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Articles 1 - 14 of 14
Full-Text Articles in Public Law and Legal Theory
Offenders And Sorn Laws, Amanda Agan, J.J. Prescott
Offenders And Sorn Laws, Amanda Agan, J.J. Prescott
Book Chapters
Chapter 7 describes what we know about the effects of SORN laws on criminal behavior. A coherent story emerges from this review: there is virtually no evidence that SORN laws reduce recidivism or otherwise increase public safety. The chapter first delineates the various ways registration and notification alter the legal environment not only for registrants but also for nonregistrants, the public, and law enforcement. There are many channels through which SORN laws might impact the frequency of sex offenses, including some that would produce an increase in overall offending. The chapter assesses these possibilities in light of a large body …
The Integrative Effects Of Global Legal Pluralism, Monica Hakimi
The Integrative Effects Of Global Legal Pluralism, Monica Hakimi
Book Chapters
International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …
Techniques For Regulating Military Force, Monica Hakimi
Techniques For Regulating Military Force, Monica Hakimi
Book Chapters
This chapter draws on the five chapters that follow—each of which describes the war powers in a single country—to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and over time …
Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam
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 …
Deference To The Executive, Julian Arato
Deference To The Executive, Julian Arato
Book Chapters
This chapter examines the practice of deference to the executive, by national courts, in the context of interpreting treaties. When faced with an issue of treaty interpretation, to what extent must a national court engage in its own independent analysis, and to what extent ought the court give weight to interpretations advanced by the executive branch? And if deference to the executive is permissible as a matter of international doctrine, what considerations ought to guide the manner of deference, and the determination of how much deference is appropriate? I argue that international law does not formally preclude national judicial deference …
Accounting For Difference In Treaty Interpretation Over Time, Julian Arato
Accounting For Difference In Treaty Interpretation Over Time, Julian Arato
Book Chapters
The law of treaty interpretation aspires to unity. All treaties are formally subject to the same rules of interpretation, codified in the Vienna Convention. Yet time and again we hear that some kinds of treaties are entitled to special treatment. Most commonly the idea is that certain exceptional conventions are capable of evolving, with or without the continued consent of the parties — as with certain human rights conventions. Other times the claim is that certain kinds of agreements resist techniques of interpretation that establish treaty change over time. To date, explanations for such differential treatment remain unsatisfying. This Chapter …
Internal Legitimacy And Europe's Piecemeal Constitution: Reflections On Van Gend At 50, Daniel H. Halberstam
Internal Legitimacy And Europe's Piecemeal Constitution: Reflections On Van Gend At 50, Daniel H. Halberstam
Book Chapters
Europe is often said to lack a proper constitution of the radical American kind. That may be so, but there is a different, more promising sense in which Europe might be following the very best of the constitutional tradition.
Human Rights Obligations To The Poor, Monica Hakimi
Human Rights Obligations To The Poor, Monica Hakimi
Book Chapters
Poverty unquestionably detracts from the human rights mission. Modern human rights law recognizes a broad range of rights - for example, "to life, liberty, and security of person" and to adequate "food, clothing, and medical care."1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational. What does human rights law actually require of states? And how might its obligations benefit the poor?
Federalism: Theory, Policy, Law, Daniel Halberstam
Federalism: Theory, Policy, Law, Daniel Halberstam
Book Chapters
Even France now values local government. Over the past 30 years, top-down appointment of regional prefects and local administrators has given way to regionally elected councils and a revision of Article 1 of the French Constitution, which proclaims that today the state’s ‘organization is decentralized’. The British Parliament, too, has embraced local rule by devolving powers to Scotland, Wales, and Northern Ireland. And in China, decentralization has reached a point where some scholars speak of ‘de facto federalism’. A systematic study of the distribution of authority in 42 democracies found that over the past 50 years, regional authority grew in …
Constitutional Heterarchy: The Centrality Of Conflict In The European Union And The United States, Daniel Halberstam
Constitutional Heterarchy: The Centrality Of Conflict In The European Union And The United States, Daniel Halberstam
Book Chapters
In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its member states, so, too, the global legal order, to the extent that we can speak of one, lacks a singular, uncontested hierarchy among its various parts. To be sure, some have argued that the UN Charter provides …
From Enlightened Positivism To Cosmopolitan Justice: Obstacles And Opportunities, Steven Ratner
From Enlightened Positivism To Cosmopolitan Justice: Obstacles And Opportunities, Steven Ratner
Book Chapters
This paper explores the possibilities for linkages between various forms of positivism accepted by many international lawyers and various forms of cosmopolitanism advocated by scholars of global justice. Building on Bruno Simma's conception of "enlightened positivism," it identifies areas in which cosmopolitan trends have already seeped into the fabric of international law and the key gaps between positivist and cosmopolitan visions of international law and the international community. Emphasizing the contributions that philosophical inquiry can add to international legal scholarship, and vice-versa, it concludes with some thoughts on further integration of cosmopolitan thinking into positivist methodologies.
Legal Reasoning, Phoebe C. Ellsworth
Legal Reasoning, Phoebe C. Ellsworth
Book Chapters
For more than a century, lawyers have written about legal reasoning, and the flow of books and articles describing, analyzing, and reformulating the topic continues unabated. The volume and persistence of this "unrelenting discussion" (Simon, 1998, p. 4) suggests that there is no solid consensus about what legal reasoning is. Legal scholars have a tenacious intuition - or at least a strong hope - that legal reasoning is distinctive, that it is not the same as logic, or scientific reasoning, or ordinary decision making, and there have been dozens of attempts to describe what it is that sets it apart …
Duties Of Preservation, Donald H. Regan
Duties Of Preservation, Donald H. Regan
Book Chapters
The central philosophical problem concerning our duties with regard to nature is this: We are strongly inclined to think we have certain duties which are not fully accounted for by instrumental arguments. We are also strongly inclined to hold a view about value that seems to make it impossible to account for these duties by any noninstrumental arguments. Hence our perplexity. It seems that we have duties to respect living creatures; to avoid causing the extinction of species; even to preserve complex parts of the environment s uch as a tropical rain forest or the Grand Canyon. If we ask …
Language, Law, And Logic: Plain Legal Drafting For The Electronic Age, Layman E. Allen
Language, Law, And Logic: Plain Legal Drafting For The Electronic Age, Layman E. Allen
Book Chapters
The achievement of current demands for clearer legal drafting in the United States (New York, 1973 and President's Executive Order, 1978) and Great Britain (Renton Report, 1975) can be aided by applying modern logic to improve the language of the law. In considering how the expression of legal norms can be clarified by using some formal language techniques, particular attention will be given to alternatives for dealing with problems of inadvertent imprecision in current legal drafting, alternatives that facilitate human understanding as well as enhance the possibilities for analysis by computer. A brief sketch of the imprecision of the expression …