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Constitutional Law

Selected Works

2008

Articles 1 - 30 of 66

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Is Zina Bil Jabr A Hadd, Taz‛Ir Or Siyasa Offence?: A Reappraisal Of The Protection Of Women Act 2006 In Pakistan”, Muhammad Munir Dr. Dec 2008

Is Zina Bil Jabr A Hadd, Taz‛Ir Or Siyasa Offence?: A Reappraisal Of The Protection Of Women Act 2006 In Pakistan”, Muhammad Munir Dr.

Dr. Muhammad Munir

This article briefly discusses the various laws passed by the regime of General Musharraf (1999-2008) to relieve the plight of helpless women in Pakistan and analyses the Protection of Women Act, 2006 from a legal, rather than from a political or emotional perspective. It scrutinizes the opinions of leading 'ulama, such as Justice (R) Taqi 'Uthmani, Mufti Muneebur Rahman, Moulana 'Abdul Malik, and Hasan Madani. The position of women rights' groups about the said law is discussed; the claim of the then government that the Act is compatible with the Qur'an and the Sunnah is examined; the various changes ...


Rwanda: No Conspiracy, No Genocide Planning ... No Genocide?, C. Peter Erlinder Dec 2008

Rwanda: No Conspiracy, No Genocide Planning ... No Genocide?, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.


"Precedent In Islamic Law With Special Reference To The Federal Shariat Court And The Legal System In Pakistan”, Muhammad Munir Dr. Nov 2008

"Precedent In Islamic Law With Special Reference To The Federal Shariat Court And The Legal System In Pakistan”, Muhammad Munir Dr.

Dr. Muhammad Munir

This paper attempts to answer the question whether the common law doctrine of precedent as practiced in Pakistan is compatible with the traditional Islamic legal system. After a survey of the various articles and books about the judicial system of Islam it concludes that there is little, if any, material about the role of precedent in Islamic law. The paper also examines the judicial system of India under the Moghuls and the East India Company and traces the origins and evolution of the doctrine of precedent in the Indian sub-continent, more particularly in Pakistan. The role of the principles of ...


Liberdade, Ética E Direito, Paulo Ferreira Da Cunha Nov 2008

Liberdade, Ética E Direito, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Further than Ethics concieved as mere obedience, Republican Ethics expresses the idea of duty for freedom and Liberty. After Law concieved as only duty and imperative norms from power to the subjects, there is the possibility of a fraternal law, in new patterns. This article explores several ways in a new ethics and a new law paradigms, after the objective Roman Law and the subjective modern Law.


Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy Oct 2008

Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy

Karen Czapanskiy

In the fall of 1971 the Supreme Court's Advisory Committee presented to the Court the Proposed Federal Rules of Evidence. The Committee failed to include a rule on impeachment by bias, interest, or prejudice. In failing to include such a rule, the Committee bypassed the opportunity to reconcile a conflict over both the content and methodology of this form of impeachment. The authors, in an attempt to show the need for a rule dealing with bias impeachment, analyze the present decisional conflict in this area. They conclude by proposing a rule designed to add some uniformity to this highly ...


Globalisation And Migrant Labour In A 'Rainbow Nation': A Fortress South, Nicos Trimikliniotis Sep 2008

Globalisation And Migrant Labour In A 'Rainbow Nation': A Fortress South, Nicos Trimikliniotis

Nicos Trimikliniotis

Outside southern Africa little attention has been given to the lively debates, particularly within South Africa, about migration, economic integration, racism/xenophobia and exclusion. After the collapse of apartheid the Southern African Development Community (sadc) developed initiatives on regional co-operation on population movement in a far-reaching 1995 Draft Protocol on Free Movement. However, the post-apartheid South African state was concerned solely with free trade and, with the support of other regional players, managed to halt the Protocol. The processes of neoliberal regional integration, socioeconomic transformations, poverty and inequality, as well as the political turmoil in countries of the sub-Saharan region ...


Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini Sep 2008

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

No court has addressed the constitutional significance of sentencing juvenile murder accomplices who play a minimal role in the underlying killing to life in prison without parole. Indeed, no precedent makes clear whether it is cruel and unusual to impose that sentence on juvenile offenders convicted of first-degree murder pursuant to either the felony-murder doctrine or an accomplice theory of liability, notwithstanding their minimal involvement in the victim’s death. To investigate this unanswered question, Part I of this Article explores the imposition of life without parole sentences on juvenile non-killers convicted of murder via either the felony-murder doctrine or ...


Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli Sep 2008

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Paula A Monopoli

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have ...


Kατεδαφιζόμεθα Ή Καταρρέει Ένα Ιδεολόγημα, Nicos Trimikliniotis Sep 2008

Kατεδαφιζόμεθα Ή Καταρρέει Ένα Ιδεολόγημα, Nicos Trimikliniotis

Nicos Trimikliniotis

Kατεδαφιζόμεθα ή καταρρέει ένα ιδεολόγημα Στο απόηχο της πρώτης και σ’ αναμονή της δεύτερης συνάντησης των δύο ηγετών, του κ. Χριστόφια και κ. Ταλάτ, «ξέσπασε» ή μάλλον «κατασκευάστηκε» από κάποια μίντια (και τις εμπρηστικές δηλώσεις από διάφορους) μια έξαλλη «συζήτηση» γύρω από την εγκύκλιο του Υπουργού Παιδείας. Μάλλον καταλάγιασε, προσωρινά τουλάχιστον, αλλά θα σιγοκαίει καθώς προχωρούν οι συνομιλίες. «Αλλού μας τρώει» λοιπόν… Αξίζει ωστόσο να πάρουμε κάτι από τις αντιδράσεις από μια εγκύκλιο που λέει τα αυτονόητα, κι απλά θέλει να εφαρμόσει στην πράξη αυτά που προφανώς ψευδώς διακηρύσσαμε. Γι’ αυτό και παίρνουμε στα σοβαρά τα τραγελαφικά που ζούμε κι ...


Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber Jul 2008

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Mark Graber

No abstract provided.


Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber Jul 2008

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Mark Graber

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted ...


False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber Jul 2008

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in ...


Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber Jul 2008

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Mark Graber

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration ...


Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber Jul 2008

Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber

Mark Graber

No abstract provided.


Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jul 2008

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Mark Graber

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally ...


The Jacksonian Makings Of The Taney Court, Mark A. Graber Jul 2008

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Mark Graber

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison ...


Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jul 2008

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the ...


Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber Jul 2008

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Mark Graber

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech inconsistent with what they believe are basic constitutional values. This claim repudiates a basic principle of American constitutionalism, the faith that "self-evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological ...


Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber Jul 2008

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Mark Graber

No abstract provided.


Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns Jul 2008

Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.


Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns Jul 2008

Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.


Η Κύπρος Στα Δύσκολα Μονοπάτια Της Αλήθειας Και Της Συμφιλίωσης», [Cyprus Confronting The Difficult Pathway Of Truth And Reconciliation], Nicos Trimikliniotis Jun 2008

Η Κύπρος Στα Δύσκολα Μονοπάτια Της Αλήθειας Και Της Συμφιλίωσης», [Cyprus Confronting The Difficult Pathway Of Truth And Reconciliation], Nicos Trimikliniotis

Nicos Trimikliniotis

[In Greek] This paper is an attempt at approaching the issue of truth and reconciliation in Cyprus in a way that draws upon both the international as well as the local struggles and traditions, in an effort to critically integrate the knowledge, experiences and allow for reflectivity. What follows is a brief sketch of a more extensive paper which reflects upon the means, goals and ultimate objectives in a manner that is open-ended and non-exhaustive to contribute towards a debate on a subject that has not received its due attention . The paper draws upon some of the debates over the ...


Rethinking Reconciliation And Cooperation With View To Reunification In Cyprus: Challenges For Citizens, Political And Social Actors, Nicos Trimikliniotis Jun 2008

Rethinking Reconciliation And Cooperation With View To Reunification In Cyprus: Challenges For Citizens, Political And Social Actors, Nicos Trimikliniotis

Nicos Trimikliniotis

Concept The conference aims to initiate a dialogue between the two communities on the concept as well as the potential for reconciliation and cooperation in Cyprus today: at a time when working groups and technical committees are engaged in a dialogue preparing the ground for the face to face meeting between the leaders of the two communities, academics, researchers, activists and concerned citizens cannot stand by and watch; they need to find ways to constructively engage in the debate over the future of Cyprus and contribute to building trust, communication and understanding between the two communities. The conference proposes to ...


Standing Back From The Forest: Justiciability And Social Choice, Maxwell L. Stearns Jun 2008

Standing Back From The Forest: Justiciability And Social Choice, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.


The Remand That Made The Court Expand, Maxwell L. Stearns Jun 2008

The Remand That Made The Court Expand, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.


The Scope Of Section 1985(3) In Light Of Great American Federal Savings And Loan Association V. Novotny: Too Little Too Late?, Taunya Lovell Banks Jun 2008

The Scope Of Section 1985(3) In Light Of Great American Federal Savings And Loan Association V. Novotny: Too Little Too Late?, Taunya Lovell Banks

Taunya Lovell Banks

No abstract provided.


The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns May 2008

The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns

Maxwell L. Stearns

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the ...


Grounded History: A Keynote Address To The 14th Annual Massachusetts Statewide Undergraduate Research Conference, Amilcar Shabazz May 2008

Grounded History: A Keynote Address To The 14th Annual Massachusetts Statewide Undergraduate Research Conference, Amilcar Shabazz

Amilcar Shabazz

No abstract provided.


Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins Mar 2008

Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins

Ira P. Robbins

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of ...


Suicide Attacks And Islamic Law, Muhammad Munir Dr. Mar 2008

Suicide Attacks And Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

Suicide attacks are a recurrent feature of many conflicts. Whereas warfare heroism and martyrdom are allowed in certain circumstances in times of war, a suicide bomber might be committing at least five crimes according to Islamic law, namely killing civilians, mutilating their bodies, violating the trust of enemy soldiers and civilians, committing suicide, and destroying civilian objects or properties. The author examines such attacks from an Islamic jus in bello perspective.