Digital Commons Network^™

The Role Of The 'Tojisha' In Current Debates About Sexual Minority Rights In Japan, Mark J. Mclelland

Mark McLelland

‘Speaking as a tojisha’ has become an important strategy in establishing ‘correct knowledge’ about sexual minority cultures in contemporary Japan. Originally developed in a legal context where it referred to the ‘parties’ in court proceedings, in the 1970s tojisha was taken up by citizens’ groups campaigning for the right of self determination for the ‘parties concerned’ facing discrimination and has become a central concept for all minority self-advocacy groups. In the 1990s the discourse of tojisha sei (tojisha-ness) was adopted by gay rights groups and by spokespersons for lesbian and transgender communities in a battle to change public perceptions of …

Challenging Supremacy: Virginia's Response To The Patient Protection And Affordable Care Act, Matthew R. Farley

University of Richmond Law Review

No abstract provided.

Reporting The Rhetoric, Implementation Of The United Nations Convention On The Rights Of The Child As Represented In Ireland's Second Report To The Un Committee On The Rights Of The Child: A Critical Discourse Analysis, Rachel Kiersey, Noirin Hayes

Articles

Ireland’s second periodic report to the United Nations Committee on the Rights of the Child (CRC) presents the government’s case that it is succeeding in protecting and promoting the rights of all children in Ireland. This article presents a critical discourse analysis of the governments Report to the CRC. Using a refined critical discourse analysis (CDA) model, based on the framework proposed by Chouliaraki & Fairclough (1999); the linguistic structure of the Report is examined alongside consideration of the wider socio-political context in which it exists. The Report is itself a promotional genre . It lists legislative change, strategy plans …

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

Draft Of Beck Speech - 2010, Wendy J. Gordon

Scholarship Chronologically

I come here with a sense of gratitude, to the intellectually stimulating BU community of students, staff and faculty, that has taught me so much, and grateful today especially to those who made this event possible. I would like to thank you all for coming, thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher and Cornell Stinson for organizing it, and most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's immensely flattering to me having been chosen the initial recipient, and flattering to the school that Phil …

Declaration Of The Ix Indigenous Advisory Council, Ix Indigenous Fund Assembly

Latin American Energy Dialogue, White Papers and Reports

This declaration was written by the IX Indigenous Fund Assembly. It recommends changes necessary to preserve indigenous sovereignty and rights.

Moral Injury And The Puzzle Of Immunity-Violation, Jesse Gero

Philosophy Theses

The First Amendment gives U.S. citizens a Hohfeldian legal immunity that disables Congress from removing citizens’ legal liberty to criticize the government. Any attempt by Congress to remove this liberty would fail, but such an attempt would still wrong citizens. The familiar concept of claim-violation does not fully account for this wrong. Claims name actions that ought not be performed and are violated when those actions are performed. Immunities names actions that cannot be performed. Congress would wrong citizens not by doing something it ought not do but by attempting and failing to do something it cannot do. Using elements …

Hydrocarbons And The Peruvian Amazon: Overlapping Rights Or Opportunities For Sustainable Development?, César L. Gamboa Balbín, Rosemarie Avila B., Jimpson Dávila O., Asunta Santillán B., Irene Ramos Urrutia, Maria Del Rosario Sevillano, Henry O. Carhuatocto Sandoval, Graciela M. Mercedes Lu De Lama

Latin American Energy Dialogue, White Papers and Reports

This study provides an in-depth analysis of the issues surrounding hydrocarbon exploration in the Peruvian Amazon, providing a criticism of past and current energy regulation. Attention is given especially to the question of rights: Who has them? Whose rights matter more? In addition, the study offers proposals for solutions to the challenges associated with identifying energy resources in the Amazon.

"Shall Be Bound Thereby": Structural Incorporation Via Article Vi, Dean A. Cantalupo Esq.

Dean A Cantalupo Esq.

This paper argues that certain provisions of the Bill of Rights, those that pertain to the administration of justice, were incorporated in 1791 against the States via the provision in Article VI binding State judges to the Constitution.

State Constitutionalism And The Right To Health Care, Elizabeth Weeks Leonard

Scholarly Works

This Article examines state constitutions and health care rights. Notably, close to a third of states’ constitutions recognize health while the U.S. Constitution contains no reference. Ample scholarly commentary exists on the absence of a right to health care under the U.S. Constitution but little attention has been paid to state constitutional law. This Article begins by explaining the absence of a federal right and the rationale for looking to state constitutional protections for health. The Article then provides a comprehensive survey of state constitutional provisions and judicial decisions enforcing or interpreting them. The survey reveals certain common themes and …

Indestructible Unalienable Rights, Donald E. Wilkes Jr.

Popular Media

Perhaps the sublimest achievement of the Western World is the development of the notion that all human beings have immutable, imperishable basic rights, rights that trump all other interests, rights that cannot be denied or trampled upon except through injustice and barbarity. These rights of individuals include political rights, civil rights, and social rights.

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, Anew Can Of Worms And The Liberty Two Step?, Elaine Craig

Dalhousie Law Journal

The Supreme Court's recent decision inVancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights Dunmore/Baier analysis, which means that policies restricting expressive rights based on groups rather than content could be less likely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to apply the positive rights Dunmorel Baier criteria only where the claim is for an audience with the government or …

Benefits, Rights And Features Nondiscrimination Testing And Phased Retirement Programs, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Various studies indicate that formal phased retirement programs within defined benefit plans are wanted and needed by both employers and employees. Phased retirement programs may be useful for employees who want to reduce their hours during later stages of their careers, but who wish to remain in the workforce. For employers, a phased retirement program may be a useful tool to retain talented employees who may otherwise fully retire.

In designing phased retirement programs, It is not surprising that many employers wish to have significant discretion in deciding which employees they will seek to retain through a phased retirement program. …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

The Continued Need For The Voting Rights Act: Examining Second-Generation Discrimination, Jenigh J. Garrett

Saint Louis University Public Law Review

No abstract provided.

An Uncertain Future For Section 5 Of The Voting Rights Act: The Need For A Revised Bailout System, Christopher B. Seaman

Saint Louis University Public Law Review

In Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO”), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of the 2008 Term’s most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called “bailout” from continued coverage under this provision. Even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on uncertain constitutional ground.

A revised bailout system is likely the best approach for …

The Instrumental Justice Of Private Law, Alan Calnan

Alan Calnan

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called “instrumental justice.” I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids …

From Objective Right To Subjective Rights: The Franciscans And The Interest And Will Conceptions Of Rights, Siegfried Van Duffel

Siegfried Van Duffel

What are subjective rights? And what makes Will and Interest conceptions of rights into conceptions of rights? I argue that they originate in two very different natural rights theories which are, however, grounded in the same philosophical anthropology.

Right By Children?:Considering Ecec Policy In Ireland Designing Policy Tools To Give Voice, Bernie O'Donoghue Hynes, Noirin Hayes

Conference Papers

This presentation considers the design of early childhood education and care subsidies using policy design theory.

Estate Of Pew V. Cardarelli, Natallia Krauchuk

NYLS Law Review

No abstract provided.

Maine Election Law: Do Maine’S Petition Signature Requirements Deprive Third-Party Candidates Of Equal Protection And Freedom Of Association Rights?, David W. Morin

Saint Louis University Law Journal

No abstract provided.

Teaching Immigration Law And Immigrant Rights From Your Own Caseload, Bill Ong Hing

Saint Louis University Law Journal

No abstract provided.

Transsexual Law Unconstitutional: German Federal Constitutional Court Demands Reformation Of Law Because Of Fundamental Rights Conflict, Gregory A. Knott

Saint Louis University Law Journal

No abstract provided.

Exchange Of Information Agreements With Tax Havens: How Will This Affect The Rights Of Non-Resident Taxpayers And Investors?, John Mclaren

Faculty of Business - Papers (Archive)

The Organisation for Economic Cooperation and Development (OECD) appears to have been successful in convincing tax havens and countries with strict bank secrecy laws to exchange information on non-resident taxpayers, investors and businesses using their financial services. As at 18 August 2010, the OECD have confirmed that more than 320 Tax Information Exchange Agreements (TIEAs) and 150 Double Taxation Conventions that incorporate the new transparency standards have been signed between OECD member countries and non-OECD member states since 2006.531 While this situation may be good for tax administrators in the pursuit of their goal of maximising the collection of tax …

The Cultural Dimensions Of Human Rights Advocacy In The Asian Region, Vera C. Mackie

Faculty of Arts - Papers (Archive)

Wendy Brown has commented on the importance of recognising the “interval” between theory and politics, and working in the space between. She advocates refusing the “dichotomy between the local and the global, the national and the transnational, the intellectual and the practical”. Brown’s comments seem particularly apposite for the project of analysing the work of transnational advocacy networks in the Asia-Pacific region. There are significant gaps between the academic debates on human rights, the actual language and protocols of the bodies devoted to ensuring the achievement of basic human rights, and the ways in which these issues are discussed in …

The Dignity Of Voters—A Dissent, James A. Gardner

Journal Articles

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …

From Words To Worlds: Exploring Constitutional Functionality By Beau Breslin, Robert L. Tsai

Faculty Scholarship

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.

Introduction: Reproductive Rights, Human Rights, And The Human Right To Health, B. Jessie Hill

Faculty Publications

Introduction - Case Western Reserve University Law Review Symposium 2010: Reproductive Rights, Human Rights, and the Human Right to Health

Proportionality, Rationality And Review, Paul Craig

Articles by Maurer Faculty

There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages …