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The objective of This article is to deal with the characteristics of the so-called «New Latin American Constitutionalism», whose germ is found in the constitutional processes of the States Ecuador, Bolivia and Venezuela, without prejudice to the antecedent that the Colombian Constitution of 1991 meant. Considering the insistent criticisms that have been made in this new paradigm, a comparison will be drawn with the Constitutional Democracy Model, seeking to underline the main aspect that have those proposal. ; El presente artículo tiene por objeto abordar las características del denominado «Nuevo Constitucionalismo Latinoamericano», cuyo germen se encuentra en los procesos constitucionales de los Estados Ecuador, Bolivia y Venezuela, sin perjuicio del antecedente que significó la Constitución colombiana de 1991. Considerando las insistentes críticas que se han formulado respecto de este nuevo paradigma, se concretará una comparación con el Modelo de Democracia Constitucional, procurando subrayar los aspectos centrales que distancian a estas propuestas.

Intravenous drug use is both a common aspect of the pre-imprisonment lifestyles of many American prisoners and a leading risk factor for contracting HIV—the virus that causes AIDS. Moreover, incarcerated inmates frequently engage in behavior that can spread the disease, particularly homosexual activity and intravenous drug use. Correctional officials face increasing pressure to protect inmates and staff from HIV infection, and some have responded by implementing policies requiring all inmates to undergo HIV testing and by housing HIV-positive inmates in separate units. Screening and segregation policies, however, have been challenged on constitutional grounds by HIV-positive prisoners. This article examines the leading constitutional developments in this emerging area of law and finds that most courts so far have been inclined to reject constitutional challenges to mandatory testing and segregation policies. There are enough unsettled issues, however, to warrant expanded appellate review and eventual U.S. Supreme Court resolution of the key constitutional questions.

Article 9 has been the focus of legislative debate since Japanese leaders concluded the San Francisco Peace Treaty in 1952, ending the U.S. Occupation of their country. Conservatives and progressives alike sought to consider what this new constitution meant for Japan's postwar defenses, and how it was to be translated into a rearmament policy. Until a new law was passed to create the Self Defense Force in 1954, these Diet debates offer a fascinating window on the effort to define what Article 9 meant, and the issues that provoked contention among political parties. Most of the critical questions regarding how to interpret Article 9 emerged in the first Diet debates of 1952-54 over the creation of Japan's postwar military. Even though the war was still fresh in the minds of most Japanese, Diet members had to consider how best to provide for the country's defenses as the Korean War ushered in a new era of major power competition, this time cleaved by an ideological clash between socialism and capitalism. Japan's politicians also had to confront the reality, so amply demonstrated at the end of World War II, that they had to do so in an era of nuclear weapons.

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment's "marketplace of ideas" has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course. Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and unpopular political movements. Since Brandenburg, the Court's jurisprudence has turned towards free-speech absolutism. Today, free-speech discourse focuses on the right of what is said without discussing what the effect of that discourse is. Rather than allowing the "market" to decide what is and is not acceptable within public discourse, the Supreme Court has made the First Amendment a truism. The result is a fetishization of free speech without understanding its broader implications. This Comment argues that the Court's jurisprudence consistently reflects sociopolitical values of the dominant political ideology. This Comment begins by examining the history of the First Amendment in the context of World War I and the development of the "clear and present danger" doctrine, which was used to suppress anti-war dissidents. This doctrine evolved into the Brandenburg incitement test, which embodied free-speech absolutism. Following this legal analysis, this Comment credits the philosophy of John Stuart Mill with laying the philosophical justification for the Court's jurisprudence. This Comment critiques free-speech absolutism and its values, specifically tolerance and the "marketplace of ideas," by considering the power dynamics at play during speech acts, specifically hate speech. This critique concludes by offering several possible solutions, including tort remedies, to ...

This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided. The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable. The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved. ; https://scholarship.law.columbia.edu/books/1218/thumbnail.jpg

The provisions of the Constitution of the Russian Federation form a legal foundation for the further development of the information society and information legislation in Russia. The author highlights a number of problems in the information legislation, the solution of which is an urgent task for the constitutional law of Russia. Among them, the problem of imbalance between private and public interests, competition between various constitutional rights and freedoms, as well as unconstitutional restriction of certain information rights and freedoms. The following are examples of the solution of the particular manifestation of these problems. The author calls the solution of these problems the constitutionalization of the information legislation "from top to bottom". ; Положения Конституции РФ образуют правовой фундамент для дальнейшего развития информационного общества и информационного законодательства в России. Автор выделяет ряд проблем в информационном законодательстве, решение которых является актуальной задачей для конституционного права России. В их числе проблема дисбаланса между частными и публичными интересами, конкуренция между различными конституционными правами и свободами, а также неконституционное ограничение некоторых информационных прав и свобод. Далее приводятся примеры решения частного проявления указанных проблем. Решение данных проблем автор называет конституционализацией информационного законодательства «сверху вниз».

Sabine Papenbrock untersucht anlässlich der Verfassungsbeschwerde des schwedischen Unternehmens Vattenfall gegen den Atomausstieg die Frage nach der Grundrechtsberechtigung juristischer Personen des öffentlichen Rechts, die von einem ausländischen Staat gehalten werden. Die Autorin untersucht die hierdurch aufgeworfene Fragestellung für das deutsche Recht, das Europarecht und das britische Recht sowie in einem Rechtsvergleich. Sie kommt zu dem Ergebnis, dass maßgeblich für die Lösung dieser Fragestellung das in den Rechtsordnungen jeweils herrschende Grundrechtsverständnis ist: Legt die Rechtsordnung ein anthropozentrisches oder ein funktionales Verständnis zugrunde? Gerade aus dem Rechtsvergleich ergibt sich, dass für eine interessengerechte Lösung in Abkehr von der sogenannten Durchgriffsthese das Merkmal der grundrechtstypischen Gefährdungslage in Form der Gewaltunterworfenheit heranzuziehen ist. Insoweit ist einem funktionalen Grundrechtsverständnis der Vorrang zu gewähren. / »The Fundamental Rights of Foreign Legal Persons under Public Law in a European Legal Comparison« -- On the occasion of the constitutional complaint lodged by the Swedish company Vattenfall, the author examines the question of the fundamental rights of legal persons under public law held by a foreign state. It takes into account German, European and British constitutional law in a legal comparison and deals with the question of the understanding of fundamental rights underlying these legal systems

Full-text available at SSRN. See link in this record. ; Given the centrality of rule of law principles to the constitutional order, we have never been entirely comfortable with current legal doctrines which leave basic rule of law safeguards for government benefits, such as welfare, licensing, and government employment, dependent upon legislative or administrative discretion, just because the interest at issue is a governmentally created one. Under current doctrines, a legislature can preclude the application of the Due Process Clause by declining to create an entitlement to a government benefit and, under the Court's current Article III jurisprudence, it can foreclose judicial review of administrative benefit decisions, except perhaps for constitutional issues. An extensive historical analysis of both due process and judicial review doctrine reveals that the contingent character of current rule of law jurisprudence results from the Supreme Court's relatively recent decision to adopt a rights-based approach to rule of law rather than a duty-based approach which is also suggested in many of the Court's earlier decisions. A duty-based approach reflects the Hohfeldian nature of duties as the counterpart of legal rights. This duality would permit courts to separate the analysis of whether a person has a substantive right to a given interest from the analysis of whether the government's treatment of that interest is subject to legal standards that public officials have a duty to observe. Under a duty-based approach, it is the presence of a legal duty that triggers the application of due process and the availability of judicial review. The duty-based approach eliminates the current contingent nature of rule of law because it requires rule of law protections whenever government officials are subject to legal standards and requires legislatures to establish such legal standards except where the Constitution permits standardless political discretion. Further, because due process and Article III judicial review are both ...

Of all the living things on earth, humans have the unique ability to destroy all life. Paradoxically, even though our lives will ultimately be destroyed too, we also seem to have the inability to stop the destruction, or at least alack of will to stop it. As the daily litany of new destructions2 piles up and both the pace and the quantity increase, each loss is buried in the pile beneath humanity's other problems. When humans start prioritizing, the living environment—both flora and fauna—is often neglected, and sometimes purposely harmed.3 Even nonliving elements of nature are harmed. In short, humans destroy the ecosystems necessary for human survival in order to effectuate some other human interest, a lack of balancing that is incomprehensible.This article turns on its head the idea that if we are better human beings, we will behave better toward each other and other living things. This article starts instead with the premise that if we learn to value (and treat accordingly) all living things, we will be better human beings. Although there are undoubtedly several social lenses through which to discuss this idea, the intersection of animal law and environmental law provides a place, not just for discussion, but also for action. Specifically, there are three legal constructs at the intersection of animal law and environmental law that could significantly reduce human harm to nature: one should be dismantled, one should be strengthened, and one should be reconstructed. This article starts in Part I by looking at the dichotomy of the animal welfare and environmental movements. Although they developed separately and have interests that often compete, the two movements do intersect. Part II argues that state "ag-gag" laws4—which provide legal cover for the animal cruelty, environmental harms, and social injustices caused by concentrated animal feeding operations (CAFOs)5—should be dismantled and repealed. Part III analyzes the issue of who has and who should have constitutional standing under statutes like the Endangered Species Act (ESA).6 These statutes that are meant to protect the environment and animals could be more effective at doing so with both judicial and legislative fixes to allow courts to more often consider their injuries. Finally, Part IV tackles the role of environmental law in shifting paradigms of how we view the human/nonhuman dichotomy in nature. Legal systems are human constructs that can be reconstructed on a framework that redefines the legal status of nonhuman animals and elements of nature in order to provide ecocentric justice. In the face of some quite dire destructions and losses in the ecosystems humans inhabit and depend on for survival, human legal systems must safeguard nonhuman interests.

The Supreme Court's decision last June in Free Enterprise Fund v. Public Company Accounting Oversight Board is torn between general principle and particularity in considering important questions of separation of powers in American constitutional law – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey's Executor v. United States. The Supreme Court has a long history of reaching sensible results in its assessments of congressional choices about the structures of government, while having the deuce of a time explaining them. It has taken later developments to pick up the pieces. Its Free Enterprise Fund decision is only the most recent exhibit in this right-minded but inelegantly reasoned chain of opinions. The essay reviews the tensions between holding and explanation in the earlier cases, and then turns to the PCAOB decision. On the general question what the Constitution provides about the relationship between President and the Departments of executive government, in some respects matters are more settled than they had been at the beginning of the year. All nine Justices placed the independent regulatory commissions where they should be – not a "headless fourth branch," but elements of the executive branch in a different – but necessary – oversight relationship with the President. The Supreme Court's most important function, as Charles Black once remarked, lies in its validation of Congress's choices, not the opposite. But the majority opinion strangely refuses to say, flat out, that its conclusion entailed a presidential right to demand "Opinions in writing" from the SEC – the one authority Article II of the Constitution explicitly gives the President over the acts of domestic agencies – even as its holding reasons from the necessity of effective presidential oversight of executive action. And it seems unwilling to choose between saying that Congress may not place a for-cause-protected institution within another for-cause-protected institution, an untroubling proposition, and saying that Congress may not give for-cause protection to any "inferior officer" serving in a for-cause-protected institution, an unsettling proposition. Can Congress not protect the Inspector General of the SEC in the same way as it protects the Inspector General of the Department of Justice? The Court's approach to such issues would be greatly improved by pragmatic attention to reality and detail.