Rule of Law Commons^™

Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston

All Faculty Publications

This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores

Georgetown Law Faculty Publications and Other Works

In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), …

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 …

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 …

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 …

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 …

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.

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

Faculty Scholarship

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 …