Law Commons^™

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

The Ethics Of Melancholy Citizenship, Robert L. Tsai

Faculty Scholarship

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward political renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how …

Can Mature Democracies Be Perfected?, Guy-Uriel Charles

Faculty Scholarship

One of the more vexing questions about democracy that is often debated among political theorists, political scientists, and legal scholars is whether the democratic character of mature democracies can be improved. From one view, that of democratic realists, mature democracies are perfected as a matter of definition and as a matter of realistic expectations. Because mature democracies are those that respect core democratic principles, variations outside the core are simply policy differences based upon each democratic polity’s willingness to engage in a different set of trade-offs. For democratic realists, variations in democratic practice that are not related to core democratic …

American Punitive Damages Vs. Compensatory Damages In Promoting Enforcement In Democratic Nations Of Civil Judgments To Deter State-Sponsors Of Terrorism, Jeffrey F. Addicott

Faculty Articles

The primary consequence of the attacks on 9/11 on the U.S. was a fundamental legal shift in the approach that the U.S. has taken when confronting terrorism and the States that support them. The new challenge of the post 9/11 approach focused on ways to effectively combat not only terrorist organizations but also the States that sponsor them. This new thinking demands that Western democracies adopt an internationally based functional legal methodology that can deter rogue States from sponsoring terrorism.

Civil litigation against States that sponsor or support terrorism is a potential legal tool which could be used with great …

The Dignity Of Voters—A Dissent, James A. Gardner

Journal Articles

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …

Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner

Journal Articles

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And …

Narrative, Normativity, And Causation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that emphasizes the role of public opinion in the development of American constitutional law. That narrative involves both implicit and explicit claims about the causal forces that shape constitutional doctrine and about normative constitutional theory. The aim of this essay is to identify those claims, excavate their theoretical assumptions, …

Ronald Dworkin’S Justice For Hedgehogs And Partnership Conception Of Democracy (With A Comment To Jeremy Waldron’S 'A Majority In The Lifeboat'), Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte …

The Rule Of Law As The Rule Of Reasons, Mathilde Cohen

Mathilde Cohen

Evaluating South Africa's Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan Marshfield

Jonathan Marshfield

China, A Sui Generis Case For The Western Rule-Of-Law Model, Jialue Li

Jialue Charles Li

This article synthesizes the Chinese rule of law theories based on their historic and theoretical development in China, and offers in-depth comparison between the Western and Chinese rule of law models. The current rule of law discussions about China usually premise on the Western rule of law model. The article first summarizes the Western framework in broad categories of substantive theory versus formal theory. But it goes further and explores how these concepts apply in the real world, especially in the context of American jurisprudence. The in-depth analysis of the Western rule of law theories, both at the theoretical and …

Andean Left Turns: Constituent Power And Constitution-Making, Maxwell A. Cameron, Kenneth E. Sharpe

Maxwell Cameron

"Cameron and Sharpe begin with the observation that Latin American left turns have occurred within the framework of electoral democracy, and that the concerns about the 'illiberalism' of the left (or indeed of some Latin American democracies generally) are belied by a remarkable commitment to constitutionalism on the part of precisely those leaders who have emerged in countries where liberal and republican institutions have historically been most weak: the Andes. Yet the commitment to constitutionalism can limit the possibilities for fundamental reform. Cameron and Sharpe see the allure of 'constituent power' as a formula for attempting 'foundational' change without revolutionary …

El Liberalismo Neoclásico , El Libre Mercado Y Sus Críticos, Carmen G. Gonzalez, Colin Crawford, Daniel Bonilla Maldonado

Carmen G. Gonzalez

The articles collected in this volume critically examine the hegemony of market fundamentalism in law, politics, and social theory. They question the underlying premises of market fundamentalism as well as the social, economic, cultural and environmental consequences of policies inspired by this ideology. The authors represent several disciplines (law, economics, anthropology) and various countries (Argentina, Brazil, Colombia, Mexico, the United States, and Venezuela). The topics covered include free trade agreements, Argentina's financial crisis, deregulation in Brazil, the judicial enforcement of economic and social rights, climate change, and the impact of trade liberalization on violence against women. The articles were originally …