Law Commons^™

Dicta And The Rule Of Law, Ryan S. Killian

Pepperdine Law Review

This Essay is about dicta. Like Olson, the Essay will not spend much time arguing about the definition of dicta. Rather, it analyzes rule of law issues as they pertain to dicta. Does the definition of dicta matter? Does reliance on dicta by subsequent courts raise rule of law concerns? The answer to both questions is yes.

Who Is The "Sovereign" In Sovereign Debt?: Reinterpreting A Rule-Of-Law Framework From The Early Twentieth Century, Odette Lienau

Odette Lienau

Combining legal interpretation with political science analysis, this Article highlights the competing "statist" and "popular" conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft's foundational 1923 "Tinoco" decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

Principles For Establishment Of A Rule Of Law Criminal Justice System, William M. Cohen

Georgia Journal of International & Comparative Law

No abstract provided.

The Importance Of Building Fires: Lessons Learned As A Judge On The United States Court Of Appeals For The Armed Forces, James E. Baker

The Journal of Appellate Practice and Process

No abstract provided.

Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson, Nathalie Bernasconi-Osterwalder

Columbia Center on Sustainable Investment Staff Publications

In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted a package of rules aiming to ensure transparency in investor-State arbitration (the “Rules on Transparency”), ratifying the work done by delegations to UNCITRAL – comprised of 55 Member States, additional observer States and observer organizations – over the course of nearly three years of negotiations.

Under previous versions of the UNCITRAL Arbitration Rules, disputes between investors and States were often not made public, even where important public policies were involved or illegal or corrupt business practices were uncovered. In contrast, the new rules, which will officially come …

The Return Of The King: The Unsavory Origins Of Administrative Law, Gary S. Lawson

Faculty Scholarship

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the …

Law's Authorizations And Rule Of Law Ideals: Lessons From Russia, David M. Woodruff

Georgia Journal of International & Comparative Law

No abstract provided.

Dynamics Of Democracy : Administrative Law And The Process Of Institutional Changes In Taiwan, Cheng-Yi Huang

Cheng-Yi Huang

No abstract provided.

The Rule Of Law And Access To Justice In Prisons, Mary Rogan

Conference Papers

At the heart of my talk is the concept of accountability, along with the importance of fairness and transparency in decisions taken in places which are very far from public view. The rule of law is ever more important in situations where the power relationship is tipped in the favour of the State, as in prisons. Speaking pragmatically, the fairness and legitimacy of decision-making in prisons is an important element in maintaining order and decent relationships between staff and prisoners, so essential in ensuring security. This practical reason for the application of the rule of law in prisons has been …

Defending The Rule Of Law In An Era Of Cultural Fragmentation And Cynicism, David Barnhizer

David Barnhizer

Abandonment of a belief in the objectivity of knowledge, along with the postmodernist assertion that language, truth and power are intertwined has left us with a sense of profound uncertainty. This pervasive doubt extends to virtually all realms, including law. The sense of uncertainty causes us to struggle over the application of indeterminate rules written in indeterminate language applied to indeterminate contexts. At the core of our uncertainty in the context of the perceived integrity of the Rule of Law is that once our most important legal doctrines were disconnected from any belief in divine or natural sources of right …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

The Rule Of Law As A Law Of Law, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, …

Transitional Justice In Iraq: Learning The Hard Way, Erin Daly

Erin Daly

The relationship between transitional justice and democracy is fraught and complex, and nowhere more so than in Iraq since the fall of Saddam Hussein. Iraq has experienced a range of transitional justice initiatives, including the trial and execution of its former leader, purges from the civil service and the military, and a series of reconciliation conferences. And yet, democracy has not fully taken root and violence continues to plague many parts of the nation on a regular basis. This article argues that initiatives aimed at changing the structure of society -- including but not limited to constitutionalism, frequent elections, and …

Self-Formalism, Precedent, And The Rule Of Law, Mark Tushnet

Notre Dame Law Review

No abstract provided.

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Legal Ethics As A Moral Idea: A Theory Of Philosophical Legal Ethics Based On The Work Of Lon Fuller, Emanuel Raul Tucsa

LLM Theses

The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy.

In this paper, I will argue …

Human Rights Conventions And Reservations: An Examination Of A Critical Deficit In The Cedaw, Michael Buenger

Michael Buenger

Human rights agreements like CEDAW contain language that seeks to inspire and establish the legal boundaries of state action with regards to protected rights. Such agreements also contain reservation provisions that enable states to join an agreement and simultaneously exempt themselves from the very substantive goals the agreement seeks to achieve. In the past, the issue of reservation compatibility has been treated as political questions under an objection process. Establishing a mechanism for testing reservation compatibility before the ICJ is a better means of ensuring that states do not nonchalantly exempt themselves from human rights obligations through reservations.

What Is The Rule Of Law And Why Is It So Important?, Mortimer N.S. Sellers

Book Chapters

This chapter considers the rule of law from within the rule of law tradition, to clarify what the rule of law is, why it is so valuable, and how we can secure it.

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Scholarly Publications

In recent decades, the eyes of the world have been trained on China’s remarkable feats of rapid economic development. Yet the enormous environmental toll associated with China’s growth has also drawn global attention, as Chinese air and water quality plummet to historic lows. Epic levels of environmental degradation have fueled a growing domestic consensus that China must do better at reconciling these competing goals. This article reviews the contemporary challenges facing the second wave of environmental governance in China (with an addendum addressing important environmental law amendments enacted as it went to press). In the first wave of environmental governance, …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Scholarly Publications

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.

The Influence Of The Andean Intellectual Property Regime On Access To Medicines In Latin America, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This chapter is a contribution to "Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America," Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry …

Function And Dysfunction In Post-Conflict Justice Networks And Communities, Elena Baylis

Articles

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are …

Building A Government Of Laws: Adams And Jefferson 1776–1779, James Maxeiner

All Faculty Scholarship

America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them assigned common …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

UF Law Faculty Publications

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Moving From Crisis Management To A Sustainable Solution For Somali Piracy: Selected Initiatives And The Role Of International Law, Ved P. Nanda, Jonathan Bellish

Case Western Reserve Journal of International Law

No abstract provided.

The Exclusionary Rule As A Symbol Of The Rule Of Law, Jenia I. Turner

SMU Law Review

Throughout South America, Southern and Eastern Europe, and East Asia, more than two dozen countries have transitioned to democracy since the 1980s. A remarkable number of these have adopted an exclusionary rule (mandating that evidence obtained unlawfully by the government is generally inadmissible in criminal trials) as part of broader legal reforms. Democratizing countries have adopted exclusionary rules even though they are not required to do so by any international treaty and there is no indication that there is widespread popular demand for such rules. This has occurred at a time when the rule has been weakened in the United …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan