Constitutional Law Commons^™

American And Australian Constitutions: Continuing Adventures In Comparative Constitutional Law, 30 J. Marshall L. Rev. 627 (1997), James A. Thomson

UIC Law Review

No abstract provided.

Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham

Michigan Journal of Race and Law

As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine

Scholarly Works

In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …

Restitution Regimes In Post-Communist Eastern Europe: A Legal Analysis, Sophia Von Rundstedt

LLM Theses and Essays

When the Communist regimes in Central and Eastern Europe collapsed at the end of the last decade, the opposition, which had been united in their goal to defeat Communism, quickly disintegrated into a variety of factions. One of their tasks was to decide on enacting a constitution, in order to stabilize and entrench the new democratic institutions. Apart from establishing the legal framework for democracy, politicians had to develop strategies to convert the state-run economy into a free-market economy. Such a transition required as a first step the privatization of state property. Legal reform of property rights raises the question: …

Affirmative Action In Question: A Coherent Theory For Section 15(2), Mark A. Drumbl, John D.R. Craig

Scholarly Articles

Affirmative action programs are constitutionally protected in Canada under section 15(2) of the Charter. This section has received little judicial interpretation and, consequently, no coherent approach to the interpretation of section 15(2) has been developed. Furthermore, there is an urgent need to define the meaning of section 15(2), as affirmative action programs can be used to perpetuate stereotypes and discrimination while being given a blanket endorsement through section 15(2). The authors suggest that section 15(2) does not merely promote substantive equality, as this is the function of section 15(1), but embodies the social justice conception of equality, which allocates social …

Human Dignity, Privacy, And Personality In German And American Constitutional Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Toward A South African Administrative Justice Act, Michael Asimow

Michigan Journal of Race and Law

Section 33 of South Africa's Constitution provides fundamental principles of administrative justice. It also requires Parliament to adopt an Administrative Justice Act. This Article contends that without enactment of such legislation Section 33 will be ineffective in practice and may prove to be an obstacle to achieving the economic and social objectives of the Constitution. In addition, such legislation is essential to preserving the legitimacy and the effectiveness of the Constitutional Court.

South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy

Michigan Journal of Race and Law

The road to democracy for South Africa was based on compromise. One of the most significant compromises made by the negotiators was the acceptance of an amnesty process culminating in the passage of the Promotion of National Unity and Reconciliation Act of 1995. The Act grants full indemnity from criminal and civil prosecution to anyone affiliated with a political organization who committed an "act associated with a political objective" and who fully discloses all relevant facts. The purpose of the Act is twofold: to establish the "truth" about the apartheid past and to promote "reconciliation" among South Africans. Unfortunately, such …

Judicial Review As A Tool For The Safeguard Of Human Rights: Prospects And Problems Of The U.S. Model In Malawi, Janet Laura Banda

LLM Theses and Essays

Judicial review is a judicial action that involves the review of an inferior legislative or executive act for conformity with a higher legal norm, with the possibility that the inferior norm may be invalidated or suspended if necessary. Although judicial review has been explicitly provided for in some written post-independence African constitutions, such review has not developed into a significant principle of African juridical democracy. This lack of development can be attributed to the emergence of dictatorships in the post-colonial era. However, Malawi’s weak judiciary system was remedied by the 1994 Constitution which gave the Malawian judiciary a central position, …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Recent Legislation: Constitutional Law – Congress Imposes New Restrictions On Use Of Funds By The Legal Services Corporation – Omnibus Consolidated Rescissions And Appropriations Act Of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Benjamin L. Liebman

Faculty Scholarship

Fierce political battles have raged about the Legal Services Corporation (LSC) for much of its twenty-three year history. Critics have attacked LSC for pursuing a "radical agenda" and for "engaging in dubious litigation that is of no real benefit to poor people," while supporters have termed LSC "the one program in the entire war on poverty that made a difference" and have decried the "campaign to deny the right of legal representation to the poor." Last year, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA), Congress reduced LSC funding by thirty percent – to $278 million in …

The Persistent Nation State And The Foreign Sovereign Immunities Act, Mark L. Movsesian

Cardozo Law Review

One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.

Church-State Relations In The Czech Republic: Past Turmoil And Present Transformation, Elizabeth A. Clark

BYU Law Review

No abstract provided.

Religious Freedom And Doctrines Of Reluctance In Post-Charter Canada, David H. Moore

BYU Law Review

No abstract provided.

The First Five-Year Span (1989-1994): Law And Religion In Post-Communist Hungary, Helen E. Hartnell

BYU Law Review

No abstract provided.

The Hellenic Republic And The Prevailing Religion, Charalambos K. Papastathis

BYU Law Review

No abstract provided.

Church-State Relations In The Russian Federation, Andrei Osharouich Protopopov

BYU Law Review

No abstract provided.

Church And State In France, Belgium, And The Netherlands: Unexpected Similarities And Hidden Differences, Rik Torfs

BYU Law Review

No abstract provided.

Render To Caesar The Things That Are Caesar's, And To God The Things That Are God's": Conscientious Objection In The Russian Federation, Eric H. Anderson

BYU Law Review

No abstract provided.

Federalism And Liberalism, Mark Tushnet

Cardozo Journal of International and Comparative Law

The article explores the role of federalism within the context of John Rawls' political liberalism, arguing that while federal systems are inherently unstable and tend toward centralization, certain institutional designs and a formalist legal culture can slow this drift. Federalism is particularly suited to societies with reinforcing pluralist differences, offering a framework that allows diverse groups to coexist while maintaining stability.

The German Duality Of State And Society, David Abraham

Cardozo Journal of International and Comparative Law

The article argues that the United States should consider supplementing its property-based negative rights regime with citizenship-based positive rights, drawing on the German constitutional model. It contends that negative rights, which focus on freedom from state interference, are insufficient in addressing systemic inequality and fostering meaningful participation in a democratic society. In contrast, Germany's constitutional framework, rooted in a communitarian ethos, emphasizes positive rights and duties, ensuring that rights are not only protected but also effectively realized through state action. This approach, the article suggests, offers a more equitable and inclusive vision of rights and citizenship.

Telling The Truth And Paying For It: A Comparison Of Two Cases - Restrictions On Political Speech In Australia And Commercial Speech In The United States, David S. Bogen

Faculty Scholarship

No abstract provided.

Presidential Power In The Russian Constitution, Lee Kendall Metcalf

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Third Balkan War And Political Disunity: Creating A Confederated Cantonal Constitutional System, Peter J. Cannon

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The State As Landlord: The Constitutionality Of The Termination Of Public Housing Leases On Account Of A Tenant's Illegal Activities, Mark Anthony Drumbl

Scholarly Articles

Paragraph 107(l)(b) of the Ontario Landlord and Tenant Act enables landlords to evict tenants on short notice for engaging in illegal activity or for permitting such activity to be conducted in or on any part of the rental premises. Under this provision, the landlord can serve a notice of termination on the tenant, who may then exercise his/her right to dispute the landlord's allegation at a scheduled court hearing.

This paper suggests that paragraph 107(l)(b) is inconsistent with the underlying purposes of the Landlord and Tenant Act, and might run afoul of sections 7 and 15 of the Canadian Charter …

When The Constable Blunders: A Comparison Of The Law Of Police Interrogation In Canada And The United States, Robert Harvie, Hamar Foster

Seattle University Law Review

This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both …

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

The War Powers In French Constitutional Law, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.