Rule of Law Commons^™

Lawyers And The Rule Of Law, James D. Gordon Iii

Vol. 2: Service & Integrity

This address was given to entering law students at BYU Law School on August 20, 2008.

Enforcing Intellectual Property Rights: A Methodology For Understanding The Enforcement Problem In China, Justin Mccabe

The University of New Hampshire Law Review

[Excerpt] “Intellectual property rights are neither protected nor enforced in strict uniformity throughout the world. However, it can be said that in most developed countries, intellectual property is preciously guarded, as evidenced by a plethora of intellectual property statutes, penalties for infringement, and consistent attempts to convince less developed nations to adopt strong—or stronger—intellectual property protections. Despite continued vigilance by developed countries in bringing about increased international harmony among intellectual property regimes, some developing countries sustain questionable enforcement policies. What the driving force is behind intellectual property enforcement policies—or more appropriately, the lack thereof—is a matter of disagreement. In order …

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Judicial Declaration Of Public Policy, Ruggero J. Aldisert

The Journal of Appellate Practice and Process

No abstract provided.

Religion And Rule Of Law In China Today, Zhuo Xinping

BYU Law Review

No abstract provided.

Legal Obligations: The Proper Role Of White House Lawyers, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

An opinion issued on Aug. 1, 2002, by Assistant Attorney General Jay S. Bybee of the Department of Justice’s Office of Legal Counsel held that the federal statute that makes it a crime to commit torture outside the United States should not be read to “apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” The opinion further concluded that if the statute did criminalize interrogations ordered by the president, it was unconstitutional.

The memorandum, which has become known as the “torture memo,” figures prominently in the ongoing public debate about whether there should be …

An Assessment Of Democratic Policing In The Turkish National Police: Police Officials' Attitudes Toward Recent Police Reforms, Akin Karatay

Dissertations

This study defines democracy, describes democratic policing, analyzes the development of democratic policing principles in the developing country of Turkey and contends that democracy can be enduring only when the police embody democratic values. As Turkey transforms itself in order to become a member of the European Union, the process has fostered national, institutional, cultural and socioeconomic adaptations, all of which lead towards democracy. This process has influenced the Turkish National Police (TNP) as well. In theory, these efforts towards political democratization, legal reform and the adoption of European Union police policy guidelines should have a positive effect on Turkish …

Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph

Faculty Scholarship

No abstract provided.

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

Clark Memorandum: Spring 2009, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• Lawyers and the Rule of Law (James D. Gordon III)
• The Truth About Media Subpoenas (RonNell Anderson Jones)
• A Mother's Pace (Gwyn Goodson McNeal)
• Liberty, Civility, and Professionalism (Ming W. Chin)
• Leaders and Learning (Kim B. Clark)

Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland

The Journal of Appellate Practice and Process

No abstract provided.

The Rule Of Law In Comparative Perspective, Mortimer N.S. Sellers, Tadeusz Tomaszewski

Books

This new volume on The Rule of Law in Comparative Perspective compares the different conceptions of the rule of law that have developed in different legal cultures. Lawyers and legal scholars from various legal systems describe the social purposes and practical applications of the rule of law, and how it might be improved in the varied circumstances of their own courts and politics.

This book will be of interest to lawyers, judges, public officials, and to all those wishing to improve the fundamental structures of their own legal systems, by bringing equal justice to every person subject to the power …

The Rule Of Law And The Exemption Strategy, Kent Greenawalt

Cardozo Law Review

No abstract provided.

A Response To Professor Greenawalt, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

Symposium—Experiential Education In China: Curricular Reform, The Role Of The Lawyer And The Rule Of Law: Introduction, Brian K. Landsberg

Global Business & Development Law Journal

No abstract provided.

Experiential Education And The Rule Of Law: Teaching Values Through Clinical Education In China, Elliott S. Milstein

Global Business & Development Law Journal

No abstract provided.

Buying Our Way Out Of Corruption: Performace-Based Incentive Bonuses For Developing Country Politicians And Bureaucrats, Martin Skladany

Faculty Scholarly Works

No abstract provided.

Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson

Reviews

Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China's first fraught encounter with "the West" and one idea of "modernity."

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 …

When Does Might Make Right? Using Force For Regime Change, John Linarelli

Scholarly Works

Should states use force to bring about regime change? International law recognizes no such grounds. This paper seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is …

On Empathy In Judgment (Measure For Measure), Kenji Yoshino

Cleveland State Law Review

This article is based on a Baker-Hostetler presentation given by the author at the Cleveland-Marshall College of Law. The author compares the nomination process of Supreme Court justices and the conflict between empathy and rule of law with William Shakespeare's Measure for Measure.

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 Evolution Of The Trial Judge From Counting Case Dispositions To Commitment To Fairness, Kevin Burke, Steve Leben

Faculty Works

No abstract provided.

Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman

Vanderbilt Journal of Transnational Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised …

Symposium--Experiential Education In China: Curricular Reform, The Role Of The Lawyer And The Rule Of Law: Introduction, Brian K. Landsberg

McGeorge School of Law Scholarly Articles

No abstract provided.

Treason In The Age Of Terrorism: An Explanation And Evaluation Of Treason's Return In Democratic States, Kristen E. Eichensehr

Vanderbilt Journal of Transnational Law

Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War I. Now it is making a comeback with prosecutions or threatened prosecutions against a new type of enemy--accused terrorists--in the United States, the United Kingdom, and Israel. In the postwar period, commentators wrongly argued that treason would no longer be prosecuted because it is antiliberal, too difficult to prove, unnecessary because modern democracies are stable and secure, and premised on an extinct sense of loyalty to the state. This Article begins by debunking these claims and explaining treason's recent reappearance. First, democratic …

A Review Of “How Judges Think” By Richard A Posner, Chad Flanders

All Faculty Scholarship

This is a short review of How Judges Think by Richard Posner.

Toward A Theory Of Persuasive Authority, Chad Flanders

All Faculty Scholarship

The debate about the citation of foreign authorities has become stale. One side says that citing foreign authorities means being beholden to foreign sovereigns. The other side responds that this is nonsense, as the authorities are being used only for their "persuasive value." But do we even have a good idea of what it means to be a persuasive authority? My essay is the first to focus entirely on the notion of persuasive authority and to make the first steps towards providing a general theory of it. I make two major contributions. First, I try to show that there is …

Can The West Learn From The Rest?' The Chinese Legal Order's Hybrid Modernity, Nicholas C. Howson

Other Publications

I am asked to present on the "shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice" as a way to understanding if "the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law" - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of …

District Of Columbia V. Heller And Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court.

This article investigates the relationship between originalist constitutional …