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Diarmuid F. O'Scannlain

Bio: Diarmuid F. O'Scannlain is an academic researcher from University of Notre Dame. The author has contributed to research in topics: Public law & Sources of law. The author has an hindex of 2, co-authored 4 publications receiving 9 citations.

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Journal Article
TL;DR: Clynes as discussed by the authors addressed the issue of the Rule of Law in the legal process and the role of the judicial process in the development of the rule of law in international relations.
Abstract: INTRODUCTION Good evening. (1) It is a pleasure to be here at the University of Notre Dame London Law Centre, and I am deeply honored to have been asked to speak from the "Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process." The ethics of litigation, of course, is not just for practitioners. It is also for judges. It is for that reason that the Clynes Chair has, as one of its concerns, the "practice of handling and resolving cases, both at the trial and appellate levels." While I wish to offer today some observations on that practice, I will not address it directly and at once, as would be my tendency as a judge. Rather--this being a scholarly affair--I will do my best to proceed as would an academic, taking up the question obliquely, incrementally, and only after addressing a more abstract subject to which I have lately been giving much thought: namely, that universally invoked term the Rule of Law. I 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. (2) 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." (3) 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 still in effect. Writing just over twenty years later, the great Chief Justice John Marshall would affirm, in Marbury v. Madison, that "[t]he government of the United States has been emphatically termed a government of laws, and not of men." (4) Of course, neither Adams nor Marshall was on to something new with this "government of laws" notion. The idea that law, rather than certain men, ought to govern men--or, put differently, that men ought to self-govern through law--is quite old. In Western civilization, it is as old as political philosophy itself. We invoke it still today, perhaps more vociferously than ever before. From the lips of Socrates and the quill of Chief Justice Marshall, the principle of the Rule of Law now takes center stage in the theater of international relations. This is no doubt because, as a global community, we are painfully aware that the Rule of Law has had some bad years of late--indeed, a bad century. In the concentration camps of Nazi Germany, the gulags of Soviet Russia, the killing fields of Cambodia, and the genocidal wastelands of Kosovo, the Rule of Law was nowhere to be found (though perhaps, with enough searching, one could uncover its remains--it has a way, after all, of being tyranny's first victim). The nightmare of the twentieth century having passed, we naturally wish to do all that we can to ensure that such tragedies never happen again. As most recognize, that project begins and ends with understanding, spreading, and strengthening the Rule of Law in every corner of the globe. A Spearheading the rhetorical effort on this front lately has been, perhaps surprisingly to some, the United Nations itself. Last September, I had the fortune of attending the historic High Level Meeting on the Rule of Law of the 67th Session of the U.N. General Assembly. At that session, leaders from more than eighty countries gathered to reiterate not only their own commitments to the Rule of Law but to reaffirm our commitment as a global community to that principle. To that end, the General Assembly adopted a declaration. (5) "[T]he rule of law," it reads in part, "applies to all States equally" and ought to "accord predictability and legitimacy to their actions." (6) The Rule of Law, it also says, entails democracy, independent judiciaries, and the securing of human rights. (7) This is heartening language. …

2 citations

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01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal ArticleDOI
TL;DR: For example, the authors found that James Madison studied law and, at least in one extant manuscript, took careful notes, and these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language.
Abstract: We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.

17 citations

Journal ArticleDOI
TL;DR: This paper used the flawed magic of Google Chrome's translate feature to translate Czech legislation from the Czech government website into English, and the student was thrilled with their results and insisted he had satisfied his due diligence duties.
Abstract: Early last summer, I received a phone call from a law student in the litigation department of a large firm. He was working with a team on a case involving Czech law and, as part of a due diligence review, he was seeking an English translation of a piece of Czech legislation before the firm outsourced the bulk of the foreign legal research to Czech attorney-experts. Although it was easy to find the Czech legislation in Czech from a Czech government website, we could not find an English translation – official or otherwise – from any of our free or subscription-based databases. In the end, we relied on the flawed magic of Google Chrome's translate feature to “translate” the Czech legislation from the Czech government website into English. Despite my protestations and disclaimers, the student was thrilled with our results and insisted he had satisfied his due diligence duties. I hung up the phone and thought to myself: certainly, other American litigants have taken cases involving Czech law. What happens to the foreign law and legal analysis they obtain from their Czech attorney-experts? Assuming they submit some of it to our U.S. courts in the course of litigation, why can't we easily retrieve it?

9 citations