Law Commons^™

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

Africa And The Rule Of Law, Makau Wa Mutua

Journal Articles

The rule of law is often seen as a panacea for ensuring a successful, fair and modern democracy which enables sustainable development. However, as Makau Mutua highlights, this is not the case. Using the example of African states, he describes how no African country has truly thrown off the shackles of colonial rule and emerged as a truly just nation state – even though many have the rule of law at the heart of their constitutions. This, he argues, is because the Western concept of the rule of law cannot be simply transplanted to Africa. The concept must be adapted …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

The Rule Of Law And The Perils Of Precedent, Randy J. Kozel

Journal Articles

In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive …

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 …

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 …

The United States Supreme Court Rulings On Detention Of "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Journal Articles

In three rulings on prolonged military detention of so-called "unlawful enemy combatants" in the "war" against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions.

But Pierre, If We Can't Think Normatively, What Are We To Do?, John Henry Schlegel

Journal Articles

No abstract provided.

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

Journal Articles

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.

National Socialism And The Rule Of Law, Donald P. Kommers

Journal Articles

Ingo Muller's book, originally published in 1987 as Furchtbare Juristen: Die unbewaltigte Vergangenheit unserer Justiz (literally "Dreadful Jurists: The Remorseless Past of Our Judiciary"), describes the moral collapse of the German legal profession and its role in facilitating the construction and maintenance of the Nazi regime. Gracefully translated by Deborah Lucas Schneider, Hitler's Justice seeks, first, to show how legal professionals betrayed their trust as lawyers, prosecutors, and judges and, second, to assess the degree to which Germany in the postwar period reformed its legal system, purged the judiciary of former Nazis, and rededicated itself to the rule of law. …

Foreword, Joseph O'Meara

Journal Articles

The institutions which we finally succeed in achieving to preserve mankind from self-extinction—whatever they may be—will be the product of an evolutionary development, no blueprint of which is possible in advance. Hence the greatest contribution we can make, in my view, is always to press on with the next steps as they become discernible.

What are now the next steps? The purpose of our Symposium is to explore and, if possible, to illuminate that problem.

Church, The State, And Mrs. Mccollum, Clarence Emmett Manion

Journal Articles

On March 8, 1948 the Supreme Court of the United States decided in substance that this language prohibits the tax-supported city school systems of the State of Illinois from assisting and encouraging general religious instruction. Just how a constitutional restriction against specified congressional action can possibly impede the activity of a local Illinois school board is an inglorious mystery of modern constitutional construction.

In one way or another however, and for one reason or many, the Court decided eight to one that when the First Amendment says "Congress" it means, among other things, a local school board and when it …

The Lawyer And The Public, Thomas Frank Konop

Journal Articles

In this address, I am purposely omitting a discussion of the subject of "Delays in Litigation" as that matter was covered by the address of Judge Cain on last Monday. Cherishing the hope that my talk may bring about a better acquaintance with, and a better understanding of the lawyer, I propose to address myself to the general public, rather than to my professional brethren. If any of you have ever attended an annual bar-banquet and there heard the usual and orthodox address on the legal profession, you undoubtedly went home impressed with the idea-whether you believed it or not-that …