Law Commons^™

A Guide To The Rule Of Law, Smu Apolitical

Student Publications

A Guide to the Rule of Law presents a compilation of case studies of different countries by a group of contributing writers in a simple and easy-to-understand manner. Designed for readers of all ages and from all walks of life, this primer is the second of a series of primers focusing on an international scope for readers to acquire knowledge to better understand issues which concerns us all, esp

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

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 …

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 …

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Political Trust In Kosovo: Exploring Cultural And Institutional Dynamics, Ermira Babamusta

Graduate Theses, Dissertations, and Problem Reports

In this dissertation I examine political trust perceptions across different political-legal institutions and actors in Kosovo. I evaluate the levels of political trust using cultural and institutional performance explanations to investigate the key factors that have an impact on political trust. The study explores national political trust and international political trust, considering many domains of political trust: government, political leaders, political parties, Kosovo Courts, Kosovo Police, NATO, United Nations, European Union, and the Kosovo Specialist Court. There is growing concern about lower levels of political trust across Europe, especially in post-communist countries. In this study, I make the case that …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

All Faculty Scholarship

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Epistemic Peerhood In The Law, R. George Wright

St. John's Law Review

(Excerpt)

We thus have, at this point, a preliminary sense of the importance of some possible choices in deciding whose voices and participation should be taken seriously, as that of our epistemic peers, in deciding legal questions. This Article addresses these preliminary understandings in several legal contexts. We can do so most profitably on the basis of a better, fuller, and more specific understanding of the crucial idea of epistemic peerhood. It is thus the idea of epistemic peerhood itself that this Article addresses immediately below.

Narratives Of Self-Government In Making The Case, Benjamin L. Berger

The Journal of Appellate Practice and Process

No abstract provided.

The Persuasive Authority Of Internationalized Criminal Tribunals, Elena Baylis

Articles

After a period in which it seemed as though hybrid criminal tribunals were waning, proposals for such tribunals are proliferating again. The recent success of the Extraordinary African Chambers in trying Hisséne Habré highlights the resurgent trend toward ad hoc internationalized courts and chambers to try cases of genocide, war crimes, and crimes against humanity. The international community could make strategic choices in designing this new generation of tribunals to maximize their effectiveness. One way that international courts spread their influence is through their persuasive authority. Even if their decisions are not binding on the concerned national courts, by persuading …

Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson

Law Faculty Publications

This essay, first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C., takes as its inspiration the spirit of the rule of law, as laid down in the Magna Carta. Specifically, the author argues that the popular election and reelection of judges undermines the rule of law, and democracy in general, by exposing judges to the manipulations of financial corruption, political intimidation, and the often irrational shifts in popular opinion. To correct this problem, the author calls for amendment of the thirty-nine state constitutions …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Randy J Kozel

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 …

Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan

Donald J. Kochan

Trending@Rwu Law: Professor David Logan's Post: Diversity In The Rhode Island Judiciary, David A. Logan

Law School Blogs

No abstract provided.

What Internationals Know: Improving The Effectiveness Of Post-Conflict Justice Initiatives, Elena Baylis

Articles

The field of post-conflict or transitional justice has developed rapidly over the last thirty years. The United States, the United Nations, and many other international organizations, governments, and institutions have contributed to hundreds of international criminal trials and rule of law programs. International staff, known as “internationals,” travel among post-conflict states and international criminal tribunals to carry out these initiatives. In addition to being a field of work, post-conflict justice also constitutes an emergent body of legal knowledge, composed of substantive standards, rules of procedure, best practices, and other elements. Just as the programs and institutions of post-conflict justice have …

Keepings, Donald J. Kochan

Donald J. Kochan

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.

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

Georgia Journal of International & Comparative Law

No abstract provided.

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 …

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.

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Jeffrey A. Pojanowski

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb

Pepperdine Law Review

The Constitution does not use the words federal or federalism. It gives Congress a set of powers and prohibits the national government, the states or both from doing some things. The Court has inferred principles of federalism from those provisions. The political science community has treated the advantages of federalism as contingent on whether federalism deepens or diffuses conflict or opens competition for power. The United States Supreme Court's approach does neither; it has been trying to clarify and police a very different boundary. Even on its own terms, however, the Court's justifications do not work - a problem made …

Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco

Pepperdine Dispute Resolution Law Journal

While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …