Re-membering Armenian Literature in the Soviet Borderlands

This article focuses on Armenian literature during the Soviet period and engages with the varied responses of Armenian writers to the Soviet imperialism from its periphery, with a particular eye to poets like Hovhannes Shiraz and Eghishé Charents, who, despite the censor’s unrelenting efforts to silence national discourse and remembrance of the Armenian Genocide, sought to rekindle the Armenian sense of self. This article also attempts to highlight the poetic sensitivity and daringness of those Armenian literati, such as Derenik Demirchian, Gurgen Mahari, and Kostan Zarian, who believed it was their duty to faithfully depict the current historical moment, even in the face of its inhumanity, as under Stalin, in order to preserve and re-member their nation’s past. Although a nation with millennia of literary history, Armenian literature remains virtually unknown outside the small group of Armenian speakers within the country and in its diaspora. This article hopes to shed some light on twentieth-century Armenian literary development and in the process counter the continued monopoly of Russian literature on Soviet  and post- Soviet literary discourse by expanding its imaginative territory

Against Global Governance in the WTO

This essay argues that the World Trade Organization should not become a forum for global governance in non-trade matters. It responds to those, like Professor Andrew Guzman, who believe that the WTO\u27s success suggests that the organization should be transformed into a forum for cross-issue regulatory bargains among member nations on issues, ranging from the environment to human rights, that are not easily resolved in existing international fora. We show that the current focus of the WTO - the reduction of barriers to international trade and the resulting promotion of private contracts - does not require the organization to face the agency problems inherent in regulatory structures. By contrast, global regulatory deals, even more than domestic legislation, may serve as vehicles for interest-group transfers. We also explain how the WTO\u27s rigorous enforcement mechanism might actually inhibit cross-issue bargaining among member nations. Substantive regulatory bargains would necessarily increase the discretion exercised by WTO dispute settlement tribunals. This increased discretion would entail a lack of predictability that could well be intolerable for WTO members, particularly developing countries. We end by arguing that the WTO can best contribute to the long-run improvement of regulatory standards by deepening its commitment to reducing barriers that prevent trade among the nations of the world

Against Global Governance in the WTO

This essay argues that the World Trade Organization should not become a forum for global governance in non-trade matters. It responds to those, like Professor Andrew Guzman, who believe that the WTO\u27s success suggests that the organization should be transformed into a forum for cross-issue regulatory bargains among member nations on issues, ranging from the environment to human rights, that are not easily resolved in existing international fora. We show that the current focus of the WTO - the reduction of barriers to international trade and the resulting promotion of private contracts - does not require the organization to face the agency problems inherent in regulatory structures. By contrast, global regulatory deals, even more than domestic legislation, may serve as vehicles for interest-group transfers. We also explain how the WTO\u27s rigorous enforcement mechanism might actually inhibit cross-issue bargaining among member nations. Substantive regulatory bargains would necessarily increase the discretion exercised by WTO dispute settlement tribunals. This increased discretion would entail a lack of predictability that could well be intolerable for WTO members, particularly developing countries. We end by arguing that the WTO can best contribute to the long-run improvement of regulatory standards by deepening its commitment to reducing barriers that prevent trade among the nations of the world

Markets and Morals: The Limits of Doux Commerce

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from tradition, which suggests we should be careful attributing too much to markets’ ability to promote liberal pluralism. According to Burke, it is the Western tradition, not commerce, which creates the tolerant, pluralist marketplace of the doux commerce thesis. That Burke was correct is suggested by several historical examples and by contemporary events in the United States and across the globe. That is not to say that Oman is entirely wrong about the potential political benefits of the market, only that we should be careful not to overstate them

International Decision: United States--Continued Dumping and Subsidy Offset Act of 2000

This brief article is a report of an international decision of the World Trade Organization Appellate Body on January 16, 2003, concerning the United States’ Continued Dumping and Subsidy Offset Act of 2000 (WT/DS217 & 234/AB/R). Eleven WTO members—Australia, Brazil, Canada, Chile, the European Communities, India, Indonesia, Japan, Korea, Mexico, and Thailand—filed a challenge to the Byrd Amendment in the summer of 2001. A WTO dispute settlement panel, agreeing with the complaining parties, made two major findings. First, the panel concluded that the Byrd Amendment constitutes an impermissible specific action against dumping and subsidization under the Antidumping and SCM Agreements. 9 Second, the panel concluded that the Byrd Amendment is inconsistent with the Agreements\u27 requirement that investigations of dumping and subsidization have the support of a domestic industry. The panel reasoned that many firms might file or support applications for relief from dumping and subsidization, even if they were not really affected by import competition, simply in order to qualify for Byrd Amendment distributions. The United States might thus initiate an investigation even though actual support in domestic industry was lacking. On appeal, the Appellate Body upheld the panel\u27s holding that the Byrd Amendment constitutes an impermissible action against dumping or subsidization, but reversed the panel\u27s holding on the industry-support question. With respect to the first issue, the Appellate Body noted that the Antidumping and SCM Agreements provide that [n]o specific action against dumping or subsidization may be taken by a member except as authorized by WTO rules. The Appellate Body easily concluded that the Byrd Amendment constitutes a specific action for these purposes. Payments under the Byrd Amendment, it explained, are inextricably linked to, and strongly correlated with, a determination of dumping or subsidization. Without a determination of dumping or subsidization, there would be no antidumping or countervailing duties to distribute

Of Human Dignities

This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church, the Russian Orthodox Church, and the Organization of Islamic Cooperation favor objective understandings which, although they differ among themselves, all tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it

Rediscovering Williston

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston\u27s jurisprudence presents an incomplete and distorted picture. While much of Williston\u27s work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today\u27s new formalism than commonly supposed. Even the under-theorized quality of Williston\u27s scholarship—to contemporary readers, the least appealing aspect of his work—makes certain amount of sense, given his goals and intended audience

Of Human Dignities

This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church, the Russian Orthodox Church, and the Organization of Islamic Cooperation favor objective understandings which, although they differ among themselves, all tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it

Judging International Judgments

What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly has ruled that the United States has violated the VCCR. In its 2004 Avena judgment, the ICJ ruled that, where American courts had convicted foreign nationals and sentenced them to severe penalties, the United States must remedy its violations by providing judicial review and reconsideration of the convictions, notwithstanding procedural bars under local law. The United States withdrew from the Optional Protocol after Avena, thereby eliminating the possibility of future adverse judgments in VCCR cases. It remains party to scores of other agreements granting the ICJ jurisdiction to resolve disputes, however, and the domestic force of ICJ rulings, and international judgments generally, remains a vital question. In the much anticipated Sanchez-Llamas v. Oregon, a divided Court issued its most definitive ruling yet on subject. Sanchez-Llamas concerned the weight that domestic judges should give to Avena and other judgments that the ICJ had issued before the United States\u27 withdrawal from the Optional Protocol. More specifically, the case concerned the effect that the ICJ\u27s interpretations of the VCCR should have in American courts. Both Chief Justice Roberts and Justice Breyer agreed that the ICJ\u27s judgments merited \u27respectful consideration. They disagreed, though, on what respectful consideration required. The Court\u27s opinion reflects what might be called a dualist approach: in the absence of a domestic act of incorporation, international judgments have only information, not disposition, value for domestic courts. International judgments can supply good arguments and helpful analysis for domestic courts to use in their own treatment of legal problems, but they cannot influence a case by virtue of their status as judicial pronouncements. By contrast, the dissent adopts the comity model. That model calls for an informal, cooperative relationship between international and national judiciaries. On this view, international judgments lack binding authority, but domestic courts should defer to them, where possible, in the interests of justice and global uniformity. This Article will show why the dualist approach affords the superior means of accommodating the sort of international judgment at issue in Sanchez-Llamas. Part I describes Sanchez-Llamas, situating the case in the context of the wider VCCR controversy of which it is a part. Part II explores the deeper arguments that lie below the surface in the case. Part II(A) shows how the Court\u27s opinion reflects a dualist approach and discusses the legitimacy arguments that support that approach. It shows how dualism allows domestic judges to balance the competing demands of international order and domestic authority. Part II(B) explores the comity model that the dissent endorses and explains why the Court was right to reject it. Part III concludes