Rule of Law Commons^™

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely important …

A Philosophical Defense Of Judicial Minimalism, Cory A. Evans

Dissertations, Theses, and Capstone Projects

This dissertation analyzes, criticizes and ultimately defends judicial minimalism, a contemporary theory of judging that has come to the forefront of American jurisprudence in the early part of the 21st Century. In this dissertation I offer the first formal definition of judicial minimalism, apply that definition to case law and the literature, refute many objections to judicial minimalism including objections based on tough case counterexamples, offer a new version of the argument of epistemic humility and offer a new argument in support of judicial minimalism from the perspective of law and economics.

Ethereum And The Sec: Why Most Distributed Autonomous Organizations Are Subject To The Registration Requirements Of The Securities Act Of 1933 And A Proposal For New Regulation, Tiffany L. Minks

Texas A&M Law Review

In a world full of new technology, the risk of fraud is constantly increasing. In the securities industry, this risk existed long before the use of technology. Congress enacted the Securities Act of 1933 to combat the risk of fraud and misrepresentation in the sale of securities. By requiring full disclosure, investors have the opportunity to make informed decisions prior to investing. However, Distributed Autonomous Organizations (“DAOs”), through the use of blockchains and smart-contracts, engage in the sale of securities without fully disclosing the risks or complying with the registration requirements of the Securities Act of 1933. Compliance with the …

John Fitisemanu, Et. Al. V. United States Of America, Et. Al., Rafael Cox Alomar

Court Briefs

No abstract provided.

‘Rule Of Law’ In China: The Confrontation Of Formal Law With Cultural Norms, Larry A. Dimatteo

Cornell International Law Journal

This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years …

Clark Memorandum: Spring 2018, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• The Path of Present Intention (D. Gordon Smith)
• Scholarship as Dialogue and a Constructive Exercise: A Look at the Investitures of Three BYU Law Professors (D. Carolina Núñez)
• Kif Augustine-Adams
• Christine Hurt
• Brett Scharffs
• A Pattern of Timeless Moments: The J. Reuben Clark Law Society at 30 (Scott W. Cameron)
• "To Me He Doth Not Stink": Advocacy and Love (Gayla Moss Sorenson)

Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris

Texas A&M Law Review

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant …

Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Communications Decency Act: Immunity For Internet-Facilitated Commercial Sexual Exploitation, Haley C. Halverson

Dignity: A Journal of Analysis of Exploitation and Violence

This paper reviews the original intent and historical application of the Communications Decency Act (CDA), most notably Section 230, with special regard to cases of Internet-facilitated commercial sexual exploitation. Although the CDA was originally created to protect children online, Section 230 of the CDA has been interpreted by the courts to grant broad immunities to websites facilitating the sexual exploitation of children and adults alike. Through analyzing the genesis and evolution of the CDA, it becomes clear that court interpretations of Section 230 are starkly inconsistent with original Congressional intent, and that the primary way to avoid de facto decriminalization …

Do It In The Sunshine: A Comparative Analysis Of Rulemaking Procedures And Transparency Practices Of Lawyer-Licensing Entities, Bobbi Jo Boyd

Arkansas Law Review

Regulation of occupational licensing has garnered national attention. During the last sixty years, the number of occupations regulated by governmental entities has notably increased. As the number of regulated occupations increases, employment opportunities and wages for individuals who cannot afford or otherwise meet licensing requirements decrease.

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …

Targeting Of Persons: The Contemporary Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Reassessing American Democracy: The Enduring Challenge Of Racial Exclusion, Johanna Kalb, Didi Kuo

Michigan Law Review Online

American democracy is in trouble. Since the 2016 election, a sizable literature has developed that focuses on diagnosing and assessing the state of American democracy, most of which concludes that our system of government is in decline.[2] These authors point to the rise in party polarization, the increasingly bipartisan abandonment of the norms of the democratic process, the rise of populism, the degradation of the public sphere, and the proliferation of gerrymandered districts and voting restrictions to illustrate the breakdown. And while attributing varying levels of significance to these factors, a common theme is that American democracy, once stable, is …

Rule Of Law In The U.A.E.: The Peaceful Path To Nation-Building In Abu Dhabi And The U.A.E. Through Global Best Practices, Valerie J. Pelton

The International Lawyer

No abstract provided.

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond Eastern Europe to other regions—a growth …

The United States, Mexico, And The War On Drugs In The Trump Administration, James M. Cooper

Faculty Scholarship

This Article examines the war on drugs as persecuted by the United States and how it has been exported to Mexico. It also explores the increased efforts in the drugs war that the Trump administration, through the U.S. Department of Justice, is pursuing at a domestic level. Part I of this Article provides an outline of the dynamics in the quickly evolving and highly tense relationship between the United States and Mexico. Part II of this Article details the historical background of the U.S.-Mexico border region and demonstrates that the border has long been a contested site. Part III provides …

The Reform Of The Russian Legal Profession: Three Varying Perspectives, Susan Carle, Delphine Nougayrède

Scholarly Articles in Law Reviews & Journals

This Article was co-authored by Susan Carle (American University Washington College of Law), Gayane Davidyan (Moscow State University), Thomas McDonald and Delphine Nougayrède. In the Article the four authors debate various approaches to reforming the legal profession in Russia. They start out with a historical introduction followed by a presentation and discussion of the status at present. A large number of legal practitioners, including the international law firms, are currently unregulated and practice within what is sometimes referred to as the "free sector". The Russian government has for a number of years attempted to introduce reforms that would require these …

In Media Res, Christopher Andrew Sisk

Theses and Dissertations

We are inundated by a constant feed of media that responds and adapts in real time to the impulses of our psyches and the dimensions of our devices. Beneath the surface, this stream of information is directed by hidden, automated controls and steered by political agendas. The transmission of information has evolved into a spiral of entropy, and the boundaries between author, content, platform, and receiver have blurred. This reductive space of responsive media is a catalyst for immense political and cultural change, causing us to question our notions of authority, truth, and reality.

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar

Oklahoma Law Review

No abstract provided.

Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel

Oklahoma Law Review

No abstract provided.

[Pis]Sing Off The Courts: The Pisparty's Effect On Judicial Independence In Poland, Michael Hoffmann

Vanderbilt Journal of Transnational Law

By winning both the presidency and a majority of seats in the Parliament in 2015, the Law and Justice Party assumed more control in Poland than any single political party has managed since the fall of communism. The party subsequently focused on taking control of the judiciary as well, proposing legislation that critics claim threatens the rule of law but the government insists is necessary to rid the judiciary of corruption and inefficiency. This Note discusses whether the bills go beyond the rule-of-law norms in the European Union, as well as the EU's response to the situation in Poland so …

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").

The Life Of The Law Cannot Be Coded, Rebecca Roiphe

Other Publications

No abstract provided.

Chinese Legal Development Assistance: Which Rule Of Law? Whose Pragmatism?, Samuli Seppanen

Vanderbilt Journal of Transnational Law

China is both a recipient and a donor of foreign development aid. As a donor state, China insists that it does not interfere in the internal affairs of foreign states, and it criticizes Western human rights conditionality and rule of law advocacy in development cooperation. Due to this non-interventionist posture, Chinese foreign development aid is commonly seen to exclude politically sensitive assistance for governance institutions and the legal sector in particular. This article demonstrates that Chinese foreign development aid does, in fact, include a legal component. Chinese legal development assistance comprises advice on law reform in developing countries; capacity-building programs …

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …

Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist

Brooklyn Law Review

Review of Mary Kreiner Ramirez and Steven A. Ramirez, THE CARE FOR THE CORPORATE DEATH PENALTY: RESTORING LAW AND ORDER ON WALL STREET (New York 2017) The Case for the Corporate Death Penalty, by Mary Kreiner Ramirez and Steven A. Ramirez, argues that the limited law enforcement response to the 2008 financial crisis represented an unprecedented failure of the rule of law. It further maintains that the weak response by law enforcement was caused by the economic and political power of the largest financial institutions and those who run them. It concludes that the failure to vigorously prosecute the people …

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected president, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, …

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

The Law's Own Virtue, Joseph Raz

Faculty Scholarship

The paper offers a new account of the rule of law, revising my previous view, and criticising some alternatives. It focuses on the rule of law's aim to avoid arbitrary government, and on its relation to the essential functions of government. The rule of law requires that government action will manifest an intention to protect and advance the interests of the governed. As such it is almost a necessary condition for the law's ability to meet other moral demands, and it facilitate coordination and cooperation internally and internationally.