With the mapping of the human genome, genetic privacy has become a concern to many. People care about genetic privacy because genes play an important role in shaping us--our genetic information is about us, and it is deeply connected to our sense of ourselves. In addition, unwanted disclosure of our genetic information, like a great deal of other personal information, makes us vulnerable to unwanted exposure, stigmatization, and discrimination. One recent approach to protecting genetic privacy is to create property rights in genetic information. This Article argues against that approach. Privacy and property are fundamentally different concepts. At heart, the term "property" connotes control within the marketplace and over something that is disaggregated or alienable from the self. "Privacy," in contrast, connotes control over access to the self as well as things close to, intimately connected to, and about the self. Given these different meanings, a regime of property rights in genetic information would impoverish our understanding of that information, ourselves, and the relationships we hope will be built around and through its disclosure. This Article explores our interests in genetic information in order to deepen our understanding of the ongoing discourse about the distinction between property and privacy. It develops a conception of genetic privacy with a strong relational component. We ordinarily share genetic information in the context of relationships in which disclosure is important to the relationship--family, intimate, doctor-patient, researcher-participant, employer-employee, and insurer-insured relationships. Such disclosure makes us vulnerable to and dependent on the person to whom we disclose it. As a result, trust is essential to the integrity of these relationships and our sharing of genetic information. Genetic privacy can protect our vulnerability in these relationships and enhance the trust we hope to have in them. Property, in contrast, by connoting commodification, disaggregation, and arms-length dealings, can negatively affect the self and harm these relationships. This Article concludes that a deeper understanding of genetic privacy calls for remedies for privacy violations that address dignitary harm and breach of trust, as opposed to market harms, as the property model suggests.
{"title":"Disentangling privacy from property: toward a deeper understanding of genetic privacy.","authors":"Sonia M Suter","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>With the mapping of the human genome, genetic privacy has become a concern to many. People care about genetic privacy because genes play an important role in shaping us--our genetic information is about us, and it is deeply connected to our sense of ourselves. In addition, unwanted disclosure of our genetic information, like a great deal of other personal information, makes us vulnerable to unwanted exposure, stigmatization, and discrimination. One recent approach to protecting genetic privacy is to create property rights in genetic information. This Article argues against that approach. Privacy and property are fundamentally different concepts. At heart, the term \"property\" connotes control within the marketplace and over something that is disaggregated or alienable from the self. \"Privacy,\" in contrast, connotes control over access to the self as well as things close to, intimately connected to, and about the self. Given these different meanings, a regime of property rights in genetic information would impoverish our understanding of that information, ourselves, and the relationships we hope will be built around and through its disclosure. This Article explores our interests in genetic information in order to deepen our understanding of the ongoing discourse about the distinction between property and privacy. It develops a conception of genetic privacy with a strong relational component. We ordinarily share genetic information in the context of relationships in which disclosure is important to the relationship--family, intimate, doctor-patient, researcher-participant, employer-employee, and insurer-insured relationships. Such disclosure makes us vulnerable to and dependent on the person to whom we disclose it. As a result, trust is essential to the integrity of these relationships and our sharing of genetic information. Genetic privacy can protect our vulnerability in these relationships and enhance the trust we hope to have in them. Property, in contrast, by connoting commodification, disaggregation, and arms-length dealings, can negatively affect the self and harm these relationships. This Article concludes that a deeper understanding of genetic privacy calls for remedies for privacy violations that address dignitary harm and breach of trust, as opposed to market harms, as the property model suggests.</p>","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25879705","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":null,"pages":null},"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}
The purpose of this Article is to explore whether the United States should amend its international tax rules in ways that might encourage U.S. companies to invest in developing countries. Some scholars, notably Professor Karen Brown, have argued that the current U.S. international tax regime works against the interests of developing countries and should be replaced by one that, she asserts, would benefit developing countries in general and African nations in particular.1 She has proposed that the United States replace its foreign tax credit mechanism with an exemption system for developing countries, at the least for Africa. One of the reasons for the proposal is that, as explained below, the current U.S. system prevents developing countries from offering tax incentives, such as tax holidays, to attract foreign direct investment (FDI) by U.S. multinational corporations (MNCs). Certainly, it is the case that little U.S. FDI finds its way to developing countries. At the end of 2001, total U.S.-owner assets earned abroad totaled $6.2 trillion (valued at cost). But the following shows how little of these assets were in developing countries (in $ billions):2 There is thus a real shortfall in U.S. FDI in developing countries as compared to its FDI in other developed countries. But, proposals such as the one put forward by Professor Brown raise several questions. Is FDI an unqualified good for developing countries? What are the determinants in the location of FDI? Are tax incentives offered by developing countries effective in attracting FDI, even in situations where home country tax rules do not thwart them? Can tax incentives alone attract FDI or are there necessary preconditions a developing country must satisfy before there is FDI at all? Are home country unilateral tax incentives effective in increasing FDI by its MNCs? Is it better for developed countries to assist developing countries by offering tax subsidies to its MNCs or by providing direct financial assistance to developing countries? This paper is an effort to explore these questions to see where the evidence supports clear answers and where it is inconclusive. Part I of this Article provides a broad overview of international tax systems, which countries can adopt, with particular attention to aspects of the system adopted by the United States. Part II examines how, and under what circumstances, the current U.S. system defeats the objectives of developing countries in offering tax holidays to U.S. MNCs. It then proposes a structural solution that would address the problem in the context of the ciirrent system. It is, of course, possible that the proposal would not be acceptable to the U.S. Treasury or to developing countries in general. Thus, the remainder of this Article examines Professor Brown's proposal and others that might be considered in meeting the objectives of increasing the FDI of U.S. MNCs in developing countries. Part III identifies the economic, social, and political factors
{"title":"The U.S. Tax Treatment of Foreign Source Income Earned in Developing Countries: A Policy Analysis","authors":"P. McDaniel","doi":"10.2139/SSRN.476581","DOIUrl":"https://doi.org/10.2139/SSRN.476581","url":null,"abstract":"The purpose of this Article is to explore whether the United States should amend its international tax rules in ways that might encourage U.S. companies to invest in developing countries. Some scholars, notably Professor Karen Brown, have argued that the current U.S. international tax regime works against the interests of developing countries and should be replaced by one that, she asserts, would benefit developing countries in general and African nations in particular.1 She has proposed that the United States replace its foreign tax credit mechanism with an exemption system for developing countries, at the least for Africa. One of the reasons for the proposal is that, as explained below, the current U.S. system prevents developing countries from offering tax incentives, such as tax holidays, to attract foreign direct investment (FDI) by U.S. multinational corporations (MNCs). Certainly, it is the case that little U.S. FDI finds its way to developing countries. At the end of 2001, total U.S.-owner assets earned abroad totaled $6.2 trillion (valued at cost). But the following shows how little of these assets were in developing countries (in $ billions):2 There is thus a real shortfall in U.S. FDI in developing countries as compared to its FDI in other developed countries. But, proposals such as the one put forward by Professor Brown raise several questions. Is FDI an unqualified good for developing countries? What are the determinants in the location of FDI? Are tax incentives offered by developing countries effective in attracting FDI, even in situations where home country tax rules do not thwart them? Can tax incentives alone attract FDI or are there necessary preconditions a developing country must satisfy before there is FDI at all? Are home country unilateral tax incentives effective in increasing FDI by its MNCs? Is it better for developed countries to assist developing countries by offering tax subsidies to its MNCs or by providing direct financial assistance to developing countries? This paper is an effort to explore these questions to see where the evidence supports clear answers and where it is inconclusive. Part I of this Article provides a broad overview of international tax systems, which countries can adopt, with particular attention to aspects of the system adopted by the United States. Part II examines how, and under what circumstances, the current U.S. system defeats the objectives of developing countries in offering tax holidays to U.S. MNCs. It then proposes a structural solution that would address the problem in the context of the ciirrent system. It is, of course, possible that the proposal would not be acceptable to the U.S. Treasury or to developing countries in general. Thus, the remainder of this Article examines Professor Brown's proposal and others that might be considered in meeting the objectives of increasing the FDI of U.S. MNCs in developing countries. Part III identifies the economic, social, and political factors ","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86187467","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 the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.
{"title":"Judicial Review and the War on Terrorism","authors":"J. Yoo","doi":"10.2139/SSRN.461721","DOIUrl":"https://doi.org/10.2139/SSRN.461721","url":null,"abstract":"This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67738937","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}
Globalization and Its Discontents by Joseph Stiglitz is an insider's account of the failings of the Bretton Woods institutions during the Clinton Administration. The author, the 2001 Nobel laureate in economics, gives an insider's view of the role played by the Bretton Woods institutions in the globalization process. Professor Stiglitz's presents several case studies to illustrate how the IMF, with the aid and encouragement of the U.S. Treasury Department, failed to properly manage a number of financial crises that took place during the last decade of the 20th Century. Regrettably, his account is nothing less than a diatribe - unfortunately at times personalized - attacking the entire Bretton Woods system, and in particular the IMF. Stiglitz makes no pretense of being balanced or of writing a scholarly work. Globalization and Its Discontents generates a tremendous amount of heat, but sheds very little light on a critically important subject.
约瑟夫•斯蒂格利茨(Joseph Stiglitz)的《全球化及其不满》(Globalization and Its Discontents)是一位内部人对克林顿政府时期布雷顿森林体系失败的描述。作者是2001年诺贝尔经济学奖得主，他从局内人的角度阐述了布雷顿森林体系在全球化进程中所扮演的角色。斯蒂格利茨教授提出了几个案例研究，以说明国际货币基金组织如何在美国财政部的帮助和鼓励下，未能妥善管理发生在20世纪最后十年的一系列金融危机。令人遗憾的是，他的描述完全是对整个布雷顿森林体系的抨击——不幸的是，有时是个人化的——尤其是对国际货币基金组织。斯蒂格利茨并没有假装自己是平衡的，也没有假装在写一本学术著作。《全球化及其不满》引起了巨大的热议，但对一个至关重要的问题却知之甚少。
{"title":"A Review of Globalization and its Discontents","authors":"K. Kennedy","doi":"10.2139/SSRN.460481","DOIUrl":"https://doi.org/10.2139/SSRN.460481","url":null,"abstract":"Globalization and Its Discontents by Joseph Stiglitz is an insider's account of the failings of the Bretton Woods institutions during the Clinton Administration. The author, the 2001 Nobel laureate in economics, gives an insider's view of the role played by the Bretton Woods institutions in the globalization process. Professor Stiglitz's presents several case studies to illustrate how the IMF, with the aid and encouragement of the U.S. Treasury Department, failed to properly manage a number of financial crises that took place during the last decade of the 20th Century. Regrettably, his account is nothing less than a diatribe - unfortunately at times personalized - attacking the entire Bretton Woods system, and in particular the IMF. Stiglitz makes no pretense of being balanced or of writing a scholarly work. Globalization and Its Discontents generates a tremendous amount of heat, but sheds very little light on a critically important subject.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85398401","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}
Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they'll quickly learn that it's surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.This Article presents a user's guide to the SCA. It explains in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of electronic communication service and remote computing service, and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.
{"title":"A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it","authors":"Orin S. Kerr","doi":"10.2139/SSRN.421860","DOIUrl":"https://doi.org/10.2139/SSRN.421860","url":null,"abstract":"Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they'll quickly learn that it's surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.This Article presents a user's guide to the SCA. It explains in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of electronic communication service and remote computing service, and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68734955","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, using a law and behavioral economics perspective, carves out a "signaling exception" to the general rule that Presidents must ratify national security accords as treaties and international trade accords as congressional-executive agreements. Under this signaling exception, the President can submit national security accords as congressional-executive agreements when 1) the accord is temporary, and 2) the accord signals that the United States has engaged in learning behavior (as described in the political science literature) about the nature of international affairs. Signaling behavior is particularly common in temporary agreements. The interim nature of such agreements allows the United States to signal incremental trust in its counterparties while hedging its risk. Using the SALT I accords as a case study, this Article locates the President's power to signal in the well-accepted sole communication power, which, under the signaling exception, trumps the Senate's right to advise and consent when the accord in question contains a disproportionate signaling component vis-a-vis its substantive, bargained-for component. Presidents could thus send signals in the form of sole executive agreements or congressional-executive agreements. The Constitution requires the latter vehicle because signals display network effects; they become more credible to foreign powers, and hence more valuable, with congressional support.
{"title":"Signaling Behavior, Congressional-Executive Agreements, and the SALT I Interim Agreement","authors":"Christopher B. Stone","doi":"10.2139/SSRN.379280","DOIUrl":"https://doi.org/10.2139/SSRN.379280","url":null,"abstract":"This Article, using a law and behavioral economics perspective, carves out a \"signaling exception\" to the general rule that Presidents must ratify national security accords as treaties and international trade accords as congressional-executive agreements. Under this signaling exception, the President can submit national security accords as congressional-executive agreements when 1) the accord is temporary, and 2) the accord signals that the United States has engaged in learning behavior (as described in the political science literature) about the nature of international affairs. Signaling behavior is particularly common in temporary agreements. The interim nature of such agreements allows the United States to signal incremental trust in its counterparties while hedging its risk. Using the SALT I accords as a case study, this Article locates the President's power to signal in the well-accepted sole communication power, which, under the signaling exception, trumps the Senate's right to advise and consent when the accord in question contains a disproportionate signaling component vis-a-vis its substantive, bargained-for component. Presidents could thus send signals in the form of sole executive agreements or congressional-executive agreements. The Constitution requires the latter vehicle because signals display network effects; they become more credible to foreign powers, and hence more valuable, with congressional support.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88418855","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 this article, we re-examine, from an empirical perspective, the debate about Japanese legal consciousness. In particular, we analyze the result of a survey we conducted among Japanese law and business students to determine their attitudes towards the use of contracts as a device to order economic exchanges. We hypothesized that if the generally accepted view of Japanese attitudes towards law were correct, Japanese respondents who had not studied law and therefore possessed the "traditional Japanese attitudes" towards law would be relatively disinclined to urge strict compliance with the terms of a contract. Respondents who had studied law, on the other hand, we hypothesized, would be more inclined to see the contract enforced as written. In other words, legal education would imbue in its recipients an "American" attitude towards law, that is, a preference for strict adherence to the precise contractual terms. The data suggested just the opposite. Law students had a decided preference, over their non-law counterparts, for flexibility in the interpretation and execution of contracts. The more law students studied, the stronger that preference. This preference seems to decline, however, when law students are placed in an advisory, as opposed to advocacy role. We also observed significant gender based differences, with women preferring flexibility to a significant degree over men. Some regional differences were also observed, but were comparatively minor. Finally, we also explored whether respondents were inclined to favor a company because it was Japanese. Generally speaking, we did not observe such bias in most cases. But interesting exceptions were found. For example, we observed some degree of bias against Japanese companies in cases in which the opposing company was Korean or Chinese. And when the opposing company was American, only law students exhibited any national bias in favor of the Japanese company. Non-law students did not show any bias in favor of companies from Japan in any of the samples.
{"title":"Japanese Attitudes Towards Contracts: An Empirical Wrinkle in the Debate","authors":"Michael K. Young, Masanobu Kato, A. Fujimoto","doi":"10.2139/SSRN.363400","DOIUrl":"https://doi.org/10.2139/SSRN.363400","url":null,"abstract":"In this article, we re-examine, from an empirical perspective, the debate about Japanese legal consciousness. In particular, we analyze the result of a survey we conducted among Japanese law and business students to determine their attitudes towards the use of contracts as a device to order economic exchanges. We hypothesized that if the generally accepted view of Japanese attitudes towards law were correct, Japanese respondents who had not studied law and therefore possessed the \"traditional Japanese attitudes\" towards law would be relatively disinclined to urge strict compliance with the terms of a contract. Respondents who had studied law, on the other hand, we hypothesized, would be more inclined to see the contract enforced as written. In other words, legal education would imbue in its recipients an \"American\" attitude towards law, that is, a preference for strict adherence to the precise contractual terms. The data suggested just the opposite. Law students had a decided preference, over their non-law counterparts, for flexibility in the interpretation and execution of contracts. The more law students studied, the stronger that preference. This preference seems to decline, however, when law students are placed in an advisory, as opposed to advocacy role. We also observed significant gender based differences, with women preferring flexibility to a significant degree over men. Some regional differences were also observed, but were comparatively minor. Finally, we also explored whether respondents were inclined to favor a company because it was Japanese. Generally speaking, we did not observe such bias in most cases. But interesting exceptions were found. For example, we observed some degree of bias against Japanese companies in cases in which the opposing company was Korean or Chinese. And when the opposing company was American, only law students exhibited any national bias in favor of the Japanese company. Non-law students did not show any bias in favor of companies from Japan in any of the samples.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84873527","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}
Judicial review remains one of the American Constitution's most controversial features. It has made American judges some of the most powerful in the world, with a potent role in shaping the everyday lives of Americans. Perhaps for this reason, scholars and judges continue to question its origins and legitimacy, with recent articles appearing in the Harvard Law Review and the Columbia Law Review,' and with Justices Stephen Breyer and David Souter challenging the constitutionality of judicial review in federalism cases. In earlier articles, we laid out the origins of judicial review. Rather than reiterating the affirmative case for judicial review, here we respond directly to the arguments of the leading recent critic, Professor Larry Kramer. We have no quarrel with Professor Kramer's uncontroversial (and indeed, so far as we know, uncontroverted) statement that the Founders envisioned that the Constitution would be enforced through popular means such as voting, petitioning, and mobbing. We likewise agree with his assertion that the Constitution was never meant to enshrine a Cooper v. Aaron type of judicial supremacy. Yet, we profoundly disagree with Professor Kramer's controversial claims that the Constitution, as originally understood, never authorized judicial review, and that the Founders regarded popular constitutional methods as the exclusive means of safeguarding the Constitution. First, Professor Kramer, like Professors Jesse Choper and Herbert Wechsler before him, ignores the constitutional text and structure. Fairly read, the Constitution's text and structure establishes judicial review in a number of ways. Second, the Constitution's text, as well as constitutional practice at the time of the Founding, contradicts Professor Kramer's theory that the Founders meant the Constitution to be a political-legal document ― a document to be enforced exclusively through popular means. Indeed, Professor Kramer's admission that the Constitution is judicially enforceable against the states undermines his own theory. Third, we believe that Professor Kramer has made methodological errors in his use of the historical materials. In particular, he never squares his claims with the secondary historical literature that runs counter to his thesis. Moreover, he implicitly adopts the stance that, in order for something to be historically established, there must be a solely quantitative level of historical proof; in his argument, the quality of the evidence is apparently of no moment. Fourth, the historical evidence, both quantitatively and qualitatively, refutes Professor Kramer's conclusions. The Founders acknowledged that the Constitution authorized judicial review dozens of times, and no Founder appears ever to have argued, during the ratification fight, that the Constitution either barred or did not permit judicial review. Ironically, though Professor Kramer belittles the evidence in favor of the constitutionality of judicial review, there is virtually no
{"title":"Questions for the Critics of Judicial Review","authors":"S. Prakash, J. Yoo","doi":"10.2139/SSRN.2857464","DOIUrl":"https://doi.org/10.2139/SSRN.2857464","url":null,"abstract":"Judicial review remains one of the American Constitution's most controversial features. It has made American judges some of the most powerful in the world, with a potent role in shaping the everyday lives of Americans. Perhaps for this reason, scholars and judges continue to question its origins and legitimacy, with recent articles appearing in the Harvard Law Review and the Columbia Law Review,' and with Justices Stephen Breyer and David Souter challenging the constitutionality of judicial review in federalism cases. In earlier articles, we laid out the origins of judicial review. Rather than reiterating the affirmative case for judicial review, here we respond directly to the arguments of the leading recent critic, Professor Larry Kramer. We have no quarrel with Professor Kramer's uncontroversial (and indeed, so far as we know, uncontroverted) statement that the Founders envisioned that the Constitution would be enforced through popular means such as voting, petitioning, and mobbing. We likewise agree with his assertion that the Constitution was never meant to enshrine a Cooper v. Aaron type of judicial supremacy. Yet, we profoundly disagree with Professor Kramer's controversial claims that the Constitution, as originally understood, never authorized judicial review, and that the Founders regarded popular constitutional methods as the exclusive means of safeguarding the Constitution. First, Professor Kramer, like Professors Jesse Choper and Herbert Wechsler before him, ignores the constitutional text and structure. Fairly read, the Constitution's text and structure establishes judicial review in a number of ways. Second, the Constitution's text, as well as constitutional practice at the time of the Founding, contradicts Professor Kramer's theory that the Founders meant the Constitution to be a political-legal document ― a document to be enforced exclusively through popular means. Indeed, Professor Kramer's admission that the Constitution is judicially enforceable against the states undermines his own theory. Third, we believe that Professor Kramer has made methodological errors in his use of the historical materials. In particular, he never squares his claims with the secondary historical literature that runs counter to his thesis. Moreover, he implicitly adopts the stance that, in order for something to be historically established, there must be a solely quantitative level of historical proof; in his argument, the quality of the evidence is apparently of no moment. Fourth, the historical evidence, both quantitatively and qualitatively, refutes Professor Kramer's conclusions. The Founders acknowledged that the Constitution authorized judicial review dozens of times, and no Founder appears ever to have argued, during the ratification fight, that the Constitution either barred or did not permit judicial review. Ironically, though Professor Kramer belittles the evidence in favor of the constitutionality of judicial review, there is virtually no ","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"E-formed consent: evaluating the interplay between interactive technology and informed consent.","authors":"Peter Brensilver","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579571","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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