honorable James R. Browning Symposium hosted by the Montana Law Review (2015 Forthcoming)

MATTHEW L. M. FLETCHER, Michigan State University College of Law
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The very presence of Indian nations within the borders of the United States and its territories has always been, from the Founding, disruptive. Indian nations are disruptive, but as I will argue, they are disruptive in the best possible manner. This paper will describe several ongoing tribal-state disputes throughout the nation, acknowledging that the tribal claims are disruptive, but that tribal disruption is not inherently harmful.

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Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School