Indiana international and comparative law review最新文献_第3页

Major Flaws in Minor Laws: Improving Data Privacy Rights and Protections for Children Under the GDPR 次要法律的重大缺陷:GDPR下改善数据隐私权和儿童保护

Indiana international and comparative law review Pub Date : 2021-02-22 DOI: 10.18060/25066

Virginia A. M. Talley

引用次数: 0

Sound the Shofar in Luxembourg: Cross-Border Recognition of Same-Sex Spouses in the European Union and Israel's Ben Ari v. Director of Population Administration 敲响卢森堡的号角:欧盟对同性配偶的跨境承认和以色列的本·阿里诉人口管理局局长案

Indiana international and comparative law review Pub Date : 2018-12-18 DOI: 10.2139/SSRN.3240665

Colten W. Hall

{"title":"Sound the Shofar in Luxembourg: Cross-Border Recognition of Same-Sex Spouses in the European Union and Israel's Ben Ari v. Director of Population Administration","authors":"Colten W. Hall","doi":"10.2139/SSRN.3240665","DOIUrl":"https://doi.org/10.2139/SSRN.3240665","url":null,"abstract":"In March of 2017, the European Court of Justice (ECJ) received a preliminary reference from the Constitutional Court of Romania seeking guidance on the proper implementation of Directive 2004/38/EC, commonly known as the Citizen’s Rights Directive, and its applicability to same-sex spouses. This Article is the first to argue that a proper decision by the ECJ would force Member States to recognize—to an extent necessary for purposes of providing and protecting the fundamental EU Citizen’s right to free movement—marriages and equivalent partnership recognitions conducted and legally recognized in other Member States. This unique argument derives from a comparative analysis of Israeli jurisprudence, most notably the Israeli High Court of Justice’s ruling in Ben Ari v. Director of Population Administration. \u0000This Article explores the interpretation of Directive 2004/38/EC, which stipulates the freedom of movement for workers within the Member States is a fundamental right guaranteed to all citizens so long as certain employment criterion is met. This right, in general, extends to the immediate family and dependents of the worker who is asserting that right, meaning that in a heterosexual marriage, the husband or wife of a worker who decides to relocate to another EU Member State to work can move with their partner and live without major legal problems or immigration status concerns. While EU law currently guarantees these spousal rights, the definition of marriage is left to the individual Member States. \u0000In balancing the limitations of EU competences in the realm of family law against the need to protect fundamental rights of EU citizens, this article argues the ECJ could be guided by the Israeli High Court of Justice, which crafted an opinion mandating that the Israeli government record same-sex couples legally married abroad as “married” in the official population registry. This recording entitles the partners to prima facie evidence of their marital status, thus affording them the rights of married couples under Israeli law without constituting an official “marriage” under the laws of Israel. \u0000By combining the wisdom of the Israeli decision with the unique limitations of the EU, this article argues that the ECJ should require all Member States to acknowledge the prima facie validity of cross-border legal same-sex marriages only to the extent necessary to allow the Member State to provide the rights and protections guaranteed as fundamental under EU law.","PeriodicalId":230320,"journal":{"name":"Indiana international and comparative law review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123376118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Do European Union Member States Have to Respect Human Rights? The Application of the European Union's 'Federal Bill of Rights' to Member States 欧盟成员国必须尊重人权吗?欧盟“联邦权利法案”对成员国的适用

Indiana international and comparative law review Pub Date : 2017-10-15 DOI: 10.18060/7909.0044

C. Nagy

{"title":"Do European Union Member States Have to Respect Human Rights? The Application of the European Union's 'Federal Bill of Rights' to Member States","authors":"C. Nagy","doi":"10.18060/7909.0044","DOIUrl":"https://doi.org/10.18060/7909.0044","url":null,"abstract":"The respect of fundamental rights is one of the cornerstones of the European Union. It is a precondition of membership and it is listed among the core values of the Union. Still, as the recent controversies between the European Commission and some Member States revealed, EU law contains no effective mechanism to compel Member States to respect fundamental rights and freedoms in general. This paper presents and examines the EU architecture of fundamental rights protection. \u0000First, it demonstrates that the EU Charter of Fundamental Rights (the “EU bill of rights”) applies predominantly to EU institutions (that is, “federal” institutions); it applies to Member States only when they act as the EU’s “agents” (when they implement EU law). Although this approach may appear to be illogical, it does have its clear and legitimate reasons and it is far from unprecedented. In fact, it very much resembles the first century of the United States constitutional architecture. It is to be noted that though the EU does have the means to call Member States to account in case they violate fundamental rights, this action is a “nuclear bomb” and is hardly apt for handling human rights problems; not to mention that the application of this is almost politically unattainable. \u0000Second, it demonstrates how, in certain cases at least, the Commission “cooked from what it had” in that it used unconnected (that is, non-human-rights-related) provisions of EU law to shelter fundamental rights (e.g., the free movement principles of the internal market to protect minority rights or the prohibition of discrimination based on age to protect the independence of the judiciary). The use of the “supportive by-effects” of these economic rights is novel but not fully unprecedented. In fact, it resembles how the U.S. Congress used its commerce power to protect civil rights. \u0000Third, it argues that although the present architecture is certainly not the best of all possible worlds and the full federalization of human rights is a tempting option, the bifurcation of the “federal bill of rights” (the EU Charter of Fundamental Rights) has a solid basis and federalization is compelling only regarding those fundamental values and rights the violation of which qualifies as a “ground of divorce.” Accordingly, while the current system obviously calls for a reform, in terms of approach, this constitutional architecture has its merits in the context of what the multicolored European federation needs. On the one hand, the core of human rights protection cannot be subject to territorial variations and the violation of the nucleus of these rights cannot be justified with reference to constitutional identity. On the other hand, outside this sphere, to use the terminology of the European Court of Human Rights, European federalism demands respect for the Member States’ margin of appreciation.","PeriodicalId":230320,"journal":{"name":"Indiana international and comparative law review","volume":"233 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117002736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

If You Don't Use It, You Lose It: What the U.S. Could Learn From France's Law on Out-of-Commerce Books of the 20th Century 如果你不使用它，你就失去了它:美国可以从20世纪法国关于过时书籍的法律中学到什么

Indiana international and comparative law review Pub Date : 2017-10-13 DOI: 10.18060/7909.0053

Francis X. Mattingly

引用次数: 0

How America's Solar Energy Policies Should Follow (and Stray) from Germany's Lead: Working Towards Market Parity Without Subsidies 美国的太阳能政策应该如何跟随(或偏离)德国的领导:在没有补贴的情况下努力实现市场平价

Indiana international and comparative law review Pub Date : 2017-10-13 DOI: 10.18060/7909.0051

C. Astbury

引用次数: 1

Fair or Fraud: Has the Protocol Amending TRIPS Flourished or Failed? 公平还是欺诈:《TRIPS修正案》是成功还是失败?

Indiana international and comparative law review Pub Date : 2017-10-13 DOI: 10.18060/7909.0050

S. E. Murillo

引用次数: 4

International Personality Rights and Holographic Portrayals 国际人格权和全息肖像

Indiana international and comparative law review Pub Date : 2017-10-13 DOI: 10.18060/7909.0052

Carolyn Greer

引用次数: 2

The Unfair operation principle and the exclusionary rule: on the admissibility of illegally obtained evidence in criminal trials in India 不公平操作原则与排除规则:论印度刑事审判中非法证据的可采性

Indiana international and comparative law review Pub Date : 2017-10-12 DOI: 10.18060/7909.0049

Khagesh Gautam

{"title":"The Unfair operation principle and the exclusionary rule: on the admissibility of illegally obtained evidence in criminal trials in India","authors":"Khagesh Gautam","doi":"10.18060/7909.0049","DOIUrl":"https://doi.org/10.18060/7909.0049","url":null,"abstract":"This article addresses the admissibility of illegally obtained evidence, as a matter of evidence law, in criminal trials in India. The United States Constitution’s Fourth Amendment jurisprudence provides, as a matter of constitutional law, that illegally obtained evidence is inadmissible. This rule is known around the world as the Exclusionary Rule. The U.S. Supreme Court has carved our several exceptions to the Exclusionary Rule; however, illegally obtained evidence remains inadmissible in criminal trials in the U.S. in most instances. Relevant legal propositions to this effect have been codified under the Police and Criminal Evidence Act of 1984 in the United Kingdom where inadmissibility of illegally or unfairly obtained evidence remains largely a matter of discretion with the trial * Stone Scholar, LL.M. (Columbia), LL.B. (Delhi); Associate Professor of Law & Assistant Dean (Research and Publications), Assistant Director (Center on Public Law and Jurisprudence), Assistant Director (Mooting and Advocacy Program), Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. The author can be reached at kgautam@jgu.edu.in. The author would like to thank Professor David Siegel (New England Law, Boston) for his valuable comments on an earlier draft of this article in July 2015. An earlier version of this article was presented at the seminar on ‘Judicial Process, Legal Systems and the Rule of Law: Comparative Perspectives on India and the U.S.A.’ organized by Jindal Global Law School in Haryana, India on August 13, 2014. The article was presented in the session on ‘Legal Practice, Court Procedures and Constitutional Perspectives from India and the United States.’ The author is thankful to the Chair of the Session, Judge Gary Eugene Bair, Associate Judge, Montgomery County Circuit, 6 Judicial Circuit, U.S.A., and Professor (Dr.) Stephen P. Marks (Harvard University) and all the participants in the seminar for their valuable comments. The author would also like to thank his teaching assistant V. Balaji (JGLS 2012) for excellent research assistance. †. Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457, 469 (1897). 148 INDIANA INT’L & COMP. LAW REVIEW [Vol. 27:147 judge. Under Indian law, there is no statutory prohibition against illegally obtained evidence under either the Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973. However, a review of reported Indian Supreme Court opinions on the point discloses the existence of a judge made doctrine, largely derived out of British common law, whereby illegally obtained evidence can be excluded at the discretion of the trial judge if the admission of the same would operate unfairly against the accused. This rule is designated as the Unfair Operation Principle. This article, for the first time, closely engages with the Unfair Operation Principle as a matter of evidence law. The first part of this article provides a restatement of the law of admissibility of evidence a","PeriodicalId":230320,"journal":{"name":"Indiana international and comparative law review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122243673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Tale of Post-Arab Spring in Egypt: The Struggle of Civil Society Against a Janus-Faced State 后阿拉伯之春在埃及的故事:公民社会反对两面派政府的斗争

Indiana international and comparative law review Pub Date : 2017-10-11 DOI: 10.18060/7909.0046

M. Arafa

引用次数: 3

The Concept of Democracy and the European Convention on Human Rights 民主概念与《欧洲人权公约》

Indiana international and comparative law review Pub Date : 2017-10-11 DOI: 10.18060/7909.0045

J. Zand

引用次数: 3