bluuebunny/crossref_metadata_2025 huggingface dataset:
Self-Determination in International Law
Authors: Wilson Heather A
Published: October 2023

One of the most controversial issues in international law since the end of World War II has been whether self-determination is a right in international law or simply a principle of political thought which has assumed great prominence in international affairs at various periods since the late eighteenth century. Certainly the principle has a highly charged political content leading one author to contend that it is a ‘convenient plaything both for international politics and propaganda’. Whether a convenient plaything’ or a powerful tool, self-determination has profoundly affected ideas about the relationship between people and their governments. It is not my intention to chronicle the development of the idea of self determination. The history of the idea may be found elsewhere. Rather, this chapter examines how self-determination developed into a legal right, and secondly, who the self is that can exercise this right.
Introduction
Authors: Ellmann Stephen
Published: October 2023

Can the rule of law preserve us from oppression? Or must the complex institutions of justice that we establish and nurture inevitably become mere bystanders, or even helpmates, to governments determined to rule by auth¬ oritarian or totalitarian means? Is the proud independence of judges only another vanity, to be blown away like gossamer by the winds of power? Or can legal institutions and traditions develop so deep an interweaving with principles of human rights that law’s disciples will stand firm even when their neighbours and friends deny the force of these principles? These questions echo through modem Westem history, for courts have carried on the business of administering justice in the midst of some of the most unjust regimes we have yet experienced. Northern and Southern judges in the pre-Civil-War United States were called upon to enforce the laws of slavery; German judges continued to work while the Nazis used legal and extralegal means to pursue the Jews of Europe; Argentinian judges held office while the junta caused its opponents to disappear. So, too, South African judges have ascended the bench throughout the long decades of apartheid.
The Rabie Court and the Judicial Protection of the State of Emergency
Authors: Ellmann Stephen
Published: October 2023

The principal focus of this chapter and the next will be on the Appellate Division’s handling of state of emergency cases during the years in which the court was headed by Chief Justice, then Acting Chief Justice, Pieter J. Rabie. The state of emergency outlasted Chief Justice Rabie’s tenure in office, and the Appellate Division has continued to make emergency law decisions since he left the court. We will look at those post-Rabie decisions, but we will begin by focusing on the Rabie court. We will do so because a study of the emergency cases of ‘the Rabie court’ is a study of a court of a particular character, and not simply of an arbitrary period of time.
The Corbett Court and the Emergency
Authors: Ellmann Stephen
Published: October 2023

On 31 January 1989 Rabie ACJ retired. He was replaced as chief justice by Justice Michael Corbett. As his name suggests, Corbett CJ is a member of the English-speaking white South African community-though he speaks Afrikaans, and in some of his speeches he turns to Afrikaans with the apparent goal of communicating more fraternally with Afrikaners in his audience.2 At the age of 18 he enlisted in the South African armed forces, and served in Egypt and Italy during the Second World War. Educated at the University of Cape Town, one of the leading English-speaking universities of South Africa, he earned a second law degree at Trinity Hall, Cambridge, and then joined the Cape Bar in 1948. He became a senior counsel in 1961 and in 1963 was appointed to the bench of the Cape Provincial Division. In 1974 he joined the Appellate Division and so, in 1989, he was a very senior member of the court.3 Corbett CJ’s concern for human rights had been apparent for many years before his appointment as chief justice. In 1979 he gave the opening address at the First International Conference on Human Rights in South Africa, held at the University of Cape Town, and told his audience that two years earlier he had made his first visit to the United States and become acquainted with the Bill of Rights and the American system of judicial review. In his words, ‘I returned home a convert to that system.’4 A longtime member
Introduction
Authors: Clapham Andrew
Published: October 2023

This book challenges several traditional assumptions concerning human rights. In particular it challenges the presumption that the fundamental rights and freedoms contained in the European Convention on Human Rights are irrelevant for cases which concern the sphere of relations between individuals. It asks whether victims should be protected from non-state actors, and attempts to develop a coherent approach to ‘human rights in the private sphere’. It is the application of human rights law to the actions of private bodies which I label ‘human rights in the private sphere’ or ‘the privatization of human rights’. The book concentrates on the rights contained in the European Convention on Human Rights, and their enforcement in the courts of the United Kingdom and at the European level: at the European Commission and Court of Human Rights in Strasbourg, and at the European Court of Justice in Luxembourg.
The European Community Legal Order
Authors: Clapham Andrew
Published: October 2023

This chapter explores the operation of human rights in the private sphere within the Community legal order. There are two dimensions to rights in the private sphere within the Community legal order. The first involves what may be called ‘fundamental Community rights’ which individuals have under Community law and which may, or may not, be enforced· against other private or non-state bodies (that is to say bodies such as employers, professional associations, corporations, etc.), or even used to invalidate the rules and regulations of such private organizations.
A ‘Private Police’ for Human Rights in the Private Sphere
Authors: Clapham Andrew
Published: October 2023

A recurring theme in this study has been the suggestion that the current and future success of the European Convention on Human Rights owes a great deal - to a number of pressure and interest groups. These groups have seized the opportunities which the Convention offers and have often exploited its potential through a number of applications. Furthermore, these applications have often been fought over fundamental principles; victory for the applicants has meant fundamental changes in the law affecting whole classes of people. Examples include the campaign by STOPP (Society of Teachers Opposed to Physical Punishment) which, following the Campbell and Cosans case, resulted in the legislation which abolished corporal punishment in state schools, and the campaign by NIGRA (Northern Ireland Gay Rights Association) which, following the Dudgeon case, resulted in the repeal of the law which criminalized homosexual relations in Northern Ireland.
Inclusive v. Exclusive Positivism
Authors: Waluchow W J
Published: October 2023

It is not easy to characterize natural-law theory in a way which captures what is more or less common to all theories going by that name. The same is true of positivism. Nevertheless, if pressed, one might reasonably identify natural-law theory as the view which affirms the proposition that there is a law, above (Augustine and Aquinas) or implicit in (Dworkin and Fuller) the explicit positive law in terms of which, necessarily, the existence and content of the latter can either be derived or challenged. It is no contingent accident that law and morality are connected: law just is a vehicle for the expression and enforcement of the moral law, or some particular element of it. Whether that element is to be identified with justice (as opposed to charity, benevolence, etc.) or with what Aquinas would have called ‘exterior’ as opposed to “interior’ movements, 1 the point remains: it is in the very nature of law to express moral demands and affirm moral rights, whether these are rights of political morality, as in Dworkin, or rights affirmed in or derivable from God’s Eternal law, as in Aquinas. A law could no more fail to express (perhaps inaccurately) a moral requirement than could the making of a promise.
Party Choice and Proof
Authors: Fentiman Richard
Published: October 2023

Courts are reluctant to intervene in how conflicts cases are presented. But, as we have seen, the introduction of foreign law is exceptionally manda tory. And, as the present chapter shows, courts may sometimes regulate whether, how, and by whom foreign law is proved. This is not to say that a court will make directions to this effect, still less that it will seek to deter mine foreign law on its own. But a party who is duty-bound to plead for eign law and does not do so, or who offers insufficient proof, faces a powerful and persuasive sanction. The penalty for insufficiently proving foreign law is the failure of the defence or claim, either because the court will prefer the other party’s evidence, or will apply English law by default. Where foreign law is relied upon but no evidence is tendered, the effect may be still more severe. Arguably, the defective case should simply be dismissed.
Inside the Diplock Court
Authors: Jackson John , Doran Sean
Published: October 2023

This chapter describes the methods we adopted to study whether the absence of the jury pushes the Diplock trial procedure in the direction of an inquisitorial mode of proof. The point was made in the last chapter that this question cannot be determined merely by looking at the formal changes which have been made to the rules of evidence and procedure. These rules remain substantively the same in both Diplock and jury trials and yet the absence of the jury may have significantly altered the way in which trials are conducted in practice. For example, we have seen that the analytically separate issues of the admissibility of confessions and the weight to be given to those confessions are treated together in Diplock trials, not because of any requirement of the rules of procedure but simply because it has been most convenient to adopt this practice. Counsel have generally followed the practice of questioning witnesses on the voir dire on the issues of admissibility and weight because the same tribunal, the judge, decides both matters.
From Contest to Inquest?
Authors: Jackson John , Doran Sean
Published: October 2023

Before we consider further the respects in which Diplock procedure reflects a shift towards the inquest model of proof, we need to remind ourselves of the essential ingredients of the inquest model, as described in Chapter Three. There we identified the role of the judge as an active inquirer as a crucial indicator. Judges in the inquest model have ultimate responsibility for determining the range of the dispute, gathering the evidence relevant to it, and testing and evaluating the evidence in courts of law. Our study has focused mainly on trial practices, but it is useful at this point to consider that no matter how inquisitorially oriented the trial procedures observed may appear, they are still embedded in an essentially adversarial mould.
Common Law Exceptions to the Hearsay Rule
Authors: Choo Andrew L -T
Published: October 2023

In this Chapter, it is proposed to examine a number of the exceptions to the hearsay rule that are recognized at common law. The discussion is selective rather than comprehensive, focusing on the exceptions which are most controversial and relevant to criminal trials. Other exceptions are either treated only in outline or omitted altogether. One might have expected the exceptions to the hearsay rule to perform the function of facilitating the admission of reliable evidence which would otherwise be excluded by the rule. However, it may be demonstrated that not only have the exceptions failed adequately to perform this function, but that some evidence which is admissible under the exceptions is no more reliable (and sometimes less reliable) than hearsay evidence to which the exceptions do not apply and which must therefore, in theory, be excluded.
Regulatory Competition as Regulatory Capture: The Case of Corporate Law in the United States of America
Authors: Bratton William W , Mccahery* Joseph A
Published: October 2023

America has a standing agenda of corporate governance reform items. All the items pursue a common, but elusive goal-the institutionalization of effective contractual regulation of corporate managers. The goal appeared to be within easy reach twenty years ago. It was then thought that transactions in markets for corporate control, corporate products, and corporate employment imported sufficient discipline. But intervening business cycles and regulatory barriers have reduced prospects for corporate control through the indirect means of discrete market contracts.
Supply-Side Inefficiencies and Competitive Federalism: Lessons from Patents, Yachting, and Bluebooks
Authors: Ayres Ian
Published: October 2023

The ongoing debate about whether Delaware’s dominance in the market for corporate charters is a race to the top or a race to the bottom often turns on whether one believes corporate managers are driven to incorporate (or rein corporate) in the state that provides the most efficient law. William Cary (1974) and his followers have argued that managers abuse their discretion to incorporate in states that benefit managerial interests at the expense of share holder interests; Ralph Winter (1977) and his followers (see, e.g., Easterbrook & Fischel 1991) have argued that, because managers’ discretion is constrained by promoters or by the threat of a potential takeover, managers will tend to incorporate in states that provide laws which maximize the value of corporate equity.
Competitive Federalism and Legislative Incentives to Recognize Same-Sex Marriage in the USA
Authors: Gerarda Brown Jennifer
Published: October 2023

In Baehr v. Lewin, 1993, the Supreme Court of Hawaii held that Hawaii’s marriage statute discriminates on the basis of gender and may therefore violate the state constitution’s equal protection clause. The statute allows marriage only between a man and a woman; same-sex couples are excluded. The trial court in Baehr (1993: 68) must now decide whether the law serves a compelling state interest. Some predict that the state will be unable to justify the law and that Hawaii will become the first state to solemnize marriages between people of the same sex.
Public Law and the Environment: The Prospects for Decision-Making
Authors: Jewell Tim
Published: October 2023

In this chapter, I will explore some of the processes provided by statute for making decisions with a direct environmental impact. In this way I hope to draw out some of the tensions which arise between issues of legal form or process, and substantive environmental protection. This is not, then, a thorough exploration of contemporary environmental regulation,1 but rather an examination of some of the ways in which process and substance interrelate in UK environmental regulation, and the implications of that relationship. The first step in addressing these questions is to identify those features of statutorily-defined environmental decision-making processes with which I will be concerned, and to place them in a broader public law context.
Dynamics, Process, and Instruments of Environmental Decision-Making in the European Union
Authors: somsen* Han
Published: October 2023

Although the birth of a discrete legal corpus designed or at least frequently applied specifically with the aim of preventing or resolving environmental problems is of recent origin, law as the instrument by which society is moulded and transformed always has been a significant factor in shaping the natural and physical environment. Feudal rules on the ownership of land explain the practice of extensive (as opposed to intensive) land use and the absence of over-exploitation in the middle ages, for example, whilst one result of the French Revolution was the complete liberalization of hunting, in tum leading almost overnight to the extinction of all species of game in the Republic.
Manner of Involvement in Australia
Authors: Stapledon G P
Published: October 2023

This chapter adopts the same fourfold classification of the manner of institutional monitoring that was employed in Chapter 5 (for the UK situation), and there is the same general structure within the four sections. There would appear to have been even less industry-wide monitoring carried out directly (i.e. by institutions personally) in Australia than the fairly small amount in the UK. The formation of the AIMA in 1990 certainly led to a substantial reliance upon it to formulate and promulgate institutional views on best practice in matters of corporate governance and investor protection. Nevertheless, there was an instance of direct industry wide involvement in 1993, when several institutions each made a submission to the ASX in relation to its discussion paper on equity voting rights. Also, Mr Leigh Hall, a senior investment manager at AMP, was a member of the Australian Law Reform Commission until the end of 1992, and a member of the Companies and Securities Advisory Committee ( ‘CASAC ‘) at mid-1994.
Infringement: Jurisdiction Under the European Community/European Free Trade Association Rules
Authors: Fawcett James J , Torremans Paul
Published: October 2023

Convention, ie it is a civil and commercial matter, and, when it comes to bases of jurisdiction, the defendant is domiciled in an EC Contracting State. Likewise, when it comes to the Lugano Convention, its jurisdiction rules apply where the matter is within the scope of the Convention, ie it is a civil and commercial matter, and, when it comes to bases of jurisdiction, the defendant is domiciled in an EFI’A Contracting State. It is dear that intellectual property matters are intended to come within the scope of these Conventions because of the presence of Article 16(4).
Complementary Torts and Other Causes of Action: Jurisdiction
Authors: Fawcett James J , Torremans Paul
Published: October 2023

There is a wide variety of causes of action under English and foreign law which are complementary to the tort of infringement.1 In this chapter, we will be examining these other causes of action: ie passing-off; malicious falsehood; defamation; unfair competition; wider Continental protection in delict; breach of competition rules; breach of confidence. Most of these causes of action are tortious. Passing-off, which is often used in combination with a trade mark infringement action, is the most obvious example to start with. In many continental legal systems, this area is taken up by the tort of unfair competition. Whilst not identical, there is an overlap between the common law and the continental civil law approaches. This overlap will be examined from a comparative point of view.
Codifying Directors’ Duties*
Authors: Arden Mrs Justice
Published: October 2023

My purpose in this essay is to consider the case for codifying the duties of a director of a company. I will begin by summarising the fiduciary duties of directors as they stand at the moment. Obviously any discussion of the precise content of those duties could fill the whole of this essay on its own. I propose to work on the basis that the main features are as described in Gower’s Principles of Modern Company Law.That work states that there are effectively four rules. First, directors must act bona fide in what they consider is the best interests of the company, and those are the words used by Lord Greene MR in Re Smith and Fawcett Ltd. Directors therefore cannot use their powers to benefit third parties or themselves. Secondly, directors must exercise their powers for the purpose for which those powers are conferred.
Sovereign States and Vengeful Victims: The Problem of the Right to Punish
Authors: Maccormick Neil , Garland* David
Published: October 2023

‘Revenge,’ said Bacon, ‘is a kind of wild justice’. Is justice then no more than revenge tamed? Or, to put the question less figuratively, how does and should the criminal justice process relate to the sense of injury or grievance felt by those who are in one form or another victims of criminal misconduct? In what interest and for whose sake is punishment imposed by the State on convicted criminals? Is public justice to be considered as something set apart from the vindication of private right, or is it simply one form of process that human beings have devised for protecting the rights each of them has as an individual? These questions have a sharp contemporary point in view of the prominence given by the media nowadays both to the injuries suffered by victims, and to the demands of victims and their families for punishment stiff enough to assuage the sense of grievance or resentment they actually feel.
Making the Courts Safe for the Powerful: the Commercial Stimulus for Judicial Autonomy in Reforms of the United States’ Bankruptcy Law
Authors: Halliday Terence C , Carruthers Bruce G
Published: October 2023

The institutional foundation of limited government in the United States received its most eloquent early defence by New York lawyer, Alexander Hamilton, later to be founder of the Bank of New York and an architect of the national banking system. Writing in The Federalist Papers, a widely circulated tract that sought to persuade New Yorkers to ratify the new federal constitution, Hamilton averred that ‘courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments’. Against the legislature, the courts provided a balance against majoritarian tyranny; against the executive—and, formerly, the monarchy—independent courts erected ‘a barrier to despotism’.
Customary Law
Authors: Kuper Jenny
Published: October 2023

The three preceding chapters have considered international human rights and humanitarian law, as set out largely in treaty and in other legal instruments, that is relevant to the treatment of child civilians in situations of armed conflict. However, a summary of this body of law would be incomplete without at least a brief consideration of the possible customary law status of certain of its provisions.
International Law, the Individual, and A.W. Brian Simpson’s Contribution to the Defence of Human Rights
Authors: Mole* Nuala
Published: October 2023

As we commence a new millennium, it seems we have come to live in a world in which the press, politicians, and public figures are always ready to make use of the term ‘human rights’. It is invoked in encapsulating aspirations of social equality, in expressing a sense of outrage at brutality or cruelty, as well as in emphasizing the importance of the rule of law in achieving justice for individuals and marginalized groups. The proposition that human rights should be observed and respected is virtually unchallenged, but one only has to open a newspaper to see how frequently states disregard in practice even those fundamental rights which are universally recognized.
A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights
Authors: Mccrudden* Christopher
Published: October 2023

Brian Simpson’s unquenchable and infectious intellectual curiosity has resulted in his pursuing as wide a range of scholarly interests as any other legal academic of his generation. Two of these interests are reflected in this article: the role of precedent, and the pursuit of human rights. It is offered as an inadequate ‘thank you’ for the insights and friendship he has given my family and me over the years.
In the Highest Degree Ominous: Hitler’s Threatened Invasion and the British War Zone Courts
Authors: Rubin G R
Published: October 2023

Thus wrote an anonymous pamphleteer in 1941. He (or she) was, however, quick to add that the portrait was more fantasy than photography.
Tears of the Law: Colonial Resistance and Legal Determination
Authors: Fitzpatrick Peter
Published: October 2023

I sometimes fear the Duke of Wellington is too much disposed to imagine that he can govern a great nation by word of command, in the same way in which he governed a highly disciplined army. He seems to be unaccustomed to, and to despise, the inconsistencies, the weaknesses, the bursts of heroism followed by prostration and cowardice, which invariably characterize all popular efforts.
Due Process and Wager of Law: Judicial Conservatism in the Tudor Common Pleas
Authors: Baker J H
Published: October 2023

These words inscribed on the tomb of Mr Justice Walmsley (d. 1612), formerly in Blackburn Church, Lancashire, make but a transparently veiled reference to the judge’s well-known qualities as a judicial conservative and habitual dissentient.2 Walmsley was imbued with a blunt, robust common sense strongly reminiscent of Lord Bramwell. In his heyday he was the leader, and in his latter years the last surviving loser, of the intellectual struggle between his own court (the Common Pleas) and the King’s Bench over recent developments in the common law.
The Role Of Scientific Evidence in the Assessment Of Causation in Medicinal Product Liability Litigation
Authors: Goldberg Richard
Published: October 2023

The role of scientific evidence in proving causation is becoming increasingly significant in tort litigation. This role is particularly relevant when assessing causality in cases involving liability for medicinal products. The present paper discusses the importance of the use of probabilistic evidence in such cases and suggests that statistical devices, such as Bayes’ Theorem, could be useful in medicinal product liability litigation for solving causation problems which are recalcitrant to non-numerical solutions.
The BSE Crisis: A Study Of The Precautionary Principle and The Politics Of Science in Law
Authors: Holder Jane , Elworthy Sue
Published: October 2023

The crisis over BSE (bovine spongiform encephalopathy) or ‘ mad cow disease’ provides fuel for several contemporary debates: the social and environmental impact of intensive farming; the survival of British sovereignty in the face of sweeping action by the European Union; and the nature of a modern ‘Risk Society’, in which perceptions of risk and the actuality of risk are conflated.I
The Risks and Dangers Of Experts in Court
Authors: King Michael , Kaganas Felicity
Published: October 2023

One of the remarkable achievements of modern law is the evolution of a concept of expertise which is both highly specific and, at the same time, is able to encompass an extraordinarily wide range of claimants to specialist knowledge. According to the law of evidence, what distinguishes experts from other witnesses is their knowledge of specialist matters which do not fall within the realm of the knowledge that judges (and juries) could be expected to possess.
Early Court of Justice Regulation of Member State Remedies and Procedural Rules
Authors: Ward Angela
Published: October 2023

Early in the development of the doctrine of direct effect, the European Court of Justice employed a policy of minimal interference in the autonomy of national courts to apply their own remedies for breach of directly effective Community measures. While directly effective EC rules were to be applied in preference to conflicting national laws, in ordinary circumstances the supremacy rule had no impact on the operation of domestic sanctions and procedures. The Court of Justice designed a loose formula which provided that national remedies and procedural law should be attached to claims based on EC measures, provided that: (a) the national rules were not less favourable than those governing analogous domestic actions (the principle of non-discrimination, sometimes termed the principle of equivalence); and (b) the national rules did not make it impossible in practice to enforce the rights claimed (principle of effectiveness).1
Current Issues in Court of Justice Case Law on Member State Remedies and Procedural Rules
Authors: Ward Angela
Published: October 2023

The evolution of the law post-Factortame No 1 is best treated by reference to substantive subject areas, and within that framework, chronologically. This latter approach has been chosen in an attempt to bring clarity to what has become a complex set of legal developments.
Private Parties and the Article 230 Action for Annulment
Authors: Ward Angela
Published: October 2023

As seen in the preceding Chapters, in the last ten years or so there has been significant extension of the vertical reach of Community law into the legal systems of the Member States. This has come about through tandem developments in European Court case law.
Free Press and Fair Trial: Challenges and Change
Authors: Smith A T H
Published: October 2023

The implementation of the Human Rights Act 1998 affords an appropriate occasion to look afresh2 at the law governing the complex interrelationship between free press and fair trial, particularly as it relates to the publication of prejudicial pre-trial material. United Kingdom law regulating this area, the Contempt of Court Act 1981, was enacted under the spur of the European Convention of Human Rights, and as a result of the decision of the European Court of Human Rights in Sunday Times v United Kingdom. That Act was intended to effect a ‘permanent shift in the balance of public interest away from the protection of the administration of justice and in favour of freedom of speech’.5 The purpose of this contribution to the celebration of the work of Sir David Williams6 is to ask whether, in view of the fact that the free speech jurisprudence of the European Court is incorporated into United Kingdom law at a stroke as the Act takes effect, and the fact that no other co-signatory to the Convention on Human Rights has a law comparable to contempt of court, a further shift might now be expected to occur? One of the challenges that the common law currently faces is as to its perception of the proper balance to be struck between free press and fair trial that is established by the Contempt of Court Act 1981 and the surviving common law.
Newsgathering as Protected Activity
Authors: Schulz* David A
Published: October 2023

Twenty years ago Mother Jones, a popular magazine of the US counter-culture, had one of its reporters pose as a job applicant at a chemical factory. By engaging in covert photography while at the factory, the reporter documented the manufacture in the United States of illegal pesticides intended for the export market. The resulting expose earned a National Magazine Award.1 Today, it would more likely to earn a lawsuit. In recent years, litigation over the techniques used to gather the news has become a growth industry in the United States. Such claims have been spurred on by the 1991 Supreme Court decision in Cohen v Cowles Media Co.2 that rejected a newspaper’s effort to assert a First Amendment defence against liability for a tort commit ted to obtain a news story.
Introduction
Authors: Fidler David P
Published: October 2023

Infectious diseases have played a dramatic role in human history. Thucydides’ description of the plague of Athens and its effects on Athenians and their power is one of the most famous ancient recordings of the ravages of an infectious disease. The ‘Black Death’ of the Middle Ages killed a significant proportion of the population in many European regions. The decimation of Native Americans by European diseases during the European conquests of North and South America stands as grim evidence of the power of the microbial world. Cholera epidemics in the nineteenth century struck fear into Europeans and set their governments upon the path of international health co-operation. A virulent influenza strain circumnavigated the globe in 1918-1919, killing over twenty million people.’More recently,
Conclusion: A ‘Never Ending Defeat’?
Authors: Fidler David P
Published: October 2023

This monograph’s premise is that the study of microbialpolitik and the international law that it has produced contributes to efforts to come to grips with emerging and re-emerging infectious diseases. The international politics and international law generated by human attempts to deal with pathogenic microbes have been neglected topics in the public health, international relations, and international legal disciplines. This monograph has not exhausted the international political and legal issues that infectious diseases create, but it lays a foundation upon which more enlightened analysis can build.
Transfers
Authors: Benjamin Joanna
Published: October 2023

A key component of market capitalism is the secondary securities market, in which (interests in) securities are bought and sold. As discussed in Chapter 1, transferability is a defining characteristic of securities. English law has developed a number of techniques for the transfer of securities, which will be considered in this chapter.
Collateralising Clearing Exposures1
Authors: Benjamin Joanna
Published: October 2023

As briefly indicated in Chapters 1 and 9, clearing is a process that takes place after trading and before settlement. Its purpose is to manage the credit exposures that arise during this interval between the parties to a trade. The core function of clearing is the novation of market contracts, whereby a clearing houseis interposed between the original trade counterparties. Trades are novated so that the original contract between the buyer and the seller is replaced by two new contracts, one between seller and the clearing house and buyer, one between the buyer and the clearing house as seller.
Depositary Receipts And Managed Funds
Authors: Benjamin Joanna
Published: October 2023

Earlier chapters of this book have considered how electronic settlement and custody arrangements have the effect of altering the nature of the investor’s asset, and that of the collateral taker. Rather than securities held directly from the issuer, their rights of property are indirect and unallocated, and these rights constitute intangible assets. In this book, these assets have been called interests in securities.
The Legislative Dimension
Authors: George Stephen
Published: October 2023

This chapter deals with the way in which EC legislation is handled by the British political and legal system. First, the role of the two Houses of Parliament is considered, with especial attention on the extent to which it has proved possible for the House of Commons to maintain adequate scrutiny of executive actions in the EC. Secondly, attention is given to the implementation of EC decisions within the British system. Finally, the attitude taken by British Courts to EC law is examined. There are several ways in which Parliament can keep itself informed on EC developments and make an input into the decision-making process. The Prime Minister always reports to the House of Commons on meetings of the European Council, and the report is followed by a debate; and questions on European matters can be addressed to the Prime Minister or to Departmental Ministers during normal parliamentary questions. In addition, Select Committees can investigate issues with an EC dimension that fall within their sectoral remit. The Commons Select Committee on Foreign Affairs and the Treasury Select Committee have both made several such reports.
By-Election, 1945-1966
Authors: Norris Pippa
Published: October 2023

We can identify four major periods of by-election results: the immediate post-war decade (1945-55) was dominated by two-party politics, characterized by routine contests, highly stable results, and minimal attention in the press. Liberal support was reduced to the lowest point this century and the Nationalists were similarly quiescent. The following decade, from the mid-fifties to mid-sixties, was marked by the first signs of increased electoral volatility, symbolized by Orpington, with slightly more seats changing hands (1955-66). In subsequent chapters we will cover the development of multi-party politics from the mid-sixties (1966-79), with unexpected gains for the Scottish Nationalists, Plaid Cymru, and the Liberals.
By-Elections, 1979-1983
Authors: Norris Pippa
Published: October 2023

Following the 1979 general election, after a brief honeymoon period, the first Thatcher administration experienced a steady decline in the national opinion polls. During 1980-1 economic news worsened with the international recession: oil prices doubled in two years; in August 1980 unemployment passed the 2 million mark; inflation was in double digit figures; and in the summer of 1981 there were urban riots in Brixton and Toxteth. Labour moved back into a comfortable lead in the polls throughout 1980 until the sharp upsurge in support for the Alliance in 1981 which reached unprecedented heights around Christmas 1981. In moments of euphoria Alliance politicians began constructing their first Cabinet and party strategists assumed they could achieve a breakthrough with about 60-80 seats in the next general election.
David Butler and the Study of Elections
Authors: Kavanagh Dennis
Published: October 2023

David Butler’s contribution to the study of elections is such that his name and the subject have become almost inseparable. He is associated with the popularization of two words-psephology and swing-although he hastens to add that he invented neither. Psephology (the study of elections) appeared in the first sentence of his first book. It was meant as a joke but developed a life of its own, and he has become the best-known practitioner of the subject. David was still an undergraduate when he developed the notion of swing as a measure of change in the fortunes of parties from one election to another. This chapter attempts an assessment of his work and presents a necessarily partial and incomplete portrait of the man.
Press Partisanship: Into the 1990s
Authors: Seymour-Ure Colin
Published: October 2023

‘The daily newspapers have ceased to be retailers of news—they are merely mammoth political pamphlets of the most violent partisan type’: not a grumble in 1992, nor even a comment in one of David Butler’s early election studies, but a contemporary comment on electioneering in 1910 (quoted in Blewett 1972: 309). The press never has been a neutral observer of parties and elections. On the contrary, papers have been an engine of party growth. Militant, strictly, is just a newspaper. Similarly, as the old Liberal party declined, so did the Liberal press. Parties and newspapers, politics and journalism, are historically entwined, and their connections have been tracked during election campaigns since 1945 in the Nuffield election studies with which David Butler’s name has been so closely associated. Press partisanship typically has not been excused: it has been justified, rather, by reference to the partisanship of competitors.
Introduction-Politics and Judicial Discretion
Authors: Robertson David
Published: October 2023

It is not the will of the sovereign that makes lawyers’ law, even when that is its source, but what the judges by whom it is enforced say is his will. The judges have other motives for decision, outside their own arbitrary will, beside the commands of their sovereign. And whether those other motives are, or are not, equally compulsory, is immaterial, if they are sufficiently likely to prevail to afford a ground for prediction. The only question for the lawyer is, how will the judges act?
In Re Pepper 𝒱. Hart: Corn1nents on the Nature of Laws
Authors: Robertson David
Published: October 2023

In October 1992 a minor change was made to the British Constitution, largely unnoticed outside the legal profession. The Appellate Committee of the House of Lords changed a procedural rule that has governed their decision making since the beginning of modem appellate jurisdiction. In order to interpret the true meaning of a statute, they consulted Hansard to find out what the minister responsible had told the Commons he intended the effect of the proposed legislation to be. They then drew the inference that a parliament so informed must also have intended the statute to have that meaning, and interpreted it so as to give effect to that intention. In most other common law jurisdictions this would be unremarkable. The US courts, for example, regularly consult what they call ‘the legislative record’, just, indeed, as they sometimes refer to the recordings of debate in the constitutional convention to interpret the constitution. The Law Lords defended their own decision by copious though unspecific references to Australian and New Zealand practice. It has, however, always been a firm taboo in the UK.
Pure Policy-The Law of Negligence
Authors: Robertson David
Published: October 2023

Lord Atkin’s view of the role of the law of negligence was not popular in his time, and to this day represents rather the far reaches of judicial thinking than the norm. But it demonstrates why this branch of private law, every bit as much as public law, is redolent of political importance. Quite simply, it is in the development of the civil law of negligence, the law governing when someone is liable to recompense another for a hurt he has unintentionally caused, that the State gives legal effect to its conception of general moral obligation. One way of thinking about the law of torts, of ‘civil wrongs’, of which negligence is the major part, is that tort law attempts to legislate via the judges to impose the more far-reaching moral obligations which governments prefer not to try to encapsulate in statute. Of course all areas of law are substantively political. The history of English law is the history first of the arrangement of titles in real property-land-to enable the landed to make more money out of their holdings, and then of the development of legal machinery, the laws of contract, to let rich individuals deal freely to multiply this wealth. One does not have to be a quasi-Marxist from the so called ‘Critical Legal Studies’ school to see legal history like this (although the Critical Legal Studies movement, being the heirs to American legal realism, come nearer to our approach than most of modem jurisprudence.). The great classical statements like Atiyah’s The Rise and Fall of the Freedom of Contract1 are full of acute political analysis.
Public Law and the Liberty of the Person
Authors: Robertson David
Published: October 2023

Everywhere in the civilized world courts have two functions which can often seem to be in conflict. They are, on the one hand, the machinery which legitimizes the use of coercive force over the very body, rather than only the property, of the individual. Courts, and only courts, can ultimately sanction the forcible movement, removal, and detention of an individual. On the other hand those same courts are charged with protecting those individuals both from invalid application of those sanctions, and misbehaviour by authorities while being sanctioned. The vibrancy of public law, which we claim is largely a consequence of the values held by the judges, is nowhere better tested than in cases regarding what European lawyers tend to call ‘the liberty and security of the person’. In the English context two types of case particularly test the public law of personal liberty-questions about the rights of prisoners, and questions about the rights of those caught up in the web of immigration and deportation rules.
The Power of Parliamentary Parties
Authors: Brand Jack
Published: October 2023

In view of these discontents, it is surprising that Parliament receives so much attention. We have live coverage of debates, and radio broadcasting every weekday has two extensive summaries of parliamentary business. MPs are important public figures and even the most junior and the least gifted receive media attention. These clues suggest that Parliament does have important roles. Some of them may be peripheral to the moulding of public policy-the symbolic function of unifying the nation is one such function-but others are more directly relevant to the content of legislation. The main contention of this book is that parliamentary parties are central to the performance of virtually all of these roles. In many cases they limit what Parliament can do because of their discipline and loyalty, but they also facilitate the process of representation and enable Parliament to influence policy.
Parties and Economic Policy
Authors: Brand Jack
Published: October 2023

In a speech to the Parliamentary Labour Party in 1968, Harold Wilson said: All political history shows that the standing of a government and its ability to hold the confidence of the electorate at a General Election depend on the success of its economic policy. The indicators of a successful economic policy may have changed over the last twenty years, but Mr Wilson’s rule still applies. Where governments from the 1940s to the early 1970s were more concerned with the political effects of unemployment, inflation now seems to threaten them more directly. Both parties generally accepted the Keynesian model of the economy until about the late 1960s, but in the 1970s doubts were expressed on both sides of politics, in the universities, and among financial journalists. In the 1940s, 1950s, and 1960s, there were differences in emphasis.
Lions Around the Throne: The Expansion of Judicial Review in Britain
Authors: Marshall Geoffrey
Published: October 2023

A major feature of post-war constitutions in Europe has been the adoption of judicial review of legislation, and rejection of the unchallenged sovereignty of elected majorities. Germany and Italy, and later Spain and Sweden, followed this pattern. France was—with the United Kingdom—an exception, but in the 1970s the Conseil constitutionnel began to use the principles of the 1789 Declaration of the Rights of Man as a guide to its control of Assembly measures before promulgation—a development called by one observer a ‘repudiation of Montesquieu’.1 Since then France has begun to move more explicitly in the same direction. In 1990 the Assembly debated a constitutional amendment and an organic law to extend the jurisdiction of the Constitutional Council, enabling it to rule on the constitutional propriety of laws after their promulgation on a reference from the ordinary courts.2
The World Outside
Authors: Carsten Janet
Published: October 2023

The first part of this book was concerned with life inside houses. Some of the symbolic aspects of that life might be summarized as being about the production of similarity. Notions of kinship and shared substance tend to emphasize being the same rather than being different. The second part of the book attempts to explain why people in Langkawi put such a strong emphasis on being the same. It shows that the house and the actions of women have a significance in Langkawi that goes beyond what in anthro¬pology is often (and misleadingly) called the ‘domestic domain’. The present chapter is a rather rapid sketch of the world beyond the house. This is a world which contrasts in every way with what houses are about. Its essential qualities are division and difference, and the principal actors in it are men.
EU Cohesion and Territorial Restructuring in the Member States
Authors: Nanetti Raffaella Y
Published: October 2023

The ratification in 1987 of the Single European Act (SEA) was a momentous event in the evolution of the European Community (EC), now the European Union (EU). It made officil the adoption of a policy designed to expand the scope of EC functions, change the balance of power among its institutions and as a result democratize decision-making, and ultimately accelerate the pace towards economic and political integration. Yet, on closer analysis, the SEA was much more than a great step forward on the road to integration. It also substantially changed the nature of the process of integration by formally building into it the goal of social and economic cohesion (article 130a–e). The market-driven evolution envisioned by the 1957 Rome Treaties, according to which cohesion was little more than a desired outcome of integration, was thus to be reined in and guided by deliberate policies to achieve that newly defined goal.