Rule of Law Commons^™

Por Uma Teoria Da Narratologia Jurídica: De Que Modo A Teoria Literária Pode Servir À Compreensão E Crítica Do Direito, Douglas Antônio Rocha Pinheiro

Douglas Antônio Rocha Pinheiro

From historian Carlo Ginzburg’s use of dialogism in the analysis of inquisitorial papers, especially in the "benandanti" case, the article aims to discuss the possibility of a legal reading based on the categories related to literary theory, above all those Mikhail Bakhtin holds, as well as their capacity to provide a new reflection on the legal phenomenon.

The Rule Of Law: Its History And Meaning In Common Law, Civil Law, And Latin American Judicial Systems, Nadia E. Nedzel

Richmond Journal of Global Law & Business

“Rule of law” is an expression both praised and ridiculed by adherents of opposite political philosophies, and it is a principle claimed as the lodestar for widely differing legal theories. As much as an ideality as an ideal, the words “rule of law” have served a wide range of purposes, stretching from political sloganeering to the protection of individual rights from the power of government.

One New President, One New Patriarch, And A Generous Disregard For The Constitution:, Robert C. Blitt

Vanderbilt Journal of Transnational Law

The government of Russia and the Russian Orthodox Church (ROC)--the country's predominant religious group--recently underwent back-to-back changes in each institution's respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation's constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of …

Sovereignty In The Age Of Twitter, Donald L. Doernberg

Villanova Law Review

No abstract provided.

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.

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 …

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.

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 …

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.

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 …

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 …

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 …

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 …

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 …

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, …

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 …

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 …

Who Wants To Be A Muggle? The Diminished Legitimacy Of Law As Magic, Mark E. Burge

Mark Edwin Burge

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal …

Impact Of The Australia-Us Free Trade Agreement On Australian Medicines Regulation And Prices, Thomas A. Faunce, James Bai, Duy Nguyen

Thomas A Faunce

The Australia – United States Free Trade Agreement (AUSFTA) came into force on 1 January 2005. Before and subsequently to the AUSFTA being concluded, controversy surrounded the debate over its impact on Australia ’ s health policy, specifically on regulation of pharmaceutical patents and Australia ’ s cost-effectiveness system relating to prescription medicine prices known as the Pharmaceutical Benefits Scheme (PBS). This article examines the expectations of both parties in the pharmaceutical sector with regard to the AUSFTA, as well as how successfully they were achieved. It seeks to analyse important relevant outcomes for regulators, the public and pharmaceutical industry, …