Rule of Law Commons^™

Microwaving Dreams? Why There Is No Point In Reheating The Hart-Dworkin Debate For International Law, Jason A. Beckett

Faculty Book Chapters

A critique of attempts to transpose Hart and Dworkin's legal theories to international law. I demonstrate why neither approach can provide insights into international law. Hart and Dworkin are institutional theorists, their methodologies are anchored by the need to justify the exercise of socially centralised violence. International law lacks both institutions and centralised violence, and the stabilising force these bring; it is radically indeterminate. Attempts to suppress this indeterminacy have resulted in international lawyers fragmenting into communities of practice, united by their eschatological faith in the international community. I challenge this faith.

The Wolf We Feed: Democracy, Caste, And Legitimacy, Benjamin Justice, Tracey L. Meares

Michigan Law Review Online

Procedure is central to American public legal discourse. From the soaring rhetoric of the Declaration of Independence to the Due Process Clause of the Fourteenth Amendment, the American legal tradition rests on the principle that law must be both derived and applied according to fair process. Consider that in the 2020 election the Trump Administration resorted to fervent and false allegations of widespread voter fraud—that the election process was fundamentally unfair—in order to weaponize Republican voters’ ostensible commitments to fairness against what was, objectively, one of the least procedurally unfair elections in history. Yet the four-year period of the Trump …

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Introductory Remarks, Michael Rogers, Hannah Hamley, Rayshaun D. Williams

Seattle University Law Review

Introductory Remarks.

The Participation Principle And The Dialectic Of Sovereignty-Sharing, George K. Foster

Seattle University Law Review

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect …

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Elisabeth Haub School of Law Faculty Publications

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

The Values Of The Administrative State: A Reply To Seidenfeld, Blake Emerson

Michigan Law Review Online

I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.

The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to …

Beyond Qualified Immunity, Fred O. Smith Jr.

Michigan Law Review Online

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium.

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the …

The Deceptive Dyad: How Falseness Structures International Law, Jason A. Beckett

Faculty Journal Articles

Public International Law (PIL) is portrayed as an autonomous and tolerably just legal system. A determinable system of rules and principles, deployed by professionals to evaluate and constrain the global machinations of power politics. Law as an authoritative structure through which global justice can be pursued. This entrenches a comforting, but false, progress narrative; and obscures the limitations of pursuing progressive change through international law. PIL is structured by false necessity and false contingency. These interact to create the Deceptive Dyad, which disguises the radical indeterminacy of PIL. PIL’s purported demands, however meticulously crafted, do not effect change in the …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

Accountability For Employers Or Independence For Contractors? Accomplishing Ab5’S Labor Classification Goals In The Gig Economy, Chelsea Rauch

Seattle University Law Review

U.S. employment law traditionally classifies workers as either employees or independent contractors; each worker under this traditional legal rubric can only be classified as one or the other—there can be no ambiguity or overlap. An employee is generally defined as “a person hired for a regular, continuous period to perform work for an employer who maintains control over both the service details and the final product.” In contrast, an independent contractor is generally defined as “a worker who performs services for others, usually under contract, while at the same time retaining economic independence and complete control over both the method …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Closing Remarks, Dontay Proctor-Mills

Seattle University Law Review

Closing Remarks.

Will The "Legal Singularity" Hollow Out Law's Normative Core?, Robert F. Weber

Michigan Technology Law Review

This Article undertakes a critical examination of the unintended consequences for the legal system if we arrive at the futurist dream of a legal singularity—the moment when predictive, mass-data technologies evolve to create a perfectly predictable, algorithmically-expressed legal system bereft of all legal uncertainty. It argues that although the singularity would surely enhance the efficiency of the legal system in a narrow sense, it would also undermine the rule of law, a bedrock institution of any liberal legal order and a key source of the legal system’s legitimacy. It would do so by dissolving the normative content of the two …

Ostracism And Democracy, Alex Zhang

Faculty Articles

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first …