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281. Networks, Courts and Regional Integration. Explaining the Establishment of the Andean Court of Justice.

Author:
Osvaldo Saldías
Publication Date:
11-2010
Content Type:
Working Paper
Institution:
The Kolleg-Forschergruppe (KFG)
Abstract:
Legal transplants have traditionally been believed to be the product of reason and informed decision-making that follow arduous deliberations and bargaining between lawmakers. This paper argues that some major legal transformations can be better explained with the help of networks. It delves into the history of the establishment of the Andean Court of Justice and asks who got to decide the major questions in regard to the institutional design of the court. I argue that contrary to dominant assumptions, consultants and think tanks play a decisive role in the shaping of legal transplants. They are the ones that decide which model to follow. They get to choose participants in relevant working groups and it is them who shape the final proposal that will be voted by the lawmaker. As the complexity of the topic increases, professional networks can use technical discourse that makes scrutiny unlikely. The research shows that in case of Andean regional integration, the personal background of consultant is also very relevant, because it determines what models will be considered for eventual benchmarking. However, the mere existence of networks is not enough for producing legal change; a window of opportunity is a necessary condition.
Topic:
International Law and Law
Political Geography:
Latin America

282. Reforming Medical Malpractice Liability through Contract

Author:
Michael F. Cannon
Publication Date:
11-2010
Content Type:
Working Paper
Institution:
The Cato Institute
Abstract:
This paper discusses the medical malpractice "crisis" and the potential of contract liability to reduce overall malpractice costs as well as improve the quality of and access to care. First, the paper describes the current medical malpractice liability "system" and some of the more common reforms offered. It then discusses the economic rationale of allowing patients and providers to agree in advance of treatment on how the patient will be compensated in the event of simple negligence on the part of providers, explaining how contract liability may offer improvements in the areas of costs, patient preferences, the pursuit of more efficient liability rules, and quality of care. The paper then critiques select objections to contract liability – those based on the superior bargaining power of providers, the lack of information available to patients, and possible reductions in quality – and forwards possible limitations on the right to contract that may allay such concerns.
Topic:
Health, Law, and Health Care Policy
Political Geography:
United States

283. The Constitutional History of U.S. Foreign Policy: 222 Years of Tension in the Twilight Zone

Author:
Walter A. McDougall
Publication Date:
09-2010
Content Type:
Book
Institution:
Foreign Policy Research Institute
Abstract:
In 1973, Congress passed the infamous War Powers Resolution (WPR), over Richard Nixon’s veto. It was perhaps the most ambitious Congressional effort to bridle the President since the battle with Andrew Johnson over Reconstruction. The WPR is worth reading—once—then forgetting, because its convoluted, contradictory, and doubtless unconstitutional mix of instructions, restrictions, and ticking clocks has never been honored by any administration or upheld by any court. Presidents Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush all dispatched U.S. forces into combat situations without paying more than lip service to the WPR. In 1990, following Saddam Hussein’s invasion of Kuwait, President Bush stationed 100,000 personnel in Saudi Arabia. He sought no authorization and, in fact, informed just one member of Congress: Senator Sam Nunn (D., Ga.). When he then prepared Operation Desert Storm to liberate Kuwait, 54 Congressmen led by the chairman of House Armed Services Committee, Berkeley radical Ron Dellums (D., Calif.), filed for an injunction to stop the war. U.S. District Judge Harold H. Greene ran for cover. Noting that 54 fell far short of a majority, he judged the case “not ripe for judicial determination.”
Topic:
Foreign Policy, War, Governance, Law, and Constitution
Political Geography:
United States

284. Toward a Solution to the Kurdish Question: Constitutional and Legal Recommendations

Author:
Dilek Kurban and Yılmaz Ensaroğlu
Publication Date:
06-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
There is more to the dominance of “rule of law” or “supremacy of law” in a state than the mere availability of a constitution or laws, or the presence of judicial institutions. Indeed, it is a fact of history that even the bloodiest dictatorships had their idiosyncratic laws and courts. In addition, there are countless historical examples of tyrannical and oppressive policies being implemented through courts. Thus, in paying special attention to the matter, international human rights law emphasizes in the Universal Declaration of Human Rights that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” Article 3 of the Statute of the Council of Europe follows suit: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…” Article 1 of the European Convention on Human Rights, in addition, states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” These and other instruments of law confer on the states substantial responsibilities for the protection of human rights. Of a state’s obligations in that regard, the most important include constitutional and legal recognition of citizens’ human rights, non-interference in individuals’ exercise of those rights as long as such exercise does not violate the freedoms of others, and protection of those rights against interventions by others. These obligations have also become sources and criteria for a state’s claim to legitimacy. In other words, states are now considered to be legitimate to the extent they recognize and protect human rights. As a matter of fact, the protection of states’ rights to sovereignty cannot hold its ground against human rights, thus no state can have recourse to the ‘non-intervention in domestic affairs’ discourse in the face of violations within that state’s borders. The judiciary is the most important mechanism that will check the compliance of government policies and practices with the law and protect citizens’ rights and freedoms. This is why all acts and transactions of the administration need to be subject to judicial review in a state where rule of law prevails. In short, the judiciary is the one and only power that will put the principle of the rule of law into practice. In order for the judiciary to serve that function, that is, to protect human rights, it is indispensable that constitutional and legal arrangements be compatible with human rights law. Put differently, implementing the principle of rule of law necessitates that the law should, instead of siding with the state, have an autonomous standing vis-à-vis the state. The law must maintain equal distance to the state and the citizen. Otherwise, it will not be able to serve its arbitral function between the two sides, and as a result, its legitimacy becomes contested. Considering Turkey in this light, one sees that the legal framework has adopted the ideology of creating a homogenous society and a modern nation, instead of securing all individuals’ rights. Founded as a modern state upon the remnants of the multi-religious, multilingual, and multiethnic Ottoman Empire, the Turkish Republic decided that it would not be possible for it to realize the plans to construct the new nation without denying room to the distinct identities. In line with the secularist and nationalist policies pursued as an outgrowth of this approach, the legal framework underwent a complete overhaul. It has become widely accepted today that Kurds were one of the primary targets of these policies. As a matter of fact, in addition to general legal and constitutional amendments necessary for a Turkey committed to human rights and the rule of law, a number of particular arrangements are also required for a lasting and democratic solution to the Kurdish Question. Constituting the main focus of this report, these arrangements can be broken down into two groups: constitutional and legal. Although the constitutional articles and legal provisions examined in detail and the regulations and statutes which occupy lesser space in the report might appear to have a general character and do not include the words “Kurd” or “Kurdish”, they are essentially instruments aiming to restrict Kurds’ fundamental rights and freedoms and practically causing indirect discrimination against the Kurds. It goes without saying that several administrative measures that do not necessitate any particular legal arrangements must also be taken to solve the Kurdish Question. Discussed as part of the debates on the ‘democratic initiative’, some of these measures include the restitution of names in Kurdish and other languages to places plastered with Turkish names, removal of nationalist slogans etched by the state onto mountain slopes in Turkey’s eastern and southeastern region, changing the militarist names given to schools in the same region, and appointment of Kurdish-speaking public servants in the region to facilitate the use of Kurdish language in accessing public services. Though they are outside the scope of this report, these administrative steps and similar others need to be negotiated upon with Kurdish political representatives and opinion leaders and put in practice soon.
Topic:
Human Rights, Law, Constitution, Legislation, and Kurds
Political Geography:
Turkey, Middle East, and Kurdistan

285. A Tale of Reciprocity: Minority Foundations in Greece and Turkey (English/Greek)

Author:
Dilek Kurban and Konstantinos Tsitselikis
Publication Date:
07-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
This report aims to analyze the implications of reciprocity policies on the day-to-day lives of Muslim and non-Muslim minorities in Greece and Turkey, specifically their impact on the community foundations2 belonging to these minorities. With a specific focus on the property and self-management issues of Muslim and non-Muslim community foundations in Greece and Turkey, the report will try to situate the issue in its historical context and trace the evolution of the ‘community foundation issue’ from Lausanne to the present day. Drawing similarities and differences between the laws, policies, and practices of Greek and Turkish states vis-à-vis their minority foundations, the report will critically assess the progress made to this day as well as identify the outstanding issues. In the hope of contributing to efforts to develop a democratic, sustainable, and just resolution of the problems facing community foundations, the report will propose policy solutions to the governments of Turkey and Greece.
Topic:
Human Rights, International Law, Treaties and Agreements, Law, and Minorities
Political Geography:
Turkey, Middle East, and Greece

286. Life Without Lawyers: Liberating Americans From Too Much Law, by Philip K. Howard

Author:
David Littel
Publication Date:
06-2009
Content Type:
Journal Article
Journal:
The Objective Standard
Institution:
The Objective Standard
Abstract:
New York: Norton and Company, 2009. 221 pp. $24.95 (cloth). Reviewed by David Littel A political consensus is forming around the ideas of attorney and author Philip K. Howard. Beginning in 1990 with The Death of Common Sense and continuing through scores of articles and the work of his organization, Common Good, Howard has depicted an American legal system run wild, and he has advanced a thesis about what must be done. Political figures from Al Gore to Newt Gingrich praise his work. Self-proclaimed pragmatist Michael Bloomberg raves that Howard "offers big-picture ideas for how we can solve entrenched problems." In a prepublication review, George Will announced that Howard's latest book, Life Without Lawyers: Liberating Americans From Too Much Law, "surely will be 2009's most-needed book on public affairs." The bulk of Life Without Lawyers is an indictment of American law, covering everything from public schools to administrative regulations to civil lawsuits. As in his earlier books, Howard describes a series of nightmare scenarios drawn partly from his own experience as a practicing attorney and partly from other sources. For example, he tells the story of a family-owned dry cleaning business in Washington, D.C. that was sued for $54 million because of a lost pair of pants. The plaintiff calculated his damages based on a $1,500 consumer fraud penalty multiplied several times over in addition to $15,000 per weekend for a rental car to take his laundry to a more reliable establishment, $542,000 for his own time in pursuing the matter, and $500,000 for mental anguish. The suit was not dismissed but was allowed to linger for two years, costing the business owners more than $100,000 in legal fees (p. 72). . . .
Topic:
Law
Political Geography:
New York and America

287. Pakistan and Afghanistan: Beyond the Taliban

Author:
Juan Cole
Publication Date:
07-2009
Content Type:
Journal Article
Journal:
Political Science Quarterly
Institution:
Academy of Political Science
Abstract:
JUAN COLE analyzes political and economic developments in contemporary Pakistan and Afghanistan. He argues that Western preoccupation with "crisis" and "radicalism" in Pakistan has caused observers to miss the success of an expanding white-collar middle class in demanding a rule of law and a return to civilian rule after nearly a decade of military dictatorship. He questions the idea that there is a purely military, and especially Western military, solution to the problem of Talibanism in northwest Pakistan and southern Afghanistan, analyzing the insurgency as several distinct groups driven in part by religious nationalism and anti-imperialism.
Topic:
Law
Political Geography:
Pakistan, Afghanistan, and Taliban

288. Customary Law and Human Rights in Botswana

Author:
Rekha A. Kumar
Publication Date:
08-2009
Content Type:
Working Paper
Institution:
Human Rights Human Welfare (University of Denver)
Abstract:
The right of indigenous people to have customary law accommodated within the communities they live is an integral part of Botswana legal system. How far traditional cultures protect the well-being of their people would illuminate the foundation of human dignity on which human rights protection stands in a country. The revelations may not be affirmative always, however. In Botswana the Constitution places a prominent status on custom in a range of contexts. The core of personal law is very much the domain of customary law. It is of particular significance for women's rights. In its application it reinforces the social order by determining the obligations of men, women and children, their entitlement to resources, property ownership, marriage and divorce. It formulates such matters as the status of widows, child custody and inheritance. In the absence of a guarantee that equality between men and women takes precedence over custom, traditional practices that discriminate against women may be lawful in some circumstances. There are a number of regional and international human rights instruments ratified by Botswana. The Government has assumed an obligation to ensure that at all its levels of administration basic rights of the people will be respected and protected. How far these legally bind Botswana in its domestic application of customary law is a legitimate question not clearly settled so far.
Topic:
Human Rights, Human Welfare, and Law
Political Geography:
Africa

289. "Nobody Gets Justice Here!" Addressing Sexual and Gender-based Violence and the Rule of Law in Liberia

Author:
Niels Nagelhus Schia and Benjamin de Carvalho
Publication Date:
06-2009
Content Type:
Working Paper
Institution:
Norwegian Institute of International Affairs
Abstract:
The international response to SGBV in Liberia – in spite of having been touted as one of the great success stories in implementing UNSC resolution 1325 by the UN and the Liberian government – has so far at best been misguided.
Topic:
Crime, Gender Issues, and Law
Political Geography:
Africa, United Nations, and Liberia

290. The Rise of International Criminal Law: Intended and Unintended Consequences

Author:
Kenneth Anderson
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even 'crowded' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
Topic:
United Nations and Law