Boston College International & Comparative Law Review

BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW Vol. XXXV Spring 2012 No. 2 ARTICLES Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse Luís Roberto Barroso [pages 331–394] Abstract: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in the transnational discourse, with special atten- tion paid to the case law of the U.S. Supreme Court. The Article examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements—intrinsic value, autonomy, and community value—and each element has unique legal implications. The Article considers how this elemental approach to the analysis of human dignity can assist in structur- ing legal reasoning and justifying judicial choices in hard cases, such as abortion, same-sex marriage, and assisted suicide. Anchoring the Law in a Bed of Principle: A Critique of, and Proposal to Improve, Canadian and American Hearsay and Confrontation Law Mike Madden [395–448] Abstract: As recent case law demonstrates, both American Sixth Amend- ment Confrontation Clause jurisprudence and Canadian common law re- lating to hearsay evidence are conceptually problematic. The laws are, at times, internally incoherent and are difficult to justify on the basis of legal principles. This Article critiques confrontation and hearsay law in the United States and Canada, respectively, by exposing the lack of principle underlying each body of law. The Article develops a principled basis for evidence law in general, and hearsay and confrontation law in particular, providing a more stable foundation for hearsay and confrontation frame- works. Ultimately, the Article argues that the epistemic, truth-seeking goal of criminal evidence law is best served by the broad admission, rather than exclusion, of all hearsay evidence. Furthermore, while fairness concerns are relevant to some rules of evidence, there are no valid fairness concerns operating in the context of hearsay and confrontation law that should displace the primary principle of facilitating and promoting epis- temically accurate fact-finding in criminal trials. Finally, this Article sug- gests that any dangers associated with the broad admission of hearsay evidence can be mitigated through effective argument by counsel and appropriate cautions to the trier of fact regarding any weaknesses inher- ent in the evidence. NOTES Multikulti Ist Doch ’Ne Erfolgreiche Realität: Why Tolerance Is Vital for German Economic Growth Lauren E. Campbell [pages 449–480] Abstract: In October 2010, German politicians declared that multiculturalism in Germany was no longer viable. That controversial declaration ig- nited a heated debate, and Germans were forced to address the fact that national immigration policies since World War II had produced one of the largest immigrant populations in Western Europe. Indeed, despite the purported failure of multiculturalism, highly qualified immigrants from non-European Union (EU) countries may be the key to securing German economic growth amidst a global race for talent. Accordingly, this Note explores the intricacies of German and EU policies on economic immigration and integration, which are aimed at attracting these highly qualified immigrants. It argues that, although German immigration legislation targets the right population, its integration procedures may not suffice to attract and retain immigrants. Faced with an aging population, Germany should utilize EU guidelines for integration to es- tablish concrete measures to secure a workable multicultural society. Short-Time Compensation: Is Germany’s Success with Kurzarbeit an Answer to U.S. Unemployment? Megan Felter [pages 481–510] Abstract: The recent financial crisis caused a global recession that affected the economies of both the United States and Germany. While the ranks of jobless workers expanded in the U.S. and unemployment remain high, Germany’s labor market was less affected by the recession because of its success with Kurzarbeit, a work sharing program. Germany’s experi- ence with Kurzarbeit can provide the United States with useful insights to improve its own version of work sharing—short-time compensation—to better combat unemployment. Hacktivism: A New Breed of Protest in a Networked World Noah C.N. Hampson [pages 511–542] Abstract: After WikiLeaks released hundreds of thousands of classified U.S. government documents in 2010, the ensuing cyber-attacks waged by all sides in the controversy brought the phenomenon of hacktivism into popular focus. Many forms of hacktivism exploit illegal access to networks for financial gain, and cause expensive damage. Other forms are used primarily to advocate for political or social change. Applicable law in most developed countries, including the United States and the United King- dom, generally prohibits hacktivism. However, these countries also protect the right to protest as an essential element of free speech. This Note argues that forms of hacktivism that are primarily expressive, that do not cause serious damage, and that do not exploit illegal access to networks or computers, sufficiently resemble traditional forms of protest to warrant protection from the application of anti-hacking laws under widely accepted principles of free speech. Constitutionalizing an Enforceable Right to Food: A New Tool for Combating Hunger Michael J. McDermott [pages 543–574] Abstract: Although international treaties recognize a right to food, few nations have established a domestic, legally enforceable right to food. A justiciable national right to food can provide a basis for legal redress, national food policies, and state aid programs. India, South Africa, and Brazil provide insight and lessons that can be applied to other nations, like Mexico, to identify effective means for creating a national right to food. This Note compares effective national right to food efforts and identifies essential elements underlying a justiciable national right to food. By evaluating the development of a right to food within in the international and national systems it is clear that the right to food is most effective when national con- stitutions provide justiciable means for legal redress and enforcement of that right. COMMENTS Uncle Sven Knows Best: The ECJ Swedish Gambling Restrictions, and Outmoded Proportionality Analysis Paul Caligiuri [pages 575–588] Abstract: The free movement of services is a fundamental tenet of the Eu- ropean Union’s Common Market. Gambling services’ free movement, however, has long been obstructed by municipal gambling restrictions. One such restriction in place in Sweden authorized the prosecution of two newspaper editors for publishing advertisements of foreign-based online gambling operators. In the course of the editors’ appeal from their convic- tion, the Swedish courts referred questions to the European Court of Jus- tice regarding the compliance of Sweden’s domestic restriction with Euro- pean treaty provisions enshrining the free movement of services. The Court of Justice provided little guidance, however, when it addressed the dispositive question of proportionality; that is, whether Sweden’s law went beyond the point needed to affect Sweden’s legitimate underlying policy objectives. The court, in its deferent and cursory proportionality analysis, employed a standard ill-equipped to account for the effects national gambling restrictions have on the Common Market in the online age. Justice for Tyrants: International Criminal Court Warrants for Gaddafi Regime Crimes John J. Liolos [pages 589–602] Abstract: The Arab Spring was a period of great transition in the Middle East and North Africa, when people in many nations united in protest against their oppressive and tyrannical governments. In February 2011, the Libyan people filled their city streets in peaceful demonstrations against Muammar Gaddafi’s regime. Attempting to quell the dissent, the Gaddafi regime allegedly engaged in a systematic campaign of violence against the dissidents. These attacks escalated into a full-fledged civil war, triggering United Nations intervention to protect civilians. In response to the Gaddafi regime’s attacks on civilians, the UN Security Council passed a resolution referring the alleged human rights abuses to the International Criminal Court (ICC) for prosecution. This Comment explores the effect of the warrant, the ICC’s complementary jurisdiction over the matter, and argues that both Libyan and ICC officials should be instrumental in trying the accused members of the Gaddafi regime. Left Hanging: The Crucifix in the Classroom and the Continuing Need for Reform in Italy Rebecca E. Maret [pages 603–613] Abstract: Increased immigration throughout Europe and expanding religious pluralism have exerted pressure on European States to make further accommodation for minority religious populations. This poses a challenge for Italy and other European States whose national identities are in- formed, at least in part, by a single religion. A recent decision by the Eu- ropean Court of Human Rights, holding that Italy could refuse parents’ requests to remove crucifixes from the walls of public school classrooms, has reinvigorated debate throughout

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