“The Euro and the European Demos: A Reconstitution,” Year Book of European Law 21:13-61 (P. Eeckhout and T. Tridimas, eds., Oxford: Oxford Univ. Press, 21:13-61 (2002).
Abstract: The introduction of a single currency within most of the EU is an event with great practical and symbolic effect. For those hoping for the creation of a European state, these symbols and effects portend a move toward greater union, one step closer to federation. For others, the Euro portends a forced amalgamation of incompatible parts, a regression to a time within Europe before the passions of self-determination forged the current political map of Europe. This article examines two of the great criticisms of closer union. The first – that there is no singular people to be united within one ‘state.’ The second – that whatever the merits of union, the movement toward amalgamation is involuntary; union will not be a sovereign act of the people, but rather the culmination of a manipulation by powerful unseen actors within Europe to which people otherwise might be indifferent or opposed.
With respect to the first, the article posits that a European demos exits, that is, Europe is constituted as an amalgamation of related groups which together form an organic community sufficient for state formation. What has prevented recognition of the existence of this community has been the now tradition bound refusal to look realistically at community beyond current national borders. But Europe is at last moving toward common socio-cultural agreement on the level of Volk generality within which the communal elements of a state are to be found, one which includes continent, nation and tribe. The creation of a European Union began a process of changing common agreement about that place from the post-Reformation nation-state to a larger geography.
With respect to the second criticism, the article considers the effect of the ‘conspiracies of the elites’ theories on the integration debate. The essence of the second criticism is dependent on a successful deployment of culturally apocryphal and significant patterns of demonizing change or explaining events. These patterns, used effectively to destroy or marginalize ethnic, racial, social and religious minorities, have been resurrected to demonize both the process of constituting Europe as a meta-demos, and the acknowledgment of a living vitality of a European Volk. The arguments about the EU’s democratic deficit fall within this error by suggesting that union is illegitimate and inauthentic – an involuntary and artificial construct of anti-democratic elites.
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“Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach,” Journal of Legal Education 52(3):317-341 (2002)
Abstract: This essay examines the debate on scholarship and scholarly activity by law school faculty. Focusing on flexibility, transparency and process, it offers a different model for judging a faculty member’s contribution to the scholarly mission of the profession. The essay first examines the context in which discussions of scholarship may occur. It then examines the way that discussion is skewed by other issues, principally the objectification of scholarship goals. The essay then sets out an alternative approach to the identification and measure of scholarship focused on faculty members as self-conscious contributors to learning rather than on the production of some narrowly defined object. The approach stresses a process-based system grounded in principles of transparency, self-reporting, self-evaluation, and the transmission of scholarship to others. The goal is to create a system that permits some flexibility in the form that scholarship can take, while maintaining a rigorous standard for judging that contribution. The essay splits that goal into eight parts that focus on (1) specificity, (2) measurability, (3) transparency, (4) personal effort, (5) outreach, (6) integration, (7) sharing, and (8) consistency.
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“Race, ‘The Race,’ and the Republic: Reconceiving Judicial Authority After Bush v. Gore, Catholic University Law Review 51(4):1057-1113 (2002).
Abstract: The federal Supreme Court opinions in Bush v. Gore cast in stark light the manner in which constitutional interpretation is preparing the way for constitutional transformation: a federalization based on devolution of authority from the central government to the states, a shift in interpretive authority from the state to federal courts, and a narrowing of what it means for a court to “say what the law is” with a resulting transfer of interpretive authority from the courts (and ultimately even the federal Supreme Court) to the political branches of the central government. These transformations are tinged with irony. The changes are being made possible by jurists who – though paragons of the strictest traditional interpretation of Constitutional norms – now embrace the philosophy of judging they have spent a lifetime fighting. Yet in their hands, the activist and evolutive jurisprudential philosophy utilized by the Supreme Court since the mid 20th Century is used to unmake the substantive results for which they were crafted. It seems, then, that the authentic heirs of the activist mantle of the Warren Court are those jurists who, though professing a desire to destroy the Warren Court’s legacy, have actually taken the work of the Warren Court to new heights, opening the way for another mutation of the Republic. In another ironic twist, the Bush cases are as much about the jurisprudence of racial revenge as it might be about the regulation of the election of the federal president. It’s lessons in that regard are both drawn from, and now constitute a part of, that growing jurisprudence in which the structure of government, the nature of our federal system, the scope of fundamental rights, the constitution of state government, the structure of the state, are all maneuvered like so many chess pieces in an infinitely complicated game of caste politics. Thus the ultimate irony in a game of institutional strategic moves within moves: per curiam, concurrence and dissents have made it possible for others, at their leisure, to find, within the arcana and lacunae of the Constitution, other places from which it can be divined that states and their governments, that courts and their judging, can be limited or controlled.
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“The Sarbanes-Oxley Act: Federalizing Norms for Officers, Lawyer and Accountant Behavior,” St. John’s Law Review 76:897-951 (2002).
Abstract: In response to a number of corporate scandals, the federal government enacted the Sarbanes-Oxley Act of 2002. The Act creates a framework for the oversight of the accounting profession and its practices by the government, imposes a number of certification requirements on corporate officers, restricts a number of corporate practices involving trading of securities by and loans to corporate officers, imposes reporting duties on lawyers, and provides protection for employees who disclose violations of law by corporate officers or directors. This paper explores some of the changes made by the Act in a practice context by discussing the way the Act might affect behavior in a number of business situations: people considering the offer of a position as a corporate officer; accounting firms seeking to perform audit and other functions for a corporate client; restrictions of loans to officers, including advances of fees pursuant to indemnification agreements; the adoption of financial codes of ethics; obligations of lawyers to report evidence of wrongdoing; the obligations of management to implement internal accounting and disclosure systems and to disclose wrongdoing; and protections for employees reporting wrongdoing; the new criminal penalties for wrongdoing by corporate insiders. The relationship of the provisions f the Act to state corporate law and the Act’s inconsistencies, traps for the unwary and unanswered questions are also explored.
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“Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism,” Penn State International Law Review 21(1):115-155 (2002).
Abstract: There appears to be a trend towards convergence of individual human rights norms. Universal individual human rights has become an increasingly accepted part of the institutional norms of nations in the Western Hemisphere. Educators across the Americas have an important, perhaps critical, role to play in the internalization of universal individual human rights norms within the legal systems of the nations of the Americas. Law schools best serve this role by incorporating human rights education into the core curriculum in every law school in the region. But, the human rights mission of legal institutions in the Americas faces serious challenges, which are explored in this paper. In the United States, individual rights is still assumed to be a wholly endogenous product, the source of which is limited to federal and state constitutions. Human rights education is marginalized, confined to the ghetto of specialization within the fields of international and comparative law. In Latin America, the opposite is true. Human rights is taught, but as the universalizing product of exogenous origin and control. The rich human rights traditions of Latin American nations are marginalized. The result is the construction of a rights edifice that is foreign, a hollow internationalism. Nevertheless, the problem of legal parochialism and hollow universalism can be overcome and the paper concludes by offering some examples and suggestions of methods by which this process can be started.
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“Religion and the Discursive Language of Same Sex Marriage,” Capital University Law Review 30(2):221-278 (2002)
Abstract: The debate over the availability of the institution of marriage to couples of the same sex, like that over the regulation of abortion, has reached the point of exhaustion. Everything that can be said has been said, everything that can be done has been done. And yet, there is no victory fo either side of the debate. For advocates of same sex marriage, this state of affairs is particularly distressing. Once confident of carrying the country after decisions in Hawaii, Alaska, and Vermont, appeared to eliminate legal barriers to same sex marriage, these advocates now again confront the reality of deep division relating to the extension of the dignity of marriage to couples of the same sex. Opponents of same sex marriage work towards their goal with renewed vigor, backed by a reinvigorated political establishment peopled by those who find the notion of same sex marriage revolting, and a language of religious discourse that is finding increasing favor within the American polity. Faced with this dynamic and unfavorable political reality, advocates have been forced to renew tired arguments or satisfy themselves with an unfavorable, and unstable, political settlement such as the civil unions of Vermont. This paper explores the nature of the exhaustion of argument about same sex marriage. It suggests that fatigue is a product of an aversion to an embrace of the most powerful weapon in the arsenal of traditionalists – religion, religious discourse and religious community – in the service of marriage between all affective couples. The road to the legitimization of same sex marriage lies through the work of emerging communities of faith and their religious discourse. In a deeply religious land, only acts of faith that embrace as an article of that faith the marriage rights of people of the same sex, can effectively respond to the arguments of other communities of faithful. The article ends with a proposed plan of action for the maximum effect of the new religions in carving a space for same sex marriages.
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Forward: “Constituting Nations – Veils, Disguises, Masquerades,” Penn State International Law Review 20(2):329-338 (2002).
Abstract: The instrumentalities of law, like those of theory and philosophy, have been used both to cloak and unmask the relationship between authority and power. The instrumentalities of constitutionalism and self-determination have been used to constitute nations where none had existed before and burst apart others that had thought themselves whole and complete. In the face of these disjunctions between the law as formulated and the law as practiced, between what is seen and what is felt, between what occurs and what is believed, many choose to remain comfortably within the postulates and assumptions from which the law springs. Much of what passes for the study of law in the United States assumes the answers to the difficult foundational questions, so that time can be spent worrying about the most efficient means of enforcing those assumptions through law, or investigating the utility of law to serve the assumptions. This essay examines three articles by John Strawson, Patrick Hanafin and Barry Collins that provide a window behind the veil of law, constitutionalism and nation creation. The subjects of their study – Ireland/Northern Ireland and Israel/Palestine – stand at the psychological core fo Western legal and political theorizing since the middle of the 20th century. Each paper focuses on the for the most part Western exercise in critical self-examination, ripping veils of misdirection in the constitution of systems of governance or ideas of the nature and extent of the constitution of nations.
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