Browse

You are looking at 1 - 10 of 638 items for :

  • International Law, Foreign Law, Comparative Law x
Clear All
Open access

John Vlahoplus

Abstract

Senator Ted Cruz’s campaign for the Republican presidential nomination again raised the question whether persons who receive citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders, the First Congress and English and British law to show that they are not natural born under the doctrinal or historical meaning of the term. The relevant constitutional distinction is between citizenship acquired by birth or by naturalization, not at birth or afterward.

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Dred Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land.

The article examines the meaning of the term “natural born” in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable living constitutional interpretation of natural born derivative citizenship.

Open access

Jared Schroeder

Abstract

Truth as a fundamental ingredient within the flow of discourse and the application of freedom of expression in democratic society has historically received considerable attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding First Amendment concerns have been determined by how justices have understood truth and how they have conceptualized the complex relationship truth and falsity share. Despite the attention truth has received, however, the Court has not provided a consistent understanding of its meaning. For these reasons, this article examines how the Supreme Court has conceptualized truth in freedom-of-expression cases, ultimately drawing upon the results of that analysis, as well as pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell Holmes, substantially addressed truth in his dissent in Abrams v. United States. The article concludes by proposing that the courts conceptualize the nature of truth via three substantially related understandings: that truth is a process, that it is experience-funded, and that it is not absolute and is best approached without prejudice. Each of the three ingredients relates, at least to some extent, with thematic understandings put forth by the Court in previous freedom-of-expression cases, and therefore does not represent a significant departure from justices’ traditional approaches to truth. The model, most ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice Holmes, to encourage consistent recognition of certain principles regarding truth as justices go about considering its nature in First Amendment cases.

Open access

Nicholas P. Zinos

Abstract

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Open access

Robert G. Natelson

Abstract

The Constitution’s Postal Clause granted Congress power to “establish Post Offices and post Roads.” This Article examines founding-era legal and historical materials to determine the original meaning and scope of the Postal Clause. It concludes that the Clause authorized Congress to pass all legislation necessary to create, operate, and regulate a unified transportation, freight, and courier system, although it also limited congressional authority in some respects. The founding-era reasons for the postal system were revenue, promotion of commerce, and political control. The Article also corrects some inaccurate claims about the Clause previously advanced by commentators.

Open access

Thomas Halper

Abstract

Felix Frankfurter, renowned as a public intellectual fighting for justice, became as a member of the Supreme Court a figure proclaiming his devotion to the rule of law and its corollary, judicial self restraint, even when its results conflicted with his deepest beliefs. Yet an analysis of several of his leading opinions suggests that his famous balancing tests had little to do with law. In sacrificing his policy and ethical goals in the service of law, he often failed to serve the law, and in that sense, his well publicized sacrifices were for nothing.

Open access

Zia Akthar

Abstract

The doctrine of the Act of State and State Immunity has its foundation in common law frameworks. It is settled law that there is no cause of action that will make a foreign state liable in the domestic court of another country. In the United States there has been acceptance that certain cases involve “political questions” that are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution. The courts have only intervened either where the federal statutes have applied extraterritorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed abroad by a company registered in the United States, or under the Alien Tort Claims Act (ATCA) 1789, which protects foreign parties who are designated sufficiently “alien” for the sole purpose of invoking jurisdiction after a civil wrong has been committed against them. There needs to be an evaluation of the U.S. Supreme Court precedents that have asserted judicial oversight in respect of wrongs committed extra-territorially, and their present rationale for retaining the doctrine. This paper also discusses the scope of the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by another state or its agents. A comparative analysis with the state immunity doctrine in Canada and the framework for litigation under the merits-based approach by the courts is provided. The common law courts have developed the doctrine of the Act of State and it has become a principle of customary international law. The argument of this paper is that there needs to be a greater focus on the civil injuries that are caused in other jurisdictions that should allow the claimants to litigate in the forum court and for judicial review to be available.

Open access

Deinibiteim Monimah Harry

Abstract

The study examined the value addition in the Nigeria’s export processing zones, comparing it with the experiences from Asian economies. Upon the recommendation of the United Nations Industrial Development Organization (UNIDO), Nigeria adopted the EPZ scheme via Decree No 63 of 1992 to accelerate industrialization through increasing manufacturing for exports, among others. The Calabar Free Trade Zone was established as the pioneer zone in the country. The objective of this research work is to determine the extent of Value Addition at the zones in Nigeria. As at 2008, 25 zones have registered with NEPZA, the regulatory authority in the country. Out of the 25 registered zones, 11are operational, 9 under construction and 5 merely declared. Four (4) zones, namely, Calabar, Oil and Gas and Snake Island Integrated Free Trade Zones and Alscon Export Processing zone, were systematically selected from the 11 operational zones for the study. Two hundred and ninety copies of questionnaire were administered on 290 respondents drawn from 54 firms and 4 zonal management boards. Out of the 290 copies of questionnaire 242 copies were properly filled and returned. The 242 copies of questionnaire returned served as the primary source of data, while textbooks, journals, fasimiles, etc served as the secondary sources of data. The paper argued that for EPZs to help in the industrialization of a nation value addition and production segmentation must be made central to the manufacturing/ production processes; because the higher the level of value addition the greater the impact/contribution of EPZs to socio-economic development. The study revealed that the level of value addition in the Nigerian zones is very low, only labour element of value addition is visible, technology and material elements were absent. Hence, the paper recommends that value addition should be made compulsory in the production processes at the zones and emphasis should be on the technology and material elements. This, it is believed would enhance backward linkages with the domestic economy.

Open access

Youcef J-T. Zidane, Bjørn Otto Elvenes, Knut F. Samset and Bassam A. Hussein

Abstract

Ex-post evaluation is starting to be recognized in the Algerian different government institutions (e.g., ministries); and evaluation is becoming part of any program or project for two main reasons, justify the legitimacy of the programs and projects, and collect lessons learned for the next similar programs and projects. On the other hand, academicians believe that programs and projects can be improved by conducting proper evaluations and extracting lessons learned. Program/Project evaluation is comprehensive evaluation, which mainly applies to ex-post evaluation. This paper will look closer at an ex-post evaluation of an Algerian highway megaproject based on PESTOL model, this evaluation is already conducted in the period of 2014 – 2016. Considering ex-post evaluation of projects has many purposes and among them is linked to learning and knowledge sharing and transfer. In this regard, the paper describes very briefly the approach used to the post project evaluation. In addition, link it to learning and to other types of evaluations – i.e., ex-ante, monitoring, midterm, terminal evaluations, and using system-thinking approach, and proposes a framework for learning in projects by evaluations. This paper is based on qualitative case study approach.

Open access

Khukrit Silalaiy, Thanin Ratanaolarn and Malai Thaveesuk

Abstract

The purpose of this research was to study the leaders’ characteristics, situation management, behaviors and roles affecting sustainable leadership development and examine the compatibility of the structural equation model regarding sustainable leadership for vocational education administrators, as developed from the empirical evidence and determined influence of each factor. The quantitative research utilized questionnaires, given to a sample of 404 vocational education principals and vice-principals, derived using a multistage sampling method from 413 vocational public schools in Thailand. To test the confirmatory factor analysis and structural equation model were conducted. This research findings suggest that the structural equation models for sustainable leadership development of vocational education administrators were in accordance with the empirical data. The leaders' characteristics factors had the weight of the maximum gross effects towards the sustainable leadership development. This study suggest that the sustainable leadership development for vocational education administrators can be carried out by developing leaders’ characteristics.

Open access

Deinibiteim Monimah Harry and Winston Madume

Abstract

The study examined the nature of state intervention during economic and/or financial crisis, focusing on Nigeria and US. These two nations have embarked on various kinds of bailouts to stabilize their economies and move their nations on the path of economic recovery and growth. However, the bailout effort is more successful in the US than Nigeria. This is largely due to the approach adopted in these countries. Thus, the main objective of this paper is to ascertain the extent to which government invention has helped stabilize the Nigerian economy, when compared with the experience of the United States. The study revealed that in the US every state intervention/ bailout is approved by congress through legislation, therefore well-guided in its administration or execution, with specific time lines. On the other hand, in Nigeria bailouts are by “executive fiat”, as a result they suffer from poor execution. Hence, the paper concluded that state intervention/bailout in Nigeria has not been very successful because of the approach adopted by the government. The study recommended that subsequently, every bailout from the Nigerian government should be a product of an Act of Parliament, bailout schemes should have specific tools for measuring performance and be guided by specific lines, among others.