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Scott Seward Smith focuses on Afghanistan's 2004 presidential election--the first popular election ever held there--as he explores the painstaking attempt by the United Nations to develop democratic institutions in the country. Smith thoroughly describes the personalities, policies, bureaucracies, and external factors that shaped the faltering transition process from 2001 through 2009. He also points to the missed opportunities that contributed to the flawed elections of 2009. Arguing that the failure to give sufficient weight to the importance of institution building led to the crisis of confidence and the resurgence of warlord politics that we see today, he sheds light not only on what has gone wrong in Afghanistan, but also on the prospects for Afghan democracy

Dilemmas of civil war -- The shape of dictatorship -- Komuch -- The politics of the Eastern Front -- Between Red and White -- The end of the Party of Socialist Revolutionaries -- "Renegades of Socialism" and the making of Bolshevik political culture

The 2014 Afghan presidential and provincial council elections will have a critical effect on the future of Afghan democracy. At a minimum, they must be sufficiently credible to prevent severe division among elite political actors and ensure the survival of the current constitutional order. Yet there are growing expectations that the election might not merely be an elite pact between powerful figures from Afghanistan's recent past, but more fully represent popular aspirations, particularly those of the growing urban and youth population. In order for this to happen, they must also be held in accordance with the legal rules that guide them, rather than be characterized by manipulation of these rules and government interference. Despite the problems of fraud in the 2009 election, where government figures and the electoral institutions themselves were partly responsible for the significant fraud that took place, there are a number of reasons to expect that the 2014 election will be an improvement on 2009, both in terms of participation and organization. If the elections held in Afghanistan since 2001 have diminished hopes for Afghan democracy, it is partly because an electoral formalism was introduced in Afghanistan before other elements crucial to a functioning democracy—the rule of law, political parties, institutionalized governance—really existed. The 2014 elections may reveal the boundaries of an emerging democratic space in which these features are beginning to emerge and, more importantly, where their value is increasingly recognized by Afghans. If, in every political transition, the future grapples with the past, the 2014 elections in Afghanistan may be a decisive arena of that struggle.

During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality." Accordingly, the Court recognized the problems created when a justice votes against his or her own reasoning to ensure a result. While scholars frequently have analyzed the strategic voting practices of legislators, similar analysis of voting on judicial panels is relatively new. Frank Easterbrook was the first scholar to apply Arrow's Theorem systematically to the Supreme Court's voting practice, and several scholars followed his lead. After Justice White's vote in Union Gas, Professor John Rogers warned the Court against abdicating its role as a reasoned decision maker. He concluded, however, that the contradictory vote in Union Gas was aberrational. More recently, Professors David Post and Steven Salop published an article encouraging multimember courts to abandon their traditional practice of outcome voting and instead to adopt a system of issue voting.' Shortly thereafter, Professors Lewis Kornhauser and Lawrence Sager urged appellate courts to adopt neither outcome voting nor issue voting as a rule. Rather, they suggested appellate courts should take a metavote on whether outcome or issue voting should control each case." Professor Maxwell Stearns advanced the debate over appellate court voting in a trilogy of articles published over the past two years. These articles apply social choice theory to the ...

Congress enacted the Emergency Medical Treatment and Active Labor Act ('EMTALA" or "the Act") in 1986 to prevent hospi- tals from "dumping" patients due to an improper economic motive. Patient dumping occurs when a hospital emergency room either refuses to admit an indigent and uninsured patient with an emergency condition or improperly transfers this patient to another hospital. Congress enacted EMTALA in response to the widespread practice of hospitals dumping indigent and uninsured patients. Yet despite the Act's explicit legislative intent to prevent patient dumping, the language of EMTALA extends protection to "any individual" who enters a hospital's emergency room. Initially, EMTALA requires hospitals to provide emergency patients with an "appropriate medical screening examination." If the patient is diagnosed with an "emergency medical condition," the hospital must either stabilize the patient's condition or transfer the patient after fulfilling several statutory requirements. As a result of the inconsistency between the Act's legislative intent and its broad language, the federal courts have used two different standards to define a cause of action under EMTALA. Several federal district courts have narrowly construed the Act in light of its legislative history, allowing a cause of action only in cases involving economic dumping. On the other hand, the federal circuit courts have broadly applied EMTALA's statutory language, permitting "any individual" who alleges improper medical treatment to sue under the statute. This judicial expansion of the Act has encroached upon other federal laws enacted to remedy instances of non-economic discrimination. Congress designed EMTALA to remedy economic discrimination against indigent and uninsured patients by hospitals; yet, most federal courts have overlooked the Act's legislative purpose by allowing paying patients to challenge their emergency treatment under the Act. Thus the federal courts have done little to improve indigent patients' access to emergency care. ...