Digital Commons Network^™

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 …

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 …

Smoked Success? Social, Cultural, And Legal Changes In The United States, Japan, And France Have Led To A Decline In Tobacco Use. Yet, Teenagers Refuse To Budge!, Dalila V. Hoover

Dalila V Hoover

Once considered a part of everyday life, tobacco consumption has become a global public health crisis that has transcended national borders. By the end of 2011, tobacco will have killed nearly six million people, including more than 600,000 of people exposed to tobacco smoke. If current smoking patterns continue, the toll will nearly double by 2030 with more than 8 million deaths. To safeguard the public’s health, the United States, Japan, and France have taken action to change the acceptability of smoking. Although they have adopted a different approach, they have successfully altered and redefined their cultural perception of tobacco …

A Critique Of The Doctrine Of Forum Non Conveniens, Markus A. Petsche

markus a petsche

In this article, I formulate a basic critique of the doctrine of forum non conveniens. Unlike other authors, I do not focus on the numerous problems posed by the actual application of this doctrine in practice (e.g. delaying effect on proceedings, incoherent decisions, and discrimination against foreign plaintiffs). Instead, I explore the validity of the theory of forum non conveniens, i.e. the question of whether forum non conveniens – if applied in the best possible manner – can at all be a useful legal rule. My starting point is the observation that, despite the prevalence of contrary views, forum non …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

The Holocaust And Mass Atrocity: The Continuing Challenge For Decision, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article begins with an appraisal of a report published by the United States Institute for Peace and authored by the former Secretary of State, Albright, and former Secretary of Defense, Cohen. This Report generated a great deal of interest and reaction from scholars across the globe. The article will introduce the broad outline of this Report and provide a summary of the principal criticisms that it has generated. This sets the stage for approaching the problem that is sensitive to the issue that this phenomenon be explore with a view to developing usable insights and data as well as …

Sovereignty In Theory And Practice, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article deals with the theory and practice of sovereignty from the perspective of a trend in theoretical perspectives as well as the relevant trend in practice. The article provides a survey of the leading thinkers and philosophers views on the nature and importance of sovereignty. The concept of sovereignty is exceeding the complex. Unpacking its meanings and uses over time is challenging. An aspect of this challenge is that the discourse about sovereignty is vibrant in diverse policy, academic and political constituencies. At times its narratives are relatively discrete and at other times the narratives overlap with the discourses …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Localizing Religion In A Jewish State, Yishai Blank Prof.

Yishai Blank

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers—business licensing, traffic and road control, spending and more—of local authorities touch upon many of them, and …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso Professor

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Hui (Robin) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

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 …

Another Parallel With Silicon Valley: Non-Compete Clauses Under Israeli Law, Edo B. Royker

Edo B Royker

The attached Article contributes to the literature on the benefits of not enforcing non-compete provisions in fostering a start-up friendly environment. Many scholars have previously focused on this issue, but the current literature has primarily focused on comparing the state of the law between California and Boston alone. My article serves the novel function of providing a third focal point for this analysis – Israel – and provides an in depth analysis of Israeli statutory and case law on this issue. Introducing a third focal point will add empirical evidence to the debate on whether the failure to enforce such …

Electromagnetic Pulse And The U.S. Food Security Paradigm: Assumptions, Risks, And Recommendations, Maximilian Leeds

Maximilian Leeds

This paper analyzes the systemic dangers posed to the U.S. economy by an electromagnetic pulse (EMP), either naturally occurring or maliciously generated, from a food security perspective. Section I examines the modern structure of the U.S. food supply chain, analyzing the just-in-time international distribution model and criticizing it as vulnerable to systemic shock and cascade failure. Section II examines the function and history of the electromagnetic pulse, assesses its potential to serve as a catalyst for systemic breakdown in the domestic food supply chain, and explores the current state of food security planning in the United States pertaining to this …

Child Support For Adult Children, Margaret Ryznar

Margaret Ryznar

Although family law requires parents to support their minor children, the question of post-majority support—or child support for adult children—is entirely different. Some states permit this type of child support, while others do not. Those affected by this divergence in approaches include college students, unemployed people, disabled people, and of course, their parents—at a time of financial difficulty for many. The approach of each jurisdiction to this issue rests on whether the family is viewed as a social support system and whether intergenerational obligations exist. To help analyze these questions, this Article uses a comparative approach, considering the relevant law …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner

William Wagner

SUICIDE KILLING OF HUMAN LIFE AS A HUMAN RIGHT

The Continuing Devolution of Assisted Suicide Law

in the United Kingdom

PROF. WILLIAM WAGNER, PROF. JOHN KANE, AND STEPHEN P. KALLMAN

ABSTRACT

Since the beginning of time, divine, natural, and positive law traditions of the United Kingdom reflected an inviolable standard that people should not assist in the killing of human life. This article reviews and analyzes the ancient inviolable benchmark, explaining why the common and statutory law of Britain historically reflected its moral reference point to prohibit assisted suicide. We then proceed to analyze a contemporary jurisprudential shift in Britain’s …

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In this paper, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had to using lawbreaking, violence, and other outrageous acts in …

Can The “Formidable Shield” Last: A Re-Examination Of Copyright Law As A Means To Control Uncopyrighted Gray Market Goods, Ya Xia

Ya Xia

To fight against gray market goods, the trademark law leaves certain trademark owners uncovered, who then turn to copyright law for help. It is lawful in the U.S. for copyright owners to stop importation and distribution of uncopyrighted goods through attaching copyrighted accessories. Such practices have been rendered unlawful in Australia and denounced by the Supreme Court of Canada. The paper aims to discuss the illegitimacy under the U.S. law through both the statutory interpretation approach and the copyright misuse approach.

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In "You’re Creating New Categories:" Anglo-American Radical Feminism’s Constitutionalism in the Streets, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had …