Introduction

Comparative constitutional law is today an exciting and increasingly diverse field of academic inquiry in US and Canadian law schools, as the excellent papers for this Symposium illustrate. Looking back, the 1990s were also a dynamic period for comparative constitutional law, with a predictable emphasis on constitution drafting in Eastern Europe and South Africa. As law and economics and empirical work became popular tools of legal analysis, comparative constitutional law initially drifted instead toward a focus on constitutional courts and on positive and negative liberties. Moreover, once the focus shifted away from active constitution drafting projects, questions re-surfaced about why we should compare constitutions and, in turn, about how they should be compared. Today, the field appears to have put this existential anxiety aside. Recent work is methodologically diverse with a strong focus on empirical analysis. The empirical focus is complemented by sophisticated work on informal or unwritten norms, a theme that runs through the contributions to this Symposium. Geographic diversity is becoming somewhat less challenging—at least superficially—due in part to a growth of resources available in English. The field is also diversifying in term

Customary International Law: An Instrument Choice Perspective

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law

Introduction

Comparative constitutional law is today an exciting and increasingly diverse field of academic inquiry in US and Canadian law schools, as the excellent papers for this Symposium illustrate. Looking back, the 1990s were also a dynamic period for comparative constitutional law, with a predictable emphasis on constitution drafting in Eastern Europe and South Africa. As law and economics and empirical work became popular tools of legal analysis, comparative constitutional law initially drifted instead toward a focus on constitutional courts and on positive and negative liberties. Moreover, once the focus shifted away from active constitution drafting projects, questions re-surfaced about why we should compare constitutions and, in turn, about how they should be compared. Today, the field appears to have put this existential anxiety aside. Recent work is methodologically diverse with a strong focus on empirical analysis. The empirical focus is complemented by sophisticated work on informal or unwritten norms, a theme that runs through the contributions to this Symposium. Geographic diversity is becoming somewhat less challenging—at least superficially—due in part to a growth of resources available in English. The field is also diversifying in term

Private Religious Choice in German and American Constitutional Law: Government Funding and Government Religious Speech

We will never face Germany\u27s specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its role in protecting the power of public discourse within the larger political process. The same holds for government religious speech: individual autonomy points in a number of different directions, leaving us with choices among different kinds of distortion and different roles for the courts, which we cannot resolve based on private religious choice alone. The German cases focus us on one normative vision of the political process which will probably never become our vision, but which does help us to see that even our decisions about government religious speech depend upon our assumptions and aspirations about the political process. The appeal of comparative law lies in the details, and the details of the current disputes in Germany around religion and government ask us to think again about exactly what we expect from the Establishment Clause here in America

Restatement of The Law Fourth, The Foreign Relations Law of the United States

Much has changed since 1987, and that is no more evident than in the world of foreign relations. Recognizing that parts of the Restatement Third were no longer a true reflection of the present state of the law, ALI decided in 2012 to begin reexamining U.S. foreign relations law. Now available, this volume of the Restatement of the Law Fourth, The Foreign Relations Law of the United States, completes the work on selected topics in jurisdiction, treaties, and sovereign immunity.This item was commisioned by The American Law Institut