Showing papers on "Common law published in 2017"

On the Foundations of Corporate Social Responsibility

Abstract: Using corporate social responsibility (CSR) ratings for 23,000 companies from 114 countries, we find that a firm's CSR rating and its country's legal origin are strongly correlated. Legal origin is a stronger explanation than “doing good by doing well” factors or firm and country characteristics (ownership concentration, political institutions, and globalization): firms from common law countries have lower CSR than companies from civil law countries, with Scandinavian civil law firms having the highest CSR ratings. Evidence from quasi-natural experiments such as scandals and natural disasters suggests that civil law firms are more responsive to CSR shocks than common law firms.

Corporate Environmental Responsibility: A Legal Origins Perspective

Abstract: In this study, we examine the determinants of corporate environmental responsibility (CER), as well as the relationship between legal systems and CER as measured by a unique set of global environmental cost data. Results of our analyses show that firms’ legal origins affect CER, which requires a long-term management perspective. Specifically, our results indicate that civil law firms exhibit significantly higher levels of CER than common law firms. In addition, results of an auxiliary test suggest that manager shareholding has a significant, nonlinear relationship with CER. The association between a firm’s legal origin and its CER performance remains robust after controlling for the effects of managerial ownership and issues related to endogeneity. Our findings imply that although the majority of corporate law studies in the past few decades provide support for the common law system emphasizing the maximization of shareholder value and investor protection, the civil law system stressing the maximization of stakeholder wealth and the importance of CER may become more influential in the coming decades as CER becomes central to firms’ operations.

Gender and refugee status

Abstract: This is the first comprehensive socio-legal study of the interrelation between gender and the law of refugee status. In the past decade, the issue has received increasing attention in academic writing, the media and the courtroom. This book contains an interdisciplinary analysis. The empirical data, collected for this study and not published previously, concerns Dutch asylum practice. The Netherlands is a prominent refugee-receiving country in Europe, yet hardly any English texts address Dutch refugee law. The book also covers foreign case law and academic writing. Therefore, the analysis is relevant for all refugee-receiving countries in the Western world; the empirical data on The Netherlands functions as a case study. The book combines perspectives of post-structuralist feminism and post-colonial studies. Refugee women are constructed as a double other. This intersectionality is related to the construction of the Third World as feminine (passive, in need of active outside intervention etc., etc.). The book provides a comprehensive overview of academic writing and of case law on the subject. On this basis of theoretical perspectives that were almost ignored until now, it develops an innovative critique of refugee law discourse and outlines its possible consequences for legal doctrine.

Corporate social responsibility and firm financial risk reduction: On the moderating role of the legal environment

Abstract: Approaching the institutional environment through its regulative component, we distinguish between shareholder-oriented and stakeholder-oriented countries. Identifying first this classification with the distinction between common law versus civil law countries and using a large sample of 5,716 firm-year observations that represents 1,169 individual firms in 25 countries between 2001 and 2011, we show that Corporate Social Responsibility (CSR) significantly reduces firms’ idiosyncratic risk in civil law countries but not in common law countries. Using then a more direct classification based on shareholder and employee protection scores, our findings suggest that CSR negatively affects firms’ idiosyncratic and systematic risks only in less shareholder-oriented and more stakeholder-oriented countries, respectively. These findings are similar in the different components of CSR with two notable exceptions: a high score in corporate governance reduces firm risk only in common law countries, and community involvement increases idiosyncratic risk in more shareholder-oriented and less stakeholder-oriented countries, respectively. Taken together, our results strongly support the view that the relationship between CSR and financial risk is moderated by the institutional context of the firm.

The Comparative Inclusive Human Development of Globalisation in Africa

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 vs. middle income), legal origins (English common law vs. French civil law), resource wealth (oil-rich vs. oil-poor), landlockedness (landlocked vs. unlandlocked), religious domination (Christianity vs. Islam) and political stability (stable vs. unstable). The empirical evidence is based on instrumental variable panel Fixed effects and Tobit regressions in order to control for the unobserved heterogeneity 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.

Financial Development, Growth Volatility and Information Asymmetry in Sub‐Saharan Africa: Does Law Matter?

Abstract: We re-examine the law–finance theory relying on 33 countries in sub-Saharan Africa over the period 2004–2011. Our evidence suggests that legal origin significantly explains cross-country differences in financial development and economic volatility. More importantly, relative to civil law, English common law countries and those in Southern Africa have higher financial sector development both in terms of financial activity and banking efficiency on the back of lower volatility. While private credit bureau positively (negatively) affects financial development (economic volatility) with economically large impact for English legal legacy countries, the latter effect is contingent on the form of legal origin suggesting that, the establishment of information sharing offices per se may be insufficient in taming growth vagaries.

The Practice of Shared Responsibility in International Law

Abstract: Emerging robustly in the 1990s as a global tour de force in the globalisation process, ‘multinational corporations’ (MNCs), also referred to as ‘multinational enterprises’ (MNEs) or ‘transnational corporations’ (TNCs) introduced complex international structures connected to states, but at the same time transcending national boundaries. According to Shaw, MNCs ‘constitute private organisations comprising several legal entities linked together by parent corporations and are distinguished by size and multinational spread’. The operations of multinational corporations raise important questions of shared responsibility, because of the globalised nature of their operations and the impact of their activities. As Clapham correctly pointed out, a single actor by its action can generate multiple violations by a range of actors, thereby raising the question of shared responsibility and allocation of liability. In other words, an MNC through its global transactions with other actors may set in motion a chain of activities that may lead to multiple harmful outcomes and subsequent claims. The situation is further complicated by the structure of international law and the fact that at present there is no international tribunal or court that has jurisdiction over MNCs. It is argued in this chapter that despite the conceptual difficulties in applying shared responsibility to MNCs under international law, there are significant developments at the international level which may facilitate allocation of shared responsibilities between MNCs and other entities implicated in a violation of international law. This chapter starts by contextualising the situations that may lead to shared responsibility between MNCs and other parties under international law (section 2). The chapter thereafter discusses the state of international law on the responsibility of states for the actions of MNCs (section 3). The chapter also examines situations that may lead to shared responsibility in the interaction between home states, host states and MNCs, especially in the context of investment treaties (section 4). The chapter further examines existing soft law rules on the international responsibility of MNCs and their potential implication (if any) for the concept of shared responsibility (section 5). Attention is paid to the United Nation’s Framework for Business and Human Rights (Framework) and the Guiding Principles on Business and Human Rights (Guiding Principles) developed by the former United Nations (UN) Special Representative for Human Rights and Business, John Ruggie, because of their currency and possible potential for the future. The chapter also discusses the relevant case law (section 6) and conceptual difficulties posed by the current structure of international law to shared responsibility of MNCs (section 7).

Enter at your own risk: free movement of EU citizens in practice

Abstract: The citizenship jurisprudence of the European Court of Justice has raised hopes for a more social Europe and triggered fierce debates about ‘social tourism’. The article analyses how this case law ...

The Commercial Appropriation of Fame : A Cultural Analysis of the Right of Publicity and Passing Off

Abstract: Celebrities can sell anything from cars to clothing, and we are constantly fascinated by their influence over our lifestyle choices. This book makes an important contribution to legal scholarship about the laws governing the commercial appropriation of fame. Exploring the right of publicity in the US and the passing off action in the UK and Australia, David Tan demonstrates how an appreciation of the production, circulation and consumption of fame can be incorporated into a pragmatic framework to further the understanding of the laws protecting the commercial value of the celebrity personality. Using contemporary examples such as social media and appropriation art, Tan shows how present challenges for the law may be addressed using this cultural framework. This book will be of interest to intellectual property law academics, judges, practitioners and students in the US and common law jurisdictions, as well as those in the field of cultural studies.

The Child in International Refugee Law

Abstract: Children are the victims of some of the most devastating examples of state-sanctioned and private human rights abuse. In increasing numbers, they are attempting to find international protection, and are forced to navigate complex administrative and legal processes that fail to take into account their distinct needs and vulnerabilities. The key challenges they face in establishing entitlement to refugee protection are their invisibility and the risk of incorrect assessment. Drawing on an extensive and original analysis of jurisprudence of leading common law jurisdictions, this book undertakes an assessment of the extent to which these challenges may be overcome by greater engagement between international refugee law and international law on the rights of the child. The result is the first comprehensive study on the manner in which these two mutually reinforcing legal regimes can interact to strengthen the protection of refugee children.

Corporate Social Responsibility and Firm Financial Risk Reduction: On the Moderating Role of the Legal Environment

Abstract: Approaching the institutional environment through its regulative component, we distinguish between shareholder-oriented and stakeholder-oriented countries. Identifying first this classification with the distinction between common law versus civil law countries and using a large sample of 5,716 firm-year observations that represents 1,169 individual firms in 25 countries between 2001 and 2011, we show that Corporate Social Responsibility (CSR) significantly reduces firms’ idiosyncratic risk in civil law countries but not in common law countries. Using then a more direct classification based on shareholder and employee protection scores, our findings suggest that CSR negatively affects firms’ idiosyncratic and systematic risks only in less shareholder-oriented and more stakeholder-oriented countries, respectively. These findings are similar in the different components of CSR with two notable exceptions: A high score in corporate governance reduces firm risk only in common law countries, and community involvement increases idiosyncratic risk in more shareholder-oriented and less stakeholder-oriented countries, respectively. Taken together, our results strongly support the view that the relationship between CSR and financial risk is moderated by the institutional context of the firm.

The European Court of Justice and its political impact

Abstract: This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative an...

At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India

Abstract: In March 2017, the High Court of Uttarakhand in India ruled in the Ganges and Yamuna and the Glaciers cases that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand enjoy legal rights. In both cases, the High Court established the natural objects as legal minors and conferred guardianship responsibilities on several individuals within the state government of Uttarakhand. These judgments create novel legal rights for nature and, as such, present powerful examples of the increasing relevance of rights-centred environmental protection. The impact of this case law, however, is uncertain. As a start, the legal rights entrusted to nature are underpinned by such broad definitions of 'harm' that it is difficult to envision successful implementation. Further, the Ganges and Yamuna case is currently stayed pending appeal to the Supreme Court, which may decide to overturn the High Court's findings. Still, these cases are important to analyse, especially in light of how constructing nature as a legal subject/legal person shifts environmental law away from public law and into the sphere of private law. Also, the Ganges and Yamuna case draws explicitly on Hinduism to support the sacred status of the Ganges and Yamuna rivers, which, in the current context of the Hindu Nationalist Movement, may prove controversial.

The New Dispute Settlers : (Half) Truths and Consequences

Abstract: I. INTRODUCTION Not long ago, at a conference not unlike this one on "The Proliferation of International Judicial Bodies" at New York University, it was suggested that the "enormous expansion and transformation of the international judiciary" at the end of the twentieth century would be regarded by future international lawyers as "the single most important development of the post-Cold War age."1 This conclusion is plausible. After all, in the decade between 1989 and 1999, almost a dozen international judicial bodies have become active or have been extensively reformed (including dispute settlement mechanisms in the then General Agreement on Tariffs and Trade (GATT) and in a newly designed European Court of Human Rights). Indeed, the chart released at that conference identified seventeen international judicial bodies in existence and an additional thirty-seven quasi-judicial bodies, involving some 200 individuals in permanent bodies who could now be described as the kind of beings that did not exist a mere 100 years ago, namely "international judges."2 That conference also made much of the fact that of the international judicial bodies in existence, those granting standing to non-state entities far outnumbered those whose jurisdiction was limited to disputes between states. This development was touted as a singular transformation of the nature of international dispute settlement and a testament to the expanding competence and power of the international judiciary.3 That conference advanced the view that there was now a new discipline devoted to the study of international judicial law and organization that supplanted the well-worn topic of the "peaceful settlement of disputes."4 Accordingly, conference participants engaged the new discipline by discussing such cutting-edge issues as the potential threat posed to international law by conflicting judicial decisions; the prospects for the constitutionalization of the international legal order, including the potential for forms of judicial review within and perhaps even between international organizations; the growing phenomenon of "transjudicial communication," not only between the various international courts, but also between those tribunals and national courts; and the dilemmas posed by forum shopping among litigants.5 These topics suggest why judicialization remains a popular topic with international lawyers. The recent proliferation of international tribunals permits us to address questions that we once (enviously) had to leave to our domestic colleagues. Now we too can focus on real law-real cases decided by real judges. No longer do public international lawyers have to be content with parsing arcane, rare, and rather dull boundary dispute decisions issued by the International Court of justice (ICJ) that all too often involved "equitable" demarcations (as with respect to maritime boundaries) that appeared to be based on notions of fairness and not hard rules.6 Finally, international law professors can start doing their share of the heavy lifting of the law school enterprise. Like our constitutional colleagues, we too can talk about the democratic legitimacy or accountability of our judges (or alternatively bemoan their "politicization"). We too can write learned tomes on the merits of reliance on original intent versus teleological interpretation of founding texts, from the WTO-covered agreements to the UN Charter. Like our colleagues in administrative law, we can expound on the intricacies of improper delegation to unelected judges or the level of deference (Chevron or otherwise) that such judges owe either organs of international organizations or executive determinations made within national legal systems.7 Those of us within common law systems now see the day when we too can discuss the rise of de facto stare decisis (despite troublesome hurdles like Article 59 of the ICJ Statute)8 or the impact international precedents have on other actors, from national courts to negotiators at the next WTO round. …

Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958

Abstract: The Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides a detailed analysis of the judicial interpretation and application of the New York Convention by reference to case law from 45 Contracting States. The Guide, and the newyorkconvention1958.org website which supplements it, will become an essential tool that benefits all those involved in the interpretation and application of the New York Convention.

Private enforcement of corporate law: An empirical comparison of the UK and US

Abstract: IIt is often assumed that strong securities markets require good legal protection of minority shareholders. This implies both "good" law -- principally corporate and securities law -- and enforcement, yet there has been little empirical analysis of enforcement. We study private enforcement of corporate law in two common law jurisdictions with highly developed stock markets, the United Kingdom and the United States, examining how often directors of publicly traded companies are sued, and the nature and outcomes of those suits. We find, based a comprehensive search for filings over 2004-2006, that lawsuits against directors of public companies alleging breach of duty are nearly nonexistent in the UK. The US is more litigious, but we still find, based on a nationwide search of decisions between 2000-2007, that only a small percentage of public companies face a lawsuit against directors alleging a breach of duty that is sufficiently contentious to result in a reported judicial opinion, and a substantial fraction of these cases are dismissed.We examine possible substitutes in the UK for formal private enforcement of corporate law and find some evidence of substitutes, especially for takeover litigation. Nonetheless, our results suggest that formal private enforcement of corporate law is less central to strong securities markets than might be anticipated.

The secularization of ecclesiastical privileges in medieval England and their subsequent adoption and use in Colonial America1066-1766

Abstract: This thesis demonstrates that I have provided a sustained, original, coherent, and significant contribution to scholarly research on benefit of clergy as it transitioned from ecclesiastical use to temporal during the late middle ages and how once secularized was subsequently adopted and used in colonial Virginia and Massachusetts. The Introduction argues that whereas benefit of clergy existed in the English-speaking world for almost fifteen hundred years it has been largely dismissed as evil, a farce and a queer old legal anomaly. At its worst it permitted members of the church immunity from prosecution before secular courts for the crimes of murder, robbery, rape and a suite of other felonies. At its best it saved women, children and the poor from the gallows for the most minor of thefts. I argue that the life and history of benefit of clergy is a fascinating and important insight into the development of the common law and the relationship that members of the church had with the society they served. Over time the benefit became available to first time offenders regardless of their station in society in exchange for a sentence of transportation to the American colonies. The criminal courts of England attached an indentured servitude to benefit pleas resulting in thousands of men and a few women and children being sent to Virginia to service the labor pool needed to make Virginia the financial success its London backers had hoped for. Within a short period of time benefit of clergy became an established part of the legal system of the colony to the extent that it was possible to claim benefit of clergy in Virginia and be transported away to the West Indies. Further north the motivation for colonization differed. The early arrivals to Massachusetts were familiar with benefit of clergy but their enthusiasm for wholesale adoption of English common law was tepid. Notwithstanding these reservations the practicality of having a mitigatory plea that was known to all members of the community meant that the written law could appear to embrace religious severity but in practice could be applied with leniency when appropriate. The Critical Essay demonstrates my contribution beyond what has previously been offered. Prior to my works there was one scholarly book dedicated to the topic of benefit of clergy. Leona Gabel’s 1923 doctoral thesis was published in 1928 as Benefit of Clergy in England in the Later Middle Ages. Since her work there have been a couple of dozen scholarly articles and an entertaining unreferenced read by George Dalzell, Benefit of Clergy in America published posthumously in 1955. I have made a unique contribution in bringing the related legal options to claim sanctuary, abjuration, exile and outlawry into the benefit of clergy discussion. Also, I have argued that it is vital to an informed understanding of the uptake and use of benefit of clergy in colonial America that the history of the arguments that took place in England during the twelfth, thirteenth and fourteenth centuries are explored to appreciate why transported felons would adopt and apply clericus in such different worlds as existed in Virginia and Massachusetts. The Critical Essay does not attempt to explain or utilize primary sources in theology. Nor does it seek to interpret theoretical canon law from the period. Through the use of case examples my work takes a case based approach to describe the social setting of benefit of clergy throughout this period of history. By examining examples of benefit of clergy use and abuse a better understanding may be gained of the socio-legal world of the late Middle Ages which will help locate privilegium fori as an organic privilege that shifted from ecclesiastical exclusivity to secular adoption. It attempts to explain that benefit of clergy, though much and inexcusably abused, was not exceptional, rather the opposite. Clericus began as a plea available to a few select men who had a particular status in society. This of itself is not unusual. Over time the advantages of having immunity from certain sanguinary remedies became clear to an audience far greater than just England’s clergy. Defending benefit of clergy as an exclusive ecclesiastical privilege became impossible because of its wholesale abuse. Eventually it would have to have been rescinded by the secular law or adopted. It was modified, adopted and then lived on for another five hundred years in consistently changing applications. A life of five hundred years is much more than a legal farce. It is a statement of societal growth. Of the clericus plea there is little scholarly pusillanimity but it tends to follow one track; benefit of clergy was a farce, a legal fiction. I reject this interpretation and my Critical Essay provides an alternative and plausible history.

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union:

Abstract: We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their r ...

Earned citizenship - understanding Union citizenship through its scope.

Abstract: In this contribution I will argue that we are witnessing a reactionary phase in the Court’s interpretation of the citizenship provisions which not only reaffirms the migration paradigm, but also contracts the scope of application of Article 20(1) TFEU, as well as imposing additional criteria for the enjoyment of citizenship rights to those provided for in Directive 2004/38. In turn, this development in the case law has important repercussions on the way we think about Union citizenship – in particular, the dichotomy status/beneficiary, together with the additional requirements imposed by the Court and the reallocation of responsibility of vulnerable citizens across national boundaries, not only reduce the relevance of Union citizenship, but transform it from a fundamental status to a mere additional one, so that the significance of Union citizenship is much reduced. Whilst this turn in the case law can be defended from a hermeneutic perspective, it has important consequences. First, it restates the primacy of the market citizen; secondly, and more importantly, Union citizenship far from being a uniting concept becomes a vehicle for further discrimination. In this writer’s perspective it becomes near impossible to defend the concept of Union citizenship so interpreted: no citizenship at all is preferable to such an unequal citizenship.

Empire, Emergency and International Law

Abstract: What does it mean to say we live in a permanent state of emergency? What are the juridical, political and social underpinnings of that framing? Has international law played a role in producing or challenging the paradigm of normalised emergency? How should we understand the relationship between imperialism, race and emergency legal regimes? In addressing such questions, this book situates emergency doctrine in historical context. It illustrates some of the particular colonial lineages that have shaped the state of emergency, and emphasises that contemporary formations of emergency governance are often better understood not as new or exceptional, but as part of an ongoing historical constellation of racialised emergency politics. The book highlights the connections between emergency law and violence, and encourages alternative approaches to security discourse. It will appeal to scholars and students of international law, colonial history, postcolonialism and human rights, as well as policymakers and social justice advocates.

End Impunity! Reducing Conflict‐Related Sexual Violence to a Problem of Law

Abstract: [After conflict-related sexual violence,] the anger and shame left behind can tear communities apart and make wars last longer-especially when the monsters who do it are allowed to get away with it... But it doesn't have to be this way. Rape and sexual violence are the worst crimes you can imagine, but they are not an inevitable part of war. It's time to act, to end sexual violence in conflict. Time to act, to bring those responsible to justice (Foreign and Commonwealth Office 2014a).In June 2014, the UK government hosted the high-level Global Summit to End Sexual Violence in Conflict, reported as "the largest gathering ever brought together on the subject."1 It culminated in unanimous agreement among state delegates to "tackle impunity for the use of rape as a weapon of war," (Gov.uk 2014) and a best practices protocol on how to document and investigate sexual violence in conflict-situations to promote accountability (Foreign and Commonwealth Office 2014b). The quote that introduces this article is from the voiceover of a campaign video released by the UK Foreign and Commonwealth Office as part of that summit. Over the screams of women and roars of animated monsters/brutes/men, the female voice talks about the wide-ranging and devastating consequences of "the worst crimes you can imagine"-before she presents what needs to be done to end conflict-related sexual violence: End impunity. In many ways, this campaign video epitomizes the subject matter of this article: Through political, activist, and legal campaigning during the last two decades, the fight against conflict-related sexual violence has become the fight against impunity. That is not a small change. Until fairly recently, criminal prosecution of conflict-related sexual violence was practically unheard of. Today, criminal prosecution has become the framework within which all matters to do with conflict-related sexual violence are dealt with. As the current UN Secretary General's Special Representative on Sexual Violence in Conflict, Zainab Bangura (2013), has emphasized, "[t]here's no way to end sexual violence unless you end impunity." From being silenced in hard politics circles, rendered unavoidable, and seen as a natural side effect of war through most of history, conflict-related sexual violence has reached the highest echelons of international attention in recent years.Whereas much has been written about the development of an international legal doctrine on conflict-related sexual violence (Copelon 2000; de Brouwer 2005; Halley 2008), critical approaches to international criminal law generally (Drumbl 2007; Tallgren 2002) have yet to merge with thematic scholarship on conflictrelated sexual violence. As a result, and albeit criticisms of case law development and prosecutorial strategies exist (Bergsmo 2012; Henry 2011), there have been few attempts to analytically reflect on the recent rise of criminal law as the utmost solution to the challenge that conflict-related sexual violence is. As Engle (2005: 784) commented more than a decade ago, "as criminalization of wartime rape marches forward ... there has been little reflection ... on whether more criminalization is necessarily better than less."This article continues the scholarly conversation about conflict-related sexual violence and its emergence as a "hot topic" on academic, legal, political, and activist agendas (Grewal 2015; Henry 2014). In so doing, it connects with constructivist approaches in international relations theory that stress the constitutive role of human rights norms (Adler 1997; Risse, Sikkink, and Ropp 2013; Wendt 1999). Much of this research has been concerned with the emergence, diffusion, and internalization of norms, including the role of nongovernmental organizations (NGOs) in the development of the "justice cascade"-that is the "shift in the legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal prosecutions on behalf of that norm" (Sikkink 2011: 5; see also Glasius 2006; Haddad 2011; Lohne forthcoming). …

Property Rights in Personal Information: An Economic Defense of Privacy

Abstract: This chapter shows that, with respect to privacy in personal information, the skepticism in the economic literature is overstated. It outlines the standard economic critique of personal privacy. The chapter analyzes how the framework plays out for information obtained without consent and information obtained through voluntary transactions. By changing the way people behave with respect to their personal information, privacy rules generate a number of dynamic benefits. Privacy rules permit the satisfaction of private preferences. An activity that may generate embarrassment or reprobation from some sectors of society will not occur if the activity carries with it a significant risk of being disclosed. Statutory privacy legislation has generated considerable criticism from economists, it is viewed as the inefficient enemy of the common law. Much of this criticism is justified, particularly when it is leveled against mandatory nondisclosure. In the attorney-client and physician-patient transactions, a privacy default rule is the obvious choice.

U.S. Case Law and Legal Precedent Affirming the Due Process Rights of Immigrants Fleeing Persecution.

Abstract: The political discourse on domestic immigration policy has shifted rapidly in recent years, mirrored by similar shifts in the geopolitical climate worldwide. However, a nuanced assessment of the legal basis backing such rhetoric is sorely lacking. This article examines the historical, legal, and case law precedent as it pertains specifically to immigrants who are fleeing persecution and residing within the United States. Due process rights emerged from the Fifth, Sixth, and Fourteenth Constitutional Amendments and have been expanded to include this population through several sequential United States Supreme Court Cases. We review the 1951 Convention Related to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees and examine subsequent case law and legal precedent. We then present evidence documenting widespread violations of due process rights for immigrants fleeing persecution. Specifically, we address the right to a fair hearing for individuals fearing for their lives upon return to their home country, the right against wrongful detainment, and the right to apply for asylum regardless of religion or country of origin. We conclude by addressing potential counterarguments to our thesis, future directions, and the role of forensic psychiatrists.

Capital punishment in South Asia (India, Pakistan and Bangladesh): a legal analysis

Abstract: Despite the inexorable global trend towards abolition, India, Pakistan and Bangladesh have not embraced the abolitionist movement and still fail to accept capital punishment as a human rights issue. The application of capital punishment in the Indian subcontinent is not only a violation of international human rights law but is also contradictory to the domestic constitutional provisions that guarantee the right to life, the right to a fair trial and the prohibition of torture. This research identifies the glaring gaps in the substantive and procedural laws of these countries that lead to arbitrary application of the death penalty. Law Commissions’ reports and the case law of these countries reflect: the investigating agencies use torture to extract confession; the indigent accused facing capital charges do not get legal assistance at the state’s expense; and issues related to witnesses cause undue delay in criminal proceedings and an escape route to terrorist and the powerful from prosecution. Simultaneously, the special courts have heightened the risk of arbitrary and subjective application of capital punishment by adopting special procedures that lower fair trial standards and due process guarantees. These special procedures include special powers of arrest and detention, validity to confessions made under police custody and reversing the presumption of innocence. The thesis explains that the scope of capital punishment as enunciated in the primary sources of Islamic jurisprudence (the Quran and the Sunnah) is not only limited but is also entwined with stringent evidentiary requirements and due process guarantees. It helps to dispel the notion that sharia is an impediment to restrict the scope of the application of capital punishment in Pakistan. This dissertation explores the legal and physical problems of one third of the world’s death row prisoners who have been languishing in cells for many years under the conditions of solitary confinement in contravention to guidelines of the domestic courts and law commissions. The pain of death row in the Indian subcontinent is exacerbated due to the denial of fundamental rights to prisoners in the name of safekeeping. As part of a comprehensive approach, the research provides compelling legal grounds to strengthen the criminal justice system by focusing on the process of evidence and investigation in order to prosecute the powerful and terrorists to promote justice rather than revenge.

Courts and Democracies in Asia

Abstract: What is the relationship between the strength of a country's democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as 'dominant-party' (for example Singapore, Malaysia, and Hong Kong), 'dynamic' (for example India, South Korea, and Taiwan), and 'fragile' (for example Thailand, Pakistan ,and Bangladesh), this book explores how democracy sustains and is sustained by the exercise of judicial power. In dominant-party systems, courts can only pursue 'dialogic' pathways to constrain the government's authoritarian tendencies. On the other hand, in dynamic democracies, courts can more successfully innovate and make systemic changes to the electoral system. Finally, in fragile democracies, where a country regularly oscillates between martial law and civilian rule, their courts tend to consistently overreach, and this often facilitates or precipitates a hostile take-over by the armed forces, and lead to the demise of the rule of law.

The Financial Law towards Challenges of the XXI Century:(conference proceedings)

Abstract: Conference proceedings THE LAW TOWARDS FINANCIAL CHALLENGES OF THE XXI CENTURY is compiled from the contributions of participants in the 4th International Baltic Financial Law Conference - Financial Law towards Challenges of the XXI Century. Thematically it is focused on financial law and public finance, local self-government financing, tax law and financial market law and reflects the authors' research in these areas. Given the breadth of financial law, proceedings is divided into five parts: 1. Axiological and philosophical aspects of the financial law, 2. Selected problems of public financial law, 3. Tax law, 4. International Financial Law, 5. Banking Law. Each post contains the aims and eventual hypothesis, methodology and adequate conclusions de lege ferenda. All contributions were double blind reviewed by experts in the area of tax law not only from the Central and Eastern European Countries.

The Rise of an Ethnocultural Constitutional Identity in the Jurisprudence of the East Central European Courts

Abstract: The recent trend in East Central European jurisprudence is that courts apply an ethnocultural understanding of identity, thereby putting European integration in peril. Although the EU is clearly committed to shared values and principles, Article 4(2) of the Treaty on European Union emphasizes that “the Union shall respect the national identities of the Member States.” Due to the recent migration flow in Europe, the Member States are currently attempting to (re)define themselves and offer a legal definition of identity. East Central European Member States, by labelling ethnocultural national identity as constitutional identity, apply Article 4(2) as a means of derogating from some of their obligations under EU law. Despite the vast literature available on national identity and its role in EU law, little attention has been paid to the recently emerging trend of judicial reinvention of identity in East Central Europe. This is what this Article offers. It focuses on the Visegrad Group, which consists of the Czech Republic, Hungary, Poland, and Slovakia. The Visegrad countries (V4) are united in their views on rejecting migrant relocation quotas in the EU and define their exclusionary constitutional identities accordingly. The main subject of the Article is the relevant case law of the V4 constitutional courts. These courts have the authoritative role in enforcing nation-state policies based upon ethnocultural considerations. The Article provides a comparative-analytical description of the judicial interpretations of constitutional identity in these countries based on which we can better understand the recent East Central European trend of disintegration.

revisiting the evidence

Abstract: This paper investigates whether legal reforms intended to create a market-friendly regulatory business environment have a positive impact on economic and financial outcomes. After conducting a critical review of the legal origins literature, the authors first analyze the evolution of legal rules and regulations during the last decade (2006-2014). For that purpose, the authors use legal/regulatory indicators from the Doing Business Project (World Bank). The authors findings indicate that countries have actively reformed their legal systems during this period, particularly French civil law countries. A process of convergence in the evolution of legal rules and regulations is observed: countries starting in 2006 in a lower position have improved more than countries with better initial scores. Also, French civil law countries have reformed their legal systems to a larger extent than common law countries and, consequently, have improved more in the majority of the Doing Business indicators used. Second, the authors estimate fixed-effects panel regressions to analyze the relationship between changes in legal rules and regulations and changes in the real economy. The authors findings point to a lack of systematic effects of legal rules and regulations on economic and financial outcomes. This result stands in contrast to the widespread belief that reforms aiming to strengthen investor and creditor rights (and other market-friendly policies) systematically lead to better economic and financial outcomes. It seems that improvements in these legal rules are not sufficient conditions for that. Finally, the authors conduct an exploratory analysis of the determinants of the effectiveness of legal reforms and the gap between legal rules and the reality on the ground.