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Comparative and Foreign Law

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Full-Text Articles in Law

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew Jan 2018

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional ...


Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale Jan 2014

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of ...


Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias Jan 2012

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean ...


China's Courts: Restricted Reform, Benjamin L. Liebman Jan 2008

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

This essay examines the development of China's courts over the past decade. Although court caseloads have increased only modestly, courts have engaged in significant reforms designed to raise the quality of their work. Yet such top-down reforms have been largely technical, and are not designed to alter the power of China's courts. Courts have also encountered new challenges, including rising populist pressures, which may undermine both court authority and popular confidence. The most important changes in China's courts have come from the ground up: some local courts have engaged in significant innovation, and horizontal interaction among judges ...


Court Reform In England, Kazimierz Grzybowski Jan 1973

Court Reform In England, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.