Rule of Law Commons^™

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

Anarchy, Status Updates, And Utopia, James Grimmelmann

Faculty Scholarship

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Paypal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power there is also social power. Whenever people come together …

Brief Of Federal Courts Scholars As Amici Curiae In Support Of The Petitioner, Willaim Araiza, Howard M. Wasserman, Lawrence Sager, Stephen I. Vladeck, Ernest A. Young

Faculty Scholarship

No abstract provided.

Introduction: Constitutional Conflict And Development: Perspectives From South Asia And Africa, Sudha Setty, Matthew H. Charity

Faculty Scholarship

This Introduction was written for an eponymous joint program held on January 4, 2014 and hosted by the Section on Africa and the Section of Law & South Asian Studies, both of the Association of American Law Schools.

Surveillance, Secrecy, And The Search For Meaningful Accountability, Sudha Setty

Faculty Scholarship

One of the most intractable problems in the debate around maintaining the rule of law while combating the threat of terrorism is the question of secrecy and transparency. In peacetime, important tenets to the rule of law include transparency of the law, limits on government power, and consistency of the law as applied to individuals in the policy. Yet the post-9/11 decision-making by the Bush and Obama administrations is characterized with excessive secrecy that stymies most efforts to hold the government accountable for its abuses. Executive branch policy with regard to detention, interrogation, targeted killing and surveillance are kept secret, …

The Constraint Of Legal Doctrine, Shyamkrishna Balganesh

Faculty Scholarship

As the dominant approach to legal analysis in the United States today, Legal Realism is firmly ensconced in the way scholars discuss and debate legal issues and problems. The phrase “we are all realists now” is treated as cliché precisely because it is in some ways taken to state an obvious reality about the mindset of American legal scholars. While Legal Realism came to represent a variety of different views, all of these views embodied a common theme, namely, the belief that legal doctrine is “more malleable, less determinate, and less causal of judicial outcomes” than is traditionally presumed. Judges …

Nullification As Law, Jenny E. Carroll

Faculty Scholarship

The rule of law is central to our notion of governance and our legal system. The ideal of a knowable, regular, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm where competing theories seek to claim the mantle of the rule of law. While this article cannot claim to resolve the dispute over the precise meaning or construct of …

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.

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

The Rule Of Law As A Law Of Law, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, …

Legal Reform: China's Law-Stability Paradox, Benjamin L. Liebman

Faculty Scholarship

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did China’s leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from China’s rapid social transformation. This signi½es a retreat not only from legal reform, but also from the rule-based model of authoritarian …

The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber

Faculty Scholarship

This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more …

The Inner Morality Of Private Law, Benjamin C. Zipursky

Faculty Scholarship

Lon Fuller's classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name "law" at all. In this essay, I argue that Fuller's basic principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

System Adjustments, Brendan S. Maher

Faculty Scholarship

This invited Essay considers the future of law data and system reform.

Rule Of Law In Haiti Before And After The 2010 Earthquake, James D. Wilets, Camilo Espinosa

Faculty Scholarship

No abstract provided.

Profiling Originalism, Jamal Greene, Nathaniel Persily, Stephen Ansolabehere

Faculty Scholarship

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identfy as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis …

The New Second Circuit Local Rules: Anatomy And Commentary, Jodi Balsam

Faculty Scholarship

No abstract provided.

The Rule Of Law As A Law Of Standards, Jamal Greene

Faculty Scholarship

Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules. The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application. On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication. This latter …

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph

Faculty Scholarship

No abstract provided.

Riots And Cover-Ups: Counterproductive Control Of Local Agents In China, Carl F. Minzner

Faculty Scholarship

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms.

This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of …

The Rule Of Law And The Exemption Strategy, Kent Greenawalt

Faculty Scholarship

Do exemptions from ordinary legal requirements for religious individuals and groups contravene the rule of law? If they do only sometimes, rather than always or never, under what circumstances do they do so? This Article explores these intriguing questions, raised powerfully by Marci Hamilton's important and challenging book God vs. the Gavel.

I offer some general observations about the concept of the rule of law, sketch problems posed by religious exemptions, survey various accepted features of our legal order that may seem similarly in tension with the rule of law, and consider in detail the significance of certain kinds of …

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.

Proyecto Acceso: The Use Of Popular Culture To Build The Rule Of Law In Latin America, James Cooper

Faculty Scholarship

This article is about developing the rule of law in Latin America using popular popular culture and modeling the United States' experience.

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

The Politics Of The Rule Of Law, Joseph Raz

Faculty Scholarship

This article is about the political significance and the moral justification of the rule of law in one country, i.e., Britain. Its conclusions apply to other countries in proportion to the degree to which their political culture is similar to the British one.