Rule of Law Commons^™

Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules To Promulgate Severe First Amendment Restrictions On The Spouses And Children Of Public Employees, Nicholas R. Farrell

Vanderbilt Law Review

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch …

An Overview Of The Symposium, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

By design, this conference was constructed to brainstorm about the connection of governance, ethics, and peace. To that end, the conference and these papers were a success. As a novel question, however, we are far from providing a definitive answer to exactly what should be done to foster the connection and, more basically, exactly what the connection looks like. One can, however, identify three general themes emanating from the conference that provide a sense for the opportunities of future research.

First, there is a public policy dimension. Corporations gain their authority through state action and the duties of fiduciaries of …

Theology In The Jury Room: Religious Discussion As "Extraneous Material" In The Course Of Capital Punishment Deliberations, Gregory M. Ashley

Vanderbilt Law Review

"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities …

The End Of The Affair? Anti-Dueling Laws And Social Norms In Antebellum America, C.A. Harwell Wells

Vanderbilt Law Review

Jonathan Cilley and William Graves fought their duel in the early afternoon of February 23, 1838. The two faced off near the Anacostia River bridge leading out of Washington, D.C., having agreed in advance to duel with rifles at a distance of eighty paces. Shortly before three o'clock, they stood opposite one another, and at the signal, they exchanged shots, Cilley firing first. Both men missed. The men who accompanied them to the duel-their seconds-tried to work out the disagreement that led the men to the dueling-ground, but to no avail. For a second time, both stood and exchanged fire; …

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …

The Rule Of Law In China, Eric W. Orts

Vanderbilt Journal of Transnational Law

This Article explores contemporary meanings of the rule of law with a focus on its meaning in Chinese history and tradition, as well as Chinese legal institutions. Part II considers the concept of law in China, from early understandings in Confucianism and Legalism to more recent treatments in Chinese Communism. It also reviews efforts that the People's Republic of China has made in recent decades to strengthen its legal institutions. Part III begins with a discussion of the Western jurisprudential idea of the rule of law and suggests a distinction between two basic understandings: (1) rule by law as an …

Symposium Address: The Role Of Lawyers In The Wto, James Bacchus

Vanderbilt Journal of Transnational Law

A final point I would make to students who are here today and about to go out into the legal world would be this: I have noticed that what I do is a bit controversial in some places. Why is that so?

It is because the world is changing and because, understandably, people have apprehensions about change. It is also because there is very little understanding of what it is that we are doing in Geneva. Consciously, and intentionally, I have spent my first years on the Appellate Body in silence. Vanderbilt is one of the few places where I …

The Economic Implications Of The Reunification Of Hong Kong With China, Edwin L.-C. Lai

Vanderbilt Journal of Transnational Law

Professor Lai presented this essay at the Vanderbilt Journal of Transnational Law Symposium 1997: Hong Kong's Reintegration into the People's Republic of China. Professor Lai has updated his work since Hong Kong and China reunified. The author questions whether Hong Kong will really be able to remain an independent economic entity while also being a dependent political entity under the unprecedented "one country, two systems" concept.

In this essay, the author identifies the conditions under which Hong Kong's economy can prosper, both in the short term and the long term. After reviewing Hong Kong's recent economic performance, the author assesses …

Contract Law In The People's Republic Of China, Mark C. Lewis

Vanderbilt Journal of Transnational Law

The emergence of the People's Republic of China (PRC) as a market power and the reversion of Hong Kong to PRC sovereignty in 1997 have focused the attention of the international business community on the PRC's willingness to enforce contractual obligations according to the rule of law. Some scholars have questioned whether the rule of law can ever be realized in China without a change in the basic system of governance. This Note attempts to answer that question, at least in the context of the Foreign Economic Contract Law (FECL), the law governing contractual disputes between Sino and foreign enterprises …

The Practice Of Dissent In The Supreme Court, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The United States Supreme Court's connection to the ideal of the rule of law is often taken to be the principal basis of the Court's political legitimacy. In the Supreme Court's practices, however, the ideal of the rule of law and the Court's political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Court's legitimacy part company with respect to the Court's practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent-the tradition of Justices publishing their differences with the judgment or the reasoning of their peers--cannot …

Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, the author chronicles the rise and fall of the "perestroika parliament." While Gorbachev's reforms were ultimately unsuccessful in producing effective democratic representation, the author believes that the history of these reforms provides some valuable lessons for post-Soviet Russia. Specifically, Professor Foster concludes that current reformers in Russia should learn from the failed perestroika parliament that a democratic, "rule-of-law" state requires uniform lawmaking procedures with constitutional safeguards to guarantee their integrity.

The Inevitability Of Practical Reason: Statutes, Formalism, And The Rule Of Law, Daniel A. Farber

Vanderbilt Law Review

This Symposium commemorates the publication of Karl Llewellyn's assault on the canons of statutory interpretation. This Article seeks to situate Llewellyn's view of statutory interpretation within the ongoing debate between advocates of practical reason and formalism.

Many critics of practical reason question its compatibility with the rule of law. If we cannot precisely describe the operation of practical reason, can we have any confidence in its ability to guide judicial decisions? Or, on the contrary, does formalism provide a greater degree of democratic accountability, certainty, stability, and predictability than practical reason? These questions are the primary concern of this Article. …

Remarks Of Professor Robert A. Friedlander, Professor Robert A. Friedlander

Vanderbilt Journal of Transnational Law

Terrorism, in its essence, consists of common crimes: murder, attempted murder, kidnapping, aggravated battery, aggravated assault, arson and whatever other act of violence is utilized for terrorist ends and as terrorist means. Admittedly the world's democracies have not only failed to develop an acceptable definition for the global arena, they have also been unable to fashion a proper meaning for their own domestic statutes. We should never forget the symbiotic relationship which exists between terrorism and democracy. As the French political analyst, Jean Francois Ravel, has cogently remarked: "The main target of international terrorism is the idea of freedom as …

Private International Law As A Means To Control The Multinational Enterprise, Dimitris Tzouganatos

Vanderbilt Journal of Transnational Law

This Article explores the different approaches taken by the academic and judicial communities of Germany and the United States in their respective attempts to derive the optimal legal policy to deal with the multinational enterprise phenomenon. It attempts to assess the success of the Private International Law method as applied in most European countries by examining whether its criteria are operational and a reflection of economic reality. The Article also analyzes whether application of such criteria ensures the enforcement of the policies of the forum. It concludes by questioning whether the Private International Law approach is a viable alternative to …

A Report On Certain Recent Legal Developments In The International Monetary Fund, Joseph Gold

Vanderbilt Journal of Transnational Law

In the recent past, the main activity of the International Monetary Fund in connection with the development of international law has been the negotiation and drafting of an amendment of the Fund's Articles of Agreement. The present report deals primarily with that activity, but also comments on the sixth general review of the quotas of member states in the Fund.

On August 15, 1971, the United States, having decided to free itself from certain constraints that had become unacceptable and to exercise greater autonomy for national policies, suspended the convertibility into gold or other reserve assets of balances of United …

Legal And Economic Incentives For Foreign Direct Investment In The Southeastern United States, Paul S. Dempsey

Vanderbilt Journal of Transnational Law

The United States of America may well be the most attractive area for investment in the entire world. Foreign investment, although failing to play a dominant role in the American economy, has nevertheless enjoyed a substantial and significant growth in recent years. This contemporary acceleration may be attributed to a number of factors, including, for example: (a) America's enormous pool of skilled and well educated labor; (b) the narrowing of the gap between the cost of United States and foreign labor; (c) the abundance of domestic energy and other raw materials; and (d) the relative docility of the United States …

International Transactions In A Cold Climate; Or Whatever Became Of The Law Merchant?, Henry Harfield

Vanderbilt Journal of Transnational Law

International trade can be conducted only under the rule of law. There is no rule of law that governs international trade. These statements form a paradox, and the beginning of two possible syllogisms. One construction is that since there is no rule of law governing international trade, and international trade is dependent upon the rule of law, international trade must perish. The other and more hopeful construction is that international trade does exist, it must exist, and because it is dependent upon the rule of law, a rule of law must be devised.

I believe in the latter formulation, but …

The Role Of Law And The Function Of The Lawyer In The Developing Countries, Wolfgang G. Friedmann

Vanderbilt Law Review

In the majority of contemporary democratic societies, the role of the lawyer is important, in some cases (such as the United States) predominant. This is so partly because a democratic constitution and legal order--for all the differences between the various types of democracy--are based on a delicate and precarious balance of functions and powers, which makes the role of the lawyer, as a trained balancer, important. But it is also connected with the fact that in the formative era of modern democracies, especially throughout the nineteenth and early twentieth centuries, the predominant economic philosophy of democracy was that of laissez …

Routine Bifurcation Of Jury Negligence Trials: An Example Of The Questionable Use Of Rule Makings Power, Jack B. Weinstein

Vanderbilt Law Review

The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; …

Twenty-Nine Distinct Damnations Of The Federal Practice -- And A National Ministry Of Justice, Arthur J. Keeffe

Vanderbilt Law Review

There are certain fundamental truths. Neither the practicing lawyer nor the best judge has the requisite time to worry about the "why" of a rule of law. And this is true whether the point be one of substantive or adjective law although, as we know, the two are inter-mixed and one.

If the day's work be done, the bar and the judiciary must take the law as they find it, right or wrong, sensible or nonsensical, and do the best they can. Theirs is not to reason why.

I do not mean to deny that now and then a court …

Claims Against States, Leslie L. Anderson

Vanderbilt Law Review

In 1924, commencing a leading series of articles on "Government Liability in Tort," Professor Edward M. Borchard referred to what he called the "unexampled expansion of the police power in the United States." He wrote of the increasing risks which individuals in this country are left to bear from "defective, negligent, perverse or erroneous administration" of the functions of government. If those functions had increased at a considerable rate at the time of his article, what would one say of their extent today? Even the leaders of the New Deal discerned the risks to which increased governmental activity subjected people, …

Annual Survey Of Tennessee Law, John W. Wade

Vanderbilt Law Review

The idea of an annual survey of the law of a particular jurisdiction is not a new one, either in this country or abroad. During a period of at least 25 years an increasing number of publications have undertaken to present such a survey. The task is a delicate one, and performances have been somewhat uneven. A mere digest of appellate opinions or a scissors-and-paste collection of expressed rules of law serves some useful purpose but scarcely justifies separate existence. On the other hand an exhaustive discussion of most of the individual decisions prevents a view of the forest for …