Comparative and Foreign Law Commons^™

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

Faculty Publications

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 …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Human Rights Violations At Guantánamo Bay: How The United States Has Avoided Enforcement Of International Norms, Samantha Pearlman

Seattle University Law Review

Guantánamo Bay has become a symbol of the United States’ approach to the War on Terror. The detention center is globally known for the human rights violations committed there; yet, the international community has failed to take actions to successfully close the facility through either the use of pressure on the U.S. government or by utilizing enforcement mechanisms against the United States as it would any other nation committing proportional human rights violations. The United States’ actions at Guantánamo Bay violate its obligations under the Third Geneva Convention, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against …

The Evian Agreements On Algeria And The Lancaster Agreements On Zimbabwe: A Comparative Analysis, O. N. Musamirapamwe

Georgia Journal of International & Comparative Law

No abstract provided.

The Politics Of The Takings Clauses, Mila Versteeg

Northwestern University Law Review

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …

Dying In Original Sin Vis-À-Vis Living In Disgrace—In Defense Of The Right To Socio-Eugenic Abortion As Personal Liberty, Jayadevan V. R. Dr.

Hamline Law Review

Abstract

“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty

Pepperdine Law Review

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …

Section 702 And The Collection Of International Telephone And Internet Content, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection …

Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans

Georgia Journal of International & Comparative Law

No abstract provided.

Judiciary Rising: Constitutional Change In The United Kingdom, Erin F. Delaney

Northwestern University Law Review

No abstract provided.

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Transnational Business Governance Interactions Working Papers

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …

Constraining Constitutional Change, David Landau, Rosalind Dixon

Scholarly Publications

No abstract provided.

Unstable Constitutionalism, Mark Tushnet, Madhav Khosla

Faculty Scholarship

One of the most significant developments in the study of constitutional law in recent years has been the comparative turn in the field. Although debates continue over whether and how domestic courts should rely on (or even refer to) foreign law in domestic legal disputes, the appropriate methodology for comparative analyses, and the potential and limits of comparative constitutional studies, many scholars and practitioners – including well-known judges – no longer believe that the task of constitutional law is solely domestic in nature. Yet, despite the enthusiasm for comparative constitutional law and the emerging systematization of comparative work, the field …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

The Proportionality Standard And Constitutional Culture: A Comparative Analysis Of Rights Adjudication In Canada And The French Republic, James Peter Barry

LLM Theses

It has been suggested that the migration of proportionality as a standard of constitutional review is bringing about a degree of convergence in rights norms across common and civil law jurisdictions. While scholars have noted its potential to shape rights norms in legal systems into which it is incorporated, few have analysed the ways in which proportionality is affected by the constitutional culture in which it is received. This thesis is a comparative analysis of the application of proportionality in Canada and the French Republic. It sheds light on the extent to which the operation of that standard is affected …

The Role Of Religion In Constitutions Emerging From Arab Spring Revolutions, Evelyn Aswad

Faculty Articles

No abstract provided.

Introduction: Constitutional Conflict And Development: Perspectives From South Asia And Africa, Sudha Setty, Matthew H. Charity

Faculty Scholarship

This Introduction was written for an eponymous joint program held on January 4, 2014 and hosted by the Section on Africa and the Section of Law & South Asian Studies, both of the Association of American Law Schools.

The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites

Brooklyn Journal of International Law

On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.

This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …

Indonesia Has It Backward: It's Not E-Cigarettes That's The Problem But Smoking, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Indonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead.

Under Containment: Preempting State Ebola Quarantine Regulations, Eang Ngov

Faculty Articles

The outbreak of Ebola in Africa and its recent emergence in America has brought to light that the ambit of state sovereignty in the face of federal policy is unsettled in the public health field. Quarantine laws have historically been recognized as an exercise of state police powers and, absent discriminatory uses, courts have afforded much deference to states when the federal government is dormant. This article explores federalism implications when federal and state sovereigns contest the purview of regulating Ebola, other epidemics, and quarantine. This article examines how the federal government can assert supremacy to regulate treatment of epidemics …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

European Court Of Human Rights - Extradition - Inhuman Or Degrading Treatment Or Punishment, Soering Case, 161 Eur. Ct. H.R. (Ser. A) (1989), David L. Gappa

Georgia Journal of International & Comparative Law

No abstract provided.

United States Attitudes Toward Ratification Of Human Rights Instruments, Louis B. Sohn

Georgia Journal of International & Comparative Law

No abstract provided.

Raped By The System: A Comparison Of Prison Rape In The United States And South Africa, Alexandra Ashmont

Pace International Law Review

The main objective of this article is to create overall awareness and to give people a real sense of the events that go on every day inside prison walls. The article is meant to show people that the way they think about prison and prison rape specifically is severely jaded. What happens behind prison bars should certainly not stay behind prison bars. The stories within this article are unlike any prison rape stories people have heard before. They are harsh, inhumane, and deeply disturbing. The only way to incite change is to open people’s eyes to the true conditions within …

Constitution Making In The Countries Of Former Soviet Dominance: Current Development, Rett R. Ludwikowski

Georgia Journal of International & Comparative Law

No abstract provided.

Yugoslavian Constitutional Questions: Self-Determination And Secession Of Member Republics, Ben Bagwell

Georgia Journal of International & Comparative Law

No abstract provided.

Police, State Security Forces And Constitutionalism Of Human Rights In Zambia, Charles Mwalimu

Georgia Journal of International & Comparative Law

No abstract provided.

The Future Of Canadian Federalism, Susan Lavergne

Georgia Journal of International & Comparative Law

No abstract provided.

Human Rights - Haitian Refugees - Haitian Refugees Housed At Guantanamo Bay Naval Base Held To Have No Valid Constitutional Or International Law Claims To Challenge Forced Repatriation By The U.S. Government. Haitian Refugee Center V. Baker, 953 F.2d 1498 (11th Cir. 1992), Cert. Denied, 112 S.Ct. 1245 (1992)., Jason A. Golden

Georgia Journal of International & Comparative Law

No abstract provided.