George Washington Law Review最新文献

{"title":"Human rights and public interest litigation in East Africa: A bird’s eye view.","authors":"J. Oloka-Onyango","doi":"10.2139/SSRN.2606120","DOIUrl":"https://doi.org/10.2139/SSRN.2606120","url":null,"abstract":"Despite the growing use of public interest litigation (PIL) as a mechanism for pursuing the goals of social justice and enhanced democratic constitutionalism, there is scant comparative analysis of the phenomenon among the three East African countries of Kenya, Tanzania, and Uganda. In tandem with the regional East African Court of Justice (EACJ) to which all three countries are members, PIL is growing at a significant pace and has the potential to impact the structures of governance, accountability, and equality in the region. This Article analyzes the manner in which this type of litigation has grown, and assesses the extent to which it has affected socioeconomic and political conditions in the region. Using the analogy of cement and its unique properties, the examination is conducted against the backdrop of the constitutional developments that have taken place in East Africa over the last twenty years, starting with the promulgation of a new constitution for Uganda in 1995 (aging cement), considering the 2010 ‘transformative constitution’ in Kenya (setting cement), and engaging with the current debate over the introduction of a new constitutional instrument in Tanzania, where the cement is undergoing a ‘remixing.’ Does PIL offer a serious and sustainable antidote to the three countries’ experiences of authoritarian rule, judicial lethargy, and community marginalization?","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2015-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80460471","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":"Crime and Punishment: Assessing Deterrence Theory in the Context of Somali Piracy","authors":"Y. Dutton","doi":"10.31228/osf.io/ktdw5","DOIUrl":"https://doi.org/10.31228/osf.io/ktdw5","url":null,"abstract":"46 George Washington International Law Review 607 (2014)","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2014-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76855017","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":"Property and Political Community: Democracy, Oligarchy, and the Case of Ukraine","authors":"M. Eppinger","doi":"10.2139/SSRN.2526308","DOIUrl":"https://doi.org/10.2139/SSRN.2526308","url":null,"abstract":"Widening wealth gaps in Western democracies have brought new scrutiny to relationships between property and political community. For the prior quarter century, Western legal scholars have urged privatization around the globe as the key to a virtuous circle of \"market democracy.\" This Article traces origins of the market democracy consensus to ideas that identify positive features of political community -- liberty, wealth, or democracy -- with private property ownership. Fieldwork in Ukraine, where Western privatization advice was followed at a time of founding a new polity, provides data to compare predictions with outcomes. Two unexpected figures -- the Oligarch and the Precariat -- emerge from the newly privatized countryside. Research into the micropractices of privatization counterintuitively exposes private property as potentially working against democracy. The findings from this research are that oligarchy is a possibility, distribution is a problem, and relationships between property and democracy are not always mutually felicitous.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90089358","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":"Debugging Software's Schemas","authors":"K. Osenga","doi":"10.2139/SSRN.2391848","DOIUrl":"https://doi.org/10.2139/SSRN.2391848","url":null,"abstract":"In computer terminology, a schema is a model to describe structures for containing and processing data. A flawed schema in the computer world is a bug; the result may be unexpected behavior or even system shutdown. In cognitive theory, a schema is a structure or framework that helps organize and interpret information. Incorrect schema in this realm can lead to flawed decision making or understanding. These two worlds – computer science and cognitive science – have collided at the intersection of eligibility for patent protection of software and computer-related inventions; unfortunately, the resulting system is in dire need of debugging. The frameworks that are currently influencing decision making about software patents include the analysis that software patents are generally bad (the bad patent schema) and that software patent holders are problematic (the troll schema). These schemas have been created and maintained through various cognitive biases, resulting in flaws that are negatively impacting the conversation about patent eligibility for software and computer-related inventions. With awareness of these biases, it is possible to minimize the negative impact. But even if we are able to eliminate the biases, there exists an even bigger bug in the system: the framework underlying the discussions about software patents is incorrect. Although the primary question affecting the patent eligibility of these inventions is whether they are abstract ideas, the framework has very little, if anything, to do with that question. With an incorrect structure driving the discussion, reaching a correct result is unlikely.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2014-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68171543","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":"WHAT MAKES LAWYERS HAPPY? TRANSCENDING THE ANECDOTES WITH DATA FROM 6200 LAWYERS","authors":"L. Krieger, Kennon M. Sheldon","doi":"10.2139/ssrn.2398989","DOIUrl":"https://doi.org/10.2139/ssrn.2398989","url":null,"abstract":"Attorney well-being and depression are topics of ongoing concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. The researchers gathered detailed data from several thousand lawyers in four states, to measure a variety of factors considered likely to impact lawyer well-being. These factors included choices and achievements in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Results are standardized and organized into five tiers of well-being factors. They suggest that the priorities and values of law students, lawyers, law schools, and law firms are often misplaced, with apparent negative impacts on lawyer well-being and, by extension, performance, productivity, and professionalism. Factors typically afforded most attention and concern, those relating to prestige and finances (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors typically marginalized in law school and seen in previous research to erode in law students (psychological needs, internal motivation and intrinsic values) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. Despite markedly lower law school grades and current income, public service lawyers had healthier autonomy, purpose, and values and were happier than lawyers in the most prestigious positions (and who had the highest law school grades and incomes). Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and the relationships between well-being, productivity, and professionalism are discussed.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2398989","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68181143","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":"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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}