Rule of Law Commons^™

Precedent And Legal Authority: A Critical History, Charles W. Collier

UF Law Faculty Publications

In this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding conceptions of scientific authority. The two doctrines coexist …

The Competitiveness Of The U.S. Telecommunications Industry: A New York Case Study, Michael Botein, Alan Pearce

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Procedural And Substantive Problems In Complex Litigation Arising From Disasters, Jack B. Weinstein

Touro Law Review

No abstract provided.

Can Justice And The Rule Of Law Be Reconciled?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Much of the current debate between activists on "the left" and "the right" concerning the legal system can be conceived in purely jurisprudential, as opposed to political, terms. Today, many on the left insist that the decisions made by the legal system conform as closely as possible to some substantive conception of "justice" that is independent of the legal system itself. They call those who disagree "formalists." Many on the right insist that the procedural values of the "rule of law"-general rule-making, impartially administered among persons and over time-preempt concern for correct outcomes. They call those who disagree "result-oriented."

Legality And Empathy, Lynne N. Henderson

Michigan Law Review

This article rejects the assumption that legality - by which I mean the dominant belief system about the Rule and role of Law - and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between "subject" and "object" is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one's instrumental …

The Civil Jury--An Endangered Species, John Feikens

University of Michigan Journal of Law Reform

George Bernard Shaw, the Irish dramatist and arch gadfly, once said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. "

With this tantalizing opener, let me say that I will attempt to point out to you my deep concern about the gradual elimination of jury trials in civil cases in our country.

Population Changes And Constitutional Amendments: Federalism Versus Democracy, Peter Suber

University of Michigan Journal of Law Reform

To amend the federal Constitution, we need the assent of two-thirds of each house of Congress and three-fourths of the states. This Article focuses on the three-fourths requirement for the states. This threshold is particularly high, and it suggests that constitutional amendment is very difficult. In fact, amendment is difficult in different degrees for different constituencies, depending not on their numbers but on where they live.

Remarks Of Professor Robert A. Friedlander, Professor Robert A. Friedlander

Vanderbilt Journal of Transnational Law

Terrorism, in its essence, consists of common crimes: murder, attempted murder, kidnapping, aggravated battery, aggravated assault, arson and whatever other act of violence is utilized for terrorist ends and as terrorist means. Admittedly the world's democracies have not only failed to develop an acceptable definition for the global arena, they have also been unable to fashion a proper meaning for their own domestic statutes. We should never forget the symbiotic relationship which exists between terrorism and democracy. As the French political analyst, Jean Francois Ravel, has cogently remarked: "The main target of international terrorism is the idea of freedom as …

A Comment On Democratic Constitutionalism, Robert F. Nagel

Publications

No abstract provided.

On The Indeterminacy Crisis: Critiquing Critical Dogma, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Critical legal scholarship challenges the liberal claim that modern western societies are characterized by "the rule of law." The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge …

Legality And Empathy, Lynne Henderson

Scholarly Works

No abstract provided.

Taking A Byte Out Of Abusive Agency Discretion: A Proposal For Disclosure In The Use Of Computer Models, John P. Barker

University of Michigan Journal of Law Reform

This Note examines the need for comprehensive requirements for the release of information pertaining to the use of computer-generated simulations used by federal administrative agencies or parties appearing before regulatory bodies. Part I of this Note defines computer models, identifies some of their current uses in administrative proceedings and describes the advantages of these models. Part II reviews the current requirements for documentation of computer models and the judicial review standards for agency findings. Part III examines the potential problems in the use of models and discusses the need for more adequate disclosure. Part IV describes several tests for verifying …

The Role Of Strategic Reasoning In Constitutional Interpretation: In Defense Of The Pathological Perspective Comments, Vincent A. Blasi

Faculty Scholarship

I am indebted to Professor Christie, not only for noticing my work but also for challenging it in so forthright a manner. He has identified a feature of my thesis that deserves to be a focal point for additional debate. Any reader of my original article who was undecided whether to agree with it ought to be aided considerably in the task of critical evaluation by the exchange Professor Christie has initiated. I know my own understanding of the premises and implications of my thesis has been enhanced by the experience of working out a response to his challenge.

The …

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 …

Public Policy And International Commercial Arbitration: The Argentine Perspective, Horacio A. Grigera Naón

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Substantive Policies And Choice Of Law, Willis L. M. Reese

Touro Law Review

No abstract provided.

International Trade And The "Rule Of Law", Phillip R. Trimble

Michigan Law Review

A Review of Implementing the Tokyo Round: National Constitutions and International Economic Rules by John H. Jackson, Jean Victor Louis, and Mitsuo Matsushita

The Black Book Of Polish Censorship, Michigan Law Review

Michigan Law Review

A Review of The Black Book of Polish Censorship translated and edited by Jane Leftwich Curry

News Of Crime: Courts And Press In Conflict, Michigan Law Review

Michigan Law Review

A Review of News of Crime: Courts and Press in Conflict by J. Edward Gerald

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

An Analytical Framework For International Criminal Law: Realism And Interest Alignment, Daniel H. Derby

Touro Law Review

No abstract provided.

Book Review Of Ethics And The Rule Of Law, Kent Greenawalt

Journal of Legal Education

No abstract provided.

Socialism And Federation, John N. Hazard

Michigan Law Review

Federal structures are often established by national founders to manage intractable problems created over generations, if not centuries, by the migration of peoples. Military and economic pressures may stimulate union to assure survival, but ethnic, racial or religious tensions sometimes hamper draftsmen who sense the need for unity. Federation has often been the modem solution to the conflict between the need for unity and the desire for autonomy felt by groups fearing the loss of identity.

The European Community And The Requirement Of A Republican Form Of Government, Jochen Abr. Frowein

Michigan Law Review

The European Community - that is, the factual entity composed of three legally separate communities which has been and still is one of the basic concerns of Eric Stein - cannot be understood without taking into account European history after 1933. As an irony of history, the stage for a new beginning was set by the man who destroyed the old Europe and who was the reason that so many academics left the "old country" for the new world. This new start was not only influenced by the determination of those Europeans who had lived through the darkness to overcome …

Socialist Federation--A Legal Means To The Solution Of The Nationality Problem: A Comparative Study, Viktor Knapp

Michigan Law Review

The history of federations is both long and short. It is long in that the federation originated with the Swiss Confederation, which dates back to the 1291 defense confederacy of the cantons of Uri, Schwyz and Unterwalden; it is short because the second federation in world history, one that has become a model for many others, did not come into being until almost five centuries later in America.

The Court Of Justice Of The European Communities And Governance In An Economic Crisis, J. Mertens De Wilmars, J. Steenbergen

Michigan Law Review

An economic crisis with the dimensions of the one raging in the world today confronts the judiciary - as well as business undertakings, parliaments and governments, workers, their trade unions and other organizations - with new responsibilities. New areas of law suddenly come to the forefront and even those matters which would appear to be the most firmly settled call for a critical reexamination. Such rethinking may maintain what might otherwise be swept away, or improve what deserves to be changed by way of judicial decisions, or demonstrate that legislative action is both necessary and urgent.

Perspectives On The Jurisprudence Of International Trade: Costs And Benefits Of Legal Procedures In The United States, John H. Jackson

Michigan Law Review

In this brief article I will confine myself to an analysis of the U.S. legal system pertaining to regulation of imports, deferring to other works an exploration of similar questions relating to regulation of exports or other international economic activities. First, however, I wish to touch on policies related to the legal structure of international rules for trade. This will help put the subject of this article in broader perspective, and although I will focus on U.S. domestic law measures, it will readily be seen that the international system depends greatly on national legal systems for its efficacy, and that …

Democracy In Nigeria, 9 Black L.J. 113 (1984), Michael P. Seng

UIC Law Open Access Faculty Scholarship

No abstract provided.

Suing Government, Michigan Law Review

Michigan Law Review

A Review of Suing Government by Peter H. Schuck

The Courts' Inherent Power To Compel Legislative Funding Of Judicial Functions, Michigan Law Review

Michigan Law Review

Litigation results when the legislative branch contests the inherent power order. Because judicial compulsion of legislative action must derive from constitutional authority, and because of the practical and doctrinal challenges such litigation presents, many courts have struggled to resolve these cases in a principled fashion. This Note defends the inherent power doctrine, but argues that current judicial approaches to its application have failed to confront squarely the central issues raised by inherent power orders. The Note advocates an alternative procedure for defining the legitimate scope of judicial authority to compel appropriations on its own behalf. Part I examines the constitutional …