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Articles 1 - 30 of 32
Full-Text Articles in Jurisprudence
Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha
Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Não admira que haja atritos, incompreensões, entre as religiões e os poderes. Porque, antes de mais, foi preciso a uns e a outros comprimirem-se para darem lugar (espaço, mesmo) ao outro tipo de normatividade e de poder. Em muitos casos históricos se terá começado com um poder de índole teocrática. E só com o tempo e o progresso social e político se passaria a admitir a cisão do mando, num ramo secular e num ramo sacral. O grande problema do tratamento da questão religiosa do ponto de vista dos Direitos Humanos, é que se trata, no limite, de pôr uma …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay
Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay
ExpressO
While it is increasingly becoming a platitude that exceptionalism exists in international law, little is being said about the nature, degrees of this exceptionalism and their differential consequences on the international legal system.
In my effort to bridge what I see as an oversight, this paper will seek to show how contemporary exceptionalist practices are creating a fault in the international legal order which will in turn provide a basis for others to argue for an overall reformulation of rules i.e. actions in contravention of the multilateral international legal framework would no longer need to be justified by manipulative rule …
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
ExpressO
This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …
Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom
ExpressO
No abstract provided.
Why Justice Scalia Should Be A Constitutional Comparativst . . . Sometimes, David C. Gray
Why Justice Scalia Should Be A Constitutional Comparativst . . . Sometimes, David C. Gray
ExpressO
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This essay begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia’s writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the essay does not propose a …
Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge
Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge
ExpressO
None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is based …
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
All Faculty Scholarship
No abstract provided.
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
Lion In Winter – Tomás Moro Na Nossa Estação. Diálogos Com O Direito Constitucional, O Cristianismo E A Utopia Social, Paulo Ferreira Da Cunha
Lion In Winter – Tomás Moro Na Nossa Estação. Diálogos Com O Direito Constitucional, O Cristianismo E A Utopia Social, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Três tópicos sintetizam as preocupações da presente leitura de Tomás Moro: antes de mais, o direito constitucional e a polémica constitucional que acabou em crime político sob forma penal – a decapitação de Moro por traição; depois (mas apenas por comodidade depois, porque está antes de tudo em Moro), o cristianismo, mola propulsora da vida, do pensamento e da obra desta figura; finalmente, a utopia social, o seu contributo para a filosofia política, numa clave que normalmente não é a da maioria dos expoentes recentes do pensamento cristão – e daí, também, a sua originalidade.
The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis
The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis
ExpressO
This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …
Imperialism, Colonialism And International Law, James Gathii
Imperialism, Colonialism And International Law, James Gathii
ExpressO
This paper makes an original contribution by unearthing the relationship between imperialism and colonialism in nineteenth century international law. My exploration of the relationship between imperialism and colonialism concretely demonstrates how international legal doctrines surrounding British protectorates of the nineteenth century did not distinguish between imperialism as represented by the introduction of rules and practices of English private and business law into the colonies, on the one hand, and colonialism particularly as exemplified by rules of acquisition of title to territory, on the other. The introduction of English rules of property, tort and contract in the protectorate however went beyond …
Any Place For Ethnicity? The Liberal State And Immigration, David Abraham
Any Place For Ethnicity? The Liberal State And Immigration, David Abraham
ExpressO
When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.
Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin
Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin
ExpressO
This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …
When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise
When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise
ExpressO
The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.
When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise
When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise
ExpressO
"When the Inquisitorial and Adversary Systems Collide: Teaching Trial Advocacy to Latin American Lawyers" The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.
Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli
Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli
ExpressO
No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …
Subcontracting Sovereignty: The Commodification Of Military Force And The Fragmentation Of State Authority, Jackson N. Maogoto
Subcontracting Sovereignty: The Commodification Of Military Force And The Fragmentation Of State Authority, Jackson N. Maogoto
Jackson Nyamuya Maogoto
This Article has as its central theme the decentralization of the state’s control over legitimate military force with the consequential diffusion of governmental control that stands to fragment state sovereignty. It argues that the increasing centrality of PMFs to the prosecution of war is creating a changed national security landscape with PMFs increasingly influencing governmental policy both overtly and covertly. PMF heads many of whom are former high ranking military and civilian personnel now advise governments and in some cases sit on government advisory boards. Additionally they also offer governments a conduit for pursuing covert foreign policy aims and circumvention …
Gaming For “Good Governance” And The Democratic Ideal: From Universalist Rhetoric To Pacific Realities Seen Through A Fijian Microscope*, Jackson N. Maogoto
Gaming For “Good Governance” And The Democratic Ideal: From Universalist Rhetoric To Pacific Realities Seen Through A Fijian Microscope*, Jackson N. Maogoto
Jackson Nyamuya Maogoto
This Article canvasses the international rubric and dynamic that informs the democracy and good governance crusade before moving the discussion to a regional setting targeting Pacific Island Countries with Fiji as a case study. It seeks to argue that democratic experimentalism, not the so-called “McDonaldization” (globalization as homogenization) of the world, is important. This is based on the premise that “McDonaldization” minimizes the complex way in which the local interacts with the international. The efficacy of democratic experimentalism is that it acknowledges that rights are not based on first principles, but that, they are inevitably socially constructed and historically contingent, …
Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson
Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …
What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli
What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli
Scholarly Works
No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …
Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys
Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys
UIC Law Review
No abstract provided.
The Best Kept Secret In The Law: How To Get Paid To Live On A Tropical Island, Michael J. Keyser
The Best Kept Secret In The Law: How To Get Paid To Live On A Tropical Island, Michael J. Keyser
Florida State University Journal of Transnational Law & Policy
No abstract provided.
Policy Challenges From The "White" Senate Inquiry Into Workplace-Related Health Impacts Of Toxic Dusts And Nanoparticles, Thomas A. Faunce, Haydn Walters, Trevor Williams, David Bryant, Martin Jennings, Bill Musk
Policy Challenges From The "White" Senate Inquiry Into Workplace-Related Health Impacts Of Toxic Dusts And Nanoparticles, Thomas A. Faunce, Haydn Walters, Trevor Williams, David Bryant, Martin Jennings, Bill Musk
Thomas A Faunce
On 22 June 2005 the Senate of the Commonwealth of Australia voted to establish an inquiry into workplace harm related to toxic dust and emerging technologies (including nanoparticles). The inquiry became known as the "White" Inquiry after Mr Richard White, a financially uncompensated sufferer of industrial sandblasting-induced lung disease who was instrumental in its establishment. The "White" Inquiry delivered its final report and recommendations on 31 May 2006. This paper examines whether these recommendations and their implementation may provide a unique opportunity not only to modernize relevant monitoring standards and processes, but related compensation systems for disease associated with workplace-related …
Rättens Ordning I Den Tid Som Återstår, Matilda Arvidsson
Rättens Ordning I Den Tid Som Återstår, Matilda Arvidsson
Dr Matilda Arvidsson
The article investigates the fundamental concept of 'time' within the framework of the laws of war, using the War on Terrorism as a starting point and the 2003 invasion and subsequent occupation of Iraq as an example. The article argues for an eschatological understanding of time during the War on Terrorism, framing a state of exception, and ultimately keeping law on hold in an enduring 'now' while messianic hopes for redemption are directed towards a new future to come after war.
Por Causa Da Mulher, Haradja L. Torrens
Direitos De Personalidade, Figuras Próximas E Figuras Longínquas, Paulo Ferreira Da Cunha
Direitos De Personalidade, Figuras Próximas E Figuras Longínquas, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
A. Introdução I. Da Lei à Doutrina II. Da Pessoa III. Do Personalismo B. Delimitação IV. Aspectos Objectivos da Personalidade V. Subjectividade e Personalidade VI. Etapas e Âmbito da Personalidade VII. Fundamento do Direito de Personalidade VIII. Direitos de Personalidade e Direitos Fundamentais C. Conclusão IX. Desafios Metodológicos aos Direitos de Personalidade
Politeia And Paideia. “Reminiscences” Of Western Political Thought In A Reading Of Plato’S Politeia, Paulo Ferreira Da Cunha
Politeia And Paideia. “Reminiscences” Of Western Political Thought In A Reading Of Plato’S Politeia, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Many readings have been proposed of the Politeia. We propose here a brief reflection of the intertextual type, not upon the theme or main themes of this work, but more precisely in search of aspects that also seem to have acquired a posterity (or at any rate a universality that allows for the detection of coincidences). It is not merely that Plato’s great utopian ideas have found an echo in later authors, as one the most important of western politico-philosophical canons. It is also that some topics and arguments that appear through this richly magnificent dialogue seem to have had …
Contemporary Private Military Firms Under International Law: An Unregulated “Gold Rush”, Jackson N. Maogoto, Benedict Sheehy
Contemporary Private Military Firms Under International Law: An Unregulated “Gold Rush”, Jackson N. Maogoto, Benedict Sheehy
Jackson Nyamuya Maogoto
Clearly, the issues raised by the ascendance of contemporary PMFs would be suitable for a book length treatment; however, in light of the pressing nature of the present situation expediency dictates a shorter but timelier piece. This article has as its modest aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states …
Sofisma Y Realidad Del Paradigma Democrático Exterior Estadounidense, Ignacio De La Rasilla Del Moral
Sofisma Y Realidad Del Paradigma Democrático Exterior Estadounidense, Ignacio De La Rasilla Del Moral
Ignacio de la Rasilla del Moral, Ph.D.
Tomando como punto de partida las principales asunciones del realismo político y de la teoría de la paz democrática este trabajo se propone arrojar cierta luz sobre las razones que se hallan tras el “paradigma exterior democrático estadounidense”. Con el objeto de discernir entre sofisma y realidad al respecto, el autor retraza la evolución del neo-wilsonianismo desde los años de la “doctrina Reagan” hasta la actual “Doctrina Bush”. Como resultado de este análisis, el mito del excepcionalismo estadounidense se verá confrontado a las frías realidades del equilibrio del poder, la guerra contra el terrorismo y otros factores de orden económico …