Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

The Universal Declaration Of Human Rights At Sixty: Is It Still Right For The United States?, Tai-Heng Cheng

Tai-Heng Cheng

Many scholars and human rights advocates have hailed the Universal Declaration of Human Rights as a triumph for the human rights movement. The occasion of its sixtieth anniversary in 2008 provides pause to appraise if in fact it has been a success and whether it still is of any value to the United States. To conduct such an appraisal, this article reviewed the contemporaneous records of negotiations leading to the adoption of the Declaration by the UN General Assembly. It also reviewed the decisions of U.S. federal and state courts, the International Court of Justice, and Australian courts that have …

Federalism And The State Recognition Of Native American Tribes: A Survey Of State-Recognized Tribes And State Recognition Processes Across The United States, Alexa Koenig, Jonathan Stein

Alexa Koenig

This article provides a national overview of the legal status of state-recognized American Indian tribes—tribes that have been recognized by their respective states, but not the federal government. Part One discusses how state recognition functions within our federalist system and why it is becoming increasingly important for states and tribes today. Part Two categorizes the various recognition schemes utilized by states into state law, administrative, legislative and executive recognition processes. Part Three provides a summary of the tribes recognized by each state, each state’s regulatory approach to tribal-state relations, and any state Indian reservations. Part Four concludes with a brief …

Common Law Vs. Civil Law: La Competencia Entre Ordenamientos Jurídicos, Leysser L. Leon

Leysser L. León

La importación de modelos jurídicos estadounidenses al ordenamiento peruano, afín por tradición a la familia del derecho civil, se viene consolidando, indolentemente y casi siempre de la mano con la dependencia económica, no sólo en particulares áreas del derecho (civil, comercial, bursátil, minero, ambiental, etc.), sino en la propia enseñanza universitaria y, no menos mecánicamente, en los proyectos de códigos de ética profesional para abogados. Urge, más que nunca, una comparación jurídica crítica que subraye y prevenga de los riesgos de la globalización del derecho para los países subdesarrollados.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Daniel H. Erskine

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring the …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Legal Consciousness And Contractual Obligations., Kojo Yelpaala

Kojo Yelpaala

Legal Consciousness and Contractual Obligations Kojo Yelpaala Professor Law Pacific/McGeorge School of Law ABSTRACT The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. It does so by excavating the roots, tracking the evolution, and anatomizing the dynamics of the master narrative of the "contract" - the oath, the promise, the agreement, the …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Towards An Explicit Balancing Inquiry: R.A.V. And Black Through The Lens Of Foreign Freedom Of Expression Jurisprudence , Matthew S. Melamed

Matthew S Melamed

The article concerns the balancing inquiry that currently provides implicit structure to recent United States Supreme Court decisions concerning the constitutionality of laws banning cross burning, as exemplified in R.A.V. v. City of St. Paul and Virginia v. Black. Part I identifies the historical antipathy towards balancing inspired by the First Amendment, simultaneously considering the jurisprudential failure of First Amendment fundamentalism and the powerful ideological hold that it nevertheless still exerts. Part II briefly introduces the motivation and means by which the European Court of Human Rights and the Canadian Constitutional Court utilize explicit balancing tests in freedom of expression …

Perspectives On The Judicial Reform In Mexico, José Ramón Cossío Díaz

José Ramón Cossío Díaz

No abstract provided.

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Richard Kay

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors – social values, legal rules and judging – comprise …

Controlling The Common Law: A Comparative Analysis Of No-Citation Rules And Publication Practices In England And The United States, Lee F. Peoples

Lee Peoples

No abstract provided.

Los Modelos De Las Garantías Reales En Civil Y En Common Law. Una Aproximación De Derecho Comparado, Mauro Bussani

Mauro Bussani

The paper offers a comparative overview of the law of security rights in movable property in the civil and common law worlds. To this purpose, the paper first examines black-letter provisions, case-law, scholarly doctrines, and practices on which the laws of security rights over movables are grounded. It then proceeds to investigate the cultural, socio-economic, and policy factors that, more or less overtly, have a practical impact on the operative rules applied in the jurisdictions surveyed. As the paper shows, the consideration for these ‘hidden’ factors proves indeed crucial to the understanding of the (similarities and differences between the) ways …

The Many Faces Of Equity. A Comparative Survey Of The European Civil Law Tradition, Mauro Bussani, Francesca Fiorentini

Mauro Bussani

The paper investigates the meaning of, and the role played by equity in the continental European legal tradition. In this perspective, the article outlines the historical origins of the Western notion of equity in the Greek and Roman world, and examines how equity became a core instrument of law-making in the age of ius commune. Through the survey of French, German, and Italian law, the paper then clarifies the place of equity in the private law codes. In particular, this comparative analysis shows that, in spite of the wave of legal positivism affecting European legal thought in the XIXth-XXth centuries, …

The New Prc Limited Partnership Enterprise Law And The Limited Partnership Law Of The United States: A Selective Analytical Comparison, Thomas E. Geu, Yong Wu

Thomas E. Geu

No abstract provided.