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Difficult and Novel Legal Issues Explored by the Students Who Represented the University of Bucharest in the 2023-2024 Edition of the Willem Vis Moot Court Competition
Full text linkThis article provides an overview of the Willem Vis International Commercial Arbitration Moot in general and of the novel and difficult legal issues raised by the 2023-2024 moot Problem. On the merits, the main legal issues involved liability for misdirected payments as a result of cyberattacks and the existence of an obligation of information and/or good faith in the performance of a contract between commercial parties to a contract governed by the CISG. The procedural issues concerned the mechanisms for adding a new claim after the signature of the Terms of Reference and/or for consolidating two arbitrations, under the ICC Rules, in the presence of several arbitration agreements, comprising a clause included in a framework agreement and clauses included in specific purchase orders under the umbrella of that framework agreement
When Commanders Decide: Military Prosecutorial Decision-Making in Sexual Assault Cases
Full text linkCongress enacted legislation that went into effect in 2023, which transferred prosecutorial decision-making for serious cases, including sexual assault, from Commanders to military lawyers. While there is some research on the military’s criminal justice system that supports shifting the decision-making to military lawyers, there is a large body of research that suggests lawyers, too, suffer from similar impediments when handling decision-making for sexual assault cases. In the wake of this new amendment, it is important to continue assessing how the change will impact case processing, by first clearly understanding what was happening when Commanders had complete authority. This article explores a sample of sexual offense cases by analyzing the variables that increased the likelihood that a Commander would criminally charge a sexual assault case. The results support the conclusion that Commanders charged cases based on the Seriousness of the Offense, the Strength of the Evidence, and the Victim’s1 Preference. However, the findings also reveal that Commanders incorporate Blame and Believability on the part of the victim when assessing whether to fire a servicemember; accused servicemembers are less likely to face separation when victim blame factors increase and believability factors decrease
Arrow\u27s Theorem and Legislative Intent
Full text linkA number of prominent legal and political theorists have argued, on the basis of Kenneth Arrow\u27s impossibility theorem, that the concept of legislative intent is irredeemably problematic. These Arrow-inspired intent skeptics most significantly argue that the presence ofintransitive legislative preferences (cycling) means there is no such thing as the will of the majority and hence no such thing as a coherent legislative intent. Legislative outcomes, not being attributable to the will of the majority, are instead the result of things like agenda control. Other theorists defend legislative intent against these challenges, tending to focus on contingent legislative characteristics that make cycling unlikely or unproblematic. I argue that the literature has simultaneously under-reacted and over-reacted to the skeptical Arrovian arguments. The literature has missed the most fundamental reason the Arrovian arguments are mistaken in concluding that the concept of legislative intent is incoherent; this fundamental reason centers on the crucial distinction between preferences and intentions. But, in its quick dismissal of the Arrovian arguments, the literature has also overlooked the insight that Arrow does indeed render problematic the most popular versions of the counterfactual test for legislative intent, which accordingly must (and can) be reimagined in light of Arrow
On the Double (Derivative): North Carolina Could Single-Handedly Recognize Double Derivative Suits
Full text linkWhen a corporation suffers a harm caused by its own directors or officers, most often resulting from a breach of fiduciary duty, and the board does not initiate litigation to remedy the alleged wrong, shareholders may file suit on behalf of the corporation to redress the harm. Courts recognize this cause of action—a single derivative suit—in the name of equity, meaning equitable principles drive a court’s recognition of the action. Consulting the same equitable principles, courts have extended the single derivative suit to shareholders owning shares in a corporation that owns a subsidiary, allowing these shareholders to bring “double derivative” suits on behalf of the corporation’s subsidiary when the subsidiary suffers a similar harm. North Carolina’s courts have not explicitly addressed whether a plaintiff may bring a double derivative claim under North Carolina law. This Comment argues that North Carolina, if given the opportunity, should recognize the double derivative suit because of the suit’s equitable nature, North Carolina’s receptiveness to justifying other business-related causes of action in the name of equity, and the ease at which North Carolina could statutorily recognize the cause of action
