Constitutional Law Commons^™

Regulation Of Standards In Technology Markets Between Competition Policy And International Trade - The Chinese And European Experience (Foreword), Paolo Davide Farah

Book Chapters

The regulation of standard setting varies significantly across regions and covering and comparing in detail the EU and Chinese regimes is an interesting decision and illustrates how two highly bureaucratic systems address the regulation of technological advancements.

The analysis demonstrates how not only legal and economic considerations play a role in the regulation of standards, but also and most importantly political ones. The “openness” of China’s standardization is a telling example in this regard. China created a specific system for standard setting and invested heavily in high-tech industries. Initially, the State backed the industry to support the creation of a …

Law, Society, And Religion: Islam And The West, Paolo Davide Farah

Book Chapters

Law and religion are present in almost every society, where the predominance of one over the other can greatly vary, and, in some cases, they both contend for authority over the citizenry. From a historical standpoint, this resulted in a constant change in the relationship between law and religion. Globalization also had a role in this regard. In some instances, globalization exacerbates differences between religions instead of encouraging mediation; it seeks to fill the gap left by the diminishing role of religion in the West. Globalization also competes with religion; both are looking for ways to regulate conduct and push …

The Relationship Between Constitutional Equality And Substantive Review, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

General equality rights in written constitutions – rights stating the ideal of equality without specifying categories of impermissible differentiation – have often been effected through the idea of equality as rationality. Equality as rationality demands that differentiations between like entities have to be rationally justifiable. Such equality rights are applicable to legislation and executive action. This presents a prima facie overlap with substantive review in common law administrative law, since substantive review is also concerned about the rational justifiability of executive action. This raises three questions: (1) Are both sets of legal principles indeed similar? (2) Have courts managed to …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Four Pathbreaking Women Judges To Participate In Iu Conference And Public Discussion Monday, Sept. 25, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four distinguished women judges from the Middle East and North Africa—including the first female judge in Jordanian history—will visit the Indiana University Bloomington campus Sept. 25-26 for a conference titled “Women Judges in Dialogue,” where they will discuss their own experience as women in the judiciary as well as issues surrounding constitutional adjudication in the region. They will be joined by faculty from the Hamilton Lugar School of Global and International Studies and the Maurer School of Law.

Sponsored by the Center for the Study of the Middle East (CSME) at HLS and the Center for Constitutional Democracy (CCD) …

Global Issues In A Globalized World: The Unescapable Dialogue Between SharīʿA And The Constitution, Paolo Davide Farah

Book Chapters

In an increasingly globalized world, a world in flux, which is constantly subject to rapid circulation of information, change is a dimension that we all experience in our lives with ever increasing frequency. Change, be it that of customs and fashion or that of laws and systems of government, is something which now seems impossible to escape. Change is an integral part of our unstable contemporaneity.

This is not only a continuous change but also a rapid one. In such a social and political environment, at a global and local level, it is more and more difficult to find a …

Designing Constitutions For A Lasting Democracy, Donald L. Horowitz, Elisabeth Perham

Judicature International

No abstract provided.

Semi-Presidential Executive Branch Institutionalization And Personalization Under Cuba's 1940 Constitution, Daniel Pedreira

FIU Electronic Theses and Dissertations

The ratification of Cuba’s Constitution of 1940 ushered hopes for democratic stability, most notably through the implementation of a semi-presidential system. Innovative for its time, semi-presidentialism sought to reduce the “perils of presidentialism” that plagued the early decades of the Cuban Republic. Yet, over the next two decades, the Cuban Republic declined and fell as it devolved into authoritarianism and totalitarianism.

This study analyzes the extent to which Cuba’s executive branch was institutionalized or personalized under the 1940 Constitution. Taking a close look at the presidential administrations of Fulgencio Batista Zaldívar (1940-1944, 1952-1954, and 1954-1959), Ramón Grau San Martín (1944-1948), …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Is A Science Of Comparative Constitutionalism Possible?, Madhav Khosla

Faculty Scholarship

Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We …

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

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

Articles by Maurer Faculty

No abstract provided.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Understanding National Remedies And The Principle Of National Procedural Autonomy: A Constitutional Approach, Daniel H. Halberstam

Articles

This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions …

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 …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

Keeping Faith With Nomos, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Legislatures, Executives And Political Control Of Government, Gillian E. Metzger

Faculty Scholarship

This chapter examines how political control over government is exercised today in the UK, the US, and France, focusing on control of the executive branch by the legislature and control of the administrative executive by the political executive. These three jurisdictions were chosen because they are paradigmatic examples of different political regimes: parliamentarism, separation of powers presidentialism, and semi-presidentialism. In theory, these different institutional structures should affect how political control is understood and wielded. In the traditional Westminster parliamentary model, for example, the government is formed from the leadership of the majority party in Parliament and it is the government …

India’S First Period: Constitutional Doctrine And Constitutional Stability, Madhav Khosla

Faculty Scholarship

Studies on constitutional stability and endurance rarely gesture toward the role of legal doctrine. While the workings of courts are often considered in understanding how a constitutional order might be sustained, this is almost variably achieved by examining the relationship between courts and other institutions. This chapter takes a different approach and studies the way in which constitutional consolidation might also be shaped by the doctrinal orientations and forms of reasoning that courts adopt. It does so by considering the first period of Indian constitutionalism. The focus is on two specific areas: the place of the Directive Principles in India’s …

Indecency Regulation Of The Fcc And Censorship Law In Republic Korea: Comparison And Contrasts, Min-Soo "Minee" Roh

Upper Level Writing Requirement Research Papers

Regulating music on radio or television is not a straightforward process, as the music is comprised of lyrics of words. On top of the lyrics, any music performance has an additional layer of choreography and dress code. If any individual elements or combined elements is obscene or indecent, the government attempts to regulate broadcasting both music and performance. This leads to regulating general speech on communications and it requires this paper to look into regulation of broadcasting in general and specific examples of music broadcasting regulation on radio and television, particularly, in the United States (“States”) and in Republic of …

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Japan's Constitution Across Time And Space, Carol Gluck

Center for Japanese Legal Studies

Constitutional reform is a matter of time, the time when the original and the revisions were drafted; and of space, the global context which comprises the transnational constitutional expanse that influenced all modern constitutions from the late eighteenth century on. Of the some 198 written constitutions now in force, more than half were promulgated during the past sixty years. The U.S. Constitution of 1787 is the oldest, and if one counts the 1947 Constitution as an amendment of the Meiji Constitution of 1889 – which formally and technically it was – Japan’s is the world’s tenth oldest written constitution still …