Comparative and Foreign Law Commons^™

Separate And Unequal: Promoting Racial Equity In Public Schools In The United States And South Africa, Paige Sferrazza

St. John's Law Review

(Excerpt)

On January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court’s new conservative majority, where they “pose the gravest threats yet” to over …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen

Seattle University Law Review

Through an in-depth examination of Hernández, the Inter-American Human Rights System, and the success of Mexico’s partnership with said system, this Note will make a case for embracing human rights bodies— specifically, the Inter-American System on Human Rights—as an appropriate and necessary check on the structures that form the United States government. Part I will look closely at the reasoning and judicially created doctrine that guided the decision in Hernández, with the goal of providing a better understanding of the complicated path through the courts that led to a seemingly straightforward yet unsatisfying result. Part II will illustrate the scope …

Table Of Contents

Seattle University Law Review

Table of Contents

Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

, The American Constitution In The Cycle Of Kali Yuga: Eastern Philosophy Greets Western Democracy, Shiv Narayan Persaud

Journal Publications

This paper will explore the above-mentioned questions while taking into consideration the intent and overarching tenets of the Constitution in relation to the precepts of Kali Yuga. The hope is to generate discourse on some of the trappings of the Constitution and constitutional democracy in an ever changing and increasingly diverse and segmented society-a nation with a multiplicity of cultures with distinctive beliefs and moral systems. Emphatically stated, the intent is not to examine every article or amendment of the Constitution; this would be presumptuous. The intent is to foster an examination of the Constitution as the overall architectural framework …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam

Book Chapters

This chapter pursues that idea in three parts. Part I reviews the key contributions of The Transformation of Europe. Part II takes us back for a critical analysis of the idea of ‘constitutionalism’ as first developed by Eric Stein and then deployed by Joseph Weiler. On closer inspection, we shall see here that The Transformation of Europe may have neglected a core element of constitutional law, something this chapter terms a ‘generative space’ for law and politics. As this part further explains, recognising this generative element of constitutionalism lies at the heart of the struggle to make sense both practically …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Semi-Presidentialism Under The Indian Constitution, Khagesh Gautam

Khagesh Gautam

No abstract provided.

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

The Romanian Double Executive And The 2012 Constitutional Crisis, Vlad Perju

Vlad Perju

Assessing The Constitutionality Of Legislation: Constitutional Review In Taiwan's Legislative Yuan, Brian Christopher Jones

Brian Christopher Jones

This article examines the constitutional interpretative authority of Taiwan’s Legislative Yuan, while incorporating international viewpoints on constitutional review primarily from the United Kingdom and United States. It contends that Taiwan possesses an over-reliance on legal constitutionalism and strong judicial review, which hinders Legislative Yuan interpretative authority. Author interviews from Legislative Yuan insiders demonstrate that lawmakers and staffers may not actively be thinking about the constitutionality of the bills they are presenting, and that they possess few, if any, official consultation options when seeking advice on constitutional questions. In essence, the interviews displayed clear evidence of judicial overhang. The article further …

A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

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.

Punição E Constituição: Cinco Princípios Para O Futuro Da Democracia Brasileira (Punishment And The Constitution: Five Principles For The Future Of Brazilian Democracy), Paulo Barrozo

Paulo Barrozo

Portuguese Abstract: Publicado nos Anais da XXII Conferência da Ordem dos Advogados do Brasil realizada em 2014, este ensaio elabora cinco princípios para orientar a reforma do sistema penal brasileiro visando traze-lo ao centro da arquitetura constitucional de um país comprometido com os valores do auto-governo democrático e dos direitos individuais. English Abstract: Published in the annals of the of the Brazilian Bar Association XXII annual conference in 2014, this essay offers five principles to guide reform of the Brazilian criminal justice system in order to bring it to the center of the constitutional framework of a country committed to …

“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 …