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Articles 1201 - 1230 of 2080
Full-Text Articles in Constitutional Law
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Washington International Law Journal
Since 2006, Thailand has witnessed an unprecedented surge of judicial activism from the Constitutional Court to scrutinize elected politicians in the name of the rule of law. Democracy, argued Constitutional Court judges, could only be consolidated if the rule of law was maintained. But examination of several high-profile constitutional cases suggested that the Constitutional Court was actually working on behalf of the powerful elite minority to obstruct the democratic process under the pretext of protecting the rule of law. This antagonistic position brewed resentment and violence which jeopardized the Constitutional Court’s legitimacy as a neutral political arbiter. The 2014 coup …
A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany
A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany
International Law Studies
This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …
Comments On The Nuremberg Principles And Conscientious Objection With Special Reference To War Crimes, Robert K. Woetzel
Comments On The Nuremberg Principles And Conscientious Objection With Special Reference To War Crimes, Robert K. Woetzel
The Catholic Lawyer
No abstract provided.
Germany's German Constitution, Russell A. Miller
Germany's German Constitution, Russell A. Miller
Scholarly Articles
Comparative lawyers, working with blunt taxonomies such as “legal families,” have been satisfied with characterizing Germany as representative or a member of the “Germanic-Roman” law tradition. The life of the Federal Republic’s post-war legal culture, however, reveals a richly more complicated story. The civil law tradition, with its emphasis on abstract conceptualism and codification, remains dominant. But it has had to accommodate a new, vigorous constitutionalism that bears many of the traits of the common law tradition, including judicial supremacy and a form of case law. This is the encounter of discrete legal traditions within a particular legal system that …
Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau
Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau
Scholarly Publications
No abstract provided.
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Washington International Law Journal
The most significant political issue facing the legal world in Japan is the drive for constitutional revision led by Prime Minister Shinzo Abe and his Liberal Democratic Party (LDP). This paper situates the revisionist movement within the context of postwar Japanese politics before drawing on theoretical literature in critical legal studies to analyze the LDP’s draft constituion to reveal the magnitude of the proposed changes and to assess the risk they pose to the rule of law in Japan. The paper argues that the proposed draft constitution eschews the languages of the current constitution like “a universal principle of mankind”, …
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Washington International Law Journal
This article analyzes recent change of Japanese governmental interpretation of Article 9 of the Constitution of Japan concerning the right of collective self-defense. This governmental interpretation of Article 9 has been elaborated by the Bureau of Cabinet Legislation. This article criticizes a recent critique of this situation by main stream Japanese constitutional scholars as “crisis of constitutionalism”.
What Is Foreign Relations Law?, Curtis A. Bradley
What Is Foreign Relations Law?, Curtis A. Bradley
Faculty Scholarship
This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …
Treaty Exit In The United States: Insights From The United Kingdom Or South Africa?, Curtis A. Bradley, Laurence R. Helfer
Treaty Exit In The United States: Insights From The United Kingdom Or South Africa?, Curtis A. Bradley, Laurence R. Helfer
Faculty Scholarship
This essay, a contribution to an AJIL Unbound symposium on “Treaty Exit at the Interface of Domestic and International Law,” compares treaty exit in the United States, the United Kingdom, and South Africa. After examining the longstanding practice of unilateral presidential withdrawals from treaties in the United States and the refusal to date of U.S. courts to review the constitutionality of that practice, the essay summarizes recent judicial decisions in the United Kingdom and South Africa holding that parliamentary approval was required before these nations could withdraw from treaties committing them, respectively, to the European Union and the International Criminal …
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
Faculty Scholarship
No abstract provided.
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Washington International Law Journal
The post World War II American Occupation of Japan was a huge programmatic success. Its disarmament, repatriation, land reform, and health programs put a defeated Japan on the road to recuperation, while providing a military shield that enabled Japan to focus on recovery from the War and rebuilding the country and economy. Perhaps its most enduring legacy was its Enlightenment-based, American-drafted, rights-oriented Constitution of 1947 [hereinafter “the Constitution”]. Drafted in English, the Constitution was promulgated in Japanese, resulting in some substantive changes. Among the most important of these were changing the English word “people” into the Japanese “kokumin” …
The End Of Constitutional Pacifism?, Yasuo Hasebe
The End Of Constitutional Pacifism?, Yasuo Hasebe
Washington International Law Journal
On September 19, 2015, the National Diet of Japan enacted a series of statutes which enable the government to exercise the right of collective self-defense. One of the statutes also enables the government to dispatch the Self-defense Forces to take charge of logistics for foreign military forces waging wars. This enactment symbolises Japan’s turn of course regarding its long-held stance on constitutional pacifism. Pacifism maintained under the Constitution of Japan was not pure pacifism rejecting any use of force. The successive governments held that the right of individual self-defense, in other words, the right to use force in order to …
Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas
Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas
Articles, Book Chapters, & Popular Press
Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …
Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes
Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes
Michigan Law Review Online
In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the U.K.’s withdrawal …
What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young
What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young
Faculty Scholarship
No abstract provided.
Original Foreign Affairs Federalism, Gary S. Lawson
Original Foreign Affairs Federalism, Gary S. Lawson
Faculty Scholarship
Two of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. I will not go so far as to say that Mike Glennon and Rob Sloane’s new book, Foreign Affairs Federalism: The Myth of …
Imagining Equity And Inclusion: South Africa's International Economic Politics And Reflections On The Writings Of Justice Dikgang Moseneke, Erika George
Faculty Scholarship
In honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa's trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country's constitutional economic justice commitments. First, emphasising Justice Moseneke's writings outside of his rulings …
The Politics Of Electoral Systems In The Former Yugoslav Republic Of Macedonia, Dardan Berisha
The Politics Of Electoral Systems In The Former Yugoslav Republic Of Macedonia, Dardan Berisha
Indiana Journal of Constitutional Design
The Former Yugoslav Republic of Macedonia (“FYROM”) experienced four major changes to its electoral system in the eight parliamentary elections held between 1990 and 2014. The Macedonian 1990 and 1994 parliamentary elections were held under a majority system, in which 120 members of the Parliament were elected from 120 constituencies, one member per constituency. A mixed-majority/proportional representation (“PR”) system was adopted for the 1998 elections, in which eighty-five seats were elected under the majority system from the constituencies, and thirty-five seats were elected proportionally from a nation-wide electoral district. Yet another system was adopted for the 2002 elections, in which …
Constitutional Law—Extraditing The Foreign Fugitive: Disentitlement In Civil Forfeiture, United States V. All Assets Listed In Attachment A, 89 F. Supp. 3d 817 (E.D. Va. 2015), Nicole Murray
University of Arkansas at Little Rock Law Review
No abstract provided.
The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo
The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo
Northwestern University Law Review
Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …
Regulating Lolicon: Toward Japanese Compliance With Its International Legal Obligations To Ban Virtual Child Pornography, Cory L. Takeuchi
Regulating Lolicon: Toward Japanese Compliance With Its International Legal Obligations To Ban Virtual Child Pornography, Cory L. Takeuchi
Georgia Journal of International & Comparative Law
No abstract provided.
Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman
Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman
Georgia Journal of International & Comparative Law
No abstract provided.
Right, Title And Interest In The Territorial Sea: Federal And State Claims In The United States, Stephen M. Kiser, Dan A. Aldridge Jr.
Right, Title And Interest In The Territorial Sea: Federal And State Claims In The United States, Stephen M. Kiser, Dan A. Aldridge Jr.
Georgia Journal of International & Comparative Law
No abstract provided.
Soviet Accession To The Universal Copyright Convention: Possible Implications For Future Foreign Publication Of Dissidents’ Works, Lee J. Ross Jr.
Soviet Accession To The Universal Copyright Convention: Possible Implications For Future Foreign Publication Of Dissidents’ Works, Lee J. Ross Jr.
Georgia Journal of International & Comparative Law
No abstract provided.
“Criminal Records” - A Comparative Approach, Sigmund A. Cohn
“Criminal Records” - A Comparative Approach, Sigmund A. Cohn
Georgia Journal of International & Comparative Law
No abstract provided.
Book Review: Foreign Affairs And The Constitution. By Louis Henkin. Mineola, N.Y.: The Foundation Press, 1972. Pp. 553. $11.50., Carl Marcy
Georgia Journal of International & Comparative Law
No abstract provided.
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
Washington International Law Journal
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005–2013). This era in Pakistan’s judicial history was also marked by great controversy as the court faced charges that it had engaged in “judicial activism,” acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion …
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
Washington International Law Journal
This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong’s constitutional document, in ways unforeseen by the Chinese National People’s Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of British rule is remarkable when considered in light of the continuing denial of democratic self-rule by China’s authoritarian Party-state. This article argues that the profusion of political transaction costs due to the fragmentation of the ruling elite and state-society discord consequent to the resumption of …
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
Washington International Law Journal
In the decade following its inception, the Indonesian Constitutional Court has marked a new chapter in Indonesian legal history, one in which a judicial institution can challenge the executive and legislative branches. This article argues that judicial leadership is the main contributing factor explaining the emergence of judicial power in Indonesia. This article posits that the newly established Indonesian Constitutional Court needed a strong and skilled Chief Justice to build the institution because it had insufficient support from political actors. As the Court lacked a well-established tradition of judicial review, it needed a visionary leader who could maximize the structural …
Moving Towards A Nominal Constitutional Court? Critical Reflections On The Shift From Judicial Activism To Constitutional Irrelevance In Taiwan's Constitutional Politics, Ming-Sung Kuo
Washington International Law Journal
The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first …