Comparative and Foreign Law Commons^™

Unraveling The International Law Of Colonialism: Lessons From Australia And The United States, Robert J. Miller, Harry Hobbs

Michigan Journal of Race and Law

In the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, …

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric

Michigan Journal of Race and Law

Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …

Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn

Michigan Journal of Race and Law

With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on …

Determining The (In)Determinable: Race In Brazil And The United States, D. Wendy Greene

Michigan Journal of Race and Law

In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are …

Gitano Legal Codes: Social Change, Ngo's, And External Legal Systems' Influence On Governance Of Spanish Roma Communities, Jennifer Hu Corriggio

Michigan Journal of Race and Law

Gitanos are the Roma, otherwise known as Gypsies, of Spain that are predominantly concentrated in the southern province of Andaluda. Although the Roma are Europe's largest transnational minority, very little efforts have been made to understand their legal systems. Additionally, due to their long histories of oppression in Europe and internal legal codes that discourage sharing details of their legal systems with outsiders, their legal systems are particularly difficult to understand and for the most part, remain enigmatic and misunderstood. This Article analyzes the historical factors affecting the development of the Gitano legal system by using a horizontal axis metaphor, …

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

Land And Liberation: Lessons For The Creation Of Effective Land Reform Policy In South Africa, Hasani Claxton

Michigan Journal of Race and Law

Based upon the premise that land reform is essential to creating socio-economic equality, easing racial tensions and stemming the tide of violence in South Africa, this note will provide suggestions for effective land reform policy. To accomplish this, this Note will examine the paths taken by several other transitional African governments in land reform policy. It will attempt to extract practical lessons from their experiences and apply them towards the development of effective land redistribution policy in South Africa. Part I of this note will provide a historical overview of colonialism and land law in Africa. Part II will examine …

Striking The Rock: Confronting Gender Equality In South Africa, Penelope E. Andrews

Michigan Journal of Race and Law

This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime. The author argues that, although South African women have benefited from the global …

Children's Rights And Family Autonomy In The South African Context: A Comment On Children's Rights Under The Final Constitution, Tshepo L. Mosikatsana

Michigan Journal of Race and Law

This Article investigates the nature and extent of the protection granted to children's rights in the South African Constitution. It concludes that the child-centered approach of the Constitution entitles children, as independent actors, to certain fundamental rights. Acknowledging both the parent-centered nature of the existing South African legal framework and the entrenched support for practices, many rooted in indigenous law and tradition, that contribute to the oppression of children, the author argues that the constitutionalization of these rights will contribute to the betterment of children in South Africa, proving to be more than mere moral exhortation. Under apartheid in South …

Can Money Whiten? Exploring Race Practice In Colonial Venezuela And Its Implications For Contemporary Race Discourse, Estelle T. Lau

Michigan Journal of Race and Law

The Gracias al Sacar, a fascinating and seemingly inconceivable practice in eighteenth century colonial Venezuela, allowed certain individuals of mixed Black and White ancestry to purchase "Whiteness" from their King. The author exposes the irony of this system, developed in a society obsessed with "natural" ordering that labeled individuals according to their precise racial ancestry. While recognizing that the Gracias al Sacar provided opportunities for advancement and an avenue for material and social struggle, the author argues that it also justified the persistence of racial hierarchy. The Article concludes that the Gracias al Sacar, along with their present-day …

Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham

Michigan Journal of Race and Law

As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …

A Country Within A Country: Redrawing Borders On The Post-Colonial Sovereign State, Suzan Dionne Balz

Michigan Journal of Race and Law

This Essay seeks to identify the conflict that exists between the demands for self-governance by Canada's First Nations and the interests of the Canadian state. The author elucidates this conflict by identifying two major differences between the perspectives of Canada's First Nations' demands for self-governance and the interests of the Canadian state: the privileging of the collective versus the privileging of the individual, and the two very different notions of "territory." The author concludes that the doctrine of sovereign statehood as developed out of European Nationalism stands as an obstacle to the self-determination of non-western peoples such as the First …

Toward A South African Administrative Justice Act, Michael Asimow

Michigan Journal of Race and Law

Section 33 of South Africa's Constitution provides fundamental principles of administrative justice. It also requires Parliament to adopt an Administrative Justice Act. This Article contends that without enactment of such legislation Section 33 will be ineffective in practice and may prove to be an obstacle to achieving the economic and social objectives of the Constitution. In addition, such legislation is essential to preserving the legitimacy and the effectiveness of the Constitutional Court.

Watching The Watchdog: Security Oversight Law In The New South Africa, Christopher A. Ford

Michigan Journal of Race and Law

This Article attempts to assess the experiences of post-apartheid South Africa in the realm of national security law by examining key issues from constitutional, statutory, and policy perspectives. It observes that South Africans now have a great "window of opportunity" that allows them to establish the habits and mores necessary to a working security oversight regime, and argues that the way in which South Africa strikes a balance between the requirements of national security and the preservation of personal liberties is of enormous importance to the Republic's future. It further contends that South Africa's choices in this arena could have …

South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy

Michigan Journal of Race and Law

The road to democracy for South Africa was based on compromise. One of the most significant compromises made by the negotiators was the acceptance of an amnesty process culminating in the passage of the Promotion of National Unity and Reconciliation Act of 1995. The Act grants full indemnity from criminal and civil prosecution to anyone affiliated with a political organization who committed an "act associated with a political objective" and who fully discloses all relevant facts. The purpose of the Act is twofold: to establish the "truth" about the apartheid past and to promote "reconciliation" among South Africans. Unfortunately, such …