scispace - formally typeset
Search or ask a question
Author

Mark Kende

Other affiliations: Chapman University
Bio: Mark Kende is an academic researcher from Drake University. The author has contributed to research in topics: Constitutional court & Constitutional law. The author has an hindex of 4, co-authored 18 publications receiving 69 citations. Previous affiliations of Mark Kende include Chapman University.

Papers
More filters
Journal Article
Mark Kende1
TL;DR: The most common assumption about the United States Constitution is that it protects negative rights as mentioned in this paper, whereas the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities.
Abstract: One of the most common assumptions about the United States Constitution is that it protects negative rights.1 Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities.2 The theory is that liberty at least presumes subsistence. International human rights experts actually speak of three \"generations\" of rights. First generation rights are political and civil, and are usually negative rights.4 Second generation rights involve the government's socio-economic obligations, and are frequently positive rights.5 Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called \"green\" rights.

27 citations

Posted Content
Mark Kende1
TL;DR: The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socioeconomic rights, allowing gay marriage, and promoting equality as mentioned in this paper, but these decisions are striking given the country's apartheid past and the absence of a grand human rights tradition.
Abstract: The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socioeconomic rights, allowing gay marriage, and promoting equality. These decisions are striking given the country's apartheid past and the absence of a grand human rights tradition. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions. This book examines the Constitutional Court in detail to determine how it has functioned during South Africa's transition and compares its rulings to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate about the Constitutional Court taking place in South Africa. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not generally bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation - a method the U.S. Supreme Court could employ.

8 citations

Book
Mark Kende1
02 Mar 2009
TL;DR: In this article, the authors discuss the death penalty, gender equality, affirmative action, freedom of expression, and freedom of religion in the UK, and discuss economic and social rights.
Abstract: 1. Introduction 2. History and background 3. The death penalty 4. Gender equality 5. Gay rights 6. Affirmative action 7. Freedom of expression 8. Freedom of religion 9. Socioeconomic rights 10. Final thoughts.

7 citations

Posted Content
Mark Kende1
TL;DR: In South Africa, the Constitutional Court and the South African Supreme Court of Appeal have issued several surprisingly strong rulings against Zuma on key executive power issues as discussed by the authors, and these rulings can hopefully provide a model for judiciaries in other nations fighting to maintain their independence against skeptical political forces.
Abstract: So-called developing nations often suffer from political and constitutional instability, including fragile judiciaries. The South African Constitution and the Constitutional Court though have received international acclaim during their first 20 years. Yet in South Africa, many expected that African National Congress (ANC) populist President Jacob Zuma would try to reduce the Constitutional Court’s power after he took office in 2009. Zuma and others in the ANC had criticized both the Court and the judiciary. Defenders of the Court responded that Zuma was trying to chill the Court’s potential anti-corruption function. Moreover Zuma eventually appointed a majority of the Court’s eleven Justices. This article demonstrates, however, that the Constitutional Court and the South African Supreme Court of Appeal have issued several surprisingly strong rulings against Zuma on key executive power issues. Though tensions and concrete problems remain between Zuma’s supporters and the Constitutional Court, these rulings can hopefully provide a model for judiciaries in other nations fighting to maintain their independence against skeptical political forces.

4 citations

Journal Article
TL;DR: The South African Constitutional Court in 1995 found the death penalty unconstitutional in State v Makwanyane & Another as discussed by the authors, with the majority of the South African Supreme Court's members supporting the decision.
Abstract: I INTRODUCTION South Africa has disallowed capital punishment for over a decade, yet violent crime there remains frequently newsworthy, even internationally1 Moreover, the crime rate is among the highest in the world2 In 2000 a man broke into South African President Thabo Mbeki's house despite heavy security, and made himself comfortable drinking brandy for several days while Mbeki was out of the country3 During my year in South Africa as a Fulbright scholar in 2000, I was told about a man who began a walk across the country to bring national media attention to the high crime rate Robbers supposedly mugged him on the first day Despite evidence that many South Africans favored the death penalty,4 the new South African Constitutional Court in 1995 ruled the death penalty unconstitutional in State v Makwanyane & Another5 (Makwanyane) The Court's President, Arthur Chaskalson, authored the unanimous opinion, though all of the other ten justices wrote separate concurring opinions6 The national government supported the challengers because it was made up of former Apartheid opponents who had risked execution7 An Attorney General (AG) from one of South Africa's provinces defended the law8 The decision contrasts sharply with the US Supreme Court's 1976 landmark ruling in Gregg v Georgia9 upholding the death penalty's constitutionality This Article examines Makwanyane closely because it illuminates some of the most salient characteristics of South African constitutional interpretation, such as an emphasis on values, a willingness to examine international and comparative precedents, and judicial pragmatism It then compares the Constitutional Court's reasoning with certain aspects of US Supreme Court death penalty cases The Article explores how recent US Supreme Court decisions have moved in the South African Court's direction The Supreme Court has in the last three years reversed earlier decisions and outlawed the death penalty for the mentally retarded10 and for juveniles11 In an August 2005 speech to the American Bar Assocation, Justice John Paul Stevens said the death penalty generally has "serious flaws" and that DNA evidence has shown that a "substantial number of death sentences were administered erroneously"12 Several recent Supreme Court opinions contained foreign law comparisons and engaged in comparative analysis13 In addition, US juries seem to be increasingly skeptical about the death penalty due to factors such as the exonerations produced by DNA testing14 This Article argues that this judicial shift and increasing public skepticism is quite sensible for the reasons Justice Stevens articulated in his speech to the American Bar Association Focusing on the potential influence of South Africa's death penalty cases is especially appropriate because it is the tenth anniversary of Makwanyane and it is almost the tenth anniversary of the 1996 South African Constitution Part I of this Article analyzes South Africa's use of capital punishment during the Apartheid era and the factors leading to the Constitutional Court's decision to abandon the death penalty Part II examines the US Supreme Court's death penalty jurisprudence Lastly, Part III demonstrates how the US Supreme Court has started to sound increasingly like the South African Constitutional Court II DEATH PENALTY JURISPRUDENCE IN SOUTH AFRICA A History Former South African President Nelson Mandela could have received the death penalty in the 1960s when he was charged with treason for his activities leading the African National Congress (ANC)15 Yet Mandela was not the first to face this threat Capital punishment in South Africa goes back at least to the seventeenth century, with the arrival of the Dutch East Indies company16 By 1910, after a period of English control, the punishment was mainly limited to murder convictions17 Yet when the Afrikaaner National Party (National Party) took over in 1948, the government used the death penalty for other crimes, including aggravated robbery, burglary, sabotage, terrorism, and kidnapping …

4 citations


Cited by
More filters
Journal ArticleDOI
TL;DR: SPTLC activity of SPTLC123-siRNA treated Huh7 cells and comparison of cell proliferation analysis and caspase 3/7 analysis between scrambled control and DEGS1 knockdown cells are shown.
Abstract: Supplemental figure S1: (A) SPTLC activity of SPTLC123-siRNA treated Huh7 cells. (B) Comparison of cell proliferation analysis and (C) caspase 3/7 analysis between scrambled control, SPTLC123 and DEGS1 knockdown cells.

78 citations

01 Jan 2011
TL;DR: In this article, the authors present a comprehensive text, Understanding Islamic Law, in English, by a non-Muslim law professor, which can be used without supplementation in a one-semester Islamic Law course.
Abstract: Second Edition Forthcoming July 2016 | ISBN 978-1-6328-4950-2 The demand for a textbook like Understanding Islamic Law among law students and legal practitioners in America and throughout the English-speaking world is large and growing. Islamic Law is not merely a “hot topic.” It is a major trend that is an increasingly mainstream fixture in the legal landscape. There is nothing currently on the market for law schools like Understanding Islamic Law, that is, a comprehensive text, in English, by a non-Muslim law professor. This thorough, balanced textbook is carefully and thoughtfully written, and can be used without supplementation in a one-semester Islamic Law course.

73 citations

Journal ArticleDOI
TL;DR: In this article, the authors examine two approaches to gender inequities in law firm hierarchy: disparity as economic efficiency and disparity as structural discrimination and find that women participate fully in the accumulation of social capital in law firms through service to valued institutional clientele and high billings, yet their efforts result in reduced probabilities of partnership.
Abstract: In recent years, the legal profession has undergone significant organizational restructuring with the dramatic growth of firms and a rapid increase in the number of female lawyers. We argue that big firms actively recruited female lawyers during a period when women were needed to fill roles of cultivating and serving increasing numbers of institutional or corporate clients. Yet despite women's contribution of legal talent to the development of clientele, a glass ceiling has restricted their opportunities to advance in law firm hierarchies. We examine two approaches to gender inequities in law firm hierarchy: disparity as economic efficiency and disparity as structural discrimination. Both approaches neglect aspects of social relations within law firms as well as social resources lawyers bring to their work. We therefore introduce a social capital perspective to unpack how human capital is enhanced and how exclusionary practices are reinforced in law firms. Using a longitudinal study of male and female lawyers conducted from 1990 to 1996, we specify several different forms of social capital. The findings from our study reveal that female lawyers participate fully in the accumulation of social capital in law firms, through service to valued institutional clientele and high billings, yet their efforts result in reduced probabilities of partnership

61 citations

Book
15 Dec 2016
TL;DR: In this article, a revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements.
Abstract: This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.

55 citations

Book
28 Mar 2013
TL;DR: A conceptual framework for assessing the performance of constitutional courts in interdisciplinary terms is proposed in this paper, where the Chaskalson Court between constitutional and positive morality is discussed. But the conceptual framework does not consider the legal professional culture of South Africa.
Abstract: Introduction 1. The Chaskalson Court's achievement 2. A conceptual framework for assessing the performance of constitutional courts in interdisciplinary terms 3. Operationalising the conceptual framework to explain the Court's achievement 4. The political context for judicial review, 1995-2005 5. Constraints and opportunities: the law/politics distinction in South African legal-professional culture 6. Death, desire and discrimination: the Chaskalson Court between constitutional and positive morality 7. Social rights 8. Property rights 9. Political rights 10. Cross-cutting strategies 11. Conclusion.

47 citations