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John O. McGinnis

Other affiliations: Fordham University, Yeshiva University, Hofstra University  ...read more
Bio: John O. McGinnis is an academic researcher from Northwestern University. The author has contributed to research in topics: Constitution & Originalism. The author has an hindex of 16, co-authored 118 publications receiving 1079 citations. Previous affiliations of John O. McGinnis include Fordham University & Yeshiva University.


Papers
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Journal ArticleDOI
TL;DR: Mcinnis and Movsesian as mentioned in this paper argue that the World Trade Organization can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy.
Abstract: Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power as the better means to resolve the difficult problem of covert protectionism. They develop a series of procedure-oriented tests that would permit WTO tribunals to invalidate covert protectionism without supplanting national judgments on labor, environmental, health, and safety policies. Finally, they demonstrate that the WTO's emerging approach to the problem of covert protectionism largely comports with the democracy-reinforcing jurisprudence they recommend, and they offer some suggestions for reforms that would help prevent the organization from going astray in the future.

88 citations

Posted Content
TL;DR: In this article, the authors argue that machine intelligence is not a one-time event that lawyers will have to accommodate, but an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area.
Abstract: This Article argues that machines are coming to disrupt the legal profession and that bar regulation cannot stop them. Part I describes the relentless growth of computer power in hardware, software, and data collection capacity. This Part emphasizes that machine intelligence is not a one-time event that lawyers will have to accommodate. Instead, it is an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area. We then describe five areas in which machine intelligence will provide services or factors of production currently provided by lawyers: discovery, legal search, document generation, brief generation, and prediction of case outcomes. Superstars and specialists in fast changing areas of the law will prosper — and litigators and counselors will continue to profit — but the future of the journeyman lawyer is insecure. Part II discusses how these developments may create unprecedented competitive pressures in many areas of lawyering. This Part further shows that bar regulation will be unable to stop such competition. The legal ethics rules permit, and indeed where necessary for lawyers to provide competent representation, require lawyers to employ machine intelligence. Even though unauthorized practice of law statutes on their face prohibit nonlawyers’ use of machine intelligence to provide legal services to consumers, these laws have failed, and are likely to continue to fail, to limit the delivery of legal services through machine intelligence. As a result, we expect an age of unparalleled innovation in legal services and reject the view of commentators who worry that bar regulations are a significant stumbling block to technological innovation in legal practice. Indeed, in the long run, the role of machine intelligence in providing legal services will speed the erosion of lawyers’ monopoly on delivering legal services and will advantage consumers and society by making legal services more transparent and affordable.

81 citations

Journal ArticleDOI
TL;DR: Mcinnis and Movsesian as mentioned in this paper argue that the World Trade Organization can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy.
Abstract: Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power as the better means to resolve the difficult problem of covert protectionism. They develop a series of procedure-oriented tests that would permit WTO tribunals to invalidate covert protectionism without supplanting national judgments on labor, environmental, health, and safety policies. Finally, they demonstrate that the WTO's emerging approach to the problem of covert protectionism largely comports with the democracy-reinforcing jurisprudence they recommend, and they offer some suggestions for reforms that would help prevent the organization from going astray in the future.

72 citations

Journal Article
TL;DR: In our age, the machinery of information technology is growing exponentially in power, not only in hardware, but also in the software capacity of the programs that run on computers.
Abstract: Law is an information technology—a code that regulates social life. In our age, the machinery of information technology is growing exponentially in power, not only in hardware, but also in the software capacity of the programs that run on computers. As a result, the legal profession faces a great disruption. Information technology has already had a huge impact on traditional journalism, causing revenues to fall by about a third and employment to decrease by about 17,000 people in the last eight years1 and very substantially decreasing the market value of newspapers. Because law consists of more specialized and personalized information, the disruption is beginning in law after journalism. But, its effects will be as wide ranging. Indeed they may ultimately be greater, because legal information is generally of higher value, being central to the protection of individuals’ lives and property. The disruption has already begun. In discovery, for instance, computationally based services are already replacing the task of document review that lawyers have performed in the past. But computational services are on the cusp of substituting for other legal tasks—from the generation of legal documents to predicting outcomes in litigation. And when machine intelligence becomes as good as lawyers in developing some service or some factor of production that contributes to a service, it does not stop improving. Intelligent machines will become better and better, both in terms of performance and cost. And unlike humans, they can work ceaselessly around the clock, without sleep or caffeine. Such continuous technological acceleration in computational power is the difference between previous technological improvements in legal services and those driven by machine intelligence. This difference makes it the single most important

44 citations

Posted Content
TL;DR: In this article, the conflict between international rules formed through global multilateral agreements, like the WTO, and customary international law is addressed, and it is shown that the multilateral agreement process is more likely to produce legitimate and beneficent norms.
Abstract: This essay addresses the conflict between international rules formed through global multilateral agreements, like the WTO, and customary international law. It challenges the venerable view that no absolute hierarchy between global multilateral agreements and customary international law exists. In my view, global multilateralism takes precedence over customary international law, because the multilateral treaty process is more likely than customary international lawmaking to produce legitimate and beneficent norms. Multilateral agreements, like a legislative process, can generate precise rules and facilitate compromises by permitting tradeoffs among different provisions. Moreover, multilateral agreements are generally ratified in a manner that provides better assurance that they represent the views of nations' citizens, providing more robust legitimacy and reducing agency costs. In contrast, the process of discovering customary international law is fraught with difficulty and uncertainty, resulting in principles with vague contours. Moreover, the legal academics and international courts that announce the content of customary international law can provide little assurance that their views represent the consensus of the states, let alone the peoples of the world. Thus, unless clearly otherwise stated in the text of a multilateral agreement, the agreement should trump customary international law. I also provide a concrete illustration of the appropriate priority of multilateral agreements over customary international law by discussing the relation between the WTO regime and the precautionary principle. The precautionary principle generally empowers government to regulate risks to prevent quite speculative harms. Some have suggested that the precautionary principle can be used to supplement - indeed to override - otherwise applicable principles of the WTO. But the process from which the WTO emerges has advantages over the customary law process from which the precautionary principle emerges, providing us with greater confidence in the beneficence of these rules. The multilateral trade treaty process generates relatively fixed rules whose ratification in a domestic process focuses public attention on their content, thereby reducing agency costs. Moreover, these rules have real consequences for countries because of the WTO's dispute resolution mechanism, and those consequences make nations treat their assent as a serious matter. In contrast, the precautionary principle has not emerged from a deliberative process with real consequences. Moreover, the evidence from which publicists infer the precautionary principle is much less likely to reveal the preferences of nations' citizens.

33 citations


Cited by
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01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Book ChapterDOI
01 Dec 2004
TL;DR: The notion of knowledge in power has been studied in the context of global governance as discussed by the authors. But it has not yet been explored in the field of policing and global governance, as discussed in this paper.
Abstract: 1. Power and global governance Michael N. Barnett and Raymond Duvall 2. Power, institutions, and the production of inequality Andrew Hurrell 3. Policing and global governance Mark Laffey and Jutta Weldes 4. Power, fairness and the global economy Ethan Kapstein 5. Power politics and the institutionalization of international relations Lloyd Gruber 6. Power, nested governance, and the WTO: a comparative institutional approach Greg Shaffer 7. The power of liberal international organizations Michael N. Barnett and Martha Finnemore 8. The power of interpretive communities Ian Johnstone 9. Class powers and the politics of global governance Mark Rupert 10. Global civil society and global governmentality: or, the search for the political and the state amidst capillaries of power Ronnie Lipschutz 11. Governing the innocent? The 'civilian' in international law Helen Kinsella 12. Colonial and postcolonial global governance Himadeep Muppidi 13. Knowledge in power: the epistemic construction of global governance Emanuel Adler and Steven Bernstein.

503 citations

Journal ArticleDOI
TL;DR: In this paper, the authors argue that participation in multilateral institutions can enhance the quality of national democratic processes, even in well-functioning democracies, by restricting the power of special interest factions, protecting individual rights, and improving quality of democratic deliberation, while also increasing capacities to achieve important public objectives.
Abstract: International organizations are widely believed to undermine domestic democracy+ Our analysis challenges this conventional wisdom, arguing that multilat- eral institutions can enhance the quality of national democratic processes, even in well- functioning democracies, in a number of important ways: by restricting the power of special interest factions, protecting individual rights, and improving the quality of dem- ocratic deliberation, while also increasing capacities to achieve important public pur- poses+ The article discusses conflicts and complementarities between multilateralism and democracy, outlines a working conception of constitutional democracy, elabo- rates theoretically the ways in which multilateral institutions can enhance constitu- tional democracy, and discusses the empirical conditions under which multilateralism is most likely to have net democratic benefits, using contemporary examples to illus- trate the analysis+ The overall aim is to articulate a set of critical democratic standards appropriate for evaluating and helping to guide the reform of international institutions+ Many scholars and popular commentators assert that international organizations undermine democracy+ Global governance, they argue, is distant, elitist, and tech- nocratic+ Debates over multilateralism are increasingly waged between critics, who point to the ways in which international institutions undermine domestic demo- cratic processes, and defenders, who stress pragmatic benefits+ In this article we challenge this conventional framing of the issue+ We do so by arguing that participation in multilateral institutions—defined broadly to include international organizations, regimes, and networks governed

347 citations

Posted Content
TL;DR: In this article, the authors argue that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world.
Abstract: This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves. Looking at the place of subsidiarity in international law generally, the article argues that subsidiarity is a more accurate and powerful way of understanding the relationship of human rights to international law and to the roles of states in the global community. Using the constitutional structure of the European Union as a starting point, the article presents subsidiarity as a conceptual alternative to classic notions of state sovereigny, which relativizes but does not eliminate the roles of nation states. The analysis shows that in many ways, subsidiarity is already immanent in the existing structures and doctrines of international human rights law, and provides a better explanation for a number of otherwise problematic features of international human rights law, such as the "margin of appreciation" and reservations to universal human rights treaties. Finally, the article defends the idea and use of the principle of subsidiarity against critiques that resist the legal pluralism that subsidiarity fosters and protects. It argues that philosophical, legal and political objections to pluralism in international human rights law are misdirected, and that an international legal system structured in accordance with subsidiarity can best combine the values of universality and diversity that respect for human rights requires.

253 citations

Book
01 Jan 2002
TL;DR: In this paper, the authors present a thought-provoking overview of the forces that govern international institutions such as the UN, EU and WTO, and the complex relationship that exists between international organizations and their member states.
Abstract: International institutions are powerful players on the world stage, and every student of international law requires a clear understanding of the forces that shape them. For example, with increasing global influence comes the need for internal control and accountability. This thought-provoking overview considers these and other forces that govern international institutions such as the UN, EU and WTO, and the complex relationship that exists between international organizations and their member states. Covering recent scholarly developments, such as the rise of constitutionalism and global administrative law, and analysing the impact of important cases, such as the ICJ's Genocide case (2007) and the Behrami judgment of the European Court of Human Rights (2007), its clarity of explanation and analytical approach allow students to understand and think critically about a complex subject.

249 citations