Law Commons^™

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Quilombo Land Rights, Brazilian Constitutionalism, And Racial Capitalism, Karen Engle, Lucas Lixinski

Vanderbilt Journal of Transnational Law

The 1988 Brazilian Constitution, the first in a wave of new democratic and multicultural constitutions in Latin America, contains a transitory provision guaranteeing collective land rights to quilombo communities. These communities are composed of quilombolas, primarily descendants of formerly enslaved Africans, many of whom had escaped slavery. A 2003 executive decree to implement the land title provision became the subject of a constitutional challenge lasting over fifteen years. When the Brazilian constitutional court eventually upheld the decree in 2018, it relied heavily on the work of US political theorist Nancy Fraser to justify quilombo land title as both recognition and …

China's Comparative Constitution, Bui Ngoc Son

Vanderbilt Journal of Transnational Law

The academic field of comparative constitutional law has recently had greater engagements with China's constitution. This Article explains the modes, conditions, and factors of these engagements. The country-studies of China's constitution echo and complicate recent comparative debates on transnational constitution making and the varieties of constitutionalism. Comparative constitutional scholarship formulates new concepts, such as constitutional entrepreneurship and constitutional dissonance, to understand China's constitution. Additionally, it explains China's constitutional divergence from the most similar case, namely Vietnam, and its unexpected constitutional similarities with the most different cases, such as the United States and the United Kingdom. Finally, this scholarship discusses China's …

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional …

The Constitutional Logic Of The Common Law, Douglas E. Edlin

Vanderbilt Journal of Transnational Law

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning …

The Soft Power Of Dissent: The Impact Of Dissenting Opinions From The Russian Constitutional Court, Alexandra V. Orlova

Vanderbilt Journal of Transnational Law

This Article poses a question regarding the importance of judicial dissents emanating from constitutional courts. It examines the power of dissents emanating from the Russian Constitutional Court, given the fact that the Russian government has invested a significant effort in suppressing dissenting voices. The very presence of dissents in the Russian Constitutional Court poses an interesting question regarding their impact on democracy, consensus building, and civil society. This Article argues that while dissents coming from the Russian Constitutional Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Liberalizing The Law In The Land Of The Lord: Limits To The Americanization Of Israeli Religious Jurisprudence, Andrea B. Jenkins

Vanderbilt Journal of Transnational Law

This Note presents an analysis of American and Israeli constitutional jurisprudence concerning matters of religion. Recently, there has been a shift in Israel's High Court of Justice toward implementing values of individual rights and religious pluralism. Some have analogized this shift in focus to the role played by the U.S. Supreme Court. However, fundamental differences remain between the American and Israeli approaches, stemming from divergent conceptions of national identity encapsulated in the states' respective foundational legal documents.

This Note examines the interplay of national identity and religious jurisprudence and its effect on individuals' legal rights. In doing so, it demonstrates …

Judicial Review Of Constitutional Transitions: War And Peace And Other Sundry Matters, Rivka Weill

Vanderbilt Journal of Transnational Law

Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive's authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive's term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments' action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or …

Due Process Rights And The Targeted Killing Of Suspected Terrorists, Benjamin Mckelvey

Vanderbilt Journal of Transnational Law

The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama's National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi's situation quickly …

The Origins And Limits Of Originalism: A Comparative Study, Ozan O. Varol

Vanderbilt Journal of Transnational Law

In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader …

A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe

Vanderbilt Journal of Transnational Law

This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

Panacea Or Pathetic Fallacy? The Swiss Ban On Minarets, Lorenz Langer

Vanderbilt Journal of Transnational Law

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. This Article provides a thick description of the minaret vote's context. A legal analysis addresses the implications of the ban under national, regional, and international normative frameworks. The Article argues that the ban is irreconcilable with the Swiss constitutional bill of rights and several international human right provisions. In Switzerland, however, respect for the vox populi potentially trumps any concern over conflicting international obligations, and there is no effective judicial review of initiatives. This lack of judicial review is partly a …

Civilians In Cyberwarfare: Conscripts, Susan W. Brenner, Leo L. Clarke

Vanderbilt Journal of Transnational Law

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation's infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their …

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

One New President, One New Patriarch, And A Generous Disregard For The Constitution:, Robert C. Blitt

Vanderbilt Journal of Transnational Law

The government of Russia and the Russian Orthodox Church (ROC)--the country's predominant religious group--recently underwent back-to-back changes in each institution's respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation's constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of …

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

Vanderbilt Journal of Transnational Law

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-&-vis international law. This theory, called metanationalism, rejects Harold Koh's theory of transnationalism and demonstrates that …

Civil Society And Democracy In Japan, Iran, Iraq And Beyond, Shiva Falsafi

Vanderbilt Journal of Transnational Law

This Article addresses the mystery of why some countries appear to become democracies seamlessly while others face insurmountable obstacles. While acknowledging the importance of civil society to democratization at the time of transition, this Article argues that broad historical civil society movements, even if devoid of immediate political impact, also facilitate the passage to democracy at a later date.

This Article takes a comparative look at the constitutional, labor, and women's movements in Japan, Iraq, and Iran, from the nineteenth century to the present. It demonstrates that the resilience of Japanese civil society from 1868 onward secured the country's successful …

Authorizing Subnational Constitutions In Transitional Federal States, Jonathan L. Marshfield

Vanderbilt Journal of Transnational Law

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa's celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

Linking The International Legal Framework To Building The Formal Foundations Of A "State At Risk", Michael Schoiswohl

Vanderbilt Journal of Transnational Law

This Article describes and critically assesses the recent constitution-making process in Afghanistan in relation to the international legal framework. The Article provides an account of that process within the larger context of the state-building efforts as envisioned in the 2001 Bonn Agreement. Focusing on the interaction between national state-building and international normative benchmarks, the Article evaluates the extent to which the recently adopted Constitution links to the international legal framework. While paying lip service to the adherence of international law, including international human rights law, the Constitution does not adequately address the relationship between international legal obligations and municipal law. …

Are We There Yet?: Measuring Success Of Constitutional Reform, Maria Dakolias

Vanderbilt Journal of Transnational Law

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But unlike all other countries, there is no codified, written constitution. Since 1997, that unwritten constitution has undergone a radical overhaul. Taken together, the changes to systems and institutions represent the most sustained program of reform in the United Kingdom for a century. The main question is whether these reforms were successful. What does success mean? As is well known, implementation is the key to success. So evaluating the reforms and discussing successes and challenges are not only important for the U.K. internal dialogue …

Implementing The U.N. Convention On The Rights Of The Child, Lauren M. Spitz

Vanderbilt Journal of Transnational Law

The United Nations Convention on the Rights of the Child, adopted by the General Assembly on November 20, 1989, articulates a comprehensive scheme of rights specifically tailored to children. International recognition of children's rights is only the first step, however. The effectiveness of the Convention on the Rights of the Child depends on the signatories' efforts to comply with its provisions and to incorporate children's rights into existing schemes of established rights. The 1996 Constitution of the Republic of South Africa includes specific rights for children resembling those articulated in the Convention on the Rights of the Child. Although South …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

How The New European Union Constitution Will Allocate Power Between The Eu And Its Member States--A Textual Analysis, Stephen C. Sieberson

Vanderbilt Journal of Transnational Law

The new European Union Constitution, if ratified by the EU's Member States, will replace the existing EC Treaty and Treaty on European Union. The Author analyzes the text of the Constitution to determine how it balances the functions and powers of the EU institutions with the role of the Member State governments within the EU system. Topic areas include the characteristics of the EU, the Union's values and objectives, and the substantive areas of EU activity. In each area the Constitution reveals a determined effort by its drafters to emphasize the corresponding characteristics, values, and powers of the Member States. …

Books Received, Journal Editor

Vanderbilt Journal of Transnational Law

THE DISCONNECTED By Penn Kimball New York: Columbia University Press, 1972.Pp. 317. $2.95/Paperback

PUBLIC ADMINISTRATION (2d ed.). Edited by Robert T. Golembiewski, Frank Gibson & Goeffrey Y. Cornog, Chicago: Rand McNally & Company, 1972. Pp. xxxix, 617.$6.95/Paperback

THE AUSTRIAN-GERMAN ARBITRAL TRIBUNAL By Ignaz Seidl-Hohenveldern Syracuse:Syracuse University Press, 1972. Pp. xi, 261. $15.00.

CONSTITUTIONAL RIGHTS OF PRISONERS By John W. Palmer Cincinnati: The W.H.Anderson Company, 1973. Pp. xv, 710.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: PRETRIAL RIGHTS By Joseph G. Cook Rochester: The Lawyer's Co-operative Publishing Company, 1972. Pp. ix, 572. $35.00.

CRIMINAL SENTENCES: LAW WITHOUT ORDER By Marvin E. Frankel New …

From Unwritten To Written: Transformation In The British Common-Law Constitution, David Jenkins

Vanderbilt Journal of Transnational Law

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition …

How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai

Vanderbilt Journal of Transnational Law

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …