George Washington Law Review最新文献

{"title":"Party Subordinance in Federal Litigation","authors":"S. Dodson","doi":"10.2139/SSRN.2354713","DOIUrl":"https://doi.org/10.2139/SSRN.2354713","url":null,"abstract":"American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my theory, parties fall in the lowest tier of the power heirarchy, beneath the law on top and judicial authority in the middle. Party subordinance means that the law — not party agreement — binds the court, and even when parties can lawfully make litigation choices, those choices generally do not bind the court. The upshot is that parties in fact have far less control over their litigation than previously assumed. Party subordinance suggests that the trend toward litigation customization is on shakier footing than presently acknowledged, reorients some key elements of the normative debate surrounding customization, and exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. At its broadest, the theory of party subordinance shifts the way the federal litigation system views the heirarchy among parties, courts, and the law.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"83 1","pages":"1"},"PeriodicalIF":1.5,"publicationDate":"2013-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68133369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'We the Peoples': The Global Origins of Constitutional Preambles","authors":"Tom Ginsburg, N. Foti, D. Rockmore","doi":"10.2139/SSRN.2360725","DOIUrl":"https://doi.org/10.2139/SSRN.2360725","url":null,"abstract":"We like to think that constitutions are expressions of distinctly national values, speaking for “We the People.” This is especially true of constitutional preambles, which often recount distinct events from national history and speak to national values. This article challenges this popular view by demonstrating the global influences on constitutional preambles. It does so using a new set of tools in linguistic and textual analysis, applied to a database of most constitutional preambles written since 1789. Arguing that legal language can be analogized to memes or genetic material, we analyze “horizontal” transfer of language across countries and “vertical” transfers within a single country over time. We also examine the circumstances in which countries introduce new terms into preambles, showing that countries innovate when neighbors innovate, and that innovations come in global waves. We show that innovation in language is something like punctuated equilibrium within an ecosystem. For long periods of stasis, countries borrow from one another and restrict their language to a set of common terms and phrases. Then, at particular junctures (likely associated with global conflicts), the equilibrium becomes disrupted and a period of innovation ensues. This eventually generates the “new normal” in terms of the set of language that constitutional drafters use. The article provides an example of how text analysis can help us understand the ways in which legal texts are interrelated across space and time.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":"305"},"PeriodicalIF":1.5,"publicationDate":"2013-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88643167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Defense of Japanese Sovereignty over the Senkaku/ Diaoyu Islands","authors":"Ryan M. Scoville","doi":"10.2139/SSRN.2285190","DOIUrl":"https://doi.org/10.2139/SSRN.2285190","url":null,"abstract":"Legal analyses on the sovereignty dispute over the Senkaku/ Diaoyu Islands have been unfavorable to Japan. The literature is populated primarily with works by commentators who argue in favor of the Chinese claim, and by others who conclude that the applicable law is simply too indeterminate to support either party. Analyses favoring Japan are rare and underdeveloped. This is a surprising state of affairs, given that Japan has the better argument. The purpose of this paper is to explain why.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"114 1","pages":"571"},"PeriodicalIF":1.5,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76823786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Direct Republicanism in the Administrative Process","authors":"D. Arkush","doi":"10.2139/SSRN.2029860","DOIUrl":"https://doi.org/10.2139/SSRN.2029860","url":null,"abstract":"This Article offers a new response to an old problem in administrative law: how to secure sound, democratically legitimate policies from unelected regulators. The question stems from a principal-agent problem inherent in representative forms of government — the possibility that government officials will not act in the public’s best interests — and it is rarely absent from legal and policy debates. Major regulatory failures and the government’s responses to them have renewed its significance in recent years, as agencies implement new laws and adapt old ones, courts review their actions, and the White House and Congress debate proposals for regulatory reform. Traditional models of democratic legitimacy in administrative law focus on agency accountability to elected officials or increasing interest group participation in the regulatory process. These models are valuable but ultimately fall short, largely because their representative nature replicates rather than remedies the core principal-agent problem. More recently, some scholars and reformers have attempted to engage citizens directly in the regulatory process. But these efforts have not circumvented the representation-based problems, and they also suffer from the high costs and other complications of direct democracy that counsel in favor of representative forms of government. This Article introduces a new model for democratic legitimacy, \"direct republicanism,\" which attempts to combine elements of representative and direct approaches. In a direct republican system, large panels of randomly selected citizens decide policy questions presented to them by government officials. In this way, citizens can act as their own representatives, the principals their own agents. The Article sketches an initial application of direct republicanism to the regulatory process in the form of \"administrative juries.\"","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2013-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'So Closely Intertwined': Labor and Racial Solidarity","authors":"Charlotte Garden, Nancy Leong","doi":"10.2139/SSRN.2128136","DOIUrl":"https://doi.org/10.2139/SSRN.2128136","url":null,"abstract":"Conventional wisdom tells us that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as rightfully fraught with tension. For example, commentators assert that unions capture a wage premium that mostly benefits white workers while making it harder for workers of color to find work; that unions deprive workers of color of an effective voice in the workplace; and that unions are interested in workers of color only to the extent that they can showcase them to manufacture the appearance of racial diversity. Like much conventional wisdom, the narrative that unions and people of color are rivals is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests; this work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions improve the lives of both members and non-members of color, from bargaining for better wages and working conditions to providing services like job training and continuing education to under-resourced communities. Accordingly, we aim to replace the conventional wisdom with a narrative that more accurately describes the occasionally complicated but ultimately hopeful relationship between labor and race. In developing this narrative, we anchor our conclusions in an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research. This extensive body of scholarship indicates that union membership has significant benefits for workers of color in the form of higher wages and improved benefits, more racially congenial workplaces, and deeper cross-racial understanding. We complement this robust scholarly literature with real-world examples of union success at improving the well-being of workers and communities of color. In contrast to many other commentators, then, our account is largely optimistic, though we emphasize that there is still work for the labor movement to do.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67930300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revolution Without Reform? A Critique of Egypt's Election Laws","authors":"Sahar F. Aziz","doi":"10.2139/SSRN.2026475","DOIUrl":"https://doi.org/10.2139/SSRN.2026475","url":null,"abstract":"This paper compares the laws before and after the revolution to determine whether the changes implemented are sufficient to produce the structural reforms Egyptians demand. This paper concludes that Egyptian elections processes and institutions remain insufficiently transparent, fail to produce results reflecting the diversity within Egyptian society, and fail to offer all Egyptians, especially women and religious minorities, an equal opportunity to actively participate in governance of their country.The paper critically assesses recent changes in Egypt’s electoral regime and considers whether Egypt had a revolution without reform. The thesis is twofold. First, the limited reforms made to election laws post-revolution are insufficient to produce the sustainable and meaningful democracy sought by Egyptians. Existing post-revolution laws fail to create transparent and independent processes that facilitate a level playing field among candidates and voter confidence in election outcomes. Second, the post-revolution amendments worsen prospects for Egyptian women and Coptic Christians to be elected to office, thereby further marginalizing them in the public sphere. Such adverse consequences are troubling in light of the significant contributions women and Egyptian Coptic Christians made to the revolution. In this early stage of the post-revolutionary phase, there is reason for cautious optimism. While Egyptian election laws have been amended for the better since the revolution, more legislative reforms are needed to ensure that future elections are fair, free, and accessible to all Egyptians. Sound election laws are the bedrock of a democracy insofar as they ensure that a dominant party does not extend its rule against the will of the people. As witnessed with the National Democratic Party (NDP) under the Mubarak regime, laws can be manipulated to guarantee certain electoral outcomes benefitting the dominant party. In the end, Egypt is at the initial stages of a protracted transition from entrenched authoritarianism to democracy uniquely tailored to Egyptian cultural and religious norms. One year after its historic revolution, Egyptians have made great strides toward that common goal. Whether post-revolution reforms will be structural and produce a complete upheaval of a corrupt political system, as called for by most Egyptians, or merely superficial changes under the false guise of reform will determine the success of this transition. While it is still too soon to predict the outcome, one thing is quite clear - future political leaders who seek to impose authoritarianism do so at their own peril.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"35 1","pages":"1"},"PeriodicalIF":1.5,"publicationDate":"2012-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88737012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who Admits New Members to the United Nations? (Think Twice Before You Answer)","authors":"J. Quigley","doi":"10.2139/SSRN.2070057","DOIUrl":"https://doi.org/10.2139/SSRN.2070057","url":null,"abstract":"It is widely assumed that admission to membership in the United Nations requires a favorable recommendation by the Security Council via a vote to which the right of veto applies. However, under the UN Charter, read in light of its drafting history, the veto does not apply to a Security Council vote on admissions, and a favorable recommendation from the Security Council is not required for the General Assembly to admit a state to membership.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"67 1","pages":"179"},"PeriodicalIF":1.5,"publicationDate":"2012-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83861528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconsidering Trials in Absentia at the Special Tribunal for Lebanon: An Application of the Tribunal's Early Jurisprudence","authors":"M. Gardner","doi":"10.31228/osf.io/c54js","DOIUrl":"https://doi.org/10.31228/osf.io/c54js","url":null,"abstract":"Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach should lead the judges to apply the Tribunal’s groundbreaking trial in absentia provisions in a manner that is consistent with international human rights jurisprudence, thereby quelling most, if not all, of the prior criticism. This Article first clarifies the debate by disentangling different notions of trials in absentia and by outlining the circumstances under which such trials are considered to accord with modern human rights standards. It then re-evaluates the framework for trials in absentia before the Special Tribunal for Lebanon in light of the Tribunal’s early jurisprudence, suggesting how the judges should interpret and apply these provisions in keeping with their prior case law. It ends with a more pragmatic evaluation of the costs and benefits of trials in absentia and cautions that such trials, while acceptable under the highest international standards of criminal justice, should be undertaken rarely, if at all.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"11 1","pages":"91"},"PeriodicalIF":1.5,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79934883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Policy Requirement in Crimes Against Humanity: Lessons from and for the Case of Kenya","authors":"T. O. Hansen","doi":"10.2139/SSRN.1894246","DOIUrl":"https://doi.org/10.2139/SSRN.1894246","url":null,"abstract":"Article 7(2)(a) of the Rome Statute stipulates that crimes against humanity are pre-conditioned on the existence of an attack on a civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack”. This requirement has given rise to considerable controversy in the legal literature. This article examines how the provision has been applied by Pre-Trial Chamber II of the ICC in the two cases currently pending before the Chamber concerning Kenya’s post-election violence. The question of under what circumstances non-state actors may qualify as an organization in the meaning of article 7(2)(a) is elaborated significantly on in these cases. Further, the question of whether state actors can adopt an organizational policy is discussed in the Kenyan cases. The article critically reviews the practice of the ICC and seeks to establish new criteria for how article 7(2)(a) should be applied.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"54 1","pages":"1-42"},"PeriodicalIF":1.5,"publicationDate":"2011-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83678224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Babes with Arms: International Law and Child Soldiers","authors":"Timothy Webster","doi":"10.2139/SSRN.1664691","DOIUrl":"https://doi.org/10.2139/SSRN.1664691","url":null,"abstract":"This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":"227"},"PeriodicalIF":1.5,"publicationDate":"2010-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91349990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}