Comparative and Foreign Law Commons^™

Harm, Morality, And Feminist Religion: Canada's New -- But Not So New -- Approach To Obscenity, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Comparative Analysis Of Concurrent Powers In The United States And In The European Community, Sandrine N. Darrouzet

LLM Theses and Essays

This thesis investigates the internal concurrent powers through tax and trade of the European Union with a comparative analysis to the American system and decision-making process.  The thesis starts with an analysis of the roots of concurrent powers in the United States and in Europe. Then, with the subjects of tax and trade, it will determine the nature of concurrent powers. The final part examines the possible solutions to limit the scope of concurrent powers. The thesis also includes a special analysis of Article 3B of the Treaty on European Union which focuses on limits of power conferred upon the …

The 1991 Supreme Court Term: Review And Outlook, John O. Mcginnis

Articles

The 1991 Supreme Court Term was the first during which justices originally appointed by Presidents Ronald Reagan and George Bush-Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas-constituted a majority. The term's main surprise, however, was that this majority of five-indeed, a majority of six when Chief Justice William Rehnquist, elevated to that position by President Reagan precisely because of his judicial philosophy, is included-did not forge a consistent jurisprudential majority characterized by the strict interpretative approach favored by their sponsoring presidents. While, generally speaking, the Court's decisions certainly continued to represent a departure from the expansive …

Modern Constitutionalism As Interplay Between Identity And Diversity: An Introduction, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

Constitution-Making By Treaty In German Unification: A Comment On Arato, Elster, Preuss, And Richards, Peter E. Quint

Cardozo Law Review

No abstract provided.

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

Scholarly Articles

The article consists of two parts. The first is the update of constitutional transformation in the region experiencing the retreat from communism. The organization of this part requires some explanation. The part breaks down into two separate chapters on constitution-drafting in former Soviet Republics and in the new democracies of East-Central Europe. As the former Soviet republics existed within the same statehood until the end of 1991, it seemed appropriate to assemble comments on political developments in the former U.S.S.R in one subchapter examining the end of Gorbachev's era and the process of the establishment of the Commonwealth of Independent …

Revolution And Constitutionalism In America, David A.J. Richards

Cardozo Law Review

No abstract provided.

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …

Ethnic Identity And Constitutional Design For Africa, Alemante G. Selassie

Faculty Publications

No abstract provided.

Germany Reunified: International And Constitutional Problems, Helmut Steinberger

BYU Law Review

No abstract provided.

A Decent Respect To The Opinions Of Mankind, 25 J. Marshall L. Rev. 215 (1992), Louis Henkin

UIC Law Review

No abstract provided.

Foreword: O Canada, William W. Van Alstyne

Faculty Publications

This forward, written ten years after the adoption of the Constitution of Canada, draws sharp comparisons between Canada’s constitution and the United States’ original governing document, the Articles of Confederation.

The Canadian Constitution And The Dangers Of Establishment, Richard Kay

Faculty Articles and Papers

No abstract provided.

Foreword: The Constitution Of Responsibility, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The American legal academy is decidedly nationalistic. Comparative law tends to be a minor part of the law school curriculum, and discussion of alternative legal systems almost never finds its way into mainstream courses like constitutional law. As a result, much that is distinctive about American constitutionalism, and the American legal system in general, is often taken for granted. The federal Constitution, for example, says much about governmental structure, power, and limitations, but virtually nothing about the obligations of citizens to one another or to the government.' This feature of the American Constitution starkly sets it apart from many of …

An Emerging Conception Of Fundamental Rights In Contemporary Russia, Mary Holland

Cardozo Journal of International and Comparative Law

The article explores the emergence of a new conception of fundamental rights in post-Soviet Russia, marking a significant shift from a totalitarian regime to a more democratic, rule-of-law-based system. This transformation is evident through the adoption of key legal documents: the Declaration of Rights and Freedoms, the Conception of Judicial Reform, and the Law on the Constitutional Court. These reforms reflect a rejection of the Soviet legal tradition, alignment with international human rights standards, and a re-emergence of pre-revolutionary Russian legal ideals. The article argues that these developments signify a fundamental change in the Russian legal framework, emphasizing individual rights …

Devolution Or Deconstruction Czecho-Slovak Style, Eric Stein

Michigan Journal of International Law

This essay is a part of a broader study entitled "Post-communist Constitution-making: Confessions of a Comparatist" which focuses on Czechoslovakia.

Lessons Of Founding Fatherhood, Neal Devins

Popular Media

No abstract provided.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

JAPANESE CRIMINAL JUSTICE

By A. Didrick Castberg

New York, New York: Praeger Publishers, 1990. Pp. 153. $42.95.

THE INTERNATIONALIZATION OF HUMAN RIGHTS

By David P. Forsythe

Lexington, Massachusetts; Lexington Books, 1991. Pp. 209.$34.00.

FEDERAL COURTS AND THE INTERNATIONAL HUMAN RIGHTS PARADIGM By Kenneth C. Randall

Durham, North Carolina; Duke University Press. 1990. Pp. 295. $45.00.

ROMAN LAW AND COMPARATIVE LAW

By Alan Watson

Athens, Georgia: University of Georgia Press, 1991. Pp. 328. $50.00

THE U.S. CONSTITUTION AND FOREIGN POLICY

By Victoria Marie Kraft

New York, New York: Greenwood Press, 1990. Pp. 185. $45.00.

The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port

Faculty Scholarship

Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.

Confessions And The Right To Silence In Japan, Daniel H. Foote

Articles

In several highly-publicized recent cases in Japan, individuals convicted of murder and sentenced to death were acquitted in retrials obtained after decades on death row. These so-called "death penalty retrial cases'" generated great controversy and considerable reflection about the criminal justice system in Japan. A central, substantive issue presented by these cases relates to the procurement and use of confessions; each of these cases-and several other major recent Japanese cases in which defendants have been acquitted following bitterly contested trials-turned on the validity of repudiated confessions.

Consequently, much recent commentary has focussed on conf essions and related issues. Not surprisingly, …

The Unification Of Germany And International Law, Frans G. Von Der Dunk, Peter H. Kooijmans

Michigan Journal of International Law

What role these rights and obligations could have played is the central theme of this article. However, in view of the enormous complexity of the problems involved, this article can do no more than provide a general overview. Sections II through VII will first sketch the outlines of the rights and obligations confronting the two German States before unification. Section VIII will compare those outlines to the actual political outcome of the unification process. The former six Sections will explore a number of different contexts in which legal rights and obligations could have been found.

German Unification: Constitutional And International Implications, Albrecht Randelzhofer

Michigan Journal of International Law

A discussion about the legal problems of German unification, taking into account the realms of German constitutional law, public international law, and the law of the European Communities.

Comparative Constitutional Fundamentals, Richard Kay

Faculty Articles and Papers

No abstract provided.

The Exclusionary Rule And Confession Evidence: Some Perspectives On Evolving Practices And Policies In The United States And England And Wales, Mark Berger

Faculty Works

No abstract provided.

German Constitutionalism: A Prolegomenon, Donald P. Kommers

Journal Articles

This essay sets out to describe the main features of German constitutionalism, and it concludes by drawing some comparisons with the United States. The term "constitutionalism," however, suffers from the vice of vagueness. As Gerhard Casper has written, "it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain." Any attempt to explore the contours and roots of German constitutionalism in the global sense suggested by Casper's comment would be a major undertaking extending far beyond the limits of this study. As used here the term shall be limited to …

Compromising On Abortion, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Searching For A New Constitutional Model For East-Central Europe, Rett R. Ludwikowski

Scholarly Articles

The purpose of this Article is to review the constitutional traditions of the East-Central European states with emphasis on their liberal and democratic attributes. The Article will also examine the common core of the socialist constitutions and analyze the current constitutional development in the Soviet Union and in the two Central European countries most advanced in the process of constitutional transformation, Poland and Hungary. Finally, it will supply observations on the process of forming a new constitutional model in East-Central Europe.

The Jurisprudence Of Constitutional Law: The Philosophical Origins And Differences Between The Western Liberal And Soviet Communist State Law, Ziyad Motala

Penn State International Law Review (1982 - 2011)

This article will examine the philosophical notions of a constitution and a state system from a historical perspective. It will highlight the different philosophical bases of state law and the purpose the constitution is meant to serve under the two divergent orders. The approach will be descriptive and comparative. The purpose of this work is not (in the words of Christopher Osakwe) to pass off a political opinion about the desirability of one or the other legal systems. Instead, the essential focus will be to examine the jurisprudence underlying the constitutional systems, and the different uses that constitutions perform in …

The French Declaration Of The Rights Of Man And Citizen And The American Constitutional Development, Rett R. Ludwikowski

Scholarly Articles

The thorough examination of the influence of the French Declaration of the Rights of Man and Citizen on constitutions has long awaited proper implementation. The importance of the French act has never been questioned but its multi-sided impact has not been satisfactorily evaluated.

With respect to the American Constitution, this problem merits a specially comprehensive study. Although the American and French politics at the end of the eighteenth century were carefully examined, the links between the constitutional developments of both countries has never been researched exhaustively. The reasons seem to be threefold. First, with exception of the American Constitution, the …

West German Constitutionalism And Church-State Relations, Donald P. Kommers

Journal Articles

The complex structure of church-state relations in West Germany arises out of numerous provisions of the Basic Law that combine features of both separation and accommodation. The Basic Law's separationist features are expressed in various guarantees of religious liberty and in the ban on the establishment of a state church. Its accommodationist features appear in constitutional provisions on religious education as well as in articles, taken over from the Weimar Constitution, that confer upon the established churches a special juridical status enjoyed by no other nongovernmental entity. The arguably diverse goals of the religion clauses are difficult to reconcile, creating …