Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

Intimacy and Responsibility: The Criminalisation of HIV Transmission

Abstract: Book synopsis: In what circumstances and on what basis, should those who transmit serious diseases to their sexual partners be criminalised? In this new book Matthew Weait uses English case law as the basis of a more general and critical analysis of the response of the criminal courts to those who have been convicted of transmitting HIV during sex. Examining cases and engaging with the socio-cultural dimensions of HIV/AIDS and sexuality, he provides readers with an important insight into the way in which the criminal courts construct the concepts of harm, risk, causation, blame and responsibility. Taking into account the socio-cultural issues surrounding HIV/AIDS and their interaction with the law, Weait has written an excellent book for postgraduate and undergraduate law and criminology students studying criminal law theory, the trial process, offences against the person, and the politics of criminalisation. The book will also be of interest to health professionals working in the field of HIV/AIDS genito-urinary medicine who want to understand the issues that may face their clients and patients.

The Declining Influence of the United States Constitution

Abstract: It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India. Another possibility is that international and regional human rights instruments have become especially influential upon the manner in which national constitutions are written. We find little evidence to indicate that any of the leading human rights treaties now serves as a dominant model for constitutional drafters. Some noteworthy patterns of similarity between national constitutions and international legal instruments do exist: For example, the constitutions of undemocratic countries tend to exhibit greater similarity to the Universal Declaration of Human Rights, while those of common law countries manifest the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.

The law's majestic equality ? the distributive impact of litigating social and economic rights

Abstract: Optimism about the use of laws, constitutions, and rights to achieve social change has never been higher among practitioners. But the academic literature is skeptical that courts can direct resources toward the poor. This paper develops a nuanced account in which not all courts are the same. Countries and policy areas characterized by judicial decisions with broader applicability tend to avoid the potential anti-poor bias of courts, whereas areas dominated by individual litigation and individualized effects are less likely to have pro-poor outcomes. Using data on social and economic rights cases in five countries, the authors estimate the potential distributive impact of litigation by examining whether the poor are over or under-represented among the beneficiaries of litigation, relative to their share of the population. They find that the impact of courts varies considerably across the cases, but is positive and pro-poor in two of the five countries (India and South Africa), distribution-neutral in two others (Indonesia and Brazil), and sharply anti-poor in Nigeria. Overall, the results of litigation are much more positive for the poor than conventional wisdom would suggest.

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).

"... A Settlement Judge, not a Trial Judge:" Judicial Mediation in the United States

Abstract: Legal scholarship has much to say about the deciding of cases but little to say about their settlement. This is a curious inversion. For, on the contemporary American scene at any rate, the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that might fancifully be called LITIGOTIATION. By this ludicrous term I refer to the strategic pursuit of resolution through mobilizing the court process. In this process, full-blown adjudication is an infrequently occurring alternative to negotiated settlement though one that remains a compelling presence even when it doesn't occur. The common law is hostile to compromise: decisions are all-or-none, winner-take-all.1 But beside this image we must place our common knowledge that most disputes that come to the courts are resolved without a decision imposed by the court. 'Bargaining in the shadow of the law' is the prevalent means of resolving civil cases in American courts: fewer than ten percent of cases are tried.2 Typically, settlement negotiations involve only counsel for the parties, but in many instances the negotiations are encouraged, brokered or actively mediated by the judge. Most American judges participate to some extent in the settlement of at least some of the cases before them and this has become a respectable, even esteemed, feature of judicial work.3 There have always been a lot of settlements in American civil courts. It is not clear that the percentage of cases terminated by settlement has markedly increased, although it has certainly not declined.4 And, if there