William Howard Taft was Chief Justice of the Supreme Court of the United States from 1921 through 1930. This paper, excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, chronicles and evaluates the incomparable contributions of Taft during the period. The paper is forthcoming in the Michigan State Law Review. Taft played three roles on the Court during the 1920s. He was a Justice, a Chief Justice, and a prodigious judicial reformer. The paper evaluates his performance in Taft’s contributions to each of these roles, which Taft occupied with exceptional vigor and competence. The paper gives special attention to Taft’s creation of a new Supreme Court building; to Taft’s influence on the selection of lower court federal judges; to Taft’s establishment of the Judicial Conference of Senior Circuit Judges, which fundamentally altered the structure of the federal judiciary; and to Taft’s inspired advocacy for the Act of February 13, 1925, which reconfigured the Supreme Court from a simple tribunal of last resort into a manager of the system of federal law. As a former President, Taft imagined the Chief Justice as the supervisor of the Judicial Branch, in much the same way as the President was the supervisor of the Executive Branch. In so doing, Taft profoundly altered the office of the Chief Justice. The paper discusses the tensions implicit in Taft’s efforts to import into the American constitutional order an office approximating an English Lord Chancellor, responsible for the administration of justice.
{"title":"The Incomparable Chief Justiceship of William Howard Taft","authors":"R. Post","doi":"10.2139/ssrn.3615112","DOIUrl":"https://doi.org/10.2139/ssrn.3615112","url":null,"abstract":"William Howard Taft was Chief Justice of the Supreme Court of the United States from 1921 through 1930. This paper, excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, chronicles and evaluates the incomparable contributions of Taft during the period. The paper is forthcoming in the Michigan State Law Review. \u0000 \u0000Taft played three roles on the Court during the 1920s. He was a Justice, a Chief Justice, and a prodigious judicial reformer. The paper evaluates his performance in Taft’s contributions to each of these roles, which Taft occupied with exceptional vigor and competence. The paper gives special attention to Taft’s creation of a new Supreme Court building; to Taft’s influence on the selection of lower court federal judges; to Taft’s establishment of the Judicial Conference of Senior Circuit Judges, which fundamentally altered the structure of the federal judiciary; and to Taft’s inspired advocacy for the Act of February 13, 1925, which reconfigured the Supreme Court from a simple tribunal of last resort into a manager of the system of federal law. \u0000 \u0000As a former President, Taft imagined the Chief Justice as the supervisor of the Judicial Branch, in much the same way as the President was the supervisor of the Executive Branch. In so doing, Taft profoundly altered the office of the Chief Justice. The paper discusses the tensions implicit in Taft’s efforts to import into the American constitutional order an office approximating an English Lord Chancellor, responsible for the administration of justice.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"2020 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2020-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85977725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The nonprofit world of the university has long segregated the approved public voices of the administrative class from the underground voices that carried a narrative about pathologies in the workings of power, an underground not suited to enter the realm of something public and serious. The no confidence vote has partially filled the gap in the management of approved internal voice, but certain traditions of secrecy have resisted exposure through unmanaged group challenge. Recent scandals at major universities have helped energize an examination of administrative practices designed to insulate the university from meanings revealed by persons subjected to the abuse of power. The #MeToo movement has recently burst forth into the university setting, powered by journalists and students bringing university secrets into public view. #MeToo reveals to the public accountability pathologies in nonprofit institutions that have been periodically, but only partially, addressed by votes of no confidence brought by faculty or other professionals. #MeToo has a primary goal that meshes with the purposes of the no confidence tradition of self-help, deployed by groups to expel bad leaders supported by an institutional hierarchy. Relief from an abusive or failed leader is the short-term goal in a vote of no confidence, but the uncovering and dissemination of social knowledge that has been successfully suppressed is an epistemological enterprise as well. The effect is to rescue private shared knowledge from dismissal by administrators and others possessing a voice deemed serious and public. The methods by which #MeToo and other disclosures about pathologies within the academic setting can be exposed are little analyzed or compared. This Article is a preliminary examination and evaluation of the techniques by which groups composed of faculty members, and to a lesser extent, students work to bring private knowledge into a public forum for immediate response and long-term reform. #MeToo presents an opportunity to compare methods for any group facing a problematic leader or other person the hierarchy will neither correct nor dismiss. The comparison addresses the comparative efficacy of expert group voice, student self-help, litigation, and investigative journalism in forcing leader exit as well as producing a long-term enhancement of social knowledge of the patterns of organizational dysfunction and abuse.
{"title":"Looking for a Life Raft: Citizen Voice and Votes of No Confidence","authors":"Mae Kuykendall","doi":"10.2139/SSRN.3843918","DOIUrl":"https://doi.org/10.2139/SSRN.3843918","url":null,"abstract":"The nonprofit world of the university has long segregated the approved public voices of the administrative class from the underground voices that carried a narrative about pathologies in the workings of power, an underground not suited to enter the realm of something public and serious. The no confidence vote has partially filled the gap in the management of approved internal voice, but certain traditions of secrecy have resisted exposure through unmanaged group challenge. Recent scandals at major universities have helped energize an examination of administrative practices designed to insulate the university from meanings revealed by persons subjected to the abuse of power. The #MeToo movement has recently burst forth into the university setting, powered by journalists and students bringing university secrets into public view. #MeToo reveals to the public accountability pathologies in nonprofit institutions that have been periodically, but only partially, addressed by votes of no confidence brought by faculty or other professionals. #MeToo has a primary goal that meshes with the purposes of the no confidence tradition of self-help, deployed by groups to expel bad leaders supported by an institutional hierarchy. Relief from an abusive or failed leader is the short-term goal in a vote of no confidence, but the uncovering and dissemination of social knowledge that has been successfully suppressed is an epistemological enterprise as well. The effect is to rescue private shared knowledge from dismissal by administrators and others possessing a voice deemed serious and public. The methods by which #MeToo and other disclosures about pathologies within the academic setting can be exposed are little analyzed or compared. This Article is a preliminary examination and evaluation of the techniques by which groups composed of faculty members, and to a lesser extent, students work to bring private knowledge into a public forum for immediate response and long-term reform. #MeToo presents an opportunity to compare methods for any group facing a problematic leader or other person the hierarchy will neither correct nor dismiss. The comparison addresses the comparative efficacy of expert group voice, student self-help, litigation, and investigative journalism in forcing leader exit as well as producing a long-term enhancement of social knowledge of the patterns of organizational dysfunction and abuse.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"1 1","pages":"411"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84717381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As a founding principle of the EU, a prerequisite for the exercise of most other EU rights, and a key component of EU integration, the freedom of movement right has carried great political and practical importance. It has also been one of the most contested, politically abused, and poorly understood of EU rights, particularly in the context of mobility of nationals from Central and Eastern Europe (“CEE”). Notably, misinformation regarding the free movement right that was spread by the media, politicians, and the public helped to propel both the UK’s renegotiation of its EU membership and, ultimately, its exit from the Union. Other EU-15 State politicians have also been perpetuating myths about freedom of movement and immigration. Scholars addressing free movement, even in the context of Brexit, have devoted little attention to this right’s conceptualization as it has evolved over time, to how EU branches other than the European Court of Justice have approached it, or to how CEE nationals have been positioned and impacted by mobility’s legal framework. Although some critical scholars have critiqued derogations from the free movement right imposed on CEE nationals in the aftermath of their States’ accession to the EU, they have also failed to situate their analysis within a broader look at the creation and application of the legal framework behind mobility. CEE movers in the UK and other EU-15 States have tended to be racialized by the media, politicians, and the public – that is, described and approached by individuals and institutions in ways which denigrate or assume their inferiority. Hence, several tenets of critical race theory (“CRT”) and critical whiteness studies (“CWS”) that expound the relationship between race, power, society, and law are helpful to the analysis of their mobility. This Article argues that the freedom of movement right has always been limited, and that CEE nationals’ mobility rights have been especially restricted by both EU statutes and case law – and further impeded by restrictive Member State policies. Ultimately, the right of free movement has been created and consistently applied in a way as to benefit EU-15 States’ economies, while approaching CEE movers as mere units of production. This broader understanding of this right is necessary to make Brexit negotiations more meaningful, and debates about intra-EU movers in other EU-15 States more responsible. Moreover, the discussion here also critiques CRT and CWS for overlooking the significance of immigrant background and of white minority ethnicities in the conceptualization and experience of equality. I suggest that both theoretical frameworks need to not only look beyond the black-white binary, but also consider contemporary transnational power dynamics to arrive at a more flexible and nuanced picture of micro-level racial and ethnic power relations in today’s globalized world.
{"title":"Retracing the Right to Free Movement: Mapping a Path Forward","authors":"D. R. Myślińska","doi":"10.2139/ssrn.3228025","DOIUrl":"https://doi.org/10.2139/ssrn.3228025","url":null,"abstract":"As a founding principle of the EU, a prerequisite for the exercise of most other EU rights, and a key component of EU integration, the freedom of movement right has carried great political and practical importance. It has also been one of the most contested, politically abused, and poorly understood of EU rights, particularly in the context of mobility of nationals from Central and Eastern Europe (“CEE”). Notably, misinformation regarding the free movement right that was spread by the media, politicians, and the public helped to propel both the UK’s renegotiation of its EU membership and, ultimately, its exit from the Union. Other EU-15 State politicians have also been perpetuating myths about freedom of movement and immigration. Scholars addressing free movement, even in the context of Brexit, have devoted little attention to this right’s conceptualization as it has evolved over time, to how EU branches other than the European Court of Justice have approached it, or to how CEE nationals have been positioned and impacted by mobility’s legal framework. Although some critical scholars have critiqued derogations from the free movement right imposed on CEE nationals in the aftermath of their States’ accession to the EU, they have also failed to situate their analysis within a broader look at the creation and application of the legal framework behind mobility. CEE movers in the UK and other EU-15 States have tended to be racialized by the media, politicians, and the public – that is, described and approached by individuals and institutions in ways which denigrate or assume their inferiority. Hence, several tenets of critical race theory (“CRT”) and critical whiteness studies (“CWS”) that expound the relationship between race, power, society, and law are helpful to the analysis of their mobility. This Article argues that the freedom of movement right has always been limited, and that CEE nationals’ mobility rights have been especially restricted by both EU statutes and case law – and further impeded by restrictive Member State policies. Ultimately, the right of free movement has been created and consistently applied in a way as to benefit EU-15 States’ economies, while approaching CEE movers as mere units of production. This broader understanding of this right is necessary to make Brexit negotiations more meaningful, and debates about intra-EU movers in other EU-15 States more responsible. Moreover, the discussion here also critiques CRT and CWS for overlooking the significance of immigrant background and of white minority ethnicities in the conceptualization and experience of equality. I suggest that both theoretical frameworks need to not only look beyond the black-white binary, but also consider contemporary transnational power dynamics to arrive at a more flexible and nuanced picture of micro-level racial and ethnic power relations in today’s globalized world.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"78 1","pages":"383"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90458720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the most significant legislative reforms of the U.S. patent system occurred in 1952. Prior to 1952, the patent system found itself languishing, undermined by a confusing non-statutory patentability requirement called the “invention” requirement. In 1952, Congress and the President eliminated it. Today we find ourselves in a situation surprisingly similar to the one prior to 1952. The patent system again finds itself languishing, undermined by a new confusing non-statutory patentability requirement, this one called the “inventive concept” requirement. Today, just like in 1952, there are ongoing calls for Congress and the President to eliminate it. Given the striking parallels between these two eras — and the success of legislative reform efforts in 1952 — I have studied the forces behind the reform of 1952: the problems with the law of the day, the people and groups of people involved in reform efforts, and the circumstances and strategies they used to their advantage to create change. This study has led me to identify various factors that led to the success of those efforts in 1952. In parallel with the study of the history behind the Patent Act of 1952, I highlight the problems with the law today, the people and groups of people involved today in reform efforts, and the circumstances and strategies they might use to their advantage to create change. Moreover, drawing from the factors that led to the success of legislative reform efforts in 1952, I analyze how those same factors may contribute to the success of current legislative reform efforts — or hinder it.
{"title":"Patent Reform, Then and Now","authors":"David O. Taylor","doi":"10.2139/SSRN.3212821","DOIUrl":"https://doi.org/10.2139/SSRN.3212821","url":null,"abstract":"One of the most significant legislative reforms of the U.S. patent system occurred in 1952. Prior to 1952, the patent system found itself languishing, undermined by a confusing non-statutory patentability requirement called the “invention” requirement. In 1952, Congress and the President eliminated it. Today we find ourselves in a situation surprisingly similar to the one prior to 1952. The patent system again finds itself languishing, undermined by a new confusing non-statutory patentability requirement, this one called the “inventive concept” requirement. Today, just like in 1952, there are ongoing calls for Congress and the President to eliminate it. Given the striking parallels between these two eras — and the success of legislative reform efforts in 1952 — I have studied the forces behind the reform of 1952: the problems with the law of the day, the people and groups of people involved in reform efforts, and the circumstances and strategies they used to their advantage to create change. This study has led me to identify various factors that led to the success of those efforts in 1952. In parallel with the study of the history behind the Patent Act of 1952, I highlight the problems with the law today, the people and groups of people involved today in reform efforts, and the circumstances and strategies they might use to their advantage to create change. Moreover, drawing from the factors that led to the success of legislative reform efforts in 1952, I analyze how those same factors may contribute to the success of current legislative reform efforts — or hinder it.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"17 1","pages":"431"},"PeriodicalIF":0.0,"publicationDate":"2018-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83345593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The problem of children being born stateless without being able to identify a state that must grant them nationality continues be a problem that begs for legal clarity. Children are some of society’s most vulnerable people, needing care, education, health developmental services and so on. Yet when they are born into situations of statelessness, it is often difficult if not impossible for them to access any of these services and meet their basic developmental needs. The international community has taken many steps to eradicate child statelessness but it still persists. This result stands despite the desperate needs for children and widespread acknowledgment that international law protects every person’s, especially child’s, right to a nationality.This paper will reconsider the question of whether we can point to a state that bears the responsibility for granting nationality to a child born stateless. In examining this question, this paper considers whether customary international law might have evolved to offer an answer to the question of which state is responsible. First, the paper looks at the most contemporary understand of customary international law to develop a methodology. The method for determining the customary international law has been changing and the time is ripe to apply our new understanding to this problem. Second, it applies this methodology to emerging practice on child statelessness. Partly due to the increased focus on the question as a result of the current UNHCR campaign to end child stateless, state practice and opinio juris has been shifting rapidly. In this analysis, the author considers that evolving understanding of customary international law and the changes in practice have shifted so that we can now identify the state that has the obligation to grant nationality to stateless children. Specifically, customary international law requires the state where the child was born to grant nationality to it, if it would be otherwise stateless and no state has granted it nationality.
{"title":"The Obligation to Grant Nationality to Stateless Children under Customary International Law","authors":"W. T. Worster","doi":"10.2139/SSRN.3073653","DOIUrl":"https://doi.org/10.2139/SSRN.3073653","url":null,"abstract":"The problem of children being born stateless without being able to identify a state that must grant them nationality continues be a problem that begs for legal clarity. Children are some of society’s most vulnerable people, needing care, education, health developmental services and so on. Yet when they are born into situations of statelessness, it is often difficult if not impossible for them to access any of these services and meet their basic developmental needs. The international community has taken many steps to eradicate child statelessness but it still persists. This result stands despite the desperate needs for children and widespread acknowledgment that international law protects every person’s, especially child’s, right to a nationality.This paper will reconsider the question of whether we can point to a state that bears the responsibility for granting nationality to a child born stateless. In examining this question, this paper considers whether customary international law might have evolved to offer an answer to the question of which state is responsible. First, the paper looks at the most contemporary understand of customary international law to develop a methodology. The method for determining the customary international law has been changing and the time is ripe to apply our new understanding to this problem. Second, it applies this methodology to emerging practice on child statelessness. Partly due to the increased focus on the question as a result of the current UNHCR campaign to end child stateless, state practice and opinio juris has been shifting rapidly. In this analysis, the author considers that evolving understanding of customary international law and the changes in practice have shifted so that we can now identify the state that has the obligation to grant nationality to stateless children. Specifically, customary international law requires the state where the child was born to grant nationality to it, if it would be otherwise stateless and no state has granted it nationality.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"8 1","pages":"441"},"PeriodicalIF":0.0,"publicationDate":"2018-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72670175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The crisis of human trafficking has gained increasing attention during the past decade. Sale, coercion, and exploitation of human beings still thrive in the darkest corners of the safest cities. In 2003, the United Nations passed the Trafficking in Persons Protocol, urging states to pass legislation prosecuting perpetrators of trafficking and protecting victims. While nations across the world have begun to institute new laws to fulfill the obligations created by the protocol, these efforts still fall short of controlling the worst activities. The failure to protect women and children from sexual exploitation lies with ineffective legislation. A lack of ability to prosecute, weak criminal sanctions, and a failure to treat victims as trafficked persons has stunted progress in trafficking control. This note addresses the specific problem of sexual exploitation of victims by analyzing the Palermo Protocol’s stipulations as it refers to sexual exploitation and prostitution and comparing and contrasting different methods of combating sexual trafficking through prostitution reform. Finally, this note will suggest how the United States can change its laws to further the Palermo Protocol’s mission and protect victims of human trafficking. While there is no perfect solution currently, there are valuable methods the U.S. can apply to seek improvement of the status quo.
人口贩运的危机在过去十年中得到了越来越多的关注。在最安全的城市最黑暗的角落里，对人类的贩卖、胁迫和剥削依然猖獗。2003年，联合国通过了《贩运人口议定书》(Trafficking In Persons Protocol)，敦促各国立法起诉贩卖人口的肇事者，保护受害者。虽然世界各国已经开始制定新的法律来履行议定书所规定的义务，但这些努力仍然不足以控制最恶劣的活动。未能保护妇女和儿童免受性剥削的原因在于立法不力。缺乏起诉能力、刑事制裁不力以及未能将受害者视为被贩运者，阻碍了贩运控制方面的进展。本说明通过分析《巴勒莫议定书》关于性剥削和卖淫的规定，并比较和对比通过卖淫改革打击性贩运的不同方法，来处理受害者遭受性剥削的具体问题。最后，本文将建议美国如何修改其法律，以进一步履行《巴勒莫议定书》的使命，保护人口贩运的受害者。虽然目前没有完美的解决方案，但美国可以采用一些有价值的方法来寻求改善现状。
{"title":"Forthcoming: The Fallacy of Free Will in Prostitution: Encouraging Prostitution Reform to Prevent the Repeated Victimization of Vulnerable Persons","authors":"A. Kline","doi":"10.2139/SSRN.2893916","DOIUrl":"https://doi.org/10.2139/SSRN.2893916","url":null,"abstract":"The crisis of human trafficking has gained increasing attention during the past decade. Sale, coercion, and exploitation of human beings still thrive in the darkest corners of the safest cities. In 2003, the United Nations passed the Trafficking in Persons Protocol, urging states to pass legislation prosecuting perpetrators of trafficking and protecting victims. While nations across the world have begun to institute new laws to fulfill the obligations created by the protocol, these efforts still fall short of controlling the worst activities. The failure to protect women and children from sexual exploitation lies with ineffective legislation. A lack of ability to prosecute, weak criminal sanctions, and a failure to treat victims as trafficked persons has stunted progress in trafficking control. This note addresses the specific problem of sexual exploitation of victims by analyzing the Palermo Protocol’s stipulations as it refers to sexual exploitation and prostitution and comparing and contrasting different methods of combating sexual trafficking through prostitution reform. Finally, this note will suggest how the United States can change its laws to further the Palermo Protocol’s mission and protect victims of human trafficking. While there is no perfect solution currently, there are valuable methods the U.S. can apply to seek improvement of the status quo.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"43 1","pages":"665"},"PeriodicalIF":0.0,"publicationDate":"2017-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89949700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article attempts to answer the questions: Is secularism a nonnegotiable aspect of liberal constitutionalism? And can nonsecular state-church relationship models guarantee freedom of religion as an indispensable condition of liberal constitutionalism? Hence this Article deals with the practice of religious freedom in countries representing distinct models of state-church relations from both a normative/theoretical and an empirical perspective. The normative part of the Article examines the different models of state-religion relationships, while the empirical part will compare different national constitutional regulations on religious rights in three countries: Hungary (which became a liberal democracy after 1989-90 but has been backsliding into an illiberal constitutional system since 2010); Israel (a liberal democracy with a very special accommodationist model); and Egypt (a country that between 2011 and 2013 started to build up a democratic system with an illiberal theocratic constitutionalism). The hypothesis for my project is that the model of state–religion relations determines the state of religious freedom of a given country: The secular separationist model is by definition tolerant towards all religions, while the theocratic model is necessarily intolerant towards minority religions. But the three case studies should give an answer to the question raised in the title of this panel: at least from the perspective of freedom of religion, whether secularism is a nonnegotiable aspect of liberal constitutionalism.
{"title":"Varieties of State-Church Relations and Religious Freedom through Three Case Studies","authors":"Gábor Halmai","doi":"10.2139/SSRN.2984222","DOIUrl":"https://doi.org/10.2139/SSRN.2984222","url":null,"abstract":"This Article attempts to answer the questions: Is secularism a nonnegotiable aspect of liberal constitutionalism? And can nonsecular state-church relationship models guarantee freedom of religion as an indispensable condition of liberal constitutionalism? Hence this Article deals with the practice of religious freedom in countries representing distinct models of state-church relations from both a normative/theoretical and an empirical perspective. The normative part of the Article examines the different models of state-religion relationships, while the empirical part will compare different national constitutional regulations on religious rights in three countries: Hungary (which became a liberal democracy after 1989-90 but has been backsliding into an illiberal constitutional system since 2010); Israel (a liberal democracy with a very special accommodationist model); and Egypt (a country that between 2011 and 2013 started to build up a democratic system with an illiberal theocratic constitutionalism). The hypothesis for my project is that the model of state–religion relations determines the state of religious freedom of a given country: The secular separationist model is by definition tolerant towards all religions, while the theocratic model is necessarily intolerant towards minority religions. But the three case studies should give an answer to the question raised in the title of this panel: at least from the perspective of freedom of religion, whether secularism is a nonnegotiable aspect of liberal constitutionalism.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"12 1","pages":"175"},"PeriodicalIF":0.0,"publicationDate":"2017-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79913618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article seeks to study the eternal protection of the principle of secularism in national constitutions. It examines actual existing constitutional arrangement which prima facie provide secularism an absolute protection from change in the constitution, in an attempt to identify and explain the character of these existing constitutional arrangements. Part I of this Article discusses Secularism as an Eternal Constitutional Principle. It reviews various constitutions which entrench secularism as an implicit or explicit principle. Part II explains why constitutional eternity should not be regarded as if the protected constitutional principles are non-negotiable. This is demonstrated through three case studies which focus on Turkey, Tajikistan, Mali. Against the backdrop of these case studies, I argue that eternal principles should be regarded as negotiable on three main grounds. First, as long as eternity clauses are not self-entrenched, they can be formal amended. Second, what is protected by the eternity clauses is a constitutional principle – secularism rather than a rule. In light of it elastic meaning, the principle of secularism can therefore be reshaped and reinterpreted with time. Third, when the values protected by constitutional unamendability conflict with the community spirit or the Volksgeist, even the mechanism of constitutional eternity would not be able to hinder the true forces in society which demand change. Part III addresses what I term “the Circle of Eternity”. It demonstrates the central place of eternity in religious laws and natural law, an element which distinguishes them from secular law. It then describes the secular developments in the age of rationalization, in order to finally reveal the paradox of modern constitutional eternity; on the one hand, the basic fundamentals of modern constitutionalism are secular, from the standing point of popular sovereignty and people’s rational ability to decide their faith, destiny and consequently, to design their constitutional order. Yet, at the same time, this very presupposition rests as an unalterable pillar – an absolute truth which the constitutional eternity.
{"title":"Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions","authors":"Yaniv Roznai","doi":"10.2139/SSRN.2982275","DOIUrl":"https://doi.org/10.2139/SSRN.2982275","url":null,"abstract":"This article seeks to study the eternal protection of the principle of secularism in national constitutions. It examines actual existing constitutional arrangement which prima facie provide secularism an absolute protection from change in the constitution, in an attempt to identify and explain the character of these existing constitutional arrangements. Part I of this Article discusses Secularism as an Eternal Constitutional Principle. It reviews various constitutions which entrench secularism as an implicit or explicit principle. Part II explains why constitutional eternity should not be regarded as if the protected constitutional principles are non-negotiable. This is demonstrated through three case studies which focus on Turkey, Tajikistan, Mali. Against the backdrop of these case studies, I argue that eternal principles should be regarded as negotiable on three main grounds. First, as long as eternity clauses are not self-entrenched, they can be formal amended. Second, what is protected by the eternity clauses is a constitutional principle – secularism rather than a rule. In light of it elastic meaning, the principle of secularism can therefore be reshaped and reinterpreted with time. Third, when the values protected by constitutional unamendability conflict with the community spirit or the Volksgeist, even the mechanism of constitutional eternity would not be able to hinder the true forces in society which demand change. Part III addresses what I term “the Circle of Eternity”. It demonstrates the central place of eternity in religious laws and natural law, an element which distinguishes them from secular law. It then describes the secular developments in the age of rationalization, in order to finally reveal the paradox of modern constitutional eternity; on the one hand, the basic fundamentals of modern constitutionalism are secular, from the standing point of popular sovereignty and people’s rational ability to decide their faith, destiny and consequently, to design their constitutional order. Yet, at the same time, this very presupposition rests as an unalterable pillar – an absolute truth which the constitutional eternity.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"67 1","pages":"253"},"PeriodicalIF":0.0,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82339945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-09-25DOI: 10.5040/9781472561923.ch-004
Moeen Cheema
In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.
{"title":"The Politics of the Rule of Law","authors":"Moeen Cheema","doi":"10.5040/9781472561923.ch-004","DOIUrl":"https://doi.org/10.5040/9781472561923.ch-004","url":null,"abstract":"In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"48 2 1","pages":"449"},"PeriodicalIF":0.0,"publicationDate":"2016-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89595527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched. However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause. This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations. These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.
{"title":"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System","authors":"Ric Simmons","doi":"10.2139/SSRN.2816006","DOIUrl":"https://doi.org/10.2139/SSRN.2816006","url":null,"abstract":"Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched. However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause. This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations. These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.","PeriodicalId":18488,"journal":{"name":"Michigan State international law review","volume":"8 1","pages":"947"},"PeriodicalIF":0.0,"publicationDate":"2016-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75480759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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