Law Commons^™

Political Institutions And Judicial Role In Comparative Constitutional Law, David Landau

Scholarly Publications

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombian parties are unstable and poorly tied to civil …

Human Trafficking For Sexual Exploitation At World Sporting Events, Victoria Hayes

Chicago-Kent Law Review

Many members of the international community fear that world sporting events, such as the Olympics and the World Cup, create surges in human trafficking for sexual exploitation, causing women and girls to be exploited for commercial sex while the rest of the world celebrates athleticism and sport. These fears have sparked heated debate about the measures hosting countries should take to prevent human trafficking at these events and the role prostitution policies play in combating human trafficking. In the lead-up to the 2010 Olympics in Canada and the 2010 World Cup in South Africa, politicians in both countries proposed legalizing …

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi

PIJIP Faculty Scholarship

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements.

An Analysis Of South Africa’S Mental Health Legislation, Natalie Latoya Mccrea

Legal Writing Competition Winners

If one were to measure a society’s health by its historical environment, then something can indeed be said of South Africa. This nation is known for its long abhorrent history with apartheid entrenched with a political and human rights struggle. In 1995, the world witnessed the evisceration of apartheid and the birth of a new democratic South Africa. In light of the struggle endured by a visible portion of the South African population, a question asked is, what about the forgotten and somewhat invisible individuals, those who suffer with mental illness. The purpose ­of this work is to discuss South …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

All Faculty Scholarship

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, David Schneiderman

David Schneiderman

It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This paper explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa’s plan to generate a new black middle class via a program of Black Economic Empowerment, it turns out, was a contributing …

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Michigan Journal of International Law

Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Articles

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

The Full Realization Of Our Rights: The Right To Health In State Constitutions, Cynthia Soohoo, Jordan Goldberg

Case Western Reserve Law Review

No abstract provided.

Betting On Dog Racing. The Next Legalised Gambling Opportunity In South Africa? A Cautionary Note From The Regulation Of Greyhound Racing In Great Britain, Marita Carnelley

UNLV Gaming Law Journal

This article commences with a brief overview of the history of dog racing in South Africa. It provides a synopsis of South Africa’s current legal position on dog racing and the betting thereon. The main question this article addresses is whether there is any policy reason why dog racing and wagering should not be legalised and regulated. Furthermore, some comments are included discussing how such regulation should fit into the broader existing gambling regulatory framework should the legislature make the decision to legalise dog racing and wagering.

The article concludes with a discussion of the greyhound racing industry in Britain …

International Law And African Judiciaries: The Example Of South Africa, Erika George

Faculty Scholarship

In recent years, commentators have questioned the extent to which African courts would rely upon foreign law or resort to rules of international law in their domestic decision making. I Comparatively, the African continent offers an interesting and important point of departure for exploring the influence of international law on domestic legal systems. While Africa boasts a number of new constitutional democracies, Africa is also home to a number of countries that remain burdened by colonial legacies and conflict.

It would not be unreasonable to expect international and foreign law to meet with considerable resistance or to be rejected as …

The Education And Licensing Of Attorneys And Advocates In South Africa, Peggy Maisel

Faculty Scholarship

This article explores the current organization of the South African bar and describes the legal education system and the licensing requirements for both attorneys and advocates, as well as those for foreign attorneys. Interspersed throughout the article are discussions of the system’s strengths and weaknesses, particularly in light of the transformation required after the end of apartheid, including some of the key challenges still facing South Africa.

A Bittersweet Heritage: Learning From The Making Of South African Legal Culture, Stephen Ellmann

Articles & Chapters

This essay responds to Martin Chanock's argument that race tainted the entire enterprise of South African judging. It seeks to understand how that could have been so, and looks to such driving forces as whites' guilt, denial, identity-building, self-protection, and legitimation for explanations. Then it asks whether an institution so tainted should now be altogether abandoned as part of the rebuilding of post-apartheid South Africa. The essay answers that much should be changed, but that the existence of a judiciary laying claim to a special expertise and responsibility in interpreting law and protecting rights a key heritage of the old …

In Praise Of Martin Chanock, Stephen Ellmann, Heinz Klug, Penelope Andrews

Articles & Chapters

No abstract provided.

Evaluating South Africa's Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan Marshfield

Jonathan Marshfield

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Bernadette Atuahene

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …