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).
{"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}
From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students, in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence — and most significantly — constitutional law. Harlan’s lectures on constitutional law would have been lost to history, but for the enterprising initiative — and remarkable note-taking — of one of Harlan’s students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent the transcripts to the second Justice Harlan. The papers were ultimately deposited in the Library of Congress. Though much attention has been given to the life and jurisprudence of Justice Harlan, his lectures have been largely ignored. Harlan’s lectures are a treasure trove of insights into his jurisprudence, as well as the state of constitutional law at the turn of the 20th century. They provide the unique opportunity to listen in as one of our greatest Justices lectures on the precipice of a constitutional revolution that he helped create. In this article, we use the lectures to paint a picture of who Justice Harlan was, what he believed, how he sought to impart that knowledge to the future lawyers of America, and how he predicted many of the changes in constitutional law that occurred during the 20th century.This article, along with the annotated transcript of all twenty-seven lectures (http://ssrn.com/abstract=2003116), written on the centennial of Justice Harlan’s death, is a tribute to one of the giants of the law, and his contribution to legal education.
{"title":"Justice John Marshall Harlan Professor of Law","authors":"Brian L. Frye, J. Blackman, Michael B. McCloskey","doi":"10.2139/SSRN.1403917","DOIUrl":"https://doi.org/10.2139/SSRN.1403917","url":null,"abstract":"From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students, in classes as diverse as property, torts, conflicts of law, jurisprudence, domestic relations, commercial law, evidence — and most significantly — constitutional law. Harlan’s lectures on constitutional law would have been lost to history, but for the enterprising initiative — and remarkable note-taking — of one of Harlan’s students, George Johannes. During the 1897-98 academic year, George Johannes and a classmate transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent the transcripts to the second Justice Harlan. The papers were ultimately deposited in the Library of Congress. Though much attention has been given to the life and jurisprudence of Justice Harlan, his lectures have been largely ignored. Harlan’s lectures are a treasure trove of insights into his jurisprudence, as well as the state of constitutional law at the turn of the 20th century. They provide the unique opportunity to listen in as one of our greatest Justices lectures on the precipice of a constitutional revolution that he helped create. In this article, we use the lectures to paint a picture of who Justice Harlan was, what he believed, how he sought to impart that knowledge to the future lawyers of America, and how he predicted many of the changes in constitutional law that occurred during the 20th century.This article, along with the annotated transcript of all twenty-seven lectures (http://ssrn.com/abstract=2003116), written on the centennial of Justice Harlan’s death, is a tribute to one of the giants of the law, and his contribution to legal education.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"81 1","pages":"1063-1134"},"PeriodicalIF":1.5,"publicationDate":"2009-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175611","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}
What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents. The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their "unflagging obligation" to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem. This article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The article concludes that courts should adopt a modified lis pendens principle, and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction over the case under U.S. jurisdictional principles. This approach - pragmatic in its orientation, yet also more theoretically coherent than current law - would help avoid the wastes inherent in duplicative litigation, and better serve long-term U.S. interests.
{"title":"Duplicative Foreign Litigation","authors":"Austen L. Parrish","doi":"10.2139/SSRN.1356177","DOIUrl":"https://doi.org/10.2139/SSRN.1356177","url":null,"abstract":"What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents. The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their \"unflagging obligation\" to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem. This article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The article concludes that courts should adopt a modified lis pendens principle, and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction over the case under U.S. jurisdictional principles. This approach - pragmatic in its orientation, yet also more theoretically coherent than current law - would help avoid the wastes inherent in duplicative litigation, and better serve long-term U.S. interests.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2009-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168601","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}
From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States. Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the present. I discuss the general content of American civil religion, and then briefly examine how it has been deployed to sacralize four historical 'moments' in American history, the Founding, the Civil War, the Cold War, and the contemporary Culture Wars. I argue that religious pluralism and sectarian activism in the United States make a unifying civil religion improbable from a practical standpoint, and that the tendency of civil religion to devolve into idolatry, i.e., the sanctification of the government and its goals, makes it normatively unattractive, particularly for religious minorities. I close by suggesting that American civil religion can genuinely include and unify all Americans only if it drops its religious component, and that American society has sufficient cultural resources to inform a 'secular' civil religion.This paper was delivered at a symposium entitled 'Civil Religion in the United States and Europe: Four Comparative Perspectives,' held at Brigham Young University Law School on March 12-14, 2009.
{"title":"American Civil Religion: An Idea Whose Time Is Past","authors":"F. M. Gedicks","doi":"10.2139/SSRN.1440351","DOIUrl":"https://doi.org/10.2139/SSRN.1440351","url":null,"abstract":"From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States. Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the present. I discuss the general content of American civil religion, and then briefly examine how it has been deployed to sacralize four historical 'moments' in American history, the Founding, the Civil War, the Cold War, and the contemporary Culture Wars. I argue that religious pluralism and sectarian activism in the United States make a unifying civil religion improbable from a practical standpoint, and that the tendency of civil religion to devolve into idolatry, i.e., the sanctification of the government and its goals, makes it normatively unattractive, particularly for religious minorities. I close by suggesting that American civil religion can genuinely include and unify all Americans only if it drops its religious component, and that American society has sufficient cultural resources to inform a 'secular' civil religion.This paper was delivered at a symposium entitled 'Civil Religion in the United States and Europe: Four Comparative Perspectives,' held at Brigham Young University Law School on March 12-14, 2009.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"48 1","pages":"891"},"PeriodicalIF":1.5,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83744012","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}
In a recent paper, Professor Robert Ahdieh argues that the debate about whether corporate law federalism leads to a race to the top or the bottom is pointless because state corporate law has little to do with the quality of corporate governance. Ahdieh thinks that markets, like those for corporate control and labor, are what make corporate governance what it is, not state competition for corporate charters. This essay, which will appear in the George Washington Law Review as part of a colloquy on Ahdieh's thought-provoking paper, argues that the race debate matters because while the market for corporate control disciplines managers, it is competition among states that disciplines states from distorting the market for corporate control. After showing that the race debate matters, the essay then tries to explain the persistence and ideological valence of the debate. Why is it that the debate continues despite innumerable empirical and theoretical studies on both sides, and why is it that defenders of the federalism model are mostly conservatives and critics are mostly liberals? The answer to both questions is that the race debate is really a conflict between two visions of corporate law held by these groups. Using the framework developed by Thomas Sowell, the essay shows how the split in the academic community about the optimality of the corporate law model can be explained by one's faith in experts (what Sowell calls the "unconstrained" vision) or by one's faith in processes, like markets (what Sowell calls the "constrained" vision). The essay then offers some preliminary thoughts on the implications of this description for corporate law scholarship and some ideas on how to move the debate forward.
在最近的一篇论文中，罗伯特•阿迪耶(Robert Ahdieh)教授认为，关于公司法联邦制是否会导致竞争的争论毫无意义，因为州公司法与公司治理的质量几乎没有关系。Ahdieh认为，市场，就像公司控制和劳动力市场一样，是公司治理的基础，而不是国家对公司章程的竞争。这篇文章将出现在《乔治华盛顿法律评论》(George Washington Law Review)上，作为对Ahdieh那篇发人深省的论文的讨论的一部分。文章认为，种族辩论很重要，因为虽然公司控制权的市场约束了管理者，但约束各州扭曲公司控制权市场的是各州之间的竞争。在展示了种族辩论的重要性之后，文章试图解释辩论的持久性和意识形态价值。为什么尽管双方都进行了无数的实证和理论研究，辩论仍在继续?为什么联邦主义模式的捍卫者大多是保守派，而批评者大多是自由派?这两个问题的答案是，种族辩论实际上是这些团体对公司法的两种看法之间的冲突。利用托马斯·索威尔(Thomas Sowell)提出的框架，这篇文章展示了学术界关于公司法模型最优性的分歧是如何通过对专家的信任(索威尔称之为“不受约束”的观点)或对市场等过程的信任(索威尔称之为“受约束”的观点)来解释的。然后，本文就这种描述对公司法学术的影响提供了一些初步的想法，并就如何推动辩论提出了一些想法。
{"title":"Two Visions of Corporate Law","authors":"Todd Henderson","doi":"10.2139/SSRN.1328343","DOIUrl":"https://doi.org/10.2139/SSRN.1328343","url":null,"abstract":"In a recent paper, Professor Robert Ahdieh argues that the debate about whether corporate law federalism leads to a race to the top or the bottom is pointless because state corporate law has little to do with the quality of corporate governance. Ahdieh thinks that markets, like those for corporate control and labor, are what make corporate governance what it is, not state competition for corporate charters. This essay, which will appear in the George Washington Law Review as part of a colloquy on Ahdieh's thought-provoking paper, argues that the race debate matters because while the market for corporate control disciplines managers, it is competition among states that disciplines states from distorting the market for corporate control. After showing that the race debate matters, the essay then tries to explain the persistence and ideological valence of the debate. Why is it that the debate continues despite innumerable empirical and theoretical studies on both sides, and why is it that defenders of the federalism model are mostly conservatives and critics are mostly liberals? The answer to both questions is that the race debate is really a conflict between two visions of corporate law held by these groups. Using the framework developed by Thomas Sowell, the essay shows how the split in the academic community about the optimality of the corporate law model can be explained by one's faith in experts (what Sowell calls the \"unconstrained\" vision) or by one's faith in processes, like markets (what Sowell calls the \"constrained\" vision). The essay then offers some preliminary thoughts on the implications of this description for corporate law scholarship and some ideas on how to move the debate forward.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"77 1","pages":"708"},"PeriodicalIF":1.5,"publicationDate":"2009-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68163824","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}
The Bernstein doctrine is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in Act of State cases when it determines that adjudication would not harm U.S. foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. In the more than 50 years since its inception, however, the Bernstein doctrine has expanded far beyond its original intended purpose. As a result, the Bernstein exception has created a host of constitutional and political dilemmas. For example, the Bernstein exception violates the separation of powers doctrine by giving the Executive, through the State Department, unchecked power to determine the outcome of Act of State cases brought in United States courts. This power has most recently been used by the Bush Administration to intercede on behalf of powerful, multi-national corporations in suits brought by individual plaintiffs, who are often the victims of international human rights abuses at the hands of these politically-connected corporations. Moreover, the current Administration has used the Bernstein exception as another means to unconstitutionally expand its power in the purported war on terror. The Bush Administration has been successful in having cases dismissed simply by making the unsubstantiated observation that adjudication in a U.S. court might have a negative effect on a particular foreign government's continued cooperation in fighting terrorism. In short, this article argues that the Bernstein exception should be abolished by the U.S. Supreme Court. While the Executive's views regarding the impact of a particular case on U.S. foreign relations may well be informative, its opinion cannot be dispositive. The judiciary is quite capable of determining the applicability of the Act of State doctrine without intervention by the Executive.
{"title":"Oy Vey! The Bernstein Exception: Rethinking the Doctrine in the Wake of Constitutional Abuses, Corporate Malfeasance and the 'War on Terror'","authors":"B. Frankel","doi":"10.2139/SSRN.1093563","DOIUrl":"https://doi.org/10.2139/SSRN.1093563","url":null,"abstract":"The Bernstein doctrine is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in Act of State cases when it determines that adjudication would not harm U.S. foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. In the more than 50 years since its inception, however, the Bernstein doctrine has expanded far beyond its original intended purpose. As a result, the Bernstein exception has created a host of constitutional and political dilemmas. For example, the Bernstein exception violates the separation of powers doctrine by giving the Executive, through the State Department, unchecked power to determine the outcome of Act of State cases brought in United States courts. This power has most recently been used by the Bush Administration to intercede on behalf of powerful, multi-national corporations in suits brought by individual plaintiffs, who are often the victims of international human rights abuses at the hands of these politically-connected corporations. Moreover, the current Administration has used the Bernstein exception as another means to unconstitutionally expand its power in the purported war on terror. The Bush Administration has been successful in having cases dismissed simply by making the unsubstantiated observation that adjudication in a U.S. court might have a negative effect on a particular foreign government's continued cooperation in fighting terrorism. In short, this article argues that the Bernstein exception should be abolished by the U.S. Supreme Court. While the Executive's views regarding the impact of a particular case on U.S. foreign relations may well be informative, its opinion cannot be dispositive. The judiciary is quite capable of determining the applicability of the Act of State doctrine without intervention by the Executive.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"15 1","pages":"67"},"PeriodicalIF":1.5,"publicationDate":"2008-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81688887","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}
Pub Date : 2008-01-01DOI: 10.1093/acprof:oso/9780199204908.003.0009
D. Joyner
This Article will discuss the normative question of what should be the character of the rules and institutions of international law covering international uses of force, in the age of proliferation of weapons of mass destruction (WMD) technologies. It will posit that international use of force law is currently in a state of crisis, precipitated by the proliferation of WMD technologies and the revised set of national security calculations, which determine when and why states choose to use force internationally, that have been thrust upon states as a result. It will review a number of options which have been proposed for changing the substance of international laws and institutions which currently regulate this area, in order to make them responsive to this change in international security realities, and more effective and useful to states. However it will conclude that none of these proposals truly grasps the nettle of the problems facing states in the post-proliferated age, and the challenge of designing and maintaining effective and supportable rules and institutions in this area. It will argue that more fundamental changes to the character of these rules and institutions are necessary if they are to fulfill a needed role in providing standards for international behavior in this most vital area of international relations. Using both international legal theory and international relations theory, it will argue specifically that international law regulating uses of force should be deformalized, and maintained not as legally binding rules, but as politically persuasive norms. This change in the character of rules in this area, it will be argued, would help to preserve the integrity of the rest of the formal corpus of international law, while accomplishing virtually the same results in influencing state behavior and in normativizing international relations in this area, as do the current formal rules of the jus ad bellum.
{"title":"Jus Ad Bellum in the Age of WMD Proliferation","authors":"D. Joyner","doi":"10.1093/acprof:oso/9780199204908.003.0009","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199204908.003.0009","url":null,"abstract":"This Article will discuss the normative question of what should be the character of the rules and institutions of international law covering international uses of force, in the age of proliferation of weapons of mass destruction (WMD) technologies. It will posit that international use of force law is currently in a state of crisis, precipitated by the proliferation of WMD technologies and the revised set of national security calculations, which determine when and why states choose to use force internationally, that have been thrust upon states as a result. It will review a number of options which have been proposed for changing the substance of international laws and institutions which currently regulate this area, in order to make them responsive to this change in international security realities, and more effective and useful to states. However it will conclude that none of these proposals truly grasps the nettle of the problems facing states in the post-proliferated age, and the challenge of designing and maintaining effective and supportable rules and institutions in this area. It will argue that more fundamental changes to the character of these rules and institutions are necessary if they are to fulfill a needed role in providing standards for international behavior in this most vital area of international relations. Using both international legal theory and international relations theory, it will argue specifically that international law regulating uses of force should be deformalized, and maintained not as legally binding rules, but as politically persuasive norms. This change in the character of rules in this area, it will be argued, would help to preserve the integrity of the rest of the formal corpus of international law, while accomplishing virtually the same results in influencing state behavior and in normativizing international relations in this area, as do the current formal rules of the jus ad bellum.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"9 1","pages":"233"},"PeriodicalIF":1.5,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72689491","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}
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a "Vermont Yankee II," in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a "Vermont Yankee II" and explain, in light of what we characterize as the "natural reading" of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.
在佛蒙特州扬基核电公司诉NRDC案(435 U.S. 519(1978))中，最高法院一致严厉谴责华盛顿特区巡回法院强迫核管理委员会在没有组织性法规、法规或宪法条款要求的情况下，在通知和评论规则制定中采用发现和交叉询问等程序。佛蒙特州扬基案几乎被普遍认为是最高法院发布的最重要的行政法裁决之一。在过去的三十年里，许多学者，最著名的是保罗·维尔库伊和理查德·皮尔斯，一直在预测并敦促“佛蒙特Yankee II”，即法院同样会使其他行政法理论无效。这些先前对“佛蒙特Yankee II”的要求实际上并不是试图扩展“佛蒙特Yankee”的推理和主张。相反，佛蒙特扬基被用作一个广泛的象征——某种意义上的隐喻——最高法院干预下级法院对机构自由裁量权和自主权的不当干预。在我们看来，有很多重要的行政法理论都与佛蒙特州扬基案判决的最不合理的狭隘理解截然相反。这些理论，从禁止单方面代理接触和规则制定中的预先判断，到扩大了的规则制定建议通知的现代概念，都是重新考虑的时机。在本文中，在阐述了佛蒙特Yankee案的判决之后，我们考察了之前对“佛蒙特Yankee案II”的呼吁，并根据我们所描述的佛蒙特Yankee案的“自然解读”，解释了为什么在规则制定中对单方面联系和机构预判的规定，以及APA通知要求的主流应用，违反了正确理解的佛蒙特Yankee案的判决，以及该判决背后的原则和政策。因此，对佛蒙特州的“洋基二号”来说，拒绝这些学说是合适的目标。
{"title":"Reprocessing Vermont Yankee","authors":"Gary Lawson, J. Beermann","doi":"10.2139/SSRN.926349","DOIUrl":"https://doi.org/10.2139/SSRN.926349","url":null,"abstract":"In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a \"Vermont Yankee II,\" in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a \"Vermont Yankee II\" and explain, in light of what we characterize as the \"natural reading\" of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"75 1","pages":"856"},"PeriodicalIF":1.5,"publicationDate":"2006-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67887896","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}
Place is currently under-theorized in First Amendment jurisprudence. When it has been independently considered at all, place has been conceptualized as nothing more than an inert backdrop for expressive scenes. For more than sixty years, place has been treated as property, a public resource, like air or water, that the government controls. There are many and sustained critiques of the constitutional doctrine of place. But there has been no effort to fundamentally and systematically reconsider place itself. Building upon a forthcoming TEXAS LAW REVIEW article, entitled Speech and Spatial Tactics, this Article fashions a new perspective on place. Drawing upon the work of scholars of place in human geography, anthropology, sociology, and philosophy, the Article sets forth a conception of place that it calls Expressive Place. In contrast to current treatments of place as secondary, inert, given, and binary, Expressive Place is primary to expression, dynamic, constructed, and variable. The Article utilizes the concept of Expressive Place to re-plot the expressive topography, the sum of public space potentially available for expressive activity. The revised topography consists of at least six spatial types that substantially affect First Amendment rights - Embodied, Contested, Inscribed, Tactical, Cyber, and Non-places. The Article offers several prescriptive suggestions in light of this ambitious re-conceptualization of place. A new method by which courts can read place is proposed, as are several specific alterations of the manner in which courts review spatial regulations under the time, place, and manner doctrine.
{"title":"Space, Place and Speech: The Expressive Topography","authors":"Timothy J. Zick","doi":"10.2139/SSRN.854264","DOIUrl":"https://doi.org/10.2139/SSRN.854264","url":null,"abstract":"Place is currently under-theorized in First Amendment jurisprudence. When it has been independently considered at all, place has been conceptualized as nothing more than an inert backdrop for expressive scenes. For more than sixty years, place has been treated as property, a public resource, like air or water, that the government controls. There are many and sustained critiques of the constitutional doctrine of place. But there has been no effort to fundamentally and systematically reconsider place itself. Building upon a forthcoming TEXAS LAW REVIEW article, entitled Speech and Spatial Tactics, this Article fashions a new perspective on place. Drawing upon the work of scholars of place in human geography, anthropology, sociology, and philosophy, the Article sets forth a conception of place that it calls Expressive Place. In contrast to current treatments of place as secondary, inert, given, and binary, Expressive Place is primary to expression, dynamic, constructed, and variable. The Article utilizes the concept of Expressive Place to re-plot the expressive topography, the sum of public space potentially available for expressive activity. The revised topography consists of at least six spatial types that substantially affect First Amendment rights - Embodied, Contested, Inscribed, Tactical, Cyber, and Non-places. The Article offers several prescriptive suggestions in light of this ambitious re-conceptualization of place. A new method by which courts can read place is proposed, as are several specific alterations of the manner in which courts review spatial regulations under the time, place, and manner doctrine.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"16 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.854264","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67844009","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}
There is a tension between citizen participation in environmental enforcement and an agency's discretion to choose the optimal balance between deterrence and cooperative approaches to enforcement. Citizen participation can reduce the costs of monitoring violations and their impacts and can pick up some of the burden of prosecuting violators. Cooperative enforcement can also reduce monitoring costs by encouraging regulated entities to provide information on their regulatory performance and can decrease those entities costs of compliance, as well focusing compliance on violations that cause net harm to the society. Cooperative enforcement, however, itself must be monitored to make sure that the agency does not abuse the discretion granted to it under this approach. At some level, however, citizen participation threatens effective use of cooperative enforcement. Although citizen participation provides a mechanism for controlling agency abuse under the cooperative enforcement model, such participation also scares regulated entities by empowering them to take unreasonable stands, and hence discourages companies from self reporting violations and acting candidly about what it will take to bring their plants into regulatory compliance. This article suggests three approaches to alleviate this tension and thereby capture the benefits of both citizen participation and a balanced model of enforcement. The article shows that although each of these three approaches - tripartism, corporatism and deliberative participation - holds some promise, each also raises significant concerns that prevent it from becoming the principal means of implementing participation in regulatory enforcement.
{"title":"'The Friendship of the People': Citizen Participation in Environmental Enforcement","authors":"M. Seidenfeld","doi":"10.2139/SSRN.509105","DOIUrl":"https://doi.org/10.2139/SSRN.509105","url":null,"abstract":"There is a tension between citizen participation in environmental enforcement and an agency's discretion to choose the optimal balance between deterrence and cooperative approaches to enforcement. Citizen participation can reduce the costs of monitoring violations and their impacts and can pick up some of the burden of prosecuting violators. Cooperative enforcement can also reduce monitoring costs by encouraging regulated entities to provide information on their regulatory performance and can decrease those entities costs of compliance, as well focusing compliance on violations that cause net harm to the society. Cooperative enforcement, however, itself must be monitored to make sure that the agency does not abuse the discretion granted to it under this approach. At some level, however, citizen participation threatens effective use of cooperative enforcement. Although citizen participation provides a mechanism for controlling agency abuse under the cooperative enforcement model, such participation also scares regulated entities by empowering them to take unreasonable stands, and hence discourages companies from self reporting violations and acting candidly about what it will take to bring their plants into regulatory compliance. This article suggests three approaches to alleviate this tension and thereby capture the benefits of both citizen participation and a balanced model of enforcement. The article shows that although each of these three approaches - tripartism, corporatism and deliberative participation - holds some promise, each also raises significant concerns that prevent it from becoming the principal means of implementing participation in regulatory enforcement.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"35 1","pages":"269"},"PeriodicalIF":1.5,"publicationDate":"2004-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67754394","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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