Digital Commons Network^™

The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey

San Diego Law Review

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

Indiana Journal of Global Legal Studies

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism-just as inevitably-creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: "kill off" all competing laws by declaring that one set of norms-and only one-shall …

Transnational Normative Orders: The Constitutionalism Of Intra- And Trans-Normative Law, Poul F. Kjaer

Indiana Journal of Global Legal Studies

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. …

Constitutionalization Of Nongovernmental Certification Programs, Jaye Ellis

Indiana Journal of Global Legal Studies

Certification programs created by nonstate actors such as the Forest Stewardship Council and Marine Stewardship Council are innovative and potentially highly effective governance initiatives. This article works from the premise that these Councils can be understood as political authorities promulgating law. These Councils, and other actors like them, are generally analyzed from the point of view of governance, which triggers questions about their effectiveness and legitimacy. The approach adopted here shifts the focus to questions of their authority and the validity of the rules, standards, and decision-making processes that they have put in place. The Councils have put in motion …

Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an “impartial decision maker is essential” to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that “due process requires a neutral and a detached judge in the first instance.” Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings …

Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock

Articles

No abstract provided.

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.