Juridical and constitutional implications of CARICOM treaty practice

In a case involving a CARICOM member state in relation to the Agreement Establishing the Council for Legal Education (CLE), several law students of one member state party to the Agreement were denied their entitlement to pursue professional studies in a school of law established for the purpose in another member state because the second member state had not implemented the relevant provision of the CLE Agreement. The CLE in the member state concerned pleaded the absence of an enacting provision in the Legal Profession Act as the ground for not observing the provisions of the Agreement. No action was brought at the international level by the state of the students aggrieved to vindicate their rights and the action brought by the students themselves at the municipal level did not and could not succeed. Following an overview of CARICOM treaty practice, this article examines the effects of unincorporated treaties in the light of dualism, to which doctrine the overriding majority of CARICOM states subscribe.     

The dangers of constitutional identity

This article purports to expose the dangers of the concept of constitutional identity – a doctrine shaped by apex state courts to shield areas of the national legal systems from the influence of European law. First, the article overviews the use of the concept of constitutional identity in the case law of national and supranational courts, mapping the growing expansion of this doctrine. Second, the article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal origins. Third, the article advances a normative criticism of the concept of constitutional identity, explaining how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use. Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised to weaken, if not undermine tout court, the process of European integration.     

The AIDS epidemic and gay bathhouses: a constitutional analysis

Some legal scholars propose that the right of privacy articulated by the United States Supreme Court should be extended to protect homosexual activity. In light of the advent of AIDS, should that extension include constitutional protection for homosexual men who frequent gay bathhouses? The author argues that although the government has the power to close the baths in the name of public health, it should not do so without careful and conscious balancing against the privacy rights infringed upon by its actions. Balancing the tension between public health policy and individual rights applies not only to the specific situation of the baths, but also to insurance companies' aim to test all single, young, male life and health policy applicants for exposure to the putative AIDS virus; to potential health department releases of names of those testing antibody-positive for HTLV-III; to the military's rumored plans to discharge all personnel suspected of having AIDS; and to school districts seeking to exclude children with AIDS.     

财产征收的宪法界限

财产权是一项重要的宪法权利,同时也是其他权利行使的基础。围绕财产权的宪法保障制度,对财产征收的法律基础、立法的内容形成功能与财产征收的界限以及经济规制与财产征收的界限做一学理的分析,具有重要的理论与实践意义。