Law Commons^™

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

From Origin To Delta: Changing Landscape Of Modern Constitutionalism, Jiunn-Rong Yeh, Wen-Chen Chang

ExpressO

This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional …

Theories Of Supranationalism In The Eu, Rafael Leal-Arcas

ExpressO

Supranationalism has been a topic of analysis from various points of view when trying to understand the process of European integration. This article aims at presenting the major theories of supranationalism when discussing the ongoing process of European integration. Three main theories are examined: 1) normative versus decisional supranationalism; 2) theories of partial integration, and 3) legal theories of economic integration (such as the neo-liberal economic policy, the European Community (EC) as a special-purpose association of functional integration, as well as the theory of the supranational and intergovernmental dual structure of the EC).

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Why Justice Scalia Should Be A Constitutional Comparativst . . . Sometimes, David C. Gray

ExpressO

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This essay begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia’s writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the essay does not propose a …

Is Ec Trade Policy Up To Par?: A Legal Analysis Over Time - Rome, Marrakesh, Amsterdam, Nice, And The Constitutional Treaty, Rafael Leal-Arcas

ExpressO

This article is an attempt to a thorough chronological analysis of the European Community’s (EC) existing law and policy in the field of international trade law since the beginning of the European Economic Community. It deals with the evolution of the EC’s common commercial policy competence through the years, starting with the European Coal and Steel Community (ECSC), moving on to the necessary changes brought by the World Trade Organization (WTO) Agreement, signed in Marrakesh in 1994, until the days of the European Union (EU) Constitutional Treaty, with a view to enabling the EC with a coherent trade policy in …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

The Headscarf As Threat? A Comparison Of German And American Legal Discourses, Robert A. Kahn

ExpressO

In this article I compare how American and German judges conceptualize the harm the headscarf poses to society. My examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching; and State v. Freeman, in which a Florida court held that a woman could not pose for a drivers license wearing a garment (the niqab) that covered all of her face except her eyes. While judges …

Constitution, Kirk W. Junker

Kirk W Junker

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Squaring The Circle: Democratizing Judicial Review And The Counter-Constitutional Difficulty, Miguel Schor

ExpressO

The Article argues that the polarization in the appointments process for the United States Supreme Court creates a problem that I call the counter-constitutional difficulty. A constitution is designed to put certain decisions off limits to the workings of ordinary politics. Laws can be made and changed by majoritarian mechanisms whereas a constitution can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. The easiest way to amend the Constitution is by changing the membership of the Supreme Court given the rigors of Article V. A number of decisions by the Court …

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Dignity - The Enemy From Within, Guy E. Carmi

ExpressO

The manuscript challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

The manuscript also demonstrates why articulations of the rationales behind the “argument from dignity” are either superfluous, since they are aptly covered by the “argument from autonomy,” or simply too broad and speech-restrictive to be considered a free speech justification. As a matter of principle, the nexus between freedom of …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

How Should A Court Deal With A Primary Question That The Legislature Seeks To Avoid? The Israeli Controversy Over Who Is A Jew As An Illustration, Gidon Sapir

ExpressO

Legislative avoidance of principled decisions on substantive questions, by transferring the decision making task to the executive branch, is a frequent scenario. The legislature does this by way of either express, or hidden delegation, i.e. by using ambiguous wording that on the face of it only requires interpretation, but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic in order to avoid the adoption of a substantive decision in the dispute over the question of: “who is a Jew” - a dispute that has divided Israeli society and …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras

Andrés Palacios Lleras

Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …

Конституционное Право Иорданского Королевства, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Jordan shows a rare example of stability in the Middle East, abilities to establish the peace connexion with the next states, to find political compromises in the country. Not last role have played in it the person and political experience of king Hussein ben-Talala, having rather considerable authority both on the Arabian world, and on the next Israel

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17, Clark B. Lombardi, Nathan J. Brown

Articles

The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also …