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U.S. Foreign Relations Law from the Outside In
Get PDFArguments in the field of U.S. foreign relations law typically proceed from the inside out: legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, legislative intent, assessments of institutional competency, and historical practice thus dominate debates about treaty-making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the proper modalities of legal analysis and helps to ensure that the law reflects national values.Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes.This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta-knowledge—domestic knowledge of foreign knowledge of U.S. foreign relations law. The Article then uses original empirical research to generate meta-knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms
The Problems, and Positives, of Passives: Exploring Why Controlling Passive Voice and Nominalizations Is About More Than Preference and Style
Get PDFAs professional writers, attorneys should understand and have command of two of “the worst writing weaknesses”—passive voice and nominalizations. Studies show that compared to active voice, passive voice and nominalizations can make writing slower to read, harder to read, harder to comprehend, harder to remember, less concise, less familiar feeling, and less engaging. However, passive voice isn’t always bad. Expert writers can use passive voice to create cohesion, shift emphasis, imply objectivity, and make readers feel more distant and less emotional about an event. The problem is that attorneys commonly use passive voice indiscriminately, unknowingly, and excessively, amplifying its negative effects while blunting its potential value.
Because heavy use of passive voice and nominalizations is prevalent in much legal writing, this article examines these constructions in a depth they deserve. After explaining what passive voice and nominalizations are—including simple ways to spot each—this article explores past studies that have shown passive voice and nominalizations can impede readers and weaken writing. These studies prove that preferring active voice over passive voice is not just an arbitrary style preference, but rather doing so can increase reader comprehension and recall. This article then examines the other side of the coin—how expert writers can use passive voice carefully to create flow and focus readers in important ways. Attorneys who understand passive voice and nominalizations, can spot them in their drafts, and use them only when its intentional will become more effective legal writers and advocates
Bosman and Beyond: How a Court Decision a Quarter Century Ago Impacted Football On and Off the Pitch
Get PDFInformational Regulation, the Environment, and the Public
Get PDFInformational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article’s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation—it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals
Some Observations on Separation of Powers and the Wisconsin Constitution
Get PDFIn recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy