Law Commons^™

Limits To The Independent Anti-Corruption Commission Model Of Corruption Reform: Lessons From Indonesia, Leslie Gielow Jacobs, Benjamin B. Wagner

McGeorge School of Law Scholarly Articles

No abstract provided.

Rethinking Corruption: An Introduction To A Symposium And A Few Additional Thoughts, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Double-Consciousness In Constitutional Adjudication, Richard A. Primus

Articles

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …

The Rule Of Law And The Military Commission, Stephen J. Ellmann

Articles & Chapters

This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

Parallel Courts In Post-Conflict Kosovo, Elena Baylis

Articles

Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard

All Faculty Publications

In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 SCR 873, the unanimous full bench of the Supreme Court of Canada upheld a provincial sales tax ("PST") on legal services, rejecting a Charter challenge and overturning the lower courts' decisions that partially invalidated the tax. The taxpayer, a lawyer practising poverty law in British Columbia, challenged the validity of a provincial sales tax charging 7 percent on fees billed for legal services and payable on billing. The PST on legal services required lawyers and notaries public in private practice to add the tax onto their billings. The …

Judicial Activism And Its Critics, Kermit Roosevelt Iii, Richard Garnett

All Faculty Scholarship

No abstract provided.

Massachusetts V. Epa: Breaking New Ground On Issues Other Than Global Warming, Amy J. Wildermuth, Kathryn A. Watts

Articles

In this essay, we consider the long-term legal significance of the Supreme Court's decision in Massachusetts v. EPA, concluding that the case is likely to have a significant impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking …

Criminal Jumping On And Off The Curb - Discretion And The Idea Of An Impartial And Independent Police Force, W. Wesley Pue

All Faculty Publications

This paper presents a commentary on the idea of independence of the police, arguing that notions of independence are complicated considerably when the reality of police discretion is taken into account. The notion of colourability is identified as central (where goals not unlawful in themselves are pursued for unlawful reasons - eg. to vicitimize one's political foes) as is the possibility of police powers being deployed lawfully in the strict sense, but in a fashion that is nonetheless constitutionally improper.

Assurance Services As A Substitute For Law In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin

All Faculty Publications

In this article we examine the rapid emergence and expansion of a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce, especially in developing countries where rule of law is weak and court systems are absent or inadequate. This infrastructure is provided by a proliferation of performance codes and standards, and a rapidly-growing global army of privately-trained and authorized inspectors and certifiers that we call the "third-party assurance industry." The growth in the third party assurance business has been phenomenal in the last decade. The business …

The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo

All Faculty Publications

This paper assesses the first judicial ruling on key provisions of the Anti Terrorism Act. Rutherford J.'s ruling struck down provisions creating a motive requirement in the definition of terrorist activity while upholding the overall structure of the act against challenges on the basis of overbreadth and vagueness. A fault-line divides the two sides of the ruling. On one side the court looked to the lived-experience of legal rules, concluding that including motive requirements would mislead officials in the direction of improper and unconstitutional racial or religious profiling. On the other side of the fault-line the court restricted itself to …

Precedent, Super-Precedent, Michael B.W. Sinclair

Articles & Chapters

No abstract provided.

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Articles in Law Reviews & Other Academic Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

Launching A Global Rule Of Law Movement: Next Steps November 10, 2005, Katharina Pistor, William Ide, Sandra Day O'Connor, Hilario Davide

Faculty Scholarship

KATHERINE PISTOR: Let me just first express my thanks to the American Bar Association for asking me to be the rapporteur for this conference. I've always felt honored for having been asked. I have to say I feel now even more humbled by the collective wisdom and experience and know-how that has been assembled here and has been expressed over the past two days. So I am in no position right now to pull it all together and give you the strategy of how to move forward. In fact, I do plan to come back to many of you and …

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …