Law Commons^™

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Jill Engle

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa has been painfully slow, …

France Bans The Veil: What French Republicanism Has To Say About It, Stéphane Mechoulan

Stéphane Mechoulan

Out Of Tune And Out Of Time: The Relationship Between Australia’S International Obligations And Australian Constitutionalism And Why It Matters To Our Identity In The Asian Century, Danielle Ireland-Piper

Danielle Ireland-Piper

The constitutionalism of a nation says much about its national identity. Sections 25 and 51(xxvi) of the Australian Constitution are at odds with Australia’s international obligations under the United Nations Declaration of Human Rights, and the International Covenant on Civil and Political Rights. Further, Australia’s current asylum seeker policy is a perversion of our obligations under the Convention relating to the Status of Refugees. These failures to comply with our international obligations are at best, relics of a racist colonial history, and at worst, manifestations of our contemporary national identity. Whilst some may argue that there are other states in …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor Romero

Victor C. Romero

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

Protecting Human Rights: The Approach Of The Singapore Courts, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution? This article is based on a speech delivered at an event at the Conrad Centennial Singapore on 4 December 2014 entitled The Role of the Judiciary in the Promotion and Protection of Human Rights organized by the Delegation of the European Union to Singapore to commemorate Human Rights Day.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Main Structural Characteristics Of Global Constitutionalism., Elizabeth Lvova

Elizabeth Lvova

Nowadays current global problems stand as burning challenges of multi-level governance and reflect the importance of advanced cooperation of the states. Moreover the expansion of international human rights revealed the necessity of modification of international legal methods of common values security, shifting them on the global level. In these conditions modern international public law vividly evolved and is apt to reconfiguration including altering positions from cooperation to constitutionalization. Modifying relations among the international public authorities and the global activity of modern international actors (individuals, transnational companies and business organizations, international non-governmental organizations, etc.) pointed out the changes in the international …

Don’T Close Guantánamo, Jennifer Daskal

Jennifer Daskal

Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees' lawyers, there has been a significant, if not uniform, improvement in conditions.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Dignity Rights: Courts, Constitutions, And The Worth Of The Human Person, Erin Daly

Erin Daly

The right to dignity is now recognized in most of the world's constitutions, and hardly a new constitution is adopted without it. Over the last sixty years, courts in Latin America, Europe, Asia, Africa, the Middle East, and North America have developed a robust jurisprudence of dignity on subjects as diverse as health care, imprisonment, privacy, education, culture, the environment, sexuality, and death. As the range and growing number of cases about dignity attest, it is invoked and recognized by courts far more frequently than other constitutional guarantees. Dignity Rights is the first book to explore the constitutional law of …

Desafíos Para Los Derechos De La Persona Ante El Siglo Xxi: Familia Y Religión / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Famiglia E Religione / Challenges Of Individual Rights In The Xxi Century: Family And Religion, Edoardo C. Raffiotta, Antonio Pérez Miras, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Facing continuous changes and evolving social contexts that are a characteristic of a pluralistic society, a law professional encounters difficulties with re-arranged traditional institutions such as family and marriage, as well as difficulties in redefining the role of religion in our societies, especially in relation to individual rights and liberties within these institutions. To address these important topics, the author reviews the approach to the study of the challenges facing the constitution, and in particular the rights of the individual, in our multicultural societies.

Desafíos Para Los Derechos De La Persona Ante El Siglo Xxi: Ciencia Y Vida / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Vita E Scienza / Challenges Of Individual Rights In The Xxi Century: Life And Science, Antonio Pérez Miras, Germán M. Teruel Lozano, Edoardo C. Raffiotta

Germán M. Teruel Lozano

Scientific advances often go beyond the classic thoughts of Law. Rapidly, new discoveries and the development of new techniques question fundamental aspects of human existence and the future of our species. So the law and legal operators cannot stand still when faced with the challenges posed by new discoveries and techniques, especially applied to humans. In this book the reader will find many works that examine these challenges, which arise with respect to constitutionalism, and in particular to the rights of the individual; intense debates, sometimes difficult to reconcile from the moral, but that cannot be ignored in the law.

El Reconocimiento Constitucional De Los Derechos De La Persona Y Sus Puntos Ciegos En La Constitución De Cádiz, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Desafios Para Los Derechos De La Persona Ante El Siglo Xxi: Internet Y Nuevas Tecnologías / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Internet E Nuove Tecnologie / Challenges Of Individual Rights In The Xxi Century: The Internet And New Tecnologies, Germán M. Teruel Lozano, Antonio Pérez Miras, Edoardo C. Raffiotta

Germán M. Teruel Lozano

The technological advances in recent decades have had an exceptional impact on the model of society causing what can be considered a true "revolution", which is both social and cultural and economic and legal. In particular, the Internet has made possible the birth of a new "civic habitat" that creates new opportunities for people to exercise their rights and freedoms in a space that knows no boundaries or time limits. Nevertheless, the Internet may also represent a new source of risk for the individual and his rights, thus giving rise to new challenges for their protection. Therefore this work seeks …

The Wisdom And Enforceability Of Welfare Rights As Constitutional Rights , Herman Schwartz

Herman Schwartz

No abstract provided.

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam [Thuyết Cân Đối Trong Vấn Đề Giải Thích Các Quyền Về Hiến Pháp: So Sánh Giữa Canada, Liên Hiệp Các Vương Quốc Anh Và Singapore Và Kinh Nghiệm Cho Vìệt Nam], Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights …

There Is But One Sword That Defends The Rights Of Man- Bringing Lgbt Rights Out Of The Closet, Jonathan M. Bhagan

Jonathan m Bhagan

Introduction. International norms of human rights are a powerful force for interpreting, protecting and growing rights on the domestic plane. Courts throughout the Commonwealth already look to international norms to flesh out rights, whether they are found in the constitutional jurisprudence of other common law states in Treaties or Treaty based case law. While some schools of jurisprudence claim that International and Domestic law are two separate spheres , throughout the paper it will be shown that judges have consistently looked to foreign and International Law as inspiration and support for their decisions in key human rights cases. This trend …

Reforming The Right To Legal Counsel In Singapore, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

This is an opinion prepared for the Criminal Law Committee of the Law Society of Singapore on an arrested person’s right to legal counsel in Singapore. Specifically, it deals with the following: (1) it summarizes pertinent aspects of the law relating to the right to legal counsel in Singapore; (2) it surveys a number of ASEAN and Commonwealth jurisdictions to determine how long after apprehension the right to counsel is generally accorded to arrested persons, and compares the legal position in these jurisdictions to the situation in Singapore; and (3) it examines two rights ancillary to the right to legal …

The Primary Right, Carter Dillard

Carter Dillard

As climate change materializes, legal theorists face the urgent need to develop a normative baseline for environmental regulation. Meanwhile, in the seemingly unrelated field of political exit theory, theorists have presumed that while one ought to be able to exit any polity one cannot exit all polities. This essay challenges that presumption, and simultaneously addresses the baseline problem in environmental law, by combining the analyses to develop a new human right derived from exit right theory called the primary right: a general claim-right of reasonable access to wilderness. The derivation is simple: If consent is necessary to justify political association, …

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Human Rights Adjudication In Contemporary Democracies: Courts’ Specific Moral Insight As A Decisive Advantage Over Legislatures (A Modest And Partial Response To Jeremy Waldron’S Core Case Against Judicial Review), Francisco Verbic

Francisco Verbic

No abstract provided.

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

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 …

Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine

Samuel J. Levine

Charles L. Black Jr. has been one of the most important constitutional scholars in the United States for more than four decades. Professor Black's writings have helped shape the debate in a wide variety of constitutional areas, from racial equality and welfare rights to constitutional amendment, impeachment, and the death penalty. In this essay, Levine briefly surveys a number of Professor Black's articles, focusing on two areas of his scholarship: unnamed human rights and racial justice. By analyzing these two topics, which represent, respectively, Black's most recent scholarship and his most significant early work, Levine attempts to show certain principles …

Legal Outlier, Again? U.S. Felon Suffrage: Comparative And International Human Rights Perspectives, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European …

New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …

Dignity In The Service Of Democracy, Erin Daly

Erin Daly

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …