Law Commons^™

Secessions, Coups, And The International Rule Of Law: Assessing The Decline Of The Effective Control Doctrine, Brad R. Roth

Law Faculty Research Publications

Attempted secessions (for example, Kosovo and Somaliland) and coups d'état (for example, Madagascar and Honduras in 2009) prompt contestation over whether or not legal status is to be conferred on local exercises of de facto authority. International legal standing has traditionally been established by victory in a trial by ordeal: a region initially integral to an existing state successfully establishes itself as an independent sovereign unit only where its secession movement creates - usually by decisive victory in an armed struggle -facts on the ground that appear irreversible; an insurgent faction successfully establishes itself as a government where it overthrows …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert C. Hockett

Cornell Law Faculty Publications

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger

Articles

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …

Un Peacekeeping: A Sheep In Wolves Clothing? Review Of Un Peacekeeping In Lebanon, Somalia And Kosovo: Operational And Legal Issues In Practice, Jeremy I. Levitt

Journal Publications

Scholars and practitioners have been debating the legal and operational aspects of UN military operations since its enforcement actions in North Korea in 1950 and the Congo in 1960 (UN Operation in the Congo [ONUC]). Since then, the UN Security Council (UNSC) has authorized some semblance of enforcement action in Kuwait, Somalia, the former Yugoslavia, Kosovo, East Timor and Albania, and authorized, sanctioned or co-deployed forces in Liberia, Sierra Leone, the Central African Republic, the Democratic Republic of the Congo, Coˆte d’Ivoire and Sudan. The scholarly literature is abundant with analysis of nearly every aspect of peacekeeping and peace enforcement …

Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete …

Promoting The Rule Of Law: Cooperation And Competition In The Eu-Us Relationship, Ronald A. Brand

Articles

Both the United States and the European Union fund programs designed to develop the rule of law in transition countries. Despite significant expenditures in this area, however, neither has developed either a clear definition of what is meant by the rule of law or a catalogue of programs that can result in coordination of rule of law efforts. This article is the result of a presentation at a May 2010 policy conference at the University of Pittsburgh School of Law, at which U.S. and EU government officials, scholars, and practitioners discussed the concept of rule of law and efforts to …

Public Consensus As Constitutional Authority, Richard A. Primus

Articles

Barry Friedman's new book The Will of the People attempts to dissolve constitutional law's countermajoritariand ifficulty by showing that, in practice,t he Supreme Court does only what the public will tolerate. His account succeeds if "the countermajoritarian difficulty" refers to the threat that courts will run the country in ways that contravene majority preference, but not if the "the countermajoritarian difficulty" refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman's book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because …

Nato At Sixty: America Between Law And War, Mary Ellen O'Connell

Journal Articles

NATO was founded to counter the Soviet Union and the Warsaw Treaty Organization. Both have been gone for over twenty years. So why is NATO still here? Part of the explanation may lie in Americans' strong belief in the efficacy of military force. NATO remains associated in Americans' minds with the greatest time of U.S. military power. Yet, the United States also has a strong commitment to the rule of law. The country appears overdue for a return to this other commitment. We should not be surprised to soon see the United States promoting international law again-and that could mean …

Right Problem; Wrong Solution, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

In Boumediene v. Bush, the Supreme Court, in a powerful and eloquent majority opinion by Justice Anthony Kennedy, vindicated the right of a non-U.S. citizen, held in custody at a military base outside the United States, to use the writ to challenge the legality of his incarceration.1 Boumediene was a triumph of both the individual petitioner and the judiciary over the powers of the executive, and represents a high-water mark in the long and celebrated history of habeas.

Reply: The Complexity Of Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

Open Secrets, Michael J. Madison

Book Chapters

The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and institutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing …

Creativity And Craft, Michael J. Madison

Book Chapters

I revisit the distinction between intangible works of authorship and tangible objects, which is a fundamental proposition of modern copyright law. I suggest that reconsidering that distinction, at least in part, may expand the range of possibilities for aligning modern copyright as an economic construct with the historical roots of copyright and with ethical claims about authorial expression. Revisiting that distinction also may provide contemporary lawyers and policymakers with a much-needed tool for managing challenges posed by digital technology.

Understanding Rule Of Law / Supremacy Of Law And Underlying Obstacles In Turkey And Around The World, Jeffrey E. Thomas

Faculty Works

Rule of Law has become every country’s ambition; developed countries are promoting it, multinational corporations want it, and aid organizations are trying to build it. No country in modern times - with the possible exception of China during the cultural revolution- has ever said “We reject the rule of law,” although by their actions some countries have done so. The goal of this paper is to provide some additional perspective on the Rule of Law for discussion and deliberations in Turkey. The paper starts with some of the major obstacles, and then make a few comments regarding the author’s impressions …

Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston

All Faculty Publications

In Canadian public law, the foundational case of Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. This article examines multiple forms of arbitrariness in Roncarelli, going beyond the usual focus on discretionary power arbitrarily exercised by the executive branch of government. A close reading of the case not only brings to the surface other forms of arbitrariness, notably under-acknowledged forms of judicial arbitrariness, but also illuminates how legal actors attempt to constrain arbitrariness within the activity of judging. Furthermore, repositioning the case in its larger social and political context provides …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …