Rule of Law Commons^™

Vertical And Horizontal Dimensions Of The Rule Of Law, Brian Z. Tamanaha

Emory Law Journal

Scholarly discussions about the rule of law have become a cacophony of disagreement. The more that is written about the topic, it seems, the less that we know. Thus, bringing clarity to basic issues is essential. This Essay draws out the implications of a conceptual distinction between the vertical and horizontal dimensions of the rule of law at domestic and international levels. The vertical dimension—which focuses on liberty and restraints on arbitrary government power—examines the top-down relationship between government officials and private actors in relation to how the ruling regime treats citizens and entities on matters of interest to the …

Lessons From A Small And Troubled Country: Bosnia’S Struggling Judiciary Paints An Ominous Picture For The Future Of The Rule Of Law In The United States, David Pimentel

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Haiti: Confronting An Immense Challenge, Irwin Stotzky

University of Miami Inter-American Law Review

This article analyzes the history of Haiti, from its origins as a slave colony of France, which was the richest colony in the Americas, to its war of independence leading to the first Black independent nation in the Americas, to its economic re-enslavement under the power of France and then the United States. The article discusses the great harm the French caused the Haitian people by imposing through force a ransom of billions of dollars that has led Haiti to its present position of being on the brink of becoming a failed state, with all of the disastrous consequences for …

The Status Of State And Nonstate Actors In Postwar Hostilities: Restoring The Rule Of Law To Us Targeted Killing Operations, Claire Finkelstein

Vanderbilt Journal of Transnational Law

With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived …

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

The Charming Betsy Canon, American Legal Doctrine, And The Global Rule Of Law, Justin Hughes

Vanderbilt Journal of Transnational Law

In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate."

After exploring the traditional justifications for Charming Betsy, this Article proposes that the canon should be justified, not just by Congressional intent or separation …

Legal Status Of Drones Under Loac And International Law, Vivek Sehrawat

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Lawyers And Precedent, Harlan G. Cohen

Vanderbilt Journal of Transnational Law

What role do lawyers, as lawyers, play in the creation, development, and maintenance of the international legal order? This is an oddly underexplored question. It has become increasingly popular to look at the role various non-state actors--nongovernmental organizations (NGOs), grassroots activists, scientists, insurgent groups, among many others--play in the shaping of international law. It has also become common to talk in terms of the "disaggregated state," and of how various substate actors--central bankers, regulators, judges, and military personnel--shape international law and policy through their interactions with each other. Nor have international lawyers ever been particularly shy about their importance to …

The Full Story Of U.S. V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

Faculty Publications

No abstract provided.

Economic Development And The Problem With The Problem-Solving Approach, Justin Deystone

Publications

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new …

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 …

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 International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom

San Diego International Law Journal

With the end of the Cold War-the principal international political framework that shaped the international system since the end of WWII-an increasing number of global tensions have arisen which have brought to the fore questions about the ability of existing international law to provide a guiding framework for state behavior. Debates over the limits of state sovereignty, the appropriateness of humanitarian intervention, the justness of pre-emptive war, the definition of self-defense, the legality of replacing a government in the interests of your ideals, and how to deal with terrorism have dominated discussions around the world. Moreover, these discussions have caused …

Reforming Legal Education In Bangladesh, Mohammad Monirul Azam

Journal of Legal Education

No abstract provided.

Subjects Of International Law: A Power-Based Analysis, Guido Acquaviva

Vanderbilt Journal of Transnational Law

In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of …

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 …

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 …

Book Review. The Rule Of Law In A Free Society: A Report On The International Congress Of Jurists, William Burnett Harvey

Articles by Maurer Faculty

No abstract provided.