Law Commons^™

Access To Justice: Theory And Practice From A Comparative Perspective, Colin Crawford, Daniel Bonilla Maldonado

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The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend …

Sudden, Forced, And Unwanted Kisses In The #Metoo Era: Why A Kiss Is Not “Just A Kiss” Under Italian Sexual Violence Law, Rachel A. Van Cleave

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#MeToo reports have revealed a significant number of forced kisses typically by men in positions of authority. Previous scholarship in the US has viewed such instances as to rare or too minor to be worthy of criminal sanctions. Indeed, there are no such reported criminal cases involving adults. However, in Italy, the Supreme Court of Cassazione has upheld sexual violence convictions for such forced kisses. This article analyzes these cases and investigates the types of considerations the Italian Supreme Court includes in its evaluation of these situations. This article also suggests specific aspects of US laws that could benefit from …

What Italian Sexual Violence Law Can Teach Us Law In The #Metoo Era, Rachel A. Van Cleave

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On International Women’s Day, with women facing challenges on equal pay, reproductive rights, sexual harassment and violent sexual assault, the topic of sudden, forced and unwanted kisses initially seems trivial, unworthy of consideration. However, Alva Johnson’s recent civil complaint against Donald Trump for kissing her on the side of her mouth, raises the question of whether such conduct should be criminal in the United States.

The Viability And Sustainability Of Landlocked States Under International Law Vis-A-Vis Municipal Law: The Case Of South East States Of Nigeria, Christian N. Okeke

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This paper has been divided broadly into two parts; the first deals with landlocked independent states under international law while the second part deals with the unique position of Southeast states and what lessons they can learn from the experiences of landlocked states in trying to create, within Nigeria, an economic powerhouse that would not only benefit the region but the country as a whole.

Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen

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This Article seeks to understand and evaluate core elements of the past promise and present reality of Spain’s transformation from Francoist dictatorship to modern European democracy. It does this by investigating the role of the 1978 Constitution and the distinctive Spanish Model of relatively peaceful constitutional transformation in facilitating the key legal elements of Spain’s transition to democracy. Following a review of important historical developments related to Spanish constitutionalism in Part I, this Article scrutinizes the process by which Spain transitioned to democracy in the 1970s. Part II focuses particularly on the dominant characteristics of the Spanish Model, which facilitated …

Academic Collaborations In The Americas: Some Reflections On The Political Economy Of Legal Knowledge, Colin Crawford, Daniel Bonilla Maldonado

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The article proceeds in three parts. The first, the articles’ analytical heart, considers the political economy of legal knowledge. It describes briefly the free market of legal ideas and the colonial model for the production of legal knowledge. It illustrates how these two models work using examples from our “South-North Partnerships” (SNP), that is, our collaborative practices in the creation of legal thought as they play out in the legal academies of the global North and South. The second part is both descriptive and reflective, focusing on four different SNP examples that illustrate challenges in the creation of truly collaborative …

Substantive Equality And Sexual Orientation: Twenty Years Of Gay And Lesbian Rights Adjudication Under The South African Constitution, Eric C. Christiansen

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Examining the historical achievements and failures of the South African Constitution’s sexual orientation protections highlights larger lessons from the last twenty years of constitutionalism in South Africa. In this Article, I use the drafting history, Constitutional Court adjudication, and the practical insufficiencies of the Constitution’s inclusion of sexual orientation-based protections to highlight three categories of insights. These lessons include an encouraging insight regarding the inclusion of novel and progressive elements when drafting modern constitutions; some modest claims about the capacity of courts to combat inequality based on sexual orientation despite the limitations of purely legal victories; and a hopeful affirmation …

Social Function And Value Capture: Do They Or Should They Have A Role To Play In Polish Land Development Regulation, Colin Crawford, Julian Conrad Juergensmeyer, Dawid Sześciło

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Following the introductory Part I, in Part II, two of the three authors here, both U.S. law professors, seek to identify some conceptual and practical legal tools for a more orderly and balanced land use development in the Warsaw metropolitan region, one that promotes not just economic and industrial growth but one that also serves medium- and longer-term social and environmental interests as well. Part III, written by the third author – a Polish law professor, will evaluate the prospects for, as well as the challenges and impediments to, implementing these legal tools in the Polish context. Finally, in Part …

Thailand On The Pacific Rim, Sompong Sucharitkul

Publications

We are gathered here today as members and alumni of Golden Gate University School of Law, peacefully settled on the shores of the Oriental side of the Pacific Rim, sometimes known as the West coast of the United States. As is generally known, the ocean is named “Pacific” to introduce calmness, or to reduce the degree of calamity of this widest and wildest expanse of salt waters on earth.

I have been specifically asked to tell a story, in my own words, about the thinking of Thailand some fifty years back, facing weather conditions and the unseasonal political storms within …

The Cambodian Law Faculty: Blueprint For A Curriculum Rich In Research And Experiential Education, Stephen A. Rosenbaum

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Experiential education. Rigorous research and writing. Scholarly engagement. A window onto the ASEAN nations and beyond. These should be the hallmarks of today’s law faculty in Cambodia. The objective is to provide a professional education for the future thinkers and leaders of a nation in the throes of rapid development.

A New Day: Prime Time To Advance Afghan Clinical Education, Stephen A. Rosenbaum

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In a previous issue of the Journal, Richard Grimes discussed the role that legal clinics can play in facilitating access to justice in a post-­‐conflict society, such as Afghanistan’s, wracked by decades of civil war, external military intervention, and consequential regime changes. 1 ASIAN J. LEGAL EDUC. 71 (2014). As foreign military forces withdraw, this Central Asian nation faces renewed security concerns and uncertainty about its politico-­‐economic future. Yet, there is now a critical mass of law and Shari’a professors trained in the principles of experiential education, a few legal clinics are in place, and many deans are keen on …

The Use Of International Law In The Domestic Courts Of Ghana And Nigeria, Christian N. Okeke

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Ghana and Nigeria have been participating in international law by incorporating customary regional practices and recognized international legal concepts in their domestic judicial systems from their pre-colonial era until the present. International law has traditionally proved to be the foundation of domestic legal concepts and the application of law in the domestic courts; even during the colonial and immediate post-colonial periods when the sovereignty of both countries was severely limited by the illegalities of the British invaders that included duress, intimidation, fraud, and other vitiating factors. Though some problems remain, important indicators suggest that Ghana and Nigeria are uniquely positioned …

Empowerment, Fairness, Integration: South African Answers To The Question Of Constitutional Environmental Rights, Eric Christiansen

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This Article will assess the current level of constitutional protection provided by the South African Constitution and its potential to facilitate and influence the uncertain rise of constitutional environmental rights in the modern era. Following this Introduction, Part II recreates and examines the process by which environmental protections became part of the post-apartheid South African Constitution, drawing from original source research. Part III provides a detailed analysis of the textual right that arose from the constitutional process and reviews the core environmental case law of the Constitutional Court so far. And the final section, Part IV, analyzes the viability of …

Luogo E Spazio, Place And Space: Gender Quotas And Democracy In Italy, Rachel A. Van Cleave

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Space is power. Having a place, a seat, an ability to occupy a particular space can empower, in part by mere presence, but also by enabling a voice to be heard, to provide new perspectives, new ways of thinking and doing. Certainly, the recent Arab Uprisings' and the "Occupy" movement' took the forms they did, at least in part, because the participants understood the importance of physically occupying symbolically loaded spaces and places to promote political and social ideas and ideals. Conversely, exclusion from a place or "negative presence"' often has the effect of silencing and of marginalizing those who …

Engendering A Clinic: Lessons Learned From A Domestic Violence Clinical Course In Qatar, Stephen A. Rosenbaum, Mary Pat Treuthart

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Domestic violence, a serious problem around the world, remains a hidden concern among the Islamic Gulf States. Yet signs indicate the situation is changing. A team of American lawyers and professors, responding to student initiative and the Qatari development strategy, recently initiated Qatar’s first law school clinic, focusing exclusively on domestic violence. By highlighting the students’ experience, this article outlines the issues involved and the problems that were encountered, and resolved, during the development of this clinic. The students first studied the issue of domestic violence, then made presentations to the larger community to raise awareness of the topic. Subsequent …

Women And Poisons In 17th Century France, Benedetta Faedi Duramy

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During the late 1660s and the early 1670s, several mysterious deaths of influential members of the French nobility followed one after the other, leading to a scandal, better known as the "Affair of the Poisons," which involved prominent individuals at the royal court of Louis XIV in France. The King, who was concerned that the widespread use of the practice of poisoning could endanger his own safety and that of the royal family, appointed Nicolas de La Reynie, the Lieutenant General of the Paris Police, to oversee the investigation. In 1679, he also established a special tribunal, known as the …

A Review Of Great Legal Traditions: Civil Law, Common Law, And Chinese Law In Historical And Operational Perspective, Leslie A. Burton

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Three justices of the German Federal Constitutional Court, resplendent in red regalia, stand tall behind a high wooden bench and under an enormous carved eagle. A high ceiling emphasizes the splendor of the high court. The faces of Confucius, Constantine, and Blackstone, regal in their formal vestments, appear on the left. Superimposed text reads "Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective." The startlingly vivid book cover commands visual attention, while its title promises an overview of the history of three legal systems along with their presentday procedures. But an impressive cover can …

Re-Assessing Soviet Union Contribution To The Legal Training Of Third World Lawyers In The Twentieth Century: A Critical Appraisal Of Socialist Legal Education, Christian N. Okeke

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No abstract provided.

Environmental Benefits And The Notion Of Positive Environmental Justice, Colin Crawford

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Following the introductory section, the Article is divided into three parts. The first portion of Part 1 will chart the relatively thin case made in the U.S. literature for what this Article labels "positive environmental justice." The second section in Part 1 then looks outside the United States and analyzes an important and relatively recent decision of the Colombian Constitutional Court. The Colombian decision, which affirmed the constitutional and other international and domestic law rights of native and Afro- Colombian peoples in that country to make decisions regarding the use and exploitation of the nation's abundant forests," provides a nuanced …

The International War Crimes (Tribunal) Act, 1973 Of Bangladesh, Zakia Afrin

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Bangladesh earned her independence from Pakistan in 1971 after a bloody war that continued for nine months. By December 16 of 1971, the day Bangladesh declared victory, an estimated 30 million people died and 200,000 women reported sexual violence by the Pakistani Army and their Bengali accomplices. Known as one of the worst genocide in history, the systematic killing of Bengalis included a chilling attempt to exterminate the intellectuals from within Bangladeshi society. A published report claims that by 19 April, 1975 individuals were arrested for war crimes and 752 were convicted. After the assassination of the country’s first Prime …

Transformative Constitutionalism In South Africa: Creative Uses Of Constitutional Court Authority To Advance Substantive Justice, Eric Christiansen

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In this Article, I will first discuss some easily overlooked constitutional tools for promoting greater social justice: the procedural provisions of the South African Constitution related to jurisdiction, access, remedies and constitutional interpretation. Following that, I will use three recent Constitutional Court cases to demonstrate the Court's creative (and promising) use of its judicial authority to advance substantive justice. By way of conclusion, I will elaborate on the meaning of these recent developments for the transformative agenda of South Africa and for other nations.

From Violence Against Women To Women's Violence In Haiti, Benedetta Faedi Duramy

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Much of the current scholarship, as well as international policy studies focusing on civil conflicts and armed violence, has primarily construed women as victims and men as perpetrators of violence. Although this prevalent interpretation certainly reflects conventional wisdom and tells part of a true war story, the remainder, which has been very much less publicized and addressed, also perceives women as participants in violence and men occasionally as victims. This Article joins the chorus of scholars that have only recently begun to highlight the flaws of this common belief and conversely, describe female participation in conflict and armed violence, often …

A Cinderella Story: ‘Judicial Cooperation In Civil Matters’ Meets The Prince. Review Article Of Eva Storskrubb, Civil Procedure And Eu Law: A Policy Area Uncovered, Helen E. Hartnell

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No abstract provided.

The Challenges Of Climate Change Regulation For Governments On The Political Left: A Comparison Of Brazilian And United States Promises And Actions, Colin Crawford, Solange Teles Da Silva, Kevin Morris

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At the December 2009 United Nations Climate Change Conference in Copenhagen, as is now well known, the parties failed to agree on any detailed course of action, much less enter into a binding agreement to control carbon emissions. However, four developing countries, Brazil, China, India and South Africa, formed a working group now known as "BASIC," and promised to try and resolve at least one key sticking point. Specifically, the BASIC countries brokered an accord with the United States under which both developing and more developed nations would later submit carbon emissions target cuts.

Learning From Bogota: An Introduction To The Study Space Articles, Colin Crawford

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STUDY SPACE SYMPOSIUM ARTICLES: Learning from Bogota: An Introduction to the Study Space Articles.

The Study Space project of which this volume is the second iteration strives to create a forum to focus on the positive and negative effects of human activity as it changes physical and built environments-in the broadest sense of the term "environment," or what the Study. Space subtitle characterizes as the "human habits and habitats in, the 21st century." This volume endeavors to provide some such explorations and reflections for Bogota.

Using Constitutional Adjudication To Remedy Socio-Economic Injustice: Comparative Lessons From South Africa, Eric C. Christiansen

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This article seeks to explore the effectiveness of constitutional protection and court adjudication of social welfare rights as tools to address and remedy social injustice and economic inequality. The focus of this examination will be on South Africa and its post-apartheid Constitution that enumerates rights and protections intended to remedy the economic injustices of the country's past. This article argues that the model of adjudicating social rights in South Africa is exportable to other countries, while clarifying the reasonable expectations and potential contributions of such adjudication toward the achievement of socio-economic justice. Part I addresses two questions: first, why look …

Adjudicating Non-Justiciable Rights: Socio-Economic Rights And The South African Constitutional Court, Eric C. Christiansen

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This paper begins with an examination of social rights in the South African constitutional drafting process. Following a review of the traditional arguments against the justiciability of socio-economic rights, it then examines the South African Constitutional Court cases addressing social rights, focusing on four primary cases: the antecedent case Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 and three substantive social rights cases, Thiagraj Soobramoney v Minister of Health, KwaZulu-Natal, Government of Republic of South Africa v Irene Grootboom and Others, and Minister of Health v Treatment Action …

The Insistent (And Unrelenting) Challenges Of Protecting Biodiversity In Brazil: Finding The Law That Sticks, Colin Crawford, Guilherme Pignataro

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Following the introduction, Part I of this article will outline threats to biodiversity within Brazil's borders. Because this is a topic that has already been explored extensively, this article makes no attempt to cover that ground exhaustively. Instead, Part I will attempt to highlight the variety and extent of Brazilian ecosystems and the biodiversity within them. Part I will also discuss current and emerging threats to biodiversity in Brazil, and above all, threats that have become even more real since the United Nation's celebrated "Earth Summit," held in Rio de Janeiro in 1992. In particular, Part I will focus on …

Belonging: Citizenship And Migration In The European Union And In Germany, Helen E. Hartnell

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This article investigates the evolving notion of belonging through the lens of Germany's new frameworks for nationality/citizenship and migration. Given the quantity of EU activity in the fields under consideration here, European developments are also analyzed, though less for their own sake than for the sake of staking out the parameters within which Germany remains sovereign to act.

Throughout this article, the question of how concrete developments bear on larger questions about belonging will recur. I make two main arguments. First, however welcome Germany's dramatic legal reforms may be, they will not necessarily solve the problems such legislation was intended …

Report On The Second China-Asean Expo 18-21 October 2005, Nanning, Guangxi, China, Sompong Sucharitkul

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This is a preliminary report on the Second CHINA-ASEAN Free Trade Area (CAFTA, aliter ACFTA for ASEAN-CHINA) Exposition at Nanning in Guangxi Zhuang Autonomous Region, People's Republic of China on 18-21 October 2005. The purpose of this report is to bring to the attention of international business circles, traders and investors alike from within and outside the CAFTA geographical confines new openings and continuing phenomenal growth in business and investment opportunities in the combined ASEAN-CHINA region of East and South-East Asia with a thriving body of 1.85 billion consumers, by far the largest potential single market on earth at any …