Good Administration and the Council of Europe: Law, Principles, and Effectiveness examines the existence and effectiveness of written and unwritten standards of good administration developed within the framework of the Council of Europe (CoE) and in the case law of the European Court of Human Rights. These standards - called 'pan- European general principles of good administration' - cover the entire range of general organizational, procedural, and substantive legal institutions meant to ensure a democratically legitimized, open, and transparent administration respecting the rule of law. They are about the 'limiting function' of administrative law: its function to protect individuals from arbitrary power, to legitimize administrative action, and to combat corruption. This book analyses the sources and functions of the pan-European general principles of good administration and seeks to uncover how deeply they are rooted in the domestic legal systems of the CoE Member States. It comprises 28 country reports dedicated to an in-depth exploration of the impact of these standards on the national legal systems of the Member States written by respective experts on these systems. It argues that the pan-European general principles of good administration lead to a certain harmonization of the legal orders of the Member States with regard to the limiting function of administrative law despite the many fundamental differences between their administrative and legal systems. It comes to the further conclusion that the pan-European general principles of good administration can be considered as a concretization of the founding values of the CoE and describes the 'administrative law obligations' a Member State entered into when joining the CoE.

Every year, thousands of people seek asylum in the United States because they have been persecuted in other countries due to their race, religion, nationality, social group, or political opinion. In seeking refuge and protection, these immigrants must rely on the American court system to help them achieve safety from the great harm they have suffered.

In her unique and compelling judicial memoir, Susan Yarbrough, a former US immigration judge, highlights five significant asylum cases that she heard and decided during almost eighteen years on the benchcases that profoundly changed her not only as a judge, but also as a person.

Yarbrough recounts heartrending testimony described against the background of the countries in which the persecution took place, following each account with personal reflections on how she was emotionally and spiritually transformed by each person who testified. From Josue Maldonado, persecuted in El Salvador because of his religion, to Daniel Quetzal, an Indian from Guatemala who was tied naked to a pole and tortured because of his political opinion, the cases that the author shares provide an unforgettable glimpse into the lives of courageous people who risked everything for peace and freedom in the United States.

Bench-Pressed is the story of five asylum seekers and the judge who was irrevocably changed by the intersection of her life with theirs.

The book gives insight into the structures and developments of the fundamental rights protection in Europe which is effective at the levels of the national Constitutions, the European Convention of Human Rights and, for the EU member States of the EU Fundamental Rights Charter. The contributions of renowned academics from various European countries demonstrate the functional interconnection of these protection systems which result in an increasing convergence. Basic questions are reflected, such as human dignity as foundation of fundamental rights or positive action as a specific form of equality as well as the concept of rights convergence. In this latter contribution the forms of direct reception of a different legal order and of the functional transfer of principles and concepts are analyzed. Particular reference is made to the EU Charter, the United Kingdom Human Rights Act as well as to France and Germany. It becomes obvious how important interpretation is for the harmonization of national and conventional fundamental rights protection. Traditional institutional approaches like the dualist transformation concept in Germany are functionally set aside in the harmonization process through constitutional interpretation. Specific studies are dedicated to the field of the EU Fundamental Rights Charter and to the European impacts on the national fundamental rights protection in selected countries such as the "new democracies" Poland, Romania and Kosovo as well as more traditional systems such as Spain, Italy, the Nordic countries or Turkey.

A constitutional order is a system of systems. It is an aggregate of interacting institutions, which are themselves aggregates of interacting individuals. In The System of the Constitution, Adrian Vermeule analyzes constitutionalism through the lens of systems theory, originally developed in biology, computer science, political science and other disciplines. Systems theory illuminates both the structural constitution and constitutional judging, and reveals that standard views and claims about constitutional theory commit fallacies of aggregation and are thus invalid. By contrast, Vermeule explains and illustrates an approach to constitutionalism that considers the systemic interactions of legal and political institutions and of the individuals who act within them.

This in-depth examination of the Chinese Exclusion Act of 1882 provides a chronological review of the events, ordinances, and pervasive attitudes that preceded, coincided with, and followed its enactment. The Chinese Exclusion Act of 1882 was a historic act of legislation that demonstrated how the federal government of the United States once openly condoned racial discrimination. Once the Exclusion Act passed, the door was opened to further limitation of Asians in America during the late 19th century, such as the Scott Act of 1888 and the Geary Act of 1892, and increased hatred towards and violence against Chinese people based on the misguided belief they were to blame for depressed wage levels and unemployment among Caucasians. This title traces the complete evolution of the Exclusion Act, including the history of Chinese immigration to the United States, the factors that served to increase their populations here, and the subsequent efforts to limit further immigration and encourage the departure of the Chinese already in America. Provides excerpts from nearly two dozen original documents, including legislation, letters, essays, and other materials related to the sanctioning of discrimination against the Chinese in the United States Presents a chronology of significant actions and events that preceded and facilitated passage of the Exclusion Act, as well as occurrences after its passage and leading to its repeal Includes a bibliography of over 60 significant sources that reflect attitudes, news reports, and legislation from the time of the Exclusion Act and contemporary viewpoints on the historical event Contains a helpful glossary of terms commonly employed in a discussion of the Chinese-American experience and passage of the Exclusion Act

This book analyzes the role of strategic human rights litigation in the dissemination and migration of transnational constitutional norms and provides a detailed analysis of how transnational human rights advocates and their local partners have used international and foreign law to promote abolition of the death penalty and decriminalization of homosexuality. The "sharing" of human rights jurisprudence among judges across legal systems is currently spreading emerging norms among domestic courts and contributing to the evolution of international law. While prior studies have focused on international and foreign citations in judicial decisions, this global migration of constitutional norms is driven not by judges but by legal advocates themselves, who cite and apply international and foreign law in their pleadings in pursuit of a specific human rights agenda. Local and transnational legal advocates form partnerships and networks that transmit legal strategy and comparative doctrine, taking advantage of similarities in postcolonial legal and constitutional frameworks. Using examples such as the abolition of the death penalty and decriminalization of same-sex relations, this book traces the transnational networks of human rights lawyers and advocacy groups who engage in constitutional litigation before domestic and supranational tribunals in order to embed international human rights norms in local contexts. In turn, domestic human rights litigation influences the evolution of international law to reflect state practice in a mutually reinforcing process. Accordingly, international and foreign legal citations offer transnational human rights advocates powerful tools for legal reform.

Since the 2003 U.S. led invasion of Iraq, the private military sector has seen the largest growth of profit for decades. As Iraq continues to be the focal point of private military clients, staff and related actors, the recurring issue of legitimacy must be addressed. While many texts focus only on existing or proposed legislation, this book analyses the public perception of private military companies (PMCs) and, of wider significance, how their use by states affects how the general public perceives state legitimacy of monopolizing force. Furthermore, this book provides a timely overview of how the energy sector and PMCs are challenging the established sovereignty of politically fragmented oil states, illustrating how energy firms may become as culpable as states in their partnerships with the private military sector and subsequent political ramifications.

A thorough descriptive list of 225 printed constitutions, statutes, session acts and resolutions passed by properly authorized bodies of the Cherokee Nation, Chickasaw Nation, Choctaw Nation, Creek (or Muskogee Nation), Indian Territory, Nez Perce tribe, Omaha Tribe, Osage Nation, Ottawa Tribe, Sac and Fox nation, Seminole Nation, Seneca Nation, State of Sequoyah, Stockbridge and Munsee Tribe and the Winnebago Tribe. Each chapter begins with a brief history of the tribe or nation and each entry contains useful biographical, historical and bibliographical notes. The author observes that many of these items have not been "recorded in any connection, and the scant biographical information about the others are widely scattered."

This collection reveals the Janus-faced character of federalism in the European Union. Federalism appears in two main forms in the EU. On the one hand, numerous formerly unitary Member States have embarked on a path towards a (quasi-)federal governance structure. On the other hand, the EU itself is sometimes qualified as a federal system. Significantly, the concept of federalism has a very different, even opposite, connotation in both contexts. When associated with Member State reform, federalism is regarded as a technique for accommodating autonomy claims of sub-state nations. By contrast, when federalism is used as a label for the EU itself, it is conceived as a far-reaching way of integrating the nations of Europe. This dual appearance of federalism in the EU context is central to the structure of the book. The focus of this book's first set of essays is on domestic federalization processes, more particularly on the impact of these processes on EU law and vice versa. In a second set of contributions, the attention shifts to the question as to whether the EU itself can be described as a federal system, and whether it can learn from existing federations. (Series: Modern Studies in European Law - Vol. 33)

The book considers the changes which national sovereignty has undergone through the supranational European integration. In various contributions by renowned academics and high judges demonstrate the serious impacts of supranationality on the EU member states and even on third countries which are connected with the EU by international treaties. It becomes clear that primacy of EU law, the most significant expression of supra-nationality, collides with national sovereignty as anchored in the national constitutions. The studies clearly show that most member states do not fully deny EU law primacy but are aware of the need to find an adequate balance between the supranational and the national orders. The result from the analyses of the authors from various European countries is that the upcoming constitutional paradigm is "constitutional identity", a concept established by jurisprudence in Germany, France, Czech Republic (without being named so) and debated also in Poland which, herself, denies supranational impact on the national Constitution entirely. Studies on selected EU member states clarify the specific national approaches towards the limitations of their sovereignty as developed by the constitutional jurisprudence (Poland, Czech Republic, Hungary, Romania, Italy, Germany with comparative references to United Kingdom and France). It is illuminated that traditionally strong sovereignty concepts (UK, France) are considerably relativized and functionally opened towards the integration challenges. Basic issues are furthermore reflected, such as the supranational impact on the State's power to reform its Constitution, the relation of national and constitutional identity and the national and supranational perspectives of identity. The book also includes Europe beyond the EU by research on the supranational character of association treaties (from a Ukrainian perspective) and on the Europeanization of a third country preparing EU membership (Albania).

This work deals with the temporal effect of judicial decisions and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions. Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled by the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.

Does an offender have the "right" to be punished? "The right to be punished" may sound like an oxymoron, but it is not necessarily so. With the emergence of modern criminal law, the offender gained the "right" to be punished by rational criminal law rather than being lynched by an angry mob. The present-day offender may have the "right" to be punished by doctrinal sentencing rather than being subjected to verdicts based on vague, unclear, and uncertain principles. In modern criminal law, the imposition of criminal liability follows accurate and strict rules, whereas there are no similar rules for the imposition of punishment. The process of sentencing is vague and obscure, as are the considerations used for the imposition of punishments. The objective of the present book is to propose a comprehensive, general, and legally sophisticated theory of modern doctrinal sentencing. The challenges of such a legal theory are plenty and complex. In addition to increasing clarity and certainty, modern doctrinal sentencing must deal with modern types of delinquency (e.g. organized crime, recidivism, corporate offenders, high-tech offenses, etc.) and modern principles of criminal law. Modern doctrinal sentencing must serve to ensure optimal sentencing.

This volume of essays, situated at the interface between legal doctrine and legal and political philosophy, discusses the conceptual and normative issues posed by the right to inclusion and exclusion the EU claims for itself when enacting and enforcing immigration and asylum policy under the Area of Freedom, Security and Justice. In particular, the essays probe how this alleged right acquires institutional form; how the enactment and enforcement of the EU's external borders render possible and undermine the claim to such a right; and how the fundamental distinctions that underpin this alleged right, such as inside/outside and citizen/alien, are being disrupted and reconfigured in ways that might render the EU's civic and territorial boundaries more porous. The volume is divided into three parts. A first set of essays delves into the empirical aspects that define the institutional context of the EU's alleged jus includendi et excludendi. A second set of essays is theoretical in character, and critically scrutinizes the basic distinctions that govern this alleged right. The third set of essays discusses politico-legal alternatives, exploring how the conceptual and normative problems to which this alleged right gives rise might be dealt with, both legally and politically. The contributors to the volume are Peter Fitzpatrick, Bonnie Honig, Dora Kostakopoulou, Hans Lindahl, Valsamis Mitsilegas, Helen Oosterom-Staples, Bert van Roermund, Jo Shaw, Bernhard Waldenfels, Neil Walker and Ricard Zapata Barrero. The volume also includes a comprehensive introduction by the editor, highlighting systematic connections between the three parts and individual essays which comprise it.

American Judicial Power: The State Court Perspective is a welcome addition to the breadth of studies on the American legal system and provides an accessible and highly illuminating overview of the state courts and their functions.The study of America's courts is overwhelmingly skewed toward the federal government, and therefore often overlooks state courts and their importance. Michael Buenger and Paul De Muniz fill this gap in the study of American constitutionalism, as they examine the wide and distinctive powers these courts exercise, and their role in administering the bulk of the nation's justice system. This groundbreaking work covers many critical topics pertaining to the state courts, including: a comparison of the role of state and federal courts, the history of America's state courts, the judicial selection processes utilized in the states, the unique roles assigned to state courts and the varying structure of those courts, the relationship between state judicial power and state legislative power, and the opportunities and challenges that are and will be facing the state courts. With an insightful foreword from Sanford Levinson, this revolutionary book will be of interest to students, educators, and researchers in the fields of law, political science, and government. Constitutional law experts will also benefit from an analysis of the state courts and their powers.

The Americans With Disabilities Act (ADA) is grounded in the human rights perspective. Like other civil rights legislation, the ADA is aimed at an oppressed group, persons with disabilities, who have been denied equal opportunities to participate in the larger society. As Pardeck makes clear, the goal of ADA, ending discrimination against people with disabilities in all facets of American life, is aligned with the philosophies and traditions of the social work profession. Pardeck provides a detailed overview and analysis of the ADA that will help professional social workers as well as students entering the field realize the full significance of the new rights and protections extended to people with disabilities. He also provides specific case studies and examples to illustrate the range of opportunities afforded the disabled and their advocates.

Professors Grear and Kotze have masterfully fashioned a landmark work on human rights and the natural environment. This Research Handbook is more than just a library of current ideas about this important topic; it is an intellectual tour de force that stimulates new thinking on the place of social justice and moral responsibility in the Anthropocene.' - Benjamin J. Richardson, University of Tasmania, Australia'As the connections between human rights and the environment become deeper and broader, this Handbook offers an indispensable point of reference. A seriously impressive group of scholars addresses a seriously interesting range of themes that inform and challenge the totality of our understanding.' - Philippe Sands, University College London, UK Bringing together leading international scholars in the field, this authoritative Handbook combines critical and doctrinal scholarship to illuminate some of the challenging tensions in the legal relationships between humans and the environment, and human rights and environment law. The accomplished contributors provide researchers and students with a rich source of reflection and engagement with the topic. Split into five parts, the book covers epistemologies, core values and closures, constitutionalisms, universalisms and regionalisms, with a final concluding section exploring major challenges and alternative futures. An essential resource for students and scholars of human rights law, the volume will also be of significant interest to those in the fields of environmental and constitutional law. Contributors: S. Adelman, U. Beyerlin, K. Bosselmann, D.R Boyd, P.D. Burdon, L. Code, L. Collins, S. Coyle, C.G Gonzalez, E. Grant, A. Grear, E. Hey, C.J. Iorns Magallanes, B. Jessup, A. Jones, A. A. Khavari, L.J. Kotze, R. Lyster, K. Morrow, A. Philippopoulos-Mihalopoulos, W. Scholtz, P. Simons, S. Theriault, F. Venter

The last decade has seen radical changes in the way we are governed. Reforms such as the Human Rights Act and devolution have led to the replacement of one constitutional order by another. This book is the first to describe and analyse Britain's new constitution, asking why it was that the old system, seemingly hallowed by time, came under challenge, and why it is being replaced. The Human Rights Act and the devolution legislation have the character of fundamental law. They in practice limit the rights of Westminster as a sovereign parliament, and establish a constitution which is quasi-federal in nature. The old constitution emphasised the sovereignty of Parliament. The new constitution, by contrast, emphasises the separation of powers, both territorially and at the centre of government. The aim of constitutional reformers has been to improve the quality of government. But the main weakness of the new constitution is that it does little to secure more popular involvement in politics. We are in the process of becoming a constitutional state, but not a popular constitutional state. The next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age. The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from the Queen-in Parliament, but, instead, as in so many constitutions, from 'We, the People'. The old British constitution was analysed by Bagehot and Dicey. In this book Vernon Bogdanor charts the significance of what is coming to replace it. The expenses scandal shows up grave defects in the British constitution. Vernon Bogdanor shows how the constitution can be reformed and the political system opened up in'The New British Constitution'.

This book presents the results of research project financed by the Hague Institute for the Internationalization of Law (HiiL) and carried out at the Tilburg Law and Economics Center (TILEC) of Tilburg University. The project team shows that globalization, instead of threatening national legal systems, put them in a new role and gives them continuing relevance. First of all, once one takes a more functional view of the law, based on law and economics and comparative law literature, harmonization or unification of national legal systems is no longer a foregone conclusion. Secondly, fundamental constitutional principles continue to bear in the era of multi-level and transnational governance: they become governance principles, divorced from specific institutional settings. Finally, looking beyond regulatory competition and comparative law, legal emulation provides a rich and fruitful model to explain the interplay between legal systems. This book explores these three themes, both at a theoretical level and in the light of specific examples.

Since the mid-1970s American presidents have, with growing frequency, claimed that they have the power to ignore any law they believe is unconstitutional. Beginning with a review of the English constitutional backdrop against which the U.S. Constitution was framed, this book demonstrates that the Founders did not intend to confer on the president a power equivalent to the royal prerogative of suspending the laws, which was stripped from the English Crown in 1689. The author examines each of the nearly 150 instances in which presidents from George Washington to Jimmy Carter have objected to the validity of a law, in order to determine whether or not the president then ignored the law in question. This examination of the historical record reveals that prior to the mid-1970s the White House only rarely failed to honor a law that it believed to be unconstitutional.