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,,,Comparing Constitutions in the Global Era: Opportunities, Purpose, Challenges 全球化时代的宪法比较:机遇、目的与挑战
Pub Date : 2019-01-01 DOI: 10.17161/1808.28083
R. Toniatti
± The Casad Lecture is named in honor of Professor Robert Casad, one of KU Law faculty’s brightest stars in the area of comparative law. Professor Casad became a college freshman at age sixteen, and by the age of twenty-one he had earned his undergraduate degree and a master’s degree from the University of Kansas. He then went on to earn a JD degree from the University of Michigan and an advanced law degree from Harvard. Before Professor and Mrs. Casad moved to Lawrence in 1959, they lived for a short time in Winona, Minnesota where Professor Casad practiced law at the practice of Streater and Murphy. During their long association with KU, Professor and Mrs. Casad worked and lived overseas several times, including forays to Spain, Vienna, London, Japan, Costa Rica, Guatemala, Munich, Augsberg, Frankfort, and many other places. In connection with some of those visits abroad, Professor Casad became fluent in Spanish and has undertaken extensive research and writing in that language—a sign of a true legal comparativist. Among Professor Casad’s most wellknown scholarly works in English are Res Judicata in a Nutshell (1976) and Jurisdiction in Civil Actions (1998). Professor Casad took emeritus status at the Law School in 1997 and has remained active in scholarship and faculty matters since that time. ∗ Professor at the University of Trento School of Law. Professor Toniatti is an expert in comparative constitutional law and has written widely on the judiciary, legal pluralism, European integration, minority and indigenous people’s rights, and cultural citizenship. In addition to his scholarly contributions, he has advised the European Union and the Venice Commission. Professor Toniatti is a member of the International Academy of Comparative Law. Editor’s Note: The following essay is drawn from the Casad Comparative Law Lecture presented in February 2019 by Professor Roberto Toniatti. The Casad Lecture, held regularly at the University of Kansas School of Law as a component of the School’s multi-faceted International and Comparative Law Program, is named after Robert C. Casad and Sarah Casad in recognition of the special contributions that both of them have made to the Law School over many years, particularly in the area of comparative law.
卡萨德讲座是为了纪念罗伯特·卡萨德教授而命名的,他是堪萨斯大学法学院在比较法领域最耀眼的明星之一。卡萨德教授16岁时成为一名大学新生,21岁时在堪萨斯大学获得了本科学位和硕士学位。随后,他在密歇根大学(University of Michigan)获得法学博士学位,在哈佛大学(Harvard)获得高级法律学位。在卡萨德教授和夫人于1959年搬到劳伦斯之前,他们在明尼苏达州的威诺纳住了很短的一段时间,卡萨德教授在斯特里特和墨菲律师事务所执业。在他们与KU的长期合作中,Casad教授和夫人多次在国外工作和生活,包括西班牙,维也纳,伦敦,日本,哥斯达黎加,危地马拉,慕尼黑,奥格斯堡,法兰克福和许多其他地方。在一些国外访问期间,卡萨德教授掌握了流利的西班牙语,并用西班牙语进行了广泛的研究和写作,这是真正的法律比较学家的标志。卡萨德教授最著名的英文学术著作是《果壳中的判例》(1976)和《民事诉讼中的管辖权》(1998)。Casad教授于1997年在法学院获得荣誉退休资格,从那时起一直积极参与奖学金和教职工作。特伦托大学法学院教授。Toniatti教授是比较宪法方面的专家,在司法、法律多元化、欧洲一体化、少数民族和土著人民的权利以及文化公民权方面著述颇丰。除了学术贡献外,他还为欧盟和威尼斯委员会提供咨询。Toniatti教授是国际比较法学院的成员。编者注:以下文章是由罗伯托·托尼亚蒂教授于2019年2月提出的卡萨德比较法讲座。Casad讲座定期在堪萨斯大学法学院举行,是该校多方面的国际法和比较法项目的一个组成部分,以Robert C. Casad和Sarah Casad的名字命名,以表彰他们多年来对法学院做出的特殊贡献,特别是在比较法领域。
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引用次数: 0
,,,The Problem of Coerced Consent: When Voluntary Departure Isn’t So Voluntary 强迫同意的问题:当自愿离开不是那么自愿时
Pub Date : 2019-01-01 DOI: 10.17161/1808.29987
Nicolas A. Novy
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引用次数: 1
,,,In Their Words: Critically Analyzing the Admission of "Me Too" Testimony in Kansas 用他们的话说:批判性地分析堪萨斯州“我也是”证词的承认
Pub Date : 2019-01-01 DOI: 10.17161/1808.28087
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引用次数: 1
,,,Reflections Upon Terrorism, Militias, Law, and the Judicial System: An Essay 对恐怖主义、民兵、法律和司法系统的反思
Pub Date : 2019-01-01 DOI: 10.17161/1808.28084
M. Hoeflich
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;1
(A)涉及暴力行为或危及人类生命的行为,且违反美国或任何州的刑法,或若在美国或任何州的管辖范围内实施将构成刑事违法;(B)似乎有意- (i)恐吓或胁迫平民;(ii)以恐吓或胁迫的方式影响政府的政策;或(iii)通过大规模破坏、暗杀或绑架来影响政府的行为;(C)主要发生在美国领土管辖范围之外,或在实施手段、意图恐吓或胁迫的人员、或犯罪者活动或寻求庇护的地点等方面超越国界
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引用次数: 0
,,,Front Matter, University of Kansas Law Review Vol. 67 Number 3 《堪萨斯大学法律评论》第67卷第3期
Pub Date : 2019-01-01 DOI: 10.17161/1808.27732
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引用次数: 0
,,,Fallen Woman (Re)framed: Judge Jean Hortense Norris, New York City - 1912-1955 堕落的女人(重裱):吉恩·霍顿斯·诺里斯法官,纽约,1912-1955
Pub Date : 2019-01-01 DOI: 10.17161/1808.27733
Mae C. Quinn
This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional power, and offer a unique vision of the “fairer sex,” she was held to a different standard than her male peers and made to pay the price with her career. In these ways, this Article provides a more complete picture of Jean Norris beyond a shamed and disrobed judge. And it begins to move Judge Norris out of legal history’s margins so that she may be remembered as more than mere mugshot in the American imagination.
这篇文章试图揭示和理解Jean Hortense Norris作为一个律师、法学家、女权主义法律现实主义者,以及一个把性作为其职业形象和工作的一部分的女人的更多信息。本文分析了为诺里斯提供的法律保护的缺乏,以及考虑到提供的证据和适用的标准,将她从法官席上撤职的令人不安的性质。最后,本文试图为Jean Norris所谓的不当行为指控提供进一步的背景,以表明作为一名敢于模糊性别界限,拥抱自己的职业权力,并提供“更公平的性别”的独特视角的女性,她被以不同于男性同行的标准对待,并被迫付出事业的代价。在这些方面,这篇文章提供了一个更完整的Jean Norris的画面,而不是一个羞愧和赤裸的法官。它开始把诺里斯法官从法律历史的边缘移开,这样她就不仅仅是美国人想象中的大头照。
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引用次数: 0
,,,Equity in Contemporary Immigration Enforcement: Defining Contributions and Countering Criminalization 当代移民执法中的公平:界定贡献和打击犯罪化
Pub Date : 2018-08-21 DOI: 10.17161/1808.26697
A. Al-Khatib, Jayesh Rathod
Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding contributions or connections to the United States. The current political moment invites deeper reflection about the equities that should insulate undocumented noncitizens from removal, and how those equities should be assessed vis-a-vis allegations of criminality. Over the years, scholars have articulated a range of factors that justify protection from removal or even regularization of status. This article builds upon that literature, and presents a more nuanced typology of the societal contributions that should weigh against removal, along with the theories that undergird noncitizens’ claims in this context. A second purpose of this article is to expose how the powerful trend of criminalization has begun to infect even the limited space where discretion can be exercised, and has converted seemingly favorable conduct into undesirable criminal activity. This development, which is examined through the lens of several case studies, enables exclusion and expulsion, and disrupts the incentives that noncitizens have to contribute to and support the state.
自2016年总统大选以来,关于移民政策和执法的讨论已经成为公开辩论的中心议题。奥巴马政府明确提出了具体的驱逐优先事项,与此相反,特朗普政府大幅扩大了执法目标。事实上,高级官员已经证实,几乎任何未经授权进入该国的人都可能被驱逐出境。为了证明加强移民执法的理由,现任政府在移民犯罪和危险方面使用了熟悉的比喻。这种言辞,通过各种刑事定罪结构运作,缩小了能够反对遣返的人的数量,尽管他们对美国有贡献或有联系。当前的政治时刻引发了更深层次的反思:哪些权益应该使无证非公民免于被驱逐,以及这些权益应该如何与犯罪指控进行评估。多年来,学者们已经明确提出了一系列因素,证明保护身份不被剥夺甚至不被正规化是合理的。本文以这些文献为基础,提出了一种更细致入微的社会贡献类型,这种类型应该权衡迁离,以及在这种情况下支持非公民主张的理论。本文的第二个目的是揭示强大的刑事化趋势是如何开始影响甚至可以行使自由裁量权的有限空间,并将看似有利的行为转化为不受欢迎的犯罪活动的。通过几个案例研究对这种发展进行了考察,它使排斥和驱逐成为可能,并破坏了非公民为国家做出贡献和支持国家的动机。
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引用次数: 0
,,,A Constitutional Path to Fair Representation for the Poor 为穷人争取公平代表权的宪法途径
Pub Date : 2018-07-01 DOI: 10.17161/1808.26696
I. L. Ross
The Tax Cuts and Jobs Act (TCJA) represented the crowning achievement of the first year of unified Republican control of the federal government’s political branches.1 President Donald Trump and Republicans in Congress sold the Act as a tax cut that would benefit the middle class. In an apparently coordinated effort, President Trump, Senate majority leader Mitch McConnell, and Speaker of the House Paul Ryan issued statements trumpeting the $2,000 tax cut that the median income household of four would receive in 2018.2 In opposing the tax bill, Democrats also tried to position themselves as champions of the middle class. Democrats blasted the bill as a giveaway to special interest groups and wealthy with little to no tax relief for the middle class.3 According to Senate Minority Leader Chuck
《减税和就业法案》代表了共和党统一控制联邦政府政治部门第一年的最高成就。1唐纳德·特朗普总统和国会共和党人将该法案视为有利于中产阶级的减税法案。特朗普总统、参议院多数党领袖米奇·麦康奈尔和众议院议长保罗·瑞安发表声明,大肆宣扬2018年中等收入四口之家将获得2000美元的减税。2在反对该税收法案时,民主党人还试图将自己定位为中产阶级的拥护者。民主党人抨击该法案是对特殊利益集团和富人的赠品,对中产阶级几乎没有税收减免。3参议院少数党领袖查克表示
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引用次数: 3
,,,Inequity as a Legal Principle ,,,作为一项法律原则的不公平
Pub Date : 2018-07-01 DOI: 10.17161/1808.26694
L. Yuille
Inequity permeates law and legal systems. “[Y]ou can’t really understand,” explained Spencer, “For me the law is all over. I am caught, you know; there is always some rule that I’m supposed to follow, some rule I don’t even know about that they say.”1 Spencer is “welfare poor;” he experiences law as “power and domination.”2 Not Bob. Bob is wealthy. For him, law is instrumental. He deploys it as a shield and a sword. He has faith that, in general, it will not interfere with his life, unless he wants it to. And, not Becky. Becky manages a popular coffeehouse in a relatively diverse metropolis. For Becky, law is mostly invisible, but it is also emboldenment. When two black men enter the coffeehouse, Becky feels uncomfortable. She wants the men to leave, but she does not want to confront them. She calls on the law. 911: “Help! There are two men here. They won’t leave my store. They are black.” The police arrest the men for trespass. Becky feels courageous as they are escorted away.3 Spencer recognizes this difference. “‘For me
不公平渗透到法律和法律体系中。“你真的不能理解,”Spencer解释道,“对我来说,法律已经结束了。你知道,我被抓住了;总有一些规则我应该遵守,有些规则我甚至不知道他们说的。”1 Spencer是“福利穷人”;他把法律视为“权力和统治”。2而不是Bob。鲍勃很富有。对他来说,法律是重要的。他把它当作盾牌和剑。他相信,总的来说,这不会干扰他的生活,除非他愿意。而且,贝基也不会。贝基在一个相对多样化的大都市经营着一家受欢迎的咖啡馆。对贝基来说,法律基本上是看不见的,但它也是一种鼓励。当两个黑人男子走进咖啡馆时,贝基感到不舒服。她希望男人们离开,但她不想与他们对峙。她诉诸法律。911:“救命!这里有两个人。他们不会离开我的商店。他们是黑人。”警察以非法侵入罪逮捕了这些人。当他们被护送离开时,贝基感到很勇敢。3斯宾塞意识到了这一点。”“对我来说
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引用次数: 0
,,,Blaines Beware: Trinity Lutheran and the Changing Landscape of State No-Funding Provisions 小心:三一路德教会和不断变化的国家无资助条款
Pub Date : 2018-05-01 DOI: 10.17161/1808.26578
Matthew Sondergard
For most Americans, religion and politics are like oil and water. They do not, and should not, mix. The tension between the two topics is evident, even from a cursory view at the news. The Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer has highlighted this conflict once again. Due to the constant public debate regarding the relationship between religion and politics, Trinity Lutheran will have a substantial impact on the religious freedom landscape for decades to come. Locally, this decision impacts Kansas’s constitution. Article 6, Section 6 of the Kansas Constitution describes how education funding will occur in Kansas. Recently, this topic has been a battleground between the Kansas courts and the Kansas Legislature.2 At the end of this section is clause (c). This clause is short, only containing fourteen words, yet it sets the stage for potential litigation in Kansas under the United States Supreme Court’s decision in Trinity Lutheran. Due to its simplicity, clause (c) is very clear: “No religious sect or sects shall control any part of the public educational funds.”3 This section is one of many sections in various state constitutions prohibiting state funding from going to
对大多数美国人来说,宗教和政治就像油和水。它们不会,也不应该混合在一起。即使粗略地看一下新闻,这两个话题之间的紧张关系也是显而易见的。最高法院对哥伦比亚三一路德教会诉科默案的判决再次凸显了这一冲突。由于公众对宗教与政治之间关系的持续争论,三一路德会将对未来几十年的宗教自由格局产生重大影响。在当地,这一决定影响了堪萨斯州的宪法。堪萨斯州宪法第6条第6款描述了堪萨斯州的教育资金将如何产生。最近,这个话题一直是堪萨斯州法院和堪萨斯州立法机构之间的战场。2本节末尾是条款(c)。该条款很短,只有14个单词,但它为根据美国最高法院对三一路德教会的裁决在堪萨斯州提起的潜在诉讼奠定了基础。(c)条款简单明了:“任何宗教派别不得控制公共教育经费的任何部分。”这一条款是各州宪法中禁止州政府资金流向……的众多条款之一
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引用次数: 0
期刊
University of Kansas law review. University of Kansas. School of Law
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