We have witnessed an increasing interest in reparations over the past decade, an interest derived from episodes both domestic and international, ranging historically from the legacy of slavery in the United States to events occurring these past ten years in Iraq and the Horn of Africa.1 One principal event, which not only generated most of the reparations activities and discourse of the past half-century but which has also been the subject of much of the litigation and negotiations of the most recent period, is the German payment of reparations arising out of World War II atrocities. 2 German reparations have also been at the center of the single most critical and controversial evolution of public international law in the past century; namely, the movement from state-centered to societaland individual-centered rights and obligations. This evolution has its substantive focus in the field of international human rights, and its procedural focus in the increasingly contested primacy of state reparations over direct individual claims for compensation and restitution. Both issues arose in and are illuminated by the history of German reparations and compensation or restitution payments.
{"title":"A Legal History of International Reparations","authors":"R. Buxbaum","doi":"10.15779/Z38J936","DOIUrl":"https://doi.org/10.15779/Z38J936","url":null,"abstract":"We have witnessed an increasing interest in reparations over the past decade, an interest derived from episodes both domestic and international, ranging historically from the legacy of slavery in the United States to events occurring these past ten years in Iraq and the Horn of Africa.1 One principal event, which not only generated most of the reparations activities and discourse of the past half-century but which has also been the subject of much of the litigation and negotiations of the most recent period, is the German payment of reparations arising out of World War II atrocities. 2 German reparations have also been at the center of the single most critical and controversial evolution of public international law in the past century; namely, the movement from state-centered to societaland individual-centered rights and obligations. This evolution has its substantive focus in the field of international human rights, and its procedural focus in the increasingly contested primacy of state reparations over direct individual claims for compensation and restitution. Both issues arose in and are illuminated by the history of German reparations and compensation or restitution payments.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67488985","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}
The study and practice of transitional justice analyzes policy choices made by regimes emerging from armed conflict and/or authoritarian rule with regard to accountability for past abuses, stability, reform, and democratization. Transitional justice emerged as a policy problem and subject of study during political transitions from dictatorships in the late 1970s in Southern European countries such as Greece and Spain, and, more recently, evolved dramatically with the transitions in Latin America and Eastern Europe in countries ranging from Argentina and Guatemala to Poland and Lithuania.1 Most literature on the subject starts with a discussion of states emerging from authoritarian rule, civil
{"title":"Transitional Justice Comes of Age: Enduring Lessons and Challenges","authors":"C. Sriram","doi":"10.2202/1539-8323.1086","DOIUrl":"https://doi.org/10.2202/1539-8323.1086","url":null,"abstract":"The study and practice of transitional justice analyzes policy choices made by regimes emerging from armed conflict and/or authoritarian rule with regard to accountability for past abuses, stability, reform, and democratization. Transitional justice emerged as a policy problem and subject of study during political transitions from dictatorships in the late 1970s in Southern European countries such as Greece and Spain, and, more recently, evolved dramatically with the transitions in Latin America and Eastern Europe in countries ranging from Argentina and Guatemala to Poland and Lithuania.1 Most literature on the subject starts with a discussion of states emerging from authoritarian rule, civil","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1086","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564619","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 Tribute To Richard Buxbaum","authors":"J. Gordley","doi":"10.2202/1539-8323.1076","DOIUrl":"https://doi.org/10.2202/1539-8323.1076","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1076","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564800","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}
* Professor of Law, Golden Gate University School of Law; Ph.D. Candidate in Jurisprudence and Social Policy, University of California, Berkeley; and Visiting Scholar, University of Cologne Legal Centre for European and International Cooperation (R.I.Z.). Thanks are owed to Golden Gate University for generous research support, to R.I.Z. for providing a stimulating and supportive work environment, and to Hannah Luise Buxbaum for comments on an earlier version of this article. The author is a naturalized American citizen who was born in Germany to American parents. She is not now, nor has she ever been, a national or citizen of Germany, though she feels at home there.
{"title":"Belonging: Citizenship and Migration in the European Union and in Germany","authors":"H. Hartnell","doi":"10.2202/1539-8323.1087","DOIUrl":"https://doi.org/10.2202/1539-8323.1087","url":null,"abstract":"* Professor of Law, Golden Gate University School of Law; Ph.D. Candidate in Jurisprudence and Social Policy, University of California, Berkeley; and Visiting Scholar, University of Cologne Legal Centre for European and International Cooperation (R.I.Z.). Thanks are owed to Golden Gate University for generous research support, to R.I.Z. for providing a stimulating and supportive work environment, and to Hannah Luise Buxbaum for comments on an earlier version of this article. The author is a naturalized American citizen who was born in Germany to American parents. She is not now, nor has she ever been, a national or citizen of Germany, though she feels at home there.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1087","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68565067","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":"Mass Claims Proceedings in Practice A Few Lessons Learned","authors":"Pierre A. Karrer","doi":"10.2202/1539-8323.1083","DOIUrl":"https://doi.org/10.2202/1539-8323.1083","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1083","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564884","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 Unwarranted Conclusions Drawn From Vincent v. Lake Erie Transportation Co. Concerning The Defense Of Necessity","authors":"George C. Christie","doi":"10.2202/1539-8323.1074","DOIUrl":"https://doi.org/10.2202/1539-8323.1074","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1074","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564791","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}
Robert Cover's well known article Nomos and Narrative is a passionately argued defense of a new way of applying narrative to the philosophy and understanding of law. In my article, I argue that there are four major problems which lie at the heart of Cover's analysis. Each problem addresses a major area of his overall view of law. I try to demonstrate that in each case, if the problem is real, Cover's view of law should be rejected. The primary difficulty is analytical and argumentative sloppiness in Cover's arguments. My conclusion is simple: Cover's view of law is both underdeveloped and theoretically unsafe. It falls victim to each of the four problems I identify. As a result, his philosophy of law should be rejected tout court.
Robert Cover的著名文章Nomos和Narrative是对一种将叙事应用于哲学和法律理解的新方式的热烈辩护。在我的文章中，我认为在Cover的分析中存在四个主要问题。每一个问题都涉及到他的整体法律观的一个主要领域。我试图证明，在每一种情况下，如果问题是真实的，Cover的法律观点应该被拒绝。主要的困难在于Cover的论证中分析和论证的马虎。我的结论很简单:盖的法律观既不发达，在理论上也不安全。它是我所指出的四个问题的受害者。因此，他的法律哲学应该被全盘否定。
{"title":"Let a Thousand Nomoi Bloom? Four Problems with Robert Cover's Nomos and Narrative","authors":"Thom Brooks","doi":"10.2202/1539-8323.1071","DOIUrl":"https://doi.org/10.2202/1539-8323.1071","url":null,"abstract":"Robert Cover's well known article Nomos and Narrative is a passionately argued defense of a new way of applying narrative to the philosophy and understanding of law. In my article, I argue that there are four major problems which lie at the heart of Cover's analysis. Each problem addresses a major area of his overall view of law. I try to demonstrate that in each case, if the problem is real, Cover's view of law should be rejected. The primary difficulty is analytical and argumentative sloppiness in Cover's arguments. My conclusion is simple: Cover's view of law is both underdeveloped and theoretically unsafe. It falls victim to each of the four problems I identify. As a result, his philosophy of law should be rejected tout court.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1071","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564496","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}
One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes.
{"title":"German Legal Culture and the Globalization of Competition Law: A Historical Perspective on the Expansion of Private Antitrust Enforcement","authors":"Hannah L. Buxbaum","doi":"10.2202/1539-8323.1084","DOIUrl":"https://doi.org/10.2202/1539-8323.1084","url":null,"abstract":"One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1084","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564455","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}
This paper suggests that Robert Cover`s project of distancing courts from state violence is doomed to failure. Disagreements between the nomoi postulated by Cover are matters of incommensurable value judgements, in relation to which legal rationality is inappropriate. Disagreement between nomoi is more plausibly regarded as a matter of feeling rather than rationality and expressed by the notions of the sublime and the beautiful as advanced by Edmund Burke. Furthermore, according to Cover`s premise, the nomos of a community can be externally evaluated only from the perspective of another nomos so that the notion of an objective standpoint apparently represented by Cover`s `imperial community` seems to be contradictory. The notion of a court with a `committed constitutionalism` of its own but having no privileged status also seems contradictory since it allows judges to wash their hands of responsibility for their decisions (in a manner reminiscent of Pontius Pilate). If this is so, then the court is not the most appropriate mechanism to make choices between competing value systems and violence may be avoided only by appealing to sentiment as the basis for a modus vivendi. This approach reflects Cover`s insistence that a community is held together by non-rational factors and may provide the basis for a more vibrant democratic political process.
{"title":"Robert Cover's 'Nomos and Narrative': The Court as Philosopher King or Pontius Pilate?","authors":"J. Alder","doi":"10.2202/1539-8323.1072","DOIUrl":"https://doi.org/10.2202/1539-8323.1072","url":null,"abstract":"This paper suggests that Robert Cover`s project of distancing courts from state violence is doomed to failure. Disagreements between the nomoi postulated by Cover are matters of incommensurable value judgements, in relation to which legal rationality is inappropriate. Disagreement between nomoi is more plausibly regarded as a matter of feeling rather than rationality and expressed by the notions of the sublime and the beautiful as advanced by Edmund Burke. Furthermore, according to Cover`s premise, the nomos of a community can be externally evaluated only from the perspective of another nomos so that the notion of an objective standpoint apparently represented by Cover`s `imperial community` seems to be contradictory. The notion of a court with a `committed constitutionalism` of its own but having no privileged status also seems contradictory since it allows judges to wash their hands of responsibility for their decisions (in a manner reminiscent of Pontius Pilate). If this is so, then the court is not the most appropriate mechanism to make choices between competing value systems and violence may be avoided only by appealing to sentiment as the basis for a modus vivendi. This approach reflects Cover`s insistence that a community is held together by non-rational factors and may provide the basis for a more vibrant democratic political process.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"65 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1072","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564699","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}
Robert Cover’s argument in Nomos and Narrative applies to a system of municipal law (that of the U.S.A.). This article seeks to demonstrate that Cover’s claims concerning nomoi and narratives have relevance to relations between the United Kingdom and the European Union (a non-municipal context, in which the concept of supranationalism figures prominently). While making this move from a municipal to a non-municipal setting, central strands in Cover’s argument are explained or developed by reference to the literary theory of Mikhail Bakhtin, communitarian political philosophy, and the writings of Isaiah Berlin and Joseph Raz on value incommensurability. Along with Cover, these writers are used to analyse a clash between a narrative of redemption (associated with the pursuit of European integration) and British narratives of insularity (which run on, among other things, the themes of independence and sovereignty). This essay concludes by identifying these two types of narratives as standing in a relationship of ineliminable tension.
Robert Cover在《Nomos and Narrative》中的论述适用于(美国的)地方法律体系。本文试图证明Cover关于nomoi和叙事的主张与英国和欧盟之间的关系有关(一个非市政背景，超国家主义的概念在其中占有突出地位)。在从城市到非城市的转变过程中，Cover的论点的核心部分是通过参考米哈伊尔·巴赫金的文学理论、社群主义政治哲学以及以赛亚·伯林和约瑟夫·拉兹关于价值不可通约性的著作来解释或发展的。除了Cover，这些作者还被用来分析救赎叙事(与追求欧洲一体化有关)和英国狭隘叙事(以独立和主权为主题)之间的冲突。本文的结论是，这两种类型的叙事处于一种不可消除的紧张关系中。
{"title":"Two Nomoi and a Clash of Narratives: The Story of the United Kingdom and the European Union","authors":"R. Mullender","doi":"10.2202/1539-8323.1073","DOIUrl":"https://doi.org/10.2202/1539-8323.1073","url":null,"abstract":"Robert Cover’s argument in Nomos and Narrative applies to a system of municipal law (that of the U.S.A.). This article seeks to demonstrate that Cover’s claims concerning nomoi and narratives have relevance to relations between the United Kingdom and the European Union (a non-municipal context, in which the concept of supranationalism figures prominently). While making this move from a municipal to a non-municipal setting, central strands in Cover’s argument are explained or developed by reference to the literary theory of Mikhail Bakhtin, communitarian political philosophy, and the writings of Isaiah Berlin and Joseph Raz on value incommensurability. Along with Cover, these writers are used to analyse a clash between a narrative of redemption (associated with the pursuit of European integration) and British narratives of insularity (which run on, among other things, the themes of independence and sovereignty). This essay concludes by identifying these two types of narratives as standing in a relationship of ineliminable tension.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1073","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564740","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}
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