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Volume I Issue 2 (April 2014)

1. The Morality of Achilles: Anger as a Moral Emotion by Adam Wallwork of the University of Chicago Law School, at 333–365.

Abstract. Anger is central to moral and legal decision-making.  Angry individuals reason differently than people in a temperate state. Aristotle and the ancient Greeks understood anger’s practical role in forensic argument and moral judgment—an intuition modern psychologists have largely confirmed. Psychological experiments show that people primed to anger will draw different inferences than people in a tranquil state of mind from the same factual circumstances. As Aristotle understood, our ability to reach conclusions about a set of facts is influenced by emotional processes such as anger. This article analyzes competing views of anger in contemporary moral philosophy. It uses cross-cutting psychological, biological, sociological, anthropological, historical and philosophical arguments about the experience and expression of anger to critically assess leading philosophical accounts of the role of anger in moral and judicial decision making.

Keywords: Legal Reasoning, Law and Psychology, Legal Theories, Law and Moral Theory, Legal Philosophy, Jurisprudence.

2. The Preamble in Constitutional Endurance: Preambular Content and Its Effect on the Lifespan of National Constitutions by Leah Fiddler, the University of Chicago Faculty of Social Science, at 366–422.

Abstract. Why do some constitutions endure longer than others? This is the question the author attempts to answer in this article by examining the role that preambles play in constitutions. The author situates preambles as a site of intense political controversy, given that they are being written and are often cited in political rhetoric. But do they have any actual effect on how a constitution operates in society or how long it lasts? To answer this question, the author utilizes a Cox Proportional Hazard to examine an original data set of preambles drawn from the constitutions housed within the Comparative Constitutions Project. Numerous variables that may have affected the endurance of the constitutions as a whole were coded in each of the preambles. In total, the dataset and statistical model include 405 constitutions. She finds that, consistent with previous research on constitutions generally, the year in which a preamble was drafted affects constitutional endurance. Additionally, preambles referencing the constitution's drafting process are associated with reduced constitutional lifespan, while those that reference international legal instruments are likely to last longer.

Keywords: Constitutions, Preamble, Comparative Law, Empirical Legal Studies, International Law, Constitutional Change, Legal Reform.

3. International Law and Ungoverned Space by Matthew G. Hoisington of Office of Legal Affairs, United Nations, New York, at 423–471.

Abstract. Ungoverned spaces, strictly defined as “spaces not effectively governed by the state” exist all over the world, presenting particular difficulties to public international law, which is historically premised on sovereignty and state control. Examples of such spaces include cyberspace, south-central Somalia and the Federally Administered Tribal Areas along the Afghan-Pakistan border. These spaces destabilize the international system in novel ways—and they might also be dangerous. Many of the terrorism plots from the late twentieth and early twenty-first century emanated from “safe havens” afforded by ungoverned spaces. The lack of governance over certain spaces also raises concerns over development, including the health, education, human rights and economic welfare of affected populations. To address the challenges posed by ungoverned spaces, both to the discipline of international law and to the stability of the international system, this article derives a nuanced understanding of the issue from both the security and legal literatures and then formulates three techniques—state responsibility, principled engagement and radical reimagination—for dealing with the issue through the application of international law. Through this process it develops a complex argument on how international law should apply to ungoverned space.

Keywords:  Deviation, Ungoverned Space, Innovation, Technique, Reimagination, Governance. 

Abstract. The AEC, scheduled to be established in 2015, will promote skilled labor mobility among the ASEAN Member Countries. There is convincing evidence that establishing the AEC (along with the skilled labor mobility provisions) could bring benefits to the ASEAN Member Countries. Yet some criticism of the AEC’s potential efficacy exists. However, surprisingly few scholars have debated about the proficiency of the provisions. This article neither examines the costs and benefits of the AEC agreement nor provides conclusions as to which professions should or should not be included in the agreement. Rather, this article examines whether the skilled labor mobility provisions introduced by the AEC are pragmatic. The focus here also centers on indicating potential obstacles to skilled labor mobility. The main argument of this article is that the skilled labor movement provisions of the AEC will facilitate skilled workers who have already planned to seek employment and relocate to another country. Yet notwithstanding this facilitation, this article holds that the provisions do not provide many incentives to encourage mobility among other skilled workers who still reside in their home country. Thus, the labor mobility rate among the ASEAN Member Countries will not substantially increase because of these provisions. This is because the national legal systems, (which are not compatible with the mobility policies), discourage worker migration because of barriers such as lack of recognition of qualifications, insufficient information provided for workers, and the nature of social structure. Facilitation for the practical aspects of labor mobility is needed in order to successfully increase the effectiveness of the provisions. The theoretical approach utilized in this project is comparative methodology. This project utilizes a legal analysis as well as subsequent critical comparison to put forward solutions to increase the effectiveness of the labor mobility provisions. 

Keywords: Skilled Labor Mobility, Labor Movement, ASEAN Economic Community (AEC), ASEAN, Comparative Law.

5. Rocking the Vote: How Preclearance Became Powerless and the Way to Bring the Power Back by Theresa Bodwin of Michigan State University College of Law, at 502-542.

Abstract. This article provides a short summary of the history of voting rights in the United States. Additionally, this article provides a detailed report on the Voting Rights Act and the amendments to the Voting Rights Act. Specifically, this article focuses on the recent changes to the Voting Rights Act, which were brought about by the ruling in Shelby County v. Holder. The Supreme Court ruled in Shelby County v. Holder, that Section 4(b) of the Voting Rights Act was unconstitutional. Although the Court ruled that the coverage formula of Section 4(b) was unconstitutional, the Court made no ruling on preclearance, which is covered in Section 5. Moreover, the Court stated that Congress is able to pass a new formula to replace Section 4(b). This paper proposes a new formula to replace the old formula in Section 4(b). The new formula should be based off of voter turnout data from the three most recent Presidential Elections. However, the most recent election should be weighted more. The formula should then look at the minority voter turnout in the three most recent Presidential Elections. If the majority voter turnout in a specific jurisdiction or state is more than 10 percent, then the jurisdiction or state will be subject to preclearance of Section 5 of the Voting Rights Act. This paper unfolds in the following way: first, there is a brief history of the Voting Rights Act; second, the Voting Rights Act and the amendments to the Voting Rights Act are discussed; third, evidence of current discrimination in voting is provided; and finally, the potential new formula is described.

Keywords: Democracy, Voting Right, General Election, Law Reform, Presidentialism.

6. Sovereign Wealth Funds in the ICSID: A New Approach to Standing by Christopher Beus of the University of Utah SJ Quinney College of Law, at 543–571.

Abstract. Sovereign Wealth Funds (SWFs) are receiving increased attention in the sphere of international foreign investment due especially to their instrumentality in the recovery from the recent financial crisis. They present new challenges to investment tribunals such as the ICSID in determining the nature of these entities and, in particular, whether they are public or private in nature. This characterization is important for the purposes of ICSID standing. To date the tribunal of CSOB v. Republic of Slovakia is the only ICSID tribunal to directly take on the issue of standing as it relates to such entities. CSOB hinged its determination of an entity’s relationship with the government almost entirely on the governmental versus commercial nature of the specific activities of the entity in question.

This article explores an alternative approach to CSOB’s methodology in the form of State Attribution doctrine. State Attribution may provide a way to remedy the shortcomings of CSOB’s approach by using a variety of factors adaptable to the diverse and complex relationships between governments and SWFs. More importantly, it could open the way for inquiry into the purpose behind an entity’s actions in making such determinations. These enhancements could better address the concerns of the ICSID and the international community generally as they relate to SWFs. 

Keywords: State Responsibility, Commercial Dispute Settlement, Foreign Direct Investment, International Arbitration.

7. The Olympic Curse: Protecting the OIympic Dream for Host Cities and Their Inhabitants by Ankur Singhal of the University Chicago Law School, at 572-607.

Abstract. The Olympic Games are a study in contrasts. Often thought to be a blessing for host cities—an opportunity to recreate themselves and welcome the world in the name of international cooperation and sport—it has also become something of a curse for both the city, its inhabitants, and the Olympic Movement in general. Unfortunately for human rights advocates, the Olympics have developed a dark side in which the powers at be, most specifically the International Olympic Committee, favor magnificent Games over the human rights violations that occur in creating that magnificence. Since the human rights situation has not improved from one Olympiad to the next, this Article argues that the international community must pressure the IOC to better take into account human rights issues when selecting host cities. Specifically, this article revisits and adds to previous scholarship by discussing ramifications of the Games on host city inhabitants. It also provides a road map for how the international community can pressure the IOC to better take into account human rights issues for future Olympiads.

Keywords: Olympic Games, Human Rights, Sports Law, International Law, the Law of Responsibility.

This article first posits that the Holy See and its temporal representation, the Vatican City, constitute a sui generis state, endowed with all rights and responsibilities reserved to every sovereign state. It further argues that molestations of children and, the ensuing cover up by bishops and priests can be attributable to the Holy See, thus making it responsible for committing wrongful acts under current principles of international law. It furthers argues that these wrongful acts may amount to international crimes, thus triggering the individual responsibility of bishops as well as that of the former Pope.

Keywords: Sex Crimes, Human Rights Violations, Holy See, State’s Responsibility, International Criminal Law. 


9. A Defense of the International Human Rights Regime by Rhoda E. Howard-Hassmann of Balsillie School of International Affairs at Wilfrid Laurier University, at 627-636. 

Abstract. A common criticism of the international human rights regime is that it is overly Western and liberal. Often this is phrased as a “third world” or “southern” critique of human rights, or as an “African”, “Asian” or “Muslim” critique. Some scholars of indigenous societies and their interactions with the international human rights regime also believe this: in this note, I analyze the arguments made by one such Canadian scholar, Peter Kulchyski.

Keywords: Individualism, Human Rights Theories, Liberalism, Cultural Relativism, Indigenous People's Rights.