Digital Commons Network^™

Comparative Advantages Of The Supreme People’S Court Judgement(最高人民法院判决的比较优势), Meng Hou

Hou Meng

No abstract provided.

Unraveling Judicial Restraint: Guns, Abortion, And The Faux Conservatism Of J. Harvie Wilkinson, Iii, Nelson Lund, David B. Kopel

David B Kopel

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

El Fallo Ate Y Sus Circunstancias (Elementos Para Su Estudio), Horacio M. Lynch

Horacio M. LYNCH

Estudio sobre el histórico fallo de la Corte Suprema sobre la libertad sindical (el fallo ATE).

Reflexões Sobre A Natureza Jurídica Dos Embriões Excedentários Na Experiência Brasileira Contemporânea, Carolina Altoé Velasco

Carolina Altoé Velasco

O presente trabalho tem por finalidade examinar algumas das implicações trazidas pela biotecnologia para a sociedade contemporânea. São analisados os fatores geradores dos embriões excedentários, bem como a busca pela melhor forma de repensar os reflexos revelados pelo biodireito neste contexto. Constata-se como fundamental o equilíbrio entre tecnologia, direito e moral, a fim de compatibilizar o progresso científico – que não tem o objetivo ultrapassar os limites do próprio ser humano. São demonstradas, ainda, as divergências existentes sobre a natureza jurídica do embrião humano excedentário, bem como as questões éticas decorrentes. Os embriões excedentários devem, contudo, receber a tutela jurídica …

Tercer Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Tercer Congreso Nacional de Organismos Públicos Autónomos

"Autonomía, Reforma Legislativa y Gasto Público"

Sacrifice And Civic Membership: Who Earns Rights, And When?, Julie Novkov

Julie Novkov

This paper considers two moments that scholars generally agree featured advances for African Americans’ citizenship – the end of the Civil War and Reconstruction, and World War II and its immediate aftermath – and reads these moments through lenses of race and gender. I consider the conjunction of acknowledged sacrifices and contributions to the state, the rights advances achieved, and the gendered and racialized conceptions of citizen service emerging out of both post-war periods. This conjunction suggests that the kind of citizenship that people of color gained during and after wartime crises depended upon gendered and racialized hierarchies that valued …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

John Rawls, La Razón Pública Y El Papel Del Poder Judicial (Traducción), Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

Protecting Public Health And The Environment By The Stroke Of A Presidential Pen: Seven Executive Orders For The President’S First 100 Days, Rebecca Bratspies, David Driesen, Robert Fischman, Sheila Foster, Eileen Gauna, Robert Glicksman, Alexandra Klass, Catherine O'Neill, Sidney Shapiro, Amy Sinden, Rena Steinzer, Robert R.M. Verchick, Wendy Wagner, James Goodwin

Robert R.M. Verchick

No abstract provided.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. The Article shall begin by briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. The Article will next present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing and contrast this to the Canadian s. 12 approach to …

Patriotismo Constitucional Y Procesos De Integración, Pablo Contreras

Pablo Contreras

El rol y centralidad del Estado Nación están en cuestión, a lo cual colaboran los procesos de integración regional. En este marco se postula la necesidad de revisar la identidad política nacional y pensar en esquemas postnacionales, buscando los ejes de aglutinación social en bases y principios que escapen a los caracteres típicos del concepto de nación. Clave en este proceso es el empleo del concepto de patriotismo constitucional. A partir del cual el autor plantea tres interrogantes: comprensión del concepto de patriotismo constitucional, su operatividad, y los aportes y desafíos que éste plantea al proceso de integración regional latinoamericano.

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Aaron K. Perzanowski

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8. The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Citizen As Founder: Public Participation In Constitutional Approval, Tom Ginsburg, Justin Blount, Zachary Elkins

Tom Ginsburg

Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay examines hypotheses on the effect of one aspect of public participation in the constitution-making process -ratification- and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.

Same-Sex Marriage And Federalism, Nancy J. Knauer

Nancy J. Knauer

The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

Free Speech, World War I, And Republican Democracy: The Internal And External Holmes, Stephen M. Feldman

Stephen M. Feldman

Justice Oliver Wendell Holmes, Jr., wrote the seminal free-expression opinions in a series of cases arising during the World War I era. Holmes wrote three majority opinions upholding convictions for expression proscribed under the Espionage Act and its amendments. Then he wrote his famous Abrams v. United States dissent, arguing that the first amendment protected the defendants’ writings. Despite the consensus about the importance of these cases, scholars have disagreed about Holmes’s votes and opinions. Did his Abrams dissent manifest a changed attitude toward the first amendment, or had Holmes always been a principled defender of free expression‘ Why did …