Rule of Law Commons^™

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.

Law And Modernization In China: The Juridical Behavior Of The Chinese Communists, Daniel J. Hoffheimer

Georgia Journal of International & Comparative Law

No abstract provided.

South Africans Learn That The Law Can Be A Double-Edged Sword, Penelope Andrews

Other Publications

South Africa’s National Prosecuting Authority charged the country’s finance minister Pravin Gordhan and two of his former colleagues at the tax authority, Ivan Pillay and Oupa Magashule, with fraud last month. The charge was widely criticised as baseless and politically motivated, amid allegations of state capture. It sent the currency into a nosedive and wiped billions off the stock market. This week, the NPA withdrew the charges on the eve of the trio’s court appearance. Politics and society editor, Thabo Leshilo, asked law professor Penelope Andrews for her view.

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Plea Bargaining And Prosecutorial Motives, Charlie Gerstein

The University of New Hampshire Law Review

This Article argues that the structure of the plea-bargaining system—which the Supreme Court recently recognized “is the criminal justice system”—hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an …

The Results Of Deliberation, Maggie Wittlin

The University of New Hampshire Law Review

When evaluating whether to sue, prosecute, settle, or plead, trial lawyers must predict the future—they need to estimate how likely they are to win a given case in a given jurisdiction. Social scientists have used mock juror studies to produce a vast body of literature showing how different variables influence juror decision making. But few of these studies account for jury deliberation, so they present an impoverished picture of how these effects play out in trials and are of limited usefulness.

This Article helps lawyers better predict the future by presenting a novel computer model that extrapolates findings about jurors …

Book Review Of The Quiet Power Of Indicators: Measuring Governance, Corruption, And The Rule Of Law, Sital Kalantry

Cornell Law Faculty Working Papers

No abstract provided.

From Environmental Rights To Environmental Rule Of Law: A Proposal For Better Environmental Outcomes, Jessica Scott

Michigan Journal of Environmental & Administrative Law

With the recent lead contamination crisis in Flint, Michigan, the unfavorable United States country report of the former United Nations Special Rapporteur on the human right to safe drinking water and sanitation seems prescient. The Special Rapporteur’s report highlighted the problem of drinking water contaminated from lead pipes and the disproportionate burdens Black Americans face in accessing safe drinking water. The report argues that the U.S. should address these issues by explicitly recognizing a human right to safe drinking water and sanitation under U.S. law.

Like the Special Rapporteur, much of the literature and some environmental advocates call for environmental …

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

The Prudential Carve-Out Clause: Is Risk The New Corrupt Moral?, John Anwesen

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

No abstract provided.

International Legal Instruments And New Judicial Principles For Restitution Of Illegally Exported Cultural Properties, Ho-Young Song

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

No abstract provided.

Caught In The Act But Not Punished: On Elite Rule Of Law And Deterrence, Francesca Jensenius, Abby Wood

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

No abstract provided.

Abused, Abandoned, Or Neglected: Legal Options For Recent Immigrant Women And Girls, Meaghan Fitzpatrick, Leslye Orloff

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

No abstract provided.

The Forgotten Victim: Men And Domestic Violence - Issues For The I-360 Petition, Christine Grant

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

No abstract provided.

Domestic Violence Victims Need Support At State Level, Rep. Scott Conklin

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

No abstract provided.

Violence Against Women Symposium And Collected Works

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

No abstract provided.

The Voice Of The People: Public Participation In The African Continent, Rafael Macia

Indiana Journal of Constitutional Design

Public participation is becoming a more common characteristic of constitutional drafting processes around the world, and Africa has not been an exception in this regard. This paper seeks to survey several of the public participation processes undertaken in a number of African nations, in order to examine the methods followed and the effects produced by such processes. For that purpose, I have analyzed the constitutional drafting efforts in South Africa, Uganda, Eritrea, Zimbabwe, Rwanda, Kenya, and Egypt. These processes all show different circumstances and approaches, with variations in terms of their top-down or bottom-up nature, and, more importantly, in terms …

National Treasure: A Survey Of The Current International Law Regime For Underwater Cultural Heritage, Christian Hoefly

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

No abstract provided.

Addressing The Problem Of Implementing The Hague Abduction Convention On The Civil Aspects Of International Child Abduction Between The U.S. And Mexico, Breanna Atwood

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

No abstract provided.