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Full-Text Articles in Law

The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

Scholarly Works

Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


Veils, Politics, And Constitutionalism, Jill Goldenziel Feb 2012

Veils, Politics, And Constitutionalism, Jill Goldenziel

Schmooze 'tickets'

No abstract provided.


Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli Jan 2012

Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts. Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons ...


American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries Jan 2012

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for ...


Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant Jan 2012

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.


Constitutional Rigidity In Kosovo: Significance, Outcomes, And Rationale, Fisnik Korenica, Dren Doli Jan 2011

Constitutional Rigidity In Kosovo: Significance, Outcomes, And Rationale, Fisnik Korenica, Dren Doli

Pace International Law Review Online Companion

This article discusses the issue of constitutional rigidity from the perspective of the Constitution of Kosovo. At the outset, the article analyzes the amendment procedure within the Constitution and its nature in terms of the actors and procedures involved. Next, the article questions the nature of constitutional rigidity in Kosovo and seeks to address the position of veto players. Arguing that the Constitution of Kosovo is rather rigid, the article then questions the significance of constitutional rigidity in light of the model of separation of powers, human rights, and the Constitutional Court’s constitutional “updating” role. The article concludes that ...


Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt Jan 2010

Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt

Faculty Working Papers

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to ...


Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt Jan 2010

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law ...


The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will Jan 2010

The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will

Articles

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a "success story." As is well known, it was never meant to last - the very term "Grundgesetz" (basic law) indicated that it was intended ...


Separation Of Powers In Brazil, Keith S. Rosenn Jan 2009

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.


Lower Courts And Constitutional Comparativism, Roger P. Alford Jan 2008

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 ...


Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah Jan 2007

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a ...


Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman Jan 2006

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Scholarly Works

No abstract provided.


Note: Legal Excisions: The Rights Of Foreigners In Japan, Timothy Webster Jan 2006

Note: Legal Excisions: The Rights Of Foreigners In Japan, Timothy Webster

Faculty Publications

This article examines various moments in the constitutional rights of foreigners in Japan. Beginning with the drafting of the Japanese Constitution, it shows how Japanese members of the drafting committee did not passively accept whatever their American counterparts “foisted” on them, but quite deliberately sculpted and limited the reach of the Constitution through word choice and selective translation. It then examines several lawsuits, from the 1970s to the 2000s, where foreigners have asserted various rights in Japanese courts. In the absence of constitutional rights, foreigners must rely on Japanese statutory law, guided by international law, to buttress their claims to ...


Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott Jan 2006

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal ...


Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine Jan 1998

Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine

Scholarly Works

In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the ...


The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot Jan 1996

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These ...


The Extraordinary Counter-Majoritarian Power Of The New Supreme Court Of Nepal, Richard Stith Apr 1995

The Extraordinary Counter-Majoritarian Power Of The New Supreme Court Of Nepal, Richard Stith

Law Faculty Publications

No abstract provided.


The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers Jan 1994

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

Journal Articles

No abstract provided.


The Tribunal In Albania, John Paul Jones Apr 1993

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.


Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches Jan 1993

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Articles

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in ...


Brazil's New Constitution: An Exercise In Transient Constitutionalism For A Transitional Society, Keith S. Rosenn Jan 1990

Brazil's New Constitution: An Exercise In Transient Constitutionalism For A Transitional Society, Keith S. Rosenn

Articles

No abstract provided.


The Constitution And On-Site Inspection, Kevin C. Kennedy Jan 1988

The Constitution And On-Site Inspection, Kevin C. Kennedy

Faculty Publications

No abstract provided.


Government Responsibility In Tort Vii, Edwin Borchard Jan 1928

Government Responsibility In Tort Vii, Edwin Borchard

Faculty Scholarship Series

In addition to the historical doctrines justifying government irresponsibility, already discussed, it seems proper to review the more modern doctrines and theories advanced in the nineteenth and twentieth centuries either to deny or to support the responsibility of the State or other public corporation for the torts of its officers. The recognition of governmental responsibility for the torts of officers required certain political and social conditions which, until comparatively modern times, hardly prevailed in the western world. It was necessary for political theory to mature to a position according the individual a large measure of recognition for his personal rights ...


Sociological Interpretation Of Law, Joseph H. Drake Jan 1918

Sociological Interpretation Of Law, Joseph H. Drake

Articles

It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New ...