Forbes Launches “Rule of Law” Column by Michael Krauss

I’m happy and honored to have been invited by Forbes to publish a column, which I’ve entitled Rule of Law.  In this column I intend to discuss the challenges to the Rule of Law in Torts and Products Liability issues, subjects I know something about.  I will also discuss Legal Ethics questions at length, regardless of the substantive area in which these questions are raised.

A biographical note to get us started.  I’m a full professor of law at George Mason University, in Arlington, Virginia.  You will not be surprised to learn that I teach Torts, Products Liability and Legal Ethics!  I am co-author (with Ron Rotunda) of the first two editions of West’s Legal Ethics in a Nutshell, and I am the sole author of Principles of Products Liability, which (shameless plug) West has just last month published in its Second Edition.  I’m the proud father of a Marine Captain and a former Supreme Court clerk, and the proud husband of a Vice-President of the American Health Lawyers’ Association.  I’ve taught law at Mason for over two decades, after a stint in commercial practice, and am proud to be GMU’s only law professor to have won our university’s “Teacher of the Year” award.  I’m also an elected member of the American Law Institute, and a veteran of law teaching in several different legal systems (US, English Canada, French Canada, France, Guatemala, Israel).   You can find my Mason bio here.  You can reach me by email through George Mason Law School’s website.

Stay tuned for my first substantive column later this week.  For now, though, I thought I would try to actually define the Rule of Law, a concept understood in principle by many but difficult to give detail to.  And it turns out I have tried to do this alaready, back in 2008 when the publishers of the International Encyclopedia of the Social Sciences asked me to write the entry on the Rule of Law.   I will spare readers the bulk of my entry, but here is its conclusion:

“In sum, the Rule of Law seems to comprise four requirements (five if separation of powers is added):

1. Government is Bound by the Law;

2. The law is discernible by citizens;

3. Application of Law is well-organized;

4. Ordered liberty is largely maintained, i.e., citizens are reasonably secure in their persons and property.

This Rule of Law can, within these constraints, exist in different legal systems.  Republics and Parliamentary democracies, Civil and Common Law systems, are  compatible with it.  Differing tax rates and differing notions of fundamental rights are compatible with the Rule of Law.    On the other hand, Rule-of-Law procedural rights such as the presumption of innocence, (citizens are to be treated as innocent until they have been proven guilty), non-retroactivity (no one can be held accountable for violating a law before it was in effect), and Habeas Corpus (detained persons have the right to have their custody justified both to them and to an independent judicial authority) are intrinsic to the Rule of Law….

The concept is elusive and fluid, but utterly meaningful.  Philosopher Michael Oakeshott put it best, in his essay, “The Rule of Law”: “The rule of law … remains the most civilized and least burdensome conception of a state yet to be devised.”

Many, myself included, feel the Rule of Law is under increasing and in some ways unprecedented threat today.  Describing and synthesizing those threats, as well as triumphs for the Rule of Law, in the fields of Torts and Products Liability, will be the main thrusts of my column.  When lawyers misbehave (or go above and beyond the ethical call of duty) the Rule of Law is intrinsically weakened, and so I will also focus on lawyers’ behavior in some detail.  Stay tuned for my first substantive column, later this week.  Meanwhile, thanks for reading this far, and I hope you will consider subscribing to the column and sharing it on social media.