Showing papers on "Common law published in 2013"

The Right to Privacy

Abstract: hat the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -intangible, as well as tangible.

Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law

Abstract: The concept of vulnerable groups is gaining momentum in the case law of the European Court of Human Rights. The Court has so far used it in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. Yet the appearance of the vulnerable-group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability as well as on the Court’s case law, this article offers a critical assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

The Law and Policy of the World Trade Organization

Abstract: Retaining the signature clarity and depth that made it an instant classic, this new fourth edition of The Law and Policy of the World Trade Organization examines both the institutional and substantive law of the World Trade Organization (WTO). Fully updated to incorporate all new developments in the WTO's body of case law, this market-leading text offers readers a clear introduction to the basic principles of the multilateral trading system and a detailed examination of the law of the WTO. With integrated questions and assignments which allow readers to easily assess and reinforce their understanding and develop their analytical skills, The Law and Policy of the World Trade Organization is essential reading for all WTO law students and practitioners. Suitable for postgraduate and advanced undergraduate students, this classic text is also the ideal resource for practitioners, diplomats and policymakers looking for an introduction to the law of the WTO.

The FTC and the New Common Law of Privacy

Abstract: One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States — more so than nearly any privacy statute or any common law tort. In this Article, we contend that the FTC’s privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company’s privacy representations.

The Legal Authority of Mature Minors to Consent to General Medical Treatment

Abstract: The nature and scope of mature adolescents’ legal authority to consent to general medical treatment without parental involvement is often misrepresented by commentators. This state of affairs is further complicated by the law itself, which has developed a broad “mature minor exception” to the general requirement of parental consent in abortion cases and which has additionally carved out numerous specific status-based and condition-based exceptions to that requirement. In these circumstances, it is not always a simple matter for physicians and other medical professionals who treat adolescents to ascertain the applicable law. In this article, we discuss the underlying differences between medical ethics and law, which have caused some of the confusion in this area, and we set out the most current legal rules governing adolescent decision-making authority in general medical settings. A comprehensive analysis of both statutory and common law demonstrates that in such settings, parental consent continues to be required by most jurisdictions, even when the minor can be considered cognitively “mature.”

Original Sin: A Cross-National Study of the Legality of Homosexual Acts

Abstract: This article examines the legality of homosexual acts quantitatively in a cross-national perspective with a large sample of countries from 1972 to 2002. Employing path dependence as its theoretical...

Commonality Among Unique Indigenous Communities: An Introduction to Climate Change and Its Impacts on Indigenous Peoples

Abstract: This article is part of a special issue of the Tulane Environmental Law Journal exploring how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gas emissions to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples. In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This special issue as well as this article recognize that indigenous peoples are particularly vulnerable to climate change, both physically and legally, and addresses the challenges that these communities face in responding to climate change impacts. Although indigenous communities throughout the world differ, Part II of this article addresses some of the commonalities generally found among indigenous peoples in greater depth. Part III of this article addresses three of these legal responses being utilized by indigenous communities: (1) law suits based on procedural rights, (2) law suits based on common law legal principles, and (3) law suits based on public international law.

‘If you can't beat me, join me!’ How the Commission pushed and pulled member states into legislating defence procurement

Abstract: The smooth adoption of the European Union (EU) defence procurement directive in 2009 is puzzling, because member states had fiercely opposed legislation for the sensitive defence-industrial sector before. We argue that the Commission's strategic usage of judicial politics changed member states' opportunity structure and, by this, transformed a blocking majority of member states into legislative consensus. As it drew on new case law, the Commission pushed member states and threatened to leave the regulation of defence procurement uncontrolled to the European Court of Justice (ECJ). In parallel, it promised member states to restore legal certainty and political control if they would approve EU legislation on defence procurement. Following a process-tracing logic, we compare the failed Commission initiatives until 2005 with the adoption of the directive in 2009. Finally, the available evidence is checked against alternative explanations.

Legal Orientalism: China, the United States, and Modern Law

Abstract: Since the Cold War ended, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world's chief exporter of the rule of law. How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law's universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of "legal Orientalism": a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its "failure" to develop capitalism on its own? Ruskola shows how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day. The first Sino-U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish-American War in 1898, and found its fullest expression in an American district court's jurisdiction over the "District of China. " With urgent contemporary implications, legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.

Domestic legal traditions and states’ human rights practices

Abstract: Empirical analyses of domestic legal traditions in the social science literature demonstrate that common law states have better economic freedoms, stronger investor protection, more developed capital markets, and better property rights protection than states with civil law, Islamic law, or mixed legal traditions. This article expands upon the literature by examining the relationship between domestic legal traditions and human rights practices. The primary hypothesis is that common law states have better human rights practices on average than civil law, Islamic law, or mixed law states because the procedural features of common law such as the adversarial trial system, the reliance on oral argumentation, and stare decisis result in greater judicial independence and protection of individual rights in these legal systems. We also examine how the quality of a state’s legal system influences repression focusing on colonial legacy, judicial independence, and the rule of law. A global cross-national analysis of s...

The Sovereignty of Law: Freedom, Constitution and Common Law

Abstract: Introduction 1: Constitution and Constitutionalism 2: Constitutional Convention: Practice and Principle 3: The Rule of Law: Freedom, Law and Justice 4: Parliamentary Sovereignty: Authority and Autonomy 5: Legislative Supremacy and the Rule of Law 6: Constitutional Foundations of Judicial Review 7: Judicial Review and Judicial Restraint 8: Democracy, Fundamental Rights and Common Law Appendix: Public Law and Political Theory

The Structure and Organization of EU Law in the Field of Direct Taxes

Abstract: Since 30 years, European rules have significantly impacted national taxes on the income and property of individuals and businesses. However, not legislation adopted in Brussels, but the decisions of the European Court of Justice at times reduce the national budgets of the 27 EU Member States by several billions of Euros. This dissertation analyses, using network science, the system of rules that the Court has developed. Although some regard this form of European control as an undemocratic attack on national sovereignty, this research finds that the Court consistently recognises the legitimate right of Member States to levy taxes in their national territory.

Questioning credible commitment : perspectives on the rise of financial capitalism

Abstract: 1. Introduction D'Maris Coffman and Larry Neal 2. Could the crown credibly commit to respecting its charters? England, 1558-1640 Ron Harris 3. Contingent commitment: the development of English marine insurance in the context of New Institutional Economics, 1577-1720 Adrian Leonard 4. Credibility, transparency, accountability and the public credit under the Long Parliament and Commonwealth, 1643-53 D'Maris Coffman 5. Jurisdictional controversy and the credibility of common law Julia Rudolph 6. The importance of not defaulting: the significance of the election of 1710 James Macdonald 7. Financing and refinancing the War of the Spanish Succession, then refinancing the South Sea Company Ann M. Carlos, Erin K. Fletcher, Larry Neal and Kirsten Wandschneider 8. Sovereign debts, political structure, and institutional commitments in Italy, 1350-1700 Luciano Pezzolo 9. Bounded leviathan: fiscal constraints and financial development in the Early Modern Hispanic world Alejandra Irigoin and Regina Grafe 10. Court capitalism, illicit markets, and political legitimacy in eighteenth century France: the example of the salt and tobacco monopolies Michael Kwass 11. Institutions, deficits, and wars: the determinants of British government borrowing costs from the end of the seventeenth century to 1850 Nathan Sussman and Yishay Yafeh Index.

Indian legal system and mental health.

Abstract: Although there was a rich tradition of legal system in Ancient India, the present judicial system of the country derives largely from the British system and is based on English Common Law, a system of law based on recorded judicial precedents. Earlier legislations in respect of mental health were primarily concerned with custodial aspects of persons with mental illness and protection of the society. Indian laws are also concerned with determination of competency, diminished responsibility and/or welfare of the society. United Nations Convention for Rights of Persons with Disabilities (UNCRPD) was adopted in 2006, which marks a paradigm shift in respect of disabilities (including disability due to mental illness) from a social welfare concern to a human right issue. The new paradigm is based on presumption of legal capacity, equality and dignity. Following ratification of the convention by India in 2008, it became obligatory to revise all the disability laws to bring them in harmony with the UNCRPD. Therefore, the Mental Health Act - 1987 and Persons with Disability Act - 1995 are under process of revision and draft bills have been prepared. Human right activists groups are pressing for provisions for legal capacity for persons with mental illness in absolute terms, whereas the psychiatrists are in favor of retaining provisions for involuntary hospitalization in special circumstances.

How to Improve the Necessity Test of the European Court of Human Rights

Abstract: According to the case law of the European Court of Human Rights, interferences with rights protected by the European Convention on Human Rights can only be accepted if there is a proportionate relationship between the interference and its legitimate objectives, that is, if they are “necessary in a democratic society.” The Court has given shape to this test by developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons. However, these standards appear to be rather vague, and the Court’s case law on the test of “necessity” lacks transparence. For that reason, this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law. The article focuses on the use the Court might make of two particular elements of this test, that is, the test of suitability and the least-restrictive-means test. If applied correctly, the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning.

The Differences That Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation Under Article 14 of the European Convention on Human Rights (ECHR)

Abstract: Recent case law bears witness to a significantly increased attention to the discrimination grounds under Article 14 ECHR. This article suggests that an emerging trend that focuses on discrimination grounds related to persistent forms of stereotyping, prejudice and stigma, which results in social marginalisation, should be conceptualised under the heading of a ‘social-contextual approach’ to Article 14. It argues that this is a welcome development as it makes aspects of the substantive moral content of Article 14 more explicit than before and contributes to clarity and consistency in the case law. At the other end of the spectrum the case law seems to be preparing to take a more restrictive approach than before by excluding some discrimination grounds from the scope of protection of Article 14 altogether. It is suggested that this is unnecessary and ill-founded from the perspective of textual interpretation and consistency. It is also argued that if this line of development were allowed to continue, it would significantly lower the level of protection offered from the perspectives of formal and substantive equality alike.

Autism Spectrum Disorder: Forensic Issues and Challenges for Mental Health Professionals and Courts.

Abstract: Autism spectrum disorder (ASD), as defined in DSM-V, can be relevant in a variety of ways to decision-making by courts and tribunals. This includes the family, disciplinary, discrimination and criminal law contexts. By reviewing decisions made by superior courts in a number of common law jurisdictions, this article identifies a pivotal role for mental health professionals closely familiar with both the disorder and forensic exigencies to educate courts about the inner world of those with ASD. Highlighting areas of criminality that court decisions have dealt with, especially in relation to persons with Asperger's Disorder, as defined by DSM-IV, it calls for further research on the connection between ASD, on the one hand, and conduct, capacities and skills, on the other hand. It urges enhancement of awareness of the forensic repercussions of the disorder so that expert evidence can assist the courts more humanely and informedly to make criminal justice and other decisions.

Coherence in EU External Relations: Concepts and Legal Rooting of an Ambiguous Term

Abstract: Coherence has become the buzzword in EU studies. However, what exactly is policy coherence and how is it advanced by EU law? This article attempts to bridge the political science and legal debate on this ambiguous term. First, it critically analyses notions on coherence and consistency to find common ground in the seemingly confusing academic debate. On this basis, this article subsequently enquires into the promotion of these different notions by EU law. The focus is on the EU's external relations; arguably the most salient area for policy coherence in EU governance. The article argues that the theoretical debate sometimes lacks cross-fertilization and that conceptual fuzziness persists. The conceptual groundwork allows for analysing how primary law, and especially its interpretation by the Court, advances consistency and coherence in different ways. Albeit also marked by underdeveloped conceptual clarity, the Court's case law shows that several duties in EU law reinforce consistency and coherence in EU external relations.

The Regulation of International Trade: 4th Edition

Abstract: Drawing on a wide variety of classic and contemporary sources, respected authors Trebilcock, Howse and Eliason here provide a critical analysis of the institutions and agreements that have shaped international trade rules. In light of the growing debate over globalization, they include special sections with examinations of topics such as: agriculture services and Trade-Related Intellectual Property Rights labour rights the environment migration competition. Drawing on previous highly praised editions, this comprehensive text is an invaluable guide to students of economics, law, politics and international relations. Now fully updated, this fourth edition includes full coverage of new developments including the Doha trade round, the proliferation of Preferential Trade Agreements, the debate on trade, climate change and green energy, the response of the trading system to the 2007--10 financial and economic crisis, the controversy over trade and exchange rate manipulation, and the growing body of WTO dispute resolution case law.

Limiting Leviathan: Hobbes on Law and International Affairs

Abstract: Acknowledgments Introduction 1. Law, Morality, and Prudence 2. Social Contract 3. Equity and Justice 4. Concept of Law 5. Fidelity to Law 6. Sovereignty and Artificial Reason 7. Authorization, Joint Action, and Representation 8. Crimes and the International Order 9. Rules of War 10. The Attitude of Pacifism Concluding Thoughts Bibliography

Irish Divorce and Domestic Violence, 1857–1922

Abstract: Ireland was excluded from the Divorce and Matrimonial Causes Act of 1857, which moved divorce proceedings from parliament to court. Whilst other areas of the Empire were encouraged to follow the 1857 reform, Ireland retained the costlier, lengthier and more socially and gender biased parliamentary process. Louisa Westropp's divorce of 1886 was the first divorce granted by Westminster to an Irishwoman and established legal precedent in applying case law, initially concerning domestic violence, derived in the divorce court to parliament. The result was an increase in Irish parliamentary divorce petitions, particularly from women, who utilised an augmenting definition of marital cruelty to secure a permanent release from spousal abuse.

The Law of EU External Relations: Cases, Materials, and Commentary on the EU as an International Legal Actor

Abstract: The two years since publication of the first edition of The Law of EU External Relations: Cases, Materials, and Commentary on the EU as an International Actor have been characterized by the large amount of case law on the new provisions on external relations, which have found their way into the Lisbon Treaty. Moreover, there have been important changes in EU secondary law on external relations as a consequence of these changes to the Lisbon Treaty. In this second edition, new case law and legislative developments are critically discussed and analysed in this comprehensive collection of EU Treaty law. Combining chapters on the general basis of the Union's external action and its relation to international law, with chapters which further explore the law and practice of the EU in the specialized fields of external action, this book presents the law of EU external relations in a concise and accessible manner for students, practitioners, and academics in the field. Topics include the common commercial policy, development cooperation, cooperation with third countries, humanitarian aid, the enlargement and neighbourhood policies, the external environmental policy, and the common foreign and security policy. Carefully selected primary documents are accompanied with analytic commentary on the issues they raise and their significance for the overall structure of EU external relations law. The primary materials selected include many important legal documents that are hard to find elsewhere but give a vital insight into the operation of EU external relations law in practice.

Law and Fair Work in China

Abstract: 1. Introduction 2. Chinese fair work law from 1912 to 1978: creation and destruction 3. A second start: the re-creation of labour market and legal institutions from 1978 to 1994 4. The Labour Law of 1994: structuring modern Chinese work regulation 5. After the Labour Law: crisis and regulatory responses from 1994 to 2007 6. The Labour Contract Law of 2007: reforming contract to protect work standards? 7. Making reform work? Dispute resolution, labour inspection and firm behaviour since 2007 8. Conclusion: eight observations about fair work law in China

The Journey to Seneca Falls: Mary Wollstonecraft, Elizabeth Cady Stanton and the Legal Emancipation of Women

Abstract: “[T]he star that guides us all,” President Barack Obama declared in his Second Inaugural, is our commitment to “human dignity and justice.” This commitment has led us “through Seneca Falls and Selma and Stonewall” towards the equality that we enjoy today. This Article concerns the pre-history to the Seneca Falls Convention of Women’s Rights, alluded to by President Obama. It is a journey that began during the infancy of the common law in medieval England. It leads through the construction, by generations of English lawyers and religious figures, of a strong and imposing monolith of patriarchal rule. By marriage women lost their independent legal personality and were, for purposes of law, incorporated into their husband in accord with the legal doctrine known as coverture. The husband represented the family in civic affairs, was exclusively empowered to make all legally effective decisions for the family, and generally governed his wife and household. This Article is a history of the early phases of the challenge brought against this mode of organizing domestic life. Mary Wollstonecraft, a selfmade woman of the eighteenth century, objected to male domination in her books, essays, and works of fiction. She coined the expression “rights of * Dr. Charles J. Reid, Jr. is Professor at the University of St. Thomas School of Law in Minneapolis. I would like to thank Ann Bateson and the library staff of the University of St. Thomas for the wonderful support they invariably demonstrate. I would like also to thank the staffs of the Seneca Falls Historical Society and the Seneca Falls National Historic Site for their patience in answering my innumerable questions. Finally, I would like to thank my diligent and thoughtful research assistants—Natolie Hochhausen, Vaughn Frazher, and Lauren Anthone. 1. President Barack Obama, Second Inaugural Address (Jan. 21, 2013), in THE WASH. POST, http://www.washingtonpost.com/politics/president-obamas-second-inaugural-address-transcript/ 2013/01/21/f148d234-63d6-11e2-85f5-a8a9228e55e7_story.htmlJ. 2. Id.

The Development of International Law by the International Court of Justice

Abstract: 1. Introduction 2. The ICJ as an Agent of Legal Development? 3. The ICJ and the Law of Treaties 4. The ICJ and the Law of State Responsibility 5. The ICJ and Diplomatic Protection 6. The ICJ and the Institutional Law of the United Nations 7. The ICJ and the Law of Territory 8. The ICJ and the Jus ad Bellum 9. The ICJ and the Law of the Sea 10. The ICJ and Human Rights 11. The ICJ and International Humanitarian Law 12. The ICJ and International Environmental Law 13. The ICJ and Rights of Peoples and Minorities 14. The ICJ and the Law of Immunities 15. The Development of International Law by the International Court of Justice Revisiting Hersch Lauterpacht's Assumptions

The Journey to Seneca Falls: Mary Wollstonecraft, Elizabeth Cady Stanton, and the Legal Emancipation of Women

Abstract: The star that guides us all, President Barack Obama declared in his Second Inaugural, is our commitment to human dignity and justice. This commitment has led us through Seneca Falls and Selma and Stonewall towards the equality that we enjoy today. This Article concerns the pre-history to the Seneca Falls Convention of Women's Rights, alluded to by President Obama. It is a journey that began during the infancy of the common law in medieval England. It leads through the construction, by generations of English lawyers and religious figures, of a strong and imposing monolith of patriarchal rule. By marriage women lost their independent legal personality and were, for purposes of law, incorporated into their husband in accord with the legal doctrine known as coverture. The husband represented the family in civic affairs, was exclusively empowered to make all legally effective decisions for the family, and generally governed his wife and household.This Article is a history of the early phases of the challenge brought against this mode of organizing domestic life. Mary Wollstonecraft, a self-made woman of the eighteenth century, objected to male domination in her books, essays, and works of fiction. She coined the expression rights of women and made a powerful case for the equality of the sexes. In America, her cause was taken up by several generations of campaigners. This Article focuses on three leading nineteenth-century figures — Sarah Grimke, Lucretia Mott, and Elizabeth Cady Stanton. The Article closes with the 1848 Seneca Falls Convention and its call for women's suffrage and the abolition of the restrictions of coverture.

Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?

Abstract: Citizens and companies globalize: they are increasingly making use of their rights to free movement, to free settlement, to offer services and goods, to realize financial transactions, etc. Enforcement systems, including the criminal justice system, have to follow suit. They are obliged to go abroad to gather evidence, for the detention and extradition or surrender of suspects, to confiscate assets, to deal with conflicts of jurisdiction and the choice of allocating a criminal investigation and adjudication. Globalizing criminal justice systems increases the risk of double prosecution and/or double punishment. Do (legal) persons have the (fundamental) right not to be prosecuted or punished twice for the same facts in a globalizing and integrating world. Are they protected against these forms of double jeopardy in settings of transnational criminal justice, such as for instance in the EU area of freedom, security and justice? Does the ne bis in idem principle have a transnational reach? If so, what does this mean and what are the obstacles and exceptions thereto? In posing these questions, this article asks whether a (legal) person can derive a right to transnational protection in the area of freedom, security and justice from the different sources of ne bis in idem obligations in domestic law, in public international law (human rights law and mutual legal assistance) and in EU law. By analysing these sources and the case law thereon, I come to the conclusion that (legal) persons are unprotected against transnational double jeopardy, with the exception of the transnational ne bis in idem in the EU area of freedom, security and justice. However, even in the case of the latter exceptions, derogations, reservations and draw back interpretations based on national sovereignty undermine the rationale and scope of a real transnational ne bis in idem principle in a common space of transnational criminal justice.