Law Commons^™

Countering Nationalist Oligarchy, Ganesh Sitaraman

Ganesh Sitaraman

The challenge we face today is not one of authoritarianism, as so many seem inclined to believe, but of nationalist oligarchy. This form of government feeds populism to the people, delivers special privileges to the rich and well-connected, and rigs politics to sustain its regime.

Nationalist oligarchy is an existential threat to American democracy. The countries already under its thrall steal technology and use economic power as political leverage. Some of them are actively trying to undermine democracy, through cyber attacks, hacking, and social media disinformation. And they spread bribery and corruption around the world—deepening inequality and threatening to turn …

Book Review Of The Riddle Of All Constitutions: International Law, Democracy, And The Critique Of Ideology, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Dollars And Sense: A "New Paradigm" For Campaign Finance Reform?, Daniel A. Farber

Daniel A Farber

No abstract provided.

Echoes Of Slavery Ii: How Slavery's Legacy Distorts Democracy, Juan F. Perea

Juan F. Perea

No abstract provided.

Taking The Threat To Democracy Seriously, Bruce Ledewitz

Bruce Ledewitz

What Has Gone Wrong And Can We Do About It, Bruce Ledewitz

Bruce Ledewitz

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Nancy Welsh

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

The Ideology Of Human Rights, Makau Wa Mutua

Makau Mutua

This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human …

Jeremy I. Levitt's Africa: Mapping New Boundaries In International Law (Book Review), Makau Mutua

Makau Mutua

This is a review of Jeremy Levitt’s edited collection of chapters in Africa: Mapping the Boundaries of International Law, which is an impressive work to the dearth of scholarship on Africa’s contribution to the normative substance and theory of international law. The book explicitly seeks to counter the racist mythology that Africans were tabula rasa in international law. In his own introduction to the book, Levitt makes it clear that “Africa is a legal marketplace, not a lawless basket case.” The eight contributors to the book are renowned scholars who make the case that Africa is not stuck in pre-history …

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.

Competitive Supragovernmental Regulation: How Could It Be Democratic?, Errol E. Meidinger

Errol Meidinger

This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. 'Competitive supra-governmental regulation' is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding …

Beyond Westphalia: Competitive Legalization In Emerging Transnational Regulatory Systems, Errol E. Meidinger

Errol Meidinger

Published as Chapter 7 in Law and Legalization in Transnational Relations, Christian Brütsch & Dirk Lehmkuhl, eds.

This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar …

Semiotic Disobedience, Sonia K. Katyal

Sonia Katyal

Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term “semiotic democracy” to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media. A semiotic democracy enables the audience, to a varying degree, to “resist,” “subvert,” and “recode” certain cultural symbols to express meanings that are different from the ones intended by their creators, thereby empowering consumers, rather than producers. In this Article, I seek to introduce another framework to supplement Fiske’s important metaphor: the phenomenon of “semiotic disobedience.” Three contemporary cultural moments in …

The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen

Mathilde Cohen

Democracy's Handmaid, Robert L. Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

From Reconstruction To Deconstruction: Undermining Black Landownership, Political Independence, And Community Through Partition Sales Of Tenancies In Common, Thomas W. Mitchell

Thomas W. Mitchell

This article considers one of the primary ways in which African Americans have lost millions of acres of land that they were able to acquire in the latter part of the nineteenth century and the beginning part of the twentieth century and the sociopolitical implications of this land loss. Specifically, this article highlights the fact that forced partition sales of tenancy in common property, referred to more commonly as heirs' property, have been a major source of black land loss within the African American community. The article argues that involuntary black land loss has had a significant negative impact upon …

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Amendment Creep, Jonathan L. Marshfield

Jonathan Marshfield

Deliberative, Independent Technocracy V. Democratic Politics: Will The Globe Echo The E.U, Martin Shapiro

Martin Shapiro

The article discusses the issue of technocracy and democracy as the structure of transnational administrative law. This article defines the building blocks of administrative law namely regulation, the tension between democratic control of public policy and the delegated legislation. When all of these building blocks are taken into account, future transnational regulatory regimes are likely to arise in relatively high-technology or otherwise complex spheres of activity.

The European Court Of Justice: Of Institutions And Democracy, Martin Shapiro

Martin Shapiro

No abstract provided.

The Syracuse Conference On A World Rule Of Law: American Perspectives - An Introduction, Malcolm M. Feeley

Malcolm Feeley

No abstract provided.

Europe's Darker Legacies; Notes On Mirror Reflections, The Constitution As Fetish, And Other Such Linkages Between The Past And The Future Darker Legacies Of Law In Europe; The Shadow Of National Socialism And Fascism Over Europe And Its Legal Traditions Edited, By Christian Joerges And Navraj Singh Ghaleigh (Eds); European Constitutionalism Beyond The State, By J. H. H. Weiler And Marlene Wind (Eds), Peer Zumbansen

Peer Zumbansen

No abstract provided.

Discussion Of Christopher Kutz's 'Or 'Emet Lecture: Democratic Holy Wars, Christopher Kutz, Louis-Philippe Hodgson, François Tanguay-Renaud

François Tanguay-Renaud

Follow-up seminar on Christopher Kutz’s ‘Or ‘Emet Lecture, delivered on Thursday, February 16, 2012. Part of the Legal Philosophy Between State and Transnationalism Seminar Series. Respondents: Louis-Philippe Hodgson, York Philosophy and François Tanguay-Renaud, Osgoode Hall Law School.

Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow

Trevor C. W. Farrow

This paper is about the widespread and systematic privatization of the public civil justice system. In particular, it: (1) documents the move to privatize civil disputes across all aspects of the justice system (including courts, administrative tribunals and state-sanctioned arbitration regimes), (2) looks at some of the benefits and drawbacks of privatization, specifically including negative impacts on systems of democratic governance, and (3) identifies justice - rather than efficiency - as the primary benchmark by which civil justice reform initiatives should be judged.

Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel

Dan Priel

The dominant view among legal philosophers is that jurisprudential debates about the nature of law are conceptual. In this article I challenge this view. I do so by comparing these debates to debates about the justification of democracy and showing that the arguments found in both are often very similar. I demonstrate that in both domains, there are arguments on one side that explain an institution (either law or democracy) in terms of its ability to help people lead a better life, and there are arguments on the other side that highlight the value of these institutions in promoting political …

Taking State Constitution Seriously, Marvin Krislov, Daniel M. Katz

Daniel M Katz

No abstract provided.

The Future Of Governmental Ethics: Law And Morality, Jon L. Mills

Jon L. Mills

Based on a speech presented at the 16th International Symposium on Economic Crime, Cambridge University, England September 13-19, 1998.

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt

Cynthia R. Farina

This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …

Catholicism, Liberalism And Communitarianism: The Catholic Intellectual Tradition And The Moral Foundations Of Democracy, Gerry Bradley, Kenneth Grasso, Robert Hunt

Gerard V. Bradley

No abstract provided.

The End Of The Cold War: Can American Constitutionalism Survive Victory?, Stephen M. Feldman

Stephen M. Feldman

The nation's Cold War battle against the Soviet Union pervasively influenced American law and society, as numerous scholars have observed. The Cold War, for instance, spurred the strengthening of civil rights and the capitalist economy. The federal government needed to protect civil rights, at least symbolically, to deflect Soviet denunciations of democracy. Meanwhile, the ostentatious exhibition and use of American consumer products contrasted American economic prosperity with Soviet struggles. Thus, during the Cold War, the government and the capitalist leaders were bonded together in a struggle against the communist enemy. The overriding desire for Cold War victory tempered potential political …