Digital Commons Network^™

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.

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

David B Kopel

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …

La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Constitutional Law

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.

The Time Has Not Yet Come To Repair The World In The Kingdom Of God: Israeli Lawyers And The Failed Jewish Legal Revolution Of 1948, Assaf Likhovski

Assaf Likhovski

At certain moments in Israel's legal history, Jewish lawyers were forced to choose between their commitment to the professional interests of their guild and their commitment to Jewish nationalism. This dilemma was especially apparent in the debates surrounding what can be called the failed Jewish legal revolution of 1948, when Israeli lawyers had to decide whether they wanted to maintain the legal status quo by retaining the legal system that Israel inherited from the British rulers of Palestine, or whether this legal system would be replaced by one that was connected in some way to Jewish law (the Halakha). What …

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

Michael S. Green

No abstract provided.

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

Teresa M. G. Da Cunha Lopes

No abstract provided.

The Origins And Efficacy Of Private Enforcement Of Animal Cruelty Law In Britain, Jerry L. Anderson

Jerry L. Anderson

In 1822, the British Parliament enacted a landmark statute to punish the abuse of animals, known as Martin’s Act, named after Richard Martin, MP, who championed the bill. The Act provided a criminal penalty of up to £5 for the cruel treatment of cattle, a term which included horses, oxen, and sheep. Because the Act was the first national statute aimed at animal cruelty, scholars have naturally focused on its substance, which established an important new norm governing the relationship between humans and other animals. However, the Act would not have been successful without vigorous prosecution, which helped define the …

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Vlad Perju

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is …

The Central American Constitutional Identity.- A Study Of The Constitutional Imitation Phenomenon In The Integration Process Of The Region, Lidia P. Castillo Amaya

Lidia P. Castillo Amaya

This paper will present some preliminary conclusions drawn after conducting the first stage of a research project, which intends to study the constitutional characteristics of the Integration Process of Central America (in its diachronic and synchronic dimension) by means of assessing its legal and extralegal formants in order to verify if its structure and modality are a result of a specific historical and cultural context with elements of originality and innovation; or if they are a mere consequence of a strict “constitutional imitation” of foreign external models (EU) shaped by the interests of the dominant economic elite; or if we …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski

Assaf Likhovski

Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences? This Article seeks to answer these questions by analyzing one specific example — the history of income tax legislation in …

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

Principles-Based Securities Regulation In The Wake Of The Global Financial Crisis, Cristie L. Ford

Cristie L. Ford

This paper seeks to re-examine, and ultimately to restate the case for, principles-based securities regulation in light of the global financial crisis and related developments. Prior to the onset of the crisis, the concept of more principles-based financial regulation was gaining traction in regulatory practice and policy circles, particularly in the United Kingdom and Canada. The crisis of course cast financial regulatory systems internationally, including more principles-based approaches, into severe doubt. This paper argues that principles-based securities regulation as properly understood remains a viable and even necessary policy option, which offers solutions to the real-life and theoretical challenge that the …

Argonauts Of The Eastern Mediterranean: Legal Transplants And Signaling, Assaf Likhovski

Assaf Likhovski

This Article tells the story of two legal cooperation projects established by the Israeli Ministry of Justice in the 1950s and 1960s. The Article argues that the history of these projects can suggest a new way of understanding the process of legal transplantation. Much of the literature on legal transplants focuses on the legal norms transplanted.

This Article seeks to shift the focus of the debate from a discussion of the legal norms transplanted to a discussion of the social acts involved in the process of transplantation. The Article argues that while transplantation may be motivated by practical considerations,such as …

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

The Trial Of Queen Caroline And The Impeachment Of President Clinton: Law As A Weapon For Political Reform, Daniel H. Erskine

Daniel H. Erskine

This article explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. In answering why political actors use legal procedures as political weapons and whether such use is effective, this paper analyzes two historical examples to illustrate that law as political weapon is extremely successful in accomplishing political change. In the early 1800’s, England’s King sought to defrock his politically radical heroine Queen Caroline through the parliamentary mechanism of a Bill of Pains and Penalties, which caused a flourish of public criticism and call for political revolution. Public …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay

Richard Kay

Book reivew of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004).

El Derecho En El Lejano Oriente, Fernando Villaseñor Rodríguez

Fernando Villaseñor Rodríguez

Una brevísima introducción a los elementos más distintivos del Derecho Japonés desde una perspectiva histórica.

The Secession Reference And The Limits Of Law, Richard Kay

Richard Kay

When the Supreme Court of Canada issued its judgment on the legality of "unilateral" Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a "victory for all …