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Full-Text Articles in Political Science

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith Jan 2017

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Faculty Scholarship at Penn Law

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the ...


The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley Jan 2016

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

Faculty Scholarship

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides ...


Treaty Termination And Historical Gloss, Curtis A. Bradley Jan 2014

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice ...


From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde Mar 2011

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states ...


Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan Dec 2005

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent ...


The Religion-State Relationship And The Right To Freedom Of Religion Or Belief: A Comparative Textual Analysis Of The Constitutions Of Predominantly Muslim Countries, Tad Stahnke, Robert Blitt Dec 2004

The Religion-State Relationship And The Right To Freedom Of Religion Or Belief: A Comparative Textual Analysis Of The Constitutions Of Predominantly Muslim Countries, Tad Stahnke, Robert Blitt

Robert C. Blitt

This study analyzes the constitutional provisions in 44 predominantly Muslim countries addressing the relationship between religion and the state, freedom of religion or belief, and other related human rights as measured against recognized international human rights standards. The geographic diversity of the Muslim world mirrors a central finding of the study, that predominantly Muslim countries encompass a variety of constitutional arrangements - ranging from Islamic republics with Islam as the official state religion, to secular states with strict separation of religion and state. Key findings of the survey include: More than half of the world's Muslim population (estimated at over ...