Law Commons^™

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 …

Constitutional Equality And Executive Action: A Comparative Perspective To The Comparator Problem, Kenny Chng

Research Collection Yong Pung How School Of Law

A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Dangerous Exhibitions: Erotic Justice And Comparative Constitutional Law, Elena Cohen

Dissertations, Theses, and Capstone Projects

The beginning of the 21^st century is widely seen as a time of great progress for LGBTQ people. Gay marriage, gay sex, adoption by same sex couples, and gay people serving in militaries have all been legalized in many countries in the past two decades, often through the decisions of constitutional courts. However, these constitutional protections of sexuality have been found in limited contexts and applied to a limited class of people, such that many are still vulnerable to repression by governments and majoritarian politics. In order to resist this sexual oppression, I widen the focus from gay and …

Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey

Elisabeth Haub School of Law Faculty Publications

The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

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.

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

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

Steven Davidoff Solomon

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

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Patriot Act A More Perfect Policy.Docx, D'Andre Devon Lampkin

D'Andre Lampkin

The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Deepa Badrinarayana

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

M. C. Mirow

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

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 …

A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje De Visser

Research Collection Yong Pung How School Of Law

On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. …

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 …

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963–2013, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over a half century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases were …

“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 …

Introduction: Constitutional Conflict And Development: Perspectives From South Asia And Africa, Sudha Setty, Matthew H. Charity

Faculty Scholarship

This Introduction was written for an eponymous joint program held on January 4, 2014 and hosted by the Section on Africa and the Section of Law & South Asian Studies, both of the Association of American Law Schools.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer

Christopher J. Roederer

In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

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.

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …