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Reconstituting Constitutions—Institutions and Culture: The Mexican Constitution and NAFTA: Human Rights \u3ci\u3evis-à-vis\u3c/i\u3e Commerce
Get PDFThe 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 focusing the debate on whether the North American Trade Agreement (NAFTA), as an international treaty, regardless of its denomination, is constitutional. Furthermore, this debate will concentrate the discussion on the place of treaties in the hierarchy of norms, by critically analyzing a controversial jurisprudential criteria, according to which treaties are above federal laws. Third, this Essay will illustrate that in an eventual conflict between a treaty on commerce and another treaty on human rights, the later ought to prevail over the former
Community Economic Development and the Paradox of Power
Get PDFThis article starts from the premise that poverty is a growing problem in the United States. Intergenerational poverty, the entrenchment of a class of very poor people, is a major sub set of that problem and is tied very closely to the issue of race. The author claims that missing in the fight by the poor and their allies against stratified poverty is the creation and utilization of power. This paper examines the disparate ways in which commentators have defined power. It suggests that those seeking to obtain power must understand the concept’s varying meanings and direct their activities to meet their own understanding of the concept. Community Economic Development (CED) may be nothing more than a re-affirmation of existing power relationships or it may be the cause and the result of a change in those relationships. This paper attempts to make sense of this apparent paradox
Introduction & Coda, Multi-Party Dispute Resolution, Democracy and Decision Making: Vol. II of Complex Dispute Resolution
Get PDFThe 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 private processes, as well as more formal and public processes. The essays question whether the development of universal theoretical insights about conflict resolution is possible with variable numbers of parties and issues and in multi-cultural and multi-jural settings. Each volume also presents a coda, summarizing key issues in the field and suggesting further avenues for research.
The second volume (and the introductory essay here) applies the theoretical foundations and practices of primary processes in dispute resolution–negotiation, mediation, arbitration and some hybrid processes in both public and private, informal and formal settings to more complex multi-party and multi issue settings, and asks whether foundational theories must be altered when there are more parties and issues. What difference do larger numbers make in theory and practice of dispute resolution and decision making? Other theoretical and empirical observations of the role of third party neutrals and facilitators in multi-party settings are explored, and applied disciplines such as game theory and decision sciences are applied to complex dispute resolution settings. Illustrations of uses of these processes in different substantive areas, e.g. legal disputes, public policy decision making, politics and governance, environmental matters, institutional relations, and high conflict settings are provided. The volume collects classic articles in multi-party, multi-issue theory and practice while interrogating the issues of how the numbers of parties and issues, different contexts and cultures challenges our efforts to create generalizable theory and practice of human conflict resolution. The review essay also discusses recent efforts to seek correspondences and learning from application of conflict resolution theory and practice to the work on deliberative democracy and political decision making. The coda suggests avenues for future research. Some attention is paid to issues of ethics and political theory, as well as evaluation of efficacy, in the use of third party facilitators in public policy and governance disputes
Tech Innovation in the Academy
Get PDFIf today’s law students are going to become effective users of technology tools, law schools need to prepare them for more than just tomorrow’s legal practice. At Georgetown, we have come to the realization that we need to prepare students for legal practice 10 years from now. This article provides a look at ways several law schools help students develop technology skills and prepare for future law practice, incorporating examples and lessons learned from teaching the course “Technology, Innovation and Law Practice.” It presents concrete ideas for law students to understand and appreciate the potential of technology to transform legal practice
Complex Dispute Resolution: Volume III: Introduction and Coda: International Dispute Resolution
Get PDFThe 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 private processes, as well as more formal and public processes. The essays question whether the development of universal theoretical insights about conflict resolution is possible with variable numbers of parties and issues and in multi-cultural and multi-jural settings. Each volume also presents a coda, summarizing key issues in the field and suggesting further avenues for research.
The third volume (and the introductory essay here) applies foundational dispute resolution theories and practices to a wide variety of transnational, international and transcultural dispute settings. The essays explore the uses of formal diplomacy, political negotiation processes, formal international adjudication in a variety of tribunals, public and private arbitration, mediation processes, and a new set of hybrid processes. The introductory essay and chapters here also describe and interrogate new forms of international conflict handling, if not “resolution,” in modern forms of transitional and restorative justice, truth and reconciliation commissions, as well as hybrid tribunals. Some of the essays critique the tensions between the need for formal prosecution, punishment and adjudication of grievous wrongs, as in genocides and human rights violations and the needs and desires of societies and individuals to “move on” or create ways of re-integrating or restoring peace, as well as justice, in post-conflict situations. The question of whether “alternative” forms of justice and process are consistent with efforts to create international “rule of law” regimes is also queried. The Coda and other essays also explore whether there are necessarily cultural variations in conflict resolution, restorative and retributive or punitive justice. As with volumes I and II in this series, some of the classic works in the field of international dispute resolution are presented, while the idea of whether there are “universal” theories and practices of dispute resolution, across cultures and contexts is examined by the series editor and a number of authors
The Moral Complexity of Cause Lawyers Within the State
Get PDFDouglas NeJaime\u27s Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a cause exists because the dominant institutions of society have failed to represent the interests and ideas of some subgroup, at least in its own eyes; and government is the most dominant of dominant institutions. Causes therefore draw their energy from the desire to change the direction the state has taken. Cause lawyers are a nuisance to the state, and they mean to be a nuisance. It comes as a surprise, then, that they would actually be invited to become insiders; that is, no doubt, the main reason that cause lawyering within the state has attracted insufficient previous attention.
Of course, there are causes and there are causes: lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights is a cause, but so is the Race for the Cure and promoting classical music in public schools. The latter two will hardly ever stand in opposition to government. I take it that NeJaime\u27s focus is on politically controversial causes, and that will be my focus as well.
NeJaime provides a compelling analysis of the major ways in which cause lawyers can operate within the state to further their cause. His scholarship is comprehensive and first-rate. He considers cause lawyers working for a variety of causes-not only LGBTQ rights, but also disability rights, civil rights and affirmative action, feminist causes, and conservative causes.
The paper raises fascinating questions about how to reconcile the lawyers\u27 two identities, as cause lawyers and as government lawyers. Putting the question melodramatically (and with apologies to Tolkien): What happens to a cause lawyer when he or she decides to use the Ring of Power? Can she still remain a cause lawyer, or does it transform her, or even-keeping Tolkien\u27s Ring in mind-devour her
Developing a Teacher Training Program for New Clinical Teachers
Get PDFWhere to Begin? Training New Teachers in the Art of Clinical Pedagogy, an article published in the Spring, 2012, issue of the Clinical Law Review, gave a full description of Georgetown’s course in clinical pedagogy. That article set forth some of the critical questions new teachers must ask and answer by describing the goals, content, and execution of the course.
This article describes hows, whens, and whys of the program, focusing on how our faculty, over a period of many years, created and revised the curriculum for the Pedagogy course. It also describes the choices we made as we developed the course. Although it may be of interest to all clinical teachers, this article’s main audience is more experienced teachers within a region whose schools regularly meet to discuss issues relating to clinical pedagogy, clinic directors at schools that hire several clinical teachers in a short period of time, and teachers who wish to develop a teacher training program for new clinical teachers. The two articles, when read together, will give those teachers and directors an understanding of the choices we made in developing the teacher-training program at our school and provide an outline to use when developing similar programs tailored to meet the needs of their own schools and faculties
Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development
Get PDFThe past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.
This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research
The Limits of Government Regulation of Science
Get PDFThe recent controversy over the National Science Advisory Board for Biosecurity’s (NSABB) request that Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.
The clearest case where government may restrict publication is when research has been properly classified as a security risk. It is less clear whether government may suppress the publication of “controlled unclassified information” (CUI). The key inquiry is whether the information poses a genuine security risk and the restraint is the least restrictive alternative.
At the same time, the federal government has fairly broad latitude to protect sensitive data in its sole possession from disclosure under FOIA.
We propose that future decisions on dual-use research should be taken through a fair and transparent institutional review process, likely best modeled on the institutional biosafety committees required for recombinant DNA research
Configuring the Networked Self: Law, Code, and the Play of Everyday Practice
No full textThe legal and technical rules governing flows of information are out of balance, argues Julie E. Cohen in this original analysis of information law and policy. Flows of cultural and technical information are overly restricted, while flows of personal information often are not restricted at all. The author investigates the institutional forces shaping the emerging information society and the contradictions between those forces and the ways that people use information and information technologies in their everyday lives. She then proposes legal principles to ensure that people have ample room for cultural and material participation as well as greater control over the boundary conditions that govern flows of information to, from, and about them