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Journal Article

The Rule of Law and the Judicial Function in the World Today

01 Jan 2014-Notre Dame Law Review (University of Notre Dame Law School)-Vol. 89, Iss: 3, pp 1383
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. …

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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.
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1,336 citations

Book ChapterDOI
01 Jan 2014
TL;DR: In this paper, the authors focus on emerging legal e-environment that comprises of legal acts regulating a field that can be administered by electronic means (e.g., e-technology).
Abstract: The article is focusing on emerging legal e-environment that comprises of legal acts regulating a field that can be administered by electronic means (eTechnology). The reasons behind various and sometimes overlapping and complex EU initiatives and agendas are analysed with the attempt to have an academic insight into the e-regulation and to establish a firm and more systematic approach for future studies in the field. The author maps the current situation, refers to the challenges related to e-regulation and discusses the need for characterising the e-legislation as a set of new type of rules. The stakeholders and e-identity, e-citizenship e.g. digital citizenship are discussed from the angle of e-regulation as a new qualitative level of EU law. It seems that today, some of the areas of e-regulation are well developed, and some of the areas still remain wishful thinking or are developing slowly in terms to be regulated electronically. The digitalization and e-regulation in terms of harmonization depend on the capacity of EU Member States in terms of electronic divide. Another challenge is the distinguishable nature of e-regulation normative status that should be taken in account when designing the new constitutional law and future for EU. As a conclusion and taking account of the interoperable nature of e-regulation, the author presents a list of policy stages that should be used when drafting and assessing EU level e-regulation.

5 citations