Abstract:
Arbitration is a creature of contract. It is a mode of dispute resolution which is only available to parties who have agreed to resort to it. Yet, it is widely perceived as the most suitable and the dominant method for the settlement of international commercial disputes. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? The Article explores whether arbitration could become a default solution and thus lose its contractual foundation. The core of the Article discusses the numerous objections that such a proposition raises. Most importantly, I argue that the legitimacy of arbitrators would not be significantly lower than the legitimacy of courts, and that recent developments in specialized fields of international arbitration have shown that arbitrators can serve the public functions of courts. At the end of the Article, a model of non-consensual arbitration is proposed.
Abstract:
The prevalence and influence of Internet users and bloggers has risen exponentially in recent years,1 even to the extent that "citizen journalism" can cause the downfall of a prominent and respected network news anchor. In the flurry of "Memogate," anonymous bloggers, unaffiliated with traditional news media organizations, called into question the credibility of the documents DanRather revealed in a CBS News broadcast. When the bloggers' reporting resulted in Rather's resignation, they were dubbed "the Woodward and Bernstein of Rathergate."At a time when an individual sitting in front of a computer can wield enormous political and social influence through his or her journalistic efforts, the traditional concept of what constitutes a journalist or a member of the news media should change. Today, citizens can disseminate news to the public themselves, regardless of their professions, resources or training. The traditional top-down system of the news media and the age of the nightly network news broadcast has transformed into a system of bottom-up newsgathering. Under this system, everyone, "regardless of who they are, why they write or how popular they are," can become a journalist. The increased ease of reporting associated with advancing technology, however, complicates the legal questions surrounding the First Amendment freedom of the press, the logistics of newsgathering, and the state testimonial protections for reporters. This Note argues the federal government should create a testimonial privilege for newsmen, either by statute or common law. This "reporter's privilege," consistently claimed by reporters and rejected by common law courts, is essential to an efficient and effective free press. This is especially true in light of the traditional role of the press as the "Fourth Estate": a fourth branch in the system of government checks and balances.This Note examines the complexities of the reporter's privilege and how it has been interpreted in the context of advancing technology. Part I examines the history of the debate behind the reporter's privilege, stemming from the newspapers. Part II explores the question of privacy and its unique application to the anonymity that the Internet provides to bloggers and online newsmen. Part III discusses the legal questions surrounding blogs more specifically, including the courts' current rulings that relate to Internet speech and newsgathering. In Part IV, this Note argues that bloggers should be considered journalists, and calls for a federal shield statute that protects all newsmen from compelled testimony in response to a subpoena. The proposed statute would apply regardless of the medium these reporters employed in the dissemination of news. It further proposes that the criteria for determining who qualifies for the federal privilege should be based on the product an individual produces, rather than professional affiliation or chosen medium. Yet, to address the interests of the justice system and of civil plaintiffs, this Note proposes an exception to the grant of privilege for misprision of felony, an additional statutory protection for whistle blowers, and a balancing test to accommodate the differing priorities of parties to a civil claim.
Abstract:
This essay reviews the state of game theory in legal scholarship and finds that it remains excessively focused on one tool: the Prisoners' Dilemma. I claim that this focus is not justified, that it distracts legal scholars from exploiting other insights of game theory, particularly the problem of coordination. I show how the need for coordination is as pervasive and important to law as the Prisoners' Dilemma, illustrating with game theory discussions of constitutional law, international law, property disputes, traffic, culture, gender roles, and many other topics
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