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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.


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Journal ArticleDOI
TL;DR: In this paper, the authors developed a European concept of worker which would be adapted to the new forms of employment namely to the self-employed that are in need of protection to a similar extent as traditional employees.
Abstract: In the changing world of work and the emergence of new forms of employment that are often in the grey zone between traditional employment and self-employment the question of the scope of protection of labour and employment law becomes again more urgent. Although defining the concept of worker is thus of utmost (and growing) importance, it is not legally defined (yet) at EU level, but has been shaped by numerous decisions of the Court of Justice of the European Union (CJEU, formerly European Court of Justice (ECJ)). This report analyses this jurisprudence and explores how and whether the underlying concept of worker is able to adapt to the changes in the world of work and still fit for purpose to protect those who are in need of protection. Based on this, the study develops a European concept of worker which would be adapted to the new forms of employment namely to the self-employed that are in need of protection to a similar extent as traditional employees.

43 citations

Journal ArticleDOI
TL;DR: In this paper, Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry, and argues that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic.
Abstract: Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute-a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.

42 citations

Book
21 Nov 2007
TL;DR: In this paper, the authors focus on the rights of Indigenous peoples: Eco-footprint crime and the Biological/Ecological Integrity Model to achieve environmental justice, and justification of genocide and Eco-crime: principles and reality.
Abstract: Foreword by Bradford W. Morse * Part I: Basic Issues, Principles and Historical Background * The Rights of Indigenous Peoples: Eco-footprint Crime and the Biological/Ecological Integrity Model to Achieve Environmental Justice * Cultural Integrity and Ecological Integrity: The Interface and International Law * Cosmopolitanism and Natural Law for the Recovery of Individual and Community Rights * Part II: Selected Examples From Domestic and International Case Law * Indigenous Peoples and Minorities in International Jurisprudence and the Responsibility of the World Bank * The United States and Indigenous Peoples: Some Recent ATCA Jurisprudence * First Nations of Canada and the Legal and Illegal Attacks on their Existence * Part III: Justifying Genocide: Principles and Reality * Genocide and Eco-crime: The Interface * Aboriginal Rights in Domestic and International Law, and the Special Case of Arctic Peoples * Part IV: Some Modest Proposals for Global Governance * Indigenous Human Rights and the Obligations of State and Non-State Actors * Governance for Global Integrity: Present Instruments, Trends and Future Goals * Index

42 citations

Journal ArticleDOI
TL;DR: For example, in Section 2 and 3 of the United States Constitution, the power of presidents to hire, fire, and otherwise create an administration consistent with presidential tastes leaves much to the imagination as discussed by the authors.
Abstract: As with most aspects of the Constitution, the power of presidents to hire, fire, and otherwise create an administration consistent with presidential tastes leaves much to the imagination. Much of the definition of appointive and dismissal power, and the creation of executive coherence through the power of appointment and, hence, the terms of service of appointees, would eventually be shaped through case law, interpretation, and the evolution of constitutional tradition. Sections 2 and 3 of Article II of the Constitution are especially relevant in this regard. Article II describes the executive power. Section 2 of that article refers to the conditions of appointment. Specifically, it says that the president ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law, vest the Appointment of such inferior Officers, as they think proper in the President alone, in the Courts of Law, or in the Heads of Departments. Moreover, The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next session. One of the key phrases in the constitutional text is in the part that discusses the appointments of inferior officers--that is, the offices not specifically noted in the foregoing passage from Section 2. Such "inferior officials" do not have to be approved by the Senate but, once enabled by statute, may be appointed directly by the president or the president's "Heads of Departments." Equally notable is the limited permission given to presidents to fill vacancies when Congress is not in session--the so-called recess appointments. Although limited to a year with pay, the recess appointments are not merely used to fill offices in emergencies but also, and more importantly, to fill offices when the Senate has delayed or otherwise indicated its distaste for particular presidential nominees. In Section 3 of Article II, the president is given the authority to "take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." The two powers and sections of Article II, taken together, constitute the origins of what in contemporary terms has become known as the administrative presidency. The "administrative presidency"--a term originated by Richard Nathan (1983), an academician and former executive branch official during the administration of Richard M. Nixon--is predicated on the president's control of the elements of administration--finances, laws, and people. The struggle for control over finances is a complicated one. Strictly speaking, the Constitution gives to Congress the power of the purse based on appropriations. Appropriations are the discretionary part of the budget. They constitute a continuously declining portion of the federal budget, however. The rise of entitlement spending (which also includes the pension benefits of federal civil and military officers) crowds out discretionary spending, as do the requirements to finance the deficit. The struggle over discretionary spending continues, with Congress holding the upper hand on domestic pork and the president having the advantage in defense appropriations. But both the president and Congress are losing ground to the expenditure commitments created by programs from the past--an obstacle to both congressional control and presidential command of the executive. This makes laws and people especially important elements of the administrative presidency, and they tend to be presidential advantages in the struggle to create a unified executive centered in the presidency. …

42 citations

Journal ArticleDOI
TL;DR: This article will clarify the procedures, risks and potential costs of applying for section 60 support, and ensure that collection of patient-identifiable data without patient consent is lawful despite the duty of confidentiality.
Abstract: The legal requirements and justifications for collecting patient-identifiable data without patient consent were examined. The impetus for this arose from legal and ethical issues raised during the development of a population-based disease register. Numerous commentaries and case studies have been discussing the impact of the Data Protection Act 1998 (DPA1998) and Caldicott principles of good practice on the uses of personal data. But uncertainty still remains about the legal requirements for processing patient-identifiable data without patient consent for research purposes. This is largely owing to ignorance, or misunderstandings of the implications of the common law duty of confidentiality and section 60 of the Health and Social Care Act 2001. The common law duty of confidentiality states that patient-identifiable data should not be provided to third parties, regardless of compliance with the DPA1998. It is an obligation derived from case law, and is open to interpretation. Compliance with section 60 ensures that collection of patient-identifiable data without patient consent is lawful despite the duty of confidentiality. Fears regarding the duty of confidentiality have resulted in a common misconception that section 60 must be complied with. Although this is not the case, section 60 support does provide the most secure basis in law for collecting such data. Using our own experience in developing a disease register as a backdrop, this article will clarify the procedures, risks and potential costs of applying for section 60 support.

42 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
202358
2022195
2021460
2020774
2019920
2018981