Rule of Law Commons^™

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

How State Courts Can Help America Recover The Rule Of Law: The Pennsylvania Experience, Bruce Ledewitz

Law Faculty Publications

Just before Thanksgiving, a jurisprudentially revealing and widely publicized debate about whether America has a rule of law took place between the President of the United States and the Chief Justice of the Supreme Court.

Il Était Une Fois… Analyse Juridique Des Contes De Fées, Marine Ranouil And Nicolas Dissaux, Eds. Paris: Dalloz, 2018. [Book Review], Dana Neacsu

Law Faculty Publications

Il était une fois… Once Upon a Time, edited by Marine Ranouil and Nicholas Dissaux, inhabits the most tempting theory of Gramscian hegemony: Law codifies the people’s desires, especially those imparted to them through books; through the written word. Reading it brought to mind Bertrand Barère and his explanation of the French Revolution of 1789. Books did it all because they brought enlightenment into all classes of society. This seems pretentious and partially inaccurate. The Revolution was also ignited by filth and hunger, which made the masses part with their innate fear of death and bravely fight for such …

The Obama Judge And The Foundations Of The Rule Of Law, Bruce Ledewitz

Law Faculty Publications

No abstract provided.

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

Magna Carta's Rule Of Politics, John F. Preis

Law Faculty Publications

Eight hundred years ago last week in a meadow west of London, King John of England did something peculiar for a king: He promised to obey "the law of the land." And thus was born, we have been taught, America's "rule of law" - the principle that political leaders must act within boundaries set out in law.

English kings at that time did not feel bound to obey the law (much less anything else), so John's promise is typically celebrated as a huge step forward in the history of good government. It is entirely proper to remember Magna Carta for …

War As Metaphor And The Rule Of Law In Crisis: The Lessons We Should Have Learned From The War On Drugs, Susan Stuart

Law Faculty Publications

No abstract provided.

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

Law Faculty Publications

Can law rule? For law to rule, it must be enforced. But when law is enforced, not it but its enforcers may rule. To bind those enforcers firmly to the law, they, too, would have to be subjected not only to law but also to a still stronger force—which itself may then be lawless. The very effort to secure the rule of law appears to lead instead to ever more powerful human rulers.

Put another way: If we abolish the police and the courts, in order to leave people truly “not under man but under God and the law,”1 we …

Imperio Del Derecho Versus Imperio De Los Jueces, Richard Stith

Law Faculty Publications

¿Es posible el imperio del derecho (rule of law)? El derecho, para imperar, debe ser impuesto. Pero cuando es impuesto, puede no ser el derecho mismo sino aquellos que lo imponen quienes imperen. Para sujetar estas autoridades firmemente al derecho, ellas también tendrían que estar sometidas no sólo al derecho mismo sino a una fuerza aún más poderosa que podría ser igualmente arbitraria. De este modo, el sólo esfuerzo por asegurar el imperio del derecho conduce a la creación de potenciales tiranos cada vez más poderosos.

Dicho de otro modo: si se suprimen la policía y los tribunales de justicia, …

Evidence: Indiana Moves Toward Adoption Of The Federal Rules, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.