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Articles 61 - 90 of 281
Full-Text Articles in Rule of Law
Competing Legal Cultures And Legal Reform: The Battle Of Chile, James M. Cooper
Competing Legal Cultures And Legal Reform: The Battle Of Chile, James M. Cooper
Michigan Journal of International Law
This Article explores the competition that exists between U.S. and German legal cultures and examines Chilean legal reform efforts since the late 1990s as a case study of this competition. A country's legal culture is comprised of the self-governing rules and operations of national and regional bar associations, the format of legal education, the structure of the legal and judicial profession, the role of the judiciary, jurisprudential style, and the reputation of the legal sector according to the general public. The influence of predominant legal cultures on developing nations has been explored in a number of contexts, while the importance …
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
Craft And Power, Carl E. Schneider
Craft And Power, Carl E. Schneider
Articles
Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy …
Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano
Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano
University of Michigan Journal of Law Reform
The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …
A Syllabus Of Errors, Douglas Laycock
A Syllabus Of Errors, Douglas Laycock
Michigan Law Review
Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be …
A Response To Professor Laycock, Marci A. Hamilton
A Response To Professor Laycock, Marci A. Hamilton
Michigan Law Review
Almost a hundred years ago, the American Association of University Professors established guidelines for civility among scholars, saying that academic exchanges "should be set forth with dignity, courtesy, and temperateness of language." I agree wholeheartedly with these principles, and I will not succumb to the temptation to respond in kind to Professor Laycock's review. Tone is much less important than having a frank exchange of views. It is well known that Professor Laycock and I have very different perspectives on the proper interpretation of the Free Exercise Clause. His review and my response should be an opportunity for us to …
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Michigan Journal of International Law
Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when …
An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh
An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh
Michigan Journal of International Law
This Article provides a comparative analysis of the status of the Republic of China on Taiwan in foreign and international settings. Most existing literature written from the traditional public international law perspective focuses on Taiwan's separate statehood from China. This Article addresses an important pragmatic issue that international courts and courts in foreign countries frequently face: whether Taiwan is a "foreign State" for particular salutatory purposes in judicial proceedings. Part I of this Article provides an overview of China-Taiwan relations and the status of Taiwan under international law. I argue that the ROC on Taiwan has been a sovereign State …
Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman
Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman
Michigan Journal of International Law
This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the "ticking time-bomb" hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their "extra-legal measures." On the other hand, others argue that the embrace of "extra-legal measures" misconceives the rule of law, underestimates the capacity of a …
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Michigan Journal of International Law
It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).
Keynote Address, Jeffrey H. Smith
Keynote Address, Jeffrey H. Smith
Michigan Journal of International Law
This afternoon, I want to touch briefly on a number of issues rather than discuss one or two to death. I chose this approach because it seemed an appropriate way to open a conference. I also chose it because I hope I can convince you that intelligence and international law interact in a way that simultaneously strengthens the law and improves intelligence; that law matters, especially in time of war; and that both good intelligence and good law have one common core value: integrity. So that you will have a sense of the perspective that I bring to this, I …
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Double-Consciousness In Constitutional Adjudication, Richard A. Primus
Articles
Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …
How Qui Tam Actions Could Fight Public Corruption, Aaron R. Petty
How Qui Tam Actions Could Fight Public Corruption, Aaron R. Petty
University of Michigan Journal of Law Reform
This Note argues that public corruption at the state and local levels is a serious problem throughout the United States. Because public corruption decreases confidence in the democratic system at all levels of government, a strong response is necessary. Due to difficulties inherent in the deterrence, detection, and prosecution of state and local corruption, innovative methods to respond to this problem are needed. The author argues that amending the federal criminal statutes most commonly used to prosecute state and local public corruption, to allow a private citizen to bring a qui tam civil action against the public official for violations …
"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.
"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.
Michigan Law Review
Proponents of international judicial dialogue would do well to read, and reflect upon, the conversations chronicled in Judges in Contemporary Democracy. In a lucid and candid series of interlocutions, five preeminent constitutional jurists and one highly regarded constitutional theorist ponder some of the most difficult questions about the role of a judge on a constitutional court. In particular, the participants-including Stephen Breyer (Associate Justice of the Supreme Court of the United States), Robert Badinter (former President of the Constitutional Council of France), Antonio Cassese (former President of the International Criminal Tribunal for the Former Yugoslavia), Dieter Grimm (former Justice of …
Law And Culture In China And Japan: A Framework For Analysis, John O. Haley
Law And Culture In China And Japan: A Framework For Analysis, John O. Haley
Michigan Journal of International Law
This Comment is divided into two parts. The first sets forth a series of definitional propositions intended for a more general analysis of the interrelationships of law and culture. The second comprises an introduction to the evolution of legal institutions that enables us to understand better the reception and development of Western legal institutions in East Asia and provides context for the four articles and their individual and collective insights.
Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt
Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt
Michigan Journal of International Law
This Article represents the first conscientious attempt to address these questions, present a conceptual framework for examining the legal and political efficacy of coercing democratically constituted governments into sharing power, and define a lawful basis or approach to sharing power when governments are confronted with the aforementioned scenario. The Article is polemical and questions the dominant logic that political power-sharing is lawful, legitimate, and unequivocally serves the public good, arguing that power-sharing deals that ignore controlling rules are unlawful and not viable.
International Treaty Enforcement As A Public Good: Institutional Deterrent Sanctions In International Environmental Agreements, Tseming Yang
International Treaty Enforcement As A Public Good: Institutional Deterrent Sanctions In International Environmental Agreements, Tseming Yang
Michigan Journal of International Law
This Article approaches the issues through the lens of two general questions. First, what are the functions of treaty enforcement and institutional deterrent sanctions? Second, what are the obstacles to the effective deployment of institutional deterrent sanctions in response to noncompliance? This Article elaborates on the instrumental purposes of enforcement as well as its independent normative function. Much of the analysis follows the recent stream of works that combines both international law and international relations theory. These works offer a rich understanding of the conduct of states and the functioning of international legal regimes.
What Have We Learned About Law And Development? Describing, Predicting, And Assessing Legal Reforms In China, Randall Peerenboom
What Have We Learned About Law And Development? Describing, Predicting, And Assessing Legal Reforms In China, Randall Peerenboom
Michigan Journal of International Law
This Article applies existing conceptual tools for describing, predicting, and assessing legal reforms to the efforts to establish rule of law in China, in the process shedding light on the various pathways and methodologies of reform so as to facilitate assessment of competing reform strategies. While drawing on China for concrete examples, the discussion involves issues that are generally applicable to comparative law and the new law and development movement, and thus it addresses
How Does Culture Count In Legal Change?: A Review With A Proposal From A Social Movement Perspective, Setsuo Miyazawa
How Does Culture Count In Legal Change?: A Review With A Proposal From A Social Movement Perspective, Setsuo Miyazawa
Michigan Journal of International Law
We have in this volume four articles on legal change in China and Japan written by four distinguished authors. These articles vary with regard to subject state, specificity of issues, and breadth of analytical scope. They commonly discuss one factor, however: culture. The purpose of this Comment is to examine the way each article uses culture in its explanations of legal change. The Comment concludes with a brief suggestion, from a social movement perspective, on employing culture as an explanatory tool in a non-essentialist way.
Rebus Sic Stantibus: Notification Of Consular Rights After Medellin, Aaron A. Ostrovsky, Brandon E. Reavis
Rebus Sic Stantibus: Notification Of Consular Rights After Medellin, Aaron A. Ostrovsky, Brandon E. Reavis
Michigan Journal of International Law
This Comment examines, through principles of public international law and U.S. jurisprudence, the relationship between U.S. courts and the ICJ to determine if the former are indeed bound by the latter's decisions, proprio motu, or if instead some Executive action is required to make the decisions binding on the judiciary. Part of this examination will entail a discussion of the potential for dialogue between the ICJ and U.S. courts to "pierce the veil of sovereignty" that traditionally conceals the inner workings of sovereign states from the scrutiny of international tribunals. Based on this assessment, the Comment then addresses how …
Global Markets And The Evolution Of Law In China And Japan, Takao Tanase
Global Markets And The Evolution Of Law In China And Japan, Takao Tanase
Michigan Journal of International Law
The first angle of this Article concerns the exclusivity of rights, which is the notion that a right has an exclusive boundary of ownership. The socialist system and traditional customary law in China gave only weak recognition to this concept, especially prior to China's move toward a market economy and the introduction of modern law. The second angle addresses the functionality of extralegal norms. Law reforms tend to be measured by the efficiency gains they produce, a process intensified by competition among systems. The third angle involves the ideological nature of the market-oriented development of law. The foreign enterprises and …
Signaling Conformity: Changing Norms In Japan And China, David Nelken
Signaling Conformity: Changing Norms In Japan And China, David Nelken
Michigan Journal of International Law
Whatever their differences, the articles in this issue also have much in common in addition to their regional focus. The author of this Comment shall discuss in turn three (related) theoretical issues that arise, to a greater or lesser degree, in all four contributions. The first Part of this Comment considers the insights of these articles on the need to move from discussing transplants to focusing on transnational legal processes. The second Part examines what the contributions tell us about culture, legal culture, and the so-called "norm of conformity." I shall concentrate in particular on the cultural sources of choices …
Transitional Justice In Times Of Conflict: Colombia's Ley De Justicia Y Paz, Lisa J. Laplante, Kimberly Theidon
Transitional Justice In Times Of Conflict: Colombia's Ley De Justicia Y Paz, Lisa J. Laplante, Kimberly Theidon
Michigan Journal of International Law
The authors of this Article were committed to researching the impact of the paramilitary demobilization process "on the ground"-that is, conducting qualitative research that would allow us to test the validity of different debates with the goal of generating recommendations on how future conflict and post-conflict countries might benefit from the merging of DDR and transitional justice. In this text we draw upon the preliminary results of our research on the individual and collective demobilization programs. The first stage of the project included 112 in-depth interviews with demobilized combatants from the Fuerzas Armadas Revolucionarias de Colombia-Ej rcito del Pueblo (FARC-EP) …
"Dragonslaying." Review Of Democracy Defended, By G. Mackie, Donald J. Herzog
"Dragonslaying." Review Of Democracy Defended, By G. Mackie, Donald J. Herzog
Reviews
Early in the Iliad, the Achaians convene an assembly. There are a lot of them and they're unruly, too. "[Tihe place of their assembly was shaken, and the earth groaned / as the people took their positions and there was tumult. Nine heralds / shouting set about putting them in order, to make them cease their / clamour and listen to the kings beloved of Zeus."' Clutching the scepter that has come to him ultimately from Zeus, the very symbol of his right to speak and be heard, Agamemnon bitterly proposes that the Achaians give up. Nine years of struggle …
Vultures In Eagles' Clothing: Conspiracy And Racial Fantasy In Populist Legal Thought, Angela P. Harris
Vultures In Eagles' Clothing: Conspiracy And Racial Fantasy In Populist Legal Thought, Angela P. Harris
Michigan Journal of Race and Law
This Article has three interrelated aims. First, I will briefly describe the online world of the legal populists. My second aim in this Article is to give an account of legal populism that connects it with the American tradition of conspiracy theory and with the political consciousness of survivalism. My third and final aim in this Article is to examine, as David Williams has done in a wonderful series of articles, the relationship between the nation dreamed of by many legal populists and the one inhabited by state-sanctioned legal insiders.
Supporting Sustained Economic Development, Steven Radelet
Supporting Sustained Economic Development, Steven Radelet
Michigan Journal of International Law
There is no magic formula for sustained economic development in poor countries. Strategies that succeed in one country may not be appropriate in another. Yet there are several broad similarities across the countries that have been most successful in achieving development over the past forty years. This Article takes a very broad overview of economic development in low-income countries over this period and makes three basic points.
Legal Institutions And International Trade Flows, Daniel Berkowitz, Johannes Moenius, Katharina Pistor
Legal Institutions And International Trade Flows, Daniel Berkowitz, Johannes Moenius, Katharina Pistor
Michigan Journal of International Law
Why do domestic legal institutions matter, and why can trading parties-in particular exporters of complex goods-not easily opt-out of their domestic legal institutions? The authors argue that domestic institutions remain important even in a globalized world, because they are the final option for enforcing a claim against a party in the event of a breach of contract. International contracts take place in the shadow of the parties' home institutions. Unless parties can negotiate a settlement, or the losing party voluntarily complies with a foreign court or arbitration ruling, the winning party must seek enforcement against the assets of the losing …
National Self-Determination And Ethnic Minorities, Olli Lagerspetz
National Self-Determination And Ethnic Minorities, Olli Lagerspetz
Michigan Journal of International Law
The paper will include three parts. In the first part, the relation between nationality and popular sovereignty is explored. In the second part, there is a somewhat analogous discussion of the concept of ethnicity. In the last part, the conclusions are applied in a discussion of ethnic nationalism.
Beyond Rights: Legal Process And Ethnic Conflicts, Elana A. Baylis
Beyond Rights: Legal Process And Ethnic Conflicts, Elana A. Baylis
Michigan Journal of International Law
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build structural safeguards against such disputes into their political and legal systems, but these safeguards have not been able to prevent all conflict. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts. This presents an important question: what kinds of processes and institutions might enable ethnic groups to resolve their conflicts with each other and the state? This Article explores that question, reviewing the interdisciplinary literature on ethnic conflicts, the legal literature …
Commentary To Professor Stephen D. Krasner, Jürgen Kurtz
Commentary To Professor Stephen D. Krasner, Jürgen Kurtz
Michigan Journal of International Law
Comment on Professor Stephen D. Krasner's The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law