Law Commons^™

Drug Policy Reform In The Americas: A Welcome Challenge To International Law, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Drug policy in the American hemisphere is in flux. After decades whereby a prohibitionist regime reigned supreme and proposing alternatives was taboo, several countries have begun to reconsider policy, particularly in the case of marijuana. International law has been instrumental in building the legal and institutional regime of prohibition, and it has remained largely impervious to critiques of its disastrous consequences. Indeed, when it comes to drug law and policy, international law has been part of the problem. Nevertheless, countries in the Americas have begun to adopt innovative strategies that also embrace international obligations. In this essay, I examine the …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter

All Faculty Publications

China’s rise to prosperity has seen increased tension with international standards of human rights and the rule of law such that, after a lengthy period of tentative engagement China has more recently worked to change international standards to accommodate its interests. China’s approach to human rights and the rule of law has significant implications for Canada, not only for our bilateral relations but also in terms of the impacts on international institutions that are of vital interest to Canada. In response, Canada should pursue a program of selective engagement, that combines attention to China’s abuses of human rights and the …

Judicial Nullification Of Presidential Elections In Africa: Peter Mutharika V Lazarus Chakera And Saulos Chilima In Context, Olabisi D. Akinkugbe, James Thuo Gathii

Articles, Book Chapters, & Popular Press

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. The latest example of this judicialization is the Malawi case of Peter Mutharika v Lazarus Chakera and Saulos Chilima, which successfully triggered a repeat election in which an opposition politician defeated an incumbent. This article examines the consequences and implications of this case and compares the Malawi decision to cases in Kenya and Nigeria. It further analyzes the backlash on the Malawi justices from the executive and the subsequent solidarity seen from both legal and civil society. The article concludes that the …

Complicity In The Perversion Of Justice: The Role Of Lawyers In Eroding The Rule Of Law In The Third Reich, Cynthia Fountaine

St. Mary's Journal on Legal Malpractice & Ethics

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, …

Rule Of Law, Neoliberalisme Dan Proyek Reformasi Hukum World Bank: Perspektif Critical Legal Studies, Syahriza Alkohir Anggoro

Jurnal Hukum & Pembangunan

The emergence of World Bank legal reform projects in promoting the rule of law has been successful to encourage third world countries to reform their legal aspects to help formulate market friendly policy. This article tries to question the concept of rule of law that is materialized in many World Bank legal reform projects by using critical legal perspective to analysis legal scholarship on the role of law in the context of development. It trying to present an alternative explanation of World Bank’s rule of law which we are hypothetizing as a neoliberal concept. World Bank’s rule of law are …

Summary Dispositions As Precedent, Richard C. Chen

William & Mary Law Review

The Supreme Court’s practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court’s stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court’s tendencies: summary dispositions are most commonly …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

The Charming Betsy Canon, American Legal Doctrine, And The Global Rule Of Law, Justin Hughes

Vanderbilt Journal of Transnational Law

In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate."

After exploring the traditional justifications for Charming Betsy, this Article proposes that the canon should be justified, not just by Congressional intent or separation …

The Blues And The Rule Of Law: Musical Expressions Of The Failure Of Justice, David Pimentel

Articles

No abstract provided.

Keeping Faith With Nomos, Steven L. Winter

Touro Law Review

No abstract provided.

Confucius And The Chinese Legal Tradition, Chenglin Liu

Faculty Articles

More than two thousand years ago, Confucius transformed and perfected an institution for governing Chinese people, which has been religiously replicated by subsequent dynasties. Within the Confucian institution, the King, at the pinnacle of the pyramid, held absolute authority; regional lords were loyal to the King; and commoners were submissive to the privileged. Confucius held that peace and order could only be achieved when people acted according to their hierarchical worth assigned by the ruler. This article offers an overview of the transformation of Confucianism. It then examines competing schools of thought-Legalism and Taoism-and explains why Confucianism triumphed to become …

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 …

Eu Law In Populist Times: Crises And Prospects, Francesca Bignami

GW Law Faculty Publications & Other Works

EU Law in Populist Times: Crises and Prospects analyzes the sovereignty-sensitive EU law that has emerged over the past decade—in economic policy, human migration, internal security, and constitutional fundamentals (rule-of-law policies to combat democratic backsliding). These are legal areas at the heart of state sovereignty, over which the EU’s prerogatives accelerated following the multiple crises that hit beginning in 2009. They are also EU policies that occupy center stage in the acrimonious debates that have emerged between European establishment parties and populist political forces, precisely because of the huge economic, social, and constitutional stakes involved in reaching into core state …

The Perils Of Privacy And Intelligence-Sharing Arrangements: The Australia–Israel Case Study, Daniel Baldino, Kate Grayson

Arts Papers and Journal Articles

The aim of this analysis is to explore the governance frameworks and associated privacy and interrelated risks that stem from bilateral security arrangements such as the Australia–Israel intelligence relationship. In an era of expanding globalisation of intelligence, targeted oversight advances that are adaptive to global trends may serve to mitigate the potential costs and downsides of transnational intelligence exchange while respecting the privacy, rights and liberties of citizens and ensuring that sovereignty, human rights standards and rule of law remain protected.

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

All Faculty Publications

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

Why Should We Care About International Law?, Monica Hakimi

Faculty Scholarship

International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles — known as realist — posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons …

Law’S Sentiments, Robin West

Georgetown Law Faculty Publications and Other Works

The chapter argues that law and the Rule of Law do not displace moral sentiments, but rather require them, and sometimes produce them. Law gives us some sense of physical security and thereby makes possible the fellow feeling and empathy that are the root of moral action. The chapter seeks to make this claim plausible by looking at fiction that describes various dystopian lawless states, including the hierarchy of the Church, which law has been loath to enter, badly policed neighborhoods, nineteenth century American slavery, and early twentieth century patriarchal marriages. One lesson of much of this fiction is that …