Digital Commons Network^™

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Rethinking The Context Of Hate Speech Regulation, Robert Kahn

Robert Kahn

In this essay I review Michael Herz and Peter Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012). As I show in the review, the Herz and Molnar volume advances our understanding of comparative hate speech regulation in three ways. First, the essays suggest that local context has a role to play in understanding, assessing, and applying hate speech regulations, even in an age when online hate speech is pressuring states and regions to reach common solutions to these problems. Second, the essays rebut the commonly held premise that the United States …

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Semi-Presidentialism Under The Indian Constitution, Khagesh Gautam

Khagesh Gautam

No abstract provided.

Looking Beyond The Negative-Positive Rights Distinction: Analyzing Constitutional Rights According To Their Nature, Effect And Reach, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

In this brief Article, I wish to challenge and transcend the narrow dichotomy of political-rights-as-negative-rights versus socio-economic-rights-as-positive-rights, and analyze the different variables applicable to constitutional rights, taking into account several interacting features. First, the nature of a right, that is, whether it is civil and political or socio-economic. Second, the effect of a right, that is, whether it is negative rights that protect the titleholder against the actions of others or positive rights that entitle its titleholder to require others to act. Third, the reach of a right, that is, whether it is vertical rights opposable to the state or …

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn

Robert Kahn

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech regulation. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté …

Originalism In Puerto Rico: Original Explication And Its Relation With Clear Text, Broad Purpose And Progressive Policy, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

Originalism is neither inherently conservative nor exclusive to the United States. Puerto Rico, a self-governing U.S. jurisdiction, has been using a particular form of originalism as its main methodological tool for constitutional interpretation and adjudication since 1952. Puerto Rican originalism has several key traits. First, it's politically progressive, due to the framers' explicit progressive agenda which is palpable from the historical sources. Second, their intent is empirically verifiable, due to the formality and transparency of constitutional creation that generated a formal and elaborate record. Third, the constitutional record is considered the authoritative source of constitutional meaning. Fourth, the textual characteristics …

Demanding Individual Rights And Civil Liberties: An Iranian Approach, Zahra Takhshid

Zahra Takhshid

Iran has a long history of social movements and revolutions. The 1906 Constitutional Revolution led to the recognition of individual rights as part of Iran’s first Constitution. With the Islamic Revolution of 1979, a new constitution was enacted, which devoted one chapter to “the Rights of the Nation.”

The Constitution has introduced several methods to protect the recognized rights: the Guardian Council, the Tribunal of Administrative Justice, and the Commission of Article 90.

In addition to the institutions introduced in the Constitution, the Legislature and the Executive branch proposed new safeguarding procedures and adopted new statutes, which recognized broader range …

The Urban Situation: Cities’ Place In Decentralized Government Frameworks, Michael R. Miller

Michael R Miller

This article compares how several developing, emerging market, and former socialist countries' laws classify or rank city governments in relation both to other tiers of subnational government (e.g., state-, province-, and county-level governments) and to other cities. It primarily focuses on the laws of Brazil, Argentina, Chile, Ghana, Senegal, Nigeria, Kenya, India, Pakistan, Nepal, Egypt, Iran, Morocco, China, Vietnam, Philippines, Russia, Poland, and Kazakhstan.

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin

Tom Ginsburg

Abstract: It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does through not through the courts but through the legislative process, in which formal requirements of constitutional review …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Taxing Offshore Transactions In India And The Territoriality Clause - A Case For Substantial Constitutional Limitations On Indian Parliament's Power To Retrospectively Amend The Income Tax Act, Khagesh Gautam

Khagesh Gautam

No abstract provided.

“A Pointless Legal Revolution? Constitutional Supremacy And Eu Membership In Spain, 1978-2014”, Antonio-Carlos Pereira-Menaut

antonio-carlos pereira-menaut

This topic belongs to history. After Franco’s death (1975) Spain embarked on a ‘legal revolution’ that, if pressed to its extremes, could be hardly compatible with European integration. Understandably, the Spaniards throve to create not just a new constitution but also a whole new legal order, with the following traits:

First, legal monism, and pyramid-like shape. Second, every legally relevant thing should be traceable back to the Constitution, that would legitimate and pervade all laws, by-laws, decrees, orders, administrative acts and judicial rulings. Ideally, every law, act or verdict would be but a development of the Constitution. Third, the border …

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Lili Levi

Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20^th Century regulation poorly fitted …

The Abolition Of The Mandatory Death Penalty In The Commonwealth: Recent Developments From India And Bangladesh, Andrew Novak

Andrew Novak

India and Bangladesh are following the Commonwealth-wide trend toward discretionary death penalty regimes and away from the common law mandatory death penalty. This case note analyzes three recent decisions of the Supreme Court of India and the Bangladesh Appellate Division invalidating mandatory death sentences.

Andrew Novak is an adjunct professor of law at American University Washington College of Law, and an adjunct professor of criminology, law, and society at George Mason University. He is the author of The Global Decline of the Mandatory Death Penalty: Comparative Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Ashgate 2014) and The …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

The Eu’S Accession To The European Convention On Human Rights: An International Law Perspective, Jed Odermatt

Jed Odermatt

Article 6(2) of the Treaty on European Union establishes that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to Convention. Taking this draft Accession Agreement as a starting point, this paper examines the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Right To An Exclusively Religious Education – The Ultra-Orthodox Community In Israel In Comparative Perspective, Gila Stopler

Gila Stopler

The ultra-Orthodox Jewish community in Israel has its own separate education system which is funded by the state and in which boys are given an exclusively religious education with almost no exposure to secular subjects or to civic education. At the same time that the Israeli Supreme Court was scheduled to rule that the state may not continue to fund ultra-Orthodox private schools that do not teach the national core curriculum the Israeli parliament passed the Unique Cultural Educational Institutions Act which upholds the right of the ultra–Orthodox community to give their boys an exclusively religious education funded by the …

State Constitutions And The Basic Structure Doctrine, Manoj Mate

Manoj S. Mate

Corruption, Constitutions And Crude In Latin America, Fredrick V. Perry, Scheherazade S. Rehman

Fredrick V. Perry

This paper examines the perception of corruption that exists throughout Latin America, and analyses the importance of the institutional environment in Latin American countries, which are both richly endowed with and dependent on oil and natural gas. First, we look at corruption generally in the region and then carry our analysis by looking at various countries’ GDP per capita versus several indices measuring different dimensions of countries’ economic development, political progress, and social performance. We also combine corruption indices and separate them by typology of corruption in order to investigate the particular facets of corruption that pose the greatest impediment …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Tom Ginsburg

No abstract provided.

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

Theory Of Constitutional Comparison, Sebastian Müller-Franken Prof. Dr

sebastian müller-franken prof. dr

The article looks into constitutional comparison from a theoretical perspective. It shows the variety of different purposes this juridical discipline pursuits. So constitutional comparison for example takes advantage creating constitutional theory or gives an orientation for constititional politics. The article also shows how constitutional comparison can render benefits for the application of constitutional law without giving up national sovereignty.