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Revkin argues for urgent revision of ineffective — and even harmful — accountability and reconciliation mechanisms of transitional justice
A new feature article co-authored by Associate Professor of Law and Political Science Mara Revkin argues that there is urgent need for the field of transitional justice to learn from a growing body of empirical research, including new data from public opinion surveys in current conflict-affected areas, to develop evidence-based policies and programs that achieve their intended objectives.
In "Evidence-Based Transitional Justice: Incorporating Public Opinion into the Field, with New Data from Iraq and Ukraine," published in The Yale Law Journal, Revkin and co-authors Ala Alrababah and Rachel Myrick use empirical evidence to identify a major problem in the field of transitional justice: numerous studies in diverse contexts have found that some of the most well-known transitional justice mechanisms, including those employed in South Africa, Rwanda, and Cambodia, failed to achieve their objectives of peacebuilding and reconciliation.
And in some cases, these policies had harmful consequences for their intended beneficiaries, including re-traumatization and perceived “justice gaps” between victims’ preferred remedies and their actual outcomes.
Transitional justice emerged in the 1980s to assist Eastern European and Latin American countries emerging from authoritarian and communist regimes in their transitions to democracy. But the field has grown so rapidly that it is outpacing its capacity to learn from past mistakes, the authors write.
In the article they critically review the intellectual development of the field, consolidating empirical findings from 329 relevant studies across disciplines — law, political science, sociology, economics, public health, psychology, and anthropology — and identify open debates and questions for future research.
In addition to reviewing previous research, they also present new data from original public opinion surveys in Iraq and Ukraine relevant to ongoing transitional justice efforts in those countries, using this evidence to identify lessons learned, including mistakes, in the design and implementation of previous transitional justice processes.
"The similarities and differences across our survey findings in Ukraine and Iraq illustrate the highly contextual nature of transitional justice policies," the authors write. "The results emphasize the importance of understanding public attitudes in the communities directly impacted by such policies and programs."
The article concludes by discussing the normative and prescriptive implications of their findings for efforts to improve future transitional justice laws and policies.
Alrababah is assistant professor of social and political sciences at Bocconi University and Rachel Myrick is the Douglas and Ellen Lowey Assistant Professor of Political Science at Duke University.
Meyer warns that the rise of the Major Questions Doctrine has troubling implications for national security
In The National Security Consequences of the Major Questions Doctrine, 122 Mich. L. Rev. 55 (2023), Timothy Meyer and co-author Ganesh Sitaraman warn that the Supreme Court's increasing willingness to require "clear Congressional authority" when acting on issues of major national significance may imperil the president's ability to fight global conflict and ensure U.S. resilience, with troubling implications for foreign affairs and national security.
The executive branch has long relied on broad delegations of power by Congress to take actions such as imposing tariffs, sanctions and other forms of economic warfare in issues of national security and foreign affairs. Such actions have been taken under authorities such as the International Emergency Economic Powers Act, which serves as the basis for most of the sanctions against Russia; the Defense Production Act to expedite the production of critical medicines in the pandemic; and the Trade Expansion Act, which has been used to impose tariffs on steel and aluminum imports.
But recent Supreme Court decisions invoking the Major Questions Doctrine call executive actions under these delegations into question and may curtail the president's ability to pursue policies in the national interest on a range of foreign affairs questions, giving judges a bigger role in shaping American national security.
The Major Questions Doctrine (MQD) is a relatively recent principle of statutory interpretation that holds that there must be clear Congressional authorization when a regulatory agency makes a policy decision on an issue of major national political or economic significance. In the past 25 years, it has increasingly been invoked by the Supreme Court to reject claims of regulatory authority by agencies such as the FCC, the FDA, OSHA, and the EPA. Narrowly, it is a limitation on deference to agencies; more broadly, it requires a clear statement of specific statutory intent.
"[The Court seems to have landed on a clear statement rule. This approach will likely result in courts setting aside executive action in a much wider range of cases than they would if the consequences of applying the MQD were merely reduced deference or even finding some agency actions unconstitutional," Meyer and Sitaraman write.
"The MQD, as the courts are currently developing it, presents a significant challenge to the government’s ability to conduct economic foreign relations, a problem that the courts are not well-suited to manage because they are not equipped to distinguish between international and domestic economic policies in a globalized economy."
Meyer is the Richard Allen/Cravath Distinguished Professor in International Business Law and co-director, with Rachel Brewster and Laurence Helfer, of Duke Law's Center for International and Comparative Law. Sitaraman is the Chancellor's Chair in Law and director of the Program in Law and Government at Vanderbilt University.