Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification?

Justin O. Frosini 

Bocconi University - Department of Law; Johns Hopkins University - Bologna Center

Lucio Pegoraro 

University of Bologna - Department of Political and Social Sciences
June 6, 2008

J.O. Frosini, L. Pegoraro, Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification? in Journal of Comparative Law 3:2, 39-63
A. Harding, P. Leyland (eds), Constitutional Courts. A comparative study, Wildy, Simmonds and Hill, 2009 
Abstract:      

Attempting to classify the constitutional adjudication systems in Latin America is by no means an easy task given the ‘creativity’ that has been used in developing them. Very rich and diverse approaches have been taken and one would commit a gross generalisation if one were to talk of a ‘Latin American model of constitutional justice’. In many respects the object of this research poses a challenge that comparatists are typically faced with: on one hand, the need to avoid oversimplified classifications as these would not meet the aim of providing a precise picture of the legal institutions that are the object of study, on the other, the necessity of also avoiding classifications that are too detailed as these would risk thwarting the very aim of classifying i.e. to group together on the basis of similarities taking into account the differences the components of a certain group might bear to one another.

Number of Pages in PDF File: 25

Keywords: Latin America, Constitutional Courts, Constitutional Review, Comparative Law, Classifications

Full available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2661380

The Contribution of Anthropology to Teaching Comparative and International Law

Francis Snyder 

Peking University School of Transnational Law, Shenzhen Graduate School, China; CERIC, Aix-Marseille University; College of Europe, Bruges
September 5, 2015

The Trials and Triumphs of Teaching Legal Anthropology (eds. Foblets, Woodman and Bradney) (Ashgate, 2015) 
Abstract:      

Anthropology has a distinct and essential role to play in teaching comparative and international law. This argument underlies the present paper, which is based mainly on teaching law to undergraduates and postgraduates in several European countries but also draws on my experience in other countries, notably China. Through a series of examples, I also hope to demonstrate that anthropology should never be parochial. Here I use the term ‘parochial’ in three senses : first, being limited in its empirical foundations to particular countries or parts of the world ; second, being understood to be relevant only to domestic law, whether national law or European Union (EU) law, and not to comparative and international law ; and third in the sense that teachers of law or anthropology in Europe have nothing to learn from their colleagues in other countries. The paper suggests that we need to reject parochialism in these three senses. Anthropology is par excellence a widely shared discipline.

Number of Pages in PDF File: 11

Keywords: anthropology, legal anthropology, comparative law, international law, Africa, EU law, WTO law, China

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2656554

Free Speech Paternalism and Free Speech Exceptionalism: Pervasive Distrust of Government and the Contemporary First Amendment

Ronald J. Krotoszynski Jr. 

University of Alabama - School of Law
June 1, 2015

Ohio State Law Journal, Vol. 76, 2015
U of Alabama Legal Studies Research Paper No. 26557000 
Abstract:      

The United States observes a profound constitutional commitment to safeguarding expressive freedoms, including speech, press, assembly, petition, and association rights secured under the First Amendment. However, when viewed from a global perspective, the American position of affording near-absolute protection to speech is strongly exceptionalist. Other polities, sharing strong constitutional commitments to respect the freedom of speech, do not view government efforts to regulate speech based on its content or viewpoint as presumptively invalid. In such places, government efforts to shape the marketplace of ideas through regulation are seen as fully
consistent with a broader legal commitment to respecting expressive freedom. Two recent books, one by Professor Martin Redish and the other by Professor Timothy Zick, help to shed important light on this conflict between free speech paternalism and free speech exceptionalism. Read in tandem, the books help to explain why the United States approach to defining and protecting freedom of expression constitutes a global anomaly. This Essay argues that free speech exceptionalism in the United States is best understood as a logical outgrowth of broader social, cultural, and historical factors. In particular, United States free speech exceptionalism arises from a longstanding and pervasive distrust of government and its institutions, a form of distrust that simply does not exist in most other nations. These books also illuminate an important, and curious, exception to this general distrust of government speech regulations in the United States: transborder speech. The constitutional protection of speech should not rest on an accident of geography; simply put, distrust of government speech regulations should not end at the water’s edge. Accordingly, transborder speech merits greater constitutional solicitude and protection than it generally enjoys at present.

Number of Pages in PDF File: 33

Keywords: constitutional law, separation of powers, free speech, hate speech, distrust, democracy, dissent, low value speech, democratic deliberation, first amendment, expressive freedom, comparative law, privacy, dignity, Germany, United States, autonomy, transnational judicial dialogue, Meiklejohn

Full text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655700

Rethinking the Context of Hate Speech (Book Review: Michael Herz & Peter Molnar, The Content and Context of Hate Speech: Regulation and Responses (Cambridge University Press 2012))

Robert A. Kahn 

University of St. Thomas School of Law (Minnesota)
2015

First Amendment Law Review, 2015, Forthcoming
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-20 
Abstract:      

Can hate speech regulation become fun again? Current hate speech regulation often devolves into a sterile debate between libertarian Americans and censorious Europeans over whose approach to hate speech is better. A series of cutting edge essays by Michael Herz and Peter Molnar’s 2012 volume (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012) points the way forward. It does this by challenging the commonly held premise that the United States does not punish hate speech. Instead, as many of the authors show, the United States does punish such speech – only it does so outside the formal legal system through “social sanctions” such as public condemnation of hate speakers and public based shunning. The nuanced approach to hate speech regulation will only become more important as the debate over hate speech shifts to the world of social media. At the same time, the book as a whole suggests an emerging global consensus around the idea that hateful speech can be punished if it incites violence. While the jury is still out on the extent, necessity and feasibility of this emerging consensus, the Herz and Molnar volume gives us the tools to explore these important issues.

Number of Pages in PDF File: 25

Keywords: freedom of speech, hate speech, comparative law, convergence vs. exceptionalism, informal sanctions, American and social media

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2654007

A Right to Die? A Comparative Legal Philosophical Enquiry

Cosmas Emeziem 

Cornell University, Law School, Students
August 27, 2015

Abstract:      

Man is a living being. But in the midst of life death is a reality. The antithesis of life is death. Hence many a thinker over the ages have sought to depict it in several forms. It is a ‘necessary end that will come when it will come’; yet the desire to live is the most defining impulse of humankind. It would appear that the desired living is also a living in dignity and happiness. Little wonder then that in every land and clime, life is intrinsically valuable and the essence of society is to sustain it. Sometimes however, we encounter situations where human beings contrary to the ordinary flow of existential perceptions desire on their own to die. They crave death because to them life has lost its meaningfulness. They seek to determine definitively the end of life. Some of them now assert that the right to take that decision is an inherent aspect of the human right to life. How true is this assertion? In this work it is sought to briefly examine the issue of death as a right and how it has been seen around different jurisdictions of the world using specific apex court decisions to do so. The work will also seek to show the different jurisprudence dispositions adopted by judges in disposing the cases that touch on this issue. The arguments for and against elicited will be highlighted using the different schools of legal philosophy as the mirror. It will be seen that the judges are rather most circumspect and appear generally unsure footed hence they prefer to keep the status quo. It will comparatively draw inspiration from other philosophical writings relevant to the work in other to give it the required comparative breadth.

Number of Pages in PDF File: 20

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652303

The International Law of Game of Thrones

Perry S. Bechky 

International Trade & Investment Law PLLC; Seattle University School of Law
August 28, 2015

Alabama Law Review Online, Vol. 67, No. 1, 2015 
Abstract:      

Game of Thrones depicts a violent and, some might say, lawless world. Few would think that world evidences much international law. Yet, this article identifies several rules of international law observable on the show and relates them to real-world international law. Observable rules include some fundaments of the law of treaties, customary norms, and (most surprisingly) at least one humanitarian peremptory norm. These rules cover a range of subjects, including sovereignty, state responsibility, jurisdiction, immunities, and human rights. The article also discusses the special legal status of the Night’s Watch, which is governed by the most important legal “text” in Game of Thrones. Finally, the article tries to have some fun.

Number of Pages in PDF File: 16

Keywords: Game of Thrones, public international law, human rights, treaties

Full text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652451

Revolutionary Constitutionalism

Stephen Gardbaum 

University of California, Los Angeles (UCLA) - School of Law
August 26, 2015

UCLA School of Law Research Paper No. 15-26 
Abstract:      

One important recent trend in constitution-making around the world has been revolutionary constitutionalism: using the constitution-making process to attempt to institutionalize and bring to a successful conclusion a political revolution. Although a good deal of attention has been paid to the specific revolutions involved, there has been far less on the general phenomenon ofrevolutionary constitutionalism as such. This article attempts to begin redressing this gap by offering some reflections on the general phenomenon and then employing them to inform an analysis of constitution-making in the revolutionary context.

The article makes three main claims. The first is that revolutionary constitutionalism is a useful and illuminating category for the discipline of comparative constitutional law. Empirically, it encompasses a range of situations that implicate constitutionalism in a particular way and raise special challenges. Analytically, it is a distinct concept from the neighboring term "constitutional revolution." Recognizing this permits us to distinguish, for example, the American Revolution from the New Deal constitutional revolution in qualitative terms, as different in kind and not merely degree. The second is that revolutionary constitutionalism contains within itself certain paradoxes and practical problems that have their source in the combination of initial radical transition and subsequent resistance to further radical change that constitutionalization brings. The final claim concerns the role and importance of constitution-making in the revolutionary context. Although relative to a broad array of socio-political variables, this role is generally less central to the ultimate outcomes of revolutionary constitutionalism than constitutional lawyers often think, it can respond to one distinctive challenge: the need to re-establish political authority lost by the old regime. As the comparison between recent experiences in Egypt and Tunisia suggests, constitution-making can make a key contribution here as one source of the legitimacy that the new regime must acquire.

Number of Pages in PDF File: 42

Keywords: revolutionary constitutionalism, constitutional revolution, constitutionalism, American Revolution, Arab Spring, constitution-making

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2651667