Law Commons^™

Why Didn't The Common Law Follow The Flag?, Christian Burset

Journal Articles

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …

The Vatican View On Sport At The Service Of Humanity, Ed Edmonds

Journal Articles

Participation in sport, particularly the opportunity for children to enjoy and learn through play, is a human right and strongly supported by the goals of Catholic social teaching and the efforts of the Olympic Movement and the United Nations. On October 5-6, 2016, the Vatican held the Sport at the Service of Humanity Conference, the first global conference on sport and faith, an initiative promoted by Pope Francis and supported by the International Olympic Committee and the United Nations. This essay focuses on the conference, its vision and goals, and a challenge to use sport to advance human development and …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and which speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of …

Lower Courts And Constitutional Comparativism, Roger P. Alford

Journal Articles

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …

"Technical" Defenses: Ethics, Morals, And The Lawyer As Friend, Thomas L. Shaffer, Robert F. Cochran Jr.

Journal Articles

This essay examines the question of lawyer-client counseling on the issue of raising "technical" defenses, such as statutes of limitations. The authors challenge the prevailing notion of American lawyers that technical defenses raise no moral issue worthy of dialogue between lawyers and clients. Looking at the history of legal ethics and modern treatment in European law, they suggest that questions of limitations do raise moral issues. They go on to explore how those moral issues ought to be discussed and decided between lawyers and clients, using the framework of lawyers as godfathers, hired guns, gurus, and friends that they laid …

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. …

Wrongful Conviction, Lawyer Incompetence And English Law - Some Recent Themes, Geoffrey Bennett

Journal Articles

Viewed from a distance the outward appearances of the English Legal System might look reassuringly stable. In fact, nothing could be further from the case. During the last ten years almost every facet of the system, even the constitutional order, has been radically overhauled, or at least significantly modified. The whole system of civil procedure has been recast, after over a hundred years of relatively little major modification, in an attempt to simplify and expedite proceedings with a new emphasis on judicial case management. Perhaps most important of all, the Human Rights Act 1998, which has been effective from October …

An Introduction To The Federal Constitutional Court, Donald P. Kommers

Journal Articles

This essay introduces the Federal Constitutional Court, briefly surveying the Court’s legal heritage, the history of its founding, its jurisdiction, and its structure.

The Basic Law: A Fifty Year Assessment, Donald P. Kommers

Journal Articles

In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany's constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in …

A Comparative Constitutional Law Canon, Donald P. Kommers, John E. Finn

Journal Articles

The article discusses what types of legal cases constitute a “canon” on American constitutional theory and comparative constitutional law, examples of case law that illustrate important developments in the two subjects. It describes the process taken by the article's authors to select a small sampling of 90 “canon” cases for their course book on American constitutional law, which is designed for the academic community and for undergraduate students enrolled in a traditional liberal arts curriculum.

Uses And Misuses Of Comparative Law In International Human Rights: Some Reflections On The Jurisprudence Of The European Court Of Human Rights, Paolo G. Carozza

Journal Articles

Virtually all of Mary Ann Glendon's work can be seen as part of a persistent effort to open some windows in the edifice of American law and allow cross-currents of foreign experience to blow fresh insight into the rooms of our republic. In her critique of contemporary strains of rights discourse in the United States, she makes the case against American insularity quite directly: "In closing our own eyes and ears to the development of rights ideas elsewhere, our most grievous loss is ... the kind of assistance ... that can be gained from observing the successes and failures of …

Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers

Journal Articles

Mein Thema läßt sich am besten als Frage formulieren: Was können wir Amerikaner von der Erfahrung der Deutschen mit dem Grundgesetz lernen? Diese Frage wurde für gewöhnlich in der anderen Richtung gestellt, näm lich: Was haben die Deutschen vom amerikanischen Verfassungsrecht ge lernt oder was sollten sie von ihm lernen?

Law And Governance Affecting The Resolution Of Academic And Disciplinary Disputes At Scottish Universities: An American Perspective, Fernand N. Dutile

Journal Articles

At the entrance to St. Mary's College, a part of the University of St. Andrews in Scotland, one encounters the opening words of the Gospel of St. John: "In principio erat verbum." Eschewing the usual translation, students there irreverently render the passage thus: "The Principal has the last word." The existence of the position of Principal in a university and the substantial power of that official cause only part of the fascination experienced by the American observer of universities in Scotland. This article will assess, from an American perspective, the law and governance affecting the resolution of academic and disciplinary …

Continuity And Rupture In "New Approaches To Comparative Law", Paolo G. Carozza

Journal Articles

In the course of this conference on "new approaches to comparative law;" it has struck me as curious that so little has been said about the "old" approaches to comparative law. In such a self-conscious effort to distinguish ourselves from our predecessors, one would expect at least some articulation of distinctive criteria, if not a full-fledged manifesto of novelty. Giinter Frankenberg gave us three ideal-type identities of the comparative lawyer; David Kennedy boxed up the old approaches in his taxonomical chart. They and others have referred to the expansion of capitalist market economics and liberal democratic political structures as the …

Law, Governance, And Academic And Disciplinary Decisions In Australian Universities: An American Perspective, Fernand N. Dutile

Journal Articles

On a bulletin board at the University of Queensland, in Brisbane, Australia appears the following warning to students: "Please don't cheat in your exams; Senate is not inclined to be merciful." The emphasis in this entreaty on the role of the University governing board reflects a major difference, although only one of them, between the American and Australian treatments of student shortcomings, academic or disciplinary.

This Article will discuss, from an American perspective, the law affecting decisions regarding academic and disciplinary matters in Australian universities. This discussion will address not only internal university governance, but also the impact of Constitutional, …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

Organic Goods: Legal Understandings Of Work, Parenthood, And Gender Equality In Comparative Perspective, Paolo G. Carozza

Journal Articles

The United States and Italy have taken quite different approaches toward providing legal protections for working parents. This Article uses a comparative perspective to highlight crucial aspects of the American legal and cultural attitudes towards parental leave. The author demonstrates how deeply rooted beliefs about equality, work, and family life have influenced the development of parental leave law. In particular, the Article describes how Italian law rests on notions of fundamental social equality, as well as on views concerning the importance of the interests of children and the family. As a result of this broad conception of the interests involved, …

National Socialism And The Rule Of Law, Donald P. Kommers

Journal Articles

Ingo Muller's book, originally published in 1987 as Furchtbare Juristen: Die unbewaltigte Vergangenheit unserer Justiz (literally "Dreadful Jurists: The Remorseless Past of Our Judiciary"), describes the moral collapse of the German legal profession and its role in facilitating the construction and maintenance of the Nazi regime. Gracefully translated by Deborah Lucas Schneider, Hitler's Justice seeks, first, to show how legal professionals betrayed their trust as lawyers, prosecutors, and judges and, second, to assess the degree to which Germany in the postwar period reformed its legal system, purged the judiciary of former Nazis, and rededicated itself to the rule of law. …

Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes

Journal Articles

England's historical and current synthesis of Church and State differs greatly from other European and American experiences. It contrasts sharply with the path taken by most states, which chose to cope with religious pluralism by privatizing religion and by trying to base public life on secular views of human nature. This paper reviews the unique inception, and continuance, of the church-state throughout English history. It also reviews the unique manner in which England chose to deal with religious pluralism while maintaining its established church. After reviewing the English experience of establishment of religion, this paper concludes that the total wall …

German Constitutionalism: A Prolegomenon, Donald P. Kommers

Journal Articles

This essay sets out to describe the main features of German constitutionalism, and it concludes by drawing some comparisons with the United States. The term "constitutionalism," however, suffers from the vice of vagueness. As Gerhard Casper has written, "it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain." Any attempt to explore the contours and roots of German constitutionalism in the global sense suggested by Casper's comment would be a major undertaking extending far beyond the limits of this study. As used here the term shall be limited to …

West German Constitutionalism And Church-State Relations, Donald P. Kommers

Journal Articles

The complex structure of church-state relations in West Germany arises out of numerous provisions of the Basic Law that combine features of both separation and accommodation. The Basic Law's separationist features are expressed in various guarantees of religious liberty and in the ban on the establishment of a state church. Its accommodationist features appear in constitutional provisions on religious education as well as in articles, taken over from the Weimar Constitution, that confer upon the established churches a special juridical status enjoyed by no other nongovernmental entity. The arguably diverse goals of the religion clauses are difficult to reconcile, creating …

Foreword, Donald P. Kommers

Journal Articles

Professor Zeidler's article appears in the sixty-second volume of the Notre Dame Law Review, in English, for the first time. It is the most comprehensive and up-to-date treatment of the Federal Constitutional Court's decisional procedures to appear so far in an American law review. It should interest students of comparative constitutional law as well as American scholars alarmed by the United States Supreme Court's claims to finality or exclusivity in constitutional interpretation. By the use of certain decisional modes described by President Zeidler, the German Court provides the legislature with considerable leeway in meeting its constitutional obligations. In doing …

Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers

Journal Articles

In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension …

Conservation, Control And Heritage - Public Law And Portable Antiquities, Geoffrey Bennett, C. Brand

Journal Articles

"There must be a beginning of any great matter, but the continuing unto the end until it be thoroughly finished yields the true glory." With this quotation from Sir Francis Drake begins the first Annual Report of the Trustees of the National Heritage Memorial Fund: HMSO July 22, 1981. As the Trustees themselves observed: "The national heritage of this country is remarkably broad and rich. It is simultaneously a representation of the development of aesthetic expression and a testimony to the role, played by the nation in world history... But this national heritage is constantly under threat." Part of that …

Power To Enforce Treaties In Australia -- The High Court Goes Centralist?, John M. Finnis

Journal Articles

At first glance, the decision of the High Court of Australia in Koowarta v Bjelke-Petersen profoundly affects the distribution of legislative power between the States and the Commonwealth of Australia. Perhaps that first impression should be somewhat qualified. But there seems no good reason to doubt what Wilson J (dissenting) said about its possible implications for the exercise of State legislative power.

Comparative Constitutional Law: Casebooks For A Developing Discipline, Donald P. Kommers

Journal Articles

Comparative constitutional law is a developing area of legal scholarship. One sign of this development is the recent appearance of two casebooks, both published in 1979. Comparative Constitutional Law: Cases and Materials by Mauro Cappelletti and William Cohen, focuses primarily on the procedural rights of defendants from the United States and nine European jurisdictions. Comparative Constitutional Law. Cases and Commentaries by Walter F. Murphy and Joseph Tanenhaus, examines the constitutional interpretation of a large number of substantive issues in six contemporary constitutional democracies. Reviewing the two books together provides an opportunity not only to compare them as teaching tools but …

Professional Independence And The Associate In A Law Firm: A French Case Study, Tang Thi Thanh Trai Le

Journal Articles

In June 1977, as a result of a case brought before the Tribunal de la Seine, a "mini-revolution" erupted in French legal circles. A young woman associate of a law firm was discharged at mid-month and paid half (F. 1250) her monthly salary. Mme X considered her dismissal improper and filed a complaint with the Bdtonnier (President) of the Paris Bar. After a hearing, the Conseil de l'Ordre (Executive Committee of the Bar) advised the firm to pay Mme X an additional F. 1250 in settlement. Not satisfied, Mine X took her case to the Tribunal de la Seine requesting …