Browse

1 - 10 of 351 items :

  • International Law, Foreign Law, Comparative Law, other x
Clear All

Abstract

This Article argues that the act of formally declaring war entails a measure of explicit commitment on the part of American political actors that raises the cost of failure and motivates politicians to see engagements through to a decisive end, fulfilling the role of a contract or institutional commitment device. It argues that undeclared conflicts, lacking such a device, are more likely to end on less decisive and less favorable terms to the United States. On this basis, it explains the emergence of a decades-long trend of protracted, unsuccessful, and indecisive military engagements by the United States as having emerged from the erosion of a constitutionally established separation of powers with respect to the initiation and administration of foreign military conflicts. In defense of this theory, it uses case studies to assess the relevance of its predictions and to weigh potential objections involving selection bias and imperfect information.

Abstract

Miscarriages of justice and wrongful convictions are a pervasive reality in America's criminal justice system. In this paper we examine news coverage of miscarriages of justice in the death penalty system and the release of death row inmates to understand what we call the public life of exonerations. We examine the way newspapers tell the story of exonerations and the various tilts and tendencies that characterize their presentations. We focus on the five states which, from 1972–2019, had ten or more exonerations. During that period, they were Florida, Illinois, Texas, Louisiana, and Oklahoma. We conclude that the public discourse surrounding exoneration, while providing evidence of the death penalty system's most consequential flaws, serves as much to preserve that system as to challenge it.

Abstract

Under pressure to adapt to changing circumstances, the contract clause, though expressed in absolute terms, may now be violated for almost any reason at all. The living Constitution, in short, has virtually killed what was once a key constitutional provision.

Abstract

The modern way of life and reflected in modern political philosophy is directed by capitalist activity of both commodities and persons. Entities that do not have commodity value are worthless to the capitalist enterprise, regardless of any intrinsic value in themselves. Modernity is capitalist modernity. Modernity has given preference for objects/commodities over persons. This paper will argue for opening-up the landscape for alternative experiences to capitalism, as an attempt to move away from the capitalist enterprise. That is, be able to provide open space for people to use other than the buying and selling of commodities---where the commodification process breaks down and opens-up spaces for alternative experiences besides the capitalist experience. In other words, this work will attempt to serve as critique of Enlightenment philosophical discourse---that is, serve as a critique of the Age of Enlightenment serving as the foundational head of modernism---a plea for the rebellion against the quantification and mathematization of reality under modernist and industrial societies. It will use the modern landscape as the first effort to break free from the capitalist enterprise.

Abstract

Occasionally traced back to Byzantine times, the rule that penal statutes are to be interpreted strictly in favor of the subject, also known as the rule of lenity, now finds expression in common law countries across the world. This Article compares the origins and evolution of the rule in Australia and the United States. The comparison is timely because of the current uncertainty in both jurisdictions about the rule's rationale and scope and because of an emerging global trend towards the “constitutionalization” of common law rules of interpretation. In the course of the analysis, various facets of the rule are discussed, including its common law origins; jurisprudential development; purported constitutional foundations; and modifications by state and federal statutes. Tracing the rule's development in each country reveals significant commonalities, but also important differences, in the respective approaches to the interpretation of criminal statutes. Most importantly, despite similarities in the two countries’ constitutional structures, the rule has assumed constitutional significance in the United States but not in Australia. Identification of this marked difference provides an opportunity to reflect on the separation of powers, and the federal structure, of each country.

Abstract

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP's alternative jurisprudence can influence future legal decisions. The FJP seeks to change the law by revealing unconscious bias and opening judicial minds to previously unknown perspectives - a method that draws on psychological theories of decision making such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science. In light of the increasingly conservative judiciary and the Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. Thus, this article focuses on historical institutionalism to present a theoretical explanation for why and how the FJP's re-envisioned law could possibly persuade the judiciary. Specifically, the article examines the degree to which the FJP draws on social facts highlighted by the #MeToo and LGBTQ rights movements and whether the Project thereby creates the conditions for social construction and resultant legal change. It also uses theories on displacement to present a critique of the FJP's more radical re-writes and points to the more moderate approach of ideational salience amplification as effective. Ultimately, it concludes that the FJP's path of persuasion is somewhat narrow and limited, but possible.

Abstract

The Brazilian Constitution was enacted over 31 years ago, and it pioneered several constitutional changes in Latin America, in line with a transformational project which was to be achieved through the protection of human rights including socioeconomic rights. Three decades of this constitutional experience have highlighted aspects in which the original design has proven to be too ambitious, and not capable of overcoming political blockages as was originally intended. This Article describes the historical context in which the Brazilian Constitution was drafted and enacted, and discusses in general terms the political structure and the fundamental rights that the constitution provides. These baselines allow the reader to understand the current challenges that the Constitution now faces in the task of regulating a social ambience and collective expectations that are substantially different from those of the late 1980s which are synthesized in that same political document. Especial attention is given to judicial control over public policies—a relevant trend in the Brazilian judiciary, which raises much debate concerning its compatibility with the checks and balances principle. As a conclusion, the Article recognizes that the Brazilian Constitution is an institutional success, considering its ability to enable redemocratization, and even to overcome deep political crisis. This should not, however, be enough reason to take its strategy in the human rights field, as a successful one, to be uncritically reproduced in other countries.

Abstract

Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the decision-making processes of its judges if one wants to understand the ways conflicts are dealt in a certain place and time. In this article we focus our attention on the role of the Brazilian Federal Supreme Court as custodian of the Constitution and the discourses that its decision-making construct when dealing with human rights issues. Specifically we set out to understand how the opinions of Brazilian Supreme Court Justices are constructed when deciding cases concerning freedom of religion. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which symbolically reinstated democracy in the country after the end of the period of military rule that began in 1964) up to the present day. We begin by presenting the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion. We then discuss our project, stressing the methodological approach we have adopted and finally we present our data findings. We identified 39 cases in total of which 11 were selected and analyzed using the methodology of Semiolinguistic Discourse Analysis in order to define the semantic field related to freedom of religion in Brazil. Even though the number of cases is not large it is possible to identify some features of Brazilian legal culture which are also recurrent when dealing with religious freedom. One of these features is the absence of consensus-building logic in the Justices’ opinions—we attribute this to what we term the disputatio mindset—which contributes to continuing institutional instability and legal insecurity. Our findings suggest that these Supreme Court decisions frequently lack the strong level of rational consistency that lower courts require if they are to identify clear guiding principles that can control the outcomes of new cases

Abstract

Agri–food sector is one of the biggest and most supported economic sectors in the EU. It is a key sector for sustainable economic development and food safety and security. The EU Common Agricultural Policy (hereinafter CAP) is its backbone – it helps farmers with income support and market measures on the one hand and, on the other hand, it ensures sustainable rural development in individual EU countries. Despite of the huge support agricultural sectors in Member States are facing serious problems – in Slovakia it is especially the low level of domestic agricultural production, low quality of food products, high unemployment rate especially among young people, ageing of population and abandonment of rural areas. Looking for solutions for these problems mentioned there is a great challenge for relevant public authorities and for the academic sector, as well. Based on these facts the initiative to submit a project proposal has arisen within the Jean Monnet Centre of Excellence – which would respond on challenges in this field. The project (Centre of Excellence for European Agri-Food Chain – CEEAG 611446-EPP-1-2019-1-SK-EPPJMO-CoE) has been granted and its main focus will start from important and irreplaceable role of agriculture and food industry in national economies of (not only) Member States via ensuring their food security under conditions given by the EU Common Agricultural Policy (CAP) – one of the most supported policies in the EU.

Abstract

The paper aims to critically analyse the theory of environmental racism as a part of the concept of environmental justice in order to point out possible overuse of the term racism. Through theoretical analysis, the author tries to prove that labelling any negative impacts of the environmental burden on racial or ethnic minorities with racism is an unnecessary overwork which moreover might be, according to available data, inconsistent with reality.