Law Commons^™

The Conceptual Jurisprudence Of The German Constitution, William Ewald

All Faculty Scholarship

No abstract provided.

Courts As Forums For Protest, Jules Lobel

Articles

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the hein"public law" or "institutional reform" model.

The ongoing debate between these two views of the judicial role has obscured a third model of the role …

Book Review. Journal Of The National Human Rights Commission, India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

Bread For The Poor: Access To Justice And The Rights Of The Needy In India, Jayanth K. Krishnan, Marc Galanter

Articles by Maurer Faculty

India is rightly acclaimed for achieving a flourishing constitutional order, presided over by an inventive and activist judiciary, aided by a proficient bar, supported by the state and cherished by the public. At the same time, the courts, and tribunals where ordinary Indians might go for remedy and protection, are beset with massive problems of delay, cost, and ineffectiveness. Potential users avoid the courts; in spite of a longstanding reputation for litigiousness, existing evidence suggests that Indians avail themselves of the courts at a low rate, and the rate appears to be falling. Still, the courts remain gridlocked. There is …

Lessons From The French Funding Debate, Kathryn L. Moore

Law Faculty Scholarly Articles

The French retirement system, like the American social security system, is facing long-term funding difficulties. As a result, the French are debating whether to expand the role of pre-funded retirement plans. The economic arguments presented in this debate are virtually identical to the economic arguments presented in the American debate on whether the American social security system should be partially privatized.

The French and American debates, however, diverge once history and ideology are considered. The French have a history of failed funded pensions in contrast to the United States where the failure of prominent underfunded pension led to the enactment …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Constitutionalization Of Human Rights In Post-Soviet States And Latin America: A Comparative Analysis, Rett R. Ludwikowski

Scholarly Articles

This Article consists of four parts. The first, which is more general, addresses the question to what extent the system of governance adopted by the countries of the two regions affected the record of the states' protection of human rights. For instance, this Article considers whether democratization of the political system necessarily results in better protection of human rights. The second part analyzes the placement of human rights in the framework of the Latin American and post-Soviet constitutions. The third part identifies and discusses the problem of individual and group rights, an issue crucial for both regions. The fourth part …

Israel's Example, Sadiq Reza

Other Publications

No abstract provided.

Regulatory Frameworks In International Law, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins's …

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at the …

Marbury V. Madison Around The World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …

Choice As Regulatory Reform: The Case Of Japanese Corporate Governance, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The fact of a small number of hostile takeover bids in Japan the recent past, together with technical amendments of the Civil Code that would allow a poison pill-like security, raises the question of how a poison pill would operate in Japan should it be widely deployed. This paper reviews the U.S. experience with the pill to the end of identifying what institutions operated to prevent the poison pill from fully enabling the target board to block a hostile takeover. It then considers whether similar ameliorating institutions are available in Japan, and concludes that with the exception of the court …

The Unfulfilled Promise Of Korean Telecommunications Reform, Christopher S. Yoo

All Faculty Scholarship

The deployment of telecommunications services in Korea represents one of the great technological success stories of the developing world. In a remarkably brief period, the penetration of local telephone service, wireless telephony, and broadband technologies has soared to among the highest levels in the world. The history of Korean telecommunications thus provides a useful case study for other developing countries seeking to expand and modernize their telecommunications infrastructures. At first blush, the explosive growth of telecommunications services has appeared to go hand in hand with the liberalization of Korea's telecommunications markets. A review of the history of Korean telecommunications reform …

The Poison Pill In Japan: The Missing Infrastructure, Ronald J. Gilson

Faculty Scholarship

The coming of hostile takeovers to Japan has been anticipated, and anticipated, and anticipated. Each report of a reduction in the size of crossholdings among Japanese companies and in the size of Japanese bank stockholdings in their clients has given rise to an expectation that now, at last, hostile offers would emerge. It is not surprising that commentators looked forward, optimistically, to the arrival of a potentially disruptive takeover technique. The extended Japanese recession, together with management resistance to internally implemented restructurings and the barriers to externally imposed restructurings, has created the potential for substantial private and social gain from …

Marbury V. Madison And European Union "Constitutional" Review, George A. Bermann

Faculty Scholarship

The U.S. Supreme Court's decision in Marbury v. Madison specifically raises the question of the legitimacy of a "horizontal" species of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government. The same question could be asked with respect to judicial review in the European Union. More particularly, how problematic or contestable has "horizontal" judicial review been within the European Union as a matter of principle? And, irrespective of its contestability, how have the courts of the European Union exercised "horizontal" review? We will find, however, that it is not the "horizontal" …

Law's Signal: A Cueing Theory Of Law In Market Transition, Robert B. Ahdieh

Faculty Scholarship

Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions - the failure of new markets to emerge and of existing markets to evolve - have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and …

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …