Rule of Law Commons^™

Support The Icc As A Vital Court Of Last Resort For Victims Of Grave International Crimes, Jocelyn Getgen Kestenbaum, Gabor Rona

Online Publications

This public statement, issued on International Justice Day (July 17, 2026), affirms support for the International Criminal Court (ICC) as an independent judicial institution and a court of last resort for victims of genocide, crimes against humanity, war crimes, and the crime of aggression. Signed by more than 100 organizations and individuals, including legal scholars, practitioners, human rights advocates, and civil society organizations, the statement expresses concern over efforts to undermine the ICC's independence and functioning. It calls on the United States to reaffirm its longstanding commitment to the rule of law, judicial independence, and international accountability, emphasizing the importance …

The Rhythm Of Reform, Michael Waldman

Cardozo Law Review

This year, we celebrate the 250th anniversary of our independence. In January 1776, Thomas Paine published Common Sense. Paine was an immigrant who had arrived only two years before. The pamphlet went viral, a widely bootlegged bestseller with 120,000 copies sold in its first three months in print. It galvanized support for independence and argued that the collection of colonies should become a republic. Paine wrote: “[I]n America THE LAW IS KING.”

Is that still true? We are finding out.

Today our Constitution and the institutions of self-government face extraordinary pressure. In the first two months of 2026 alone, …

Standard Textualism, James A. Macleod

Articles

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Cardozo Law Review

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law. Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Exceptions To The International Customary Law Rule On Head Of State Immunity Under International Criminal Law, Daniel D. Ntanda Nsereko

Cardozo International & Comparative Law Review

The article examines the tension between head of state immunity and the pursuit of justice in international criminal law. It argues that while some nations and regional bodies, like the African Union, assert immunity for heads of state, international institutions such as the International Criminal Court (ICC) reject this principle, emphasizing the rule of law and accountability. The ICC's jurisdiction, particularly through UN Security Council referrals, overrides state consent, challenging traditional notions of immunity. The article posits that states must adhere to their treaty obligations, such as the Rome Statute, and cannot unilaterally opt out for political expediency, reinforcing the …

The Good Lawyers Of January 6, W. Bradley Wendel

Cardozo Law Review

Much of the response by the community of legal ethics and professional responsibility scholars to the 2020 presidential election has been focused on the wrongs committed by lawyers like John Eastman, Jeffrey Clark, and Kenneth Chesebro, who created the alternate elector scheme to throw the decision regarding the election to the House of Representatives. Yet there was a group of lawyers, that I will refer to as “the good lawyers of January 6,” who forcefully and unequivocally opposed this plan, refused to cooperate in its execution, advised Vice President Mike Pence that it was not legally supportable, and in some …

Civil Appeals Mediation Program 2023 Mediation Colloquy "Thinking 101" And Mediation

Cardozo Journal of Conflict Resolution

No abstract provided.

Drug Addiction, Insanity, And Competency: How The Halimi Case Galvanizes A U.S.-Inspired Reform Of France's Criminal Responsibility System, Ruben Attia

Cardozo International & Comparative Law Review

The Halimi case, culminating in a verdict from the Court of Cassation in April 2021, has ignited intense and contentious debates on criminal responsibility, leading to a profound erosion of public trust in the French judicial system. This Note delves into the urgency of addressing the issues presented by Halimi and emphasizes the necessity for innovative approaches within the French legislative framework. Striking a delicate balance between permitting the trial of controversial cases and upholding the age-old moral duty of excluding the mentally insane from guilty verdicts, this Note compares the intricacies of criminal responsibility in France with those in …

How To Undermine A Nation-State In 120 Days: Mediation And Negotiation In A Hybrid Warfare World, Christopher A. Corpora

Cardozo Journal of Conflict Resolution

The original and admittedly provocative title for this essay was "How to Take Down a State in 120 days" and the original November 2022, 20-minute presentation at Cardozo Law School was so titled. The intention behind the provocations was to demonstrate the speed of growing investment in and multi-disciplinary nature of the current hybrid war threat. We have not yet witnessed many state takedowns through this form of warfare; but we have seen states significantly undermined and captured in timelines almost as aggressive as the title suggests. We have seen authoritarian states and criminal organizations significantly weaken more vulnerable states, …

A Theory Of Interests In The Context Of Hybrid Warfare: It's Complex, Cynthia Alkon, Sanda Kaufman

Cardozo Journal of Conflict Resolution

In the 2020 British TV series The Undeclared War, the Russians launch a series of attacks against the United Kingdom that destabilize key sectors in the UK and (spoiler alert) almost end in a full-scale conventional war. In this fictionalized account, the UK only considers fighting back against cyber warfare with cyber warfare. There is no negotiation. Despite knowing who is responsible for these attacks (the Russian government), negotiation is never even considered.

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

Negotiation Theories Engage Hybrid Warfare, Nancy A. Welsh, Sharon Press, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

When Calvin Chrustie and Chris Honeyman first approached the authors of this Article regarding the potential application of negotiation scholars' expertise to the problem of hybrid warfare, our first reaction was confusion. First, what exactly was hybrid warfare? Second, since "war" was in its name, what did our field have to say that could even potentially be useful? This Article, in some sense, is designed to begin to respond to those questions and, hopefully, to encourage other scholars in our field to weigh in with their contributions and criticisms. This Article represents only a start.

Where Is Negotiation In Hybrid Warfare?, Art Hinshaw, Adrian Borbely, Calvin Chrustie

Cardozo Journal of Conflict Resolution

The question of what negotiation has to do with hybrid warfare was the starting point for Project Seshat, a project gathering a global group of academics and practitioners from many walks of life. Their shared interest is in exploring what the fields that fit generally within the concepts of "security" and "dispute resolution" have to offer each other in the context of hybrid warfare grey zone conflict, and how these two "sets" of fields interconnect. In trying to better understand what hybrid warfare is, how it works, and how best to respond to it, negotiation and dispute resolution academics have …

Accommodating Legal Ignorance, Stewart E. Sterk

Cardozo Law Review

No abstract provided.

The Muslim/Arab Sulha And The Restorative Justice Model Same Purpose, Different Approach, Doron Pely, Golan Luzon

Cardozo Journal of Conflict Resolution

This Article establishes sulha, the traditional Arab and Islamic dispute resolution practice, as a restorative justice ("RJ") mechanism. The Article compares sulah with western RJ: both practices strive for the same goal, repairing damaged relations, highlights the conceptual and functional similarities, including support for victims, and the importance of perpetrator responsibility. The Article introduces the concept of reintegrative honoring theory ("RHT")-a novel concept that describes the reliance of sulha relies on restoration of victims' sense of honor. Finally, the Article compares RHT with western reintegrative shaming theory ("RST").

Human Dignity In Judicial Decisions: Principles Of Application And The Rule Of Law, Doron Shultziner

Cardozo Journal of International and Comparative Law

Human dignity has become a central legal concept worldwide and has been increasingly employed in judicial decisions in many jurisdictions, including in countries that do not incorporate it into their constitutions. However, due to the acknowledged vagueness of the concept, scholars and judges alike have identified many difficulties in its application and specific challenges that it poses to the rule of law. This Article addresses those challenges and proposes four formal principles for the use of human dignity in judicial decisions: using the concept strictly in relation to written law; defining the concept and its actual meaning in rulings; maintaining …

Regional International Criminal Courts: An Idea Whose Time Has Come?, Firew Kebede Tiba

Cardozo Journal of Conflict Resolution

Regionalism in international relations is a fact of life. Regional judicial implementation of international norms is relatively common in the fields of international human rights, international investment, and trade laws. There are attempts to break ground in the realm of international criminal law by creating a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. Although there was momentum in creating a universal permanent international criminal court, the enthusiasm for the tribunal's exercise of jurisdiction has not continued. The International Criminal Court ("ICC") will remain short of …

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Cardozo Law Review

This Article presents a framework for reason-giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with an agency's decisions where multiple constituencies (including regulated entities), not just the courts (and judicial review), are served and respected as consumers of the reasons. The Article postulates that the January 2015 U.S. Supreme Court decision in T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decision-making. There are some fundamental, yet very understated, lessons in the T-Mobile opinion that prompt further attention and …

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

Precautionary Constitutionalism In Ancient Athens, Adriaan Lanni, Adrian Vermeule

Cardozo Law Review

No abstract provided.

A Response To Professor Greenawalt, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

The Rule Of Law And The Exemption Strategy, Kent Greenawalt

Cardozo Law Review

No abstract provided.

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy-A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Cardozo Journal of International and Comparative Law

The article explores the integration of restorative justice within Canada's criminal justice system, emphasizing its potential to enhance human capital development and community capacity through deliberative democratic processes. It argues that restorative justice offers a more effective and responsive approach compared to traditional punitive measures, which often fail to address the root causes of crime and may even exacerbate recidivism. By examining the Nova Scotia Restorative Justice Program as a model, the analysis highlights the benefits of combining restorative practices with formal criminal justice systems, advocating for a shift towards more inclusive and rehabilitative approaches to crime.

Understanding Indigenous Dispute Resolution Processes And Western Alternative Dispute Resolution: Cultivating Culturally Appropriate Methods In Lieu Of Litigation, Carlo Osi

Cardozo Journal of Conflict Resolution

This article specifically focuses on Indigenous Dispute Resolution, Western-inspired ADR mechanisms, and Indigenized Western ADR as culturally appropriate methods to resolve disputes in lieu of litigation. This article will also focus on how these processes are able to help solve intellectual property rights disputes involving Indigenous communities. Generally, this article will describe how successful all three modes of dispute resolution have been in Indigenous conflict resolution, in the quest for benefit-sharing agreements, and the potential for their use in other controversies. This article proposes the adoption of an Indigenized Western ADR approach on issues surrounding intellectual property rights regimes.

Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser

Cardozo Law Review

No abstract provided.

Guilty But Civilly Disobedient: Reconciling Civil Disobedience And The Rule Of Law, Matthew R. Hall

Cardozo Law Review

No abstract provided.

Restorative Justice As Internalization Of The Rule Of Law: Combining Restoration With Retribution In The Film Festen, Michal Alberstein

Cardozo Journal of Conflict Resolution

In this paper, I will use a film analysis to explore the potential of restorative justice processes as a more comprehensive, mature approach to the phenomenon of crime. By following the microlevel transformations within the family trial/victim-offender mediation in the film, I will try to develop a notion of law that incorporates the retributive elements into a broader framework of restoration and amendment. I will use cultural analysis as a foundation for the theoretical argument and also offer an "appropriate justice," inter-cultural formula for addressing crime in a comprehensive manner.

Assessing The Rule Of Law In Russia, Kathryn Hendley

Cardozo Journal of International and Comparative Law

The mainstream scholarly literature and the mass media agree that Russia has made little progress in moving toward the "rule of law." Their negative assessment of the value of law in Russia is buttressed by a recent series of high-profile cases in which the results were clearly manipulated by the Kremlin. This article argues that such cases are aberrations and should not be viewed as reflective of the capacity of the Russian legal system. It documents the profound institutional reforms undertaken over the past two decades. Judged on those terms, it has surely moved closer to the ideal of the …

Symposium On Terrorism, Globalization And The Rule Of Law: An Introduction, Stephen G. Breyer

Cardozo Law Review

No abstract provided.