Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law

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This Article advocates an innovative contextual approach to assessing the international legality of bans in public schools on “modest” garments claimed to be required by religious beliefs for Muslim women. Too often this has been considered solely a question of religious freedom. This paper advocates the reinsertion of gender equality into the heart of the debate. To obtain results most conducive to reconciling the human right to religious freedom and the human right to gender equality, it examines restrictions on headscarves and veils in a novel matrix of factors, including pressures on individual women to wear or not wear such gear, the impact on other female students, fundamentalist organizing targeting education, Islamophobia, and the multiple meanings of veiling. Applying the contextual approach, this Article argues that the European Court of Human Rights ruled correctly in Şahin v. Turkey when it upheld Istanbul University’s ban on headscarves in context. The Article rebuts the sharp criticism of this decision from some human rights groups and asserts that secularism is vital for the implementation of women’s human...

Hamdan Confronts the Military Commissions Act of 2006

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In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President’s plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality of four, with the opinion written by Justice Stevens, based their decision as well on a far-reaching interpretation of the substantive law of war. They held that conspiracy to commit terrorist acts did not fall under the customary international law of war. Congress responded by enacting the Military Commissions Act of 2006. The President signed the bill on October 17. The interpretation of Hamdan and the precedents on which it is based will shape future litigation about the constitutionality of the various provisions of this...

Charting Developments Concerning Punitive Damages: Is the Tide Changing?

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This essay discusses a number of developments outside of the United States concerning punitive damages, such as proposed revisions to the civil code in France that would allow the awarding of punitive damages in civil actions and court decisions in Australia, Canada and Spain enforcing American awards of punitive damages. These developments may signal a change in the way other countries view American awards of punitive damages and may ultimately lead to greater enforcement of these...

Overdue Redress: Surveying and Explaining the Shifting Japanese Jurisprudence on Victims’ Compensation Claims

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Victims of Japanese war crimes have historically faced many difficulties in their attempts to secure legal redress. Japanese courts traditionally employ a body of technical defenses to dismiss victims’ suits without reaching the merits of the individual complaint. Similarly, compensation suits filed in American courts against Japanese defendants have been dismissed with the encouragement of the American executive branch. This Note addresses a surprising shift in Japanese compensation jurisprudence away from the mechanical application of technical limitations. The new approach attempts to weigh the culpability of the defendant’s conduct in an effort to determine whether the technical defenses should apply. As to the impetus for this change in judicial attitude, this Note argues that it is motivated, at least in part, by judicial reconsiderations of Japanese national interest in light of the shifting power dynamic in East...

Comprehensive Land Reform as a Vehicle for Change: An Analysis of the Operation and Implications of the Tanzanian Land Acts of 1999 and 2004

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Like many other African countries, Tanzania has attempted to effect comprehensive land law and tenure reform in order to achieve broader economic, political, and social goals. The land acts discussed in this Note constitute Tanzania’s most recent efforts in this regard. This Note attempts to explain the historical background to this land-reform legislation, the manner in which the legislation is intended to function, the goals that it is intended to achieve, and ways in which might be...

Creditor Rights and Enforcement of International Commercial Arbitral Awards in China

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This Note examines the problem of debtor insolvency in the People’s Republic of China through the lens of enforcement of international commercial arbitral awards and existing means by which award creditors may enforce credit rights prior to actual bankruptcy of an arbitral award debtor. While many court judgments and arbitral awards are uncollectible in other countries, a number of factors may exacerbate the problem in China by enabling award debtors to dispose of assets that might become subject to seizure. In addition, some Chinese companies have significant paper assets in the form of receivables, but few tangible assets that can readily be used to satisfy an award. However, certain means exist under current law by which an award creditor might prevent the artificial insolvency of an award debtor or pursue enforcement of an arbitral award against an apparently insolvent debtor. The Chinese government strengthened protections for creditors by enacting the 1999 Contract Law and actively promoting its implementation. This Note suggests certain legislative and regulatory changes that might further improve China’s system of creditor protections. These recommendations also reveal gaps in the current commercial legal framework that might be addressed through contracting or other private...