Showing papers on "Common law published in 2019"

Bentham and the Common Law Tradition

Abstract: A philosophical interpretation of the historical debate between Bentham and the classical Common Law theory which has shaped contemporary conceptions of the nature, tasks, and limits of law and adjudication. As well as exploring the philosophical foundations of Common Law theory, Professor Postema traces the development of Bentham's theories of law and adjudication drawing of the full range of his published and unpublished writings.

Systematic Gender Violence and the Rule of Law: Aboriginal Communities in Australia and Post-War Liberia

Abstract: The gender-agenda is borderless. Arguably, legal justice for Indigenous girls and women survivors of violence is unfair, inequitable, and sometimes arbitrary. Systematic violence against girls and women pervades cultures and societies; operates at three main levels: institution and state, structural and cultural, and community and individual; and manifests in myriad shapes, forms and categories. Systematic violence in this research comprises historical, colonial and contemporary aspects of violence and its impact on Indigenous girls and women. Unlike comparative studies, this research is founded on heuristic arguments derived from validating the formation, establishment and continuity of the voices of Indigenous peoples in Liberia and Australia. While many studies isolate ‘gender-based violence’ and the ‘rule of law’ in separate contexts, none has explored the extent to which the Western concept of the rule of law impacts systematic violence against Indigenous girls and women in Australia and post-war Liberia. The research assesses the efficacy of the ‘rule of law’ in dispensing justice to Indigenous girls and women who have suffered systematic gender-based violence. The scope of the research demands a comprehensive and complex systematic empirical approach that draws on the principles of phenomenology, community-based participatory research, and feminist and Indigenous methods. The study adopts an interdisciplinary mixed-methods approach informed by theories of decolonization, feminist jurisprudence, intersectionality, critical legal/race studies, and social determinants of health. Data is drawn from case law, secondary data, empirical evidence, textual/content analysis, electronic mailing and informal participant observation. Over a period of two years, a survey of 231 social service providers working with Indigenous girls and women; in-depth interviews with 29 Indigenous Women Advocates; and 22 informal email exchanges with male colleagues were conducted in both Australia and Liberia. Statistical analyses were carried out on records of 127 708 convicts to Australia; 14 996 former slave returnees to Liberia; 2701 sexual and gender-based violence cases reported to the Ministry of Gender, Children and Social Protection in Liberia; seven case files from the Sexual and Gender-based Crimes Unit in Liberia; and 1200 interview entries from the Longitudinal Study of Indigenous Children in Australia. This analysis of historical documents, jurisprudence and case studies triangulates a philosophical inquiry intended to migrate issues of violence against Indigenous girls and women from the margins of complex socio-legal structures towards the core of Western-centric perspectives, such as the rule of law. Situated between dominant academic conventions and resistance, the research provokes readers to consider ontological, epistemological and ethical arguments regarding access to justice outcomes for Indigenous girls and women. Contrary to the research hypothesis and despite socioeconomic differences between Australia and Liberia, findings show that: although the principle of the rule of law is an emancipatory tool for justice and redress generally, it can also be an apparatus for persistent systematic violence against Indigenous girls and women. Furthermore, the intersection of colonial history, race, gender, class and social status exacerbates the ongoing perpetration of institutional/state, structural/cultural and interpersonal/community violence against Indigenous girls and women. In conclusion, the research recommends adopting a holistic approach to educating girls and women and encouraging boys and men to participate equally in the gender justice agenda, to ensure justice for Indigenous girls and women. The research also suggests incorporating diverse and comprehensive conceptual and methodological frameworks into further research. Finally, throughout the work, this dissertation attempts to give agency to Indigenous ways of being, knowing and doing justice.

Party Autonomy in Private International Law

Abstract: This book provides an unprecedented analysis and appraisal of party autonomy in private international law - the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. It includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications, and an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications. It examines both choice of forum and choice of law, including arbitration agreements and choice of non-state law, and both contractual and non-contractual legal relations. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.

Contract Law: Principles and Context

Abstract: Contract Law: Principles and Context presents the development of contract law through a considered selection of cases that are both authoritative and used as factual examples to explain the law. The text introduces readers to the nature and range of contracts, the process for making a contract, rights and duties, adjustments to contracts, vitiating factors and unfair conduct, ending contracts, and remedies and restitution. The text considers the historical development of contracts through case law and legislation, then takes the reader to particular issues with contracts as they might arise in real life and navigates a legal pathway through them. Written in a clear and engaging style, Contract Law provides a fresh, topical and accessible account of the Australian law of contract, and is an invaluable resource for contract law students and practitioners.

Third Party Funding: Law, Economics and Policy

Abstract: In Third Party Funding, Gian Marco Solas, for the first time, describes third party funding (TPF) as stand-alone practice within the wider litigation and legal services' markets. The book reports on legal issues related to TPF in both common law and civil law jurisdictions, and in the international context. It then discusses the incentives and economics of TPF transactions in different legal contexts while explaining how the practice emerged and how it is likely to develop. In addition, the book offers practical insights into TPF transactions and analyzes a number of regulatory proposals that could affect its use and desirability. This work should be read by scholars, practitioners, policymakers, and anyone else interested in how TPF is changing the practice of law.

Liquidated Damages and Penalties:A Comparison of the Common Law and Certain International Approaches

Abstract: The thesis compares recent developments to the tests to be applied to engage the penalty doctrine in Australia and England with certain international approaches which apply a different test.All systems analysed evidence a common rational which is that stipulations with the aim or purpose of punishment will not be enforced.Recommendations are provided as to how the relevant test for legitimate interests which applies in Australia and England can be limited in its application.

The Comparative Economics of ICT, Environmental Degradation and Inclusive Human Development in Sub-Saharan Africa

Abstract: This study examines how information and communication technology (ICT) could be employed to dampen the potentially damaging effects of environmental degradation in order to promote inclusive human development in a panel of 44 Sub-Saharan African countries. ICT is captured with internet and mobile phone penetration rates whereas environmental degradation is measured in terms of CO2 emissions per capita and CO2 intensity. The empirical evidence is based on fixed effects and Tobit regressions using data from 2000 to 2012. In order to increase the policy relevance of this study, the dataset is decomposed into fundamental characteristics of inclusive development and environmental degradation based on income levels (low income vs. middle income); legal origins (English Common law vs. French Civil law); religious domination (Christianity vs. Islam); openness to sea (landlocked vs. coastal); resource-wealth (oil-rich vs. oil-poor) and political stability (stable vs. unstable). Baseline findings broadly show that improvement in both of measures of ICT would significantly diminish the possibly harmful effect of CO2 emissions on inclusive human development. When the analysis is extended with the above mentioned fundamental characteristics, we observe that the moderating influence of both our ICT variables on CO2 emissions is higher in the group of English Common law, middle income and oil-wealthy countries than in the French Civil law, low income countries and oil-poor countries respectively. Theoretical and practical policy implications are discussed.

Exploitative Abuse and Abuse of Economic Dependence: What Can We Learn from an Industrial Organization Approach?

Abstract: This article conducts a detailed analysis of the concept of economic dependence and exploitative abuse based on how their treatment in competition law and economics and their enforcement in European case law have evolved. Although the theoretical roots of these concepts lie in economic theory, these issues have been ignored or considered only scantily in the context of competition law enforcement. An effects-based approach should take these problems into account and could provide insights into how to portray the impacts of these abuses. We draw on two examples – from the agri-food industries and the digital economy – of relevant economic dependence issues. This paper highlights the existence of a paradox: although industrial organization models provide relevant tools to characterize these abuses, assess their effects, and devise remedies, it seems that they are seldom used by competition law enforcers. JEL Classification: K21, L12, L40, L42

A Case for Shareholders' Fiduciary Duties in Common Law Asia

Abstract: This book reconceptualises the role of the general meeting and shareholders in the listed companies in four leading common law jurisdictions in Asia (Singapore, Hong Kong, India and Malaysia) as one that should include fiduciary duties. It demonstrates why, when, by whom and how fiduciary duties should be imposed and how they could be enforced. In so doing, it refutes the long-standing common law rule that shareholders can generally vote as they please. The book advances the debate on a central notion of corporate law, namely, the interests of the company. It addresses the deficiencies in the law regulating conflicts of interest involving controlling shareholders and institutional shareholders and provides solutions to the problem of activist and passive minority institutional investors. This book challenges us to rethink the meaning and implementation of the long-term success of the company and shows how corporate governance should and could be made.

Common Law Judicial Office, Sovereignty, and the Church of England in Restoration England, 1660-1688

Abstract: ..................................................................................................................................... 6 Introduction ................................................................................................................................ 7 Part 1: Introduction .................................................................................................................. 39 Chapter 1: The Pre-Restoration Dispute over Judicial Office ................................................. 43 Chapter 2: Judicial Office outside the Common Law .............................................................. 76 Chapter 3: Judicial Office within the Common Law ............................................................. 109 Part 1: Conclusion .................................................................................................................. 134 Part 2: Introduction ................................................................................................................ 138 Chapter 4: Statute and Ecclesiastical Law before the Restoration ........................................ 141 Chapter 5: Restoration Judicial Office and the lex scripta .................................................... 178 Chapter 6: Restoration Judicial Office and the lex non scripta ............................................. 221 Part 2: Conclusion .................................................................................................................. 250 Conclusion ............................................................................................................................. 252 Appendix ................................................................................................................................ 256 Bibliography .......................................................................................................................... 287

The Judicial Demand for Explainable Artificial Intelligence

Abstract: A recurrent concern about machine learning algorithms is that they operate as “black boxes,” making it difficult to identify how and why the algorithms reach particular decisions, recommendations, or predictions. Yet judges will confront machine learning algorithms with increasing frequency, including in criminal, administrative, and tort cases. This Essay argues that judges should demand explanations for these algorithmic outcomes. One way to address the “black box” problem is to design systems that explain how the algorithms reach their conclusions or predictions. If and as judges demand these explanations, they will play a seminal role in shaping the nature and form of “explainable artificial intelligence” (or “xAI”). Using the tools of the common law, courts can develop what xAI should mean in different legal contexts. There are advantages to having courts to play this role: Judicial reasoning that builds from the bottom up, using case-by-case consideration of the facts to produce nuanced decisions, is a pragmatic way to develop rules for xAI. Further, courts are likely to stimulate the production of different forms of xAI that are responsive to distinct legal settings and audiences. More generally, we should favor the greater involvement of public actors in shaping xAI, which to date has largely been left in private hands.

Circular economy and real estate: the legal (im)possibilities of operational lease

Abstract: Purpose: A paradigm in circular economy (CE) is that suppliers retain ownership of their products and materials, and that the users “only” pay for services. In many legal systems, however, elements incorporated in a building are considered to be fixtures, and therefore legally part of the building. This means that ensuring multi-cyclic behaviour of individual building elements (e.g. the facade or a window) is not so evident. This paper explores, from the perspective of Dutch law, how to secure the ownership of the supplier or to find alternatives within the existing system of property law. Design/methodology/approach: The authors performed a literature review of both CE and (Dutch) property law. The results of these reviews are discussed and illustrated by legal case studies. Findings: The options principally advocated within CE to retain ownership of building parts leave legal uncertainties and do not offer a solid basis for the development of circular business models, especially considering immovables and fixtures. For these categories, buy-back and take-back contracts, and models for reuse and recycling seem more promising. Research limitations/implications: The research is limited to a literature review. Although the legal principles discussed in this paper are valid for both civil and common law systems, and similar findings might, therefore, be expected internationally, this study focused on the specific Dutch legal context. Comparative legal research and research of best practices in the building industry is needed to test the applicability of the findings in an international context. Practical implications: Following the findings, CE initiatives within real estate and the construction industry should focus on alternative implementations of the operational lease concept, taking into account CE’s ambitions to reduce the extraction of raw materials. Originality/value: At the moment the challenges that property law poses CE, real estate and operational lease are hardly discussed within the literature. This paper explores this gap.

The 'Dano Evolution': Assessing Legal Integration and Access to Social Benefits for EU Citizens

Abstract: Much attention has been given to recent decisions in the field of EU citizenship, such as Dano and Alimanovic (Court of Justice: judgment of 11 November 2014, case C-333/13, Elisabeta Dano and Florin Dano v. Jobcenter Leipzig ; judgment of 15 September 2015, case C-67/14, Jobcenter Berlin Neukolln v. Nazifa Alimanovic and Others ). It is often claimed that the Court of Justice has undermined the value of Union citizenship in order to quell the rising tide against immigration and the free movement of persons within the EU. This Article will depart from this commonly held view, by claiming that rather than being a revolutionary act, the Court’s decision in Dano is merely the logical evolution of the case law on Union citizenship after the adoption of Directive 2004/38. The Court treats Directive 2004/38 as a closed system and will only accept residence fulfilling the conditions mentioned in the Directive as legal residence. The consequences of this evolution are Janus-faced: whilst some Union citizens lose out from the current approach, a strict reliance is beneficial to other categories of Union citizens. An exclusive focus on the Directive can be problematic due to the lack of individualised proportionality assessments, as well as an increasing range of social benefits that can be subjected to residence tests. However, the Court is merely accepting the political choices made by the EU legislature, and thus any criticism of the legal situation of EU citizens under Directive 2004/38 may be better placed against the EU legislature, rather than the judiciary.

State of the states: A survey of statutory law, regulations and court rules pertaining to guilty pleas across the United States.

Abstract: A psycholegal research agenda on guilty pleas is in its nascent stage. Multijurisdictional surveys of related law and policy may advance this research agenda by focusing investigators on the specifics of existing policies and motivating cross-jurisdictional comparisons of diverse policies. We thus conducted a systematic, national survey of statutes, regulations and court rules across the United States pertaining to nine aspects of the guilty plea process, including sentencing differentials, collateral consequences and waiver of rights, which have been identified in existing legal and psycholegal research and commentary. Following a discussion of these issues, including legal concerns and existing research findings, we present the results of our systematic survey. We supplement this review with a non-systematic sampling of appellate case law. Broadly, there was notable diversity in whether and how jurisdictions approached these issues. We discuss general and specific implications of our findings for future research, emphasizing the importance of data on actual policies and procedures to the design of studies that may contribute to evidence-based criminal justice policy.

Private Contracting, Law and Finance

Abstract: In the late nineteenth century Britain had almost no mandatory shareholder protections, but had very developed financial markets. We argue that private contracting between shareholders and corporations meant that the absence of statutory protections was immaterial. Using approximately 500 articles of association from before 1900, we code the protections offered to shareholders in these private contracts. We find that firms voluntarily offered shareholders many of the protections that were subsequently included in statutory corporate law. We also find that companies offering better protection to shareholders had less concentrated ownership.

Statute Law Information Retrieval and Entailment

Abstract: Our Yes/No statute law question answering system combines components for both statute law information retrieval and confirmation of textual entailment between statues and legal questions. We describe a statute law question answering system that exploits TF-IDF and a language model for information retrieval, and inter-paragraph entailment. We have evaluated our system using the data from the competition on legal information extraction/entailment (COLIEE-2019). The competition consists of four tasks: Tasks 1 and 2 are for the case law information extraction/entailment, and Tasks 3 and 4 are for the statute law information extraction/entailment. Here we explain our methods and evaluation results for Tasks 3 and 4. Task 3 requires the identification of civil law articles relevant to Japan legal bar exam query. For this task, we used TF-IDF and language model-based information retrieval approaches. Task 4 requires a decision on yes/no answer for previously unseen queries given relevant civil law articles. Our approach compares the approximate meanings of queries with relevant articles. Because many statute law and queries consist of more than one paragraph, we need an inter-paragraph entailment method. Our inter-paragraph entailment process exploits an analysis of statute law structure, and negation patterns to predict entailments. Using our heuristic selection of attributes, we perform two experiments which provide the basis for making a decision on the yes/no questions. One experiment uses an SVM model, and the other uses a general heuristic rule. Our experimental evaluation demonstrates the value of our method, and the results show that our method was ranked No. 1 in both of the Tasks 3 and 4 in COLIEE 2019.

Free Movement of Persons in the EU v. in the eea: of Effect-Related Homogeneity and a Reversed Polydor Principle

Abstract: When the EEA Agreement was concluded in the early 1990s, it reflected, in the fields covered, the state of the then Community law, also with respect to the free movement of persons. Since then, both EEA and EU law have developed further, though with certain marked differences. Notably, the EU Treaty revision of Maastricht led to the introduction of Union citizenship. The fact that there is no corresponding concept in the EEA Agreement had led to certain challenges within the EEA with respect to the free movement of persons, due notably to the double nature of Directive 2004/38 as a further development of the free movement law of the Communities and a Union citizenship instrument. Today, the EEA and the EU rules are identical with respect to the market access rights of economic agents. In contrast, it is debated whether and to what extent the incorporation of Directive 2004/38 into the EEA legal system is indeed limited for those purposes. This relates in particular to case law of the EFTA Court on persons who are not economically active, where the Court, in the EEA context, gives Directive 2004/38 a broader interpretation than the CJEU does in the EU context. The EFTA Court’s aim, despite the lack of Union citizenship in EEA law, is to arrive at the same level of protection. Commentators speak about a particular understanding of homogeneity and of the Polydor principle. This approach raises questions also with respect to the external relations of the EU with other non-Member States, including notably the United Kingdom of Great Britain and Northern Ireland following its withdrawal from EU membership (“Brexit”).

The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals

Abstract: In 2017, France established a due diligence statutory obligation for French parent companies to monitor extraterritorial human rights and environmental abuses committed by their off-shore affiliates. Switzerland is also considering adopting a similar law for Swiss parent companies. These obligations are comparable to the duty of care that, according to recent case law, British parent companies owe towards their subsidiaries’ neighbours. This article compares and contrasts the newly introduced French due diligence statutory obligation, the UK precedents, and two alternative Swiss legislative proposals on the due diligence and duty of care of parent companies.

Indications of Inconsistency

Abstract: The author makes two claims in this paper. First, there appears to be an increase in indications of inconsistency (“IoIs”) across the common law world. Secondly, this increase is a normatively concerning turn in judicial practice. IoIs are judicial statements which, either explicitly or by implication, indicate that primary legislation is incompatible with certain protected human rights or civil liberties. They are related to, but stop short of, the formal remedies known as declarations of inconsistency (“DoIs”).

E-sport and the EU: the view from the English Bridge Union

Abstract: The change that e-sport is going through and the ever-ascending trajectory of e-sport has led to certain states to regulate this mode of entertainment. States like South Korea and China have taken one-step further and recognised e-sport as sport. This article deals with the question of recognition of e-sport by the European Union as sport. In that, characteristics of e-sport vis-a-vis mainstream sports will be analysed alongside the relevant case law of the Court of Justice of the European Union. The physical element and social function of sport which have come to the forefront in case law and academic debates are relevant to the question of e-sport’s status as a sport. Moving on from that premise, the article will conclude that while e-sport may satisfy the physical element in certain play modes, its currently weak social function would render it as just an economic activity in the eyes of the European Union. Nevertheless, particularities of e-sport due to its virtual element, intellectual property-based means of production and diversified means of playing should be taken into account when the time comes for a definite judgement on e-sport’s status as sport.

Perspectives on Patient Safety and Medical Malpractice: A Comparison of Medical and Legal Systems in Italy and the United States.

Abstract: Objectives Italy is experiencing a crisis of malpractice litigation with important repercussions on the insurance industry (e.g., lower profits), physicians (e.g., defensive medicine), and the courts (e.g., work backlog, lengthy proceedings). We searched for common ground between legal systems in Italy and the United States and considered the implications for international collaborations in patient safety. Methods We examined the judicial frameworks of medical malpractice litigation in two countries with different legal foundations: the United States (a public-private system governed by common law) and Italy (a publicly financed healthcare system governed by civil law). Results We found important differences and similarities across the two systems that suggest a high compatibility for future comparisons and collaborations. Although many Italian hospitals maintain risk management programs, the U.S. emphasis on patient safety and quality has not yet been integrated into Italian healthcare systems. Conclusions Based on our findings, we propose that the Italian system might benefit from assertively adopting some concepts from the U.S. system. In particular, we consider the role of the law and Italian medicolegal experts as key facilitators for the integration of patient safety and risk management units within Italian healthcare facilities.

Why Has Antitrust Law Failed Workers

Abstract: In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony — meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higher-paying job in the same market. Yet while antitrust law regulates labor monopsony in the same way as it regulates monopoly on the product market side, antitrust litigation against employers is rare. We document both the magnitude of labor monopsony and the paucity of cases, and argue that this “litigation gap” exists because antitrust case law, which has developed through product-side litigation, is poorly tailored to labor-side problems. We conclude with four proposals for reform of antitrust law so it can better deter labor monopsony.

Core Socio-Economic Rights and the European Court of Human Rights

Abstract: Core Socio-Economic Rights and the European Court of Human Rights deals with socio-economic rights in the context of the jurisprudence of the European Court of Human Rights (ECtHR). The book connects the ECtHR's socio-economic case law to an understanding of the Court's responsibility to recognize the limitations of supranational rights adjudication while protecting the most needy. By exploring the idea of core rights protection in constitutional and international law, a new perspective is developed that offers suggestions for improving the ECtHR's reasoning in socio-economic cases as well as contributing to the debate on indivisible rights adjudication in an age of 'rights inflation' and proportionality review. Core Socio-Economic Rights and the European Court of Human Rights will interest scholars and practitioners dealing with fundamental rights and especially those interested in judicial reasoning, socio-economic and supranational rights protection.

A Bird's Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases

Abstract: Many experts of EU migration law deal with ECJ judgments on a regular basis, but they rarely reflect on how individual rulings on diverse themes such as asylum, family reunification or return relate to each other. This article fills that gap and presents a horizontal analysis of 155 judgments combining quantitative and qualitative findings. Our statistical survey shows that selected themes and references from certain countries dominate the ECJ’s activities. In qualitative terms, the article considers three overarching themes: the concept of public policy; the practice of statutory interpretation, including in light of objectives: the principle of proportionality and interaction with domestic courts. Our study shows that the search for cross-sectoral coherence defines much of the case law, although success of this venture is compromised by enduring inconsistencies, which complicate the emergence of a reliable and predictable judicial approach towards the interpretation of secondary legislation on migration.

Harmonization of the protection against misleading commercial practices: ongoing divergences in Central European countries

Abstract: Research background: Modern European integration focuses on competition in the internal single market, embracing both competitiveness and consumer protection, and it aims at full harmonization in this arena. The hallmark, the Unfair Commercial Practices Directive from 2005, aims to overcome diverse social, political, legal and economic traditions. Is the implied protection against misleading practices an opportunity or a threat for Central European Regions? Purpose of the article: The primary purpose is to comparatively describe and critically assess the transposed legal frameworks. The secondary purpose is to study and evaluate their coherence in the light of the case law and their impact in Central Europe, in particular whether it represents an opportunity or a threat for the smart, sustainable and inclusive growth, i.e. boosting competitiveness and innovation along with consumer welfare. Methods: The cross-disciplinary and multi-jurisdictional nature of this paper, and its dual purposes, implies the use of Meta-Analysis, of various interpretation techniques suitable for legal texts and judicial decisions, of the critical comparison and of a holistic assessment of approaches and impacts. Legislation and case law are explored and the yielded knowledge and data are confronted with a field search and case studies. The dominating qualitative research and data are complemented by the quantitative research and data. Findings & Value added: For over one decade, the Unfair Commercial Practices Directive has required full harmonization of the protection against, among other items, misleading commercial practices, by legislatures and judges in the EU. The exploration pursuant to the two purposes suggests that this ambitious legislative and case law project entails a number of transposition approaches with varying levels of coherence, importance and impacts on the competitiveness and innovation of business and consumer welfare in Central Europe. Therefore, full harmonization should be either readjusted or relaxed.

A Crisis of Our Own Making: Prospects for Major Natural Resource Projects in Canada

Abstract: Announcements of new energy and mining projects slowed after 2015, and, between 2017 and 2018, the planned investment value of major resource sector projects has plunged by $100 billion – an amount equivalent to 4.5 percent of Canada’s gross domestic product. Many projects in Canada have faced environmental assessments that take much longer than in comparator jurisdictions: Canadian timelines for mining projects are substantially longer than in Australia, and Canadian pipeline approvals are protracted relative to those in the United States. Environmental assessments play a critical role in mitigating negative externalities on the environment and human well-being and resolving asymmetric information between project proponents and affected stakeholders. Assessment processes, however, should not discourage socially beneficial projects by imposing excessively high regulatory costs, protracted review timelines and excessive uncertainty around the finality of approvals. Under Canada’s federal legislation for environmental assessments, most project approvals since 2012 have withstood court challenges. However, courts’ findings that federal governments failed to fulfill their constitutional duty to consult affected Indigenous peoples has resulted in the quashing of three approvals, including those for the Northern Gateway pipeline and Trans Mountain Expansion. The Minister of Justice and Minister of Crown-Indigenous Relations should update guidance for federal officials to ensure consistent consultation of Indigenous peoples – particularly prior to Cabinet’s decision – that satisfies the requirements from the past decade of case law on the duty to consult. With investment in Canada’s resources sector already depressed, the federal government’s proposed Bill C-69 could further discourage investment in the sector by congesting the assessment process with wider public policy concerns and exacerbating the political uncertainty facing proponents with a highly subjective “public interest” standard that would likely apply to every project subject to an assessment. To address fundamental problems in Bill C-69, legislation for impact assessment must: specify considerations for assessing projects that can be scoped and applied with reasonable consistency and predictability; preserve the role of independent and expert lifecycle regulators (specifically, the National Energy Board/Canadian Energy Regulator and Canadian Nuclear Safety Commission) in leading assessments; require a ”significant” standard for a project’s effects before involving political decisionmakers in approving the project; and specify a standard for “standing” that ensures review panels can focus proceedings on relevant submissions. The federal government should undertake to compile and annually report on timelines for federal environmental assessments across major projects in Canada, as well as regularly and publicly benchmark performance relative to timelines for provinces and other countries – such as the United States and Australia.

Opening the black box of the common-law legal regime: Contrasts in the development of corporate law in Britain and the United States in the late nineteenth and early twentieth centuries

Abstract: The general incorporation laws enacted in Britain and the US in the nineteenth century had strikingly different structures. Whereas British law was laissez-faire in spirit, the American sta...

Ungleichheit als Markenzeichen des Migrationsrechts

Abstract: Equal treatment is a fundamental principle of contemporary constitutionalism, which may challenge migration law, since the latter reiterates the basic distinction between citizens and aliens as well as among different categories of migrants. The contribution shows that constitutional law is based upon an – usually invisible – inequality threshold, which becomes evident when we consider rules on entry into the territory and the diverse distinctions among different migration statuses. Limits of equal treatment permeate the restrained case law of the ECtHR and define the judicial caution of the CJEU and the EU legislature in the interpretation and design of the Charter of Fundamental Rights and secondary law.

Documentary practices: Race, bureaucracy, and the legal regulation of gurdwaras in British Columbia

Abstract: Since the 1990s, disputes over the political leadership of gurdwaras in British Columbia have formed the basis of a substantial body of case law, which has afforded courts different forms o...

Between “Administrative Mindset” and “Constitutional Imagination”: The Role of the Court of Justice in Immigration, Asylum and Border Control Policy

Abstract: The Court of Justice is a central actor. It is the subject of many studies, most of which concentrate on the internal market or citizenship. By contrast, the role of judges in migration law is rarely discussed, although the policy field is politically contested and features prominently in recent case law. That is why this contribution takes a bird’s eye view of the role of the ECJ in that domain. It critically assesses a concern about “judicial passivism” among academic observers and demonstrates that there are good constitutional reasons why judges act carefully in migratory matters. Closer inspection of several dozen prominent judgments on migration shows that most of them are defined by an “administrative mindset”: they focus on statutory interpretation and seek to realise the position of the legislature. Any move towards a more ambitious “constitutional imagination” would require feedback loops between legal developments, political processes and broader societal debates.