Suchergebnisse

This collection examines the challenges faced by countries competing over territorial claims during constitutional transitions. It addresses two scenarios in particular: authoritarian to democratic rule against a backdrop of violent conflict; and transitions within electoral democracies in response to claims for territorial autonomy.

One of the most notable developments in contemporary constitutional law is the breakdown of jurisprudence interpreting the Sixth Amendment's Confrontation Clause following the U.S. Supreme Court's 2004 decision in Crawford v. Washington. There, the Court promised doctrine that faithfully applied the Clause's original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. Post-Crawford case law has not delivered on these promises. This Article argues that Crawford's failure reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause. Though justified by the Court on originalist grounds, the rule of Crawford, holding that "testimonial" evidence triggers a right to confront the responsible "witness," is best understood as an attempt to regulate governmental evasion of the basic Sixth Amendment right to confront witnesses who give live testimony in legal proceedings. The need for doctrine that performs this function results from the transformation in evidence between the framing and present day. The Crawford Court, however, did not acknowledge the need to regulate evasion of the basic confrontation right, nor did it grapple with important policy questions a legal policymaker regulating evasion of the law must address. This account: (1) suggests a reorientation of confrontation doctrine that would permit the Court to overcome the uncertainty that plagues post-Crawford jurisprudence; (2) suggests a decision tree for courts considering whether and how to regulate seemingly evasive activities; and (3) contributes new data to the long-running debate between "pragmatist" and "doctrinalist" scholars over the utility of identifying a separate category of doctrine that implements constitutional norms as opposed to elaborating the Constitution's textual and historical meaning.

One of the hallmarks of the present era is the discourse surrounding Human Rights and the need for the law to recognise them. Various national and supranational human rights instruments have been developed and implemented in order to transition society away from atrocity and callousness toward a more just and inclusive future. In some countries this is done by means of an overarching constitution, while in others international conventions or ordinary legislation hold sway. Contract law plays a pivotal role in this context. According to many, this is done through the much-debated 'civilising mission' of the contract, a notion which itself constitutes the canon of the Western liberal principle of 'civilised economy'. The movement away from the belief in the absolute freedom of contract, which reached its zenith in the nineteenth century, to the principles of fairness and justice that underpin contract law today, is often deemed to be a testament to this civilising influence. Delving into the interplay between human rights policies, constitutional law, and contract law from both theoretical and practical perspectives, this first volume of a two-book collection offers a totally new reappraisal of the subject by gathering a collection of essays written by contract law scholars from Europe, South Africa, Canada, and Australia. Instead of providing the reader with a sterile compilation of positivistic norms and policies on the impact of fundamental rights and constitutional law issues on contract law's development, the authors build on their personal experience to analyse specific topics related to contracting that include a constitutional dimension. The book fills an important void in comparative law scholarship and in so doing represents the starting point for further debate on the subject.

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial objection. Thus, by gradual evolution, a consensus seems to have emerged allowing the maintenance of armed forces, but limiting their use to noncombat roles that also have explicit legislative approval.

Since General Franco's dictatorship until today, Catalan autonomy has been an issue of considerable importance in the implementation of public policies in Spain, particularly its process of institutionalisation, strengthening and delimitation, in accordance with the historical and political context, through the adoption of legal instruments that have guaranteed the Catalan people independence in different areas of public life. Currently, the independence movement is seeking to create a new State and has taken several actions to legitimize these ideas, which have not always conformed to the constitutional framework. This document seeks to describe the constitutional legal framework within which Catalan autonomy is circumscribed, as well as an analysis of this case in international law to ascertain the limits to which the aspirations of independence are confronted. ; Desde la dictadura del General Franco hasta la fecha, la autonomía catalana ha sido un asunto de bastante relevancia en la ejecución de políticas públicas de España, particularmente su proceso de institucionalización, fortalecimiento y delimitación, de acuerdo al contexto histórico y político, a través de la adopción de instrumentos jurídicos que le han garantizado al pueblo catalán independencia en distintas áreas de la vida pública. Actualmente, el movimiento independentista busca crear un nuevo Estado y para ello ha tomado varias acciones a fin de legitimar esas ideas, las cuales no siempre se han ajustado al marco constitucional. Este documento busca describir el marco jurídico constitucional en el que se circunscribe la autonomía catalana, así como un análisis de este caso en el derecho internacional para conocer los límites a los que se enfrenta las aspiraciones de independencia.

Examining the constitutional foundations of European contract law, this book provides a thorough assessment of the extent of the European Union's competence to regulate contracts and offers a comprehensive comparative study of the contract law framework in the United States.