Comparative and Foreign Law Commons^™

Towards Democracy In A New South Africa, Adrien Katherine Wing

Michigan Journal of International Law

Review of Constitutional Options for a Democratic South Africa: A Comparative Perspective by Ziyad Motala

The Fourth Amendment Protection Against Unreasonable Searches And Seizures And The French Experience, Florence Sophie Boreil

LLM Theses and Essays

Under the American approach to criminal justice, freedom of the individual is of the utmost importance. The American criminal justice system reflects a distrust of abuse of power and an emphasis on protection of personal freedom. However, the French take a contrary approach; under French law, freedom is achieved through the State. This paper examines the protection of individuals’ rights in American and French criminal procedure. Focus will be given to tracking the police investigatory powers in each country through searches and seizures, and the impact that those powers have on individuals’ rights. This paper will assert that the police …

Introduction, Jamey Gambrell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Holistic Approach To Criminal Justice Scholarship, William T. Pizzi

Publications

No abstract provided.

Judicial Protection Of The Individual Against Administrative Actions In The United States And In Germany, Joerg Nikolaus Uhl

LLM Theses and Essays

From the Preamble of the U.S. Constitution which begins “We the people…,” the focus of the American legal system is clear. The individual and personal freedom are the primary concern for protection under U.S. law. Conversely, the German legal system places its focus on the preservation of the democratic system. This difference and the weight the U.S. places on separation of powers, whereas the executive and legislative branches are closely related in Germany, have combined to produce many differences between the U.S. and German political and legal systems. This paper analyzes these differences, especially with regards to administrative agencies and …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

Fundamental Constitutional Rights In The New Constitutions Of Eastern And Central Europe, Rett R. Ludwikowski

Scholarly Articles

The goal of this article is to review the efforts of the drafters. This study analyzes the process of drafting the new bills of rights against the background of the Western experience. The paper consists of two parts. The first examines the genesis of American and European constitutional protection of human rights, including the socialist concept of the bill of rights. The second is an analysis of basic constitutional rights as provided in several new constitutions and constitutional drafts of the countries of former Soviet dominance.

The article also examines the actual records of these countries in human rights protection. …

An American Perspective On Environmental Impact Assessment In Australia, Mark Squillace

Publications

No abstract provided.

National Socialism And Constitutional Law: Carl Schmitt, Otto Koellreutter, And The Debate Over The Nature Of The Nazi State, 1993-1937, Peter Caldwell

Cardozo Law Review

On January 30, 1933, President von Hindenburg named Adolf Hitler chancellor of the German Republic. One year later, the conservative (and by then National Socialist) constitutional lawyer, Carl Schmitt noted that Hitler's chancellorship was an event that had "already led beyond the Weimar Constitution." But where had the seizure of power led? What was the nature of the new constitution of the German Empire? As historian David Schoenbaum has noted, 1933 was a kind of "constitutional no man's land"; it was unclear how the principles enumerated in the Nazi Party Program of 1920 would translate into the reality of the …

Canada's New Immigration Act: An Affront To The Charter And Canada's Collective Conscience?, Mark Anthony Drumbl

Scholarly Articles

This essay explores the constitutionality of sections 46.01(1) and 19(1)(c.1)(i) of the federal Immigration Act. These sections empower immigration officials to exclude from the refugee determination process any claimant who has arrived in Canada via a "safe" third country or who has been determined to have committed a criminal offence in the home country, unless the claimant falls into several narrow exceptions provided by the statute. The author submits that these provisions violate the procedural requirements of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. A further investigation is made as to whether these …

Civil, Constitutional And Criminal Justice Responses To Female Partner Abuse: Proposals For Reform, Mark Anthony Drumbl

Scholarly Articles

Female partner abuse -- the battering inflicted by heterosexual men upon their wives, common-law spouses and intimate partners -- is a pervasive phenomenon in North American society. Through a comparative analysis of the responses to female partner abuse in Buffalo (New York), Toronto and London (Ontario) this paper demonstrates that pro-arrest policing policies have a vital role in curbing conjugal violence. Nevertheless, any truly effective response to female partner abuse must link the criminal justice system with other areas of the law as well as community services. With this interdisciplinary approach as a governing paradigm, several reforms are proposed. These …

Exploring The Constitutional Limits To Workfare And Learnfare, Mark Anthony Drumbl

Scholarly Articles

In recent times, there has been growing interest in the concepts of mandatory work and training programs for social assistance recipients. In this article, the author examines the social policy arguments for and against such programs. He also analyzes them from the perspective of the Charter of Rights. He concludes that mandatory work and training programs may be subject to legal challenge under the Charter of Rights unless participation is voluntary or the programs are carefully designed.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

Legal Foundations And Institutional Framework Of The Monetary Union In Europe And In The United States, Johan Van Den Cruijce

LLM Theses and Essays

An economic and monetary union (EMU) is an area where there is complete freedom of movement of persons, goods, services, and capital. The financial markets in an EMU are completely integrated while the national currencies are conventional and have fixed exchange rates. Ultimately the national currencies may be replaced by a common currency and there will be one monetary policy. The EMU is considered to be the highest form of economic integration. This paper examines two examples of a monetary union; the first part focuses on the blueprint for a European monetary union as laid out in the Treaty on …

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael Fitts

Cardozo Law Review

Over the past few years public law debates have invariably focused on the relative significance of legal institutions as expressed in formal legislative and administrative structures versus everyday politics in the resolution of policy questions. This emphasis has been particularly evident in the examination of the appropriate structure and distribution of responsibility for administrative decision making, in general, and presidential authority versus agency autonomy, in particular.

Canadian Discord Over The Charlottetown Accord: The Constitutional War To Win Quebec, Jeffrey J. Cole

Penn State International Law Review (1982 - 2011)

No abstract provided.

Apple Of Gold: Constitutionalism In Israel And The United States, Cynthia A.M. Stroman

Michigan Law Review

A Review of Apple of Gold: Constitutionalism in Israel and the United States by Gary Jeffrey Jacobsohn

Traditionalism, Secularism, And The Transformative Dimension Of Religious Institutions, W. Cole Durham Jr., Alexander Dushku

BYU Law Review

No abstract provided.

Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith

BYU Law Review

No abstract provided.

Schools As Intellectual And Moral Associations, Bruce C. Hafen

BYU Law Review

No abstract provided.

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.

Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz

University of the District of Columbia Law Review

No abstract provided.

Illiteracy, Disempowerment And Injustice: How The Ontario Human Rights Code Can Protect Persons With Low Literacy Skills, Mark Anthony Drumbl

Scholarly Articles

For too long individuals with low literacy skills have been viewed as "illiterates" living on the margins of society, unable to function as well as their "literate" counterparts. In reality, the one third of all Canadians who have weak literacy skills perform vital roles in society and deserve not to be discriminated against in political employment and contractual situations.

Accordingly, the author suggests that discrimination against individuals with low literacy skills be prohibited by the creation of a new ground in the Ontario Human Rights Code entitled "lack of proficiency in English or French". The author canvasses the ability of …

Constitutionalism In Eastern Europe: Alternatives To The Liberal Social Contract, Brad R. Roth

Penn State International Law Review (1982 - 2011)

No abstract provided.

"The Door That Never Opens"?: Capital Punishment And Post-Conviction Review Of Death Sentences In The United States And Japan, Daniel H. Foote

Articles

The capital punishment system and current standards for collateral review of capital sentences appear quite similar in the United States and Japan. On a deeper level, though, the systems are moving in very different directions. Given. the extensive literature on capital punishment and capital habeas in the United States, this article focuses chiefly on Japan, examining the process by which the standards governing postconviction review have been relaxed and the impact of that change. Japan's Supreme Court bears the image of being a highly conservative, passive institution resistant to dramatic .change of any sort. Yet this examination reveals that, in …

Presidential Systems In Stress: Emergency Powers In Argentina And The United States, William C. Banks, Alejandro D. Carrió

Michigan Journal of International Law

This article offers three comparative insights. First, it concludes that comparative inquiries into presidential systems may be useful for those interested in constitutional government, regardless of historical, cultural, or other contextual differences among nations. Thus, nations with presidentialist constitutional systems may have common problems because of the institutional presidency. The article maintains that our presidential systems are in such states of disrepair that a fundamental reinvigoration of the legislative and judicial branches is required, so that government may better serve important constitutional values in our nations.

Constitutionalism In Eastern Europe: Alternatives To The Liberal Social Contract, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

Developing A New Constitution For Poland, Andrzej Balaban

Cleveland State Law Review

Without examining the long, complicated, and even distinguished constitutional history of Poland, it is impossible to understand the challenge facing that country as endeavors to establish a new Polish constitution are underway. History and tradition have long been the inspirational force and strength behind Poland's continual resistance to aggressors and occupiers, including the communist authorities. Ultimately, the constitutional history of Poland proved to be a dominating factor in the defeat of communism and the development of an independent Polish state, changes which lead to similar events throughout the countries of Central and Eastern Europe. This examination of the constitutional history …