Law Commons^™

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

David B Kopel

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …

La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Constitutional Law

The Political Question Doctrine In Uganda: A Reassessment In The Wake Of The Cehurd, David B. Dennison

David Brian Dennison

The political question doctrine protects certain governmental actions and decisions from judicial review. The doctrine emerged in the United States in the early 19th Century. It reached Ugandan jurisprudence in Ex parte Matovu in 1966. After Matovu, the doctrine existed in relative obscurity in Uganda. The doctrine made a dramatic resurgence in the Constitutional Court’s judgment in Centre of Health Human Rights & Development (CEHURD) and Three Others v. Attorney General.

In CEHURD, the Constitutional Court held that the political question doctrine prevented the court from reviewing government policy concerning the provision of maternal health care. The CEHURD judgment ruffled …

Responsabilidad Civil, Libertad De Procreación Y Derecho De Nacer Sano, Leysser L. Leon

Leysser L. León

El autor analiza críticamente la acaso primera sentencia de la administración de justicia peruana en un caso de responsabilidad civil por "wrongful life". En particular, ante la desestimación ligera de las pretensiones, se cuestiona la ausencia de un fundamento técnico frente a la temática de derechos de la personalidad, tutela resarcitoria y remedios contractuales vinculados con la controversia específica (demanda de resarcimiento formulada por una persona que padece osteogénesis imperfecta).

Mexico's Gun Control Laws: A Model For The United States?, David B. Kopel

David B Kopel

This article explicates Mexico’s constitutional right to arms and Mexico’s main gun-control statute, the Federal Law of Firearms and Explosives (Ley Federal de Armas de Fuego y Explosivos). Along the way, the article notes various proposals to move U.S. gun laws in a Mexican direction.

Part II of this article is an English translation of the Mexican constitution’s guarantee of the right to arms, as well as predecessor versions of the guarantee.

Part III explains the operation of Mexico’s gun-control system and provides some historical and statistical information about gun ownership and gun smuggling in Mexico.

Part IV describes some …

The Central American Constitutional Identity.- A Study Of The Constitutional Imitation Phenomenon In The Integration Process Of The Region, Lidia P. Castillo Amaya

Lidia P. Castillo Amaya

This paper will present some preliminary conclusions drawn after conducting the first stage of a research project, which intends to study the constitutional characteristics of the Integration Process of Central America (in its diachronic and synchronic dimension) by means of assessing its legal and extralegal formants in order to verify if its structure and modality are a result of a specific historical and cultural context with elements of originality and innovation; or if they are a mere consequence of a strict “constitutional imitation” of foreign external models (EU) shaped by the interests of the dominant economic elite; or if we …

De La Admiración A La Recepción Crítica: El Apagado Eco De La Codificación Del Derecho Privado Europeo En América Latina, Leysser L. Leon

Leysser L. León

En este artículo se esboza el nuevo posicionamiento de los ordenamientos jurídica de América Latina frente a los proyectos de armonización de las codificaciones civiles europeas. La tesis del Autor es que de una etapa dilatada de importación normativa masiva se ha pasado (y se necesita pasar) a una recepción crítica: con el auxilio de la comparación jurídica, se debe discriminar el material legislativo extranjero, conociéndolo en su origen e informándose sobre su problemática, a fin de evitar la migración de modelos inadecuados para fructificar fuera de su contexto de producción.

Education, Labor Rights, And Incentives: Contract Teacher Cases In The Indian Courts, Varun Gauri, Nick Robinson

Varun Gauri

Since the liberalization of India\'s economy beginning in the early 1990\'s, the government has increasingly employed contract workers to perform various state functions, including in the education sector. Yet, little research has been done to examine how courts have reacted to this shift in government labor policy. This paper looks at all reported cases involving contract teachers in the Indian Supreme Court and four High Courts over the last thirty years. It finds that although almost never explicitly overturning precedent, the judiciary in India has increasingly become less sympathetic to contract teachers demands, particularly at the Supreme Court level. The …

Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin

Craig Martin

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …

The Japanese Constitution As Law And The Legitimacy Of The Supreme Court’S Constitutional Decisions: A Response To Matsui, Craig Martin

Craig Martin

This article, from a conference at Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered. In this article, Borrowing from Kermit Roosevelt’s arguments on judicial …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

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 …

Divided By A Common Legal Tradition, Intisar Rabb Phd

Intisar A. Rabb

No abstract provided.

We The Jurists': Islamic Constitutionalism In Iraq, Intisar Rabb Phd

Intisar A. Rabb

This article examines the implications of incorporating Islamic law in a modern democratic constitutional context. The new Iraqi constitution's designation of Islamic law as "a source of law" placed the issue of Islamic law's role in new democracies at the forefront of the debates on "Islamic constitutionalism" - governing structures characterized by written constitutions that incorporate Islamic law. With its incorporation of both Islamic law and democratic/human rights provisions, the Iraqi constitution establishes a scenario where the government must legislate or adjudicate with respect to a set of dual norms. What challenges does the government face in attempts to legislate …

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 Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Review Of Giving Meaning To Economic, Social, And Cultural Rights, Edited By Isfahan Merali & Valerie Oosterveld, Intisar Rabb Phd

Intisar A. Rabb

No abstract provided.