Law Commons^™

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

William & Mary Law Review

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

Objectivity And Democracy, David K. Millon

David K. Millon

As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive "language-game" …

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Legal Framework For Soviet Privatization, Olga Floroff, Susan Tiefenbrun

Pepperdine Law Review

No abstract provided.

Land Use By, For, And Of The People: Problems With The Application Of Initiatives And Referenda To The Zoning Process, Nicolas M. Kublicki

Pepperdine Law Review

No abstract provided.

"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown

Pepperdine Law Review

No abstract provided.

Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel

Osgoode Hall Law Journal

The dominant view among legal philosophers is that jurisprudential debates about the nature of law are conceptual. In this article I challenge this view. I do so by comparing these debates to debates about the justification of democracy and showing that the arguments found in both are often very similar. I demonstrate that in both domains, there are arguments on one side that explain an institution (either law or democracy) in terms of its ability to help people lead a better life, and there are arguments on the other side that highlight the value of these institutions in promoting political …

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann Mcginley, Ryan Mcginley-Stempel

Ann McGinley

Abstract

BEYOND THE WATER COOLER: SPEECH AND THE WORKPLACE IN AN ERA OF SOCIAL MEDIA

Ann C. McGinley & Ryan McGinley-Stempel

Few would dispute the proposition that free speech and association play an important role in the operation of a healthy democracy. Private workplaces, however, are an important exception. Even though as a nation we profess to honor free speech as one of our most important values, in the employment context, the law often willingly restricts employee speech in favor of the employer’s interests in efficient management. When civil society was clearly distinct from the workplace, this was less problematic. …

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt, Cornell Erulemaking Initiative

Michigan Journal of Environmental & Administrative Law

This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …

A Bakerian Response To Weinstein's Free Speech Theory, Anne Marie Lofaso

West Virginia Law Review

No abstract provided.

Langston Hughes: The Ethics Of Melancholy Citizenship, Robert L. Tsai

Robert L Tsai

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward political renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how …

A Core Case For Judicial Review: Striking A Dynamic Balance Between Constitutionalism And Democracy, Wen-Cheng Chen

Wen-Cheng Chen

Is judicial review a deus ex machina institution? Commentators disagree on the legitimacy of judicial review in a constitutional democracy. Many scholars who argue for (or against) judicial review have based their claims on democracy or democratic theory, while other scholars have founded their positive (or negative) arguments on constitutionalism or constitutional theory. Based on a general assessment of the literature, this article finds that most scholars have overlooked a core case for judicial review that the central role of judicial review in a constitutional democracy is to strike a dynamic balance between constitutionalism and democracy. Taking three current trends …

The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan

Barry Sullivan

Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe.

Effects Of Globalization On The Theory Of International Law, Marcelo Dias Varella

Marcelo D. Varella

International legal theory is an object that is intensely reshaped and rebuilt, largely due to globalization processes. The way that actors create, implement and control international law is far more prevalent today than it used to be thirty years ago. There is an intensification of the transnational legal process. The dichotomy between national and international law is much less clear. The primary actor continues to involve States, but there is a multiplication and densification of the role of sub-state and non-state actors. A dynamic process prevails over the static one; there is a continuous transformation of international law, by both …

Aspectos Democraticos De La Ley De Ordenamiento Territorial Y Usos Del Suelo De La Provincia De Mendoza Nª 8051, Luis Gabriel Escobar Blanco

Luis Gabriel Escobar Blanco

In these times when direct forms of democracy burst before formal institutions, the Land Use Planning Law in the Province of Mendoza is presented as valid and democratic alternative, which integrates direct citizen participation with the constitutional representative principle, contemplating identity cultural as a valid indicator for the management modelThis Law Nº 8051 formalizes and concrete the spirit of the quintessential democratic in three principles: government of the people, by the people and for the people. And we add our tradition the principle "the people want to know what it is"

"Worse Than The Disease": The Anti-Corruption Principle, Free Expression, And The Democratic Process, Martin H. Redish, Elana Nightingale Dawson

William & Mary Bill of Rights Journal

No abstract provided.

Disengage And Obstruct: The Un-Of-Values And The Human Rights Council, Kenneth Anderson

Contributions to Books

The following is a sample chapter from a book on US-UN relations, "Living with the UN." The book offers an analysis of policies available to the United States in its dealings with the United Nations, and offers "heuristics" of engagement to guide US dealings with different parts and functions of the UN. These policy rules of thumb are framed around a larger (mostly sharply critical, particularly in this chapter) analysis of "multilateral engagement" that is presented earlier in the book and which is a combination of analysis specific to US-UN relations and to US foreign policy generally. This book breaks …

Op-Ed: Banning Protesters An Attack On Democracy, Stephen D'Arcy

Stephen D'Arcy

A defence of academic freedom at Western U.

Martin V. Malcolm: Democracy, Nonviolence, Manhood, John M. Kang

West Virginia Law Review

No abstract provided.

Civil Resistance And The Law: Nonviolent Transitions To Democracy, Charles R. Disalvo

West Virginia Law Review

No abstract provided.

Facades Of Justice, Norman W. Spaulding

Michigan Law Review

Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik and Dennis Curtis have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash-"judge of heaven and earth"-on a 4,200-year-old seal (pp. 18- 19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), …

Democracy And Diversity, John Payton

Pepperdine Law Review

No abstract provided.

Direct (Anti-)Democracy, Maxwell L. Stearns

Maxwell L. Stearns

Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken. Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article …

Reconciling Liberty And Equality In The Debate Over Preimplantation Genetic Diagnosis, Jessica Knouse

Jessica A. Knouse

This article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over non-therapeutic preimplantation genetic diagnosis (PGD) as an example. While PGD is, at present, almost entirely unregulated within the United States, there seems to be relative consensus that “therapeutic” or “medical” trait selection – e.g., selection against certain genetic and chromosomal disorders – should per permitted. There is, however, substantial disagreement as to whether “non-therapeutic” trait selection – e.g., selection based on parental preference for a particular sex, disability, eye color, hair color, or skin …

Conference Bibliography: Democracy And The Workplace, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Lectures & Talks

A selected bibliography was prepared in connection with the Saltman Center Labor Law Symposium 2012: Democracy and the Workplace held at the William S. Boyd School of Law, University of Nevada, Las Vegas, on February 23-25, 2012.

Die Zukunft Ist Transnational, Richard Falk, Andrew Strauss

Andrew L. Strauss

No abstract provided.

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …