Law Commons^™

The Urban Situation: Cities’ Place In Decentralized Government Frameworks, Michael R. Miller

Michael R Miller

This article compares how several developing, emerging market, and former socialist countries' laws classify or rank city governments in relation both to other tiers of subnational government (e.g., state-, province-, and county-level governments) and to other cities. It primarily focuses on the laws of Brazil, Argentina, Chile, Ghana, Senegal, Nigeria, Kenya, India, Pakistan, Nepal, Egypt, Iran, Morocco, China, Vietnam, Philippines, Russia, Poland, and Kazakhstan.

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin

Tom Ginsburg

Abstract: It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does through not through the courts but through the legislative process, in which formal requirements of constitutional review …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Taxing Offshore Transactions In India And The Territoriality Clause - A Case For Substantial Constitutional Limitations On Indian Parliament's Power To Retrospectively Amend The Income Tax Act, Khagesh Gautam

Khagesh Gautam

No abstract provided.

“A Pointless Legal Revolution? Constitutional Supremacy And Eu Membership In Spain, 1978-2014”, Antonio-Carlos Pereira-Menaut

antonio-carlos pereira-menaut

This topic belongs to history. After Franco’s death (1975) Spain embarked on a ‘legal revolution’ that, if pressed to its extremes, could be hardly compatible with European integration. Understandably, the Spaniards throve to create not just a new constitution but also a whole new legal order, with the following traits:

First, legal monism, and pyramid-like shape. Second, every legally relevant thing should be traceable back to the Constitution, that would legitimate and pervade all laws, by-laws, decrees, orders, administrative acts and judicial rulings. Ideally, every law, act or verdict would be but a development of the Constitution. Third, the border …

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Lili Levi

Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20^th Century regulation poorly fitted …

The Abolition Of The Mandatory Death Penalty In The Commonwealth: Recent Developments From India And Bangladesh, Andrew Novak

Andrew Novak

India and Bangladesh are following the Commonwealth-wide trend toward discretionary death penalty regimes and away from the common law mandatory death penalty. This case note analyzes three recent decisions of the Supreme Court of India and the Bangladesh Appellate Division invalidating mandatory death sentences.

Andrew Novak is an adjunct professor of law at American University Washington College of Law, and an adjunct professor of criminology, law, and society at George Mason University. He is the author of The Global Decline of the Mandatory Death Penalty: Comparative Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Ashgate 2014) and The …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

The Eu’S Accession To The European Convention On Human Rights: An International Law Perspective, Jed Odermatt

Jed Odermatt

Article 6(2) of the Treaty on European Union establishes that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to Convention. Taking this draft Accession Agreement as a starting point, this paper examines the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Right To An Exclusively Religious Education – The Ultra-Orthodox Community In Israel In Comparative Perspective, Gila Stopler

Gila Stopler

The ultra-Orthodox Jewish community in Israel has its own separate education system which is funded by the state and in which boys are given an exclusively religious education with almost no exposure to secular subjects or to civic education. At the same time that the Israeli Supreme Court was scheduled to rule that the state may not continue to fund ultra-Orthodox private schools that do not teach the national core curriculum the Israeli parliament passed the Unique Cultural Educational Institutions Act which upholds the right of the ultra–Orthodox community to give their boys an exclusively religious education funded by the …

State Constitutions And The Basic Structure Doctrine, Manoj Mate

Manoj S. Mate