Rule of Law Commons^™

The Persistent Treatise, Dana Neacsu, Paul D. Callister

Faculty Works

The thesis of this paper is that the legal treatise remains a pillar of our legal system and its Rule of Law, despite variations in its quantitate citation, and diversity of its qualitative usage in our jurisprudence, especially at the United States Supreme Court level. We support this claim with empirical data and qualitative analysis. First, as shown here, treatises have a significant and healthy presence in case law, briefs, and secondary sources. More importantly, they are a stabilizing influence in our evolving rule of law.

We have studied the citation of treatises in state and federal courts. In terms …

The Iccpr, Non-Self-Execution, And Daca Recipients' Right To Remain In The United States, Timothy E. Lynch

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The United States is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 12.4 states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy the rights of Article 12.4, but this Article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, I demonstrate that Article 12.4 also forbids states from deporting long-term resident non-citizens – both documented and undocumented – except under the rarest circumstances. As a result, …

Rule Of Law With Asian Characteristics: Cultural Insights From The Occupy Central Movement In Hong Kong, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Civil Rules Interpretive Theory, Lumen N. Mulligan, Glen Staszewski

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We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach …

Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas

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This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely …

Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman

Faculty Works

Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

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No abstract provided.

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Works

In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

The Department Of Justice Chases Mice While Lions Roam The Campsite: Why The Department Has Failed To Prosecute The Elite Frauds That Drove The Financial Crisis, William K. Black

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No abstract provided.

Those Who Ignore The Successes Of The Past Suffer Recurrent, Intensifying Crises, William K. Black

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No abstract provided.

An Expectation Of Empathy, Steve Leben

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No abstract provided.

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

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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 …

The Evolution Of The Trial Judge From Counting Case Dispositions To Commitment To Fairness, Kevin Burke, Steve Leben

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No abstract provided.

Introduction – 21st Century Law, Technology And Ethics: The Lawyer’S Role As A Public Citizen Serving The Public Good, Irma S. Russell

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The lawyer's role as a "public citizen" also involves a duty to "seek improvement of the law." Changing technology has changed the way lawyers practice law. As public citizens lawyers have an affirmative commitment to the social goal of a just society. Ethical issues arise in the use of technology in society, and lawyers play a central role in social ordering. The idea that advocates in an adversary system have special responsibilities is not new.

Harry Potter And The Law, Timothy S. Hall, Jeffrey E. Thomas, Danaya C. Wright, James Charles Smith, Aaron Schwabach, Joel Fishman, Daniel Austin Green, Andrew P. Morriss, Benjamin H. Barton

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The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings …

Legal Culture And The Practice: Postmodern Depiction Of The Rule Of Law, Jeffrey E. Thomas

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Professor Thomas suggests that the television series the practice breaks from tradition by portraying the law as arbitrary and subject to manipulation. On one hand, its narratives show that law may require the guilty to be set free. On the other hand, the law sometimes fails to protect the innocent. Outcomes often turn on extralegal factors such as luck, race, or heroic efforts. This portrayal is a "postmodern" depiction of the rule of law. The narratives from the practice deconstruct the traditional rule of law hierarchy by showing that the rule of man can lead to more just results. The …