Law Commons^™

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

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. …

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

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Mark P Nevitt

The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear–until recently.A federal district court ruled …

Ensayo Sobre La Nueva Ley Universitaria 30220, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

No abstract provided.

Plead Guilty, Without Bargaining: Learning From China’S “Summary Procedure” Before Enacting Indonesia’S “Special Procedure” In Criminal Procedure., Choky Risda Ramadhan Mr.

Choky Risda Ramadhan Mr.

Because Indonesian courts are increasingly overrun with criminal cases, Indonesian lawmakers recently introduced a criminal procedure bill to include “special procedure” (jalur khusus), a procedure that allows defendants to plead guilty in order to increase efficiency. Unlike plea-bargaining in the U.S., this procedure more resembles China’s “summary procedure,” which is solely conducted by a judge, not negotiated independently by prosecutors and defendants. Before enacting the provision of special procedure, however, Indonesian lawmakers should learn from China’s successes and failures implementing summary procedure. While this procedure resulted in increased efficiency in China, it did not provide for defense counsel, and …

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 …

Cuba And China: A Comparative Study Of Digital Oppression, Katharine M. Villalobos

Katharine M. Villalobos

The Digital Age has introduced a new form of expression that totalitarian states are struggling to silence. With social sharing websites like Twitter and Youtube, political dissidents living under oppressive governments can expose governmental abuse to web-users worldwide in a matter of seconds. However, while digital media has proved more difficult to control than traditional, non-electronic media, dictatorships like Cuba and China are resolved to prevent its inhabitants from freely using and expressing themselves on the Internet—even if that means violating their obligations as signatories of the International Covenant on Civil and Political Rights (ICCPR).

Both Cuba and China are …

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

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 …

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 …

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 …

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 …

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

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 …

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, …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen