The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law最新文献

{"title":"The U.S.-China Rule of Law Initiative","authors":"Paul Gewirtz","doi":"10.2139/SSRN.422260","DOIUrl":"https://doi.org/10.2139/SSRN.422260","url":null,"abstract":"This article examines the U.S.-China Rule of Law Initiative that was agreed to by President Bill Clinton and Chinese President Jiang Zemin at their 1997 and 1998 Summit Meetings. The Initiative sought to promote legal cooperation between the United States and China and to assist the legal reform process in China. The author developed and led this Initiative when he was on leave from Yale Law School as a U.S. government official during 1997-98. The article describes the development of the Initiative, its premises, and its effects. The article also uses the Initiative as a basis for discussing the possibilities and prospects for legal reform in China. More generally, the article discusses what role foreign entities can appropriately play in the legal reform process in countries such as China. In doing so, the article suggests approaches that foreign experts can take that might avoid some of the disillusionment and estrangement experienced by some scholars and experts involved in the \"Law and Development\" movement in the 1960s and 1970s.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"15 1","pages":"603"},"PeriodicalIF":0.0,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86327560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law Without Law, or is 'Chinese Law' an Oxymoron?","authors":"Teemu Ruskola","doi":"10.2139/SSRN.412380","DOIUrl":"https://doi.org/10.2139/SSRN.412380","url":null,"abstract":"In this essay, which is part of a larger genealogy of legal Orientalism, I analyze the conceptual and historical relationship of China to the idea of 'rule of law,' and vice versa. I first consider why it is that China is generally viewed as lacking a tradition of rule of law. I then look at one historical example of Western efforts to transplant the rule of law in China, and the lessons it has for our understanding of law more generally.I begin by examining the nature of the rule of law as a political ideal, and then turn to its implicit, less analyzed counterpoint, the 'rule of men.' Insofar as the definition of the rule of law is a negative one - the rule of law means precisely 'not the rule of men' - this dichotomous understanding threatens always to condemn 'Chinese law' to the status of an oxymoron, for historically Chinese legal institutions have been built on the ideological premise of rule of men (that is, men of either Confucian or socialist virtue). As a case study of the construction of Chinese law as congenitally lawless, and of the concomitant Western mandate to export law to China, I examine Thomas Stephens's monograph 'Order and Discipline in China,' a study of the jurisprudence of the International Mixed Court in early twentieth-century Shanghai. In theory, this court was charged with applying Chinese law in the so-called International Settlement, a semi-colonial foreign enclave in Shanghai. Although originally a Chinese tribunal, after 1911 the Mixed Court was controlled by the foreign residents of the International Settlement. Contrasting what he calls the adjudicative and disciplinary models - essentially an instance of the rule-of-law/rule-of-men dichotomy - Stephens argues that the Mixed Court had no claim to legality by the standards of the Western adjudicative model. Ironically, given the foreign control of this court, the 'Chinese law' that Stephens condemns as lawless was in fact a Chinese law fabricated by foreigners. Using Stephens's analysis as an illustration, the essay concludes that the problem is not simply that 'Chinese law' is an oxymoron, but that the category of 'law' is itself a contradiction, an unstable mix of elements of adjudication and discipline, rule of law and rule of men. While we are capable of accommodating this Legal Realist insight at home while maintaining our commitment to law's rule, we are far more uncompromising in evaluating legal traditions elsewhere. In the end, the rule-of-law/rule-of-men distinction is too moralistic and too black-and-white to be analytically useful. For the sake of a better comparative understanding of Chinese law, we ought to replace it with more modest and more definable concepts instead. Any observations and criticisms we have of another are best made in terms of the substantive content of specific laws and the institutional structures for their enactment and enforcement.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"1 1","pages":"655"},"PeriodicalIF":0.0,"publicationDate":"2003-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89874106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Children's Associational Rights? Why Less Is More","authors":"E. Buss","doi":"10.2139/SSRN.389457","DOIUrl":"https://doi.org/10.2139/SSRN.389457","url":null,"abstract":"This article argues against recognizing children's associational rights, despite compelling calls for such rights in the face of controversial court decisions. The argument is grounded on pragmatic, rather than conceptual, opposition to these rights. While children's interest in maintaining important relationships is at least as great as the parallel interest of adults, children cannot assert those interests on their own. As a result, children are necessarily dependent on some adult surrogate, or group of surrogates, to exercise these rights. The article considers each of these surrogates in turn (interested third parties, lawyers, guardians ad litem, evaluating psychologists, and judges), and concludes that none is in a position to identify a child's associational interests better than the child's parents (the default surrogates in a no-rights world). The article also suggests that invoking children's rights rhetoric, when children have so little control over the associational choices made in their name, risks exploiting children to serve the ends of adults. This piece was written for the symposium on children's associational rights convened by William and Mary's Institute of Bill of Rights Law.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"74 1","pages":"1101"},"PeriodicalIF":0.0,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79160711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding Prophylactic Remedies Through the Looking Glass of Bush v. Gore","authors":"Tracy A. Thomas","doi":"10.2139/SSRN.339860","DOIUrl":"https://doi.org/10.2139/SSRN.339860","url":null,"abstract":"This is not just another article about Bush v. Gore. Rather, this article does something that no article to date has done: it analyzes the impact of the textual decision in Bush v. Gore on the law of remedies. For the first time, an article examines the actual text of the decision to reveal that it holds important precedent regarding remedies for constitutional and voting rights. The area of remedies law is often ignored in legal scholarship. Thus, this article hopes to contribute to the legal academy by addressing the important area of remedies for constitutional violations through a timely and interesting example of Bush v. Gore. The article applies the unified right theory of remedies I first developed in Congress' Section 5 Power and Remedial Rights, 34 U.C. DAVIS. 673 (2001) to the unprecedented use of a prophylactic remedy in Bush v. Gore. In this article Understanding Prophylactic Remedies, I explain the relatively new legal concept of a prophylactic remedy and argue that it was inappropriately used in Bush v. Gore. Prophylactic remedies have become the miscreant of judicial relief as often the term \"prophylactic\" is used to describe illegitimate judicial action. However, I take issue with these critics, arguing instead that prophylactic remedies are legitimate exercises of the judicial power to remedy wrongs. The problem in Bush v. Gore, in my view, was the misuse of the powerful prophylactic remedy. The Supreme Court in its decisions on desegregation and prison reform has reserved this powerful remedy for extraordinary situations. In contrast, the Bush Court imposed the remedy in contravention of its prior case law to circumstances that did not warrant the broad remedy. Moreover, the Court misused its equity power to create a remedial facade that denied rather than provided relief. This unprecedented use of a prophylactic remedy thus creates important precedent for the future use of such powerful relief.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"5 1","pages":"343"},"PeriodicalIF":0.0,"publicationDate":"2002-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90426004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A battle over birth \"control\": legal and legislative employer prescription contraception benefit mandates.","authors":"C Keanin Loomis","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Under the Pregnancy Discrimination Act (PDA), employers are prohibited from discriminating against women by treating pregnancy and childbirth different from other medical conditions. Employers who offer medical benefits to their employees have thus been required to cover pregnancy-related medical costs on the same terms as other medical coverage. The cost of prescription contraception, however, has generally not been covered by employer-sponsored medical plans, even while other prescription drugs were. This Note examines the recent case of Erickson v. Bartell Drug Co., which challenged this practice of excluding prescription contraception coverage as discriminatory under the PDA, and argues that further federal legislation is necessary to ensure the equal treatment of women in the workplace.</p>","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"11 1","pages":"463-94"},"PeriodicalIF":0.0,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25780685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 'Blue Slip': Enforcing the Norms of the Judicial Confirmation Process","authors":"Brannon P. Denning","doi":"10.2139/SSRN.291409","DOIUrl":"https://doi.org/10.2139/SSRN.291409","url":null,"abstract":"If there is any bright side to the unbelievably rancorous confirmation battles that marked the Clinton years - which are also inevitable in the Bush Administration - it is that they have exposed to public scrutiny customs and practices that enable individual Senators to wield a de facto veto over presidential nominees (and the defensive measures available to Presidents). After 1994, for example, when Republicans regained control of the House and the Senate, senators used the power of committee chairman and the \"hold\" to kill nominations for cabinet positions, department heads, ambassadorships, and judgeships on what seemed to be an unprecedented scale. For this, Republicans faced intense criticism. Now, recent controversies over President Bush's judicial appointments have brought to light another obscure Senate custom, the blue slip. In this essay, I will shed light on the blue slip, its relation to the protean concept of senatorial courtesy, and examine its function in the Senate's \"advice and consent\" role. In Part I, I reconstruct the operation and origins of the blue slip process; Part II discusses the recent flap over the blue slip occasioned by the announcement of Bush's first judicial nominees, whose selection was nearly overshadowed by the Republicans' loss of the Senate. I contrast the process's operation in the new Senate confirmation environment with earlier descriptions of it. Part III considers whether the process is consistent with the Constitution's allocation of power to appoint and confirm nominees to federal posts. While conceding that the blue slip finds no explicit sanction in the Constitution, I argue in Part IV that it functions as a mechanism to sanction a failure by the President to seek senators' advice on judicial nominees, not just their consent. Part V then examines the possibility for reforming this much-criticized process.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"26 1","pages":"75"},"PeriodicalIF":0.0,"publicationDate":"2001-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73308796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up on the Lawyers?","authors":"Laura E. Little","doi":"10.2139/SSRN.287322","DOIUrl":"https://doi.org/10.2139/SSRN.287322","url":null,"abstract":"This article concludes that Bush's decision to eliminate the ABA's prescreening role substantially reduces the ABA's ability to contribute valuable expertise to judicial selection. ABA committee members not only are likely to know the right persons to ask questions about potential candidates, but - knowing the temptations and soft spots of legal doctrine and procedure - are also able to ask the right questions. Furthermore, the ABA offers stable procedures for evaluating judicial qualification - which can remain constant throughout the governmental changes instituted as presidential administrations come and go. The Bush administration has resolved, however, that the ABA should be treated like other \"political interest groups\" because it \"takes public positions on divisive political, legal, and social issues that come before the courts.\" Commentators have suggested that perhaps the ABA is not too political for the prescreening job, just on the wrong side of the political spectrum. To the extent that ABA's voice contrasts with those who have the President's ear, its contributions are especially important to exposing competing arguments about the merits of potential candidates. Experience teaches, moreover, that high-pitched political battles over judges will continue whether or not the ABA has a vetting role. The article argues, although the Bush administration is wrong in treating the ABA as just another interest group, the ABA would be prudent to heed its critics. Several changes in ABA procedures could cure the perception that the ABA uses judicial evaluations to implement its own public policy objectives. The solution thus is not to ax independent lawyers from judicial prescreening, but to improve their contributions through refined procedures.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"1 1","pages":"37"},"PeriodicalIF":0.0,"publicationDate":"2001-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85221154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious Conservatives and the Death Penalty","authors":"Thomas C. Berg","doi":"10.2139/SSRN.259152","DOIUrl":"https://doi.org/10.2139/SSRN.259152","url":null,"abstract":"Conventional wisdom says that conservative Christians -- evangelical Protestants and traditionalist Roman Catholics -- are the strongest supporters of capital punishment in America, just as they take the strongest \"conservative\" positions on other controversial social issues such as abortion and homosexuality. But survey results suggest that white conservative Christians do not support the death penalty at a significantly higher rate than other white Americans, and that one group of conservative Christians, traditionalist Catholics, supports it substantially less. In addition, recent events, such as the questioning of the death penalty by many conservatives and the efforts of the Rev. Pat Robertson to prevent an execution in Texas, have made it worthwhile to consider whether religious conservatives might be turned against the death penalty in any significant numbers. This essay examines the theological and social attitudes toward the death penalty of both traditionalist Catholics and evangelical Protestants. With respect to Catholicism, it particularly discusses the teachings of the Pope against the death penalty in the recent encyclical Evangelium Vitae, and the extent to which such teaching will be viewed as authoritative by traditionalist Catholics. With respect to evangelical Protestantism, the essay examines several factors: their attitude toward the Bible and the passages in it that endorse capital punishment, their theological attitudes concerning repentance and remorse, their affinity for \"common sense\" policy arguments, and others. The essay concludes that (1) in order for religious conservatives to be turned against the death penalty in significant numbers, they will largely have to be convinced by the same practical arguments that might convince other Americans, such as the poor quality of capital defense representation and the risk of convicting the innocent; but that (2) evangelical Protestants might be also be turned in lesser numbers against execution by certain theological arguments and social developments, including, for example, (a) an emphasis on the possibility of religious conversion by inmates and (b) an increase in evangelicals' contact with and understanding of African Americans (who oppose the death penalty in much larger numbers) and of prison inmates (through, for example, religious ministries to prisoners).","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"40 12","pages":"31"},"PeriodicalIF":0.0,"publicationDate":"2001-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.259152","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72446607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious Land Use and Institutionalized Persons Act of 2000: The Land Use Provisions are Both Unconstitutional and Unnecessary","authors":"Adam Walsh","doi":"10.4135/9781604265774.n1104","DOIUrl":"https://doi.org/10.4135/9781604265774.n1104","url":null,"abstract":"","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"120 1","pages":"189"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77154404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Romer v. Evans and Invidious Intent","authors":"A. Koppelman","doi":"10.2139/ssrn.3753017","DOIUrl":"https://doi.org/10.2139/ssrn.3753017","url":null,"abstract":"","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"73 1","pages":"89-146"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84244637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}