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Showing papers on "Doctrine published in 2010"


Book
01 Jan 2010
TL;DR: In this paper, the legal adoption of the doctrine of discovery in the United States and its adoption in Canada is discussed. And the authors conclude that the still permeating influence of the Doctrine of Discovery in Aotearoa/New Zealand: 1970s-2000s.
Abstract: 1. The Doctrine of Discovery 2. The Legal Adoption of Discovery in the United States 3. The Doctrine of Discovery in United States History 4. The Doctrine of Discovery in Canada 5. Contemporary Canadian Resonance of an Imperial Doctrine 6. The Doctrine of Discovery in Australia 7. Asserting the Doctrine of Discovery in Australia 8. Asserting the Doctrine of Discovery in Aotearoa New Zealand: 1840-1960s 9. The Still Permeating Influence of the Doctrine of Discovery in Aotearoa/New Zealand: 1970s-2000s 10. Concluding Comparatively: Discovery in the English Colonies

130 citations


MonographDOI
01 Jan 2010
TL;DR: Anthropology and Global Counterinsurgency: Anthropologists can, should, and do respond to military overtures, and they articulate anthropological perspectives on global war and power relations as discussed by the authors.
Abstract: Global events of the early twenty-first century have placed new stress on the relationship among anthropology, governance, and war. Facing prolonged insurgency, segments of the U.S. military have taken a new interest in anthropology, prompting intense ethical and scholarly debate. Inspired by these issues, the essays in "Anthropology and Global Counterinsurgency" consider how anthropologists can, should, and do respond to military overtures, and they articulate anthropological perspectives on global war and power relations. This book investigates the shifting boundaries between military and civil state violence; perceptions and effects of American power around the globe; the history of counterinsurgency doctrine and practice; and, debate over culture, knowledge, and conscience in counterinsurgency. These wide-ranging essays shed new light on the fraught world of Pax Americana and on the ethical and political dilemmas faced by anthropologists and military personnel alike when attempting to understand and intervene in our world.

110 citations


Journal ArticleDOI
TL;DR: For example, this article argued that China did not develop sufficient forces or doctrine to overcome its vulnerability to a first strike by the United States or the Soviet Union for more than three decades.
Abstract: After exploding its first nuclear device in 1964, China did not develop sufficient forces or doctrine to overcome its vulnerability to a first strike by the United States or the Soviet Union for more than three decades. Two factors explain this puzzling willingness to live with nuclear vulnerability: (1) the views and beliefs of senior leaders about the utility of nuclear weapons and the requirements of deterrence, and (2) internal organizational and political constraints on doctrinal innovation. Even as China’s technical expertise grew and financial resources for modernization became available after the early 1980s, leadership beliefs have continued to shape China’s approach to nuclear strategy, reflecting the idea of assured retaliation (i.e., using the fewest number of weapons to threaten an opponent with a credible second strike). The enduring effect of these leadership ideas has important implications for the trajectory of China’s current efforts to modernize its nuclear force.

109 citations


Journal ArticleDOI
TL;DR: The role of the Roman legal concept of terra nullius in early modern European expansion has been investigated by as mentioned in this paper, who argued that European claims were a routine part of early modern interimperial politics, particularly as a response by the English and French crowns to expansive Iberian claims supported by papal donations.
Abstract: What role did the Roman legal concept of res nullius (things without owners), or the related concept of terra nullius (land without owners), play in the context of early modern European expansion? Scholars have provided widely different answers to this question. Some historians have argued that European claims based on terra nullius became a routine part of early modern interimperial politics, particularly as a response by the English and French crowns to expansive Iberian claims supported by papal donations. Others have countered that allusions to terra nullius marked a temporary phase of imperial discourse and that claimants relied more often on other rationales for empire, rarely mentioning res nullius or terra nullius and often explicitly recognizing the ownership rights, and even the sovereignty, of local polities and indigenous peoples.

107 citations


Posted Content
TL;DR: This article explored three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires: interpretive approaches, substantive and structural conflation and ideological assumptions.
Abstract: The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. These fundamental principles distinguish a liberal system of criminal justice from an authoritarian system. However, recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. The object of inquiry in this article is the discourse in ICL: the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims, and how these forms of reasoning in fact engender contradictions with the liberal values proclaimed by the system. This article argues that, in drawing (as it necessarily did) on national criminal law as well as international human rights and humanitarian law, ICL absorbed contradictory assumptions and methods of reasoning. These contradictions in reasoning lead to contradictions in doctrine and departures from the stated principles of the system. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include: interpretive approaches, substantive and structural conflation and ideological assumptions. The identity crisis theory helps explain how a liberal system of criminal justice - one that strives to serve as a model for liberal systems - has come to embrace illiberal doctrines. The article argues that we need to critically examine not only what we think, but how we think, in order to advance ICL as a coherent discipline.

95 citations


Journal ArticleDOI
TL;DR: This article developed a scaling model to estimate U.S. Supreme Court opinion locations and justice ideal points along a common spatial dimension using data derived from the citations between opinions, and found empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition.
Abstract: We develop a scaling model to estimate U.S. Supreme Court opinion locations and justice ideal points along a common spatial dimension using data derived from the citations between opinions. Citations from new opinions to precedent opinions usually apply and endorse the doctrine of the precedent opinion; however, sometimes they implicitly or explicitly dispute the precedent opinion. We collect original datasets classifying citations from search and seizure and freedom of religion opinions written between 1953 and 2006 into these different types and develop a model relating the similarity of the doctrine embodied in the citing and cited opinions to the relative probability of these different types of citations. The resulting spatial estimates of opinion location are used to evaluate theories of Supreme Court bargaining and opinion writing. We find empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this article can facilitate a range of future research.

83 citations


Book
05 Jun 2010
TL;DR: In this paper, the authors include some of the most famous names in religious scholarship in different countries, and the main topics are: fiction, "Fiction, " "Fire and Fire-gods", "Forgiveness, "Freethought" with very limited treatment, "Friends, Society of," "Gifts, "Gnosticism, "God, " with sixteen writers, Gospels, " Grace, Graeco-Egyptian Religions, " Greek Religion, " Health and Gods of Healing," "Hegel", "Hered
Abstract: authors includes some of the most famous names in religious scholarship in different countries. Among the articles this volume has such major topics as, "Fiction, " "Fire and Fire-gods, " Forgiveness, " "Freethought" with very limited treatment, "Friends, Society of," "Gifts, " "Gnosticism, " "God, " with sixteen writers, "Gospels, " "Grace, " " Graeco-Egyptian Religions, " "Greek Religion, " "Health and Gods of Healing," "Hegel," "Heredity," "Heresy, " "Hero and Hero-gods," "Hinduism," "Holiness," "Hospitality," "Humanism," with very limited treatment, "Human Sacl'ifice. " On the whole, proportion in treatment is better preserved in this than in some of the earlier volumes.

80 citations


Journal ArticleDOI
TL;DR: The authors argued that the United States' non-strategic behavior results from a condition of moral hazard owing to the shifting of costs away from the average voter, who supports the use of a capital-intensive doctrine in conflicts where its effectiveness is low because the decreased likelihood of winning is outweighed by the lower costs of fighting.
Abstract: A capital- and firepower-intensive military doctrine is, in general, poorly suited for combating an insurgency. It is therefore puzzling that democracies, particularly the United States, tenaciously pursue such a suboptimal strategy over long periods of time and in successive conflicts. This tendency poses an empirical challenge to the argument that democracies tend to win the conflicts they enter. This apparently nonstrategic behavior results from a condition of moral hazard owing to the shifting of costs away from the average voter. The voter supports the use of a capital-intensive doctrine in conflicts where its effectiveness is low because the decreased likelihood of winning is outweighed by the lower costs of fighting. This theory better explains the development of the United States' counterinsurgency strategy in Vietnam during Lyndon Johnson's administration compared to the dominant interpretation, which blames the U.S. military's myopic bureaucracy and culture for its counterproductive focus on firepower and conventional warfare.

78 citations


Book
01 Jan 2010

67 citations


Journal ArticleDOI
TL;DR: In this article, the authors defend the view that the duty of practical love articulated in the Doctrine of Virtue is distinct from that of beneficence and best understood as a duty of self-transformation, which agents observe by cultivating a benevolent disposition and practical beneficent desires.
Abstract: In the Doctrine of Virtue Kant stipulates that ‘Love is a matter of feeling, not of willing . . . so a duty to love is an absurdity.’ Nonetheless, in the same work Kant claims that we have duties of love to other human beings. According to Kant, the kind of love which is commanded by duty is practical love. This paper defends the view that the duty of practical love articulated in the Doctrine of Virtue is distinct from the duty of beneficence and best understood as a duty of self-transformation, which agents observe by cultivating a benevolent disposition and practical beneficent desires.

65 citations


Book
03 Nov 2010
TL;DR: In this article, a completely reconfigured understanding of the judicial role in Indian constitutional law is presented, and the legitimacy of basic structure review under three categories-legal, moral, and sociological.
Abstract: This book presents a completely reconfigured understanding of the judicial role in Indian constitutional law. The author presents a completely reconfigured understanding of the judicial role in Indian constitutional law. He lucidly and critically examines the significance and status of the basic structure doctrine today. He addresses the question whether basic structure review is an appropriate exercise of judicial power or an abuse of it. He argues that much of the criticism against the doctrine emerges from a failure to adequately map the contours of constitutional judicial review. He assesses the legitimacy of basic structure review under three categories-legal, moral, and sociological. It critiques the views of major scholars including Seervai, Sathe, Austin, and Baxi. It also analyses the post Kesavananda Bharti cases and studies how the scope of the basic structure doctrine has been expanded by the court. He tries to develop an essential benchmark against which judicial performance may be assessed and the confusions currently inherent in the Indian debate on judicial activism finally eliminated.

Journal ArticleDOI
TL;DR: The origins of balancing and proportionality in American and European constitutional systems were examined in this paper. But the origins of proportionality and balancing were very different in the United States and Europe.
Abstract: American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality – the historical origins of the two concepts. We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose – to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

Journal ArticleDOI
TL;DR: The ontological pluralism view as discussed by the authors posits that fundamentally different sorts of things exist in fundamentally different ways, and the question of when to posit ways of being is closely related to a more general question: when should one think that some philosophically interesting expression is analogous?
Abstract: Recently, I’ve championed the doctrine that fundamentally different sorts of things exist in fundamentally different ways. On this view, what it is for an entity to be can differ across ontological categories. Although historically this doctrine was very popular, and several important challenges to this doctrine have been dealt with, I suspect that contemporary metaphysicians will continue to treat this view with suspicion until it is made clearer when one is warranted in positing different modes of existence. I address this concern here. The question of when to posit ways of being is closely related to a more general question: when should one think that some philosophically interesting expression is analogous? Accordingly, my strategy here is as follows. First, I briefly explain my interpretation of ontological pluralism, the doctrine that there are ways of being. Second,

Book
05 Oct 2010
TL;DR: The concept of personality in international law has been discussed in detail in this article, where the authors present a framework for personality in International Law and present an individualistic and formal frame of reference.
Abstract: Introduction Part I. The Concept of Personality in International Law: 1. Notion 2. Conceptions 3. Significance Part II. The Conceptions of Personality in International Law: Their Origins and Legal Manifestations: 4. Early doctrine and practice 5. The states-only conception 6. The recognition conception 7. The individualistic conception 8. The formal conception 9. The actor conception Part III. A Framework for Personality in International Law: 10. Appraisal of the conceptions and their assumptions 11. An individualistic and formal frame of reference 12. Conclusion.

Journal ArticleDOI
TL;DR: In this article, the authors argue that interpreting the concept of essential facilities too broadly is likely to lead to insufficient incentives to invest in the future, and that it is thus advisable to get back to a narrow interpretation of this doctrine, in order to strike the right balance between the incentives to engage in infrastructure-based competition and the goal of boosting service-based competitive in the short run.

Journal ArticleDOI
TL;DR: The authors investigated the perception of Calvin and his theology in the polarizing domain of confessional reinforcement, and what image of him was formed and conveyed by the heirs of Wittenberg theology and later Lutheranism respectively.
Abstract: This study investigates the perception of Calvin and his theology in the polarizing domain of confessional reinforcement, and what image of him was formed and conveyed by the heirs of Wittenberg theology and later Lutheranism respectively. Historical circumstances and associated theological issues are taken into account, with a three-phase model emerging. Its interfaces are marked by the Zurich Consensus (1549) and by the experience of electoral Saxon ‘crypto-Calvinism’ in the 1570s. Drawing on the relevant sources, the article highlights issues specific to Lutherans in the interaction with Calvin and his doctrine. It shows how Calvin, who in the pre-confessional period was regarded as a distant kindred spirit, became increasingly discredited on the issuing of the Zurich Consensus and by the interventions of Joachim Westphal; how, apart from heated discussion between both sides on the doctrine of the Lord's Supper, christology increasingly took centre stage, accentuating the lines of demarcation; ...

Journal ArticleDOI
TL;DR: In counterinsurgency, the population is the center of gravity as mentioned in this paper, and this insight has become a key doctrinal tenet of modern armed conflict. But where does it come from?
Abstract: In counterinsurgency, the population is the center of gravity. This insight has become a key doctrinal tenet of modern armed conflict. But where does it come from? The razzia, a tactic introduced by the French in North Africa around 1840, first thrust tribal populations into the focus of modern operational thinking. Soon the pioneering bureaux arabes added an administrative, civil, and political element. Eventually, in the 1890s, French operations in Madagascar gave rise to a mature counterinsurgency doctrine. David Galula, a French writer who heavily influenced the American Counterinsurgency manual, is merely the joint that connects the nineteenth century to the twenty-first.

BookDOI
22 Apr 2010
TL;DR: In this article, the authors discuss the relationship between counterinsurgency and counter-terrorism in the context of information operations in the United States and discuss the challenges and opportunities faced by the US military.
Abstract: 1. Understanding Counterinsurgency Thomas Keaney and Thomas Rid Part 1: Doctrine 2. France Etienne de Durand 3. Britain Alexander Alderson 4. Germany Timo Noetzel 5. United States Conrad Crane Part 2: Operational Aspects 6. Army Peter Mansoor 7. Marine Corps Frank Hoffman 8. Airpower Charles Dunlap, Jr 9. Naval Support Martin Murphy 10. Special Operations Kalev Sepp 11. Intelligence David Kilcullen 12. Local Security Forces John Nagl Part 3: Challenges 13. Governance Nadia Schadlow 14. Culture Montgomery McFate 15. Ethics Sarah Sewall 16. Information Operations Andrew Exum 17. Civil-Military Integration Michelle Parker and Matthew Irvine 18. Time Austin Long 19. Counterinsurgency in Context Thomas Rid and Thomas Keaney. Suggested Further Reading

Journal ArticleDOI
TL;DR: In this article, the authors compare the US Army Counterinsurgency Field Manual and the UN Department of Peacekeeping Operations 'capstone doctrine' and argue that the two doctrines share similarities in six areas: (1) a focus on civilian solutions; (2) a need for protection of civilians; (3) international coherence; (4) hostnation ownership; (5) use of intelligence in support of operations; (6) limitations on the use of force.
Abstract: This article demonstrates that there are more similarities between peacekeeping and counter-insurgency than often recognized In today's ‘war among the people’, the counter-insurgent cannot succeed with offensive military capabilities alone and must seek to apply also non-kinetic and defensive methods; whereas the peacekeeper often is forced to apply ‘robust’ and kinetic means to implement a mandate As a result, the two concepts seem to be converging and share some commonalities The article compares the UN Department of Peacekeeping Operations ‘capstone doctrine’ and the US Army Counterinsurgency Field Manual to argue that the two doctrines share similarities in six areas: (1) a focus on civilian solutions; (2) a need for protection of civilians; (3) international coherence; (4) host-nation ownership; (5) use of intelligence in support of operations; (6) limitations on the use of force The article suggests areas where the two doctrines could mesh with each other

Journal ArticleDOI
TL;DR: The context within which counterinsurgency originally arose is critical to understanding the prospects for its present success; the radically changed environment in which it is currently being conducted casts into considerable doubt the validity of the doctrine's application by many national militaries currently'rediscovering' this school of military thought as mentioned in this paper.
Abstract: Since 9/11, counterinsurgency is back in fashion; the ‘war on terror’ has even been branded a ‘global counterinsurgency’. However the context within which counterinsurgency originally arose is critical to understanding the prospects for its present success; the radically changed environment in which it is currently being conducted casts into considerable doubt the validity of the doctrine's application by many national militaries currently ‘rediscovering’ this school of military thought today. Above all, classical counterinsurgency was a profoundly imperial, state-centric phenomenon; consequently it only rarely faced the thorny issue of sovereignty and legitimacy which bedevils and may doom these same efforts today.

Book
30 Mar 2010
TL;DR: The authors examines the experience of the Israel Defense Forces (IDF) in the recent conflicts in Lebanon and Gaza to argue for balanced Army forces, capable of joint combined arms fire and maneuver, to provide the range of capabilities needed to prevail in future conflicts.
Abstract: : What kind of Army does the United States require to protect its interests in the future? Will the future challenges facing the United States be, as some argue, centered on "irregular warfare" (IW), similar to Iraq and Afghanistan?1 Will they be conflicts against state actors, like North Korea or Iran? Or might they be "hybrid wars," defined by defense analyst Frank Hoffman as a "blend of the lethality of state conflict with the fanatical and protracted fervor of irregular war"?2 This paper examines the experience of the Israel Defense Forces (IDF) in the recent conflicts in Lebanon and Gaza to argue for balanced Army forces, capable of joint combined arms fire and maneuver, to provide the range of capabilities needed to prevail in future conflicts. Furthermore, as recent U.S. operations have shown, Army forces are particularly important against irregular adversaries where there is often a requirement for "boots on the ground" for a protracted period of time to reach desired strategic end states. Hybrid opponents only increase the challenges the joint force-especially ground forces-might face. The U.S. military, particularly its ground forces, has made significant adaptations to its high-end warfighting skills in response to the IW environments in Afghanistan and Iraq.3 This adaptation is evident in the implementation of a new counterinsurgency (COIN) doctrine that has markedly increased U.S. effectiveness in both of these wars. Nevertheless, the opponents the United States and its partners have faced in Afghanistan and Iraq have limited military capabilities, especially in the realms of training, organization, equipment, and command and control (C2). Therefore, to better understand the breadth of IW challenges that should affect U.S. decisions about future military capabilities, one must look elsewhere.

Journal ArticleDOI
TL;DR: In this article, the authors argue that the value ascribed to doctrine in strategic analysis has become unduly inflated, and we must look beyond it to understand war and political violence.
Abstract: With strategic success in Iraq and Afghanistan far from certain, comforting beliefs about Britain's superiority at counterinsurgency have come under increasingly sceptical scrutiny. This article contributes to the debate with particular reference to the supposedly pivotal principle of minimum force. After discussing the recent literature on the subject, the article critiques the methodology employed by advocates of the traditionalist view on British COIN, arguing for a more rigorous historical approach based on primary sources. Following these historical matters, it is argued that conceptually, minimum force should be analysed dialectically in relation to practices of exemplary force, and above all, on the evidence of what happens in a conflict. Arguably the value ascribed to doctrine in strategic analysis has become unduly inflated, and we must look beyond it to understand war and political violence.

Journal ArticleDOI
TL;DR: The Salvors' doctrine as mentioned in this paper has been adopted by international investment tribunals to admit and rely on travaux-preparatoires in their own treaty interpre- tations.
Abstract: In confrontations in particular disputes and especially in cases referred for third-party deci­ sion, it is common for one side to seek to overcome the prima facie “ordinary meaning” of a text by recourse to various supplementary means of interpretation. Because international deci­ sion processes are nonjury, the common law’s elaborate code regulating admissibility of evi­ dence has no analogue in international law; international courts and tribunals tend to allow the introduction of almost any material adduced by the parties but only occasionally to rely on it in their decision. Of late, however, there seems to be an increasing tendency for international investment tribunals to admit and rely on travaux preparatoires in their own treaty interpre­ tations. The ultimate ex cathedra endorsement of this trend by an especially distinguished group of jurists, whose imprimatur all but ensures its installation as a rule of international law, appears in a recent decision of an ad hoc committee operating under Article 52 of the ICSID Convention.1 In Malaysian H istorical Salvors v. G overnment ofM alaysia, which was decided on April 16, 2009, the ad hoc committee said, “In any event, courts and tribunals interpreting treaties regularly review the travaux preparatoires w h en ev e r they are brought to their attention; it is mythological to pretend that they do so only when they first conclude that the term requir­ ing interpretation is ambiguous or obscure.”2 We do not contest the accuracy of the ad hoc committee’s summary of trends in what we may call, for convenience, the “Salvors’ doctrine,” that is, the automatic admissibility and review of any travauxpreparatoires adduced by one or the other of the parties, without requiring a prior assertion, let alone decision, confirming the obscurity of the text or an ineluctably absurd reading resulting from the application of the method prescribed in Article 31 of the Vienna Convention on the Law of Treaties.3 Nor do we question that travaux are being con­ sulted only for the purpose of confirming the reasonable interpretation that the application of

Journal ArticleDOI
TL;DR: A review of case studies suggests that the flexibility and contextuality that characterized the enforcement of Islamic law in precolonial Islam is still to be found in legal practice as discussed by the authors, and that these ideas can be also found in the Islamist thought that subsequently spread among urban reformist movements and in legal reforms adopted in Pakistan.
Abstract: Influenced by Orientalist assumptions and Utilitarian ideals, and needing to enforce a system of adjudication that responded to their interests, the East India Company's officers selected among varied religious texts a set of norms and tried to apply them consistently. The decision to rely on texts rather than practice, the choice of certain precepts at the expense of others, and their rigid application ran counter to the traditional administration of justice, which had been fluid, contextual, and plural. They also distorted the meaning of Hanafi fikh, turning what had been an instrument of legitimation, a moral reference, and a source of social standing into a system of organized dispute settlement. The emphasis on religious textual sources and the attempt to use them as a basis for codification coincided with the idea, which gained ground in the nineteenth century among Muslim reformist movements, that political weakness could be countered by returning to a pristine scripturalist Islam, focused on its legal aspects and seen as a systematic doctrine devoid of ambiguities. These ideas can be also found in the Islamist thought that subsequently spread among urban reformist movements and in legal reforms adopted in Pakistan. A review of case studies, however, suggests that the flexibility and contextuality that characterized the enforcement of Islamic law in precolonial Islam is still to be found in legal practice.

Book
08 Jan 2010
TL;DR: In this paper, the authors present a formal analysis of the Fiduciary Doctrine and its relation to the conflict principle and the Profit Principle in the context of trust management, and propose a fair-dealing rule for trust management.
Abstract: 1 Prologue 2 Points of Departure I. Form of Analysis II. Subject Matter of Analysis A. Historical Analogies B. Modern Approach i. Genesis and Gestation ii. Justification 1 3 Peculiarly Fiduciary Duties I. Duty to Perform the Task Undertaken II. Duties of Care and Skill III. Conflict and Profit Principles IV. Good Faith V. Proper Purposes Doctrine VI. Fiduciary Powers VII. Duty to Act in Good Faith in the Principal's Best Interests 4 Fiduciary Loyalty I. Introduction II. Subsidiary Prophylactic Protection A. Protective Function B. Prophylaxis C. Subsidiarity III. Remedies A. Rescission and Profit-Stripping i. Rescission ii. Accounts of Profits and Constructive Trusts iii. Connection with Fiduciary Protection B. Compensation for Loss i. Availability ii. Causation and Loss iii. Connection with Fiduciary Protection IV. Critics 5 Fiduciary Doctrine and Morality I. General Observations II. The Argument from History III. The Profit Principle A. Existence of the Profit Principle B. Relationship to the Conflict Principle IV. The Fair-Dealing Rule A. The Self-Dealing Rule B. The Fair-Dealing Rule i. References to 'Fairness' ii. Non-Critical Relevance of 'Fairness' iii. Fairness as Evidence of Full Disclosure iv. Relationship to the Self-Dealing Rule and Conflict Principle V. The Corporate Opportunity Doctrine 6 Conflicts between Inconsistent Duties I. Origins II. Content and Function A. Potential Conflicts B. Actual Conflicts C. Inhibition i. Pattern of Liability ii. Function III. Remedies A. Stopping Further Action B. Rescission of Resultant Transaction C. Forfeiture of Fees and Other Profits i. Fees Paid by the Non-claimant Principal ii. Fees Paid by the Claimant Principal D. Equitable Compensation i. Availability and Function ii. Identifying Loss iii. Contributory Fault 7 Implications I. Scope of Fiduciary Duties II. The Vital Nature of Non-fiduciary Duties A. Consequence of the Protective Function B. Potential Counter-examples i. Preventing Circumvention of Fiduciary Protection ii. Solicitors Cases iii. Negotiations towards Joint Ventures iv. Bare Trusts III. Proscriptive Duties IV. Authorisation V. Critiques of Fiduciary Doctrine 8 Conceptual Affinities I. Contract and Fiduciary Doctrine II. Torts and Fiduciary Doctrine A. Fiduciary Doctrine and Negligence B. Surrogacy for Tort Law Generally i. Cause of Action Surrogacy ii. Civil Wrongs III. Undue Influence and Confidence A. Undue Influence B. Confidence 9 The Incidence of Fiduciary Duties I. Academic Commentators A. Acting on Behalf of Another B. Discretion and Power C. Reasonable Expectations D. Limited Access II. Turning Theory into Practice A. Judicial Applications B. Relevant Considerations 10 Epilogue


01 Jan 2010
TL;DR: In this paper, a new foreign policy doctrine based on the concept of "smart power" is emerging in Washington, D.C. This doctrine relies on the idea that the combination of "hard power" and "soft power" will allow the United States to build an appropriate framework to tackle today's unconventional threats.
Abstract: Beyond the opposition 'EU – civilian and soft power' versus 'US – military and hard power', it is time to consider significant changes in foreign policy on both sides of the Atlantic. On the one hand, the EU is trying to develop its military capabilities; on the other hand, the US is aspiring to modernize and rebuild its civilian capabilities. This paper focuses on the recent developments which have occurred in the United States as well as on the impact of these changes on the transatlantic security partnership. It asks to what extent the US turn towards 'smart power' constitutes a significant shift in US security strategy likely to have an impact on the transatlantic security partnership. Since the election of Barack Obama, the debate on US instruments of power and influence has become particularly relevant. In fact, a new foreign policy doctrine based on the concept of 'smart power' is emerging in Washington, D.C. This doctrine relies on the idea that the combination of 'hard power' and 'soft power' will allow the United States to build an appropriate framework to tackle today’s unconventional threats. The new US President intends to strike a balance between the three 'Ds': defense, diplomacy and development, by rebuilding the civilian diplomatic and development capacities. The emergence of American 'smart power' represents a significant shift in US national security strategy, and although it is too early to judge the extent to which the new US administration is willing to embrace this concept in practice, a new impetus is given to the transatlantic security partnership.

Posted Content
TL;DR: In this paper, the authors map the different definitions of and approaches to legal transplants by offering a graphic presentation of a series of typologies and distinctions that serve to encapsulate the various aspects of the debate.
Abstract: The study of legal transplants seems to have reached its saturation point. Its richness has both contributed to conceptual confusion and obscured persistent assumptions about the nature of the migration of laws that are no longer valid in today’s “flat” world. This Article aims to map the different definitions of and approaches to this concept by offering a graphic presentation of a series of typologies and distinctions that serve to encapsulate the various aspects of the debate. It then focuses on aspects that have received insufficient attention, and advances a renewed model of the transplant process that draws on today’s complex reality rather than on the classical assumptions that served as a basis for early debate. Simple accounts of transplants as single events, through which an importer system adopts the laws of an exporter system, should be replaced by long-term accounts of series of interacting transplant events generated by a multitude of players. The model is applied in a case study that chronicles the evolution of the two British grounds of substantive review of the administration, unreasonableness, and proportionality. Both have evolved through complex processes that involve innovation, vacillating degrees of loyalty to European doctrine and reliance on Commonwealth sources of influence. The application of the model not only provides a real-life example of the evolution of law in practice, it also offers readers a glimpse of the development of British public law and the impact of foreign law. Here, I proffer a novel emphasis on the impact of Commonwealth law. The literature in this context usually focuses on two actors: European law is considered, at least impliedly, as the central source of influence. Yet British courts first obliquely rejected European pressure by reverting to tests seemingly developed in Commonwealth countries (which, in fact, largely resemble German jurisprudence, once again without disclosing this influence). Ending with an assessment of the current state of affairs and possible future reliance on other sources of influence (the United States included), I show that no transplant is an island, and that complex modes of interaction color the process.

Book
01 Mar 2010
TL;DR: In the name of God: Regulating Religion in Elections as mentioned in this paper, the Supreme Court and Hinduism defined the Supreme court and defined the essential practices of a rational Hinduism, and the doctrine of essential practices was adopted by the judges.
Abstract: 1. Introduction 2. .Defining Religion: The Supreme Court and Hinduism 3. The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism 4. In the Name of God: Regulating Religion in Elections 5. Good Citizens: Religion and Educational Institutions 6. Boundaries of Faith: The Court and Conversion 7. Imposing legal Uniformity: The Court and Muslim Minority Rights 8. Judging Religion: A Nehruvian in Court 9. Conclusion Bibliography