Rule of Law Commons^™

Indisputable Violations: What Happens When The United States Unambiguously Breaches A Treaty, David A. Koplow

Georgetown Law Faculty Publications and Other Works

!e United States justi"ably prides itself on its devotion to “the rule of law.” We take legal instruments seriously; when we assume a binding legal obligation at home, we mean it, and we expect all parties to the agreement to demonstrate comparable fealty.

!is commitment to the law also extends to international agreements. Treaties are the coin of the international realm, and the United States leads the world both in making treaties and in publicly and pointedly holding others accountable when they fall short of full compliance. What happens, then, when the United States contravenes a binding international legal obligation …

Drones And The International Rule Of Law, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay will proceed in four parts. First, it will briefly discuss the concept of the international rule of law. Second, it will offer a short factual background on US drone strikes (to the extent that it is possible to provide factual background on a practice so shrouded in secrecy). Third, it will highlight some of the key ways in which post 9/11 US legal theories relating to the use of force challenge previously accepted concepts and seek to redefine previously well-understood terms. Fourth, it will offer brief concluding thoughts on the future of the international rule of law in …

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 …

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, …

"Gray Zone" Constitutionalism And The Dilemma Of Judicial Independence In Pakistan, Anil Kalhan

Vanderbilt Journal of Transnational Law

Many countries exist in a "gray zone" between authoritarianism and democracy. For countries in this conceptual space--which is particularly relevant today given the halting path of change in the Arab world--scholars, judges, and rule of law activists conventionally urge an abstract notion of' judicial independence" as a prerequisite for successful democratic transition. Only recently, for example, Pakistan's judiciary was widely lauded for its "independence" in challenging the military regime. However, judicial independence is neither an all-or-nothing concept nor an end in itself. With the return of civilian rule in Pakistan, a series of clashes between Parliament and the Supreme Court …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Melinda Taylor, Charles C. Jalloh

Articles

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

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 …

Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann

Articles

On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Research Collection Yong Pung How School Of Law

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

Neo-Democracy, National Security, And Liberty, David Cole

Georgetown Law Faculty Publications and Other Works

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions …

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

Publications

No abstract provided.

The Rule Of Law And The Perils Of Precedent, Randy J. Kozel

Journal Articles

In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive …

Dogs And Tails: Remedies In Administrative Law, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

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

Faculty Scholarship

No abstract provided.

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

No abstract provided.

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Shall The Twain Never Meet? Competing Narratives And Discourses Of The Rule Of Law In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article aims to assess the role played by the rule of law in discourse by critics of the Singapore Government’s policies and in the Government’s responses to such criticisms. It argues that in the past the two narratives clashed over conceptions of the rule of law, but there is now evidence of convergence of thinking as regards the need to protect human rights, though not necessarily as to how the balance between rights and other public interests should be struck. The article also examines why the rule of law must be regarded as a constitutional doctrine in Singapore, the …

Foreword, Amy C. Gaudion

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

No abstract provided.

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

Jlia Editorial Board & Staff

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

No abstract provided.

To Forgive And Forget: How Reconciliation And Amnesty Legislation In Afghanistan Forgives War Criminals While Forgetting Their Victims, Sara L. Carlson

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

More than three decades of war and hundreds of thousands killed or brutalized by the actions of warlords and insurgent commanders vying for power comprise the backdrop of modern Afghanistan. As Afghanistan continues toward a new era, seeking democracy in a country where tribal affiliations and ethnic groups often usurp any sense of patriotism, the reconciliation of armed fighters while providing an adequate grievance process for victims of war crimes must take priority in the process adopted to unify the Islamic Republic of Afghanistan. This comment explores the current attempt by the Islamic Republic of Afghanistan to provide a system …

International Activity And Domestic Law, Adam I. Muchmore

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

This essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.

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

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

This article explores the seminal United States Supreme Court decision of United States v. Smith (1820). Smith, an early piracy case, has influenced developments in both domestic and international law on piracy, universal jurisdiction, and a range of broader themes. This article is the first to explore the context within which the case arose, as well as the circumstances of the case itself. In addition to the details of the case, the story of the men prosecuted for their cruise aboard the vessel known as the Irresistible in the late spring and early summer of 1819 also offers a …

Remarks On Counterstrike, Eric Schmitt

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

After 9/11, the United States government was forced to think differently about terrorism and the nation’s ability to respond to attacks. Eric Schmitt and Thom Shanker address many of the intricacies faced by officials at the White House, the State Department and the Pentagon in their book Counterstrike. In this essay, transcribed from remarks given on March 21, 2012 at the Clarke Forum for Contemporary Issues at Dickinson College, Schmitt discusses how the U.S. government’s policies toward Al Qaeda and terrorism in general have evolved in the ten-year period following the attacks.

Remarks, The Big Picture: Beyond Hot Spots & Crises In Our Interconnected World, Anne-Marie Slaughter

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

The picture of foreign policy as seen by the United States has changed dramatically over the last few decades. The United States now faces a world far more interconnected and integrated than the foreign policy landscape of the Cold War and its immediate aftermath. Instead of one or two super power centers, the world today is made up of multiple global and regional power centers. This essay, transcribed and adapted from remarks given by Anne-Marie Slaughter on March 15, 2012, at the Dickinson School of Law of the Pennsylvania State University, examines the shift to a multi-polar world of foreign …

International Order After The Financial Crisis, Harold James

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

How is international order built, and how is it legitimate, in a world in which political and economic foundations are rapidly shifting? What are the consequences of the rise of major new powers for the structure and the functioning of the international system? Great wars or great financial crises have in the past led to disorientation about the moral foundations of society, domestically and internationally. The paper examines parallels with the Great Depression, and in particular the weakening of multilateralism and of small political units, and the strengthening of large powers with hegemonic claims. The paper then turns to an …

The Growing Dark Side Of Cyberspace ( . . . And What To Do About It), Ronald Deibert

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

Cyberspace – the global environment of digital communications – surrounds and embodies us entirely, 24 hours a day, 7 days a week. We are always on, always connected: emailing, texting, searching, networking, and sharing are all now as commonplace as eating, breathing, and sleeping. But there is a dark side to cyberspace - hidden contests and malicious threats - that is growing like a disease from the inside-out. This disease has many symptoms, and is being reinforced by a multiplicity of disparate but mutually reinforcing causes. Some of these driving forces are unintended byproducts of the new digital universe into …

The Rise Of Transparency And The Decline Of Secrecy In The Age Of Global And Social Media, P.J. Crowley

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

News reporting of a wide range of sensitive government policies, operations, and internal deliberations has raised understandable concerns that U.S. national security is being compromised. In response, there is an increase in investigations and prosecutions and proposed legislation to plug government leaks. But a broader reality may be at work. In the increasingly interconnected and transparent world of the Internet, Facebook, Twitter, satellite television, WikiLeaks, omniscient cellphones and technology-enhanced revolutions such as the Arab Awakening, governments have lost their ability to control the flow of information. More people have access to more information, with the ability to communicate anything from …

The Balance Of Power, Public Goods, And The Lost Art Of Grand Strategy: American Policy Toward The Persian Gulf And Rising Asia In The 21st Century, Flynt Leverett, Hillary Mann Leverett

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

An important driver of relative decline in America’s international standing is the failure of its political elites to define reality-based foreign policy goals and to relate the diplomatic, economic, and military means at Washington’s disposal to realizing them—the essence of “grand strategy.” For several decades, American policy has been pulled in opposite directions by two competing models of grand strategy. In one—the leadership model—America maximizes its international standing by adroitly managing regional and global power balances and promoting the processes of economic liberalization known collectively as globalization. In the second model—the transformation model—America seeks not to manage power balances but …