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"Gray Zone" Constitutionalism And The Dilemma Of Judicial Independence In Pakistan, Anil Kalhan 2013 Vanderbilt University Law School

"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 2013 International Criminal 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 2013 Vanderbilt University Law School

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 …


Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann 2013 University of Michigan Law School

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 …


Neo-Democracy, National Security, And Liberty, David Cole 2013 Georgetown University Law Center

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 2013 University of Colorado Law School

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

Publications

No abstract provided.


Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram 2013 Loyola University Chicago

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 …


Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez 2013 Florida International University College of Law

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

No abstract provided.


The Rule Of Law And The Perils Of Precedent, Randy J. Kozel 2013 Notre Dame Law School

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 2013 Allard School of Law at the University of British Columbia

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 …


Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston 2013 Allard School of Law at the University of British Columbia

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 …


The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan CHEN 2013 Singapore Management University

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 …


Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores 2012 Georgetown Law Center

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 2012 Singapore Management University

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 …


Foreword, Amy C. Gaudion 2012 Penn State University, Dickinson School of Law & School of International Affairs

Foreword, Amy C. Gaudion

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

No abstract provided.


Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera 2012 Pepperdine University

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.


Jlia Editorial Board & Staff, 2012 Penn State Dickinson Law

Jlia Editorial Board & Staff

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

No abstract provided.


To Forgive And Forget: How Reconciliation And Amnesty Legislation In Afghanistan Forgives War Criminals While Forgetting Their Victims, Sara L. Carlson 2012 Penn State Dickinson Law

To Forgive And Forget: How Reconciliation And Amnesty Legislation In Afghanistan Forgives War Criminals While Forgetting Their Victims, Sara L. Carlson

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

More than three decades of war and hundreds of thousands killed or brutalized by the actions of warlords and insurgent commanders vying for power comprise the backdrop of modern Afghanistan. As Afghanistan continues toward a new era, seeking democracy in a country where tribal affiliations and ethnic groups often usurp any sense of patriotism, the reconciliation of armed fighters while providing an adequate grievance process for victims of war crimes must take priority in the process adopted to unify the Islamic Republic of Afghanistan. This comment explores the current attempt by the Islamic Republic of Afghanistan to provide a system …


International Activity And Domestic Law, Adam I. Muchmore 2012 Penn State Dickinson Law

International Activity And Domestic Law, Adam I. Muchmore

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

This essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.


The Full Story Of United States V. Smith, America’S Most Important Piracy Case, Joel H. Samuels 2012 Penn State Dickinson Law

The Full Story Of United States V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

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

This article explores the seminal United States Supreme Court decision of United States v. Smith (1820). Smith, an early piracy case, has influenced developments in both domestic and international law on piracy, universal jurisdiction, and a range of broader themes. This article is the first to explore the context within which the case arose, as well as the circumstances of the case itself. In addition to the details of the case, the story of the men prosecuted for their cruise aboard the vessel known as the Irresistible in the late spring and early summer of 1819 also offers a …


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