Comparative and Foreign Law Commons^™

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Michigan Law Review

The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in postcrisis and transitional societies. The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. In the wake of September 11, international and national-security experts also want to promote …

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak

Michigan Law Review

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked …

The Absentee Ballot And The Secret Ballot: Challenges For Election Reform, John C. Fortier, Norman J. Ornstein

University of Michigan Journal of Law Reform

Reforms in the recently enacted federal election reform legislation primarily address improving voting at a polling place, but there is a growing share of the electorate who vote away from the polling place through increased use of absentee ballots and vote-by-mail systems. Voters who vote away from the polling place do not have the same protections as those at the polling place. In particular, these voters do not have a secret ballot, as any ballot cast without a drawn curtain behind oneself is potentially subject to coercion, vote buying and fraud.

This Article looks at the tension between the Australian …

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

Inordinate Chill: Bits, Non-Nafta Mits, And Host-State Regulatory Freedom- An Indonesian Case Study, Stuart G. Gross

Michigan Journal of International Law

A number of structural factors, which are beyond the immediate scope of this Note, may influence less wealthy countries to cave in to investor threats of arbitration, as Indonesia appears to have done here. However, their hesitancy to fight may also be based, in part, on an inadequate understanding of the applicable law, which allows investors to inordinately influence host-State decisions through threats of arbitration that have little or no chance of success. In regard to the mining companies' threat, this at least appears to be the case. As this Note will demonstrate, the GOI could have likely beaten the …

The Marriage Dower: Essential Guarantor Of Women's Rights In The West Bank And Gaza Strip, Heather Jacobson

Michigan Journal of Gender & Law

This Article evaluates the impact that eliminating or reducing the marriage dower would have on the well-being of Muslim women in the West Bank and Gaza Strip. Although Palestinian women's rights organizations seek to eliminate dower on the grounds that it is a "burdensome custom" that is "inconsistent with the intifada's stated goal of improving women's status," in fact, the interaction between dower and other laws relating to marriage and divorce is such that the majority of women would be materially harmed by its discontinuance. Therefore, while the movement to eliminate dower may benefit the financially secure upper class women …

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 …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Michigan Journal of International Law

To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal …

The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie

Michigan Journal of International Law

This Note analyzes the Hungarian Status Law in the context of general principles of international law. By specifically examining the Hungarian minority, this Note questions whether the implementation of the Hungarian Status Law is the most effective method of ensuring the protection and respect of the Hungarian minority in Eastern Europe. The conclusion argues that the unilateral approach of the Hungarian Status Law should be abandoned for a bilateral approach to secure rights for the Hungarian minority.

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 …

Competition, Corporate Responsibility, And The China Question, Jospeh Vining

Other Publications

"Corporate responsibility" is not a peripheral matter. It is at the core of all decision-making on behalf of business corporations under American law. This paper examines the effort to add an exemption for "business" in corporate form to the exemptions from ordinary responsibility that are seen in other areas of activity - e.g., for the military, for lawyers in adversarial litigation, or for investigators in scientific research. It looks at a number of well known cases and points to the often neglected relevance of both the criminal law applicable to corporations as such, and the evolving professional responsibility of corporate …

Internationalization Of Labor Disputes: Can Adr Mechanisms Help?, Theodore J. St. Antoine

Book Chapters

My task is to assess the ways in which ADR procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state or another sanction-imposing body. Both mediation and arbitration are included among such methods. In mediation, the neutral aims for the parties to agree on a mutually acceptable solution. In arbitration, the neutral imposes a solution after presentations by the contending parties. A third term - conciliation - is sometimes used and generally …

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …