The Coptic divorce struggle in contemporary Egypt

This article investigates the ways in which state and non-state laws become intricately intertwined in practices of conflict resolution in rural Bangladesh. Instead of inhabiting separate legal universes, I show how state and non-state laws become entangled in what I call the logic of non-enforcement. People in rural Bangladesh frequently appeal to state courts—yet they frequently do so not in order to get binding and enforceable verdicts, but to alter the outcomes of a non-state justice institution like the shalish in their favour. This leads to unexpected patterns of political accountability: people expect local elected politicians to intervene in the state courts, stop pending cases and bring them back to community-based resolution in non-state fora. Elected politicians are thus held accountable according to their ability to prevent the enforcement of state laws. At the same time, state agencies frequently bring legal cases to trial in non-state courts. I conceptualise this blurring between state and non-state laws, its underlying social dynamics as well as its normative justifications as a distinct ‘logic of non-enforcement’. According to this logic, state courts decisively affect the outcomes of processes of conflict resolution in rural Bangladesh while state laws nonetheless are systematically not enforced.

In a growing number of states, medical marijuana occupies a dual legal status. The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug, signifying that it has both a high potential for abuse and no acceptable medical use. Patients and physicians are thus subject to the same federal criminal penalties as any other individuals who produce, distribute, or possess marijuana. By mid-2009, however, fourteen states had decided to permit medical marijuana under certain circumstances. Through voter initiatives or legislation, these states have exempted patients and physicians from prosecution for violating state laws governing the use, possession, or cultivation of marijuana. The disparate legal regimes have generated much litigation, including two cases that reached the U.S. Supreme Court. Both cases rejected challenges to federal enforcement of the CSA in California, the state with the most liberal provisions on medical marijuana. Under the Court decisions, federal authorities could continue to take action against patients, physicians, and others who were protected under state medical marijuana laws. Two recent legal developments are more favorable to states seeking to permit medical marijuana, however. First, U.S. Attorney General Eric Holder announced that the federal Drug Enforcement Agency would limit future raids and other enforcement activity to individuals violating both federal and state criminal law. This means that people complying with state medical marijuana laws will no longer be targeted by federal law enforcement officials. Holder said that under his leadership, the agency would focus its efforts on large-scale commercial marijuana operations. (1) In a second development with implications for state marijuana laws, the U.S. Supreme Court declined to review a court decision upholding legislation implementing California's medical marijuana law. In 1996, California voters approved Proposition 215, designed to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician. (2) Seven years later, the California legislature enacted the Medical Marijuana Program Act to supplement the earlier law. (3) The 2003 law requires counties to participate in a system that enables patients and caregivers to register and obtain identification cards protecting them from arrest for violating state marijuana prohibitions. County versus State versus Federal Authority California officials unhappy with the state's permissive stance on medical marijuana balked at the mandate to create the identification system. San Diego and San Bernardino counties brought a lawsuit seeking a judicial declaration that they were not required to comply with the state's mandate. According to the plaintiffs, the California law was preempted by the CSA, which fails to exempt medical marijuana from the usual criminal penalties. The U.S. Constitution gives Congress the power to supersede state law. Over the years, courts have developed principles for determining when federal law preempts state law. Congressional purpose is the central consideration in resolving preemption claims. The easiest case arises when Congress includes in the legislative text an explicit provision on whether the law is intended to preempt state rules. In other cases, courts consider factors such as whether the state law under challenge presents an obstacle to achieving Congress's objectives in enacting the pertinent federal law. In 2008, a California appellate court ruled against the counties, holding that preemption failed to bar implementation of the California identification card program. (4) As the court noted, the CSA itself states that it is not intended to preempt state laws unless there is a positive conflict between [the CSA and state law] so that the two cannot consistently stand together. …

Indirect Purchaser Suits after the Class Action Fairness Act

In June 2008, the 1938 Personal Status Regulations for the Coptic Orthodox Church in Egypt were amended to limit the grounds for divorce to adultery and change of religion. This revision followed a ruling of the State Council requiring Pope Shenouda III, the head of the Coptic Orthodox Church, to grant a divorced Orthodox Copt a license to remarry. The amendments ended a long-standing conflict between the Egyptian national courts and the Coptic Orthodox Church regarding the effects of judicial divorce: prior to the revision, thousands of couples divorced before the courts were considered by the Church to be still married. However, by restricting the possibilities for Orthodox Copts to obtain a divorce, the 2008 amendments may lead to an increase in conversions to other religious faiths to escape application of the revised 1938 regulations. In this essay, I analyze the 2008 amendments, the State Council ruling, landmark decisions of the Court of Cassation, comments by legal scholars and articles in newspapers, in an effort to assess the current status of divorce and remarriage among Orthodox Copts in Egypt and the problems generated by the application of conflicts rules between non-Muslim personal status laws in case of inter-religious marriages. At the end of the essay, I mention developments that took place in June 2010 after the release of a new ruling by the State Council.

Two Treatments of Pluralism: Canada and the United States

The article presents the history of the relationship of the Russian Orthodox Church with the Christian communities of Egypt and Ethiopia. The article is also concerned with the issue of contacts between the Russian Orthodox Church and the Coptic Church of Egypt in the second half of the 19th and early 20th century. The first almost informal contacts between representatives of the Russian Orthodox Church and the Alexandria Patriarchate allowed Egyptian Christians to get acquainted with the activities of the Russian Orthodox Church, and representatives of the Russian Orthodox Church — with the real state of the religious, political and cultural situation in Egypt. The article also examines the attempts of representatives of the Russian Orthodox Church to establish ties with the Ethiopian Orthodox Church, which was part of the Alexandria Patriarchate until 1959.

Federal courts are reluctant to review the work of state and local administrative agencies. Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. At other times, federal courts have treated review of state administrative action as appellate in nature and therefore beyond the jurisdiction of the federal district courts, especially when review of agency action would be deferential under state law. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this Article, the authors challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law. In addition, they suggest that concern for federal court interference with uniformity of state policymaking has been overstated, while traditional concerns of federal jurisdictional policy in providing a neutral forum for out of staters as well as those raising federal challenges to state and local action, have been slighted. They also attack the characterization of judicial review of administrative action as appellate, and suggest why it is both descriptively accurate and normatively desirable to see judicial review as an original proceeding distinct from agency action. And in many cases, they observe, according state agency decisionmaking the same level of deference that it would obtain in a state court would serve as a better measure of the respect owed such decisionmaking than formal preclusion. Although the Article takes the position that federal courts should not shy from entertaining diversity-based challenges to state administrative decisionmaking, or even most challenges grounded in federal law, it concludes that, absent diversity, due process reasonableness challenges to agency action should ordinarily be relegated to state courts.

The Nigerian Constitution of 1989 establishes a system of federal and state courts, but within a structure of unifiedfederal-state jurisdiction from the federal and state high courts, to the federal Court ofAppeal, and to the national Supreme Court. Thus, both sets ofcourts exercise jurisdiction with respect to federal and state laws. Although this system mitigates certain federal-state jurisdictional conflicts, it does not eliminate such conflicts. At the same time, however, the Constitution also providesfor Sharia courts ofappeal under Moslem law andfor customary-law courts ofappeal, thus establishing a tripartite system of justice. Although this system seeks to accommodate Nigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administration of civil and criminal justice.

History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. (1) According to advocates of traditional marriage, same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. (2) Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships. (3) However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can explain the State's different marriage rules for gay and non-gay couples. For this purpose, broad-brush invocations of marriage's history will not suffice. Yet, it is precisely these sorts of superficial references to tradition that have captivated courts deciding a variety of challenges to marriage restrictions. Pick a case that touches on marriage from federal or state court, from the nineteenth or twentieth century, and there is a reasonable chance that marriage will be described as a fixed, transhistorical institution that is foundational to civilization. Typical is the assertion of the Supreme Court in Skinner v. Oklahoma, the first case to identify marriage as a fundamental right: Marriage and procreation are fundamental to the very existence and survival of the race. (4) A cohort of more recent cases that specifically address marriage laws' exclusion of gay and lesbian couples follows this course. Courts in New York, New Jersey, and Arizona, among others, have rejected constitutional challenges brought by gay and lesbian couples on the grounds that the different-sex couple requirement has long been a part of the state's marriage law. (5) This glib treatment of marriage as historically static and at risk of disintegration should same-sex couples be permitted to marry has caused considerable frustration among scholars of history and family law. There is, of course, the general point, which the Supreme Court has endorsed repeatedly, that history alone cannot justify retention of discriminatory rules. (6) More significant, however, is the reliance on an inaccurate history of marriage. This history, it mms out, contradicts directly the argument that marriage has a set of fixed, unchangeable criteria that represent its essence, including the different-sex restriction at issue in the contemporary marriage litigation. In fact, marriage has undergone near-constant evolution to the point that marriage today bears little resemblance to marriage in the past. One hundred fifty years ago, a woman lost virtually all of her independent legal identity upon marriage. Even fifty years ago, in numerous jurisdictions, access to divorce was extremely limited, rape within marriage was not a crime, and bans on interracial marriage remained in force. The real history of marriage is thus an extended and consistent account of change to elements of marriage once considered essential. (7) Because misconceptions of marriage's history have played such an important part in justifying the male-female marriage eligibility requirement, history and family law scholars have become part of the fabric of the litigation over the rights of same-sex couples to marry. In most of the major marriage cases across the country, these scholars have filed briefs to make the basic, yet critical, point that history does not bear out the claim that rules of marriage that were considered fundamental in the past should survive challenge by virtue of their vintage. (8) The brief that follows this essay, which was filed in New York's appellate court, does this work by demythologizing the history of marriage in New York. It shows that the elements of marriage in New York--including those once thought essential, such as husbands' control over their wives in myriad respects--always have been subject to change. …

The paper discusses jurisdiction of the Consistory in matrimonial matters in the central part of Poland between 1919-1939, where, pursuant to the matrimonial law of 1836, jurisdiction in matters such as separation, divorce and nullification of marriage was vested in certain church courts. Decisions issued by those churches were recognised as binding and effective decisions in civil law as well. The main considerations focus of the scope of civil jurisdiction of church courts, and, in particular, their jurisdiction as demarcated by the law. Under that law, matrimonial matters were submitted to a church court that was relevant for the religious faith of the spouses in question. Where spouses were of two different denominations, proper jurisdiction for them was determined by the interdenominational matrimonial law of 1836. However, adjudications of church courts other than RC church court were not always accepted by the dominant RC church. This led to frequent disputes regarding their recognition by civil courts. The key subject of the research is the denominational aspect of the jurisdiction of a church court. The paper also includes different interpretations of the interdenominational provisions formulated by leading theoreticians of the interwar period. As can be seen, the differences of their opinions as well as incoherent jurisdiction of the Supreme Court created many doubts with regards to the enforcement of a decision in a matrimonial matter issued by a church court with improper jurisdiction. And so, in its decision of 8 November 1926 the Supreme Court adjudicated that a state court was empowered to investigate the jurisdiction of a church court which has issued a decision in a matrimonial matter. At the same time, however, it took a stance that the provisions of the state interdenominational law should be absolutely binding. And yet, in some other cases it tended to marginalise the state law and allowed to base civil jurisdiction of a RC court entirely on canon law. These examples illustrate a tendency of the Supreme Court to favour broad construction of the principle laid down in Article 114 of the Constitution that the Roman Catholic Church in Poland should be governed by its own laws.

Introduction The U.S. Supreme Court recently remarked, “Long ago [in 1890] we observed that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States.’” The context for the statement was a case followed by Court-watchers for a challenge to the validity of the Pledge of Allegiance. The very way it was made, in such an offhanded way, underscores how commonplace is the basic assumption that marriage and divorce law is entirely and exclusively a state law matter. Even more basic than this federalism assumption are two further assumptions about family law, which run so deep they are virtually never even stated. The first is that the civil authority is the sole relevant authority for matters relating to marriage and divorce. The second is that within civil law there may only be one regulatory regime governing matters of marriage and divorce. Thus, there is an assumption of (1) exclusive jurisdiction, with all authority residing in the civil state; and (2) a “one-size-fits-all” model that applies to all couples, where no deviation from that model is permitted.

Is a marriage rendered invalid in the absence of a marriage certificate? How does the absence of state recognition influence the legitimacy of a marriage across different legal and cultural systems? In Bangladesh, customary marriages—where a marriage might not be formally registered with the state—are common. This article explores how shalish (community-based courts) accept alternate evidence to prove a marriage, noting the ways in which this approach can benefit women. Drawing on ethnographic fieldwork in urban and rural courts in Bangladesh, archival research studying court records, and interviews with diverse interlocutors, my findings indicate that Muslim women who do not have a kabinnamma (marriage certificate) prefer to go to shalish to mediate disputes because this site is embedded within the community and attuned to the cultural context of marriage. I provide a comparative analysis on the admissible evidence used to prove a marriage in state courts and in shalish, examining the legal reasoning within each system. Shalish operates with a flexible legal reasoning, which in theory has the capacity to recognize social hierarchies, balancing power and implementing justice in more equitable ways. Noting the kinds of cases where marginalized women benefit from the decisions in shalish compared to decisions from state courts reveals the gaps in state law, challenging the claims of universality and superiority over other forms of law as well as a need to rethink evidentiary protocols from the ground up. This article highlights alternate epistemic frameworks of justice that recognize and center rural women’s positionalities, desires, and standpoints, thereby decentering thinking about law and evidentiary processes rooted in Eurocentric, patriarchal, and urban frameworks.

Cruel and Unusual Federal Punishments

Back to table of contents Previous article Next article Government NewsFull AccessN.Y. Consumers to Get Better Explanations When Coverage DeniedKate MulliganKate MulliganSearch for more papers by this authorPublished Online:1 Feb 2002https://doi.org/10.1176/pn.37.3.0017aLast October New York State Attorney General Eliot Spitzer announced a set of agreements that will enable consumers to challenge denial of coverage by health maintenance organizations (HMOs).The agreements with six of the state’s largest health insurance plans require HMOs to spell out the specific reasons for denying a treatment deemed “not medically necessary.” Under current law, plans are required to disclose the reasons and clinical rationale they use to deny coverage, but have done so only in the most general terms, according to Spitzer. Consumers will now be told the specific medical findings on which the plans relied to support denials of service.Seth Stein, J.D., executive director of the New York State Psychiatric Association, said, “The settlement is certainly a welcome development. We have been meeting with the attorney general and others for at least four years about problems related to denials of service. The kind of computer-generated responses doctors were receiving about reasons for denial made appeals very difficult.”The health plans are Aetna/U.S. HealthCare Inc./Prudential Health Plan of Hartford, Conn.; Excellus Health Plans Inc. of Rochester; Group Health Inc. of Manhattan; HIP Health Plan of Greater NY Inc.; Oxford Health Plans of Trumbull, Conn.; and Vytra Health Plans of Long Island Inc.Staff of Spitzer’s Health Care Bureau examined how HMOs authorized or denied care during the period from January 1, 1999, through June 30, 1999. This examination, said Spitzer in a press release, “revealed that these plans were refusing to pay for extended hospital stays and recommended treatment for anxiety, depression, and substance abuse, while offering nothing more than a generic phrase to justify the denial of such claims.”Some doctors treating addicted or suicidal patients were told that plans would no longer pay for the care they recommended at psychiatric hospitals because “the proposed service or treatment was not medically necessary.”The health plans have also agreed to:• ensure that any company hired to conduct utilization review for a health plan complies with the terms of the agreement with the attorney general’s office and with state laws;• disclose to patients and their doctors that under the state’s utilization review law, a plan’s failure to meet the statutory deadlines for processing an appeal will result in an automatic reversal of the denial. When a plan does not meet the deadline, it must notify the consumer that the denial was reversed;• comply with all the provisions for monitoring by the attorney general’s Health Care Bureau, including maintaining complete and accurate records related to each denial; and,• contribute $1 million to cover the costs of the attorney general’s investigation.Spitzer said his office will monitor HMOs for at least a two-year period to ensure that the plans comply with the terms of the agreement.According to Donald Moy, J.D., general counsel of the Medical Society of the State of New York (MSSNY), the settlement will not affect the society’s lawsuits against six managed care companies that together account for almost half of the managed care contracts controlling patient care in New York.Those suits (Psychiatric News, October 19, 2001) charge the companies with “continual arbitrary denial of medically necessary care, capricious reductions in reimbursement claims, subjective downcoding and bundling of claims, as well as utilization of computer programs that deny claims based on arbitrary guidelines.”The MSSNY suit also cites “the failure of carriers to provide adequate staffing for the volume of claims being submitted and their failure to provide information to physicians about how claims decisions are made.”Moy told Psychiatric News that four of the six insurance companies have sued to shift the cases to federal courts and that no action on the merits of the cases is expected in the near future. He mentioned, however, a recent favorable ruling in Connecticut in which a state court had decided that medical societies have the right to sue insurance companies. ▪ ISSUES NewArchived

This chapter considers each state-level legal factor—constitutions, statutes, and judicial interpretations—within the Marcellus region. It also takes a look at their impacts on local governments' shale oil- and gas-related decision-making. Local governments may be limited by their state constitutions, state statutes, and the interpretations of those documents by their state courts. Through a comparison of critical cases, the chapter shows that local governments should have a role in determining whether, where, and how drilling happens within local boundaries. Moreover, the analysis illustrates the value of a polycentric perspective on shale gas development in which multiple authorities influence how local governments respond to challenges and opportunities presented by shale gas development.