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JournalISSN: 0043-5589

William and Mary law review 

About: William and Mary law review is an academic journal. The journal publishes majorly in the area(s): Supreme court & Constitution. It has an ISSN identifier of 0043-5589. Over the lifetime, 1183 publications have been published receiving 6028 citations.

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Journal Article
TL;DR: For a survey of the state-of-the-art constitutions, see, e.g., this paper, where the authors provide an overview of the current state of the art.
Abstract: During the past forty years, over 200 new constitutions have emerged in countries at risk of internal violence. Internationally brokered peace accords have entailed the development of constitutions not only in the Balkans but also in Cambodia, Lebanon, East Timor, Rwanda, Chad, Mozambique, Bougainville-Papua New Guinea, Nepal, the Comoros, and other places. (1) New constitutions have heralded the adoption of multiparty systems from Albania to Zambia. (2) Policymakers have started to ask what we have learned and specifically whether some constitutional reform processes are more likely than others to deliver a reduction in violence or more rights-respecting fundamental documents. For example, over the past decade, the Commonwealth, the U.S. Institute of Peace, and the non-governmental organization International Institute for Democracy and Electoral Assistance (IDEA) have worked to develop good practice guidelines for the conduct of constitution writing. (3) Does the type of deliberative forum make a difference? Do better results emanate from elected constituent assemblies than from unelected bodies? Does the choice of decision rules shape the regard for a broader range of interests? This challenge is difficult. Our instincts tell us that process makes a difference. Constitution writing has sometimes inflamed passions and sparked violence, as it did in the Solomon Islands, Iraq, Chad, and the Republic of the Congo, for example. (4) It has produced better than expected results in some other countries, including South Africa. (5) It is devilishly difficult to show, empirically, that procedures made the difference in these cases, however. A number of very serious analytical problems hamper the ability to give a social science answer to the question policymakers have asked. Mark Tushnet is right to wave warning flags. (6) Nonetheless, there may be some paths forward. My primary intention here is to offer a description of the range of procedures currently in use and the "results," very narrowly defined, associated with these procedures. This overview draws on an original dataset, (7) as well as on conversations that took place among constitution drafters and scholars under the auspices of Princeton University, Interpeace, and International IDEA in May 2007. (8) It serves as a preface to some of the other contributions in this issue. Part I probes some of the expectations one might have about the effects of process on outcomes. Part II defines what drafters mean by "process" and offers a quick, general description of recent trends in the choice of procedure. Part III explores some of the patterns in the data. Part IV offers an agenda for research and discussion of constitution writing and conflict resolution. I. EXPECTATIONS High hopes often attend efforts to write new constitutions. "Success" has many dimensions. A common aspiration includes the achievement of a durable agreement, an arrangement that will not be disregarded or suspended lightly and within a short period. More immediately and perhaps more importantly, people often hope for a reduction in violence and an increase in civility. The degree to which a constitution or a constitution-writing process displaces conflict from the streets and into institutions is an important measure of success. Said one participant in a conference at Princeton University in May 2007, "a successful process is transformational; it converts the spoilers." (9) The people most able to cause violence accept the basic terms and are willing to process disagreements in constitutionally acceptable ways. Their orientation toward political institutions and toward law changes in the course of negotiations. Success may have other dimensions as well. It may pertain to the choice of terms in the document itself. Order is not all that matters in today's world. Historically, constitutions often developed as agreements about how to design government so that the sovereign could not abuse citizens, especially those who had to foot the bill, in money or lives, of foreign misadventures and lavishness at home. …

86 citations

Journal Article
TL;DR: In this article, the authors argue that no system of property rights can survive unless property ownership is infused with moral significance, and that the right of the owner to act as the exclusive gatekeeper of the owned thing must be regarded as a moral right; intentional violations of this right, either by unlicensed invasions of owned things or unconsented takings of owned goods, must be considered as immoral acts.
Abstract: INTRODUCTION The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. (1) An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. (2) Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of individual rights and distributive justice, which many consider the hallmarks of a moral perspective. Third is the tradition, stronger perhaps in academic circles than in popular thought, that associates property with immorality. Starting with Proudhon's slogan that "property is theft," (3) and building through Marx and Engels with their call for the abolition of private property, (4) this tradition has put property on the defensive in the minds of those drawn to thinking of public policy in moral terms. This Essay seeks to challenge the conventional wisdom that dissociates property and morality. We hope to establish two propositions. First, no system of property rights can survive unless property ownership is infused with moral significance. By this, we mean that the differentiating feature of a system of property--the right of the owner to act as the exclusive gatekeeper of the owned thing--must be regarded as a moral right; intentional violations of this right, either by unlicensed invasions of owned things or unconsented takings of owned things, must be regarded as immoral acts. Second, the modern American legal system, at least with respect to this core aspect of property, does in fact adopt such a moral perspective. Our claims are based on the following fundamental aspects of property: Property is a device for coordinating both personal and impersonal interactions over things. Consequently, property rights must be communicated to a wide and disparate group of potential violators; these rights are in rem. (5) Because property rights need to coordinate the behavior of large numbers of unconnected people, they must be easily comprehended and must resist possible misinterpretation. Law, including criminal prosecution and civil enforcement actions, is almost certainly inadequate to achieve this degree of coordination and compliance. Self-help, such as erecting fences and hiring guards, is also too feeble to assure the required degree of near-universal respect for property rights. Property can function as property only if the vast preponderance of persons recognize that property is a moral right, and this requirement has important consequences for the study of property. For property to serve as an in rem coordination device, the morality upon which it rests must be simple and accessible to all members of the community. We do not attempt here to outline any theory of the origins of property. We do argue that the imperative of in rem coordination places significant constraints on the kind of morality upon which property must rest. Again, we do not offer any fully developed theory of the content of such a morality. But it seems highly unlikely that such a morality will be captured by many forms of utilitarianism. Pragmatism is too uncertain, and case-specific cost-benefit analysis too demanding and error-prone, to supply the kind of robust and widely accepted moral understanding needed to sustain a system of property. Because the type of morality that will support a system of property rights must be suitable for all members of the community, to say that the essential quality of property is captured by the familiar metaphor of the bundle of sticks is also implausible. When it comes to the public definition of property rights, the metaphor implies that the content of property rights continually mutates from one context to the next as legislatures and courts add new sticks to the bundle and take others out. …

72 citations

Journal Article
TL;DR: In this article, the authors use game theory to explain the power of international adjudication via a set of expressive theories, showing how law can be effective without sanctions, and applying the analysis to a range of third-party efforts to resolve international disputes, including a comprehensive review of the docket of the International Court of Justice.
Abstract: TABLE OF CONTENTS INTRODUCTION I. THE PUZZLE OF COMPLIANCE WITH INTERNATIONAL ADJUDICATION A. Unexplained Compliance with International Dispute Resolution B. The Broader Puzzle of Compliance Without Sanctions II. THE COORDINATING FUNCTION OF ADJUDICATION A. The Pervasive Problem of Coordination 1. Coordination in the Iterated Prisoners" Dilemma Game 2. Coordination in the Hawk/Dove Game B. The Emergence of "Imperfect" Conventions in Iterated Coordination Games 1. The Evolution of Conventions: Background 2. The Imperfect Nature of Conventions: The Problem of Ambiguity a. Conventional Ambiguity b. Factual Ambiguity C. "Perfecting" Conventions Without Sanctions: Two Forms of Third-Party Expressive Influence 1. How Third-Party "Cheap Talk" Influences Behavior in Coordination Games: The Focal Point Theory a. An Introduction to Cheap Talk and Focal Points b. Using Third-Party Cheap Talk to Construct a Focal Point c. Using Cheap Talk to Clarify Conventions: Resolving Conventional Ambiguity 2. How Third-Party Signaling Influences Behavior in Iterated Coordination Games: The Informational Theory D. The Demand for Expressive Adjudication and the Synergy Between Cheap Talk and Signaling 1. The Demand for Adjudication (and the Need for Signaling) 2. The Need for Cheap Talk (and Why Adjudicators Do Not Distinguish Their Signals from Their Cheap Talk) E. The Limits of Expression and the Need for Legal Sanctions III. APPLYING THE MODELS: THE EXPRESSIVE EFFECT OF INTERNATIONAL DISPUTE RESOLUTION A. A Brief History of Interstate Dispute Resolution B. Three Pre-ICJ Case Studies 1. Eastern Greenland a. History b. Ambiguities c. Results 2. Palmas Island Arbitration a. History b. Ambiguities c. Results 3. Conciliation of Japanese Loans a. History b. Ambiguities c. Results C. The International Court of Justice 1. Background of the ICJ 2. The ICJ as Coordinator: Evidence of Compliance 3. The ICJ as Coordinator: Types of Cases a. Border Disputes b. Other Property-Type Disputes c. Diplomatic and Other Immunities 4. The Limits of the ICJ: The Use of Force CONCLUSION Frequent compliance with the adjudicative decisions of international institutions, such as the International Court of Justice (ICJ), is puzzling because these institutions do not have the power domestic courts possess to impose sanctions. This Article uses game theory to explain the power of international adjudication via a set of expressive theories, showing how law can be effective without sanctions. When two parties disagree about conventions that arise in recurrent situations involving coordination, such as a convention of deferring to territorial claims of first possessors, the pronouncements of third-party legal decision makers--adjudicators--can influence their behavior in two ways. First, adjudicative expression may construct focal points that clarify ambiguities in the convention. Second, adjudicative expression may provide signals that cause parties to update their beliefs about the facts that determine how the convention applies. Even without the power of sanctions or legitimacy, an adjudicator's focal points and signals influence the parties' behavior. After explaining the expressive power of adjudication, this Article applies the analysis to a range of third-party efforts to resolve international disputes, including a comprehensive review of the docket of the International Court of Justice. We find strong empirical support for the theory that adjudication works by clarifying ambiguous conventions or facts via cheap talk or signaling. …

62 citations

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