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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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.
{"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":null,"pages":null},"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}
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