Vladimir Maizus
Reichman, A. (2011). Judicial Independence in Times of War: Prolonged Armed Conflict and Judicial Review of Military Actions in Israel. Utah L. Rev., 63.
Introduction
Emergencies, and especially wars, challenge our intuitive approach to judicialEmergencies, and especially wars, challenge our intuitive approach to judicialindependence in two important ways. One relates to the tension between judicialindependence as a feature of separation of powers and the need to consolidatepowers in times of crisis. The other relates to the tension faced by an (independent)judiciary when the state (of which the judiciary is a part) is threatened by anexternal enemy. Part II of this Article will present these two challenges and brieflysketch their theoretical roots and possible practical implications. Part III will thenexamine the issue of judicial independence in times of war in Israel, a stateembattled in an armed conflict since its establishment and, as of 1967, faced withadministering territories inhabited by over one million residents held under aregime of belligerent occupation. The Article will demonstrate the ability of theIsraeli Supreme Court (the Court) to maintain its independence when exercisingjudicial review over the acts of the military commander in the occupied territories,as revealed by the Court's reasoning and decisions. Part IV will then outline thelimits of such independence, when particularly hard cases are presented for judicialconsideration. In conclusion, Part V will address the transnational dimension ofjudicial independence in times of war. It will suggest that the presence of theinternational and transnational community places the Israeli judiciary in a statebest described as "bounded" independence, in which the Court must navigatebetween its internal audiences (and constituencies) and the international andtransnational legal communities. The latter two may be seen as exercising a kind ofpeer review over the decisions of the Israeli Court.
Hartman, J. F. (1981). Derogation from Human Rights Treaties in Public Emergencies-A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations. Harv. Int'l. LJ, 22, 1.
Introduction
International protection of human rights is essential in crisis situationsInternational protection of human rights is essential in crisis situationswhere states suspend basic freedoms and frequently commit massiveviolations of human rights treaties. The European Convention onHuman Rights and Fundamental Freedoms (European Convention),'and the International Covenant on Civil and Political Rights (InternationalCovenant)2 attempt to constrain states from suspending fundamentalrights through the use of specific derogation articles.3 Thisarticle will examine the theory, history, operation and interpretationof article 15 of the European Convention and article 4 of the InternationalCovenant and will also focus on the capacity of the organscreated by the treaties to handle derogation cases involving publicemergencies....
Haggard, S. and Tiede, L. (2010), The Rule of law and Economics Growth: Where Are We? 39(5) World Development, 673
Abstract:
It is widely assumed that the rule of law is essential for economic growth. However, the rule of law is clearly a multidimensional concept, encompassing a variety of discrete components from security of person and property rights, to checks on government and control of corruption. We review the theory underlying these different causal mechanisms linking the rule of law to economic growth, and provide an introduction to some outstanding measurement issues. We find that the correlation among different components of the rule of law concept are not tight among developing countries and that some inferences about the effects of property rights protection may not be warranted.
Haber, E., & Zarsky, T. (2016). Cybersecurity for Infrastructure: A Critical Analysis. Fla. St. UL Rev., 44, 515.
Abstract:
Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in a handful of sectors. Over the past few years, several novel laws and regulations addressing this emerging issue have been legislated. Yet, the overall trajectory of limited regulatory intervention has not changed. With that, the wisdom of such a limited regulatory framework must be revisited and possibly reconsidered. This Article fills an important gap in the legal literature by contributing to and promoting this debate on cyber-risk regulation of CIs, while mapping out the relevant rights, options, and interests this ‘critical’ debate entails and setting forth a regulatory blueprint that balances the relevant factors and considerations.
The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives — and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.
Gross, Oren. "Chaos and rules: Should responses to violent crises always be constitutional." Yale LJ 112 (2002): 1011.
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
Gross, Oren, and Fionnuala Ní Aoláin. Law in times of crisis: emergency powers in theory and practice. Vol. 46. Cambridge University Press, 2006.
https://www.cambridge.org/core/books/law-in-times-of-crisis/974A70D71A5F4599717675E87CA935DC
Grimm, D. (2014, April). Levels of the Rule of Law–On the Possibility of Exporting a Western Achievement. In Constitutionalism and Good Governance (pp. 141-152). Nomos Verlagsgesellschaft mbH & Co. KG.
Ferejohn, John, and Pasquale Pasquino. "The law of the exception: A typology of emergency powers." International Journal of Constitutional Law 2, no. 2 (2004): 210-239.
Link to paper in International Journal of Constitutional Law: The law of the exception: A typology of emergency powers
Elkin-Koren, N., & Haber, E. (2016). Governance by Proxy: Cyber Challenges to Civil Liberties. Brook. L. Rev., 82, 105.
Abstract:
Distributed networks created new challenges to governance. At the initial stages of the commercial Internet, its distributed nature shifted power from traditional institutions to end users, acting alone or in collaboration with others. This led to a governance crisis: how do governments ensure public safety, secure critical infrastructure, and safeguard national security in an era of open communication networks? To address such crisis, legislatures created a legal framework in which governmental agencies could lawfully obtain information from intermediaries. In practice, as Edward Snowden revealed in 2013, governmental agencies also operated beyond the scope of this legal framework, mainly through an informal collaboration with online intermediaries. Such public-private partnership (PPP) is executed in a regulatory twilight zone, which keeps this type of collaboration beyond the reach of legal oversight, and outside the reach of market powers that could have pushed against it. It therefore fails to provide sufficient checks and balances and could subsequently risk our civil liberties and freedom.
This Article scrutinizes the new type of governance-by-proxy and the legal twilight zone that facilitates it. It identifies legal gaps and offers insights on how to address them. It proceeds as follows: Part I introduces the governance crisis and describes the role of online intermediaries in the new governance model. Part II describes the legal twilight zone in which informal governance by intermediaries takes place. It compares the legal framework for PPP prior to the information era with the legal regime that facilitated the rise of PRISM. Part III examines the constitutionality and legality of such PPPs. Part IV examines potential social and legal solutions to the governance crisis that also secure fundamental rights and liberties. The last Part concludes the discussion and calls for restructuring the legal regime that governs PPPs.