Law-making Function Research Articles

The Political Economy of International Sales Law

The United Nations Convention on Contracts for the International Sale of Goods, or CISG, has been adopted by more than 60 countries in an effort to harmonize the law that applies to international sales contracts. In this paper, we argue that the effort to create uniform international sales law (ISL) fails to supply contracting parties with the default terms they prefer, thus violating the normative criterion that justifies the law-making process for commercial actors in the first instance. Our argument rests on three claims. First, we contend that the process by which uniform ISL is drafted will dictate the form that many provisions take. Second, we contend that the legal form dictated by the drafting process has significant substantive consequences, particularly for the policy objectives of uniform ISL. That leads to our third claim. We predict that in order to achieve uniform ISL that is widely adopted, those involved in the drafting process will systematically promulgate many vague standards that contracting parties would not choose for themselves. These defaults cannot be justified as the inevitable cost of achieving an optimal level of uniformity. If the products of a uniform ISL are default terms that parties do not want, then the underlying justification for the law-making function - reduction of contracting costs - vanishes. We find significant correspondence between our predictions about the drafting of uniform international sales law and the CISG. The CISG was drafted by parties whose objectives did not necessarily coincide with those of the commercial actors whose conduct the treaty was intended to regulate. The result is a variety of vague standards and compromises that appear inconsistent with commercial interests. We also illustrate the ways in which the CISG avoided potential correctives to these problems. We conclude by suggesting that commercial actors involved in international sales would prefer to choose governing law from among legal regimes that compete to supply parties with more desirable substantive terms.

Is there any Indication for Ethics Evidence? An Argument for the Admissibility of some Expert Bioethics Testimony

Professor Imwinkelried is surely right: the propriety of bioethicists serving as expert witnesses in litigation is problematic, and, I would add, it should remain problematic. Such testimony most certainly does not belong everywhere it will be offered by lawyers and litigants in an effort to advance their interests. Yet in contrast to some commentators, Imwinkelried and I both see a place for bioethicists serving as expert witnesses, although we differ significantly on how to understand and justify this place. In any event, serious questions regarding the proper place for expert bioethicist testimony in the courtroom do exist, not only for law but also bioethics as well.The threshold question regarding the prospect of bioethicists serving as expert witnesses would seemingly have to be: “could a bioethicist qualify as an expert witness under the controlling rules of evidence?” Imwinkelried, however, does not perceive any need to even entertain this question as he claims that “technical evidentiary standards are inapplicable when information is presented to a judge to permit the judge to perform… a legislative or law-making function.”

Trade and the Environment: Stuck in a Political Impasse at the WTO after the Doha and Cancun Ministerial Conferences

This article assesses the political dynamics and the legal status of environmental concerns in WTO case law and in the recent WTO negotiations. It explains how the WTO's Dispute Settlement Body plays a crucial role in the determination of the profile of environmental concerns in a trade policy context. It is not only respected by the biggest economic powers but it often has to assume a law-making function due to the vagueness of parts of the WTO agreements. The trade regime takes the environment into consideration only as exceptions to the trade disciplines. The article argues that the political dynamics are stacked against a balanced consideration of trade and environmental priorities, and the perspectives for a significantly improved treatment of environmental issues in today's negotiation climate are assessed pessimistically.

Het Parlement op het einde van de twintigste eeuw : Mogelijkheden en begrenzingen

The Belgian constitutional system is based upon the classic principle of the trias politica, which means that there is a separation of powers, but also a balanced cooperation between them. This article focuses on the Belgian federal Parliament, which bas been, together with the reform of the state from a unitary to a federal state, radically reformed.The Belgian Parliament nowadays is much better equipped to fulfil the function of checks and balances than thirty years ago. The number of staff and the material equipment has increased considerably. At the same time, the emphasis in parliamentary activity bas shifted from the plenary session to the committees. The control upon the budget was long time a nearly empty box. Since the reform of 1989, it has become a much stronger instrument to hold the government to account. The annual debate on the budget is rather a genera/political evaluation of the government policy and is always ended by a vote of confidence.As for the law-making function, the share of the government in adopted laws is much higher than that of Parliament. Parliament bas still the power to amend government bills, but this power is limited because there is often already an agreement between the government and the parliamentary party of the coalition-parties. Nevertheless, several important amendments have been adopted in the last legislature.The control function bas evolved in different directions. Due to an enormous increase in the number of interpellations, they have lost a great part of their importance. They constitute no langer a real threaten to the survival of the government. On the other hand, there are more oral and written questions than before and the use of parliamentary inquiry committees has augmented considerably. Despite their inherent shortages, these committees play, an important role in preparing and correcting policy.The new challenges for Parliament in the future are serving as forum of the nation and the evaluation of laws. The core business of the trias politica, namely budgetary, law-making and controlling duties, also remain to befulfilled by Parliament.

The Rule of Law and the Litigation Process: The Paradox of Losing by Winning

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law

Scuds, Shelters and Retreating Soldiers: The Laws of Aerial Bombardment in the Gulf War

The author looks at whether laws governing war can ever reduce suffering by imposing restrictions on the methods and means of waging war. In particular, the laws of war have tended either to address past technology or to fall victim to the exigencies of war. The author first discusses, without deciding, whether there can be any moral grounding for laws regulating war. Next, he examines the development of laws governing aerial bombardment. Pertinent international laws, protocols and conventions are canvassed. Finally, the efficacy of the laws of aerial bombardment are assessed within the context of three specific events during the Gulf War. The author evaluates whether combatants in the Gulf War adhered to the laws governing aerial bombardment; he concludes that the stronger party's conduct during the Gulf War substantially complied with these restrictions. Such adherence in itself constitutes a law-making function. Thus, although the enforceability of laws restricting war is arguable, the body of law itself can have the limiting effect intended.

The Burden of Decision

The good reasons for judicial intervention in some bioethics cases do not mean that physicians, administrators, and families should routinely seek shift the burden of decision the courts. Over the past three decades the courts have been a major forum not merely for resolving bioethical disputes but for acquainting the public with the hard choices that modern medicine so often poses. The courtroom has become such a familiar setting in this context that we seldom ask: what are we doing here? And yet a hard look at that issue is essential if we are going preserve and enhance the very values articulated in such landmark opinions as Cobbs v. Grant, (1) In re Quinlan, (2) and Barber v. Superior Court. (3) Ironically, the groundwork laid in those cases now requires that judges be more reluctant become involved in the disputes about medical interventions brought before them, lest in the process they subtly erode the high view of human dignity and liberty established in these cases on informed consent, patient autonomy, and the limits of medicine. Of course, no one can deny the importance of the landmarks themselves. The full force of judicial authority and eloquence was needed shake physicians from their predisposition hold onto knowledge, conceal uncertainty, and reserve decision-making power themselves. In opinion after opinion,judges made clear that before treating a patient, a physician must not merely obtain consent but must disclose the information the patient needs make a decision about whether and how proceed. Some commentators have been skeptical that the judges ever meant what they said, so many have been the impediments they placed in the way of patients actually enforcing their rights by collecting damages for violations of their right choose. (4) Yet the medical profession-along with patients and their advocacy groups-has apparently believed the ringing phrases in the judicial opinions, as have the rising corps of bioethicists who take the legal doctrine of informed consent as bedrock. Indeed, only now, after twenty years of debate, are bioethicists seriously struggling with integrating concepts like community into an analysis that has focused almost entirely on autonomy and self determination. Thus, informed consent has had an effect on physicians' attitudes, probably on their behavior, and certainly on how prominent physicians and ethicists describe the ideal physician-patient relationship that is far out of proportion the doctrine's actual significance as a basis for recovery. It has been an influence for good of which the law can be proud, even if judges-like the rest of us-need some time getting used the full implications of what they have written. As manifested by the leading cases on informed consent, good reasons certainly exist for courts become involved in some bioethics cases. When circumstances change in important ways--as in medicine over the past several decades-and existing doctrines seem inadequate or of unclear import, the courts perform a vital law-making function through their opinions in landmark cases. What I find be troubling, however, is both our increasing proclivity turn the courts routinely, especially in treatment-termination cases, and judges' greater willingness to yield spasmodic sentiment, vague and unregulated benevolence, in the trenchant phrase of Judge Cardozo. (5) In this article, I will initially take the typical bioethics case involve a disagreement about the recommended medical intervention (though later I will attempt generalize some conclusions a more diverse group of cases). The clear implication of the informed consent cases is that when disagreements occur, a patient's refusal of recommended treatment will be respected. Formally, courts have supported the notion of informed refusal. Yet the courts have been less robust in support of patient choice when the issue is not liability for inadequate disclosure but disagreement over the refusal itself. …

The Italian Parliament and Legislative Publications: A Concise Survey

This year the Italian Parliament celebrates the thirtieth anniversary of its formation under the Republican Constitution of 1947, which went into effect on January 1st of the following year. Because of the parliamentary system established by the Constitution, the role of the Italian Parliament extends far beyond the law-making function.

The Constitution and the Delegation of Congressional Power. By Sotirios A. Barber. (Chicago: University of Chicago Press, 1975. Pp. 153. $12.00.)

The thesis of this revised and expanded dissertation is that Congress has a duty to perform the function vested in it by the Constitution to make clear policy choices and that it may not repose this power elsewhere. The duty is derived from the expectation in the constituent act of establishing government that neither the government nor any of its parts should change the constitutional arrangement of offices and (p. 37). Only this expectation provides an adequate conceptual foundation for the rule that Congress may not its law-making function to others. All other justifications for the nondelegation rule are inadequate, such as the separation of powers, the common law of agency, due process and the rule of law, the representative principle, or republicanism, although each of these traditional justifications may support some aspect of the rule of nondelegation. From the pristine dictum it follows that Congress may not abdicate the powers vested in it because to do so would violate the simple expectation that it would not do so. Whether Congress may delegate power in degrees of permissiveness short of abdication depends upon the way in which the delegation is framed. Since Congress has a constitutional duty to make clear policy choices among salient alternatives, any delegation that constitutes a failure to choose is invalid. Thus, if the Gulf of Tonkin Resolution is regarded as a delegation, it must be held invalid because Congress did not make a choice among the four available policy alternatives-war with China, war the territory of North Vietnam, limited engagement in South Vietnam, or withdrawal-but evaded its responsibility, and left it up to President Johnson to decide (p. 111). If the Gulf of Tonkin Resolution is seen, however, as an act approving steps thought to be within the preroga-

The People as Law-Makers: Custom, Practice, and Public Opinion as Sources of Law in Africa and England

This essay is an attempt to investigate, assess and compare the role of the “people” as makers of law in a variety of customary societies in black Africa on the one hand, and in England on the other. The studies that may have been made of this sort of question by lawyers, constitutional experts, sociologists, political scientists and the like have rarely, if ever, contrasted the law-making function of the people in the two types of society. Where such a contrast has been made, it has tended to be limited to the proposition that things are quite different in the two types of society. It will be one of the arguments of this essay that, although the procedures and mechanisms of the law may fundamentally differ if one compares a highly developed, industrialised, literate society such as England with a simpler subsistence pre-literate society such as anciently those of the Ashanti and the Sotho, yet in each society, whatever the forms in which power is exercised or however absolute the authority possessed by those in power, yet the people participate constantly and in a variety of ways in a continuing process of law-making. It will be the task of this paper to isolate, describe and compare those ways.

W. F. Willoughby and the Administrative Universal

Perhaps the outstanding feature of William Franklin Willoughby's contribution to American public administration was his systematic insistence that administration is a universal. As such it is as much applicable to the legislative and judicial realms as to the executive departments. No other scholar, to my knowledge, has staked out this position and developed it so rigorously as did Willoughby. I propose to explore the reasons for his taking such a govermentwide view of administration, to say something about his contributions and significance, and to speculate on how his early orientation might serve the interests of the profession and the country today and in the future. Before turning to these matters, however, I should like to set forth the logic of his argument which automatically entailed his regarding administration as a universal of all three branches of government. The main outlines of the thesis are found in The Government of Modern States. In this book, as he did in all his writings, Willoughby favored an analytical rather than a descriptive approach because it does at least two things: it causes one to think clearly and consistently; and secondly, it provides a practical framework for dealing with issues and minutiae which would otherwise soon become distorted and confused. He also distinguished the political state from the government which administers it. The state is a juristic concept relying on sovereignty and lawmaking jurisdiction over its entire domain, external as well as domestic. But since the state is merely a concept, it cannot administer anything itself and must rely upon its government. The government serves common needs that no other institution is competent to undertake. Whether a government is a monarchy or a representative government, its work divides naturally into three parts: the lawmaking function, and the executive and judicial functions, both of which are inextricably related because their intent is to give practical operational effect to the law. Administration is the central ingredient in the whole of governmental operation because all three departments are subject to a common necessity which is to organize, operate, and fulfill distinctive roles which require rationality and cooperation. And since the entire governmental process starts with the legislature, the effectiveness with which the lawmaking branch operates sets inevitable limits to how much the executive and the judiciary may accomplish. The common obligation of all three branches is, therefore, to serve society's needs within the framework of law set down by fundamental documents and juristic agreements. In short, administration is the universal, and its utility consists in the fact that if all three branches are not well-organized and practical, not much of consequence is likely to be achieved by any one of the three. Willoughby's appreciation of this is reflected in his trilogy: Principles of Public Administration (1927), Principles of Judicial Administration (1929), and Principles of Legislative Organization and Administration (1934). It is difficult to say who among his predecessors influenced Willoughby's thinking. His brother, Westel Woodbury Willoughby, clearly did because they were close and thought through their positions together. W. W. Willoughby, reflecting the biases of the time, had little use for the substantiality of public administration as a scholarly field, compared with law; but he was inordinately proud of his brother and applied himself assiduously to understanding this new field, even though it was not his natural bent. W. F. Willoughby, on the other hand, was highly competent in public law and had an interest in fundamental concepts equal to his brother's, although he never made a deep study of general political theory and of oriental theory as his brother did. The only other scholar who influenced Willoughby deeply, so far as I know, was Woodrow Wilson. There were at least two professional links: Wilson had done his Ph.D. at Johns Hopkins and had taught there; later they were both to be at Princeton. There is also evidence that Wilson's book, The State, may have influenced him to write The Government of Modern States, although the two are quite dissimilar in their rigorousness. Also influential, because frequently quoted, was Woodrow Wilson's Congressional Government and the writings of several British authors, some of whom he got to know when he, his brother, and Samuel McCune Lindsay went to Britain and, in conse-

Direct Legislation: An Appraisal and a Suggestion

The United States has now had a half-century's experience with the process customarily denominated direct legislation. The phrase usually means, and is so used here, the power of the electorate to participate in the law-making function by voting for or against particular proposals submitted at regular or special elections. The proposals may have originated in the legislative assembly or they may have been submitted through the action of the electorate. There are other procedural details in which the processes in particular states may vary, but here the concern is with the general operation of the system. Perhaps more attention has been devoted to that situation in which the legislature has the option of submitting a proposal or not as it sees fit. It is not thought, however, that this detail would cause any serious difference in the conclusions that are drawn here or the suggestions that are made.Direct legislation has been associated with the Progressive movement which was active at the turn into the present century. The movement was a protest against a number of activities which were prevalent among the states at that time. One of the protests alleged that the legislatures had become wholly “corrupt” and that consequently it was necessary to “clean” them up. This line of analysis also postulated that the people were “incorrupt” and that if given the opportunity they would “purify” the political activity of their states and even the nation. Direct legislation was looked upon as one of the most significant means by which these goals were to be accomplished.

The Investigative Function of Congress

In the winter and spring of 1923–24 a blizzard of congressional investigations swept the national capital. Party lines were tied up, statesmen were snowed under, and Washington officialdom was chilled by a storm of inquiries into the conduct of government departments. Scarcely a corner of the administration escaped inquisition. The subjects of inquiry ranged from the naval oil reserve leases at Teapot Dome and Elk Hill to the administration of the Veterans' Bureau under Director Forbes of dubious fame. Upwards of two-score inquests were instituted by Congress, through its committees, into the official behavior of the executive branch of the national government. In the end, and as a direct result, two cabinet members lost their portfolios.Such wide and effective use by Congress of its committees for the purpose of inquiry and examination of administrative conduct raised certain questions in the minds of students of government. What were the constitutional limits of the investigative function of Congress? What was the relation of this function to the law-making function and to impeachment? Was punishment by impeachment a satisfactory remedy for official misconduct, or had it become obsolete as too cumbersome? Did the vote of the Senate calling for Secretary Denby's resignation usher in a new process in this country? Should cabinet officials be required to appear on the floor of Congress and answer questions? Would this be preferable to investigating their actions long after they have been performed? Does the steady increase of federal powers necessitate greater supervision by Congress over the President and administrative officers? Have students of politics overlooked a function of Congress frequently and forcibly exercised for the control of administration?

Legislation as a Social Function

Of the two agencies of law-making in our legal system, one is thoroughly conscious that it is making rules and imposing standards, while the other purports to wholly unconscious of power to do anything of the sort. The legislator, holding that law is a conscious product of the human will, takes it for unquestioned that he has but to ascertain the will of the sovereign with respect to the civic conduct of individuals and put such will in the form of chapter and section of the written law. In his view the prefatory be it enacted, so far as anything beyond political responsibility is concerned, justifies what follows. On the other hand, the judge, holding that law is something found, not made, that it is reason, not will, and believing that in the long run conscious law-making can achieve little beyond authoritative declaration of what has been discovered in the determination of controversies, proceeds haltingly. He persuades himself to overlook the law-making function which everyone who administers justice must necessarily wield. Hence the one is prone to attempt far too much and to careless how he carries out the details of what he attempts. Quod Principi placuit legis habet vigorem may the theory of popular as well as of imperial sovereignty. In either case, the feeling that a declaration of the sovereign will suffices to make law gives rise to a mass of arbitrary detail that cannot obtain the force of law in practice; The other agency of law-making, on the other hand, attempts much too little and carries out what is attempted too cautiously and too doubtingly. For the judge is hampered at every turn by the theory that he can only discover, that the principles of the unwritten law are invariable, and that application of a rule which has at least a potential logical pre-existence in the received system is his sole function. What he does attempt is of necessity limited