Law Commons^™

The Supreme Court And The Hamiltonian Dilemma, Shubhankar Dam

Shubhankar Dam

No abstract provided.

The Constitutionality Of The President To Hold Another Office Act, 2004: A View From India, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Política Criminal Y Juicio Penal, Horacio M. Lynch

Horacio M. LYNCH

De Quelques Paradoxes De Droit Du Travail À La LumièRe De La Directive 2002/14/Ce, Philippe Reyniers, Pierre-Paul Van Gehuchten

Philippe Reyniers

The article concerns the normative interactions between the Framework Directive on Information and Consultation and Belgian national law. It illustrates a number of paradoxes (or contradictory trends) in the development of workers' information and consultation.

On The Language Of Social Rights And New Modes Of Governance, Philippe Reyniers

Philippe Reyniers

The paper addresses the danger of two abstractions. The first is the indeterminacy of the language of fundamental social rights. The second is the abstract description of social policies within the Open Methods of Coordination. I then evaluate the possibilities of founding Social Europe on the real experience of injustice.

Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello

Adam Lamparello

This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts sufficient flexibility to fashion …

Democratic Failure And Emergencies: Myth Or Reality, James M. Mcdonald

James M McDonald

No abstract provided.

The Languages Of Constitutional Dialogue: Bargaining In The Shadow Of The People, Matthew S. R. Palmer

The Hon Justice Matthew Palmer

The 2007 Bora Laskin Annual Lecture at Osgoode Hall Law School analyzes law and policy as different languages in which the judicial and political branches of government speak and think - the languages of law and policy. It asks what the languages should be in which constitutional dialogue is conducted and, in particular, whether judges should always be required to be legally trained.

Sign Amortization Laws: Insight Into Precedent, Property, And Public Policy, Stephen Durden

Stephen Durden

This Article will (1) briefly overview Takings Clause jurisprudence; (2) state a paradigmatic fact pattern; (3) review how the Takings Clause has been applied to sign amortization codes by the United States Supreme Court; (4) review paradigmatic cases from Florida courts and federal courts with Florida jurisdiction; (5) discuss the precedential value of these cases; (6) discuss Lingle and whether it requires an overturning of this precedent; and (7) discuss whether failure to overturn these cases serves the purpose of precedential jurisprudence.

From Human Rights To Fundamental Rights: On The Consequences Of A Conceptual Distinction, Gianluigi Palombella

Gianluigi Palombella

This article introduces a peculiar distinction between "human" rights and "fundamental" rights, explaining through diverse areas, the role that the difference can play. Rights are loaded with contrasting properties and burdens, opposing features and values (neutral, pre-political, negotiable, democratic, etc.). On the contrary, we should accept - on one side - human rights as moral visions of what is due to human beings, deontological imperatives, even if abstract. But on the other side we cannot ignore the ethical problems: e.g. those resulting from their blind implementation. We need to enhance the institutional, legal and ethical-political meaning of "fundamental" rights, i.e. …

Rights As Norms And As Ends, Gianluigi Palombella

Gianluigi Palombella

This article considers the narratives of law through the lens of the form-substance devide. Different legal theories have provided for opposite definitions of law, legal rules and individual rights, enhancing their identity as due to some substantive content or, on the contrary, to some formal-functional features. The form-substance antinomy reflects both institutional and theoretical reasons. It bears down on the relations envisaged among rights, norms and ends. Different conceptions of rights are best understood as a special articulation of those three terms, and offer different patterns for rights, depending on their relation-opposition with collective ends, ethical values, legislation. The following …

Reasons For Justice, Rights And Future Generations, Gianluigi Palombella

Gianluigi Palombella

This article focuses on some very "fundamental threats" to future generations' leaving, and considers whether most essential interests of future persons not to be harmed can be construed as rights, and in particular as human rights, as much as present persons'. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of "disposability" and "non-disposability" principles. Finally, the article shows the reasons for separating what we owe to future persons under the challenge of those threats for humanity, i.e. a matter of justice, from our right to hand down our …

Disposiciones Frente A La Filosofía Del Derecho, Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

Reseña A "Derechos Humanos Como Límite A La Democracia", Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

Reseña A "Filosofía De La Democracia", Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

The Constitution Of Palestine: "The State In Development", Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Constitution of Palestine is an example of the constitutional act of the so-called "states in development" that is, being at the stage of development. The planned for the autumn of 2000 declaration of "the State the Palestine" has not taken place, however the constitution is considered working. According to the fundamental law Palestine is the parliamentary republic with rather extensive powers of the president, and is the unitary state.

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Robert G. Natelson

This article surveys the principles of 18th century fiduciary law that the Founders incorporated into the U.S. Constitution-- principles they referred to as rules of "public trust." The article also suggests standards the courts can use to determine if particular congressional appropriations are within the "general welfare" limitation of the Constitution's so-called Spending Clause

Tempering The Commerce Power, Robert G. Natelson

Robert G. Natelson

The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …

Acerca Del Control Estatal De Las Asociaciones Privadas Y La Jurisprudencia Del Tc: Un Enfoque Económico, Óscar Súmar

Oscar Súmar

No abstract provided.

Validez, Vigencia, Existencia Y Otras Palabras Inútiles Para El Control Constitucional: Comentario A La Stc 0017-2005-Ai, Óscar Súmar

Oscar Súmar

No abstract provided.

Intrastate Preemption, Paul Diller

Paul Diller

No abstract provided.

The Crime, The Case, The Killer Cocktail: Why Maryland's Capital Punishment Procedure Constitutes Cruel And Unusual Punishment, Matthew E. Feinberg

Matthew E Feinberg

Recent challenges to the death penalty argue that the anesthetic used in a majority of executions can wear off prior to death. Eye-witness accounts provide evidence that often, executions have not been completed painlessly, even when procedures are presumably completed in conformance with protocol. The lack of experience and training of Maryland's execution team produces a risk of botched executions. Finally, the drug cocktail is so powerful that it has been banned for use on animals due to the intense pain it inflicts. Each of these four concerns present a significant risk of excruciating pain for the inmate. The culmination …

El Tribunal Constitucional Peruano Cumple 10 Años Desde Su Reinstalación, Edgar Carpio Marcos, Pedro Grandez Castro

Edgar Carpio Marcos

No abstract provided.

Carol Los Mansmann: Lawyer, Judge, And Public Servant (Comments), Ken Gormley

Ken Gormley

No abstract provided.

Judicial Independence And The Rule Of Law: Lessons From Post-Menem Argentina, Christopher J. Walker

Christopher J. Walker

Argentina, like much of Latin America, has historically been plagued by what some call delegative democracy or a democracy without any developed rule of law. However, the Kirchner Administration has brought a glimmer of hope to the twentieth-first-century Argentine democracy. President Néstor Kirchner was elected in 2003, after what was probably the most serious institutional, financial, and economic crisis in Argentina in recent times. When elected, Kirchner promised to address the perceived lack of independence of the Supreme Court and to restore the rule of law. This paper explains why Kirchner's efforts, without more, will not be enough to (re-)build …

The Future Of Religious Pluralism: Justice O'Connor And The Establishment Clause, Deborah J. Merritt, Daniel C. Merritt

Deborah J Merritt

Justice Sandra Day O’Connor offered a distinctive vision of the Establishment Clause. This article puts that vision in context by reviewing the history of religious pluralism, tolerance, and intolerance in the United States. The article also draws upon psychology research to illuminate the polarizing tendencies that continuously undermine religious tolerance. These sections of the article offer essential background that many observers overlook when analyzing the Establishment Clause. Finally, the article argues that Justice O’Connor’s Establishment Clause principles offer the best promise of promoting religious pluralism more fully in the United States.

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.

Truth, Accuracy And "Neutral Reportage": Beheading The Media Jabberwock's Attempts To Circumvent New York Times V. Sullivan -- A Plea For Classical Virtue, David A. Elder

David A. Elder

No abstract provided.

Rethinking The Procreative Right, Carter Dillard

Carter Dillard

Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal …

The Path To (And From?) Judicial Independence (Reviewing Charles Gardner Geyh, When Courts And Congress Collide: The Struggle For Control Of America’S Judicial System (2006), Robert C. Power

Robert C Power

No abstract provided.