Rule of Law Commons^™

Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession The Legal Profession, Laurel Terry

Faculty Scholarly Works

This link goes to the Professor Terry’s Lichtenstein lecture, which was on the topic of her recent article about regulatory objectives for the legal profession. For Professor Terry’s scholarship on this topic, see her long article here, a short article here, and the “regulatory objectives” research area section on her personal webpage. As Professor Terry noted in her lecture, t “regulatory objectives movement” can be traced to the adoption of the 2007 UK Legal Services Act. Section 1 of that Act, which was hotly debated, set forth the regulatory objectives that the Act—and its implementation—should achieve. The UK Act was …

The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain

Notre Dame Law Review

The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution …

The Child Independence Is Born: James Otis And Writs Of Assistance, James M. Farrell

Communication

This chapter is a reexamination of the Writs of Assistance speech by James Otis. In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address. Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not? That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts. It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial. From there we will reconstruct …

Reconciling The Principled Approach To Hearsay With The Rule Of Law, Andrew Botterell

Law Publications

No abstract provided.

Reconciliation And The Rule Of Law: The Changing Role Of International War Crimes Tribunals, Oriana Lavilla

Claremont-UC Undergraduate Research Conference on the European Union

This paper explores the relationship between international war crimes tribunals and reconciliation in post-conflict societies. The aim of the present study was to examine how the role of international war crimes tribunals has changed in the peacebuilding process since the early years after World War II. Due to the evolving nature of international law and the international criminal legal system, international tribunals have become increasingly recognized as an integral component of peacebuilding in post-conflict societies. The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international tribunal with a mandate to contribute to international peace and security. The …

Civil Consequences Of Corruption In International Commercial Contracts, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The United States legal system seeks to prevent and prohibit bribery and corruption through a myriad of laws, regulations and policies. Anti-corruption jurisprudence is more developed in the context of public sector contracts where the United States criminalizes bribery of public officials through 18 U.S.C. §201 (Bribery of Public Officials and Witnesses). In addition, the United States was the first country to criminalize bribery of foreign government officials in 1977 with the passage of the Foreign Corrupt Practices Act (FCPA). The FCPA has since been amended to comply with the adoption of the OECD Convention on Combating Bribery of Foreign …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.

Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas

Faculty Works

This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely …

Technology, Ethics, And Access To Justice: Should An Alogrithm Be Deciding Your Case?, Anjanette H. Raymond, Scott J. Shackelford

Michigan Journal of International Law

At a time of U.S. budget cuts, popularly known as the “sequester,” court systems across the nation are facing financial shortfalls. Small claims courts are no exception. Among the worst hit states is California, which is suffering staffing cutbacks that result in long delays prompting consideration of the old maxim, “justice delayed is justice denied.” Similar problems, albeit on a larger scale, are evident in other nations including India where the Law Commission has argued that the millions of pending cases combined with the lagging uptake of technological best practices has impeded judicial productivity, leading to “disappointment and dissatisfaction among …

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Faculty Articles and Papers

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …

China: The Quest For Procedural Justice, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This essay is contributed in recognition of Don Wallace’s dedication to furthering procedural justice in the U.S. and abroad. Don’s interests are wider than anyone else’s I can think of. Even though China and Chinese law are not represented in his published scholarship, in the course of our long friendship he has expressed thoughtful interest in many ways, including his constructive participation in the first delegation of the American Bar Association to visit China, which I escorted in 1978, and his later visits to China. Under Don’s leadership as Director of the International Law Institute at the Georgetown Law School, …

What Is The Rule Of Law Good For? Democracy, Development And The Rule Of Law In Classical Athens, Federica Carugati

Buffalo Law Review

No abstract provided.

Cross-Border Targeted Killings: "Lawful But Awful"?, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Since September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 American troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded. But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war.

This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special operations raids. The author calls this third …

Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman

Faculty Works

Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

Faculty Works

No abstract provided.

Function And Dysfunction In Post-Conflict Justice Networks And Communities, Elena Baylis

Vanderbilt Journal of Transnational Law

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are …

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Neil Vidmar, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

The Nacirema Revisited, Jeffrey D. Kahn

SMU Law Review

In 1956, anthropologist Horace Miner published the article for which he is best known, "Body Ritual among the Nacirema." This short but groundbreaking essay described personal rituals practiced by a fascinating but poorly understood people. Inspired by Miner's work and based on close-quarters field research, this essay revisits the strange world of the Nacirema. Two of the more "legal" features of their society are explored: (1) what might be termed the higher-order constitutional design of their society, and (2) the mechanisms of day-to-day maintenance of their social order.

The Law Is A Causeway: Metaphor And The Rule Of Law In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The chapter explores how a metaphor for the rule of law created by the playwright Robert Bolt captures the difficulty that Russia has experienced in its self-proclaimed pursuit of a rule-of-law state: "The law is not a 'light' for you or any man to see by; the law is n instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely." In Russia, the failure to build a rule-of-law state has been, among other things, a failure to create what this metaphor describes as the essence of that …