Rule of Law Commons^™

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

No abstract provided.

War In The 21st Century And Collected Works

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

No abstract provided.

Race And Justice Outcomes: Contextualizing Racial Discrimination And Ferguson, Jason M. Williams

Ralph Bunche Journal of Public Affairs

While scores of literature may hint at the tumultuous relationship between the criminal justice system and Blacks, such literature, however, fail to assess, comprehensively, the intersectional purpose of present criminal justice processes and race. This paper will examine contemporary applications of justice along racial lines. It is argued that current justice outcomes are advantageous to the status quo. It is no secret that the American system of justice has a race problem; however, if the goal is to administer justice then, as this paper argues, the current system needs to be seriously examined and rebuilt. The paper also argues that …

Supervising Outsourcing: The Need For Better Design Of Blended Governance, Nina A. Mendelson

Book Chapters

We are long past the “vending machine”-style privatization of government functions – where the government contracts to buy a discrete product or service at a set price, whether aircraft components or landscaping. Government is increasingly enlisting, or collaborating with, private entities for functions long perceived as distinctly public. Private entities may make policy explicitly (through standards that agencies later adopt) or implicitly (through the third party verification of compliance with regulatory objectives). For example, the Department of Health and Human Services relies on the recommendations of an American Medical Association committee of specialist physicians to establish Medicare physician payments, while …

Twenty Reasons To Publish In Dignity, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Affording Fundamental Rights, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Mireille Hildebrandt’s Smart Technologies and the End(s) of Law (2015) raises questions for law that are best characterized as meta-institutional. This review essay considers the implications of Hildebrandt’s work for the conceptualization of fundamental rights. One consequence of the shift to a world in which smart digital technologies continually, immanently mediate and preempt our beliefs and choices is that legal discourses about fundamental rights are revealed to be incomplete along a dimension that we have simply failed to recognize. To remain effective in the digital age, rights discourse requires extension into the register of affordances.

Newsroom: Law Scholarships For Syrian Refugees 01-26-2017, Karen Sloan, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Democracy, Law, Compliance, Don Herzog

Articles

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

Rule Of Law In The Age Of The Drone: Requiring Transparency And Disqualifying Clandestine Actors—The Cia And The Joint Special Operations Command, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

Since shortly after 9/11, weaponized drones have be-come part of the fabric of United States policy and practice in countering Islamic terrorist organizations and personnel. Although many diplomats, UN officials, and scholars have criticized the widespread use of this weapon system for “targeted killing,” drones are here to stay. But how much investigation and oversight must a democratic country carry out over such a program, and more critically, how can a country do so effectively when the Executive has handed primary responsibility for drone targeted killing attacks to its clandestine forces, the Central Intelligence Agency and the Joint Special Operations …

The Consequences Today Of The United States' Brutal Post-9/11 Interrogation Techniques, Peter Jan Honigsberg

Notre Dame Journal of Law, Ethics & Public Policy

Penetrating the minds and souls of alleged terrorists while still upholding the constitution, federal law, and the human rights obligation to treat the suspects with dignity and without torture or cruel, inhuman, and degrading treatment was not the immediate objective for high-ranking American officials and military interrogators in the early years following the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on September 11, 2001. Although the United States was a party to the Geneva Conventions (GC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT)—all three …

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Investigative Journalism And Counter Terrorism Laws, Clive Walker

Notre Dame Journal of Law, Ethics & Public Policy

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of “terrorism” and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the U.S. and U.K., this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the U.S. National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures …

Daredevil: Legal (And Moral?) Vigilante, Stephen E. Henderson

Faculty Articles

In 1964, the comic world was introduced to its first physically disabled practicing attorney: Matt Murdock. Initially a proud graduate of "State College" and later more impressively pedigreed as a graduate of either Columbia or Harvard Law, Murdock supplemented his day job as attorney with a side of vigilante justice as Daredevil. In 2003, Murdock became the only attorney superhero to appear as the title character in a movie. A truly awful movie, yes, but a movie all the same. And then in 2015, thanks to the talents of Drew Goddard, Murdock became the star of a terrific television series. …

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 …

Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui

All Faculty Publications

Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades …

A Historical Account Of The Internationalization Of Invest Disputes: What The Global South Should Know When Negotiating Bilateral Investment Treaties, Felix O. Okpe

Florida A & M University Law Review

Under international law, and perhaps in the context of the ICSID Convention, it is fair to state that; the potential for investment disputes is more likely with respect to foreign investments hosted in the global south. In most situations when investment disputes arise, foreign investors often allege that an act that includes regulatory initiatives of the host state or an omission attributable to the host state, has occasioned a violation of applicable investment agreement. Sometimes the basis for the alleged breach results from underlying contractual claims by the foreign investor. Thus, investment claims have created the intellectual foundation for a …

Winning The Battle But Losing The War: Towards A More Consistent Approach To Prevailing Party Fee Shifting In The Contractural Context, John R. Schleppenback

Florida A & M University Law Review

As a general matter, history has not been very kind to losers. In the turmoil of the Middle Ages, loss on the battlefield could also mean the looting of one's property, the sacking of one's home, and potentially even the assault of one's spouse. The nineteenth century was the era of "to the victors belong the spoils," meaning that an electoral win allowed the prevailing political party a complete monopoly on political appointments and government contracts to the exclusion of the loyal opposition. Even today, professional athletes would sooner face anonymity than defeat on the playing field, living by the …

Judging Congressional Elections, Lisa M. Manheim

Georgia Law Review

A pivotal clause of our Constitution suffers from
uncertainty and neglect. The result has scrambled the law
of contested congressional elections. These high-stakes
disputes turn on questions of procedure, and in particular
on questions of forum. Yet across the country, an
unpredictable and ad hoc set of regimes governs these
fundamental questions. The culprit behind the confusion
is Article I, Section 5 of the United States Constitution,
which states that "Each House shall be the Judge of the
Elections ... of its own Members." This command may
seem straightforward, if a bit unsettling-it allows
Congress to decide who has won …

Introduction: Judges As Diplomats In Advancing The Rule Of Law: A Conversation With President Koen Lenaerts And Justice Stephen Breyer, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Introduction. On both sides of the Atlantic, Western countries have taken a well publicized and perhaps poorly understood turn toward leaders espousing extremist, xenophobic, and introspective politics that threaten the core tenets of liberal democracy. Electorates appear divided and confused as political leadership in Europe and the U.S. take measures that undermine the basic principles of the rule of law and human rights. Above all else, the designated defenders of the constitutional order, the supreme courts, have come under direct political attack in countries such as Hungary and Poland. Even in traditional bastions of Western democracy, like the United States …

Sovereign Display And Fiscal Techniques, Magnus Hornqvist

Vanderbilt Journal of Transnational Law

Over recent decades, the state has come to increasingly rearticulate sovereignty at the very center of society. To support the thesis of a migration of sovereignty from the periphery to the center, from the punishment of marginalized groups to the regulation of economic transactions, this Article sketches the development of rules, monitoring, and sanctions--the three phases of regulation in the strict sense--with respect to first tax evasion and undeclared work and then organized crime, money laundering, and terrorist financing. Unbounded reasons of state, symbolic authority, and conflicts with formidable foes are found to be expressed in the economic sphere, which …

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on …

A Regulatory Theory Of Legal Claims, Maria J. Glover

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe

Georgia Journal of International & Comparative Law

No abstract provided.

Some Remarks On Self-Defense And Intervention: A Reaction To Reading Law And Civil War In The Modern World, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Evaluating Legislative Justice Sector Reforms: Creating An Environment For Survival, Lauren A. Shumate

Journal of Legislation

No abstract provided.

On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

Jus Cogens In International Law, With A Projected List, Marjorie M. Whiteman

Georgia Journal of International & Comparative Law

No abstract provided.