Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 30
Full-Text Articles in Law
The Suitability Of South Africa's Business Rescue Procedure In The Reorganization Of Small-To-Medium-Sized Enterprises: Lessons From Chapter 11 Of The United States Bankruptcy Code., Mikovhe Maphiri
Michigan Business & Entrepreneurial Law Review
South African small- to medium-sized enterprises (“SMEs”) are the bread and butter of our economy. Providing much-needed employment and developing the skills of historically disadvantaged persons formally and informally are some of the most significant benefits of SMEs in a developing country such as South Africa. However, despite these significant contributions to the socioeconomic development of the country, SMEs generally have the lowest survival rates in the world as compared to large enterprises globally, resulting in high rates of business failure and the loss of jobs which these entities create. The Companies Act of 2008 replaces the previous judicial management …
Making Democracy Harder To Hack, Scott Shackelford, Bruce Schneier, Michael Sulmeyer, Anne Boustead, Ben Buchanan, Amanda N. Craig Deckard, Trey Herr, Jessica Malekos Smith
Making Democracy Harder To Hack, Scott Shackelford, Bruce Schneier, Michael Sulmeyer, Anne Boustead, Ben Buchanan, Amanda N. Craig Deckard, Trey Herr, Jessica Malekos Smith
University of Michigan Journal of Law Reform
With the Russian government hack of the Democratic National Convention email servers and related leaks, the drama of the 2016 U.S. presidential race highlights an important point: nefarious hackers do not just pose a risk to vulnerable companies; cyber attacks can potentially impact the trajectory of democracies. Yet a consensus has been slow to emerge as to the desirability and feasibility of reclassifying elections—in particular, voting machines—as critical infrastructure, due in part to the long history of local and state control of voting procedures. This Article takes on the debate—focusing on policy options beyond former Department of Homeland Security Secretary …
On Black South Africans, Black Americans, And Black West Indians: Some Thoughts On We Want What’S Ours, Eleanor Marie Lawrence Brown
On Black South Africans, Black Americans, And Black West Indians: Some Thoughts On We Want What’S Ours, Eleanor Marie Lawrence Brown
Michigan Law Review
Most modern constitutions have eminent domain provisions that mandate just compensation for forced deprivations of land and require such deprivations to be for a public use or public purpose. The Takings Clause is a classic example of such a provision. The takings literature is essentially focused on outlining the outer boundaries within which the state can take property from an owner. But there are other takings that have been deemed “extraordinary”; in such circumstances, the state takes away property without just compensation and simultaneously makes a point about a person or a group’s standing in the community of citizens.
Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon
Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon
Michigan Journal of Environmental & Administrative Law
This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …
Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance
Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance
Michigan Telecommunications & Technology Law Review
Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …
Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn
Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn
Michigan Journal of Race and Law
With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on …
An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch
An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch
Michigan Journal of International Law
The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Michigan Journal of International Law
Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …
The Developing Equality Jurisprudence In South Africa, Karthy Govender
The Developing Equality Jurisprudence In South Africa, Karthy Govender
Michigan Law Review First Impressions
Apartheid was technically about separateness, but it was fundamentally about inequality. The founding premise of the ideology was to preserve the total hegemony of white South Africans. The liberation organizations opposing the apartheid regime sought to affirm that the country belonged to all those that lived in it. Thus, it is unsurprising that the commitment to equality is one of the founding values of the Constitution and an indelible thread woven throughout the fabric of the Bill of Rights. After some misstatements about certain rights being more important than others, courts have interpreted rights in the Bill of Rights to …
Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris
Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris
Michigan Journal of Gender & Law
This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment …
Custody, Maintenance, And Succession: The Internalization Of Women's And Children's Rights Under Customary Law In Africa, Allison D. Kent
Custody, Maintenance, And Succession: The Internalization Of Women's And Children's Rights Under Customary Law In Africa, Allison D. Kent
Michigan Journal of International Law
In this Note, the author examines the process of international human rights norm internalization into areas traditionally governed exclusively by customary law, and the resulting evolution of customary law. Assuming, arguendo, that customary law is to be modified, I argue that a societal norm internalization approach is the most effective means to bring customary law into conformity with international human rights law. After a brief discussion of the fieldwork on which I rely, this Note describes the historical influence of colonialism on the development of customary law in Africa, with a particular focus on the repugnancy clauses of the …
Instructions In Inequality: Development, Human Rights, Capabilities, And Gender Violence In School, Erika George
Instructions In Inequality: Development, Human Rights, Capabilities, And Gender Violence In School, Erika George
Michigan Journal of International Law
This Article argues that the international community's gender equality targets will not be realized by 2015 because the problems associated with sexual violence against girls in schools are situated at an intersection of contested conceptual divides between human rights (civil and political liberties) and development aims (social and economic needs). Cracks in the conceptual foundations of both the liberal and utilitarian theories of justice and equality, which support traditional human rights advocacy and economic development plans, respectively render each approach inadequate to fully identify and address the grave danger sexual violence and harassment in schools pose to educational equality. In …
Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr
Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr
Michigan Journal of Race and Law
In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …
Land And Liberation: Lessons For The Creation Of Effective Land Reform Policy In South Africa, Hasani Claxton
Land And Liberation: Lessons For The Creation Of Effective Land Reform Policy In South Africa, Hasani Claxton
Michigan Journal of Race and Law
Based upon the premise that land reform is essential to creating socio-economic equality, easing racial tensions and stemming the tide of violence in South Africa, this note will provide suggestions for effective land reform policy. To accomplish this, this Note will examine the paths taken by several other transitional African governments in land reform policy. It will attempt to extract practical lessons from their experiences and apply them towards the development of effective land redistribution policy in South Africa. Part I of this note will provide a historical overview of colonialism and land law in Africa. Part II will examine …
No Black Names On The Letterhead? Efficient Discrimination And The South African Legal Profession, Lisa R. Pruitt
No Black Names On The Letterhead? Efficient Discrimination And The South African Legal Profession, Lisa R. Pruitt
Michigan Journal of International Law
Although there have long been black lawyers in South Africa, during apartheid only a handful joined the ranks of the country's large commercial firms. Now, in the post-apartheid period, these firms are keenly aware of a range of economic and political incentives to hire black attorneys, and most are doing so at a record pace. Very few black attorneys, however, are enduring the path to partnership in these firms. Based on more than seventy-five interviews conducted in South Africa in 1999 and 2000, this Article both documents and critically examines the reasons for black attrition. While firms' incentives to integrate …
Civilizing The Natives: Marriage In Post-Apartheid South Africa, David L. Chambers
Civilizing The Natives: Marriage In Post-Apartheid South Africa, David L. Chambers
Articles
South Africa is a land of many cultures. For several hundred years, British and Afrikaaner whites controlled the country, systematically manipulating black people to the whites' advantage. For the most part, however, whites tolerated the continuation within black communities of traditional marriage practices that white Christians considered uncivilized. In 1994, South Africa changed governments. A black majority Parliament came to power, adopting a consitution dedicated to equality and human dignity. Four years later, Parliament adopted a new marriage law that, though permitting some of the external trappings of the traditional marriage system to continue, eliminated by law much of the …
Apartheid As A Crime Against Humanity: A Submission To The South African Truth And Reconciliation Commission, Ronald C. Slye
Apartheid As A Crime Against Humanity: A Submission To The South African Truth And Reconciliation Commission, Ronald C. Slye
Michigan Journal of International Law
The question of whether apartheid is a crime against humanity might seem an odd one for many people living outside South Africa-and indeed for the vast majority of people living inside South Africa. With the recent demise of legalized apartheid in South Africa, one might ask if apartheid's status under international law has any contemporary relevance beyond a small group of legal academics. The status of apartheid under international law-in particular whether apartheid constitutes a crime against humanity-is a question that the South African Truth and Reconciliation Commission ("TRC") was obligated to address in its final report.
Striking The Rock: Confronting Gender Equality In South Africa, Penelope E. Andrews
Striking The Rock: Confronting Gender Equality In South Africa, Penelope E. Andrews
Michigan Journal of Race and Law
This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime. The author argues that, although South African women have benefited from the global …
Children's Rights And Family Autonomy In The South African Context: A Comment On Children's Rights Under The Final Constitution, Tshepo L. Mosikatsana
Children's Rights And Family Autonomy In The South African Context: A Comment On Children's Rights Under The Final Constitution, Tshepo L. Mosikatsana
Michigan Journal of Race and Law
This Article investigates the nature and extent of the protection granted to children's rights in the South African Constitution. It concludes that the child-centered approach of the Constitution entitles children, as independent actors, to certain fundamental rights. Acknowledging both the parent-centered nature of the existing South African legal framework and the entrenched support for practices, many rooted in indigenous law and tradition, that contribute to the oppression of children, the author argues that the constitutionalization of these rights will contribute to the betterment of children in South Africa, proving to be more than mere moral exhortation. Under apartheid in South …
Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham
Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham
Michigan Journal of Race and Law
As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …
The Fallacy Of Neutrality: Diary Of An Election Observer, Jeanne M. Woods
The Fallacy Of Neutrality: Diary Of An Election Observer, Jeanne M. Woods
Michigan Journal of International Law
Neutrality is one of many conceptual fictions of liberal discourse. A legal fiction is "contrived by the law" to facilitate adjudication of issues. Such fictions may serve as symbols, to make abstract concepts tangible or, they may be myths designed to promote some normative principle or goal. The problem arises when these fictions cease to be recognized as inventions, or as "presumptions about reality," and are believed to have an independent existence in reality. Then, they "purport to provide us with an objective and impersonal criterion, but they do not." According to the philosopher Alasdair MacIntyre, a fiction is "a …
Toward A South African Administrative Justice Act, Michael Asimow
Toward A South African Administrative Justice Act, Michael Asimow
Michigan Journal of Race and Law
Section 33 of South Africa's Constitution provides fundamental principles of administrative justice. It also requires Parliament to adopt an Administrative Justice Act. This Article contends that without enactment of such legislation Section 33 will be ineffective in practice and may prove to be an obstacle to achieving the economic and social objectives of the Constitution. In addition, such legislation is essential to preserving the legitimacy and the effectiveness of the Constitutional Court.
Watching The Watchdog: Security Oversight Law In The New South Africa, Christopher A. Ford
Watching The Watchdog: Security Oversight Law In The New South Africa, Christopher A. Ford
Michigan Journal of Race and Law
This Article attempts to assess the experiences of post-apartheid South Africa in the realm of national security law by examining key issues from constitutional, statutory, and policy perspectives. It observes that South Africans now have a great "window of opportunity" that allows them to establish the habits and mores necessary to a working security oversight regime, and argues that the way in which South Africa strikes a balance between the requirements of national security and the preservation of personal liberties is of enormous importance to the Republic's future. It further contends that South Africa's choices in this arena could have …
South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy
South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy
Michigan Journal of Race and Law
The road to democracy for South Africa was based on compromise. One of the most significant compromises made by the negotiators was the acceptance of an amnesty process culminating in the passage of the Promotion of National Unity and Reconciliation Act of 1995. The Act grants full indemnity from criminal and civil prosecution to anyone affiliated with a political organization who committed an "act associated with a political objective" and who fully discloses all relevant facts. The purpose of the Act is twofold: to establish the "truth" about the apartheid past and to promote "reconciliation" among South Africans. Unfortunately, such …
Towards Democracy In A New South Africa, Adrien Katherine Wing
Towards Democracy In A New South Africa, Adrien Katherine Wing
Michigan Journal of International Law
Review of Constitutional Options for a Democratic South Africa: A Comparative Perspective by Ziyad Motala
Emerging From Emergency: Human Rights In South Africa, Etienne Mureinik
Emerging From Emergency: Human Rights In South Africa, Etienne Mureinik
Michigan Law Review
A Review of In a Time of Trouble: Law and Liberty in South Africa's State of Emergency by Stephen Ellmann
Safeguarding Due Process In A Hostile Environment: Foreign Lawyers In South Africa, David S. Abramowitz
Safeguarding Due Process In A Hostile Environment: Foreign Lawyers In South Africa, David S. Abramowitz
Michigan Journal of International Law
Part I of this note briefly describes the effect of apartheid on human rights in South Africa. It then examines how liberal South African attorneys use procedural due process, as defined by the rule of law, to counter these effects. Part II discusses the methods used by foreign attorneys to support South African human rights lawyers. In particular, this section focuses on the activities of the International Commission of Jurists and the Lawyers' Committee for Civil Rights Under Law. The note concludes that infusing fair process into the South African legal order is the most significant contribution foreign lawyers can …
South Africa: Using The Law To Establish And Maintain A Pigmentocracy, Rex S. Heinke
South Africa: Using The Law To Establish And Maintain A Pigmentocracy, Rex S. Heinke
Michigan Law Review
A Review of Human Rights and the South African Legal Order by John Dugard
Review: Die Völkerrechtliche Stellung Irlands.
Review: Die Völkerrechtliche Stellung Irlands.
Michigan Law Review
A review of DIE VÖLKERRECHTLICHE STELLUNG IRLANDS. By Michael Rynne.
Neutrality Of British Dominions, C D. Allin
Neutrality Of British Dominions, C D. Allin
Michigan Law Review
The recent Cannes conference has revived the question of the -international status of the British dominions. Article IV of the proposed Anglo-French Alliance provided that "the present treaty shall impose no obligation upon any of the dominions of the British Empire unless and until it is approved by the dominion concerned." In short, the dominions were left free to pursue an independent foreign policy in European affairs.