George Washington Law Review最新文献

{"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":"An Intersystemic View of Intellectual Property and Free Speech","authors":"M. Bartholomew, John Tehranian","doi":"10.2139/SSRN.1943210","DOIUrl":"https://doi.org/10.2139/SSRN.1943210","url":null,"abstract":"Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, and right of publicity jurisprudence. The first part of this Article carefully details the disparate treatment of First Amendment defenses in the three intellectual property regimes. On one side of the spectrum is copyright law. An increasingly broad interpretation of commercial use, a narrow construction of transformative use, and a myopic focus on market harm, combined with a refusal to engage in any sort of independent First Amendment review, have rendered copyright law a feeble protector of free expression. On the other side of the spectrum is recent right of publicity jurisprudence, which routinely invokes the First Amendment and features robust defenses based on “transformativeness” and “newsworthiness.” Somewhere in the middle stands trademark law, offering its own judge-made defenses to immunize expressive conduct but simultaneously closing off those defenses for defendants engaging in commercial or potentially confusing activity. The next part tries to explain why these three regimes accommodate the First Amendment in such different ways. We conclude that the divergence is not the result of careful deliberation, but rather the inadvertent product of different methods and histories of lawmaking. If the divergence does not represent a logical or deliberate choice, reforms are needed. By bringing these different approaches to the First Amendment into relief, we hope to demonstrate how some free speech interests are being shortchanged and we aim to place all three regimes on a stronger theoretical footing.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"81 1","pages":"1"},"PeriodicalIF":1.5,"publicationDate":"2011-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67804713","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":"Naming Baby: The Constitutional Dimensions of Parental Naming Rights","authors":"Carlton F. W. Larson","doi":"10.2139/SSRN.1747858","DOIUrl":"https://doi.org/10.2139/SSRN.1747858","url":null,"abstract":"This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy. This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucia or Jose, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law. Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"80 1","pages":"159-201"},"PeriodicalIF":1.5,"publicationDate":"2011-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67732348","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}

{"title":"Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance","authors":"Robert B. Ahdieh","doi":"10.2139/SSRN.1272234","DOIUrl":"https://doi.org/10.2139/SSRN.1272234","url":null,"abstract":"Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to either the top or the bottom in shareholder-managerial relations. Rather than the vertical allocation of wealth between shareholders and managers, state competition is directed to its horizontal allocation between the state and the firm as a whole. Even as state competition shifts surplus from state to firm, thus, it is agnostic as to the distribution of that surplus within the firm. Although it may generate effective rules of corporate law, it is not determinative of the substantive quality of corporate governance. Understood as such, the metrics of “efficiency” in corporate governance - and hence the core inquiries of the corporate law literature - must necessarily shift. Prevailing approaches to questions from the potential utility of federal corporate law to the long persistence of state antitakeover statutes must likewise be reconsidered.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"77 1","pages":"255-307"},"PeriodicalIF":1.5,"publicationDate":"2010-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68155343","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 Restrictive Ethos in Civil Procedure","authors":"A. Spencer, A. Spencer","doi":"10.2139/SSRN.1343129","DOIUrl":"https://doi.org/10.2139/SSRN.1343129","url":null,"abstract":"Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a \"liberal ethos,\" meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a \"restrictive ethos\" characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates the ability of claimants to prosecute their claims and receive a decision on the merits in federal court. In this brief Essay, after discussing some of the familiar components of the liberal ethos of civil procedure, I hope to set forth some of the aspects of federal civil procedure that reflect the restrictive ethos, following up with some thoughts on whether a dialectical analysis can help us understand the nature of the relationship between procedure's liberal and restrictive components.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2010-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68166789","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":"Understanding the physiological importance of amino acid transport processes in legumes","authors":"Tan, Qiumin","doi":"10.7273/000006005","DOIUrl":"https://doi.org/10.7273/000006005","url":null,"abstract":"Nitrogen is essential for plant growth and development, and amino acids represent the predominant N transport forms in most plants. Transporters are required to effectively move the organic N from cell to cell and over long distances. This research addresses the functions of amino acid transporters in legumes and their importance for whole-plant physiology and productivity. Novel amino acid transporters were identified in French bean (Phaseolus vulgaris), PvAAP1, and pea (Pisum sativum) PsAAP3, PsAAP6, and PsCAT6. Functional complementation in yeast demonstrated that, with the exception of PsCAT6, they are functional transporters and mediate the growth of yeast cells on a broad spectrum of amino acids. Furthermore, expression analyses in nodules, phloem, and seeds, as well as transporter localization to the plasma membrane suggest that the transporters are involved in cellular import processes throughout the plant and that their function is highly cell-specific. The role of PsAAP6 in nodules was further analyzed by repressing PsAAP6 expression and it was found that nodule amino acid levels and development are affected in the transgenic roots. Together, our analyses of transporter function in legumes demonstrate the importance of membrane proteins in movement of amino acids in nodules, over long distances, and in import into seeds. We further examined the role of amino acid transport in plant metabolism and productivity. Transgenic pea plants expressing a yeast transporter for Smethylmethionine, a nitrogen and sulfur containing amino acid, in the phloem were produced and analyzed. Results showed that nitrogen and sulfur phloem transport as well as metabolism were affected in the transgenic plants. In addition, changes in long distance transport of nitrogen and sulfur led to an increase in total seed production and in total seed S, N and protein yields. Overall, our results demonstrate that phloem transport of S-methylmethionine is important to seed quality and quantity.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147879312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Intergenerational Justice Require Rising Standards of Living","authors":"L. Zelenak","doi":"10.2139/SSRN.1487554","DOIUrl":"https://doi.org/10.2139/SSRN.1487554","url":null,"abstract":"This essay considers whether it would be morally acceptable for a nation to use massive intergenerational borrowing to pursue a no-growth policy, under which the anticipated standard of living of members of future generations would be no higher than the standard of living of members of the present generation. The essay examines whether justification for such a policy can be found in either the political theory of John Rawls or in the application of utilitarian principles to intergenerational ethics. It concludes that under a Rawlsian analysis there is a strong argument that the current generation has no obligation to strive for higher standards of living for future generations, but that under utilitarian principles there is such an obligation.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"77 1","pages":"1358"},"PeriodicalIF":1.5,"publicationDate":"2009-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186830","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":"Preferring One's Own Civilians: May Soldiers Endanger Enemy Civilians More than They Would Endanger Their State's Civilians?","authors":"Iddo Porat, Ziv Bohrer","doi":"10.2139/SSRN.1445509","DOIUrl":"https://doi.org/10.2139/SSRN.1445509","url":null,"abstract":"When soldiers engage in war they should be careful not to harm enemy civilians. However, the question remains how careful should they be and, in particular, to what degree should they be willing to risk their lives in order not to harm enemy civilians? In a recent article for the New York Review of Books Professor Michael Walzer and Professor Avisahi Margalit argue that soldiers should take upon themselves the same degree of risk in order not to harm enemy civilians as they would have taken if those civilians were their own civilians. According to their example, if Hezbollah were to take over a Kibbutz in northern Israel and hold civilian hostages as human shields (for example by intermingling with them so that it would be impossible to hurt Hezbollah people without hurting the civilians) Israeli soldiers should risk themselves in order not to harm those civilians equally if: 1. The civilians used as human shields were Israeli Kibbutz members. 2. The civilians used as human shields were Swedish volunteers in the Kibbutz 3. The civilians used as human shields were residents of northern Lebanon which Hezbollah brought with them to Israel for use as human shields. I shall refer to this as the “equality” principle. Walzer and Margalit further argue that the degree of risk that Israeli soldiers should take upon themselves in all of these instances is higher than the degree of risk that they would impose on the civilians. To this I shall refer as the “altruism” principle. In this article I would like to question both the equality and the altruism principles, based on an argument from individual self defense. The gist of the argument is the following: in situations in which an aggressor holds an innocent person as a human shield, the defender may kill the human shield in order to save his life, because the human shield is morally equivalent to an innocent aggressor. That is, his well being poses a risk to the defender’s life, although he is in no way responsible or culpable for that risk. In such situations, the defender has an agent-relative permission to prefer his own life over the life of the human shield (hence the rejection of the altruism principle). However, if the human shield is someone close to the defender, such as his son, or his lover (or possibly his countryman) he may justifiably choose to risk his life more than the minimal moral requirement that would apply to any other human shield; that is he may choose to risk his life more than what he would be required to if the human shield were a stranger (hence the rejection of the equality principle).","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"20 1","pages":"99"},"PeriodicalIF":1.5,"publicationDate":"2009-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78812167","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}