Showing papers on "Common law published in 2015"

The Common Law Tradition: Deciding Appeals

Abstract: Recommended Citation J. Warren Madden, Joseph L. Sax, William H. Roberts & Marie C. Klinkhamer, THE COMMON LAW TRADITION – DECIDING APPEALS. Karl N. Llewellyn. – LEGACY OF SUPPRESSION. Leonard W. Levy. – THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN. Edited by Lucy Kramer Cohen. Foreword by Felix Frankfurter. – THE SUPREME COURT REVIEW. 1960. Edited by Philip Kurland., 10 Cath. U. L. Rev. 100 (1961). Available at: https://scholarship.law.edu/lawreview/vol10/iss2/6

Between law and history: the Berlin Conference of 1884-1885 and the logic of free trade

Abstract: The Berlin West Africa Conference of 1884-1885 has assumed a powerful symbolic presence in international legal accounts of the 19th century, but for historians of the era its importance has often been doubted. This article seeks to re-interpret the place of the Berlin General Act in late 19th-century history, suggesting that the divergence of views has arisen largely as a consequence of an inattentiveness to the place of systemic logics in legal regimes of this kind.

Disability standards for education

Abstract: This chapter of Higher Education and the Law considers the scope of the obligation of Australian Universities to make reasonable adjustments to facilities, procedures and curriculum, for students with disability. It reflects upon relevant case law to inform analysis of problematic aspects of that scope including, for example, the accommodation of students with problem behaviour flowing from disability and adjustment to assessment for students with disability.

Is Administrative Law Unlawful

Abstract: Is administrative law unlawful? This is a central question in contemporary law and politics, and it has become all the more important with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution-and constitutions in general-were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious - and profoundly unlawful - return to dangerous preconstitutional absolutism.

Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law

Abstract: Equity emerged as a powerful symbol of aspired redistribution in international relations. Operationally, it has had limited impact in the Westphalian system of nation states - except for maritime boundary delimitations. This book deals with the role of equity in international law, and offers a detailed case study on maritime boundary delimitation in the context of the enclosure movement in the law of the sea. It assesses treaty law and the impact of the United Nations Convention on the Law of the Sea. It depicts the process of trial and error in the extensive case law of the International Court of Justice and arbitral tribunals and expounds the underlying principles and factors informing the methodology both in adjudication and negotiations. Unlike other books, the main focus is on equity and its implications for legal methodology, in particular offering further guidance in the field of international economic law.

Fighting Software Piracy in Africa: How Do Legal Origins and IPRs Protection Channels Matter?

Abstract: In the current efforts toward harmonizing intellectual property rights (IPRs) regimes in the African continent, this paper provides answers to four key questions relevant in the policy decision-making processes. After empirically examining the questions, the following findings are established. (1) In comparison to common law countries, civil law countries inherently have a significant autonomous rate of software piracy; consistent with the “law and property rights” theory. (2) But for IPRs laws, the other intellectual property (IP) protection channels (World Intellectual Property Organization treaties, main IP law, and multilateral treaties) reduce the incidence of software piracy. (3) In both short-run and long-term, IPRs protection channels in civil law countries appear to mitigate software piracy more than in common law countries. (4) Formal institutions are instrumental in the fight against software piracy through IPRs protection channels.

Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence

Abstract: Over the past 20 years the European Court of Human Rights (ECtHR) has evolved into a conspicuous, often contentious, force in the multilevel battles over the place of religion in the European public sphere. In the light of scholarly debates, questioning the direct effects of courts on the issues they address, this article explores how the nature and extent of European juridical influence on religious pluralism are better understood through developments taking place ‘in the shadow’ of the Court. Specifically, what is the aftermath of the Court’s religion jurisprudence in terms of its applications at the grassroots level? And how might legal and political elites operating at the national and international levels influence the Court’s engagement with religion? These questions are important because ECtHR case law will shape, to a large extent, both local and national case law and—less conspicuously but no less importantly— grassroots-level developments in the promotion of or resistance to religious pluralism, which will, in turn, influence the future of the ECtHR caseload. The European public square has, in the past 20 years and increasingly so, been inundated with controversies and debates broadly conceived around the place of religion in the public sphere. In spite of (and, some would argue, because of) popular and scholarly expectations of religion’s retreat in Europe, issues such as freedom of religious expression, freedom of speech versus protection against blasphemy, and the public display of religious symbols loom large in the workplace, in schools, in media coverage, etc throughout Europe, at local, national, and supranational levels. The presence of Islam in Europe has acted as a catalyst in many debates on religion in Europe, but these debates have now grown to encompass much broader assumptions about the nature of religious communities, their relationship to state institutions, and the place of minority religious communities in society. In short, the

When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint

Abstract: This book examines the opposing ways in which the European Court of Human Rights and the Inter-American Court of Human Rights treat claims lodged by migrants. It combines legal, sociological, and historical analysis to show that the two courts were the product of different backgrounds, which led to differing attitudes to migrants in their founding texts, and that these differences were reinforced in their developing case law. The book assesses the case law of both courts in detail to argue that they approach migrant cases from fundamentally different perspectives. It asserts that the European Court of Human Rights treats migrants first as aliens, and then - but only in a second step of its reasoning - as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants as human beings in the first instance.

The Dangers of Denial: The Need for a Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law

Abstract: There is now a tendency among those who believe that corporations should be more socially responsible to pretend that corporate directors do not have an obligation under Delaware corporate law to make stockholder welfare the sole end of corporate governance within the limits of their legal discretion. These advocates of corporate social responsibility contend that Delaware directors may subordinate stockholder welfare to other interests, such as those of the company’s workers or society generally. That is, they do not argue simply that directors may choose to forsake a higher short-term profit if they believe that course of action will best advance the interests of stockholders in the long run, they argue that directors have no legal obligation to make – within the constraints of positive law – the promotion of stockholder welfare their end. But, the problem with that argument is that it is inconsistent with both judge-made common law of corporations in Delaware and the design of the Delaware General Corporation Law (“DGCL”).More important, pretending that the nation’s leading corporate law is fundamentally different than it is runs contrary to the goal of ensuring that for-profit corporations behave lawfully, responsibly, and ethically. Lecturing others to do the right thing without acknowledging the rules that apply to their behavior and the power dynamics to which they are subject is not a responsible path to social progress. Rather, it provides an excuse to avoid tougher policy challenges, such as advocating for stronger externality regulation and encouraging institutional investors to exercise their power as stockholders responsibly. Those challenges must be confronted if we are to ensure that for-profit corporations are vehicles for responsible, sustainable, long-term wealth creation.

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Abstract: Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales — that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to “vindicate” public rights. The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so — rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public — endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.

The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions

Abstract: When the U.S. Supreme Court announces a decision, reporters simplify and dramatize the complex legal issues by highlighting dissenting opinions and thus emphasizing conflict among the justices themselves. This often sensationalistic coverage fosters public controversy over specific rulings, despite polls which show that Americans strongly believe in the Court's legitimacy as an institution. In The Limits of Legitimacy, Michael A. Zilis illuminates this link between case law and public opinion. Drawing on a diverse array of sources and methods, he employs case studies of eminent domain decisions, analysis of survey data and media reporting, an experiment to test how volunteers respond to media messages, and finally the natural experiment of the controversy over the Affordable Care Act, popularly known as Obamacare. Zilis finds, first, that the media tends not to quote from majority opinions. However, the greater the division over a particular ruling among the justices themselves, the greater the likelihood that the media will criticize that ruling, characterize it as activist, and employ inflammatory rhetoric. Zilis then demonstrates that the media's portrayal of a decision, as much as the substance of the decision itself, influences citizens' reactions to and acceptance of it. This meticulously constructed study and its persuasively argued conclusion advance the understanding of the media, judicial politics, political institutions, and political behavior.

International Commercial Litigation: Text, Cases and Materials on Private International Law

Abstract: This carefully structured, practice-orientated textbook provides everything the law student needs to know about international commercial litigation. The strong comparative component provides a thought-provoking international perspective, while at the same time allowing readers to gain unique insights into litigation in English courts. Three important themes of the book analyse how the international element may call into question the power of the court to hear the case, whether it should exercise this power, whether foreign law applies, and whether the court should take into account any foreign judgement. Hartley provides the reader with extracts from leading cases and relevant legislation, together with an extensive reference library of further reading for those who wish to explore the topic in more detail, making this a valuable, single-source textbook. The title will benefit from a companion website, setting out all relevant case law developments for the students.

The Court and the World: American Law and the New Global Realities

Abstract: Stephen G. Breyer, uno de los nueve magistrados de la Corte Suprema de Estados Unidos, ha publicado recientemente con la editorial Alfred Knopf de Nueva York, la monografía que titula The Court and the World: American Law and the New Global Realities (La Corte y el mundo: El derecho de Estados Unidos y las nuevas realidades globales). Es un ensayo de poco menos de 400 páginas, dividido en 12 capítulos en el que, por primera vez, un magistrado del más alto tribunal estadounidense analiza los acercamientos de ese tribunal al derecho internacional y al derecho constitucional comparado. Aunque está dirigido a lectores estadounidenses, el libro interesa a estudiosos del derecho internacional y del derecho constitucional en todas partes. El libro ayuda a entender la relación de Estados Unidos con el mundo.

The Family of Nature, The Nature of Family: The Surprising Liberal Defense of the Traditional Family in the Enlightenment

Abstract: This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents' mutual care. Stable marital households, furthermore, are the best way to ensure that men and women are treated with equal dignity and respect, and that husbands and wives, and parents and children, provide each other with mutual support, protection, and edification throughout their lifetimes. The positive law of the state must not only support the marital family but also outlaw polygamy, fornication, adultery, and "light divorce" that violate the other spouse's natural rights as well as desertion, abuse, neglect, and disinheritance that violate their children's natural rights to support, protection, and education from their parents. This argument about the natural norms and laws of sex, marriage, and family life, was adumbrated by Aristotle, elaborated by Thomas Aquinas, and then extended by scores of later theologians, philosophers, and jurists. Many of the great architects of Western liberalism embraced these traditional teachings and defended them with arguments from nature, reason, custom, fairness, prudence, utility, pragmatism, and common sense. Their arguments echoed loudly in sundry Anglo-American common law texts, statutes, and cases until the twentieth century, and they remain instructive even for our post-modern polities and families.INTRODUCTIONFor better or worse, we are in the midst of a family law revolution that is upending millennium-long laws and customs of the West.1 A century ago, American law defined marriage as an exclusive and enduring monogamous union between a man and a woman with the freedom and capacity to marry each other.2 Marriage was considered to be the heart of the family and household, and it was designed for the mutual love and support of husband and wife, their mutual protection from sexual temptation, and their mutual procreation, nurture, and education of children. The law required that engagements be formal and that marriages be contracted with parental consent and witnesses and with a suitable waiting period, sometimes accompanied by the publication of banns. It required marriage licenses and registration and solemnization before civil authorities, religious authorities, or both. It prohibited marriages between couples with various blood and kin ties identified in the Mosaic and Roman law. It discouraged marriage where one party was impotent or had a contagious disease that precluded sex and procreation or physically endangered the other spouse. Couples who sought to divorce had to publicize their intentions, to petition a court, to show adequate cause or fault, and to make provision for the dependent spouse and children. Criminal laws outlawed fornication, adultery, prostitution, sodomy, polygamy, incest, contraception, abortion, and other perceived sexual offenses. Tort laws held third parties liable for seduction, enticement, loss of consortium, or alienation of the affections of one's spouse. Many of these legal rules had millennium-long roots in the civil law, canon law, and common law traditions of the West, with several rules going deeper still into ancient Greek and Roman laws.3Today, much of this traditional family law has fallen or been pushed aside in favor of new cultural and constitutional norms of sexual liberty, privacy, and autonomy.4 Marriage is viewed increasingly at law and at large today as a private contract to be formed, maintained, and dissolved as the parties see fit. Requirements of parental consent and witnesses to the formation of engagement and marital contracts have largely disappeared. …

Law in a law-governed union (Recht in einer Rechtsunion) : the Court of Justice of the European Union and the free law doctrine

Abstract: The Court of Justice of the European Union characterizes the Union as a Rechtsunion: a law-governed union. The conception of “the law” in Article 19 paragraph 1 of the Treaty on European Union transcends the Treaties, according to the Vice-President of the Court of Justice, Koen Lenaerts. This thesis demonstrates with reference to the work of Georg Jellinek that the Union is a non-sovereign state and, with reference to the work of Eugen Ehrlich in particular, that the state-based perception of law is a misperception. Not all production of law is reserved to the state and not all law is state-recognized law. There is extra-state law. It has been alleged that the Court of Justice of the European Union has had “a free law attitude”. The author discusses the free law doctrine developed at the beginning of the twentieth century and has made literal translations of writings in German, French and Italian by the main representatives of the free law movement. The free law doctrine provides a descriptive framework for the case-law of courts. The author describes the creation by the Court of Justice of four constitutional principles of Union law through its case-law. He concludes that every court is, to quote Hermann Kantorowicz, praeter legem law-creatively active and has, in that sense, a free law attitude. The decisions of judges are often volitional decisions. How the law will be applied should be predictable but volitional decisions, because they are unpredictable, are inconsistent with the principle of legal certainty. In the Union and its member states the judiciary and not the statute or “the law” is pre-eminent. The author suggests how the concept of law should be defined in a material Rechtsunion. He argues that societal legal norms could be provided with an appropriate position consistent with the principle of legal certainty by making the validity of a societal legal norm contingent on its material lawfulness.

Reconceptualising the Doctor–Patient Relationship: Recognising the Role of Trust in Contemporary Health Care

Abstract: The conception of the doctor–patient relationship under Australian law has followed British common law tradition whereby the relationship is founded in a contractual exchange. By contrast, this article presents a rationale and framework for an alternative model—a “Trust Model”—for implementation into law to more accurately reflect the contemporary therapeutic dynamic. The framework has four elements: (i) an assumption that professional conflicts (actual or perceived) with patient safety, motivated by financial or personal interests, should be avoided; (ii) an onus on doctors to disclose these conflicts; (iii) a proposed mechanism to contend with instances where doctors choose not to disclose; and (iv) sanctions for non-compliance with the regime.

Training the Transactional Business Lawyer: Using the Business Associations Course as a Platform to Teach Practical Skills

Abstract: Drawing on her own practice background as a business lawyer and her law school teaching experience, the author argues for the importance of introducing transactional lawyering skills into the law school course on business associations. She notes that business law practice is transactional in nature, but that the traditional method of teaching business associations centers on case law analysis. This litigation-focused approach misleads students about the nature of business law practice, which requires lawyers to act as problem solvers and planners and to engage in preventative lawyering. To bolster her argument, the author draws on some of the recent literature on legal education reform that calls for introducing students to an enhanced range of skills needed for law practice while they are still in law school. She suggests ways in which practical skills relevant to a transactional business law practice can be incorporated into the doctrinal course in business associations or to a transactional skills course tethered to the business associations course. The author also includes a bibliography of selected literature on teaching business law and transactional law and selected studies on reform of legal education.

Democracy, Human Rights, and Islamic Family Law in Post-Soeharto Indonesia

Abstract: This article examines the developments in Indonesian family law in the aftermath of the political transition that occurred in 1998. Its focus is on the position of the Islamic courts and the role of the women’s movement as a driver of reform. Combining literature on gender, Islam and the state in Indonesia with new material such as divorce rates, cases of the Constitutional Court and law reform initiatives, the authors argue that the family law reform processes already underway before 1998 have not changed much and have continued to lead to more state control of Islamic family law. Yet, even though the reforms since 1998 have not directly targeted family law, they have unleashed processes of liberalization, democratization and decentralization that have emboldened Indonesian women in the exercise of their rights and have invigorated debates over further reform.

A reflection on substantive equality jurisprudence The standard of scrutiny at the ECtHR for differential treatment of Roma and persons with disabilities

Abstract: In recent years, the European Court of Human Rights has begun to acknowledge the considerable disadvantage and discrimination that Roma and persons with disabilities face in society. The Court has characterised both Roma and disabled applicants as vulnerable and disadvantaged groups and has stated its intention to apply a strict standard of scrutiny to alleged violations of the rights of both groups. This contribution will analyse the standard of scrutiny adopted by the Court in the context of alleged claims of discriminatory treatment of Roma and disabled applicants. The essential question to be addressed by this article is whether the differential treatment in question is deemed to be justified (either required or allowed) by the Court and whether the Court’s case law relating to these two groups reflects a more substantive conception of equality capable of addressing the deep-seated structural inequalities faced by Roma and persons with disabilities in society. A related question to be addressed by thi...

Legal fictions in theory and practice

Abstract: Preface William Twining.- Introducing Fictions: Examples, Functions, Definitions and Evaluations Maksymilian Del Mar.- I. Theories of Fiction, Fictions of Theory.- 1. On the Theory of Juridic Fictions. With special consideration of Vaihinger's Philosophy of the As-If Hans Kelsen, translated by Christoph Kletzer.- 2. Kelsen on Vaihinger Christoph Kletzer.- 3. Is Law a Fiction? Geoffrey Samuel.- 4. Fuller on Legal Fictions: A Benthamic Perspective Michael Quinn.- 5. The Pragmatic Value of Legal Fictions Douglas Lind.- II. Community, Language and Literature.- 6. Legal Fictions Revisited Frederick Schauer.- 7. Legal Fictions and the Limits of Legal Language Karen Petroski.- 8. Legal Fictions and Exclusionary Rules Simon Stern.- 9. Law's Fiction, Legal Fiction and Copyright Law Burkhard Schafer and Jane Cornwell.- III. Change and the Common Law.- 10. Legal Fictions before the Age of Reform Michael Lobban.- 11. Legal Fictions and Legal Change in the Common Law Tradition Maksymilian Del Mar.- 12. Fictions in Tort James Lee.- 13. Ejectment: Three Births and a Funeral Peter Sparkes.- IV. Fictions in Practice: Past, Present and Future.- 14. Fact, Fiction, and Social Reality in Roman Law Clifford Ando.- 15. Rabbinic Legal Fictions Leib Moscovitz.- 16. Presumptions and Fictions: A Collingwoodian Approach Raymundo Gama.- 17. Some Uses of Fictions in Criminal Law Peter Alldridge.- 18. Fictitious Fraud: Economics and the Presumption of Reliance Randy D. Gordon.- Index.

EU Renewable Electricity Law and Policy: From National Targets to a Common Market

Abstract: There are two basic policy tools for promoting renewable electricity: price regulation (feed-in tariffs) and quantity regulation (green certificates). In economic theory, they are equally efficient. Contrary to conventional thinking, the author demonstrates that under real-world conditions, price regulation is more efficient. EU law obliges Member States to put support schemes in place, but leaves their design to national authorities. They need, however, to comply with EU state aid and internal market rules, and their financing may not result in import duties and discriminatory taxation. This book provides a detailed analysis of the decisions practice adopted by the Commission and the case law of the Union Courts. As support schemes mature, has time not come for putting an end to regulatory competition? With huge efficiency gains to be expected, the author expertly examines the political obstacles and sets out three different pathways to achieve EU-wide harmonization.

Bills of Rights in the Common Law

Abstract: Introduction 1. Against Bill of Rights exceptionalism 2. The common law, judging, and three Bills of Rights 3. Judicial review of legislation before Bills of Rights 4. Bills of Rights and other means of accessing judgment 5. Putting the strike-down in its place 6. Remedies from text to practice 7. Improving the system and engaging the legislature 8. Rethinking remedies and constitutional supremacy Conclusion.

The relationship between primary and secondary law in the EU

Abstract: This article is concerned with the relationship between primary and secondary law in the EU, as it emerges from the case law of the Court of Justice. It examines the broad spectrum of ways in which the Court deals with secondary law, considering in particular the extent to which the Court allows the passage of secondary legislation to affect its reading of primary law. The case law of the Court is difficult to predict, and difficult to evaluate. The "proper" relationship between primary and secondary law depends on one's assessment of the "legal" or "political" nature of the EU's constitutional settlement, and on one's views about the relationship between, and legitimacy of, the judiciary and the legislature at EU level.

A National Survey of United States Sexually Violent Person Legislation: Policy, Procedures, and Practice

Abstract: Sexually Violent Person (SVP) commitment statutes provide for indeterminate civil confinement of certain sex offenders after completion of their criminal sentences. In the United States, SVP laws raise important concerns relating to due process, ex post facto claims, and protection against double jeopardy. However, it is unclear to what extent current legislation addresses or neglects these issues. Without a systematic review of SVP legislation and related case law, it remains unknown to what degree U.S. states have incorporated different strategies to protect individual rights outlined by the U.S. Supreme Court. In this study, SVP statutes from each U.S. state, the federal government, and the District of Columbia, along with related case law, were examined to evaluate (1) the requirements of SVP confinement, (2) the procedures by which SVP hearings occur, and (3) the degree to which the requirements enumerated by the U.S. Supreme Court have been followed. Although nearly half of all states have SVP statu...

Responses to Youth Crime in Canada: An Examination of the Micro and Macro Processes Associated with the Tough-on-Crime Legislation

Abstract: The enactment of tough-on-crime legislation in Canada is questionable given the abundance of research rejecting its underlying premises and goals. While there appears to be ongoing concern in Canada about the tough-on-crime agenda, there is currently a shortfall in information addressing the processes through which Bill C-10 (Part 4) was developed and legislated by the Conservative Government. As such, there is limited data that informs Canadians about the ways in which politicians make meaningful decisions about youth crime policy and legislation. Consequently, the objective of this dissertation is to provide a better understanding of the individual (micro) and governmental (macro) processes associated with the tough-on-crime approach in Canada, with a specific focus on responses to youth crime. Using a conflict and Marxist/critical perspective (Alvi, 2012; Chambliss & Seidman, 1971; DeKeseredy, 2011; Garland, 2001; Habermas, 1973, 1985; Hall et al., 2013; Quinney, 1970), this dissertation examines the state as a legitimate power and the ways in which it gains and maintains legitimacy. Theorists suggest modern laws work as an instrument of power to reflect the dominant ideology that is reproduced within the social structural system. Thus, this dissertation specifically examines the claim that laws are shaped by a consensus of dominant interests and values that are embodied and preserved in the tough-on-crime legislation, and is ultimately supported by the public. This research investigates three central questions: First, what are the processes through which Bill C-10 (Part 4) developed and was legislated? Second, in what way(s) has tough-oncrime legislation been implemented in Canadian youth courts? Finally, how does Texas (United States) differ in their response to youth crime, relative to their model of crime control and placement on the tough-on-crime spectrum? To examine the tough-on-crime approach, interviews were conducted with twenty-two participants who were either involved in the political debates of Bill C-10 (Part 4) or had intimate knowledge of the youth justice system. The interview data were cross-referenced and compared to the applicable parliamentary records in Hansard. Second, a case law analysis was conducted to determine how the toughon-crime mandate has been implemented within Canadian youth courts (2003-2013). Finally, an analysis of case law in Texas was carried out in order to understand how more punitive jurisdictions respond to youth crime and how their legislation differs from Canada (1996-2013). The findings suggest the enactment of the tough-on-crime legislation in Canada was a result of a complex interaction between a number of agencies, institutions, and individuals after the Conservative’s won a majority government in 2011. Moreover, the findings demonstrate the values embodied within the tough-on-crime legislation reflect the dominant (conservative) ideology and served as a means of maintaining legitimacy (Habermas, 1985; Hall et al., 2013). While the Canadian case law did not indicate that youth in conflict with the law were more adversely affected by Bill C-10 (Part 4), there was no evidence to suggest that future substantive changes in practice would not occur. However, marginalized Canadian youth were noted as most likely to be subject to tough-on-crime measures (Alvi, 2012). The results from the case law analysis of Texas suggest the state focuses on diversion and rehabilitation, but to a lesser degree than Canada. This is largely due to Texas’ transfer laws or ability to impose a determinate sentence. As a result, there appears to be a disproportionate use of the tough-on-crime legislation in Texas, often affecting minority youth. These findings are not only illustrative of a more punitive model of crime control relative to Canada, but point to the potential dangers of enacting tough-on-crime policies.

Muslim Mandarins in Chinese Courts: Dispute Resolution, Islamic Law, and the Secular State in Northwest China

Abstract: Many sociolegal studies have investigated the relationship between state law and informal law, examining alternative dispute resolution and popular justice as intersections between state law and informal law. However, such questions have received little attention in East Asian authoritarian states. I use the case of dispute resolution among Chinese Muslim minorities (the Hui) to re-examine the relationship between state law and Islamic law. Based on nineteen months of fieldwork in Northwest China, I argue that the Hui case shows codependence between the types of law. Law is deeply embedded in social relationships between the Hui and the Party-State. An analysis of personalistic relationships shows the ways in which religious and secular authorities access each other, transforming each other’s law to augment their own legitimacy, but not without the potential for violence. The China case illuminates dynamics between Muslim communities and states that are prevalent elsewhere, particularly in the post-9/11 period.

Reforming the International Investment Regime: Lessons from International Trade Law

Abstract: International trade law underwent a profound paradigm shift during the 1990’s and into the 21st century as a response to globalization, and to a legitimacy crisis sparked by unresolved structural issues from the General Agreement on Tariffs and Trade (GATT) era and tensions surfacing in GATT case law around ‘trade and’ issues. Investment law today is undergoing a similar legitimacy crisis for similar reasons, particularly with respect to Bilateral Investment Treaties and investor–State arbitration. We argue that investment law is ripe for a similar paradigm shift, away from the dominant view of investment law as a private ordering system to protect capital, with roots in contract law and commercial arbitration, and towards recognition of the fact that investment law today is part of a comprehensive global economic governance system meant to ensure justice and the rule of law in one aspect of international economic relations, the allocation of investment capital. This paradigm shift has normative, structural and doctrinal implications, which we explore, and promises to help restore legitimacy to investment law as it also improves substantive outcomes.

Judicial review of Member State action under the general principles and the Charter: Defining the scope of Union law

Abstract: The article explores the concept of “scope of Union law” for the purposes of judicial review of national measures under the general principles of Union law and the Charter of Fundamental Rights. The Court’s classic case law assigned Member State acts to the categories of implementation or derogation, through a case-by-case analysis, though certain rulings never fitted neatly into that framework, prompting scholarly attempts to argue for an expanded definition of the scope of Union law: for example, by reference to a simple overlap in subject matter between Union and national legislation. The article considers recent cases which suggest the Court is willing to experiment with novel approaches to defining the scope of Union law – based on a more systematic and contextual approach to the relationship between disputed domestic acts and the Union legal order. The Court must articulate a convincing constitutional rationale for any new approach to defining the scope of Union law, consonant with the fundamental principle of conferred powers.