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Full-Text Articles in Law
Non-Extraterritoriality, Carlos Manuel Vázquez
Non-Extraterritoriality, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …
Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez
Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …
Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez
Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in …
Calling All The Statesmen: The (Not) Mubarak Trial, Lama Abu-Odeh
Calling All The Statesmen: The (Not) Mubarak Trial, Lama Abu-Odeh
Georgetown Law Faculty Publications and Other Works
I read the decision that exonerated ex-Minister of Interior of Egypt and his assistants from the charge of giving orders to kill demonstrators textually. Shortcomings known to lawyers and journalists who were following the case about failure of performance on the part either of prosecutors, lawyers, or the judge overseeing the trial are not considered in my reading. You might call it a close reading—specifically, a reading of the rationalizing language used by the judge writing the decision to explain his verdict.
Egypt's New Constitution: The Islamist Difference, Lama Abu-Odeh
Egypt's New Constitution: The Islamist Difference, Lama Abu-Odeh
Georgetown Law Faculty Publications and Other Works
The paper discusses the distributional impact of the rules of the new Egyptian constitution (2012). It specifically addresses the way such rules, substantive and (potentially) procedural, can influence Egyptian law's identity and the underlying relations between the state and individuals and among individuals themselves that such identity implies.
Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos
Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos
Georgetown Law Faculty Publications and Other Works
Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …
Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson
Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson
Georgetown Law Faculty Publications and Other Works
My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.
Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson
Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson
Georgetown Law Faculty Publications and Other Works
The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …
Codes And Hypertext: The Intertextuality Of International And Comparative Law, Marylin J. Raisch
Codes And Hypertext: The Intertextuality Of International And Comparative Law, Marylin J. Raisch
Georgetown Law Faculty Publications and Other Works
The field of information studies reveals gaps in the literature of international and comparative law as part of interdisciplinary and textual studies. To illustrate the kind of theoretical and text-based work that could be done, this essay provides an example of such a study. Religious law texts, civil law codes, treaties and constitutional texts may provide a means to reveal the nature of hypertext as the new format for commentary. Margins used to be used for commentary, and now this can be done with hypertext and links in footnotes. Scholarly communication in general is now intertextual, and texts derive value …
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …
Marbury V. Madison Around The World, Mark V. Tushnet
Marbury V. Madison Around The World, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …
Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet
Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …
Faulty Adversarial Performance By Criminal Defenders In The Crown Court, Peter W. Tague
Faulty Adversarial Performance By Criminal Defenders In The Crown Court, Peter W. Tague
Georgetown Law Faculty Publications and Other Works
Who is the more able advocate, the lawyer in the United States or the barrister in England and Wales? Answering that question is extremely difficult because of a multitude of differences in the procedural regimes in which each works and in the scope of each's responsibility. Yet, one facet stands out, like a full moon in a dark sky: The comparative number of defenders who on appeal have been accused of having provided inappropriate representation in the process leading to conviction . . . Part 1 discusses the procedural hurdles that make challenging the trial barrister's conduct more difficult than …