VictorJuiz/thesis huggingface dataset:
Containers in the law of carriage of goods

Container transport is not a new mode of transport. It is only a more efficient method of using the three main conventional modes, namely sea, rail and road transport. As the international community has as yet failed to achieve agreement about a uniform set of rules to deal with the legal problems arising in connection with the new method, it has become necessary to attempt to solve these problems on the basis of existing legal rules governing the conventional modes of transport. The present work analyses attempts made in that direction in English, American, Canadian and French law, and generally studies the feasibility of applying the old rules of transport law, both the local ones prevailing in the above-mentioned legal systems, and the rules of existing international transport conventions, to the new realities of containerisation.
Such an application would have been a mere mechanical operation if containers could be defined in such a way as would have enabled them to be uniformly classified within the conventional concepts of either 'goods', 'package' or 'vessel/vehicle'. But the container is a hybrid. Indeed, its ability to change functions in rapid succession, and even perform several functions at the same time, as a mobile part of the ship, a storage compartment of a vehicle, a warehouse and a package, is the very reason why it has been brought into use.
The categorisation of all aspects of container transport within traditional terms and concepts of transport law can therefore be done only piecemeal, deciding in each legal context which facet of the container is relevant to the issue at hand. This has led to classifying the container in different parts of the thesis as 'part of the ship', as 'goods' and as 'package' within the meaning of the same statute. The aim of the present thesis is to show that, inconvenient as this manner of solving the legal problems of container transport may seem to be, it is the correct one. Simple solutions to these problems are theoretically easy to conceive, but only legislation can give them the force of law. Attempts to achieve similar solutions through judicial interpretation by uniform, but arbitrary, classification, would achieve relative simplicity in some aspects, but only at the cost of distorting the structure of existing rules and producing unacceptable solutions in other aspects.
[Please see thesis for the complete abstract.]
Prisoners' rights in Germany and England : a comparative examination

This thesis is a comparative examination of prisoners' rights in England and Germany. The thesis has three dimensions: first, it is a description of the legal status of the prisoner in Germany and England; second, it is an examination of the social, political and cultural dynamics which have shaped prisoners' rights in each jurisdiction; and third, it is in itself an exercise which seeks to address the problems of comparative law which are identified in the introduction.
England and Germany have been chosen as comparators as their respective approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a prisoners' rights jurisprudence, prisoners' rights protection remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion, and the present Government, much like its predecessors, is unlikely to entrench a bill of prisoners' rights. Proponents of prison reform in England argue that the system of prisoners' rights protection is inadequate, not only in terms of the rights which prisoners can claim, but in terms of the possibilities of enforcement and the independence of enforcement bodies. This equivocal commitment to rights in England is heightened when juxtaposed against Germany's highly articulated rights culture and ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act, which is underpinned by a considerable constitutional jurisprudence on prisoners' rights, sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights and provides prisoners recourse to a Prison Court. Moreover, the rights and principles under the German Prison Act have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years.
Chapters one to three of the thesis make available to an English audience an in-depth account of the conception and protection of prisoners' rights in Germany and the broader context in which this has taken place. Chapters four and five of the thesis examine the method and manner of conceiving of the prisoner's legal status in England in the light of the German conception and explore the deeper political and cultural reasons for the divergence between England and Germany.
Australian aboriginal child separations and guardianship

This thesis explores and examines the history of Aboriginal child welfare policy in Western Australia. This historical scheme allowed thousands of Aboriginal children to be separated from their families. The policy of separating Aboriginal children from their families to be raised in the 'white way' was underpinned by an intrusive legislative scheme that made the Chief Protector of Aborigines or the Commissioner of Native Affairs the legal guardian of all Aboriginal children whether they had living parents or not. However, the statutes, Aboriginal specific or mainstream, remained relatively silent on the content of the guardianship duties, thus the need to turn to the common law to identify these duties. Overlaying these duties is the best interest of the child principle. Unfortunately, according to testimonies and some corroborating official documents, it appears that in many instances the State guardians failed to comply with their guardianship duties. This raises issues of State accountability and responsibility and legal liability. However the court system has failed to provide redress for the separated Aborigines. It is argued that the courts could provide redress by holding the guardianship relationship as a sub-category of the fiduciary relationship requiring protection of the non-economic personal interests of the separated Aboriginal children. It is acknowledged though, that the protection of noneconomic interest is foreign to Australian fiduciary jurisprudence. It is furthered acknowledged that the separated Aboriginal children face other legal hurdles. The lack of judicial redress means a political solution is required in response to the demands for justice by the separated Aboriginal children. It is argued that the examination of the guardianship relationship and breaches of guardianship duties provides added political force to the case for awarding reparations to the separated Aboriginal children.
Crown land in Australia

Property theory has long explored the meaning and content of private property. Similarly, one finds no shortage of analysis of common or communitarian property. In the theoretical literature, however, one finds very little writing about public property, a third, very significant, type of property. This lack of attention is not due to a lack of examples; on the contrary, examples abound. This thesis offers a theoretical analysis of one such example: Crown land in Australia. Crown land is a largely forgotten and therefore under-analysed aspect of Australian real property law. This lack of analysis has produced significant confusion in recent judicial developments concerning Australian common law native title. In order to alleviate the potential for confusion, this thesis fills a long-standing gap in the literature of Australian real property law.
In order to fill this gap and to provide a much-needed analytical account, it is necessary to make use of working definitions of private, public and communitarian property. This thesis provides each. First, using JW Hams' Property and Justice, it constructs a working definition of private property. From that, by way of contrast, a working definition of public property is offered. Finally, by way of contrast to both private and public property, a working definition of communitarian property is also developed.
Armed with working definitions of private, public and communitarian property, the thesis provides an analytical account of Crown land in Australia. It describes Crown land as the quasi-ownership use-privileges and control-powers which the Crown, by virtue of its prerogative power over land, enjoys in Australian land. The Crown enjoys differently packaged bundles of such privileges and powers over many different sorts of land, such as those which have never been allocated for any use, specific natural resources such as minerals or petroleum, those over which Australia's Aboriginal peoples enjoy native title, and even those over which private persons hold freehold estates or statutory leases. All such lands, due to the Crown's quasi-ownership privileges and powers therein, can be called Crown land, which embraces a continuum of locations, each defined by a unique package of such privileges and powers over the relevant type of land. The thesis calls this the Crown land continuum, which, in its totality, is a working example of public property.
Wittgenstein and legal determinacy

In the jurisprudential literature, much attention has recently been given to the role of language within law, with various writers asserting that certain theories of meaning or theories of interpretation offer new insights into the nature of law. My survey of portions of this on-going debate will have two overlapping foci: the issue of legal determinacy and the application of Ludwig Wittgenstein's ideas to legal theory. In the context of a number of different discussions, I argue that a proper understanding of the nature of language and its role within law compels neither the conclusion that law is radically indeterminate nor the conclusion that law is completely determinate.
I disagree with the usual reading of H.L.A. Hart on "open texture", arguing instead that Hart's argument was as much about the proper way to apply legal rules as it was about the nature of language.
I offer a reading of Wittgenstein's rule-following considerations which differs from Saul Kripke's reading as well as from the reading some legal theorists have offered, and which I believe justifies only a modest view of the direct applicability of Wittgenstein to jurisprudence.
I argue that Ronald Dworkin's recent work leaves a number of unresolved questions regarding right-answer theories and that there are basic difficulties with his holistic-interpretative approach to law.
Finally, I discuss Wittgenstein's critique of platonism as part of an argument that Michael Moore's metaphysically realist approach to law offers no advantages compared to more conventional approaches.
Accountability : a public law analysis of National Health Service contracts

The thesis takes as its subject the concept of accountability. It examines the use made of the concept in the public law literature, and advances a novel analytical model of the individual accountability mechanism. The model identifies the essential features of that mechanism: setting standards against which an account can be judged; requiring the person being called to account to explain and justify his or her actions; judging the account rendered against the standards set; and responding to the account rendered, where appropriate, with enforcement measures.
This analytical approach provides a way of examining, in detail, an individual accountability mechanism, and identifying the main practical problems faced by the parties to it. The approach is applied to an empirical case study of National Health Service (NHS) contracts. (The fieldwork involved an examination of contractual relationships between purchasers (Health Authorities and GP fundholders) and providers (NHS Trusts) in three sample areas, using document analysis, interviews and observation.)
The study's main findings fall into three groups. Firstly, purchasers were subject to various pressures and constraints (of time and resources, for example) which affected their actions in calling providers to account. Secondly, the study uncovered some of the complexities of the relationship between the parties to the accountability process. Analytical models of the accountability relationship were developed in order to classify different types of relationship according to the parties' behaviour and their degree of mutual trust. Thirdly, the study examined whether purchasers, as callers to account, could render the accountability process effective. For various reasons, purchasers often lacked the authority to set and enforce the standards they required.
The model of the accountability mechanism developed in the thesis also has evaluative potential. Drawing on the public law literature as well as the empirical data, a notion of the good accountability process is evolved. This includes, for example, requirements of maximising the accountability achieved within available resources, maintaining good relationships by using fair procedures, and finding ways of making the whole process effective. Some of these principles may be of more general application to other accountability processes. Possible generalisations are explored, particularly the contribution of the thesis to the development of an explicitly public law concept of contract.
The judge's burden : a new outline of the Roman civil trial

The subject of this thesis is the Roman civil trial before a single judge. This study was prompted by a recent archaeological discovery of great importance. The discovery of a municipal charter in Spain from the first century A.D. has revealed an enormous amount of detailed information on how a lawsuit during the classical period passed through its various stages, a subject on which previously we were very poorly informed. This thesis examines the new material in an effort to learn how a trial commenced and how a judge brought it to a close.
The first half of the thesis discusses intertium, an institution previously unknown. It is suggested that intertium was a device by which a person selected to serve as judge was examined for suitability. The examination was undertaken immediately before the trial, to ensure that the lawsuit would not be suspended or fail for want of a judge.
The second half of the thesis discusses adjournment and judgement. The new evidence suggests that the pertinent rules took great care to distinguish a judge's failure to serve from the proper suspension of the trial by adjournment. A judge might therefore negotiate the rules with little difficulty, and bring the trial to judgement without incurring liability himself for failure to serve.
The entry, establishment and removal of aliens in national and international law

This thesis is concerned with the problems which are raised by the movement of persons across frontiers. Its aim is to show that states' powers, which are so often described as absolute or sovereign, are in fact directly controlled by and subject to the rules of general international law. In the Introduction attention is drawn to the dangers involved in the loose usage of the word "discretion". The concept of "discretionary powers" is one which recurs throughout the following pages, and it is therefore essential to note that it is employed to signify powers which, although wide, are nevertheless confined and structured by rules.
In Chapter I the first of two preliminary topics is dealt with. Nationality, as the basis of the first distinction which is drawn against the alien, is of fundamental importance. The problems which arise from nationality, however, are also used to demonstrate the meaning of discretionary state competence (Ch. I, s.2). This is followed by a brief consideration of the approach to nationality matters of selected municipal systems (Ch. I, s.3), and it is noted that states will frequently provide for an additional class of "non-citizen nationals" who may benefit from the right of entry. Finally, the right to enter a state is mentioned and its sources considered (Ch. I, s.4), but a detailed examination is left until Part III.
Chapter II deals with the issues involved in the use of passports and other travel documents. A brief history of passports is given (Ch. II, s.1), and the role of the passport in municipal law is examined (Ch. II, s.2). It is seen that the passport still remains essentially an instrument of municipal law and that, in so far as it is related to the "right to travel", general international law has little of importance to say. However, recent treaties have provided for a facilitation of inter-state travel by either abolishing the passport requirement altogether, or introducing and substituting a less formal document such as a national identity card. Additionally, multilateral treaties have made provision for the issue of travel documents to refugees and stateless persons (Ch. II, s.3). It is observed that the passport is of importance in one particular matter, namely, as a guarantee of the returnability of the holder to the issuing state (Ch. II, s.4), and it is proposed that, whatever its effect as proof of nationality or as indicating the right to exercise diplomatic protection, it is this one guarantee which is required by a rule of customary international law.
[Please see the .pdf for the complete abstract.]
The derivative action as a corporate governance tool : a functional and focused approach

This thesis of 98,273 words is concerned with one of company law's most thorny aspects: the derivative action. The thesis has both a positive and a normative dimension. It takes a position about the role that derivative action litigation should have in the corporate governance matrix. This is the realm of the normative, the domain of what some political philosophers call 'ideal theory'. However the analysis here aims not to be merely a philosophical flight of fantasy about how things ought to be, but rather aims to provide insight into current practice and to suggest substantive viable improvements. In view of this, this analysis can be used both to understand substantial and procedural rules governing the derivative action and judicial decisions in this area, and to suggest how problems should be resolved in the future, judicially and legislatively.
First, the thesis attempts a fundamental rethink of the content of the derivative action and its objectives. It attempts to clarify the nature of the action and the circumstances in which its application may be deemed propitious. The thesis then focuses on and examines the conditions that may produce a positive inducement to litigate. It expresses a view on what might be the optimal level of such litigation with a view to enhancing the potential effectiveness of the action. Crucially, it strongly links the actual viability of derivative actions to funding mechanisms, namely developing adequate means to fund derivative actions so as to make them worthwhile financially. Finally, the thesis argues that it is vital to clarify the interaction between the primary remedies available to shareholders.
More specifically, the thesis calls for action on three complementary levels, namely, conceptual the adoption of a new framework in the guise of the Functional and Focused Model ('FFM') to govern derivative action litigation; strategic the employment of appropriate incentives and fee rules which advance the premises behind the FFM; and, finally, maintaining doctrinal consistency - by clarifying the interaction between the derivative action and the unfair prejudice remedy.
The crown and judicial venality in the Parlement of Toulouse, c. 1490-1547

Notoriously, the French monarchy began to exchange judicial posts in its courts of law for cash to raise emergency funds in the early sixteenth century. The fact that all sorts of royal posts subsequently became venal or hereditary is a familiar aspect of ancien régime France, yet very little work exists on the genesis of this institution. This thesis traces the meanings, practices, and effects of 'venality' between 1490 and 1547. It does so by studying the relationship between the crown and the second most important law court of the kingdom, the Parlement of Toulouse. Traditional interpretations of office sale have tended to explain the phenomenon as a tale of royal hypocrisy, and have prioritised research on the Parlement of Paris. In contrast, this study argues that the study of a provincial court forces us to reconsider the chronology, techniques, and outcomes of early venality. A considerable amount of unexploited archival and printed material exists on office sale. By approaching it through the lens of legal culture, this thesis proposes an investigative model not only capable of explaining why venality emerged, but also why it was so vilified. Existing studies of office sale have tended to ignore legal talk and legislation as misleading or dissimulative. By paying particular attention to law and language, however, this study argues that the sale of judicial offices was a deeply ambiguous theme in the first half of the sixteenth-century that was open to constant interpretation. It was this very slipperiness that allowed a variety of actors to engage with it. Early office sale prolonged late medieval practices, but also heralded unprecedented changes, influencing the formation of the early-modern state. By studying the phenomenon, this thesis offers a rich and multifaceted picture of the relations and functioning of the crown and its tribunals.

Keywords: Courts
State
16th Century
Toulouse
Law
Venality
Judges
Sixteenth Century
Magistrates
France
Corruption
Advisor: Briggs, R
Sternberg, G
Voluntarism and compulsion : the Canadian Federal Government's intervention in collective bargaining from 1900 to 1946

In February 1944 the Canadian federal government introduced Order in Council PC 1003, a system of compulsory collective bargaining which has been conventionally characterized as the culmination of the gradual evolution in federal labour relations policy towards the greater recognition of trade unions and collective bargaining.
The issue addressed in this thesis is whether this characterization is accurate. As against the tendency to present federal intervention in collective bargaining as having developed towards some inevitable maturity, the account presented herein seeks to draw attention to the suppressed alternatives of history. Thus, the thesis begins with an examination of PC 1003'S historical antecedents dating back to 1900.
This is followed by an examination of the developments during the Second World War. Instead of concentrating upon federal collective bargaining policy as a means of responding to wartime pressures by establishing a mechanism for mediating and resolving disputes between labour and capital, the thesis emphasizes the extent to which the policy was part of the large post-war settlement. By ignoring this, the conventional account has failed to provide any guidance for understanding either the actual provisions wheich were introduced or the longevity of PC 1003 as the dominant institutional model for Canadian labour relations.
By contrast, if PC 1003 is understood as part of an attempt to forge a post-war settlement between labour and capital it is possible to identify the general thrust of the Order. Although it represented a fundamental shift in Canadian labour policy in that employers were compelled to recognize unions for the purpose of collective agreements, PC 1003 did not radically alter the balance of power to make it easier to organize or constrain managerial prerogatives. In fact, PC 1003 was consistent with the federal government's historical preoccupation with promoting responsible unions and attaining industrial peace and stability.