The Rule of Law: Controlling Government

Seminar in Contemporary Legal Thought


Professor John Norton Moore

University of Virginia School of Law

Fall 2011

The seminar in "The Rule of Law: Controlling Government" explores the theory and cost of government failure and its relationship to contemporary movements for constitutional and legal reform. The seminar reviews the growing body of information about government failure internationally and domestically; examines theoretical approaches to explaining such failure, including public choice theory; and then examines the implications for the rule of law and constitutional and legal reform as applied to controlling government. Each session seeks to develop the meaning and importance of the rule of law, and to involve the students in development of a legal framework for controlling government, empowering the individual, and celebrating human freedom.

Requirements: A substantial research paper. Active class participation is expected. This seminar can be used to fulfill the Law School's Writing Requirement.

"Rule of Law" meets on Mondays from 7 p.m. until 9 p.m. at Professor Moore's home in Charlottesville. A map is available at his office, SL 348, in the Slaughter Building at the University of Virginia School of Law. Professor Moore can be reached by telephone at (434) 924-7441 or by fax at (434) 924-7362.

Interdisciplinary Fall Seminar on

The Rule of Law: Controlling Government

A widely-assumed meaning of the "rule of law" is that of peaceful resolution of disputes within the citizenry based on law rather than force. Facilitating such a rule of law is, of course, a fundamental role of government—and is a focus of much of the study of law. A broader, and one might argue even more important, meaning of the "rule of law," however, is increasingly coming to be understood as controlling government itself through limitations on official power by a variety of legal mechanisms, both substantive and procedural. That was the core focus of the political geniuses who founded this Nation, such as James Madison and Thomas Jefferson.

Today we are beginning to understand more clearly, from newer empirical evidence and economic theory, the importance of government rooted in a genuine rule of law, and the costs and causes of government failure. This in turn has contributed world wide to an ongoing revolution for democracy and human freedom. Here in the United States, it has contributed to a rethinking of the role of government, and a search for newer modalities for controlling government that are at the core of our domestic political debate. These include such issues as term limits, balanced-budget amendments, campaign finance "reform," direct judicial takeover of failed government services, cost/benefits requirements, tax and entitlement reforms including Social Security reform, and new approaches to compensation for takings, among many others.

This seminar will explore in the broadest interdisciplinary context the ongoing revolution in thinking about more effectively controlling government through the rule of law. It will examine the debate in legal and political theory, waged throughout human history, between competing streams of thought, leading to totalitarianism: empowering the government, on the one hand, and to democracy: empowering the individual, on the other. It will put that struggle in the context of newer empirical information about the consequences of that choice worldwide. And it will review within the democratic tradition, particularly here at home, the consequences of even "modest" government failure. It will seek to develop a taxonomy of "government failure" transcending traditional notions of Left and Right, and will review the best theoretical literature from economics and political science to explain the underlying causes of that failure. It will engage contemporary jurisprudence and constitutional theory in examining the potential, and the limits, of law as a mechanism for reducing and controlling government failure. Finally, seminar students will meet with some of the country’s top experts in sorting through some of the relevant debates about Social Security reform, building constitutionalism abroad, campaign finance reform, wrongful convictions, and other contemporary issues generated from the broader debate.

This seminar, offered exclusively at Virginia, provides a unique focus on the rule of law, and is guaranteed to address "the big picture." It is taught by Professor John Norton Moore of the law faculty, who, for more than twenty years, offered a predecessor to this seminar as the sole mandatory seminar for post-doctoral candidates at the law school. He also served as the first Chairman of the Board of the congressionally-established United States Institute of Peace, which developed a strategy for "rule of law engagement" worldwide, and he served as the cochairman with the Deputy Attorney General of the United States of the first official U.S.-Soviet talks on the rule of law. He is also currently a member of the Board of Trustees of the human rights organization Freedom House, and is a coauthor of its successful initiative for a "Community of Democracies."

Students who have not preregistered for this seminar may be able to do so at this time. The seminar meets from 7:00-9:00 PM on Monday evenings at Professor Moore’s home to foster an atmosphere more conducive for informal discussion with the distinguished guest lecturers. For further information, contact Professor Moore at 924-7441 or stop by his Law School office in Slaughter Hall Room 348.

"[A] wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government . . . ."

—Thomas Jefferson, First Inaugural Message to Congress
    (March 4, 1801)