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Full-Text Articles in Law
The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman
The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman
ExpressO
Constitutions have many dimensions. These dimensions include at least the following:
• an economic constitution in the sense of a set of rules for exchange of value and authority,
• an interfunctional constitution that allows for the integration of various social values,
• a political constitution that reflects the cultural and democratic integrity of a group of people,
• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,
• a human rights constitution that limits the sphere of governmental authority, and
• a …
International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan
International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan
ExpressO
The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may …
Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis
Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis
ExpressO
This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …
Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan
Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan
ExpressO
This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.
The Case For The Legislative Override, Nicholas Stephanopoulos
The Case For The Legislative Override, Nicholas Stephanopoulos
ExpressO
What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …
A Positive Theory Of The War Powers Constitution, Jide O. Nzelibe
A Positive Theory Of The War Powers Constitution, Jide O. Nzelibe
ExpressO
This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic …
Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson
Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson
ExpressO
This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …
A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris
A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris
ExpressO
Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.
The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
ExpressO
No abstract provided.
Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald
Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald
ExpressO
No abstract provided.
The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin
The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin
ExpressO
The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).
The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …
International Child Abductions: The Challenges Facing America , Charles F. Hall
International Child Abductions: The Challenges Facing America , Charles F. Hall
ExpressO
International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf
ExpressO
No abstract provided.
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
ExpressO
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.
This article explores …
Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett
Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett
ExpressO
An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.
It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.
The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.
Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson
Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson
ExpressO
A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …
In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith
ExpressO
No abstract provided.
The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack
The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack
ExpressO
In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …
The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham
The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham
ExpressO
Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …