Digital Commons Network^™

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.

Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus

Paul Marcus

No abstract provided.

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Paul Marcus

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

Vertical And Horizontal Perspectives On Rights Consciousness, David M. Engel

David M. Engel

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide demonstrate an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a “vertical” perspective, tracing the flow of legal norms and practices from prestigious international organizations and world centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on rights consciousness have contributed new understandings of law in contemporary societies around the …

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

Legal Transplantation Or Legal Innovation? Equity-Crowdfunding Regulation In Taiwan After Title Iii Of The U.S. Jobs Act, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

La Adaptación A Las Necesidades: Convergencia Y Divergencia, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Sital Kalantry

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.

Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain

Claire Germain

The CISG (Convention on Contracts for the International Sale of Goods) has remarkably facilitated commercial transactions across boundaries and different legal systems. This article, to be published as a Book Chapter, discusses some possible difficulties caused by using different languages, or words which might be interpreted differently, and some solutions and ways to deal with these difficulties. Three kinds of issues have appeared: the first has to do with drafting issues, and the peculiar problem of the six official languages of the Convention. The second set of issues deals with the interpretation of the Convention and the so-called homeward trend. …

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Thomas C. Kohler

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.

Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss

Dorit R. Reiss

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Michael S. Green

No abstract provided.

Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost

Timothy S. Jost

This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.

Changing The United Kingdom Constitution: The Blind Sovereign, Richard Kay

Richard Kay

The traditional doctrine of the sovereignty of Parliament in the United Kingdom is being transformed. The change is the cumulative result of a series of legislative acts, judicial decisions, statements of officials and academic opinions. This paper is not directed to the extent or to the propriety of this change. It examines rather the process by which it has been effected. In most of the world, wholesale constitutional revision is an event. It takes place in a defined period of time and is the work of an identifiable group of people. The striking thing about the changes in the UK …

Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests. The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating …

Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

No abstract provided.

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …

Cравнительное Избирательное Право: Обзор Исследований, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Избирательное Право Как Институт Конституционного Права Соединенных Штатов Америки, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Сравнительное Избирательное Право Как Научное Направление, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Exit, Voice And International Jurisdictional Competition: A Case Study Of The Evolution Of Taiwan’S Regulatory Regime For Outward Investment In Mainland China, 1997-2008, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

This Article explores the interplay of demand and supply forces in the market for law through international jurisdictional competition led by offshore financial centers. To do so it uses the example of the evolution of a regulatory regime imposed by an onshore jurisdiction, Taiwan, to control outward investment into mainland China (“China-investment”). The argument is that jurisdictional competition brought about by capital mobility or exit will provoke legal changes to prevent the departure of capital when laws reduce the value of remaining within the jurisdiction. The case study is used to examine the extent to which jurisdictional competition fuelled by …

Gli Obblighi Del Trustee Nel Sistema Statunitense., Vanessa Villanueva Collao

Vanessa Villanueva Collao

No abstract provided.

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Book Review: Comparative Law In A Global Context: The Legal Systems Of Asia And Africa, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.

Comparación Jurídica Del Derecho Privado Europeo: Método, Historia Y Estilo, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

Reseña bibliográfica de DIURNI, Amalia y HENRICH, Dieter, Percorsi europei di diritto private e comparato, Giuffrè Editore, Milán, 2006, pp. 266 + xii.

Impairment, Discrimination, And The Legal Construction Of Disability In The European Union And The United States, Vlad F. Perju

Vlad Perju

This Article is a comparative study of disability regulations in the European Union and the United States over the past four decades. It explores how a conception of the relationship between illness, impairment and discrimination became a source of transformative insights that led to new regulatory regimes for persons with disability but also hampered the judicial enforcement of these regimes in both jurisdictions. The main transformative insight is the shift in understanding the cause of disability from the individual’s medical condition to the larger social environment. The obstacle is the radical nature of this shift, and specifically its effect of …

Capital Punishment In Jewish Law And Its Application To The American Legal System: A Conceptual Overview, Samuel J. Levine

Samuel J. Levine

In recent years, a growing body of scholarship has developed in the United States that applies concepts in Jewish law to unsettled, controversial, and challenging areas of American legal thought. One area of Jewish legal thought that has found prominence in both American court opinions and American legal scholarship concerns the approach taken by Jewish law to capital punishment. In this Essay, Levine discusses the issue of the death penalty in Jewish law as it relates to the question of the death penalty in American law, a discussion that requires the rejection of simplistic conclusions and the confrontation of the …