1 Courts, Foreign Affairs, and the Structural Constitution

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Common Law ◽  
Federal Court ◽  
The United States ◽  
Executive Branch ◽  
Foreign Affairs ◽  
The Political ◽  
State Law ◽  
Government Institutions ◽  
The Common ◽  
Political Question

This chapter provides an overview of some of the constitutional, statutory, and common law doctrines that govern the adjudication of foreign affairs-related disputes in the United States. These doctrines include jurisdictional requirements, “justiciability” limitations such as the political question doctrine, the Erie doctrine concerning federal court application of state law, and the common law “act of state” doctrine. The chapter also discusses more general interpretive principles such as the Charming Betsy canon of construction and deference to the executive branch. The chapter concludes by describing the constitutional authority of U.S. government institutions other than the courts, including the situations in which state law that concerns foreign affairs will be preempted.

1 Courts and Foreign Affairs

2015 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Common Law ◽  
Federal Court ◽  
The United States ◽  
Executive Branch ◽  
Foreign Affairs ◽  
The Political ◽  
State Law ◽  
Government Institutions ◽  
The Common ◽  
Political Question

This chapter provides an overview of some of the constitutional, statutory, and common law doctrines that govern the adjudication of foreign affairs–related disputes in the United States. These doctrines include requirements for federal court jurisdiction, “justiciability” limitations such as the political question doctrine, the Erie doctrine concerning federal court application of state law, and the common law “act of state” doctrine. The chapter also discusses more general interpretive principles such as the Charming Betsy canon of construction and deference to the executive branch. The chapter concludes by briefly describing the constitutional authority of U.S. government institutions other than the courts, including the situations in which state law that concerns foreign affairs will be preempted.

Foreign-Official Immunity under the Common Law

2020 ◽  
pp. 433-468
Author(s):  
John B. Bellinger ◽  
Stephen K. Wirth
Keyword(s):  
Foreign Relations ◽  
Common Law ◽  
The United States ◽  
Executive Branch ◽  
Deep Roots ◽  
Open Questions ◽  
American Law ◽  
The Common ◽  
Heads Of State ◽  
Foreign Ministers

This chapter looks at foreign-official immunity. Foreign-official immunity is divided into status-based immunity, which affords absolute immunity to sitting heads of state, heads of government, and foreign ministers, and conduct-based immunity, which affords immunity to sitting and former foreign officials for official conduct undertaken on behalf of the foreign sovereign. Each of these immunities has deep roots in customary international law and the common law. And for nearly two centuries, U.S. courts applied common-law principles of immunity, as articulated by the executive branch in court filings known as “suggestions of immunity,” to assess whether a foreign state or foreign official was immune from suit in the United States. The Fourth Restatement of Foreign Relations Law does not yet include a section on the immunity of foreign officials in U.S. courts. The American Law Institute may consider including this passionately debated topic in a future volume. In the meantime, the chapter provides a background on the state of the case law and executive-branch practice, identifies several challenging open questions, and outlines some principles that may be useful to the eventual drafters of the Fourth Restatement’s section on the topic.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common

Plus ça Change: The 1922 U.S. Congressional Debate on the Balfour Declaration

2017 ◽  
Vol 47 (1) ◽  
pp. 98-106
Author(s):  
Khaled Elgindy
Keyword(s):  
United States ◽  
House Of Representatives ◽  
Political Discourse ◽  
The United States ◽  
League Of Nations ◽  
Foreign Affairs ◽  
The Political ◽  
The Subject ◽  
Palestinian Arab ◽  
The U.S

This essay looks at the hearing held by the Foreign Affairs Committee of the U.S. House of Representatives in April 1922 on the subject of a Jewish National Home in Palestine, as well as the broader congressional debate over the Balfour Declaration at that crucial time. The landmark hearing, which took place against the backdrop of growing unrest in Palestine and just prior to the League of Nations' formal approval of Britain's Mandate over Palestine, offers a glimpse into the cultural and political mindset underpinning U.S. support for the Zionist project at the time as well as the ways in which the political discourse in the United States has, or has not, changed since then. Despite the overwhelming support for the Zionist project in Congress, which unanimously endorsed Balfour in September 1922, the hearing examined all aspects of the issue and included a remarkably diverse array of viewpoints, including both anti-Zionist Jewish and Palestinian Arab voices.

scholarly journals JEWISH LAW, STATE, AND SOCIAL REALITY: PRENUPTIAL AGREEMENTS FOR THE PREVENTION OF DIVORCE REFUSAL IN ISRAEL AND THE UNITED STATES

2018 ◽  
Vol 33 (1) ◽  
pp. 61-88
Author(s):  
Amihai Radzyner
Keyword(s):  
United States ◽  
Jewish Woman ◽  
Main Tool ◽  
The United States ◽  
Western World ◽  
Jewish Law ◽  
State Law ◽  
Jewish Women ◽  
The Common ◽  
Official Status

AbstractRabbinical courts in Israel serve as official courts of the state, and state law provides that a Jewish couple can obtain a divorce only in these courts, and only strictly according to Jewish law. By contrast, in the Western world, especially the United States, which has the largest concentration of Jews outside of Israel, the Jewish halakha is not a matter of state law, and rabbinical courts have no official status. This article examines critically the common argument that for a Jew committed to the halakha, and in particular for a Jewish woman who wants to divorce her husband, a state-sponsored halakhic system is preferable to a voluntary one. This argument is considered in light of the main tool that has been proven to help American Jewish women who wish to obtain a halakhic divorce from husbands refusing to grant it: the prenuptial agreement. Many Jewish couples in the United States sign such an agreement, but only a few couples in Israel do so, primarily because of the opposition of the rabbinical courts in Israel to these agreements. The article examines the causes of this resistance, and offers reasons for the distinction that exists between the United States and Israel. It turns out that social and legal reality affect halakhic considerations, to the point where rabbis claim that what the halakha allows in the United States it prohibits in Israel. The last part of the article uses examples from the past to examine the possibility that social change in Israel will affect the rulings of rabbinical courts on this issue.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

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