Constitutional Law Commons^™

Pluralism In Marbury And Van Gend, Daniel Halberstam

Book Chapters

‘Great cases, like hard cases, make bad law’, Oliver Wendell Holmes, Jr, famously remarked in his first Supreme Court dissent. For Holmes, ‘great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment’. On this account neither Marbury v Madison70 nor Van Gend en Loos would qualify. Van Gend was a case of great principle without greatly interesting facts. And Marbury was a great political battle that nevertheless produced a case of great principle.

Between Starvation And Globalization: Realizing The Right To Food In India, Lauren Birchfield, Jessica Corsi

Michigan Journal of International Law

This Article evaluates People's Union for Civil Liberties v. Union of India & Others (PUCL) through multiple lenses, examining: (1) the necessary factors that contributed to the success of the Public Interest Litigation (PIL) and its enforcement and (2) both the implications and limitations of PUCL as it relates to India's larger economic policy framework. We argue that the development and success of the PUCL litigation have depended in part on provisions of the Indian Constitution amenable to the incorporation and promotion of economic and social rights as well as on a unique relationship between civil society and judicial institutions. …

The Executive And The Courts, Richard Clayton

Penn State International Law Review (1982 - 2011)

No abstract provided.

Methodological Challenges In Comparative Constitutional Law, Vicki Jackson

Penn State International Law Review (1982 - 2011)

No abstract provided.

Introduction To The Ials Conference On Comparative Constitutional Law, Louis Del Duca, Patrick Del Duca, Gianluca Gentili

Penn State International Law Review (1982 - 2011)

No abstract provided.

Citizenship Privilege Or The Right To Religious Freedom: The Blackmailing Of France's Islamic Women, Yael Barbibay

Cardozo Journal of International and Comparative Law

The note examines the tension between France's commitment to laïcité and the rights of Islamic immigrants, particularly women, to religious freedom and cultural identity. It critiques the denial of citizenship to Faiza Mabchour, arguing that such decisions reflect a broader effort to suppress Islamic practices and undermine pluralism. The analysis contends that France's rigid application of laïcité violates international human rights norms, particularly the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The article advocates for a more inclusive approach to citizenship that balances secularism with religious freedom and cultural diversity.

Civil Society And Democracy In Japan, Iran, Iraq And Beyond, Shiva Falsafi

Vanderbilt Journal of Transnational Law

This Article addresses the mystery of why some countries appear to become democracies seamlessly while others face insurmountable obstacles. While acknowledging the importance of civil society to democratization at the time of transition, this Article argues that broad historical civil society movements, even if devoid of immediate political impact, also facilitate the passage to democracy at a later date.

This Article takes a comparative look at the constitutional, labor, and women's movements in Japan, Iraq, and Iran, from the nineteenth century to the present. It demonstrates that the resilience of Japanese civil society from 1868 onward secured the country's successful …

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

Scholarly Works

In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Laïcité In Comparative Perspective (Conference): Foreword, Mark L. Movsesian

Faculty Publications

On June 11, 2010, the Center for Law and Religion at St. John's University School of Law held its inaugural event, an academic conference at the University's Paris campus. "Laïcité in Comparative Perspective" brought together scholars from the United States and Europe to explore the French concept of laïcité and compare it with models of church-state relations in other countries, particularly the United States. Participants included Douglas Laycock (University of Virginia), who offered the Conference Introduction; Nathalie Caron (Université Paris-Est Créteil); Blandine Chelini-Pont (Université Paul Cézanne Aix-Marseille); Nina Crimm (St. John's University); Marc DeGirolami (St. John's University); Javier Martínez-Torrón Universidad …

Fair Measure Of The Right To Vote: A Comparative Perspective Of Voting Rights Enforcement In A Maturing Democracy, Janai S. Nelson

Faculty Publications

Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that …

The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases, Bert Demarsin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam., Muhammad Bahrin Haji Alias

Student Works (2010-2019)

The number of conversion to Islam cases in Brunei Darussalam has arisen yearly. However, due to incompetency or legal infrastructure, any issue relating to the conversion cases, could not be handled and administered efficiently. Such weakness in legal aspect has affected the court‟s reputation and sometimes conflicts especially Syariah Court to discharge their duty effectively. Therefore, the aim of this study is to identify and discuss to what extent current legal structures able resolve cases relating to conversion to Islam. To achieve this, the research is enhanced by the library research and field study in order to obtain relevant data. …

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

Articles

In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will

Articles

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a "success story." As is well known, it was never meant to last - the very term "Grundgesetz" (basic law) indicated that it was …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

Articles

The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen

Faculty Publications and Presentations

This Article examines the legal and policy implications that arise when a state that expressly prohibits recognition or enforcement of any rights arising from a same-sex relationship is confronted with a request to register and enforce a child custody order issued by another state that gives custody or visitation rights to a biological mother's former same-sex partner. As more states confer marital rights to same-sex couples, this issue will occur with increasing frequency. The first reported case in the nation to address the issue, Miller-Jenkins v. Miller-Jenkins, has garnered attention from the national media, including a cover story in the …

A Comparison Of The Freedom Of Speech Of Workers In French And American Law, Patrick Morvan

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Why The French Laïcité Is Liberal, Patrick Weil

Cardozo Law Review

No abstract provided.

The European Convention On Human Rights And Church-State Relations: Pluralism Vs. Pluralism, Françoise Tulkens

Cardozo Law Review

No abstract provided.

A Proposed Transjudicial Approach To S. 15(2) Charter Adjudication, Vanita Goela

Dalhousie Law Journal

Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action. In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits …

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …

Between Fragmentation And Unity: The Uneasy Relationship Between Global Administrative Law And Global Constitutionalism, Ming-Sung Kuo

San Diego International Law Journal

This paper aims to critically examine the status of global administrative law within the already widely acknowledged notion of global constitutionalism. While global constitutionalism describes the processual "constitutionalization" of an increasingly globalized world through the values emerging from cross-border regulatory cooperation, the global regulatory process at the heart of global administrative law appears to take the place of "We the People" as the creative force behind global constitutionalism. Contrary to the domestic/national context, the identitarian relationship between global administrative law and global constitutional law suggests the unity of global legality, whether it be called administrative law or constitutionalism. The paper …

The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint

Faculty Scholarship

No abstract provided.

60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint

Faculty Scholarship

In commemoration of the 60th anniversary of the adoption of the German Basic Law (Constitution) , the author discusses certain aspects of the Basic Law, in comparison with the Constitution of the United States, and examines important developments in the jurisprudence if the German Constitutional Court interpreting the Basic Law.

Global Issues In Freedom Of Speech And Religion: Cases And Materials, Leslie Gielow Jacobs, Alan Brownstein

McGeorge School of Law Teaching Materials

Brownstein and Jacobs's Global Issues in Freedom of Speech and Religion: Cases and Materials is a companion volume to existing materials. Designed to assist professors in introducing issues of international and comparative law, this title is ideal for use in educational courses that address:

• The First Amendment
• Law and religion
• Individual rights
• Other topics dealing with free speech and religious liberty

In order to make companion materials understandable and accessible to students as well as to professors who have not taught the materials before, this title:

• Includes case excerpts, helpful background materials, and notes
• Is set out in a structure …

Political Institutions And Judicial Role: An Approach In Context, The Case Of The Colombian Constitutional Court, David Landau, Julián Daniel López-Murcia

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. Parting from a case study of the Colombian Constitutional Court, this paper develops a theory of judicial role focused on political context, and particularly on party systems. Colombian parties are unstable and poorly tied to civil society, therefore Congress has difficulty initiating and monitoring the enforcement of policy, as well as checking presidential power. For that reason, the Constitutional Court has responded by taking many of these …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, 42 J. Marshall L. Rev. 463 (2009), Mark J. Sundahl

UIC Law Review

No abstract provided.