Showing papers on "Common law published in 2000"

Public Vows: A History of Marriage and the Nation

Abstract: EWe commonly think of marriage as a private matter between two people, a personal expression of love and commitment. In this pioneering history, Nancy F. Cott demonstrates that marriage is and always has been a public institution. From the founding of the United States to the present day, imperatives about the necessity of marriage and its proper form have been deeply embedded in national policy, law and political rhetoric. Legislators and judges have envisioned and enforced their preferred model of consensual, lifelong monogamy - a model derived from Christian tenets and the English common law that posits the husband as provider and the wife as dependent. In early confrontations with Native Americans, emancipated slaves, Mormon polygamists and immigrant spouses, through the invention of the New Deal, federal income tax, and welfare programmes, the federal government consistently influenced the shape of marriages. And even the immense social and legal changes of the last third of the 20th century have not unravelled official reliance on marriage as a "pillar of state". By excluding some kinds of marriages and encouraging others, marital policies have helped to sculpt the nation's citizenry, as well as its moral and social standards, and have directly affected national understandings of gender roles and racial difference. "Public Vows" is a panoramic view of marriage's political history, revealing the national government's profound role in our most private of choices. No one who reads this book will think of marriage in the same way again.

Optimal Standardization in the Law of Property: The Numerus Clausus Principle

Abstract: In all post-feudal legal systems, the basic ways of owning property are limited in number and are standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invoked only semi-consciously; it is known in the civil-law tradition as the numerus clausus. This Article adopts this term for the corresponding understanding in the common law, and advances an information-cost theory that explains the ubiquity and durability of the doctrine. The numerus clausus can be seen at work in a variety of areas, including estates in land, concurrent interests, nonpossessory interests, interests in personal property, and intellectual property. The Article argues that the principle serves throughout the law of property to reduce third-party information costs. Because of their in rem nature, property rights give rise to third-party information costs in a way that contract rights do not. Individuals trying to avoid violating property rights or investigating whether to acquire them need to gather information. Those creating property rights will in some situations have too little incentive to conform to the most popular forms, requiring a degree of mandatory standardization. As it operates in practice, the numerus clausus strikes a rough balance between the costs of frustrating parties' objectives on the one hand and third-party information costs on the other. The Article demonstrates that this information-cost theory provides a better account for the numerus clausus than do alternative positive and normative views, including those based on the sufficiency of notice, network effects, private standards, anti-fragmentation concerns, and the increasing importance of contract-based rights. Finally, the Article shows that, because it tends to preclude judicial innovation in the basic forms of property rights, the numerus clausus acts as an institutional-choice mechanism that channels innovation in the menu of property rights to legislatures. In keeping with the basic information-cost theory, legislative creation and abolition of property rights is likely to lead to lower information costs than would judicial entrepreneurship in this area.

Legal traditions of the world

Abstract: This book offers a major new means of conceptualizing law and legal relations across the world. National laws are placed in the broader context of major legal traditions, those of chthonic (or indigenous) law, talmudic law, civil law, Islamic law, common law, Hindu law, and Confucian law. Each tradition is examined in terms of its institutions and substantive law, its founding concepts and methods, its attitude towards the concept of change, and its teaching on relations with other traditions and peoples. Legal traditions are explained in terms of multivalent and non-conflictual forms of logic and thought.

The Common Law and Economic Growth: Hayek Might Be Right

Abstract: Recent finance scholarship finds that countries with legal systems based on the common law provide better investor protections and have more developed financial markets than civil law countries. These findings echo Hayek's claims of the superiority of English to French legal institutions. In this paper, I present evidence that common law countries experienced faster economic growth than civil law countries during the period 1960-1992. I suggest that the difference reflects the common law's greater orientation toward private economic activity and the civil law's greater orientation toward government intervention.

Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights

Abstract: It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges' citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future.

Remedies in the WTO legal system: between a rock and a hard place

Abstract: There is a considerable discrepancy in legal and economics scholarship as to the effectiveness of the new WTO dispute settlement system. The former usually suffers from selection bias that is not predicated on any empirical analysis. Bob Hudec produced a remarkable empirical account of how the GATT dispute settlement fared, but no corresponding study with respect to WTO has so far taken place. Maybe it is still too soon. The recent avalanche of compliance panels though, has cast considerable doubt on the initially celebrated effectiveness of the system. This paper is not the equivalent to Hudec's study for the WTO. It uses representative case law from the WTO to make the point that the effectiveness of the WTO remedies depends on the relative 'persuasive' power of the WTO member threatening with countermeasures.

Negotiating Asylum : The EU Acquis, Extraterritorial Protection and the Common Market of Deflection

Abstract: How are access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? What tools does international law offer to solve conflicts between them? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues? This work combines the potential of legal formalism with an analytical framework drawing on political theory. It analyses the argumentative strategies used by international lawyers, exploiting the interpretative methodology of international law as well as elaborate discrimination arguments. Taking the axiomatic tension between universalism and particularism as a point of departure, the author conceptualises the efforts to harmonise migration and asylum law in the European Union as the result of two interdependent negotiation loops: one taking place among Member States, and another between protection seekers and their host state. An extensive survey of the EU acquis and its institutional framework leads to the conclusion that both are heavily fragmented. The EU acquis contains not a single binding instruments securing the interests of protection seekers, while instruments enhancing migration control are fraught with legal and practical idiosyncrasies. Burden-sharing remains the pivotal element in the normative dynamics behind the EU acquis, and the various efforts of Member States to launch solidarity schemes are exposed to a critical analysis. After confronting the acquis with protective norms of international law, the author concludes that the deflection of protection seekers by means of visa requirements may constitute a violation of the European Convention of Human Rights, and that the prescriptions of international law oblige Member States to apply the Dublin Convention and the Spanish Protocol in a manner which ultimately empties the law of its main control functions. He also develops an explicatory model reconstructing the case law of the European Court of Human Rights in the field of extraterritorial protection. In the final part, the argumentative interdependencies between universalism and particularism are explored, and the author explains why the European Court of Human Rights must be regarded as the most legitimized forum for the negotiation of asylum in Europe. (Less)

Common Law Exceptions to Employment at Will and U.S. Labor Markets

Abstract: Employment relationships in the United States were historically governed by the common law doctrine of employment at will. Under this rule, parties to an employment relationship could, in the absence of an explicit contract, unilaterally terminate the match at any time, for any reason, and without penalty. In recent decades. numerous state courts have recognized "exceptions" to employment at will that limit the circumstances of worker dismissal. Using a panel of state labor market aggregates from 1965 to 1994, this article examines the effect of these exceptions on U.S. labor markets. These exceptions are seen to have no effect on aggregate employment nor unemployment. However, temporary employment is observed to increase by a statistically significant 15% following the adoption of an exception. The implied contract exception, in particular, appears to be responsible for this increase. Copyright 2000 by Oxford University Press.

Does Law Matter for Economic Development? Evidence From East Asia

Abstract: Katharina Pistor and Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960-1995. New York: Oxford University Press, 1999. Pp. xi + 294 pages. $39.95 cloth. Kanishka jayasuriya, ed., Law, Capitalism, and Power in Asia: The Rule of Law and Legal Institutions. New York: Routledge, 1999. Pp. xiii + 345 pages. $99.99 cloth; $32.99 paper. Robert S. Brown and Alan Gutterman, Asian Economic and Legal Development. Uncertainty, Risk, and Legal Efficiency. Boston: Kluwer Law International, 1998. Pp. xv + 477 pages. $148.00 cloth. The relationship between law and economic development has been a central concern of modern social theory, providing a focal point for the analyses of Marx, Durkheim, and Weber. In the 1970s, law and society scholars drew on these traditions to inform international development policy in what was then called the "Law and Development Movement." These scholars, who focused primarily on Latin America and who were informed by an activist vision of law as a tool for social change, sought to export U.S. models of law and legal education, suggesting the possibility of a theoretically informed development policy focused on law (Tamanaha 1995). The Law and Development Movement ultimately fizzled (Gardner 1980; Trubek and Galanter 1974), and with it went the budgets for legal policy reform in developing countries. Donors turned their attention elsewhere. However, new theoretical developments, as well as the lingering importance of the underlying questions, have given momentum to a new wave of law and development activities on a far larger scale than ever before (deLisle 1999). Today, the relationship of law and economic development is again at the very forefront of development policymaking, as government agencies, international organizations, and the non-profit sector advocate the need for strengthening the rule of law in developing countries. Although it is probably a mischaracterization to assert that the new activity is institutionally and intellectually cohesive enough to form a "movement," it is clear that legal institutions occupy a central place in development assistance again (deLisle 1999:212-15). The resurgence of law and development corresponds with renewed interest in the rapid postwar growth of economies in East and Southeast Asia. By most accounts, law has not played a major role in Asian economic growth. Scholars have placed more emphasis on particular policies, institutions, and cultural underpinnings rather than on law per se (Upham 1994). For example, in its monumental study, The East Asian Miracle, the World Bank (1993) does not discuss the legal system. Preliminary evidence from Chinese economic reforms indicates that, for the most part, increased reliance on legal ordering has not displaced a system of economic organization based on connections, or guanxi (Lubman 1996; Jones 1994). Having drawn on evidence from Asia, some have claimed that the rule of law is dispensable in the pursuit of economic growth (see Davis 1998:304). There is clearly a tension between the centrality of law in theories of development and existing evidence from Asia. There are at least two possible resolutions of this tension, one empirical and the other theoretical. One possibility is that existing evidence is insufficient and that a more detailed study of Asian legal institutions would elucidate their central importance in Asian growth. The other possibility is that theoretical assumptions of donors and scholars about the universal importance of legal institutions are mistaken and that there is a need to adjust conceptual frameworks accordingly. At the broadest level, then, the questions of whether and how law matters for economic growth in Asia are of great importance for both theory and practice. Three recent studies address these questions in different ways. Together, they expand the empirical base for the study of Asian economic law and suggest new directions for policymakers concerned with the role of law in development. …

Common Law, Common Ground, and Jefferson's Principle

Abstract: Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that written constitutions (or, in many instances, statutes) are binding. Most answers to Jefferson's challenge rely, in one way or another, on a claim that being an American means owing an obligation of some kind to previous generations. These accounts should not be disparaged, but in a large and heterogeneous nation the obligation to adhere to decisions made decades or centuries ago should rest on something less contested. Our written Constitution performs two functions that justify adherence to it, without relying on a contested conception of American citizenship. First, the text, and the judgments of those who wrote and ratified it, are a source of precedents, roughly on a par with certain judicial decisions. Second, the text provides what game theory calls a "focal point": it establishes common ground on questions (such as the length of a President's term) that need to be settled one way or another. There are no other justifications, beyond these two, for requiring adherence to the text of a document adopted long ago. But this account helps explain current practices that might otherwise seem unjustifiable: an emphasis on the words of the text often without regard to the intentions of the drafters, as evidenced, for example, in the debate over the incorporation of the Bill of Rights; the highly selective use of historical sources (what is often called "law office history"); the fact that the text of the Constitution matters most for issues that are the least important; and popular attitudes about constitutional amendment.

Data protection legislation: interpretation and barriers to research

Abstract: Research has been described as “a powerful means of achieving” the objectives of the Department of Health, namely “to improve the health and well-being of the population and to secure high quality care.”1 There is, however, a need to find a balance between facilitating important research and protecting the confidentiality of patients. As the capabilities of information technology grow, legal frameworks and professional guidance need to be created or refined to safeguard the rights of patients. Some areas of the common law duty of confidentiality and the new Data Protection Act 1998 (box, p 891), which constitutes the United Kingdom's implementation of the relevant European Union directive,2 are causing difficulties of interpretation within the NHS. With few exceptions, broad debate about the implications of the new act is lacking, particularly in the context of epidemiological research that uses patients' records.6-8 Questions of consent, anonymisation of data for research, and access to medical notes for research purposes (rather than audit) have been addressed in a range of literature.9-13 Some of these documents are being updated; this may indicate that there are uncertainties about the legal issues involved in implementing the act. Local variations in interpretation may cause particular difficulties for researchers conducting multicentre epidemiological studies, as the case study that will be described in this article shows. In the meantime, those who must make decisions about confidentiality are still confused. This confusion exists for several reasons. Firstly, there is the interpretation of the act (and to an extent the common law duty of confidentiality). The interpretation is subject to debate, and no case law exists which might clarify the interpretation. Secondly, there is a dearth of up to date and clear policy guidance. Thirdly, the new system of “Caldicott guardians” (box) is untried, and guardians as well …

Introduction to Court Interpreting

Abstract: Chapter 1: Introduction Scope and Objective Role of the Court Interpreter History of Court Interpreting Suggestions for Further Reading Chapter 2: The Law 2.1. The Right to an Interpreter 2.1.1. Europe 2.1.2. The Americas 2.1.3. Asia 2.1.4. Australia 2.1.5. Africa 2.1.6. Defining Competency 2.1.7. U.S. Federal Court Interpreters Exam 2.1.8. Other Exams 2.2. The Role of the Professional Association 2.3. Suggestions for Further Study Chapter 3: Legal Traditions of the World 3.1. Attitudes towards the Law and Lawyers 3.2. Civil Law 3.3. Common Law 3.4. Other Legal Traditions 3.4.1. Africa 3.4.2. Hinduism 3.4.3. Islam 3.4.4. Judaism 3.4.5. Socialist Law 3.4.6. Confucianism 3.4.7. International Law and Supranational Courts 3.5. Conclusion 3.6. Suggestions for Further Reading 3.7. Suggestions for Further Study Chapter 4: Criminal and Civil Procedure 4.1. Criminal Procedure 4.1.1. Investigative Phase 4.1.2. Pre-Trial Phase 4.1.3. The Trial 4.1.4. Under Civil Law 4.1.5. Under Common Law 4.1.6. The Sentence 4.1.7. Appeals 4.1.8. Alternative Programmes 4.2. Civil Procedure 4.3. The Interpreter's Role 4.4. Suggestions for Further Reading 4.5. Suggestions for Further Study Chapter 5: The Code of Ethics 5.1. Canons of the Code of Ethics 5.1.1. Fidelity 5.1.2. Confidentiality 5.1.3. Impartiality 5.1.4. Professional Conduct 5.2. Practical Guidelines 5.3. Conclusion 5.4. Role-Playing Scenarios 5.5. Suggestions for Further Reading 5.6. Suggestions for Further Study Chapter 6: Interpreting Techniques 6.1. Definition of Interpreting 6.2. Consecutive Interpreting 6.3. Simultaneous Interpreting 6.4. Sight Translation 6.5. Ancillary Tasks 6.6. Remote Interpreting 6.7. Practical Exercises 6.7.1. Active Listening and Retention 6.7.2. Communication Skills 6.7.3. Split Attention 6.7.4. Restructuring 6.7.5. Anticipation 6.7.6. Interpreting 6.8. Suggestions for Further Reading 6.9. Suggested Class Activities Chapter 7: Specialized Topics, Resources and References 7.1. Criminal Cases 7.2. Civil Cases 7.3. Resources for Research and Preparation 7.3.1. The Interpreter's Basic Library 7.3.2. Human Resources 7.3.3. Electronic Resources 7.4. Continuing Education 7.5. Suggested Activities Appendix A: Instructions to Parties in Interpreted Proceedings Appendix B: Best Practice in Court Interpreting and Code of Conduct for Court Interpreters Bibliography Index

Law's Order: What Economics Has to Do with Law and Why It Matters

Abstract: Introduction 3 1. What Does Economics Have to Do with Law? 8 2. Efficiency and All that 18 3. What's Wrong with the World, Part 1 28 4. What's Wrong with the World, Part 2 36 5. Defining and Enforcing Rights: Property, Liability, and Spaghetti 47 6. Of Burning Houses and Exploding Coke Bottles 63 7. Coin Flips and Car Crashes: Ex Post versus Ex Ante 74 8. Gaines, Bargains, Bluffs, and Other Really Hard Stuff 84 9. As Much as Your Life Is Worth 95 Intermezzo. The American Legal System in Brief 103 10. Mine, Throe, and Ours: The Economics of Property Law 112 11. Clouds and Barbed Wire: The Economics of Intellectual Property 128 12. The Economics of Contract 145 13. Marriage, Sex, and Babies 171 14. Tort Law 189 15. Criminal Law 223 16. Antitrust 244 17. Other Paths 263 18. The Crime/Tort Puzzle 281 19. Is the Common Law Efficient? 297 Epilogue 309 Index 319

The Rise of Dispersed Ownership: The Role of Law in the Separation of Ownership and Control

Abstract: Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholders, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay, and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies". Nonetheless, this article finds that significant movement in the direction of dispersed ownership has occurred and is accelerating across Europe. But can this trend persist in the absence of strong legal protections for minority shareholders and in the presence of high private benefits of control? To understand how dispersed ownership might both arise and persist in the absence of the supposed legal and political preconditions, this article reconsiders the appearance of dispersed ownership in the late 19th and early 20th Century in the U.S. and the U.K. and contrasts their experience with those of France and Germany over the same period. During this era, the private benefits of control were high, and minority legal protections in the U.S. were notoriously lacking, as the famous Robber Barons of the age bribed judges and legislators and effectively employed regulatory arbitrage to escape even minimal anti-fraud regulation. Nonetheless, strong self-regulatory institutions (most notably, the New York Stock Exchange) and private bonding mechanisms by which leading underwriters pledged their reputational capital by placing directors on the board of sponsored firms enabled the equity market to expand and dispersed ownership to arise. In contrast, in the U.K., the London Stock Exchange for a variety of path-dependent reasons played a far more passive role and did not become an effective self-regulator until much later in the 20th Century. Yet, dispersed ownership also arose, although at a slower pace. The lesser role for private self-regulation in the U.K. may have been the consequence of its lesser need for self- regulation as a functional substitute for formal law, given both earlier legislation in the U.K. and lesser exposure to judicial corruption and regulatory arbitrage. In contrast to the New York and London Exchanges, the Paris Bourse over this same period made little, if any, effort to develop a self-regulatory structure or to upgrade listing or disclosure standards. Why not? The answer seems closely associated with the fact that it operated as a state-administered monopoly whose stockbrokers were formally considered civil servants and who were legally denied the ability to trade as principals for their own account. Facing no competition and composed of members having little incentive to promote or enhance its reputational capital, the Paris Bourse did not innovate and fell behind the London Stock Exchange. The intrusive role of state regulation, which discouraged private self-regulatory initiatives, appears to have a factor in its competitive decline. In Germany, the state strongly supported the growth of large private banks and enacted a punitive tax on securities transactions. Because the German central bank offered very liberal rediscounting terms to the principal private banks, they were able to satisfy the capital needs of German industry without resort to the equity market. In this respect, concentrated ownership seems less to have evolved naturally than to have been subsidized by the state. Prospectively, this article argues that "functional convergence" will dominate "formal convergence" and that the principal mechanism of functional convergence may be private self- regulation. However, rather than reject the "law matters" hypothesis, this article suggests that one of the principal advantages of common law legal systems is their decentralized character, which encourages self-regulatory initiatives, whereas in civil law systems the state may monopolize all law-making initiatives. Further, this article proposes that legal reforms, while important, are likely to follow, rather than precede, market changes - as happened in both the U.S. and the U.K. Once however a constituency for liquid and transparent securities market is thus created, it will predictably seek and secure legislation that fills in the enforcement gap that self-regulation leaves. Both in the U.S., the U.K. and Europe today, the growth of securities markets has been largely divorced from politics.

Information Privacy/Information Property

Abstract: From most objective standpoints, protecting information privacy though industry self-regulation is an abject failure. The current political climate has been hostile to proposals for meaningful privacy regulation. Privacy advocates have been casting around for some third alternative and a number of them have fastened on the idea that data privacy can be cast as a property right. People should own information about themselves, and, as owners of property, should be entitled to control what is done with it. The essay explores that proposal. I review the recent enthusiasm for protecting data privacy as if it were property, and identify some of the reasons for its appeal. I examine the model and conclude that a property rights approach would be unlikely to improve matters; indeed, it would tend to encourage the market in personal data rather than constraining it. After critiquing the property model, I search for a different paradigm, and explore the possibility that tort law might support a workable approach to data privacy. Current law does not provide a tort remedy for invasion of data privacy, but there are a number of different strands in tort jurisprudence that might be extended to encompass one. In particular, a rubric based loosely on breach of confidence might persuade courts to recognize at least limited data privacy rights. I conclude, however, that while the tort solution is preferable to a property rights approach, it is likely to offer only modest protection. Common law remedies are by their nature incremental, and achieving widespread adoption of novel common law causes of action is inevitably a slow process. Even established common law remedies, moreover, are vulnerable to statutory preemption. Although a rash of state tort law decisions protecting data privacy might supply the most compelling impetus to federal regulation we are likely to achieve, the resulting protection scheme is unlikely to satisfy those of us who believe that data privacy is worth protecting.

Criminal Law: Theory and Doctrine

Abstract: This revised and up-to-date edition combines theoretical precision and depth with an authoritative exposition of the law. Following the pattern established by the first edition, the analysis is complemented by extensive citations of case law and articles. Scholars, in particular, should benefit from the extensive theoretical discussion, the relevance of which transcends national boundaries. Where necessary new sections have been added to take account of significant new developments.

The EU, the WTO, and the NAFTA : towards a common law of international trade?

Abstract: Introduction: Cain and Abel - Convergence and Divergence in International Trade Law 1. EC External Commercial Policy after Amsterdam: Authority and Interpretation within Interconnected Legal Orders 2. Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence 3. The European Court of Justice and the WTO: Problems and Challenges 4. On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO 5. The North American Integration Regime and its Implications for the World Trading System Epilogue: Towards a Common Law

Law tradition and institutional quality: some empirical evidence†

Abstract: Law tradition of a country is associated with its institutional quality. Countries with a French Civil code tradition display a negative link with bureaucratic development, lack of corruption, credibility of governments and others. Results are maintained even after controlling for regional and colonial variables and, in general, appear robust. Countries with a Common Law tradition show a positive relationship with institutional quality, though not as robust when testing a broad range of specifications. These results are consistent with the hypothesis of Scully, Posner and others, that link origin of laws and economic behaviour. Copyright © 2000 John Wiley & Sons, Ltd.

World jury systems

Abstract: 1. A Historical and Comparative Perspective on the Common Law Jury 2. The Continuing Decline of the English Jury 3. The American Criminal Jury 4. Criminal Trial Juries in Australia 5. The New Zealand Jury 6. The Canadian Criminal Jury 7. The Scottish Criminal Jury 8. The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past 9. Europe's New Jury Systems: The Cases of Spain and Russia 10. Reviving the Criminal Jury in Japan 11. The Civil Jury in America 12. 'Guardian of Civil Rights' ... Medieval Relic: The Civil Jury in Canada 13. The Jury Elsewhere in the World

Trusting Records: Legal, Historical and Diplomatic Perspectives

Abstract: Acknowledgements. Introduction. 1. The Evolution of Legal and Historical Methods for Assessing the Trustworthiness of Records. 2. Trusting Records as Legal Evidence: Common Law Rules of Evidence. 3. Trusting Records as Historical Evidence: Modern Historical Methods. 4. Creating and Maintaining Trustworthy Records in Electronic Systems: Archival Diplomatic Methods. Conclusion. Notes. Bibliography. Index.

Postcolonial trauma: the contemporary removal of indigenous children and young people from their families in australia

Abstract: The removal of Indigenous children from their families within contemporary Australia is considered by way of both child protection and juvenile justice interventions and within the context of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. In particular, the article considers the findings and recommendations of the Inquiry in relation to contemporary removals and Government responses to those recommendations. Introduction This article considers the issue of removal of Indigenous children from their families within contemporary Australia. It considers removal by way of both child protection and juvenile justice interventions. Contemporary removals are placed within the context of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (NISATSIC). The Inquiry was established by the former Federal Labor Government primarily to investigate earlier policies of the forced separation of Indigenous children from their families through various governmental policies in the earlier part of the twentieth century. However, a substantial part of the Inquiry was also concerned with issues relating to the contemporary separation of Indigenous children and young people. The Inquiry found that the contemporary high levels of child removal arising from welfare and child protection interventions, as well as criminalisation and subsequent incarceration of Indigenous young people through State and Territory juvenile justice systems, effectively amounted to a new practice of forced separation which mirrored earlier colonial practices. Before considering contemporary removals, it is worth summarising the Inquiry's findings in relation to earlier practices of forced removal. The Inquiry found that the policy of forcible separation constituted genocide within the meaning of the term in international law. It found that basic safeguards which protected non-Indigenous families were cast aside when it came to Indigenous children. The main components of forced removal were deprivation of liberty; deprivation of parental rights; abuses of power; breach of guardianship duties; and violation of human rights. Regarding deprivation of liberty, the Inquiry found that `the taking of Indigenous children from their homes by force and their confinement to training homes, orphanages ... [etc] amounted to deprivation of liberty and imprisonment in the common law sense' (NISATSIC 1997: 253). The safeguard of court scrutiny before detention was denied Indigenous children and permitted removal by the order of a public servant; while the removal of non-Indigenous children required a court order. Regarding deprivation of parental rights, it was found that in some jurisdictions legislation stripped Indigenous parents of their parental rights and made a Chief Protector the legal guardian of all Indigenous children. This was contrary to the common law which safeguarded parental rights: a parent could only forfeit their parental rights if a court found misconduct or that state guardianship was in the child's best interest (NISATSIC 1997: 255). Although legislation authorised the removal of Indigenous children, some Protectors and Inspectors resorted to kidnapping or trickery to take the children from their parents. There are many examples of children being taken directly from school without their parents' knowledge (NISATSIC 1997: 257). These actions were abuses of power--actions beyond what was authorised by the legislation. Furthermore, Protectors and Protection Boards had a duty of care and protection to those over whom they exercised control. A fiduciary relationship existed when one party was vulnerable and the other exercised discretionary powers which affected the interests of the vulnerable person. The report identifies at least three ways in which guardianship duties and statutory duties were failed with Indigenous children. …

Convergence and its Critics: What are the Preconditions to the Separation of Ownership and Control?

Abstract: Recent commentary has argued that deep and liquid securities markets and a dispersed shareholder base are unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholder, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies." Nonetheless, this article finds that significant movement in the direction of dispersed ownership has occurred and is accelerating across Europe. To understand how dispersed ownership can arise in the absence of the supposed legal and political preconditions, this article reconsiders the appearance of dispersed ownership in the late 19th and early 20th Century in the U.S. and the U.K. During this era, the private benefits of control were high, and minority legal protections in the U.S. were notoriously lacking, as the famous Robber Barron of the age bribed judges and legislators and effectively employed regulatory arbitrage to escape regulation. Nonetheless, strong self-regulatory institutions (most notably, the New York Stock Exchange) and private bonding mechanisms by which leading underwriters pledged their reputational capital by placing directors on the board of sponsored firms enabled the equity market to expand and dispersed ownership to arise. In contrast, in the U.K., the London Stock Exchange for a variety of path-dependent reasons played a far more passive role and did not become an effective self-regulator until much later in the 20th Century. Yet, dispersed ownership also arose, although at a slower pace. The lesser role for private self-regulation in the U.K. may have been the consequence of its lesser need for self-regulation as a functional substitute for formal law, given both earlier legislation in the U.K. and lesser exposure to judicial corruption and regulatory arbitrage. Based on these examples, this article argues that "functional convergence" will dominate "formal convergence" and that the principal mechanism of functional convergence may be private self-regulation. However, rather than reject the "law matters" hypothesis, this article suggests that one of the principal advantages of common law legal systems is their decentralized character, which encourages self-regulatory initiatives, whereas civil law systems may monopolize all law-making initiatives. Further, this article proposes that legal reforms, while important, are likely to follow, rather than precede, market changes - as happened in both the U.S. and the U.K. Once however a constituency for liquid and transparent securities market is thus created, it will predictably seek and secure legislation that fills in the enforcement gap that self-regulation leaves. Both in the U.S., the U.K. and Europe today, the growth of securities markets has been largely divorced from politics. What then are the preconditions for the separation of ownership and control? The key answer is that public shareholders be able to retain control, protected from the threat of stealth raiders who can assemble controlling blocks without paying a control premium. In both the U.S. and the U.K., these protections were first developed through private (or semi-private) ordering and then formalized in legislation.

Information Privacy/information Property

Abstract: From most objective standpoints, protecting information privacy though industry self-regulation is an abject failure. The current political climate has been hostile to proposals for meaningful privacy regulation. Privacy advocates have been casting around for some third alternative and a number of them have fastened on the idea that data privacy can be cast as a property right. People should own information about themselves, and, as owners of property, should be entitled to control what is done with it. The essay explores that proposal. I review the recent enthusiasm for protecting data privacy as if it were property, and identify some of the reasons for its appeal. I examine the model and conclude that a property rights approach would be unlikely to improve matters; indeed, it would tend to encourage the market in personal data rather than constraining it. After critiquing the property model, I search for a different paradigm, and explore the possibility that tort law might support a workable approach to data privacy. Current law does not provide a tort remedy for invasion of data privacy, but there are a number of different strands in tort jurisprudence that might be extended to encompass one. In particular, a rubric based loosely on breach of confidence might persuade courts to recognize at least limited data privacy rights. I conclude, however, that while the tort solution is preferable to a property rights approach, it is likely to offer only modest protection. Common law remedies are by their nature incremental, and achieving widespread adoption of novel common law causes of action is inevitably a slow process. Even established common law remedies, moreover, are vulnerable to statutory preemption. Although a rash of state tort law decisions protecting data privacy might supply the most compelling impetus to federal regulation we are likely to achieve, the resulting protection scheme is unlikely to satisfy those of us who believe that data privacy is worth protecting.

The justice of Islam : comparative perspectives on Islamic law and society

Abstract: Introduction PART ONE: THE SOCIO-LOGIC OF ISLAMIC LEGAL REASONING 1 Equity and discretion in Islamic law 2 Islamic case-law and the logic of consequence 3 Islamic law as common law: Power, culture, and the reconfiguration of legal taxonomies 4 Responsibility and compensatory justice in Arab culture and law PART TWO: IN AND OUT OF COURT 5 From courtroom to courtyard: Law and custom in popular legal culture 6 On the docket: Changing conventions in a Muslim court, 1965-1995 7 Local justice: A day in an alternative court 8 Who do you trust? Structuring confidence in Arab law and society PART THREE: JUSTICE PAST AND PRESENT 9 Islamic concepts of justice and injustice 10 Muhammad's sociological jurisprudence 11 Private thoughts, public utterances: Law, privacy, and the consequences for community 12 Islam and Islamic culture in the courts of the United States References Index

Quality Standards in the Public Sector: Differences Between Italy and the UK in the Citizen’s Charter initiative

Abstract: Service quality of public services is a major aim of the New Public Management reforms occurring throughout Europe. The Citizen’s Charter initiative, launched by the UK Prime Minister John Major in 1991, has been an example followed in some European countries, including Italy (Carta dei servizi). This paper analyses and evaluates the cultural differences in the usage of the concept of service quality standards between the UK experience and the Italian one, referring particularly to two kinds of public services, very different one from the other: healthcare and electricity supply. The comparative policy analysis leads to a sketch of two different profiles in the usage of quality standards in the public sector: a common law profile, where quality standards are not legal rights but targets to be achieved and improved; and a public law profile, where quality standards tend to be overlapped and confused with legal rights of users. Under the latter framework, standards are likely to be sidestepped because they are perceived more as a problem than as an opportunity to change.

Ethical and Legal Strategies for Protecting Confidential Research Information

Abstract: The paper begins with an outline of some legal and ethical principles regarding research confidentiality that frame researchers' choices, and then reviews the common law on privilege in Canada and the U.S. to show how researchers can design their research to maximise the legal protection of confidential research information. The paper describes various disciplinary ethics codes and the new federal Tri-Council Policy Statement on ethics to illustrate the principles that should be considered in the unlikely event that a Canadian court orders disclosure of confidential information that could harm a research participant. We conclude by proposing that universities and the three granting councils should campaign for statutory protection of research participants along the lines of the confidentiality certificates that are currently available in the United States for research on sensitive topics such as drug use, criminal activities, sexual behaviour, and genetic information.