Constitutional Law Commons^™

On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew

Washington International Law Journal

This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s movement toward a more rights-oriented approach followed by its more recent retreat, which has been marked by strict formalism and insularity in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must be willing to uphold its constitutional duty to assert its …

Constitutional Fig Leaves In Asia, Po Jen Yap

Washington International Law Journal

Constitutional landscapes in Asia are littered with fig leaves. These proverbial fig leaves are legal principles, doctrines, and theories of interpretation that judges appeal to when resolving constitutional disputes. This article uncovers and examines three constitutional fig leaves that are prevalent and flourishing in Asia: 1) formalism and its conceptual variants; 2) the exercise of judicial review that is merely symbolic; and 3) the invocation of vacuous constitutional doctrines. This article further argues that judicial recourse to fig leaves is not intended to deceive anyone about what courts are doing; the fig leaves are on public display merely to demonstrate …

Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold

Michigan Law Review Online

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …

Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Some Structural Dilemmas Of World Organization, C. Wilfred Jenks

Georgia Journal of International & Comparative Law

No abstract provided.

The Teaching Of International Law, Myres S. Mcdougal

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Policy And The Government Legal Adviser, Henry Darwin

Georgia Journal of International & Comparative Law

No abstract provided.

The Place Of Policy In International Law, Elihu Lauterpacht

Georgia Journal of International & Comparative Law

No abstract provided.

The Place Of Policy In International Law, Oscar Schachter

Georgia Journal of International & Comparative Law

No abstract provided.

Prostitution Policy: Legalization, Decriminalization And The Nordic Model, Ane Mathieson, Easton Branam, Anya Noble

Seattle Journal for Social Justice

No abstract provided.

Don’T Risk It; Wait Until She’S Sober, Patrick John White

Seattle Journal for Social Justice

No abstract provided.

Let’S Talk About Sex: A Call For Guardianship Reform In Washington State, Sage Graves

Seattle Journal for Social Justice

No abstract provided.

Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra

Seattle Journal for Social Justice

No abstract provided.

Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada

Seattle Journal for Social Justice

No abstract provided.

His Feminist Facade: The Neoliberal Co-Option Of The Feminist Movement, Anjilee Dodge, Myani Gilbert

Seattle Journal for Social Justice

No abstract provided.

In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward

Seattle Journal for Social Justice

No abstract provided.

Persistence And Resistance: Women’S Leadership And Ending Gender-Based Violence In Guatemala, Serena Cosgrove, Kristi Lee

Seattle Journal for Social Justice

No abstract provided.

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

The Politics Of Comparative Constitutional Inquiry: At The Crossroads Of Law, Political Science, And Ideology, Michel Rosenfeld

Articles

No abstract provided.

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany R. Berger

Cardozo Law Review

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

Public Law Litigation In The U.S. And In Argentina: Lessons From A Comparative Study, Martin Oyhanarte

Georgia Journal of International & Comparative Law

No abstract provided.

Declarations Of Unconstitutionality In India And The U.K.: Comparing The Space For Political Response, Chintan Chandrachud

Georgia Journal of International & Comparative Law

No abstract provided.

Selective Entrenchment In State Constitutional Law: Lessons From Comparative Experience, David Landau

Scholarly Publications

While the U.S. Constitution has long been viewed as an outlier along a number of dimensions, recent work has explored the similarities between comparative constitutionalism and the constitutionalism of the states. Scholars have noted that state constitutions look more like the constitutions often found abroad along several key dimensions. Most importantly for our purposes, they are often long, detailed, and specific documents that go well beyond merely setting up a basic framework, and they are often relatively flexible and easy to amend. In contrast, the U.S. Constitution seems unusually sparse and rigid.

This essay argues that the recent work on …

Political Support And Structural Constitutional Law, David Landau

Scholarly Publications

The field of comparative constitutional law has paid insufficient attention to judicial decisions on structural issues. This Article seeks to begin the process of constructing a comparative analysis of structural constitutional jurisprudence. Using both theoretical analysis and a case study, it seeks to demonstrate that courts are more likely to be successful in their programs of structural constitutional law when they enjoy support from other political and social actors. This simple point has significant implications for constitutional theory. First, it suggests that the structural safeguards theory long assumed in United States constitutional law may have only limited applicability. Under common …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew

Georgetown Law Faculty Publications and Other Works

This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish

Michigan Law Review

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …