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Articles 1 - 26 of 26
Full-Text Articles in Entire DC Network
A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes
A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes
Teresa M. G. Da Cunha Lopes
O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.
Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain
Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain
Claire Germain
The CISG (Convention on Contracts for the International Sale of Goods) has remarkably facilitated commercial transactions across boundaries and different legal systems. This article, to be published as a Book Chapter, discusses some possible difficulties caused by using different languages, or words which might be interpreted differently, and some solutions and ways to deal with these difficulties. Three kinds of issues have appeared: the first has to do with drafting issues, and the peculiar problem of the six official languages of the Convention. The second set of issues deals with the interpretation of the Convention and the so-called homeward trend. …
G. Delledonne, G. Martinico, P. Popelier (Eds), Re-Exploring Subnational Constitutionalism, Special Issue. Perspectives On Federalism, Vol. 6, Issue, 2014, Giuseppe Martinico, Giacomo Delledonne, Patricia Popelier
G. Delledonne, G. Martinico, P. Popelier (Eds), Re-Exploring Subnational Constitutionalism, Special Issue. Perspectives On Federalism, Vol. 6, Issue, 2014, Giuseppe Martinico, Giacomo Delledonne, Patricia Popelier
Giuseppe Martinico
This special issue of the journal, which collects some of the papers presented at the latest World Congress of the International Association of Constitutional Law in Oslo, is entirely devoted to subnational constitutionalism. Its approach is mainly comparative and interdisciplinary. The symposium is divided into three sections: theoretical problems, national reports, and comparative analyses. The papers deal with ever-recurring issues, as well as with emerging discussions (e.g., the debates about secession in Scotland and Catalonia, and the drafting of a “Charter” for Flanders).
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
Joshimar De la cruz Aroni
Constitutional Law
Brian H. Stuy (With Foreward By David Smolin), Open Secret: Cash And Coercion In China's International Adoption Program, Brian H. Stuy
Brian H. Stuy (With Foreward By David Smolin), Open Secret: Cash And Coercion In China's International Adoption Program, Brian H. Stuy
David M. Smolin
Open Secret is a documentation and analysis of seriously abusive practices in China's intercountry adoption system. The article describes three kinds of abuses: baby-buying programs at Chinese orphanages, "confiscations" of children by population control officials, and "education" programs in which orphanages falsify the ages and family situation of teenagers in order to make them paper eligible for intercountry adoption. The article questions the effectiveness of the Hague legal regimen for intercountry adoption, particularly in the context of China. A brief foreward by David Smolin places Brian Stuy's extensively-researched article about adoptions from China in a broader context.
Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry
Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry
Faculty Scholarly Works
The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to greater success …
Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson
Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson
Akron Law Faculty Publications
With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.
U.S. federal and state courts are presumed …
Desvelando Los Intereses Ocultos: Neoliberalismo En La Nueva "Defensa Posesoria Extrajudicial", Joshimar De La Cruz Aroni
Desvelando Los Intereses Ocultos: Neoliberalismo En La Nueva "Defensa Posesoria Extrajudicial", Joshimar De La Cruz Aroni
Joshimar De la cruz Aroni
Visión crítica de la Nueva Defensa Posesoria Extrajudicial
Ensayo Sobre La Nueva Ley Universitaria 30220, Joshimar De La Cruz Aroni
Ensayo Sobre La Nueva Ley Universitaria 30220, Joshimar De La Cruz Aroni
Joshimar De la cruz Aroni
No abstract provided.
The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner
The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner
All Faculty Scholarship
This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do.
One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery, cost indemnity …
Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler
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
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 …
Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins
Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins
Faculty Publications
Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Dorit R. Reiss
The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …
Sources Of Law And Pluri-Lingualism (In Greek), Nikitas E. Hatzimihail
Sources Of Law And Pluri-Lingualism (In Greek), Nikitas E. Hatzimihail
Nikitas E Hatzimihail
This study (which replaces an earlier article published at the law journal Χρονικά Ιδιωτικού Δικαίου - Chronicles of Private Law, vol. 12 (2012)) examines issues arising from the translation of authoritative legal texts (constituting sources of law in the legal system under consideration), with an emphasis on legislation.
The first part of the article examines instances where authoritative texts of the same legal instrument co-exist in two or several languages, notably in the case of international uniform law instruments, such as the Vienna Convention on the International Sale of Goods (CISG).
The second part addresses instances of an instrument being …
A Preliminary Look At State Structures For Regulating Financial Services, Elizabeth F. Brown
A Preliminary Look At State Structures For Regulating Financial Services, Elizabeth F. Brown
Elizabeth F Brown
Within the past thirty-five years approximately fifty nations have consolidated their financial regulatory agencies into either a single integrated agency or into two semi-integrated agencies. The United States has resisted this trend, due in part to a concern that the costs of such significant consolidation would exceed its benefits. The existing studies that compare the costs of the consolidated regulators around the world with the United States regime have often been discounted because they have been unable to control for differences in culture and regulatory intensity between those other countries and the United States. This article attempts to address this …
Uganda’S New Sentencing Guidelines: Introduction, Initial Assessment And Early Recommendations, David B. Dennison
Uganda’S New Sentencing Guidelines: Introduction, Initial Assessment And Early Recommendations, David B. Dennison
David Brian Dennison
In April of 2013 the Chief Justice of Uganda issued the Constitution (Sentencing Guidelines for the Courts of (Practice). In doing so Uganda joined a movement of criminal justice reform that cuts across anglophone jurisdictions. This article includes a general background on the emergence of sentencing guidelines and the two primary structural approaches to sentencing guidelines design.
This article’s primary purpose is to offer a preliminary critical assessment of Uganda’s Sentencing Guidelines. An overview of key features in the Sentencing Guidelines serves as a prelude to the analytical content.
Uganda’s Sentencing Guidelines are a commendable effort. They are more than …
The Political Question Doctrine In Uganda: A Reassessment In The Wake Of The Cehurd, David B. Dennison
The Political Question Doctrine In Uganda: A Reassessment In The Wake Of The Cehurd, David B. Dennison
David Brian Dennison
The political question doctrine protects certain governmental actions and decisions from judicial review. The doctrine emerged in the United States in the early 19th Century. It reached Ugandan jurisprudence in Ex parte Matovu in 1966. After Matovu, the doctrine existed in relative obscurity in Uganda. The doctrine made a dramatic resurgence in the Constitutional Court’s judgment in Centre of Health Human Rights & Development (CEHURD) and Three Others v. Attorney General.
In CEHURD, the Constitutional Court held that the political question doctrine prevented the court from reviewing government policy concerning the provision of maternal health care. The CEHURD judgment ruffled …
Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer
Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer
David Barnhizer
None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …
The Spaghetti Bowl Revisited In The Context Of Corruption: Understanding How Corrupt Countries Could Subvert The Wto's Rule-Oriented System Through Preferential Trade Agreements, Paul Sarlo
Denver Journal of International Law & Policy
No abstract provided.
The Optimal Use Of Comparative Law, Shai Dothan
The Optimal Use Of Comparative Law, Shai Dothan
Denver Journal of International Law & Policy
No abstract provided.
Will The Child Abduction Treaty Become More Asian - A First Look At The Efforts Of Singapore And Japan To Implement The Hague Convention, Colin P. A. Jones
Will The Child Abduction Treaty Become More Asian - A First Look At The Efforts Of Singapore And Japan To Implement The Hague Convention, Colin P. A. Jones
Denver Journal of International Law & Policy
No abstract provided.
Translating Religious Principles Into German Law: Boundaries And Contradictions, Pascale Fournier, Régine Tremblay
Translating Religious Principles Into German Law: Boundaries And Contradictions, Pascale Fournier, Régine Tremblay
All Faculty Publications
First we present the basic rules of Islamic and Jewish law and the German state law that regulates them. Next we contend that the boundaries for shaping and applying religious norms are blurry. We argue that the conflicting outcomes might be explained by boundless discretion and informality in the religious adjudication process, but that this structure is not foreign to so-called secular family law. Thus, if the project of recognizing religious principles when it comes to family law is to be maintained, it must take stock of the conceptual and practical conflicts that inhere to the sphere of family law, …
A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole B. Porter
Faculty Publications
This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …
Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson
Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.
Practical politics within the US …
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Mathilde Cohen