Rule of Law Commons^™

Settling Claims For Reparations, Daniel Butt

Journal of Race, Gender, and Ethnicity

The scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling …

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

“If Rules They Can Be Called”, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Who gets to decide what counts as law? The weight of authority in the U.S. legal system is governed almost entirely by unwritten rules—social norms that establish which sources have weight (and how much weight they have). In 2016, Bryan A. Garner and twelve judges published a treatise essentially codifying unwritten rules related to the operation of precedent. That book, The Law of Judicial Precedent, has itself become a source of authority (on legal authority), cited by judges across jurisdictions. In this essay, I question whether the judicial norms governing the operation of precedent are appropriately presented as definitive blackletter …

Making Appointment The Means Of Presidential Removal Of Officers Of The United States, David M. Driesen

Lewis & Clark Law Review

This Article examines the relationship between appointment and removal of officers of the United States, focusing on the administrations of Andrew Jackson, Andrew Johnson, Richard Nixon, and Donald Trump. These administrations’ use of appointment and removal underlines the potential tension between political removal accomplished without Senate approval of a successor and the Constitution’s goal of securing the rule of law.

To remedy these issues, this Article proposes that Congress pass a statute forbidding presidential removal of an agency head (and other Senate-approved appointees) until the President nominates a qualified successor or until the Senate confirms a successor. Integrating Appointments Clause …

Lawyers' Right Of Professional Self-Defense And Its Limits, Douglas R. Richmond

South Carolina Law Review

No abstract provided.

Frenemey Federalism, Scott P. Bloomberg

Faculty Publications

This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …

Redefining The Rule Of Law: An Eighteenth-Century Case Study, Christian R. Burset

Journal Articles

Scholars who write about the relationship between law and empire tend to adopt one of two frameworks. The first describes imperial rule and the rule of law as fundamentally incompatible. The second praises empires—especially the British Empire—for exporting the rule of law to lands that lacked it. These competing approaches have very different political valences, but they agree in suggesting that colonial rule made no substantial contribution to today’s rule of law tradition. At best, the metropole exported a premade rule of law abroad; at worst, colonialism corrupted preexisting commitments to legality. But in neither case did imperial rule alter …

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

The Essential Meaning Of The Rule Of Law, Thomas W. Merrill

Faculty Scholarship

We have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.

President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children …

Legal Introspection Towards The Development Of Right To Privacy As Fundamental Right In India, Payal Thaorey

Indonesia Law Review

Privacy of the individual is an essential aspect of dignity. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. The journey of right to privacy has been …

Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede

Brooklyn Journal of International Law

The Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the …

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies

Brooklyn Journal of International Law

Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings

Judicature International

No abstract provided.

Swartbooi And Another V Speaker Of The National Assembly (Sa 38-2021) [2021] Nasc (4 August 2021), Dunia P. Zongwe

SAIPAR Case Review

In Swartbooi, the Supreme Court of Namibia failed to give flesh, blood and bones to a theory that could unify the cases that dealt with the separation of powers in Namibia. Though few lawyers would disagree with the outcome of its judgment, the Court nonetheless achieved this outcome by retreating into its legalistic shell.

At the same time, the Swaartbooi case completed a triangle that plotted all the possible relationships between the three organs of state in Namibia. After Ex parte in re: the Constitutional Relationship Between the Attorney-General and the Attorney-General (hereinafter referred to as ‘AG and PG’) addressed …

Limits Of The Rule Of Law: Negotiating Afghan "Traditional" Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan

Vanderbilt Journal of Transnational Law

Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the "alterity" of law. The Article suggests that far from being analytical tools, concepts such as "context," "culture," and "customary" are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospisil's ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan "traditional" law as an alternative …

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 …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries

Brooklyn Law Review

During the last 5–10 years, corpus-linguistic applications have slowly become more widespread in matters of legal interpretation; specifically, we see more court cases in which corpus-linguistic data are brought to bear on the (original) ordinary/public meaning of expressions in legal texts (in briefs and judicial opinions), but also more academic research focusing on if/how corpus-linguistic methods can shed light on the plain/ordinary meaning of words in a legal text.While this development is welcome, it also comes with shortcoming/risks, some of which are now hotly debated in recent and forthcoming law review articles. In particular, there is a whole family of …