Nate Witkin

This article explores the use of non-territorial state structures as a two-state solution to the Israeli-Palestinian conflict. By presenting a nation-state that exists over certain people, and not exclusive territory, this article offers a method for Israelis and Palestinians to each have the self-determination of an independent government while being able to mutually exist over disputed land. While the territorial state structure was designed in the 17th century, this new system may better fit modern conditions.

The complexities of modern society increase the amount of necessary government actions and decrease the amount of deliberation that goes into them.  The resulting strain on our policymaking system leads government officials to rely on lobbyists and leads lobbyists to fight viciously for influence over government officials.  Symptoms of this problem surface with scandals such as the Abramoff affair and trends such as the recent lobbying boom.  These instances of corruption and inefficiency in congressional practices have renewed interest in lobbying reform.  While lobbyists provide legislatures with benefits such as information and representation of special interests, lobbying often becomes a spending war between conflicting interests that consume the efforts of both legislators and advocacy groups.  Currently, the only limitations over lobbying practices are disclosure laws that require lobbyists to reveal their lobbying activities after spending a certain amount influencing officials.
Mediation may offer an adaptable and widely-beneficial mechanism in congressional lobbying practices.  If Congress had the power to push opposing interest groups to enter mediation after spending a certain amount in lobbying on an issue, they may be able to preclude costly, indirect fighting by reaching consensus over policy action.  Opening and facilitating communication among interests may help to improve legislation and reduce corruption that is associated with interest group pressure.  This process would combine existing, established lobbying practices with two simple legislative mechanisms to decrease malignant lobbyist activity and improve the quality of public policy.  Aside from solving problems, this proposal offers a model for the optimal use of lobbyists in congressional practice and broader implications of increasing the democratic value of government institutions to better fit modern conditions.
Part II of this Note describes the lobbying boom and its negative consequences.  Part III presents the basic idea of interest group mediation as the solution to the inefficiency and corruption involved with current lobbying practices.  Part IV describes existing governmental structures that use mediation in creating consensual public policy such as negotiated rulemaking and public dispute resolution.  Part V explains the mechanisms Congress will need to create in order to implement this process.  Finally, Part VI draws broader implications on optimal lobbying practices and on using interest group mediation to improve the democratic value of legislative enactments.

The basis of sovereignty is shifting from defined territories to defined peoples.  In other words, modern governments are transitioning their shape from territorial structures to associations of internationally mobile citizens.  This paper a comprehensive understanding of sovereignty and applies this definition to modern trends to prove the above thesis.
The first step to recognizing the shifting basis of government is an understanding of sovereignty that avoids the confusion and mysticism commonly surrounding the concept.  Section I explores the concept of sovereignty, demonstrating that it is rooted in either territory or people and calling for a definition that would predict which basis is more appropriate.  Because modern states are legally coequal, in order exercise absolute and unhindered authority, sovereignty must be mutually recognized by all other states.  Sovereignty is therefore the domain of absolute governmental authority established by agreement among states.  This definition fits every description of sovereignty and explains why absolute sovereignty first emerged when centralized states mutually agreed on territorial delineations of their respective zones of sovereign authority.  Though it is widely believed that the Treaty of Westphalia created the system of territorial sovereignty, the connection between the treaty and sovereignty is not well understood.
International treaties do not recognize sovereignty—they are the source of sovereignty.  Treaties are contracts between or among states that trade mutual limitations of future action.  Though sovereignty is often assumed to emerge from territory, absolute authority is created when states mutually agree to not interfere in the domestic affairs of other states.  This distinction is important to understand because, under a mindset in which sovereignty is a territorial phenomenon, when two states mutually agree to exercise a specific degree of jurisdiction within each other’s respective territories, this appears to be a violation of sovereignty.
However, states have the sovereign right to limit their territorial jurisdiction in exchange for the ability to exercise power beyond their borders.  The agreement does not violate sovereignty but, rather, changes the geography of the sovereignty of both states.  Because states use these agreements to assert control over their interests, this shift in sovereignty tends to involve each state remaining sovereign over their respective citizens that cross political borders.  These agreements include extradition treaties that assert jurisdiction over criminals fleeing internationally, investment treaties that assert control over domestic capital invested into a foreign territory, and tax treaties that allow states to derive income from the economic activities their residents wherever it occurs.  In the face of a globalized world of transborder activity, states are using treaties to shift their zones of absolute authority from territory to citizens.  If these treaties continue to proliferate, states would legally float on their roaming citizens.
Sovereignty is therefore created and shaped by agreements among political powers regarding the extent of their respective domains.  Following its definition and historical analysis proposed in this paper, sovereignty is shifting from existing over fixed land to existing over mobile populations.  By shifting the definition from exclusive territories to exclusive populations, the concept of sovereignty becomes more consistent, understandable, and aligned with the modern world.  This insight also offers predictions of how the growing network of treaties will affect future forms of political organization.

Citizen review boards (CRBs) tend to act as unofficial criminal courts for police misconduct.  Without the binding, legal powers of a court, these civilian oversight bodies are often ineffective and draw resistance from law enforcement.  “Community policing,” or community-oriented policing (COP) is a law enforcement strategy that emphasizes the use of problem-solving skills through community engagement and partnerships, but remains limited so long as it evaluates “community‑friendly” officer performance through arrest/citation statistics only.  Without a process to evaluate public relations skills, the COP strategy encourages officers to reduce distance between them and the community while retaining a crime-fighting focus—a dynamic that increases tension and violence between police and crime‑prone neighborhoods.
If civilian oversight organizations were to review both positive and negative instances of police conduct, and law enforcement were to use this input to evaluate individual officers, then the review board would be able to promote community‑friendly officers over problematic ones, thereby deterring police misconduct.  This proposal presents an optimal use of civilian oversight and a partnership that would improve the effectiveness of both the CRB, and the COP strategy currently utilized by the police.

Background Partisan dispute resolution roles, such as conflict coach and collaborative lawyer, allow non-adversarial professionals to sit on one side of the table and provide a single disputant with the skills and mindset for taking full advantage of interest-based negotiation processes. As these partisan functions emerge, one key issue is how they will interact with each other when they are on different sides of the table. This article attempts to design a structure for this interaction, and the result is a dispute resolution process involving two conflict coaches that act as partners to provide support and cooperation in interest-based negotiation.

By exploring the reasons underlying ethical rules concerning independence, this paper will identify the conditions in which independence is necessary and, conversely, when independence between opposing advocates is optional or even counterproductive.  Part I provides a background to this inquiry by showing that the application of binding law in an adversarial, decision-based forum necessitates that attorneys operate independently of each other.  The strong link between independence and litigation calls into question the need for independence between advocates who operate solely in the context of negotiation and thereby outside the adversarial courtroom.  Part II follows this realization with an analysis that applies game theory to the history of the American legal system to demonstrate that independence is crucial to advocacy inside the courtroom but may be detrimental to advocacy in other contexts.  With the prior two sections delineating the appropriate contexts for independence between opposing advocates, Part III proposes “dependent advocacy” as a relationship among advocates that may be more conducive to negotiation and collegiality.  Though independent advocates retain the valuable function of advising clients of their legal rights and may continue to be preferred by some disputants, people seeking the assistance of an advocate currently only have the option of independent advocates and may benefit from another option.  The most basic application of dependent advocacy is the negotiation-based advocate, already present in alternative dispute resolution processes such as co-resolution and collaborative law.  However, by applying the principles of dependent advocacy, this article concludes by proposing a method for attorneys to replicate the collegiality observed in small-town legal practice by offering services as part of organized legal practice groups with limited numbers of opposing counsel.

This article explores the use of non-territorial state structures as a two-state solution to the Israeli-Palestinian conflict. By presenting a nation-state that exists over certain people, and not exclusive territory, this article offers a method for Israelis and Palestinians to each have the self-determination of an independent government while being able to mutually exist over disputed land. While the territorial state structure was designed in the 17 th century, this new system may better fit modern conditions. As a key source of state security and national pride, territory is at the heart of modern international conflicts in which distinct nationalities are tied to one region. The problem in these situations is that while modern governments assert legitimacy and order through an exclusive relationship with an identifiable culture or nation, the current state structure operates over exclusive territories. Because nations of people are linked to exclusive governments and governments are linked to exclusive territories, two nations that have substantial interests in one territory will inevitably clash. And the territorial rules that govern these international and intrastate conflicts produce dynamics such as refugee displacement, zero-sum border disputes, domestic terrorism, and wars of national liberation. These hostilities occur because the system of territorial division was designed to prevent conflicts between distant monarchs in the 17 th century. If the state structure was updated to take into account the predominance of cohesive, powerful nations, the state would exist as more of a relationship between government and nationals, rather than government and land. Two such nation-based, non-territorial states would be able to occupy a shared territory while retaining the ability to protect, regulate, tax, and provide for distinct groups of people. Members of both nations would enjoy an independent government, policies tailored to their unique values, and free movement over the shared territory. while this system may have been unthinkable prior to globalization, countries have recently developed practices for retaining control over their increasingly mobile, trans-border nationals, shifting the locus of power away from exclusive territories and allowing governments to float on top of their populations. This article proposes how a non-territorial state system would operate, how it is already in effect to some degree, and why the current state system inappropriately developed along strictly territorial lines. The second part describes the structure of the " interspersed nation-state " idea along with the basic rules that will allow it to function.