Lochner Disembedded: The Anxieties of Law in a Global Context

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Indiana Journal of Global Legal Studies. Volume 20, Issue 1 (2013), p. 29-70.


This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining's identification of key problems of law in a global context (2009; 2012), the following paper adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on actors, norms, and processes. Second, the paper proposes case studies as a central methodological device to explore the nature, scope, and function of governance-both legal and nonlegal-in a global context. Through the identification of cases in global governance such as, but not limited to, examples of human rights violations around multinational engagements in developing countries or conflicts between indigenous peoples and the rights governing the extraction industry, as well as the role of nonstate actors in financial regulation, the essay engages with the structural and institutional changes that characterize legal regulation in a transnational context today. The paper posits the significance of identifying links between newly emerging, transnational cases and seminal cases from the nation-state experience in order to trace the continuance of dilemmas arising out of tough questions, old wounds, and hard cases. The U.S. Supreme Court's 1905 decision in Lochner v. New York serves as backdrop and reference for pertinent, but increasingly challenged, approaches to the identification of interests and rights in a social conflict.

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