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Articles 1 - 30 of 6398

Full-Text Articles in Law

Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Against Life Without Parole, Judith Lichtenberg Jan 2019

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...


Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt Jan 2019

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...


A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt Jan 2019

A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt

Washington University Jurisprudence Review

Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice ...


Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes Jan 2019

Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes

Washington University Jurisprudence Review

A staple of the American version of democracy is civilian control of the military: we are uncomfortable with politicization of the Armed Forces, and military and other federal laws restrict the political expression of servicemembers (“SMs”) in the Armed Forces, whether they are active- duty members or National Guard or Reserves serving on active duty. These restrictions, while well-intentioned to prevent actual or apparent political partisanship or bias within the military, have the undesired effect of deterring SMs from otherwise healthy political expression. With the advent of the internet and proliferation of social media use, questions regarding SM status and ...


Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu Jan 2019

Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu

Washington University Jurisprudence Review

This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (“EEO”), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law. A restrictive view of antidiscrimination law treats discrimination as an individual instead of structural or societal wrong and looks to addressing future acts of discrimination instead of redressing past and present injustices. An expansive view of antidiscrimination law sees its objective as eradicating conditions of racial subordination. Ethnic ...


Down The Final Stretch: State Societal Settlements’ Res Judicata Repercussions, Ángel R. Oquendo Jan 2019

Down The Final Stretch: State Societal Settlements’ Res Judicata Repercussions, Ángel R. Oquendo

Washington University Global Studies Law Review

Like the chorus in Shakespeare’s Henry the Fifth, those who proceed on behalf of society at large should have both the first and last word. They should possess the capacity to undertake this act of representation, whether in or out of court, with forcefulness and finality. Indeed, a genuine representative should not have to run the risk of others thereafter embarking upon the matter anew and standing in for whomever she is representing, as well as casting aside her effort as irrelevant, insufficient, or illegitimate.

Therefore, a societal settlement, particularly when negotiated by the authorities, may have not only ...


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Using The Anglo-American Respondeat Superior Principle To Assign Responsibility For Worker Statutory Benefits And Protections, Michael C. Harper Jan 2019

Using The Anglo-American Respondeat Superior Principle To Assign Responsibility For Worker Statutory Benefits And Protections, Michael C. Harper

Washington University Global Studies Law Review

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges’ collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat ...


The Failure Of Soft Law To Provide An Equitable Framework For Restitution Of Nazi-Looted Art, Michael J. Birnkrant Jan 2019

The Failure Of Soft Law To Provide An Equitable Framework For Restitution Of Nazi-Looted Art, Michael J. Birnkrant

Washington University Global Studies Law Review

It is estimated that over 20% of the art in Europe was looted by the Nazi regime during World War II. Many pieces were taken by force from Jewish art dealers, and much of the property taken during this period of Nazi spoliation was never returned. Heirs of looted art are still filing claims for restitution in various courts, but the current global patchwork of statutes of limitations and the availability of the “good faith purchaser defense” in many jurisdictions can render proceedings confusing and unjust.

This note explores the current state of the law regarding repatriation of Nazi-looted art ...


The Influence Of Law-And-Economics On The Ideological Center Of Civil Society – The New American Formalism With A European Counterpoint, Sebastia Ciobotaru Jan 2019

The Influence Of Law-And-Economics On The Ideological Center Of Civil Society – The New American Formalism With A European Counterpoint, Sebastia Ciobotaru

Washington University Global Studies Law Review

Law-and-economics has been the dominant methodology in United States’ adjudication and law commentary for nearly 35 years. Because of its efficiency-only approach, law-and-economics has transformed the law itself from the impartial anchor of our social system into a political tool that legitimizes a new “false center.” Consequently, by failing in its role as a neutral force immune to political bias, the practice of law as advocated by law-and-economics constantly aids the neoliberal counter-revolution to commodify most aspects of our lives and foster a generation of corporate consumers bereft of traditional notions of liberty and autonomy. The main drive behind this ...


100% All Natural Ambiguity: A Comparative Approach To Food Labeling Requirements For The Term “Natural” By The Food And Drug Administration And The European Union, Andréa Maehara Jan 2019

100% All Natural Ambiguity: A Comparative Approach To Food Labeling Requirements For The Term “Natural” By The Food And Drug Administration And The European Union, Andréa Maehara

Washington University Global Studies Law Review

Despite being the only regulatory agency empowered to establish definitions for food product labeling, the Food and Drug Administration (FDA) has not formally defined the term “natural.” The FDA’s reluctance to fully define the term increases consumer distrustful of the FDA as a regulatory body and has also led to a dramatic increase in class action lawsuits against major food corporations. This Note will argue that the FDA should issue a formal definition in order to standardize usage of “natural” on food labeling by incorporating the European Union (EU)’s approach. First, this Note will examine the origins of ...


Editorial Board Jan 2018

Editorial Board

Washington University Global Studies Law Review

No abstract provided.


Inclusive Capitalism Based On Binary Economics And Positive International Human Rights In The Age Of Artificial Intelligence, Chris Fleissner Jan 2018

Inclusive Capitalism Based On Binary Economics And Positive International Human Rights In The Age Of Artificial Intelligence, Chris Fleissner

Washington University Global Studies Law Review

The degree to which wage labor will sustain purchasing power over the long term has become a subject of renewed scrutiny in the twenty-first century. Decreasing labor share of compensation for economic growth and the development of disruptive automation technologies approaching human-level intelligence have invited inquiries into the institutions, rules, and norms driving the generation and distribution of earnings from labor and capital, the concentration of wealth, and access to opportunities to participate in the global economy.

This Note considers the role of positive human rights in this context through the lens of a paradigm known as inclusive capitalism based ...


International Megan's Law And The Identifier Provision - An Efficacy Analysis, Daniel Cull Jan 2018

International Megan's Law And The Identifier Provision - An Efficacy Analysis, Daniel Cull

Washington University Global Studies Law Review

No abstract provided.


"Your Old Road Is/ Rapidly Agin'": International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin Jan 2018

"Your Old Road Is/ Rapidly Agin'": International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Washington University Global Studies Law Review

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human rights, one that grows in importance each year: how the treatment (especially, the institutional treatment) of persons with mental and intellectual disabilities violates international human rights law, and the silence of organized forensic psychology in the ...


The Legality Of A State Religion In A Secular Nation, Eusef Robin Huq Jan 2018

The Legality Of A State Religion In A Secular Nation, Eusef Robin Huq

Washington University Global Studies Law Review

No abstract provided.


Constitutional Mobilization, Bui Ngoc Son Jan 2018

Constitutional Mobilization, Bui Ngoc Son

Washington University Global Studies Law Review

People around the world are mobilizing for constitutional change. This global phenomenon has been underexplored in comparative constitutional studies. This Article introduces the concept of constitutional mobilization, theorizes about it, and offers an original, empirical case-study.

First, it develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environment in which constitutional mobilization operates, and particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns identifying constitutional problems and ...


Legal Pluralism And The Threat To Human Rights In The New Plurinational State Of Bolivia, James M. Cooper Jan 2018

Legal Pluralism And The Threat To Human Rights In The New Plurinational State Of Bolivia, James M. Cooper

Washington University Global Studies Law Review

Bolivia, the chronically poor, landlocked Andean country has long seen its indigenous populations marginalized, languishing in underdevelopment. Spanish colonialists destroyed any vestige of the vibrant, complex civilization that existed in the region – including the religious, political and legal systems in place for centuries. In December 2005, Evo Morales Ayma

was the first elected President of indigenous descent. After leading the changes in the country’s Constitution, Morales continued to rule Bolivia until the writing of this Article. The New Political Constitution of Plurinational State of Bolivia of 2009 and a national law for community justice, signed into law by Morales ...


Inconsistent Trafficking Obligations And How Guyana Got Caught In The Middle, Sarah Langer Jan 2018

Inconsistent Trafficking Obligations And How Guyana Got Caught In The Middle, Sarah Langer

Washington University Global Studies Law Review

This Note will first analyze the mechanisms behind the enforcement of international trafficking laws and agreements which have, to a large extent, been disseminated by the United Nations and the United States. Specifically, this Note seeks to demonstrate how the use of sanctions by the United States, enacted in an effort to make adherence to international anti-trafficking norms compulsory, creates unpredictable standards for compliance and simultaneously disadvantages source countries. This Note will then look to anti-trafficking compliance in the Caribbean and specifically Guyana, to show why source and transition countries continue to struggle to meet international anti-trafficking goals. It will ...


Table Of Contents Jan 2018

Table Of Contents

Washington University Global Studies Law Review

No abstract provided.


The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi Jan 2018

The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi

Washington University Global Studies Law Review

China is about to undergo a major reform of its securities offering and listing processes. Since the inception of China’s securities market in the early 1990s, the government has exercised tight control to determine which companies will be allowed to engage in initial public offerings and become listed on a national exchange. The system has led to both corruption and favoritism and has blocked numerable companies from access to capital markets. With the ascension in 2013 of Xi Jinping and Li Keqiang as the heads of the Chinese Communist Party and Premier, the government adopted reform of the market ...


Examining The Jpmorgan “Princeling” Settlement: Insight Into Current Foreign Corrupt Practices Act (Fcpa) Interpretation And Enforcement, Beverley Earle, Anita Cava Jan 2018

Examining The Jpmorgan “Princeling” Settlement: Insight Into Current Foreign Corrupt Practices Act (Fcpa) Interpretation And Enforcement, Beverley Earle, Anita Cava

Washington University Global Studies Law Review

Shortly after the November 2016 U.S. Presidential election, JP Morgan Chase and JP Morgan Securities (Asia Pacific) settled and signed a non-prosecution agreement (NPA) in which they agreed to pay over $264 million to the DOJ, SEC and the Federal Reserve. The entities acknowledged that they had engaged in quid pro quo arrangements with Chinese officials for a number of years, employing relatives deemed “princelings” in return for favored treatment. Although JP Morgan Chase had ended the program in 2013, evidence of willful and widespread violations of the FCPA resulted in little prosecutorial credit. We examine this and other ...


The New Chinese Mental Health Laws, Zhiyuan Guo, Floyd Feeney Jan 2018

The New Chinese Mental Health Laws, Zhiyuan Guo, Floyd Feeney

Washington University Global Studies Law Review

The United Nations Convention on the Rights of Persons with Disabilities is by far the most important international agreement yet developed concerning the mentally disabled. China adopted this Convention in 2008. In 2012 China went further—making major changes in the way that China deals with mental health issues in both its criminal and its civil law. Coming first was a new Criminal Procedure Code that adds a whole new dimension to the way that China deals with the mentally ill who are charged with crimes. Equally important was the new civil mental disabilities law that China adopted later in ...


The International Rule Of Law And Economic Development, Nadia E. Nedzel Jan 2018

The International Rule Of Law And Economic Development, Nadia E. Nedzel

Washington University Global Studies Law Review

The Rule of Law and economic development have long been recognized as being inter-related – a successful society has both. The question is how the two are related. Some scholars argue that common law is more supportive of economic development, while others reject this and argue that the distinctions between common law and civil law have no effect on economic development. This multidisciplinary article approaches the issue from a new contextual perspective that includes economics, philosophy, history, and law. It posits that while the concepts are similar, the common law conception of the Rule of Law (as opposed to the civilian ...


Waiting To Be Heard: Fairness, Legal Rights, And Injustices The Deaf Community Faces In Our Modern, Technological World, Justin Chavez Jan 2018

Waiting To Be Heard: Fairness, Legal Rights, And Injustices The Deaf Community Faces In Our Modern, Technological World, Justin Chavez

Washington University Global Studies Law Review

This note will examine the existing access to legal aid, employment, recourse, and education in various deaf cultures and societies. The goal is a comparative study into how the DHH communities are accepted, valued, and prioritized in different countries, and how that translates into legal infrastructure, in the form of governmentally-mandated statues, regulations, public accommodations, and legal education. This will consist of a brief history into the recognition, labeling, and acceptance of deaf citizens in ancient and modern cultures, the path to a society’s awareness and eventual recognition of deaf citizens, and how the various levels of awareness differ ...


Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho Jan 2018

Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho

Washington University Jurisprudence Review

In The Concept of Law – which continues to enjoy the central position in the field of analytical jurisprudence five decades after its initial publication – H.L.A. Hart makes two powerful claims. He argues that his theory of law is universal (in that it can apply to any legal culture) and timeless (in that it can apply to different times in history). Despite the sweeping, bold nature of these claims, neither Hart nor the large body of scholarship that has responded to, criticized, and refined Hart’s model of law over the past few decades has really tested whether Hart ...


Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham Jan 2018

Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham

Washington University Jurisprudence Review

This essay mounts an immanent critique of Dworkin’s defense of judicial review. Taking Dworkin’s methodology of constructive interpretation as my starting point, I argue that when analyzing the role that political institutions play in democracy, Dworkin fails to take his own method far enough. In particular, he limits his constructive interpretation of democracy to the practice of voting, overlooking the distinctive democratic values implicit within the institutions and practices of legislation by representative assembly. Ironically, given his well-known critique of majoritarian democracy, this failure leads Dworkin to adopt majoritarianism as a starting point when assessing particular institutions. A ...


High Priorities: Land Use, Marijuana, And Meta-Values, Spenser Owens Jan 2018

High Priorities: Land Use, Marijuana, And Meta-Values, Spenser Owens

Washington University Jurisprudence Review

This Note will examine the motivations surrounding the adoption of zoning ordinances pertaining to the production and sale of marijuana through the lens of John Dewey’s theory of valuation. Applying Dewey’s theory to the zoning ordinances of a sampling of state and local governments, I will argue first that the choice of land uses to be regulated and restricted through local zoning ordinances is ultimately referable to values held by the community in which the ordinances are enacted. Second, I will argue that the decisions made on the state level carry more “value” as defined by Dewey’s ...


"Strike Two, You're Out!" The Need For A More Stringent Drug Policy In Major League Baseball, Zackary Kessinger Jan 2018

"Strike Two, You're Out!" The Need For A More Stringent Drug Policy In Major League Baseball, Zackary Kessinger

Washington University Jurisprudence Review

This Note argues that MLB should adopt a more stringent drug policy than the one currently set forth in MLB’s Joint Drug Prevention and Treatment Program for two reasons. First, the increasing prevalence of PED use among MLB players threatens baseball’s integrity. Second, professional players’ PED use may encourage aspiring young athletes to abuse PEDs, which may harm their long-term health.