Law Commons^™

Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell

Indiana Journal of Law and Social Equality

Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami

Osgoode Hall Law Journal

In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …

Human Rights As Comparative Constitutional Law, Jacob W.F. Sundberg

Akron Law Review

This was the background of the Akron symposium on human rights as comparative constitutional law. The purpose of the symposium was to expose U.S. constitutional and international law experts to the working of these human rights protection systems in which decisions under the U.N. Covenant for Civil and Political Rights and the European Convention on Human Rights have arrived at an independent and influential, if not even precedent-setting role in relation to the national courts. Decision making by the U.S. Supreme Court is the focus of the teaching of Constitutional Law in the United States.

Having a number of European …

“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty

Pepperdine Law Review

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Georgia Journal of International & Comparative Law

No abstract provided.

Constitutionalism And The Rule Of Law: Considering The Case For Antecedents, Rogers M. Smith

Chicago-Kent Law Review

Tom Ginsburg credibly establishes that East Asian legal traditions include elements that can be considered antecedents for perhaps the strongest form of the rule of law, constitutional restraints that apply even to sovereigns. Treating these precedents chiefly as anticipations of Western-style constitutionalism, however, may be historically misleading and may inhibit reflection on the desirability of practices that represent alternatives to Western conceptions of the rule of law.

Excavating Constitutional Antecedents In Asia: An Essay On The Potential And Perils, Arun K. Thiruvengadam

Chicago-Kent Law Review

This essay seeks to endorse Tom Ginsburg's call for studies that expand the relatively limited range of historically informed scholarship on constitutional law in Asia. Such a trend will no doubt also broaden the focus of the discipline of contemporary constitutional scholarship, which remains unjustifiably narrow and excludes many regions of the globe. While appreciating the virtues of Ginsburg's broader analysis, the essay also seeks to draw attention to the potential pitfalls of such historically-oriented inquiry. I emphasize the fact that in many Asian societies, contemporary constitutional practice marks radical departures from pre-existing traditions of law and constitutionalism. Drawing upon …

Is A Written Constitution Necessary?, Diarmuid F. O'Scannlain

Pepperdine Law Review

No abstract provided.

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

Federal Forfeiture And Money Laundering: Undue Deference To Legal Fictions And The Canadian Crossroads, Max M. Nelson

University of Miami Inter-American Law Review

No abstract provided.

A Proposed Transjudicial Approach To S. 15(2) Charter Adjudication, Vanita Goela

Dalhousie Law Journal

Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action. In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits …

Wong Kim Ark And Sentencia Que Declara Constitucional La Ley General De Migración 285-04 In Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, And Political Morality, Patrick J. Glen

University of Miami Inter-American Law Review

No abstract provided.

Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer

Dalhousie Law Journal

This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds …

The Use And Misuse Of Comparative Constitutional Law (The George P. Smith Lecture In International Law), Cheryl Saunders

Indiana Journal of Global Legal Studies

This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions: (1) as a generalization, other common law countries do not share the concern about the legitimacy of comparative precedents that manifests itself in the United States, and (2) as a consequence, other common law countries necessarily share with the United States an interest in …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

School Privatization And Student Rights: A Comparison Of Canadian And American Law Regarding Searches And Seizures Conducted In Privatized Schools, David J. D'Agata

University of Miami Inter-American Law Review

No abstract provided.

Australasian Law And Canadian Statutes In The Nineteenth Century: A Study Of The Movement Of Colonial Legislation Between Jurisdictions, Jeremy Finn

Dalhousie Law Journal

This paper considers the use between 1850 and 1900 by Anglo-Canadian legislatures of legislative precedents from the Australian and New Zealand colonies and argues that while a wide range of Australasian laws were considered by Canadian legislators, the most significant Australasian influences are to be found in mining law, electoral and constitutional law and land law The paper goes on to explore, by use of archival, parliamentary and published materials, the processes by which Canadian legislators acquired their knowledge of these Australasian initiatives. While governmental and institutional channels (including the Colonial Office) played a significant part in the transmission of …

A Comparative Study Of The Jewish And The United States Constitutional Law Of Capital Punishment, Steven Davidoff

ILSA Journal of International & Comparative Law

The Jewish view on the death penalty is that it should exist but it should never be used .... [lI]t is Governor Pataki's job to ensure :order. But he must remember that as a leader he must exhibit attributes of both the father and the mother. Governor Pataki is a nice man. But if he acts on the death penalty, he will be the leader of a bloody government

Exclusion To Emancipation: A Comparative Analysis Of Women's Citizenship In Australia And The United States 1869-1921, Linda J. Kirk

West Virginia Law Review

No abstract provided.

The Constitutional Development Of Religious Freedom In Spain: An Historical Analysis, Daniel B. Montserrat

Florida State University Journal of Transnational Law & Policy

Religious freedom has always constituted a problem in Spain. It can be said that over the centuries, there has only existed intolerance and even on several occasions, persecution. Clearly, the times in which respect and peaceful coexistence occurred in Spain among the three principal religions were limited and fleeting. Unfortunately, even Spanish constitutional history is replete with examples of religious intolerance. From the Cddiz Constitution of 1808, liberal in its politics, but tremendously repressive with respect to religion up until the present day, there have been scarcely twentyfive years of "religious freedom." Recalling the period prior to the first constitution, …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

The Constitutional Court: A Bulgarian Response To Obsolescent Law, David A. Levy

University of Miami International and Comparative Law Review

No abstract provided.

Federalism In The Americas In Comparative Perspective, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.

The American Judicial Review Quagmire: A Canadian Proposal, Caroline S. Earle

Indiana Law Journal

No abstract provided.

Divergent Models Of Public Law In Latin America: A Historical And Prescriptive Analysis, Nicholas D.S. Brumm

University of Miami Inter-American Law Review

No abstract provided.

Remedying Underinclusive Entitlement Statutes: Lessons From A Contrast Of The Canadian And U.S. Doctrines, David M. Bizar

University of Miami Inter-American Law Review

No abstract provided.

A Comparison Of The Protection Of Individual Rights In The New Constitutions Of Colombia And Brazil, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.