Showing papers on "Common law published in 2016"
01 Dec 2016
TL;DR: This article summarized data from several Bureau of Justice Statistics' (BJS) correctional data collections to provide statistics on the total population supervised by adult correctional systems in the United States, and provided a classification of the population in the US.
Abstract: "This report summarizes data from several Bureau of Justice Statistics' (BJS) correctional data collections to provide statistics on the total population supervised by adult correctional systems in the United States."
1,109 citations
••
TL;DR: In this paper, the authors find that corporate social responsibility is more strongly and consistently related to legal origins than to doing good by doing well, and most firm and country characteristics such as ownership concentration, political institutions, and degree of globalization.
Abstract: A firm’s corporate social responsibility (CSR) practice and its country’s legal origin are strongly correlated. This relation is valid for various CSR ratings coming from several large datasets that comprise more than 23,000 large companies from 114 countries. We find that CSR is more strongly and consistently related to legal origins than to “doing good by doing well”-factors, and most firm and country characteristics such as ownership concentration, political institutions, and degree of globalization. In particular, companies from common law countries have lower level of CSR than companies from civil law countries, and Scandinavian civil law firms assume highest level of CSR. This link between legal origins and CSR seems to be explained by differences in ex post shareholder litigation risk as well as in stakeholder regulations and state involvement in the economy. Evidence from quasi-natural experiments such as scandals and natural disasters suggest that civil law firms are more responsive to CSR shocks than common law firms, and such responsiveness is not likely driven by declining market shares following the shock.
452 citations
•
[...]
27 Jul 2016
TL;DR: Brundage's book as discussed by the authors is a marvellously fluent and accessible introduction to Canon Law, which will be warmly welcomed by medievalists and students of ecclesiastical and legal history.
Abstract: It is impossible to understand how the medieval church functioned -- and in turn influenced and controlled the lay world within its care -- without understanding the development, character and impact of `canon law', its own distinctive law code. However important, this can seem a daunting subject to non-specialists. They have long needed an attractive but authoritative introduction, avoiding arid technicalities and setting the subject in its widest context. James Brundage's marvellously fluent and accessible book is the perfect answer: it will be warmly welcomed by medievalists and students of ecclesiastical and legal history.
164 citations
••
TL;DR: Copies were obtained of the criminal codes from 192 countries and states; in 25 suicide is currently illegal, and an additional 20 countries follow Islamic or Sharia law where suicide attempters may be punished with jail sentences.
111 citations
•
28 Nov 2016
TL;DR: In this article, the authors proposed a take down policy to remove access to the work immediately and investigate the claim. But they did not provide details of the claim and did not investigate the content of the work.
Abstract: • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
106 citations
•
01 Jan 2016
TL;DR: In this paper, a general theoretical research of European Union Citizenship as a political and legal phenomenon, that reflects the specifics of the legal status of a person in terms of the European integration is presented.
Abstract: The thesis for obtaining of the Candidate of Legal Sciences degree, specialty 12.00.01 – Theory and History of State and Law; History of Political and Legal Studies. – Yaroslav Mudryi National Law University, Ministry of Education and Science of Ukraine, Kharkiv, 2016.
The thesis is devoted to general theoretical research of the European Union Citizenship as a political and legal phenomenon, that reflects the specifics of the legal status of a person in terms of the European integration.
The preconditions of introduction of the Union citizenship are determined and periods of its development are provided. The legal nature of the EU citizenship as a multifaceted category is lied down. The peculiarities of this institute, which distinguish it from national citizenship of the state and allow characterizing it as a new type of citizenship (sui generis) are determined. The scope of certain rights of the European Union due to the principles of the EU citizenship, EU legal acts and their interpretation in the case law of the EU courts is established. The particularities of the mechanism of ensuring the rights of the EU citizens on the supranational and national levels are determined. General trends of the institute of the EU citizenship development due to the case law of the Court of Justice are ascertained.
63 citations
•
08 Apr 2016
TL;DR: Bhan et al. as discussed by the authors argue that evictions represent an altered urban politics where a set of familiar referents- development, order, governance, citizens, and the public- are redefined to not only enable evictions but also to see them as acts of good governance, order and planning.
Abstract: Author(s): Bhan, Gautam | Advisor(s): Roy, Ananya | Abstract: Millennial Delhi is a city whose landscape has been scarred by a series of evictions of the homes of some of its most vulnerable citizens. These evictions are different not just in degree but in kind from those that have come before. Evictions at this scale last occurred in Delhi during what is known as the Emergency from 1975-77 when democratic and fundamental rights were suspended. Unlike evictions within the Emergency, however, contemporary evictions have occurred through democratic processes rather than in their absence- they mark a different set of negotiations, legitimations, processes as well as horizons of resistance. A further factor makes contemporary evictions distinct: they were ordered not by the sarkar -the institutions of the executive across local, state and federal scales that govern the national capital - but by the adalat, the Judiciary. They were, in fact, ordered by the Delhi High Court and the Supreme Court of India within a unique judicial innovation in India called the Public Interest Litigation that had been established, ironically, to enable the poor to access justice in the highest courts of the land. To understand how the evictions of the poor can be read as acts in the "public interest," this dissertation argues that we must first locate the basti in the particularity of the production of space in Delhi. The Hindustani word "basti" comes from basna which means to settle or inhabit. It is the term used most often by the poor to describe their homes that are often marked by some measure of physical, economic, and infrastructural vulnerability. The basti is often reduced to the slum, a marker of illegal occupation of land and, more broadly, the dysfunctional landscape of the megacities of the global South. Yet this dissertation argues that more than just a `slum,' built environment, material housing stock, or planning category, a basti is, in fact, a territorialisation of a political engagement within which the poor negotiate their presence in as well as right to the city. It is a spatial manifestation of the negotiations of citizenship. Its eviction then represents not just the demolition of a built environment but the transformation of precisely this political engagement- an erasure of the poor's presence within and right to the city. Put another way, contemporary evictions represent an altered urban politics where a set of familiar referents- development, order, governance, citizens, and the public- are redefined to not only enable evictions but also to see them as acts of good governance, order and planning. Read this way, evictions allow us to access the central theoretical and ethical concern of this dissertation: the politics of the production and reproduction of poverty and inequality in the contemporary Indian city and the negotiations of citizenship that underlie it. Broadly, this dissertation argues that evictions make visible make visible a juridicalisation of politics in the Indian city. This juridicalisation is marked by the emergence of new frameworks, discourses and practices in urban politics that instantiate themselves in the city through the judiciary rather within the more familiar institutional compacts between institutions of representative government and urban residents. The juridicalisation of politics marks the expansion of the jurisdiction not just of the courts but also of the realm of the law within urban politics. As the sphere of authority of the Courts widens in the city, a series of questions, concerns, interventions, processes and debates within urban politics come to be come to seen, articulated, and addressed as juridical questions - they speak and are spoken about within the frameworks of law. Following its concern with the politics of poverty, inequality and citizenship, the dissertation traces juridicalisation along one particular vector: it shows how evictions were made to make "legal sense" within public interest litigations. Four key frameworks thus emerge: (a) planned illegalities; (b) planned development and/as crisis; (b) the impoverishment of poverty; and (c) the juridicalisation of resistance. The dissertation first constructs a spatial history of inhabitation in the city to challenge the assumed relationships between "illegality," planning and the settlements of the poor, arguing that the "illegal" production of urban space in Delhi comprises not just the `slum' but the production of illegal housing by the middle and upper middle classes as well. It does so by problematizing the familiar and commonsensical narrative of the "failure of planning" in the Indian city and showing that the traces of planning ensure that the city may not be as it was planned but it is an outcome of planning. It argues that illegality is the dominant mode of the production of housing in Delhi and that it is within illegalities that the production of urban space in the city must be understood. Questions of urban politics must thus look not at the dichotomy of the legal-illegal but instead at the ways in which planning and planned development produce illegality. Equally, they must interrogate the processes by which particular kinds of urban practices and actors are framed as "illegal" relative to others and what work such a framing is meant to do. Having established the relationship between illegality, planning and planned development in the city empirically, the dissertation then analyses a body of case law in the Delhi High Court and the Supreme Court of India to show that the Courts misrecognise illegality in their twin understandings of "encroachment" and "encroacher" when they portray the former as the visible manifestation of what they see as the crisis of the city and the latter as one of the actors primarily responsible for this crisis. Showing how the courts use narratives of the failure of "planned development" and what they call "Government" to justify their interventions into the city, the dissertation describes their attempt to make the city into a governable space using the "Plan in its legal position" to represent an idealized spatial order. Intervening in the crisis of the city towards this idealized order thus becomes not only the primary definition of public interest but also an ethico-moral imperative that acts as a rationality of judicial government.Further, the dissertation argues that the case-law on evictions makes visible the impoverishment of poverty, drawing upon Upendra Baxi's concept of impoverishment as a dynamic process of public decision-making in which it is considered just, right and fair that some people may become or stay impoverished. The Courts enable impoverishment by through the creation of the category of the "encroacher" that binds the identity of the poor to a spatial illegality and becomes the basis of a disavowal of their rights. Additionally, through the discursive erasure of the vulnerability of the poor and the emergence of a new "urban majority" as the subject of urban politics, they transform the poor into improper citizens thereby legitimizing a regime of differentiated citizenship. Using interviews with activists in urban social movements in Delhi, the dissertation further shows how the emergence of the judiciary as the site and object of resistance has resulted in the juridicalisation of resistance: the impact of the presence of the Court within the calculus of negotiation and confrontation as modes of engagement and resistance to evictions. The presence of the Court challenges the choice of strategies of urban social movements, introduces new actors and decision-making processes into movement spaces, alters the content of right-claims and forecloses certain kinds of claimants just as it shapes the political identity and history of basti and its residents themselves. Finally, in conclusion, the dissertation explores how new forms and claims to the city can emerge in response to these challenges that will be not just impassioned, but equitable and effective.
59 citations
••
01 Dec 2016TL;DR: In this paper, the authors identify earned citizenship as a technique of government in the broader political strategy of neoliberal communitarianism, requiring Union citizens to "earn" access to the welfare system through an emphasis on their individual responsibility to fulfil the economic, social and cultural conditions of membership.
Abstract: While ideas on ‘earned citizenship’ have been around in discussions on the coexistence of freedom of movement and nationally-bounded welfare states in the European Union, both the concept and the process it entails have hardly been explored in connection to EU (case) law This contribution identifies earned citizenship as a technique of government in the broader political strategy of neoliberal communitarianism, requiring Union citizens to ‘earn’ access to the welfare system through an emphasis on their individual responsibility to fulfil the economic, social and cultural conditions of membership Analysing economically inactive Union citizens’ access to social assistance benefits, it argues that earned citizenship has been visible since the Court’s early citizenship jurisprudence, but has been reconstructed with the recent Dano-line of case law
45 citations
•
25 Feb 2016
TL;DR: In Sexual States as discussed by the authors, Jyoti Puri tracks the efforts to decriminalize homosexuality in India to show how the regulation of sexuality is fundamentally tied to the creation and enduring existence of the state.
Abstract: In Sexual States Jyoti Puri tracks the efforts to decriminalize homosexuality in India to show how the regulation of sexuality is fundamentally tied to the creation and enduring existence of the state. Since 2001 activists have attempted to rewrite Section 377 of the Indian Penal Code, which in addition to outlawing homosexual behavior is often used to prosecute a range of activities and groups that are considered perverse. Having interviewed activists and NGO workers throughout five metropolitan centers, investigated crime statistics and case law, visited various state institutions, and met with the police, Puri found that Section 377 is but one element of how homosexuality is regulated in India. This statute works alongside the large and complex system of laws, practices, policies, and discourses intended to mitigate sexuality's threat to the social order while upholding the state as inevitable, legitimate, and indispensable. By highlighting the various means through which the regulation of sexuality constitutes India's heterogeneous and fragmented "sexual state," Puri provides a conceptual framework to understand the links between sexuality and the state more broadly.
41 citations
05 May 2016
TL;DR: The Constitution of the Republic of Lithuania (Adopted by the citizens of Lithuania in the Referendum of 25 October 1992) as mentioned in this paper was adopted by the voters of the republic of Lithuania.
Abstract: http://www3.lrs.lt/home/Konstitucija/Constitution.htm 1/28 The Constitution of the Republic of Lithuania (Adopted by the citizens of the Republic of Lithuania in the Referendum of 25 October 1992) The Lithuanian Nation – having created the State of Lithuania many centuries ago, – having based its legal foundations on the Lithuanian Statutes and the Constitutions of the Republic of Lithuania, – having for centuries staunchly defended its freedom and independence, – having preserved its spirit, native language, writing, and customs, – embodying the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers—in the independent State of Lithuania, – fostering national concord in the land of Lithuania, – striving for an open, just, and harmonious civil society and a State under the rule of law, by the will of the citizens of the reborn State of Lithuania, adopts and proclaims this Constitution
39 citations
••
Abstract: Should individuals on American college campuses be permitted to carry concealed weapons? This issue positions second Amendment liberty guarantees against personal safety concerns and learning environment interests. Current policy prescription has yet to appropriately balance these competing demands. Accordingly, this article reviews and comments on three key dimensions of the concealed carry ban controversy. This includes a presentation of the governing case law, a recounting of the relevant social science findings, and a discussion of the societal forces and human dynamics that both inform and influence this public policy debate. We argue that these forces and dynamics constitute cultural impediments to achieving meaningful consensus-building legislation. The manuscript concludes by proposing several justice-based reformist directions with relevancies for academic researchers, political officials, and policy-makers.
••
TL;DR: The European Union is unique among jurisdictions in having constitutionalized its policy goals and methods, by embedding these in the Treaties as mentioned in this paper, and it is the Court of Justice which interprets and delimits them, and instructs the legislature on how and to what extent it may pursue them.
Abstract: The European Union is unique among jurisdictions in having constitutionalized its policy goals and methods, by embedding these in the Treaties. As a result, the legislature is far more constrained in its activities than is the case in other constitutional orders. Yet the Treaties are indeterminate, and it is the Court of Justice which interprets and delimits them, and instructs the legislature on how and to what extent it may pursue them. There is, in substance, a principal–agent relationship between the Court and the EU legislature, enforceable by the Court's capacity to annul legislation contrary to its preferences. An examination of internal market legislation shows that indeed it consists of codification of prior case law. The judicial constraints on the EU legislature are sufficiently tight that the legislature is more akin to a subordinate implementing regulator than to an autonomous political policy-maker.
••
TL;DR: In this article, the authors used the academic resources of childhood studies, to consider dominant and alternative narratives of children's participation within Scottish family law, and they concluded that children’s participation gains protection by being institutionalised, but childrens participation is attenuated because it is not recognized as relational and contextual.
Abstract: Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they ...
•
12 Oct 2016
TL;DR: In this paper, Koen Vriend argues that the fair trial rights as established by the European Court of Human Rights under Article 6 of the European Convention on Human Rights (ECHR) provide a normative framework that does not only apply in a full criminal trial, but also can also be used for diverted and shortened proceedings.
Abstract: In modern societies, full criminal trials are avoided on many occasions. This thesis is concerned with mechanisms that either divert from or speed up the proceedings. Koen Vriend argues that the fair trial rights as established by the European Court of Human Rights (ECtHR) under Article 6 of the European Convention on Human Rights (ECHR) provide a normative framework that does not only apply in a full criminal trial, but that it can also be used for diverted and shortened proceedings. He shows that the concept of fairness - as derived from ECtHR case law - is a fundamental principle that underlies all criminal law enforcement. It provides for the appropriate framework to assess whether diverted or shortened proceedings are fair and legitimate.
••
TL;DR: In this article, the authors extend current models by incorporating the crucial role of the underlying institutional logics in terms of an a priori focus on either shareholder rights or stakeholder inclusion, which, in turn, can be traced back to the legal origin of a specific country.
Abstract: Environmental governance has emerged as a recent perspective to explain the link between corporate governance mechanisms and environmental performance such as pollution reduction. We extend current models by incorporating the crucial role of the underlying institutional logics in terms of an a priori focus on either shareholder rights or stakeholder inclusion, which, in turn, can be traced back to the legal origin of a specific country. Using data on a sample of common and civil law countries, we find support for our predictions that a shareholder-focused common law legal origin is associated with significantly higher emissions of CO2, and also that international environmental agreements like the Kyoto protocol seem to have a more pronounced effect in shareholder-centric economies than thus far assumed.
•
TL;DR: In this paper, the authors consider three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform and show that legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis within the legal research framework, in order to provide additional ballast to the recommendations for reform.
Abstract: The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. First, the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Second, it analyses a "snapshot" of recently published Australian journal articles on criminal law reform. Third, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.
•
TL;DR: In this paper, the authors examined the impact of globalisation on inclusive human development in 51 African countries for the period 1996-2011 with particular emphasis on income levels (low income versus middle income), legal origins (English common law versus French civil law), resource wealth (oil-rich versus oil-poor), landlockedness (landlocked versus unlandlocked), religious domination (Christianity versus Islam) and political stability (stable versus unstable).
Abstract: This study examines the impact of globalisation on inclusive human development in 51 African countries for the period 1996-2011 with particular emphasis on income levels (low income versus middle income), legal origins (English common law versus French civil law), resource wealth (oil-rich versus oil-poor), landlockedness (landlocked versus unlandlocked), religious domination (Christianity versus Islam) and political stability (stable versus unstable). The empirical evidence is based on instrumental variable panel Fixed effects and Tobit regressions in order to control for the unobserved heteroegeneity and limited range in the dependent variable. Political, economic, social and general globalisation variables are used. Six main hypotheses are investigated. The findings broadly show that middle income, English common law, oil-poor, unlandlocked, Christian-oriented and politically-stable countries are associated with comparatively higher levels of globalisation-driven inclusive human development. Puzzling findings are elucidated and policy implications discussed.
••
TL;DR: In this paper, the authors review the extant legal scholarship and provide examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy and management.
Abstract: In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy and management. Throughout, we propose critical questions for future investigation, which serve to form a cross-disciplinary research agenda that can contribute fresh insights to scholarly and policy discussions related to the role of universities in economic and social development.
••
TL;DR: In this article, the authors investigated the role of technical reserves in the income smoothing behavior of insurance companies in a multi-country setting and found that there is a significant evidence of smoothing.
Abstract: This paper investigates the role of technical reserves in the income smoothing behavior of insurance companies. This is one of the first attempts in the literature to trace such relationship in the insurance industry, especially at a multi-country setting. The experience of 770 insurance firms operating in 87 countries over the period 2000–2009 reveals that there is a significant evidence of income smoothing. The paper also finds that institutional characteristics, e.g., the rule of law, common law legal origin, economic freedom, and regulations relating to technical provisions and supervisory power constrain income smoothing but other factors such as capital requirements, tax deductibility of provisions, auditing, and corporate governance do not have a significant effect.
•
04 Feb 2016
TL;DR: In this paper, a conceptual analysis of the proportionality of non-consensual adoptions in England and Wales is conducted by examining the English legislation and case law on adoption and the jurisprudence of the European Court of Human Rights (ECtHR).
Abstract: This thesis conducts a conceptual analysis of the proportionality of non-consensual adoptions in England and Wales It does so by examining the English legislation and case law on adoption and the jurisprudence of the European Court of Human Rights (ECtHR) This thesis considers and applies rights from the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) to determine when non-consensual adoption may be regarded as a necessary and proportionate interference with children’s and parents’ rights
The proportionality principle requires the domestic courts and the ECtHR to strike a balance between the various rights and interests of children and parents while taking into account children’s welfare The final strand of the proportionality principle identifies whether the State measure is the least restrictive measure available to satisfy the State’s objective This strand is not applied in all non-consensual adoption cases heard by the domestic courts or the ECtHR However, this thesis argues it is essential to identify whether less restrictive alternatives exist as these measures may prove equally effective in protecting children’s welfare when compared with adoption, and may also protect children’s and parents’ rights
This thesis makes a conceptual contribution to the academic scholarship on non-consensual adoption law by identifying how the UNCRC, the ECHR, the best interests principle and ECtHR jurisprudence can be applied so as to provide optimal protection for children’s and parents’ rights in adoption cases This thesis concludes that judicial reasoning in the courts should routinely consider UNCRC rights and the effectiveness of less restrictive alternatives Furthermore, it argues that there is a positive obligation under ECHR Article 8 to provide State assistance in circumstances where children can safely be raised by their parents, which is not yet recognised in English case law
••
TL;DR: The authors examined the relationship between creditor protection, law reform and credit expansion using longitudinal data for four OECD countries between 1970 and 2005, and showed that laws strengthening creditors' control over debtor firms in these four countries had a long-term positive effect on the expansion of private credit.
Abstract: We examine the relationship between creditor protection, law reform and credit expansion using longitudinal data for four OECD countries between 1970 and 2005. By decomposing the different elements of creditor protection, we show that civil law countries (France and Germany) have developed a high level of protection for creditors in the form of controls over the management of debtor firms, while common law countries (UK and USA) have arrived at a high degree of protection in relation to secured creditors' contractual rights over firms' assets. Using panel causality tests and dynamic panel data modelling, we show that laws strengthening creditors' control over debtor firms in these four countries had a long-term positive effect on the expansion of private credit, while reforms increasing secured creditors' rights had a negative effect. We explore the implications of our findings for legal origin theory and the varieties of capitalism approach.
•
TL;DR: In this article, the meaning of TEU in relation to the so-called Rule of Law Initiatives of the EU Commission and Council is analyzed and the authors argue that the very identity of the foundational values of the Union and the Member States causes the impossibility of delimiting the scope of EU law from that of Member States when it comes to guaranteeing them.
Abstract: This paper describes and analyses the meaning of Article 7 TEU in relation to the so-called Rule of Law Initiatives of the EU Commission and Council.It argues that the very identity of the foundational values of the Union and the Member States causes the impossibility of delimiting the scope of EU law from that of Member States when it comes to guaranteeing them. This explains the politically highly sensitive nature of doing so by action of EU institutions.
•
17 Oct 2016TL;DR: In this article, the authors provide a comprehensive overview of the increasingly important discipline of international investment law, focusing primarily on the legal principles contained in the growing body of International investment agreements.
Abstract: This insightful and accessible introduction provides students and practitioners with a comprehensive overview of the increasingly important discipline of international investment law. Focusing primarily on the legal principles contained in the growing body of international investment agreements, this book covers the core concepts of the discipline with attention given to their relation to each other and to the manner in which they have been developed through arbitration case law. The context of each legal principle is explored along with a consideration of some of the major debates and emerging criticisms. Avoiding extensive case extracts, this book adopts an engaging and succinct narrative style which allows readers to advance their understanding of the topic while examining the legal principles with academic rigour and discerning commentary.
•
21 Nov 2016
TL;DR: In this paper, the authors examined the application of Malaysian copyright law in addressing the issues arising in relation to digital technologies and whether it maintains a balance of interests between copyright owners and the public in the digital environment.
Abstract: Copyright law encourages authors to create and share their works with the public by affording them legal protection over their works when published. However, copyright law does not give authors absolute rights so as to ensure that the public will benefit from the works produced by authors. In this way, copyright law promotes the progress of arts and science. The importance of maintaining a balance of interests between copyright owners and the public is widely acknowledged and emphasized in international treaties on intellectual property rights as well as by the courts in case law. The development of digital technologies has brought substantial challenges to copyright law. The process of copying and sharing of digital works is made extremely easy and at low cost. Copyright owners have thus lobbied for stronger protection under copyright law and succeeded in doing so. It is therefore crucial to study how copyright law accommodates the issues raised by digital technologies and whether it provides a balance of interests between copyright owners and the public in doing so. This thesis examines the application of Malaysian copyright law in addressing the issues arising in relation to digital technologies and whether it maintains a balance of interests between copyright owners and the public in the digital environment. The advent of digital technologies has raised a wide range of copyright concerns. This thesis looks into the questions in five selected areas, namely, digital appropriation of copyright works, the setting of links on websites, peer-to-peer file sharing, the limitation of liabilities of service providers and legal protection over technological protection measures. This thesis analyzes the Copyright Act 1987, being the statute governing copyright matters in Malaysia. It also makes reference to three main jurisdictions, namely, the United States, the United Kingdom and Australia, wherever it is necessary and relevant. Malaysian copyright law is inadequate and insufficient in many ways in addressing the issues in the identified areas. Overall, Malaysian copyright law tilts in favour of copyright owners at the expense of public interest. This thesis concludes with recommendations on how Malaysian copyright law may handle the issues raised by digital technologies more adequately and efficiently, with the ultimate object of striking a balance between the interests of copyright owners and the public.
•
TL;DR: The authors examined a half century of case law involving robots and concluded that jurists on the whole possess poor, increasingly outdated views about robots and hence will not be well positioned to address the novel challenges they continue to pose.
Abstract: This article closely examines a half century of case law involving robots—just in time for the technology itself to enter the mainstream. Most of the cases involving robots have never found their way into legal scholarship. And yet, taken collectively, these cases reveal much about the assumptions and limitations of our legal system. Robots blur the line between people and instrument, for instance, and faulty notions about robots lead jurists to questionable or contradictory results. The article generates in all nine case studies. The first set highlights the role of robots as the objects of American law. Among other issues, courts have had to decide whether robots represent something “animate” for purposes of import tariffs, whether robots can “perform” as that term is understood in the context of a state tax on performance halls, and whether a salvage team “possesses” a shipwreck it visits with an unmanned submarine.The second set of case studies focuses on robots as the subjects of judicial imagination. These examples explore the versatile, often pejorative role robots play in judicial reasoning itself. Judges need not be robots in court, for instance, or apply the law robotically. The robotic witness is not to be trusted. And people who commit crimes under the robotic control of another might avoid sanction. Together these case studies paint a nuanced picture of the way courts think about an increasingly important technology. Themes and questions emerge that illuminate the path of robotics law and test its central claims to date. The article concludes that jurists on the whole possess poor, increasingly outdated views about robots and hence will not be well positioned to address the novel challenges they continue to pose.
•
TL;DR: In this article, the authors apply a comparative legal and economic approach to the study of third-party litigation funding (TPLF), one of the most innovative trends in civil litigation financing today.
Abstract: This article represents the first attempt to apply a comparative legal and economic approach to the study of third-party litigation funding (TPLF) - one of the most innovative trends in civil litigation financing today. TPLF consists of the practice where a third party offers financial support to a claimant in order to cover his litigation expenses, in return for a share of damages if the claim is successful. The third party receives no compensation if the claimant loses the suit. While such practice has been rapidly developing in the common law world (Australia, United States, and United Kingdom), in the civil law world its existence is very limited (Germany, Austria, and Switzerland). On both sides of the Ocean, a heated debate is dividing supporters and critics of TPLF, regarding its legality and desirability. Notwithstanding, the scholarly attention to TPLF has been unsatisfactory as it is too domestically oriented and scarce when compared to the long-term potential consequences of this innovative practice - only one among a series of trends based on interactions between the civil justice system and the world of finance. TPLF represents for the claimholder the possibility to deal with the costs and eliminate the risks of litigation, maximizing the expected value of his claim by bargaining with an investor over 'property rights in litigation.' From the economic analysis derives the conclusion that TPLF is efficient and increases access to justice, though some externality problems might exist. From the legal analysis emerges the fact that common problems and judicial orientations exist in all jurisdictions where TPLF has developed, particularly as far as the issue of control over the litigation is concerned. Finally, this Article opens to a reflection on why TPLF has not developed in the civil law world as it has in the common law and advances some hypotheses on future developments of the industry.
•
20 Sep 2016
TL;DR: Roy and Swamy as discussed by the authors trace the origins of the current Indian legal system to the years of British colonial rule and show how India inherited an elaborate legal system from the British colonial administration, which incorporated elements from both British Common Law and indigenous institutions.
Abstract: Since the economic reforms of the 1990s, India’s economy has grown rapidly. To sustain growth and foreign investment over the long run requires a well-developed legal infrastructure for conducting business, including cheap and reliable contract enforcement and secure property rights. But it’s widely acknowledged that India’s legal infrastructure is in urgent need of reform, plagued by problems, including slow enforcement of contracts and land laws that differ from state to state. How has this situation arisen, and what can boost business confidence and encourage long-run economic growth? Tirthankar Roy and Anand V. Swamy trace the beginnings of the current Indian legal system to the years of British colonial rule. They show how India inherited an elaborate legal system from the British colonial administration, which incorporated elements from both British Common Law and indigenous institutions. In the case of property law, especially as it applied to agricultural land, indigenous laws and local political expediency were more influential in law-making than concepts borrowed from European legal theory. Conversely, with commercial law, there was considerable borrowing from Europe. In all cases, the British struggled with limited capacity to enforce their laws and an insufficient knowledge of the enormous diversity and differentiation within Indian society. A disorderly body of laws, not conducive to production and trade, evolved over time. Roy and Swamy’s careful analysis not only sheds new light on the development of legal institutions in India, but also offers insights for India and other emerging countries through a look at what fosters the types of institutions that are key to economic growth.
••
TL;DR: In this paper, an overview of the past and current state of European Union copyright, of the case law that has allowed the Court of Justice of the European Union to develop and affirm its own concepts and indicates what could and should be expected for the future of European EU copyright law.
Abstract: The first European Union Directive in the field of copyright was enacted nearly 25 years ago. Similarly to many other directives that followed, that Directive was “vertical” in scope, meaning that its “harmonising” effects were limited to the specific subject matter therein regulated (in this case, software). Other examples of “vertical harmonisation” are found in the field of photographs and databases as well as in many other European Union directives in the field of copyright, making this fragmented approach a typical trait of European Union Copyright law harmonisation. The reason for what could be labelled ‘piecemeal legislation’ can be linked to the limited power that the European Union had, until recently, in regulating copyright. As it can be easily verified from their preambles, all European Union Copyright Directives are mainly grounded in the smooth functioning of the internal market. It is the internal market—rather than copyright—that has driven the harmonisation of European Union copyright law to date. Nevertheless, if we look at the entire body of European Union copyright law today (the so called acquis communautaire) it certainly appears much more harmonised than what may be suggested by the above. The reason for this “unexpected” situation can most likely be found in the fundamental role that the Court of Justice of the European Union has played in interpreting and—some would argue—in creating European Union copyright law. Using the example of the originality standard, this paper offers an overview of the past and current state of European Union copyright, of the case law that has allowed the Court of Justice of the European Union to develop and affirm its own concepts and indicates what could and should be expected for the future of European Union copyright law.