Showing papers on "Common law published in 2008"

Why Adopt Codes of Good Governance? A Comparison of Institutional and Efficiency Perspectives

Abstract: Manuscript Type: Empirical Research Question/Issue: Given the global diffusion and the relevance of codes of good governance, the aim of this article is to investigate if the main reason behind their proliferation in civil law countries is: (i) the determination to improve the efficiency of the national governance system; or (ii) the will to “legitimize” domestic companies in the global financial market without radically improving the governance practices. Research Findings/Insights: We collected corporate governance codes developed worldwide at the end of 2005, and classified them according to the country's legal system (common or civil law). Then, we made a comparative analysis of the scope, coverage, and strictness of recommendations of the codes. We tested differences between common law and civil law countries using t-tests and probit models. Our findings suggest that the issuance of codes in civil law countries be prompted more by legitimation reasons than by the determination to improve the governance practices of national companies. Theoretical/Academic Implications: The study contributes to enriching our knowledge on the process of reinvention characterizing the diffusion of new practices. Our results are consistent with a symbolic perspective on corporate governance, and support the view that diffusing practices are usually modified or “reinvented” by adopters. Practitioner/Policy Implications: Our results support the idea that the characteristics of the national corporate governance system and law explain the main differences among the coverage of codes. This conclusion indicates the existence of a strong interplay between hard and soft law.

Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts

Abstract: It wasn't so long ago that the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. These courts conformed to a policy of avoiding any application of foreign sources of law that would clash with the position of their domestic governments. But as this Article demonstrates, in recent years courts in several democracies have begun to show a change of heart, often engaging quite seriously in the interpretation and application of international law and heeding the constitutional jurisprudence of other national courts. The Article explains this emerging jurisprudence as part of a reaction to the forces of globalization that are placing increasing pressure on governments, legislatures and courts to conform to global standards. The courts seek to expand the space for domestic deliberation and to strengthen the ability of national governments to withstand the pressure brought to bear by interest groups and powerful foreign governments. For this strategy to succeed, courts need to forge a united judicial front. This entails coordinating their policies with equally positioned courts in other countries, through the common language of international law and comparative constitutional law. The analysis also explains why the U.S. Supreme Court, which so far was not required to protect domestic political process from external pressures, is still not a part of this collective effort. Finally, and based on this insight into the driving force behind reliance on foreign law, the Article asserts that recourse to these sources is perfectly legitimate from a democratic theory perspective, as it aims to reclaim democracy from the debilitating grip of globalization.

Case Law versus Statute Law: An Evolutionary Comparison

Abstract: Case law develops gradually through the rulings of appellate judges who have heterogeneous preferences but are partially bound by stare decisis. We show that its evolution converges toward more efficient and predictable legal rules. Since statutes do not share this evolutionary property, case law is the best system when the efficient rule is time invariant, even if the legislature is more democratically representative than individual judges are. In the presence of social change, the ideal legal system includes both legislation and judicial decisions as complementary sources of law. Our model thus explains the modern history of common law and the observed cross‐country correlation between legal origins and economic outcomes. It also predicts the gradual convergence of civil law and common law toward a mixed system.

In the Shadow of Prison: Families, Imprisonment and Criminal Justice

Abstract: This book provides an up-to-date, accessible introduction to the relationship between families, prisons and penal policies in the United Kingdom. It explores current debates in relation to prisoners and their families, and introduces the reader to relevant theoretical approaches. Interdisciplinary in nature, the book incorporates perspectives drawn from criminology, sociology, social work and law. The book includes: a current exploration of key aspects of the consequences of imprisonment for prisoners and their families an assessment of the role of current prison policies and practices in promoting and maintaining family relationships a summary of the current law in relation to prisoners and their families, with reference to the relevant legislation and recent case law.

Local government reform : a comparative analysis of advanced Anglo-American countries

Abstract: This book considers local government reform in a comparative perspective in advanced Anglo-American countries over the past two decades. The framework for the analysis focuses on the structural, functional, financial, jurisdictional and organizational/managerial pillars of municipal reform in Australia, New Zealand, Britain, Ireland, the United States and Canada. The emphasis on these English-speaking common law democracies, which share a great many characteristics, facilitates an analysis of the essential features of local government reform programs and the common factors driving them.

Shareholder protection around the world ("Leximetric II")

Abstract: This article analyzes how shareholder protection has developed in 20 countries from 1995 to 2005. In contrast to traditional legal research, it draws on a quantitative methodology to law ('leximetrics', 'numerical comparative law'). Some of its results are that in most countries shareholder protection has improved in the last years; that developed countries perform better than developing countries in protecting shareholders; that shareholder protection in common law countries is relatively similar whereas there is no comparable similarity within the German and French civil law families; that German corporate law is 'more mainstream' and US corporate law is 'more eccentric' than the law of the other countries; and that in general there has been convergence in the last decade. In order to explain these results, the distinction between origin and transplant countries can be useful. However, in contrast to previous studies, this does not mean that all depends on the distinction between English, French and German origin and transplant countries. Rather it is decisive (a) which 'version' of the corporate law the transplant country copied, (b) whether transplant countries continue to take developments in the origin countries into account and (c) whether transplant countries have left the path of their (former) origin countries.This paper is part of a wider research project. The related papers can be downloaded at http://ssrn.com/abstract=897479 and http://ssrn.com/abstract=1094355.

The song remains the same: transposition and the disproportionate representation of minority students in special education

Abstract: The disproportionate representation of minority students in special education has long been recognised as a problem in the United States. It is, however, only with the 2004 authorisation of the Individuals with Disabilities Education Improvement Act (IDEA) that Congress has tried to prescribe a remedy for this. Beginning with a deconstruction of the case law, public law and policy interpretations built around IDEA, this paper will first use an understanding of the concept of ‘institutional ablism’ as it has been developed within disability studies, to challenge the widely accepted view of IDEA as civil rights legislation. Drawing on Critical Race Theory, the article will then offer a further deconstruction of IDEA focusing on the IDEA’s attempt to address the disproportionate representation of minority students in special education. The analysis of the law illustrates the use of a mechanism that I will call transposition: the use of the legally accepted segregation of special education to maintain the eff...

The Language of Liberty 1660-1832: Political Discourse and Social Dynamics in the Anglo-American World

Abstract: Introduction: the structure of Anglo-American political discouse 1. Law, Religion and Sovereignty 2. Constitutional Innovations and their English Antecedents 3. The genesis of political discourse 4. Transatlantic ties and their failure 5. The Commonwealth paradigm 6. Denominational discourse 7. The implications of theological conflict 8. Denominational dynamics and political rebellions Part I. The Conflict Between Laws: Sovereignty and State Formation in the Uniter Kingdom and United States: 1. Law, nationality and nationalism: monarchical allegiance and identity 2. The creation of the United Kingdom, 1536-1801: religion and the origins of the common-law doctrine of sovereignty 3. Sovereignty and political theory from Justinian to the English jurists 4. Natural law versus common law: the polarisation of a common idiom 5. Sovereignty, dissent, and the American rejection of the British state 6. Sovereignty and the New Republic: the American constitution in transatlantic perspective Part II. The Conflict Between Denominations: The Religious Identity of Early Modern Societies: 1. Before redefinition: politics and religion in the old society 2. Anglicanism as an agency of state formation: the question of establishment 3. Canon law, heterodoxy and the American perception of tyranny 4. The Anglican ascendancy as the hegemony of discourse 5. The Anglican dream: harmony and conflict in the English parish 6. The Anglican nightmare: sectarian diversity in colonial America Part III. Predispositions: Rebellion and its Social Constituencies in the English Atlantic Empire, 1660-1800: 1. Rebellions and their analysis in the Anglo-American tradition 2. Covenanters, Presbyterians and Whigs: resistance to the Stuarts in England and Scotland, 1660-1689 3. Colonial American rebellions, 1660-1689, and transatlantic discourse 4. The rights of Englishmen, the rhetoric of slavery, and rebellions in Britain and America, 1689-1760 5. The right of resistance and its sectarian preconditions in north America, 1760-1799 6. The rhetoric of resistance and its social constituencies in England and Ireland, 1733-1828: some transatlantic analogies 7. Denominations, social constituencies and their activation Part IV. Political Mobilisation: The American Revolution as a War of Religion: 1. The American Revolution as a civil war 2. Predispositions, accelerators and catalysts: the role of theology 3. Heterodox and orthodox in the Church of England 4. The divisions and disruptions of English dissent 5. Heterodoxy and rebellion in colonial America, 1760-1776 Conclusion: 'Desolating Devastation': The Origins of Anglo-American Divergence.

Fiduciary Duties for Activist Shareholders

Abstract: Corporate law and scholarship generally assume that public corporations are controlled by professional managers, while shareholders play only a weak and passive role. As a result, corporate officers and directors are understood to be subject to extensive fiduciary duties, while shareholders traditionally have been thought to have far more limited obligations. Outside the contexts of controlling shareholders and closely-held firms, many experts argue shareholders have no duties at all. The most important trend in corporate governance today, however, is the move toward shareholder democracy. Changes in financial markets, in business practice, and in corporate law have given minority shareholders in public companies greater power than they have ever enjoyed before. Activist investors, especially rapidly-growing hedge funds, are using this new power to pressure managers into pursuing corporate transactions ranging from share repurchases, to special dividends, to the sale of assets or even the entire firm. In many cases these transactions uniquely benefit the activist while failing to benefit, or even harming, the firm and other shareholders. This article argues that greater shareholder power should be coupled with greater shareholder responsibility. In particular, it argues that the rules of fiduciary duty traditionally applied to officers and directors and, more rarely, to controlling shareholders, should be applied to activist minority investors as well. This proposal may seem a radical expansion of fiduciary doctrine. Nevertheless, the foundations of an expanded shareholder duty have been laid in existing case law. Moreover, there is no reason to believe that newly-empowered activist shareholders are immune to the forces of greed and self-interest widely understood to tempt corporate officers and directors. Corporate law can, and should, adapt to this reality.

Public Use in a Post-Kelo World

Abstract: The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area Historically, this opportunity was lost when the United States Supreme Court in Berman v Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections

The Surprising Virtues of Treating Trade Secrets as IP Rights

Abstract: Trade secret law is a puzzle. Courts and scholars have struggled for over a century to figure out why we protect trade secrets. The puzzle is not in understanding what trade secret law covers; there seems to be widespread agreement on the basic contours of the law. Nor is the problem that people object to the effects of the law. Rather, the puzzle is a theoretical one: no one can seem to agree where trade secret law comes from or how to fit it into the broader framework of legal doctrine. Courts, lawyers, scholars, and treatise writers argue over whether trade secrets are a creature of contract, of tort, of property, or even of criminal law. None of these different justifications have proven entirely persuasive. Worse, they have contributed to inconsistent treatment of the basic elements of a trade secret cause of action, and uncertainty as to the relationship between trade secret laws and other causes of action. Robert Bone has gone so far as to suggest that this theoretical incoherence suggests that there is no need for trade secret law as a separate doctrine at all.In this article, I suggest that trade secrets can be justified as a form, not of traditional property, but of intellectual property (IP). The incentive justification for encouraging new inventions is straightforward. Granting legal protection for those new inventions not only encourages their creation, but enables an inventor to sell her idea. And while we have other laws that encourage inventions, notably patent law, trade secrecy offers some significant advantages for inventors over patent protection. It seems odd, though, for the law to encourage secrets, or to encourage only those inventions that are kept secret. I argue that, paradoxically, trade secret law is actually designed to encourage disclosure, not secrecy. Without legal protection, companies in certain industries would invest too much in keeping secrets. Trade secret law develops as a substitute for the physical and contractual restrictions those companies would otherwise impose in an effort to prevent a competitor from acquiring their information. The puzzle then becomes why the law would require secrecy as an element of the cause of action if its goal is to reduce secrecy. I argue that the secrecy requirement serves a channeling function. Only the developers of some kinds of inventions have the option to over-invest in physical secrecy in the absence of legal protection. For products that are inherently self-disclosing (the wheel, say, or the paper clip), trying to keep the idea secret is a lost cause. We don't need trade secret law to encourage disclosure of inherently self-disclosing products - inventors of such products will get patent protection or nothing. But if trade secret law prevented the use of ideas whether or not they were secret, the result would be less, not more, diffusion of valuable information. The secrecy requirement therefore serves a gatekeeper function, ensuring that the law encourages disclosure of information that would otherwise be kept secret, while channeling inventors of self-disclosing products to the patent system. My argument has a number of implications for trade secret policy. First, the theory works only if we treat trade secrets as an IP right, requiring proof of secrecy as an element of protection. If we give the protection to things that are public, we defeat the purpose and give windfalls to people who may not be inventors (what we might call "trade secret trolls"). Courts that think of trade secret law as a common law tort rather than an IP right are apt to overlook the secrecy requirement in their zeal to reach "bad actors." Second, an IP theory of trade secrets also encourages preemption of "unjust enrichment" theories and other common-law ways courts are tempted to give private parties legal control over information in the public domain. Thus, an IP theory of trade secrets is in part a "negative" one: the value of trade secret law lies in part in defining the boundaries of the cause of action and preempting others that might reach too far. Finally, treating trade secrets as IP rights helps secure their place in the pantheon of legal protection for inventions. The traditional conception of the tradeoff between patents and trade secrets views the disclosure function of the patent system as one of its great advantages over trade secret law. And indeed the law operates in various ways to encourage inventors to choose patent over trade secret protection where both are possible. But for certain types of inventions we may actually get more useful "disclosure" at less cost from trade secret than from patent law.

United Kingdom of Great Britain and Northern Ireland

Abstract: The Constitution of the United Kingdom is no single written document but consists mainly of customary law, statutes with a “constitutional” character and common law, that is case law. There is no technical difference between ordinary statutes and law considered “Constitutional Law”. The United Kingdom is a unitary state which is divided into the four constituent countries of England, Scotland, Wales, and Northern Ireland. The Government of Wales Act of 31 July 1998, the Scotland Act of 19 November 1998 and the Northern Ireland Act of 19 November 1998 conferred a certain regional autonomy upon the three countries. Each now has its own Parliament and executive. Gibraltar has the status of a Crown Colony of the United Kingdom. Each is further subdivided for the purposes of local government. The United Kingdom is a Constitutional Monarchy with a parliamentary form of government. Parliament consists of an upper house, the House of Lords, and a lower house, the House of Commons. The House of Commons has 646 deputies who are elected by the people on the basis of a majority vote. The House of Lords consists of 731 members with the majority being Life Peers. The Head of State is the Monarch who is to give royal assent to every bill passed by the two houses. The Monarch appoints the Prime Minister who is the leader of the largest party in the House of Commons. The Prime Minister then chooses a cabinet.

Demystifying Legal Reasoning

Abstract: Part I. Law and its Function: 1. Moral controversy Part II. Common Law Reasoning: Deciding Cases When Prior Judicial Decisions Determine the Law: 2. Ordinary reason applied to law: natural reasoning and deduction from rules 3. The mystification of common-law reasoning 4. Common law practice Part III. Reasoning from Canonical Legal Text: 5. Interpreting statutes and other posited rules 6. Infelicities of the intended meaning of canonical texts and norms constraining interpretation 7. Non-intentionalist interpretation 8. Is constitutional interpretation different? Why it isn't and is 9. All or nothing.

Best interests, patient participation and the mental capacity act 2005

Abstract: This is a pre-copy-editing, author-produced PDF of an article accepted for publication in Medical Law Review following peer review. This article analyses the best interests standard as applied in the context of healthcare decisions in light of the participative elements introduced by the Mental Capacity Act (EW). It begins with a brief consideration of the best interests standard as it developed at common law. The article shows that, while the courts gradually developed a more systematic approach to best interests, judges remained largely resistant to facilitating participation by patients lacking capacity. The article examines the changes brought about by the MCA in this regard. It explores the policy basis for this aspect of the MCA and shows why the participative model represents the most appropriate response to decision-making for people lacking mental capacity. The article argues that notwithstanding the attractions of the MCA’s participative framework from a policy perspective, this approach to best interests gives rise to important practical and conceptual questions, which the article then explores. The article examines the difficulties in delivering genuine participation at a practical level and identifies the risk that patient participation will become a tokenistic endeavour.

Respect for private and family life under article 8 echr in immigration cases: a human right to regularize illegal stay?

Abstract: Applying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

Dimensions of forensic linguistics

Abstract: 1. Introduction (by Gibbons, John) 2. Part I. The language of the law 3. The nature of legal language (by Tiersma, Peter) 4. Language education for law professionals (by Northcott, Jill) 5. The language and communication of jury instruction (by Heffer, Chris) 6. Policespeak (by Hall, Phil) 7. Legal translation (by Alcaraz Varo, Enrique) 8. Part II. The language of the court 9. Questioning in common law criminal courts (by Gibbons, John) 10. Bilingual courtrooms: In the interests of justice? (by Powell, Richard) 11. The silent witness: Pragmatic and literal interpretations (by Kurzon, Dennis) 12. Language and disadvantage before the law (by Eades, Diana) 13. Interpreting for the minority (by Leung, Ester) 14. Part III. Forensic linguistic evidence 15. Approaching questions in forensic authorship analysis (by Grant, Tim) 16. Trademarks and other proprietary terms (by Butters, Ronald R.) 17. Deception and fraud (by Eggington, William) 18. Plagiarism (by Turell, M. Teresa) 19. Contributors 20. Language index 21. Subject index

Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

Abstract: This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court's recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women's dignity if protection is based on stereotypical assumptions about women's capacities and women's roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.

The Evolution of a Legal Rule

Abstract: The efficiency of common law rules is central to achieving efficient resource allocation in a market economy. While many theories suggest reasons why judge-made law should tend toward efficient rules, the question whether the common law actually does converge in commercial areas has remained empirically untested. We create a dataset of 465 state-court appellate decisions involving the application of the Economic Loss Rule in construction disputes and track the evolution of law in this area from 1970 to 2005. We find that over this period the law did not converge to any stable resting point and evolved differently in different states. We find that legal evolution is influenced by plaintiffs' claims, the relative economic power of the parties, and nonbinding federal precedent.

Fear of Freedom

Abstract: The Supreme Court, in a highly-anticipated decision, has recently held that the FAA's statutory grounds for vacatur of awards may not be supplemented by contract. So the illicit character of contractual provisions purporting to expand judicial review of arbitral awards is firmly established. However, even to phrase the issue in Hall Street in terms of extended judicial review is already tendentious: For it is not even necessary to characterize in that way an agreement to subject arbitral conclusions of law to a court's second look; alternative characterizations are available which make the contractual arrangement attempted by the parties in that case quite unproblematical. In addition, the familiar, century-old assertion to the effect that expanded review would be a perversion of the goals of arbitration - contrary to its ethos, given that finality is its indispensable characteristic - although trotted out once again in Justice Souter's opinion for the Court - seems perfectly beside the point. What is truly appalling about Hall Street, however, is not so much the unfortunate result, but rather the grotesque deficiencies in craftsmanship, in rhetoric, in argument. Most of the Court's opinion dwells on the textual features of the FAA that are supposedly at odds with enforcement of the contractual provision: This forces us to confront directly the question of how one ought to go about reading a statute - and how not to. As to that question, the Hall Street opinion must represent a new low in context-free, policy-free, abstract, non-functional decision-making. Finally, I consider briefly three questions that the holding seems to pose for the future: (a) What remains of manifest disregard and other supposedly non statutory grounds for the vacatur of awards? (b) What ways out are there in future cases? What, for example, are we to make of Justice Souter's suggestion that the Court's holding need not exclude more searching review based on authority outside the statute - for example, enforcement under state statutory or common law? (c) No matter how unsatisfactory the opinion, what factors might explain this decision? In particular, how can one account for the fact that the largest providers of arbitration services should have lined up so strongly on the defendant's side in Hall Street? Surely this is paradoxical, as one would have thought that the arbitration establishment is made up precisely of those least likely to remain fettered to the historically contingent, modal form of the arbitration process - most likely by contrast to have internalized all the vaunted advantages of tailoring the arbitration mechanism to individual needs.

Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals

Abstract: One of the most fundamental defenses to a criminal prosecution is that of nullum crimen sine lege, nulla poena sine lege ("no crime without law, no punishment without law") (NCSL). Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, international criminal law (ICL) fails to fully implement this principle. The absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field with the innovations employed by the architects of the Nuremberg and Tokyo Tribunals. In the face of NCSL defenses, the judges of the Nuremberg Tribunal, in reasoning that was to be later echoed by their brethren on the Tokyo Tribunal, rejected the defense through a complex interplay of arguments about immorality, illegality, and criminality. These core arguments have been adapted to the modern ICL jurisprudence. Where states failed to enact comprehensive ICL in the postwar period, ICL judges have engaged in a full-scale - if unacknowledged - refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary rules, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement. A taxonomy of these analytical claims reveals the varied ways that today?s ICL defendants have been made subject to new or expanded criminal law rules. Collectively, these cases have the potential to raise acute concerns about whether the rights of defendants are adequately protected in ICL. This, in turn, raises important questions about the legitimacy of ICL as a field of criminal law. This Article argues that the methodology developed by the European Court of Human Rights to enforce the articulation of the NCSL principle in its constitutive document (the European Convention for the Protection of Human Rights and Fundamental Freedoms) suggests that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Rather, even where new standards have been applied to past conduct, these cases have not infringed the higher order principles underlying the NCSL prohibition.Today's defendants were on sufficient notice of the foreseeability of ICL jurisprudential innovations in light of extant domestic penal law, universal moral values expressed in international human rights law, developments in international humanitarian law and the circumstances in which it has been invoked, and other dramatic changes to the international order and to international law brought about in the postwar period. As a prescriptive contribution, this Article argues that any lingering concerns about the rights of the defendants can and should be mitigated by sentencing practices - to a certain extent already in place and employed by the ad hoc criminal tribunals - that are closely tethered to extant domestic sentencing rules governing analogous domestic crimes.Although focused on the NCSL jurisprudence, this Article also presents a model of ICL formation and evolution that finds resonance in the origins and gradual demise of the common law crime in the United States and elsewhere. Common law crimes provided much of the substantive content for the nascent Anglo-American criminal justice system until they were gradually supplanted by legislative efforts. So too in ICL; common law international crimes have been crucial to building the infrastructure of a truly international criminal justice system. As in the domestic historical narrative, international crimes are increasingly finding expression in more positivistic sources of law, thus obviating the need for, and diminishing the discretion of, international judges to make law in the face of gaps or deficiencies. Collectively, the NCSL cases thus provide insight into the dynamics of ICL argumentation, the interpretive attitudes of ICL judges, and an emerging philosophy of the nature of ICL.

State policy as an element of international crimes

Abstract: Recent case law of the international criminal tribunals has tended to focus oil the individual mental element of offenders, anti dismissed any relevance for State policy as a component of the analysis. It is posited that tin individual deviant, acting alone, can commit genocide or crimes against humanity, to the extent that he or she aspires to destroy all ethnic group or to persecute civilians in a widespread or systematic manner. This has led to a distortion in the law, partially explained by a focus on low-level perpetrators in early trials of the International Criminal Tribunal for the former Yugoslavia, but also by mistaken analysis of previous authority. This Article argues for revival of state policy as an element of such crimes.

Study on the Structure of Argumentation in Case Law

Abstract: This paper investigates natural-language argumentation in the case law domain. The starting point is a study on the discoursive and argumentative characteristiques of ten legal documents from the European Court of Human Rights (ECHR). Then, a generalization of this study allows to formalize the structure of argumentation in the ECHR documents as a context-free grammar. The paper concludes with the evaluation of the grammar and a discussion of its main limitations.

Principles of French Law

Abstract: Introduction: The Spirit of French Law PART I: THE SYSTEM 1. Sources of Law 2. Court Institutions 3. People Administering Justice PART II: THE LAW 4. Legal Procedure 5. Constitutional Law 6. Administrative Law 7. Criminal Law 8. Family Law 9. The Law of Property 10. The Law of Obligations 11. Commercial Law 12. Employment Law PART III: STUDYING FRENCH LAW 13. Bibliographical Guide and Legal Methods Appendix: Bibliographical Sources and Legal Methods

Introduction to Roman Law

Abstract: The development of Roman law over centuries and its adoption in the jurisprudence of the United Kingdom and its colonies are described. Elements of Roman law are being used in situations where Anglo-Norman jurisprudence is found inadequate.

Legal Origin, Juridical Form and Industrialisation in Historical Perspective: The Case of the Employment Contract and the Joint-Stock Company

Abstract: The timing and nature of industrialization in Britain and continental Europe had significant consequences for the growth and development of labour market institutions, effects which are still felt today and which are visible in the conceptual structure of labour law and company law in different countries. However, contrary to the claims of the legal origin hypothesis, a liberal model of contract was more influential in the civilian systems of the continent than in the English common law, where the consequences of early industrialization included the lingering influence of master-servant legislation and the weak institutionalization of the juridical form of the contract of employment. Claims for a strong-form legal origin effect, which is time invariant and resistant to pressures for legal convergence, are not borne out by a growing body of historical evidence and time-series data. The idea that legal cultures can influence the long-run path of economic development is worthy of closer empirical investigation, but it is premature to use legal origin theory as a basis for policy initiatives.

Law, Finance, and Politics: The Case of India

Abstract: The process of liberalization of India's economy since 1991 has brought with it considerable development both of its financial markets and the legal institutions which support these. An influential body of recent economic work asserts that a country's 'legal origin' - as a civilian or common law jurisdiction - plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. There is a complementarity between (i) India's relative success in services and software, (ii) the relative strength of its financial markets for outside equity, as opposed to outside debt, and (iii) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political explanations have more traction in explaining the case of India than do theories based on 'legal origins'.

General Principles of Law in the Decisions of International Criminal Courts and Tribunals

Abstract: Preface Abbreviations Arbitral Awards and Judicial Decisions Chapter 1: Introduction Chapter 2: General Principles of Law: A Source of International Law 2.1. Preliminary Remarks 2.2. Early International Arbitral Tribunals 2.2.1. The Formulation of Applicable Law 2.2.2. Five Examples from before the Adoption of the PCIJ Statute 2.2.3. A Brief Analysis of International Practice 2.3. The PCIJ and the ICJ 2.3.1. The Adoption of the PCIJ Statute 2.3.2. The Scope of Article 38 2.3.3. How to Find General Principles of Law in the Judgments and Advisory Opinions of the PCIJ and the ICJ 2.3.4. Eight Judgments and Advisory Opinions 2.3.5. An Analysis of the Judgments and Advisory Opinions 2.4. The Autonomy of General Principles of Law as a Source of International Law 2.4.1. Scholarly Views on General Principles as a Formal Source of International Law 2.4.2. General Principles as a Formal and Material Source of International Law 2.4.3. A Subtle Difference between General Principles of Law and General Principles of International Law 2.5. The Subsidiary Nature of General Principles of Law 2.6. The Determination of General Principles of Law 2.6.1. The 'Vertical Move' 2.6.2. The 'Horizontal Move' 2.6.3. The Absence of Comparative Legal Research in PCIJ and ICJ Practice 2.7. The Transposition of General Principles of Law 2.7.1. Application by Analogy 2.7.2. Traditional Arguments against Transposition 2.7.3. The 'Special Character' of International Law 2.7.4. Structural Differences between International Law and National Legal Systems 2.7.5. Transposition to New Branches of International Law 2.8. Concluding Remarks Chapter 3: General Principles of Law in the Decisions of International Criminal Courts and Tribunals 3.1. Preliminary Remarks 3.2. Early International Criminal Tribunals 3.2.1. The IMT 3.2.2. The IMTFE 3.3. Contemporary International Criminal Courts and Tribunals 3.3.1. The ICTY 3.3.2. The ICTR 3.3.3. The ICC 3.3.4. The SCSL Chapter 4: Analysis of Practice and of Relevant Scholarly Writing 4.1. The Autonomy of General Principles of Law as a Source of International Criminal Law 4.1.1. General Principles of Law as a Formal Source of International Criminal Law 4.1.2. General Principles of Law as a Formal and Material Source of International Criminal Law 4.1.3. A Difference between Three Sets of Legal Principles? 4.2. A Subsidiary Source of International Criminal Law? 4.3. The Determination of General Principles of Law 4.3.1. Recourse to Judicial Decisions and Scholarly Writing 4.3.2. The 'Vertical Move' 4.3.3. The 'Horizontal Move' 4.3.4. Last Observations on the Issue of Determination 4.4. The Transposition of General Principles of Law 4.4.1. Substantive and Procedural Criminal Law Analogies 4.4.2. The Problems of Transposition 4.5. Concluding Remarks Chapter 5: Conclusions Bibliography Index

Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence

Abstract: The best interests of the child doctrine is at once the most heralded, derided and relied upon standard in family law today. It is heralded because it espouses the best and highest standard; it is derided because it is necessarily subjective; and it is relied upon because there is nothing better. And in every case, a judge must decide what is “best” for any child at any time under any particular circumstance. This standard, so central to family law, is of critical importance, yet surrounded by a muddled legal haze of judicial confusion over just how to determine what “the best” really is. Discerning the roots of the legal standard applied to children in literally every early American case, this article thoroughly analyzes the English roots of common law and case law which established legal principle in family sovereignty. Impressions of judicial review of the standard begs for assistance in the proper use of judicial discretion in cases involving children, yielding a more appropriate analysis of the most suitable application of the best interests standard. The article demonstrates that the best interest of the child doctrine is as old as the American colonies and can be traced to America’s earliest case law foundations, concluding that though scattered in and out of English law, the best interests of the child doctrine is uniquely American in its development. This strong base has in turn caused a near global adoption of the concept. The doctrine, however it may be derided or heralded, is the American legacy America to global family law. The article argues, nonetheless, that the application of this standard has turned toward near pure judicial discretion in contemporary judging causing litigators and advocates to have no rule of law to rely upon. While setting out the basis for the doctrine, this article calls for a rebuilding of the legal foundations of the best interests of the child standard not only in America and in western tradition, but worldwide.