Constitutional Law Commons^™

A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe

Vanderbilt Journal of Transnational Law

This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Vicki C. Jackson, Constitutional Engagement In A Transnational Era, Melissa A. Waters

Scholarship@WashULaw

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional …

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …

Inclusive Constitutional Comparison: Reflections On India's Sodomy Decision, Madhav Khosla

Faculty Scholarship

Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India's recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court …

Withdrawing From International Custom: Terrible Food, Small Portions, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the …

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

San Diego International Law Journal

This Article analyzes two key critical moments in the empowerment of the Supreme Court of India--the assertion of the basic structure doctrine, in which the Court asserted that constitutional amendments may be held unconstitutional on substantive grounds, and the development of the Public Interest Litigation (PIL) regime, through which the Court sought to protect and promote the rule of law and assume an expanded role in governance. I argue, in this article, that these two moments are exemplars of two types of moments that capture distinct aspects of the role of courts in different polities--"constitutional entrenchment" and "judicialization of governance" …

Physical-Strength Rationales For De Jure Exclusion Of Women From Military Combat Positions, Maia Goodell

Seattle University Law Review

Women have been serving in the military in steadily increasing numbers for decades. Nevertheless, the military remains one of the few areas in which the U.S. government decides what roles are open to women based on de jure exclusions. This Article examines the law governing de jure classification, noting that a mere normative belief about women’s proper place in society is an insufficient basis to justify a sex-based exclusion. It then probes the most common rationale advanced in support of the continued de jure exclusion of women: physical strength. The Article examines four problems with the physical strength rationale: (1) …

Political Institutions And Judicial Role In Comparative Constitutional Law, David Landau

Scholarly Publications

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombian parties are unstable and poorly tied to civil …

The Misapplication Of Leung Kwok Hung In Hong Kong: Authorizing The Rationality Requirement For Textually Absolute Rights, Albert Connor Buchman

Washington International Law Journal

The Hong Kong Bill of Rights Ordinance (BORO) guarantees many fundamental rights to Hong Kong’s permanent residents. In these constitutionally significant statutes, two types of rights exist: 1) textually qualified rights, which contain qualifying language indicating for what purposes a legislated restriction is permissible, such as when necessary for national security, public order, public health or morals, and 2) textually absolute rights, which contain no language indicating when a legislated restriction on that right is permissible. In Leung Kwok Hung & Others v. HKSAR, the Hong Kong Court of Final Appeal formulated a rationality requirement for when restrictions are …

Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton

Washington International Law Journal

The following is a translation of the Nagoya High Court’s decision in Mōri v. Japan, a case challenging the constitutionality of Japan’s deployment of its Self-Defense Forces (“SDF”) to the Middle East in connection with the United States-led occupation of Iraq. Beginning in December of 2003, Japan deployed ground and air forces of the SDF to the Middle East, including three C-130H “Hercules” transport aircraft which were used to airlift coalition forces and supplies between Kuwait and Baghdad. In response, more than 5,700 citizens, represented by over 800 attorneys, filed lawsuits in eleven district courts across the country in …

Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Malvina Halberstam

Cardozo Law Review

No abstract provided.

Transitioning To Free Speech: A Case Study On Legal Transfers In Jordanian Jurisprudence, Sarah Joy Gregory

Cardozo Law Review

No abstract provided.

Constitutional Authority And Subversion: Egypt's New Presidential Election System, Kristen Stilt

Faculty Working Papers

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to …

How Is Islam The Solution?: Constitutional Visions Of Contemporary Islamists, Kristen Stilt

Faculty Working Papers

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 "Political Party" Platform, and personal interviews with Brotherhood leadership to examine the group's specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in …

Introduction Of Judicial Review In Italy-Transition From Decentralized To Centralized Review (1948-1956)-A Successful Transplant Case Study, Louis Del Duca

Penn State International Law Review (1982 - 2011)

No abstract provided.

Secularism, The Veil And "Reasonable Interlocutors": Why France Is Not That Wrong, Guy Haarscher

Penn State International Law Review (1982 - 2011)

No abstract provided.

Hybridization: A Study In Comparative Constitutional Law, John Mceldowney

Penn State International Law Review (1982 - 2011)

Viewing constitutional law from a global perspective informs us about trends and concurrences that might otherwise go unnoticed. The main focus for this paper is how a new European legal tradition is being forged from two of the most influential Western traditions, the common and civil law. The term hybridization is used to refer to this phenomenon whereby there is convergence between different legal systems. This does not necessarily alter national sovereignty or substitute one system over another. It cannot be measured by success or failure of one legal system over another. It is a common sharing that is best …

Poverty And Constitutional Rights, Monica Pinto

Penn State International Law Review (1982 - 2011)

No abstract provided.

Teaching Constitutional Law In Malaysia: The Universiti Kebangsaan Malaysia's Experience, Henk Botha

Penn State International Law Review (1982 - 2011)

No abstract provided.

Unsafe Haven: Could Article 3 Of The U.N. Convention Against Torture Prevent The Extradition Of Terrorist Suspects To U.S. Custody, Faridah Jalil, Che Norlia Mustafa

Penn State International Law Review (1982 - 2011)

No abstract provided.

Everyone Knows Medellin; Has Anyone Heard Of O'Brien? Reconciling The United States And The International Community By Amending The Vccr, 43 J. Marshall L. Rev. 817 (2010), Steven M. Novak

UIC Law Review

No abstract provided.

Shari'ah And Choice: What The United States Should Learn From Islamic Law About The Role Of Victims' Families In Death Penalty Cases, 44 J. Marshall L. Rev. 1 (2010), Susan C. Hascall

UIC Law Review

No abstract provided.

Is Constitutionalism Bad For Intersectional Feminists?, Beverley Baines

Penn State International Law Review (1982 - 2011)

No abstract provided.

The Constitutional Role Of Transnational Courts: Principled Legal Ideas In Three-Dimensional Political Space, Kim Lane Scheppele

Penn State International Law Review (1982 - 2011)

No abstract provided.

Adjudicating Socio-Economic Rights Under A Transformative Constitution, Linda Stewart

Penn State International Law Review (1982 - 2011)

No abstract provided.

Distributive Justice-Poverty And Economic Development, V.S. Elizabeth

Penn State International Law Review (1982 - 2011)

No abstract provided.

The Protection Of Laicism In Turkey And The Turkish Constitutional Court: The Example Of The Prohibition On The Use Of The Islamic Veil In Higher Education, Mehmet Cengiz Uzun

Penn State International Law Review (1982 - 2011)

No abstract provided.

Two Understandings Of Supremacy: An Essay, Vincent J. Samar

Richmond Journal of Global Law & Business

Does the supremacy provision of Article VI of the U.S. Constitution undermine the legal force of international law in the United States? Recently, there has been some debate on this issue arising out of the claim that if the U.S. Constitution is “the supreme law of the land,” and that only constitutional officers of the United States, in keeping with their responsibilities to uphold the Constitution, can decide what is international law for the U.S. Such debates are not new to the history of the world. For much of world history, national rulers have claimed that their legal authority derives …