bluuebunny/crossref_metadata_2025 huggingface dataset:
Judicial Perspectives On Good Administration: The Public Interest
Authors: Woodhouse Diana
Published: October 2023

The use of the public interest by the courts in the context of good administration has a number of interpretations. Sometimes it recognizes a public interest in the individual being treated fairly. At other times it is concerned with the wider public, which includes the taxpayer. Usually, however, it is expressed in terms of there being a public interest in administrators being able to operate efficiently and effectively, unhampered by unpredictable challenges which bring into question the validity of decisions and result in uncertainty and a lack of confidence in the system.
Australian Comparisons
Authors: Woodhouse Diana
Published: October 2023

Australia, like Britain, has also been engaged in the reform of the Public Service. However, the first phase of reform in the early 1980s was concerned with the improvement of public administration rather than with a reassessment of its role or with rolling back the frontiers of the State. The impetus for reform came from public and political dissatisfaction with the way in which the Public Service (the Australian equivalent of the Civil Service) was operating. There was concern about the efficiency and effectiveness of service delivery and, in this respect, the motivation for reform had a similar basis to that in Britain and elsewhere. Moreover, it resulted in similar changes within public administration, such that managerial responsibilities have been increasingly devolved, the central personnel functions abolished, procedures to measure performance and review programmes introduced, and top public service positions have become subject to open competition.
More on Jurisdiction to Prescribe: Of Effects and Balancing
Authors: Lowenfeld Andreas F
Published: October 2023

The discussion in Chapter 2 of the Insurance Antitrust case before the U.S. Supreme Court may have left the reader in a somewhat dissatisfied state. It is not just that the approach of the Restatement that I have been espousing fell one vote short. More important for our inquiry, the majority accepted effects jurisdiction without any discussion, and by defining ‘conflict’ in terms of black and white, the majority avoided having to say anything about balancing of competing interests, which is most needed-as well as sharply debated-with respect to the gray areas.
National Jurisdiction and the Multinational Enterprise*
Authors: Lowenfeld Andreas F
Published: October 2023

I want in this Chapter to focus on the special case of the multinational corporation as the object of both of the subjects that we have been discussing thus far-jurisdiction to prescribe and jurisdiction to adjudicate. In many ways the multinational enterprise has been the dominant institution in the international economy, at least since World War I. Yet, to a surprising degree, the law has not kept up with reality. While there is an enormous body of legislation, judge-made law, and commentary in all the industrial states concerning the governance of corporations, nearly all such law was developed in a private law context, before the wave of regulation, taxation, labor law, environmental controls, and other forms of govern mental intervention familiar today; moreover, nearly all such law was developed with a view to a single firm operating out of a single state, owned by shareholders who might or might not also be managers but were not other corporations. The modern multi-layered, multinational enterprise, in which dozens or even hundreds of firms are linked through common ownership or control, has not been the focus of company law in any state. The question that I want to address here is the extent to which responsibility-substantive and procedural-can or should be attributed to multinational enterprises for obligations of member companies under national laws.
Discovery Across National Frontiers
Authors: Lowenfeld Andreas F
Published: October 2023

As the preceding chapters have shown, there has been no lack of controversy in regard to jurisdiction to prescribe, jurisdiction to adjudicate, and recognition of judgments across national frontiers. Still, no aspect of international litigation has caused as much friction as the issue of discovery.1 And more, I think, than any other focal points of controversy, the controversy over discovery is not one pitting the common law against the civil law, but rather one pitting the United States of America against the rest of the world. England, for instance, including both the courts and Parliament, has been in the forefront of resistance to American-style discovery, which is in many ways quite different from discovery in England.2 In this regard, the aphorism attributed to George Bernard Shaw about America and England-two countries divided by a common language-is clearly correct.
Understanding Access to Environmental Information: the European Experience
Authors: Kimber Clíona
Published: October 2023

There have been many developments at national and international level in recent years which aim to increase the amount of environmental information that is generally available and accessible. These have occurred not simply because of a view that information on the environment, which is the heritage of all, should be available to all, but also because the availability of environmental information plays a number of roles in improving environmental protection. In this chapter I examine the role of access to information in environmental decision-making.
International Environmental Law and the Challenge of Globalization
Authors: Evans* Tony
Published: October 2023

Since the creation of the United Nations system, conventional wisdom has it that solutions to all international and global problems are found by drafting international law. This has become such an entrenched view that the discourse surrounding almost every conceivable global issue turns on a detailed examination of law creation and formal methods of implementation. The focus of such a discourse is an assumed outcome that the law is supposed to produce. Policy-makers and lawyers engaged in thinking and writing about global problems from the legal perspective rarely pay attention to the political, social, economic, and cultural contexts when conducting their analysis. Instead, they focus on legal texts, institutional processes, and organizational matters: an approach that tells us much about the abstract elegance of the law, legal processes, and organizational theory, but little about causation. John Vincent, for example, has referred to those who write about universal human rights in this vein as ‘notoriously wishful thinkers’, and notes how irrelevant much human rights talk is to securing the human dignity of people.
The Participants in Australia
Authors: Stapledon G P
Published: October 2023

This and the following two chapters examine the involvement of institutional shareholders in corporate governance in Australia. The structure of the analysis mirrors that used in Part II. Thus, Chapters 7 and 8 examine, respectively, the issues with which the institutions have been concerned and the manner in which they have conducted their monitoring. Being the parallel of Chapter 3, the present chapter looks, first, at the significant institutional players in the Australian corporate-governance arena. It then introduces the Australian institutions ‘ collective-action vehicle: the Australian Investment Managers ‘ Association. Chapters 6, 7, and 8 are significantly shorter than their counterparts in Part IL This is evidence of the relatively smaller role (viNl-vis the position in the UK) played to date in Australian corporate governance by institutional investors.
Areas of Involvement in Australia
Authors: Stapledon G P
Published: October 2023

The following discussion of the various areas of known institutional involvement in the affairs of listed companies in Australia is divided into procedural/general issues and company-specific issues. It will be seen that institutional involvement has a shorter history, and has been considerably narrower in scope, in Australia than in the UK. The are several references in this chapter and later chapters to an interview study involving Australia-based institutions. This study was conducted by the author in Melbourne and Sydney in February 1994. It was designed as a comparative one vis-a-vis the author ‘s UK interview study. The interviewees were the senior executive or a senior fund manager of 13 investment-management firms. The 13 institutions managed listed Australian equities worth A$52,170 million at 31 December 1993, which represented 17.3% of the value of the Australian equity market at that date. The institutions included the five largest, and seven of the eight largest, managers of Australian equities at 31 December 1993.2 The writer also had several discussions with the Executive Director of the AIMA, in Sydney, Melbourne, and Adelaide, during 1993, 1994, and 1995.
Tracing the Proceeds of Crime: an Inequitable Solution?
Authors: Norman Helen
Published: October 2023

The law relating to the creation and tracing of equitable proprietary interests is still in a state of development. In A-G for Hong Kong v Reid [1994] AC 324 the Board decided that money received by an agent as a bribe was held in trust for the principal who is entitled to trace and recover property representing the bribe. In Napier and Ettrick v Hunter, Lord Napier and Ettrick v RF Kershaw Ltd [1993] AC 713 at 738- 739 the House of Lords held that payment of damages in respect of an insured loss created an equitable charge in favour of the subrogated insurers so long only as the damages were traceable as an identifiable fund. When the scope and ambit of these decisions and the observations of the Board in Space Investments fall to be considered, it will be necessary for the history and foundations in principle of the creation and tracing of equitable proprietary interests to be the subject of close examination ... 1 The aim of this chapter is to examine whether the conditions which govern the availability of equitable tracing, as developed in an era when fraud was less complex, are capable, in conjunction with the imposition of a constructive trust or of liability to account, of providing an effective response to the phenomenon of money laundering. If it is concluded that these requirements are not effective, then a second issue is whether they need reformulating, as Lord Mustin appears to suggest. If it is then decided that money laundering cannot be remedied (or rather, cannot be remedied consistently) through the use of equitable tracing, then the ultimate question must be whether some other response, such as a personal restitutionary action at common law, is possible, or indeed, appropriate.
Entitlement to the Grant and Ownership of Intellectual Property Rights: Jurisdiction
Authors: Fawcett James J , Torremans Paul
Published: October 2023

An issue which is linked to the creation of intellectual property rights is that of their ownership. Which court will have jurisdiction to hear the case when the ownership of an intellectual property right is disputed? Are the special jurisdictional rules that apply to the creation of intellectual property rights also applicable to the issue of ownership of intellectual property rights?There is, however, more than one aspect of the ownership issue that needs to be addressed. First, there is the question of first ownership of an intellectual property right.
Preliminary Remarks
Authors: Fawcett James J , Torremans Paul
Published: October 2023

Once a court has decided that it possesses jurisdiction, it must move on to the next stage of determining the law applicable to that case, ie which State’s substantive law governs. This is of vital importance. To illustrate this, we can take the example of unfair competition. The plaintiff complains that disparaging remarks have been made about his product. Under Swiss substantive law, there is an actionable tort of unfair competition, whereas under English law there is not. It follows that the plaintiff will recover damages if Swiss law is applied, but fail to do so (at least for breach of unfair competition law) if English law is applied. In order to determine whether English substantive law or that of a foreign State applies, resort has to be made to choice of law rules.
Creation, Scope and Termination of Intellectual Property Rights: the Applicable Law
Authors: Fawcett James J , Torremans Paul
Published: October 2023

The international intellectual property Conventions are mainly and almost exclusively concerned with the creation of the various intellectual property rights, the scope and content of these rights and their termination. We will now have to consider what effect the private international law related provisions of these Conventions, which we analysed in the previous chapter, have in this area.
Contracts in Relation to the Exploitation of Intellectual Property Rights: The Applicable Law
Authors: Fawcett James J , Torremans Paul
Published: October 2023

In this chapter, we are concerned with contracts in relation to the exploitation of intellectual property rights. These contracts take various forms, such as, for example, licences and assignments, on the one hand, and more complex forms, such as distribution contracts and transfer of technology agreements, that involve more than a simple transfer of intellectual property rights, on the other hand. We do not propose however to deal separately with each of these types of contract, as they all have in common the fact that they involve a transfer of certain rights to do certain acts which would otherwise have constituted an infringement of the intellectual property right in question.
Complementary Torts and Other Causes of Action: The Applicable Law
Authors: Fawcett James J , Torremans Paul
Published: October 2023

It has already been seen, in the context of jurisdiction, that English substantive law provides a number of different causes of action which are complementary to infringement. These include the torts of passing-off, malicious falsehood, defamation, and causes of action which are more difficult to classify, namely actions for breach of competition rules and breach of confidence. Some other countries provide wider protection, with causes of action in unfair competition, delict or anti-trust. These differences in the substantive law, inevitably, raise questions as to the applicable law.
Research on the Impact of Libel Law
Authors: Barendt Eric , Lustgarten Laurence , Norrie Kenneth , Stephenson Hugh
Published: October 2023

This Chapter outlines in general terms the objects of our research and our research methods. It also presents our findings on the incidence of libel actions against the media, drawn from research on the numbers of cases set down for trial in the Royal Courts of Justice. Some other statistical information taken from the annual Judicial Statistics issued by the Lord Chancellor’s Department is summarized.
The Scottish Media
Authors: Barendt Eric , Lustgarten Laurence , Norrie Kenneth , Stephenson Hugh
Published: October 2023

The research methodology adopted in relation to the media in Scotland was a little different from that used in England for a number of reasons. First, the population served by the Scottish media is significantly smaller, which itself means that the number of claims for defamation made will also be significantly smaller: the statistical information gathered was, therefore, too limited to draw from it any useful general conclusions. Secondly, again as a result of the small size of the jurisdiction, it was considered appropriate to look at a broad cross-section of the media rather than to separate out the different forms, as has been done in the English chapters. Thirdly, much of the media output disseminated in Scotland comes from England, where the individual organization’s policies are set and where the legal risks are assessed (not always accurately, as shown in the related field of election law when in May 1995 the Court of Session interdicted the BBC from broadcasting within Scotland three days before the Scottish local elections a Panorama interview with the Prime Minister).
Praising the Professors: Commercial Law and the LSE*
Authors: Cranston Ross
Published: October 2023

Commercial law was, I think, of central importance for the development of legal studies in this country, and for the particular part the LSE was destined to p)ay in that development. Commercial law at the LSE began with the School’s foundation. A range of notable lawyers have been involved over the last century, including the doyen of LSE law teachers, Sir Otto Kahn-Freund. Their teaching, writings and other activities provide a springboard for reflection on a variety of issues. Some relate to the definition of, and approach to, the subject itself.
Legal Analysis as Institutional Imagination*
Authors: Unger Roberto Mangabeira
Published: October 2023

Legal analysis can become a master tool of institutional imagination in a democratic society. To see why and how it can serve this purpose we must begin by understanding what is most distinctive about Jaw and legal thought in the contemporary industrial democracies. In this effort no contrast is more revealing than the comparison of the substantive law and legal methods of today with the project of nineteenth-century legal science and the law of nineteenth-century commercial economies.
The European Community And The Uruguay Round Agreements
Authors: Jackson John H , Sykes Alan O
Published: October 2023

Controversy and confusion reign with regard to the competence and conduct of the European Community in the field of international economic relations. Within and without Europe, questions surrounding the Community’s competence and conduct cause a pervasive feeling of bewilderment. The fact that both the Community and all the Member States of the European Union have joined the newly established World Trade Organization, the forum par excellence for negotiations on international economic relations, has certainly added to the potential for bewilderment. This chapter is meant to achieve a greater understanding of the internal rules and processes by which the European Community undertakes international commitments in the field of economic relations.
Belgium
Authors: Eeckhout* Piet
Published: October 2023

At the outset it is essential to give a brief survey of the current structure of the Belgian state and to highlight the main features of the latest constitutional changes, in particular in relation to the conduct of external relations.
The Uruguay Round Agreements: Constitutional And Legal Aspects Of Their Implementation In Costa Rica
Authors: Echandi* Roberto
Published: October 2023

If one studies the implementation of the Uruguay Round Agreements in Costa Rica, two aspects immediately attract attention. One is the readiness of the Costa Rican legal system to incorporate international law prescrip tions into the domestic order, and the existence of effective legal means by which individuals and moral entities can seek the enforcement of those prescriptions. The other aspect, and one more directly related to the result of the General Agreement on Tariffs and Trade multilateral trade negotiations which concluded in 1994, is the straightforward approval the Uruguay Round Agreements were given by the Costa Rican Legislative Assembly. As this chapter will explain, it took only one session (approximately forty minutes long) for the Special Congressional Commission dealing with bilateral and multilateral trade matters to recommend approval of the Uruguay Round Agreements. Further, on the floor of the Congress, the agreements won virtually unanimous approval.
The Position of Courts in the Legal System
Authors: Luhmann Niklas
Published: October 2023

General observations influenced by systems theory and empirical research both suggest that the differentiation of a system requires an internal differentiation, which is developing at the same time as the system itself develops. The differentiation of a social system founded on communication could have been made possible only, and even in its most primitive beginnings (and before any segmental formation of families), if there was a possibility of distinguishing between the interactions of people who were present and society at large. This means that the social relevance of what happens with those who are absent has to be taken into account in the interaction, which can be done only selectively.
Legal Argumentation
Authors: Luhmann Niklas
Published: October 2023

Argumentation is another form with two sides. The issue here, of course, is not the difference between good arguments and bad, between more convincing arguments and less convincing arguments, for they are already arguments. In order to understand argumentation it is important, first of all, to see what arguments cannot achieve and what they do not cause. And that is: to alter the symbol of validity of law. Unlike statutes or valid judicial decisions or contracts or wills, arguments cannot change the law, or implement new rights or duties and thereby create conditions, which in turn can be changed. The fact that arguments cannot change the law takes the burden off argumentation and frees it up to achieve a different kind of discipline. At the same time dependence on legal validity is also a precondition for limiting legal argumentation exclusively to law, which has been filtered by law, and for preventing legal arguments from being derailed by moral or other prejudices.
The Self-description of the Legal System
Authors: Luhmann Niklas
Published: October 2023

All efforts to know and understand the law are made in society. They are tied and remain tied to communication, and thus also to language. This was the presupposition of the preceding chapters, for they also had to use language. This reference to language addresses an issue that has not always been taken seriously enough in legal theory. It implies that all communication in legal theory is historically conditioned. Legal theory must make itself understood under its given social conditions. It is legal theory’s object, law, but also legal theory itself, that varies with the structures to which societies subject their communication about law. Nowadays, for instance, we cannot ignore the fact that we look back on a long legal history. This means that any contemporary legal theory which tries to explain the nature of law must demonstrate a remarkable abstraction encompassing epochs and societies and at the same time an understanding of historical variety, including the relatively recent requirement of abstraction itself.
Society and its Law
Authors: Luhmann Niklas
Published: October 2023

The relationship between the legal system and the social system is the theme of this book. The reflexion (self-observation) and the non-reflexion of this relation in society’s legal system was the topic of a chapter in its own right. If we devote yet another chapter to this question, at the end of our considerations, it is not with the intention of repeating the same arguments, but because in the discussion so far we have left open the question of which concept of society we propose and what follows from it for the analysis of the relation between society and law. We know that the law operates in society, performs society, fulfils a social function, and has been differentiated to fulfil this function by its autopoietic reproduction. At any rate that is what the theory says, and thus what has been proposed here. However, it should also be asked how a society in which all that happens can be understood.
Violent Racism: Victimization, Policing and Social Context
Authors: Bowling Benjamin
Published: October 2023

Using a detailed case study of an area of East London, this book documents the everyday abuse, assault and intimidation that is suffered by ethnic minorities in Great Britain. The author explains and analyses the process through which violence is targeted at these minorities, along with the role that the ideas and language of racial exclusion take in this process. The apparent failure of the police and "multi-agency initiatives" to respond effectively to this problem is then looked at in depth. This book is based on detailed analysis of official documents, a victimisation survey, interviews and direct observation, seen in the overall context of the history of race relations in Britain. It describes some of the many thousands of racist attacks that have occurred in recent years and the events in the last two decades that have shaped English racism and the political and policy responses to it.
International Human Rights Treaty Law and Related Instruments Relevant to Child Civilians in Armed Conflict
Authors: Kuper Jenny
Published: October 2023

This Chapter aims to summarise principles of international human rights law which form an integral part of the legal regime applicable to child civilians in situations of armed conflict. It shows that all the major international human rights instruments make provision, to a greater or lesser extent, for the special treatment of children, in the sense of granting them additional protection and assistance. They also affirm the right not to be arbitrarily deprived of life. Further, the human rights instruments specifically concerning children emphasise that the entitlement of children to special treatment must be particularly observed when children are experiencing extreme difficulty or danger, as in situations of armed conflict.
Focusing the Law: What Legal Interpretation is Not
Authors: Stone Martin
Published: October 2023

This essay is about legal judgment-the judgment that focuses, applies, or elaborates the law-but it also touches on a cluster of related issues: the indeterminacy of rules, the ‘politics of interpretation’, and the misuse of Wittgenstein in recent legal theory. My starting-point is a tension that is discernible in many contemporary theoretical discussions of law and legal judgment. Simply put, a great deal of contemporary legal theory finds itself in resistance to the commonplace. It tries to re-describe the law by means of a rhetoric borrowed from other disciplines but foreign to the materials closest to the lawyer’s experience. Its aim is to go behind the law’s own conception of itself. In American jurisprudence, with its legacy of ‘legal realism’, legal judgment has been a main target of such ‘demystification’, as emerges, for example, in the following remark from Edward Levi’s An Introduction to Legal Reasoning.
lntetpretation Without Retrieval
Authors: Raz Joseph
Published: October 2023

When interpreting we explain, show, or display the meaning of the object of interpretation (‘the original’, as I will refer to it). Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has. After all, if interpretation is a display or an explanation of the meaning of an original, that original must have meaning to be capable of being interpreted, and interpretation is the retrieval of that meaning, making it plain to those who might be unaware of it. The role of an author’s, or, more generally, a creator’s intention in interpretation is closely connected with the retrieval picture. If interpretation is retrieval it is often tempting to think that the only thing there to retrieve is the intention of the creator.
Tbree Concepts of Objectivity
Authors: Marmor Andrei
Published: October 2023

This essay is about the concept of objectivity and its possible roles in the interpretation of works of art. ‘Objectivity’, however, is one of those notions philosophy students are well advised to avoid in their essays. There is very little agreement on what it means, and there is a great deal of confusion about its different and often conflicting uses. This may sound puzzling, and perhaps it is; however, unlike philosophical concepts such as ‘realism’ and ‘cognitivism’, which have received extensive philosophical attention in the last two or three decades, the concept(s) of objectivity has been left pretty much in the lurch. Consequently, any discussion of the objectivity or subjectivity of a certain realm must begin with a clarification of what one means by these terms. I shall begin with an outline of the distinction between three different concepts of objectivity which, I will suggest, are philosophically useful Once the boundaries between these different uses of objectivity are clearly drawn, we shall be able to see that there are several aspects of interpretation which can be characterized as ‘objective’ or ‘subjective’ in a rather non-controversial manner; that is, depending on the kind of ‘objectivity’ ascribed. Other aspects of the objectivity of interpretation, however, remain genuinely controversial, and I will try to add a few drops of my own to this ocean of philosophical literature. I will have nothing directly to say, however, about legal interpretation; my main concern will be with interpretation in the realm of the arts.
Interpreting Authorities
Authors: Hurd Heidi M
Published: October 2023

Despite its attempted exorcism, legal interpretation is haunted by intentionalism. This has puzzled those who have considered themselves successful in demonstrating the conceptual and normative indefensibility of intentionalist interpretation. In this chapter, I shall argue that the persistent spectre of intentionalism should come as no surprise to legal theorists whose battles with intentionalism have been fought in the shadow of traditional conceptions of the law’s authority. For as long as the law is accorded the sort of authority that it has historically claimed, intentionalism will necessarily be accorded the sort of respect that it does not deserve.
Interpreting Official Speech
Authors: Dan-Cohen Meir
Published: October 2023

My starting-point is a narrow but persisting problem: the role, if any, of legislative intent in statutory interpretation. But though this is my starting-point, it is not my main target. My aim is instead to identify and characterize a wider category of speech-I call it official speech-of which legislation forms just one part. Placing the interpretation of statutes in such a broader context puts the ongoing debate in a new light. The contribution is, however, not in the form of added ammunition to one of the contending parties. Rather, my analysis will take us outside that debate, revealing a layer of normative considerations not usually addressed in the current discussion. They concern the ways in which different strands in our interpretive practices help construct various social roles-specifically the role of ‘official’and the selves that occupy those roles.
The Fate of the Civil Jury in Late-Victorian England: Malicious Prosecution as a Test Case
Authors: Getzler* Joshua
Published: October 2023

The history of the criminal law in Victorian England can be portrayed as a struggle between judge and jury over who can best assess the moral culpability of the defendant. Judges mistrusted the instincts of a jury, especially in the more lurid cases;1 but the ancient principle that life and liberty should depend on the verdict of one’s peers remained unchallenged.
The Seventh Amendment Right to Jury Trial: Late-Eighteenth-Century Practice Reconsidered
Authors: Oldham James
Published: October 2023

In the United States trial by jury, however controversial in application, remains a treasured part of most citizens’ concept of liberty. Everyone is familiar with the safeguards that trial by jury supplies to criminal defend ants. Nearly everyone knows that the right to a jury trial also applies to civil cases, although it can be waived. The source of the right in civil cases in federal courts is the Seventh Amendment, and in state courts the right is preserved by comparable provisions of state constitutions.
The Author’s Surrogate: the Genesis of British Copyright
Authors: Cornish W R
Published: October 2023

On both sides of the Atlantic Brian Simpson has done much to wean legal historians away from too great a dependence on theory. This brief appreciation of writings about the origins of modern copyright law is permeated by that teaching. So it is offered as a small tribute to his richly individual contribution to our knowledge of how our legal systems developed in the common law tradition, above all in the period since industrialization.
Human Rights Approaches to Environmental Protection: An Overview
Authors: Anderson* Michael R
Published: October 2023

The late twentieth century has witnessed an unprecedented increase in legal claims for both human rights and environmental goods. Never before have so many people raised so many demands relating to such a wide range of environmental and human matters. And never before have legal remedies stood so squarely in the centre of wider social movements for human and environmental protection. It is likely that legal historians writing in the twenty-first century will look back on the last quarter of this century as the period in which both environmental law and human rights reached a kind of maturity and omnipresence. In recent years law-making activities in these areas, at both the international and domestic level, have been marked not only by speed and proliferation, but also by remarkable innovation.
Environmental Rights in Existing Human Rights Treaties
Authors: Churchill R R
Published: October 2023

The aim of this chapter is modest and straightforward: to see to what extent environmental rights are found in existing human rights treaties. It is thus concerned only with lex lata, and not as in earlier chapters with lex ferenda. By ‘environmental rights’ I mean broadly the right, whether of individuals or a group, to a decent environment; and, more specifically, such rights as the right to be free from excessive pollution of the land. water or air, or pollution from noise, the right to enjoy an unspoilt nature, and the right to enjoy biological diversity.
Access to Environmental Justice and Procedural Rights in International Institutions
Authors: Cameron James , Mackenzie Ruth
Published: October 2023

The recent increased part1c1pat10n of non-governmental organizations (NGOs) in international institutions and agreements has focused attention on the extent to which procedural rights can be used within the international context to pursue substantive environmental protection goals. The United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro in 1992 recognized that the scope and nature of the problems to be addressed requires the participation of non-governmental actors at all levels of law- and policy-making. This chapter focuses principally not on the substantive rights but on those procedural rights to participate, and how such rights may be exercised at the international level for the protection of the environment.
Social Justice and the Judicial Enforcement of Environmental Rights and Duties
Authors: bois* François du
Published: October 2023

Environmental rights and duties are rapidly maturing into a standard feature of national constitutions.’ Considerable attention has been devoted to the theory of environmental rights and to the most apt constitutional formulation of such rights. The growing international body of case law on environmental rights has, however, created a need-and opportunity-for critical inquiry at a more prosaic level.
Introduction
Authors: Ward Angela
Published: October 2023

The purpose of this book is to critically examine the concepts of ‘individual rights’ and ‘effective judicial protection’ in the European Community legal order, and to assess the viability of their continued deployment to explain, justify and rationalise the far-reaching effects of EC law in the national legal systems of the EU Member States. More particularly, a comparison will be made between avenues for contesting the compatibility of national rules with Community law, and the efficacy of remedies afforded to individuals—or ‘private parties’ as they might otherwise be termed—when they contest the legality of EC legislative measures. Anomalies and inconsistencies permeating these areas in the case law will be teased out to reveal what appears to be a significant fault line in the EC constitutional structure.
Article 234 Validity Review
Authors: Ward Angela
Published: October 2023

Article 234 (Art l77) of the EC Treaty elaborates a system of collateral review of Community measures, independently of the procedure supplied by Article 230(4) (Art 173(4)). Under this mechanism, individuals are vested with the right to challenge the validity of Community measures in disputes unfolding at the domestic level. If the question of the validity of a Community measure arises in a domestic legal dispute, Member State tribunals may, and sometimes must, refer questions to the Court of Justice on the validity of relevant EC measures, irrespective of the expiry of the time-limit supplied under Article 230.  1
Common Law Constitutionalism and Freedom of Speech
Authors: Allan T R S
Published: October 2023

In response to H. L. A. Hart’s suggestion that all moral and legal thought proceeded on the ‘tacit assumption that the proper end of human activity is survival’, the American legal theorist Lon Fuller proposed an alternative ‘central indisputable element’ in human striving, that of effective communication between persons. Freedom of speech or expression was thus the first principle of natural law: ‘Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel, and desire.’ Freedom of speech was not only a necessary condition of survival, but a means of enriching and expanding the meaning and scope of life itsel£
Freedom of Expression and Freedom of Religion: Some Thoughts on the Glenn Hoddle Case
Authors: Elias Sir Patrick , Coppel Jason
Published: October 2023

In an interview with The Times newspaper on 30 January 1999, at a time when he was employed by the Football Association (FA) as the manager of the England football team, Glenn Hoddle expressed his beliefs that people were reincarnated ‘to learn and face some of the things you have done-good and bad’. He said: ‘You and I have been physically given two hands and two legs and half-decent brains. Some people have not been born like that for a reason. The karma is working from another life time. I have nothing to hide about that. It is not only people with disabilities. What you sow, you have to reap.’
The Protection of Political Discourse: Pragmatism or Incoherence?
Authors: Forsyth Christopher
Published: October 2023

It has been my great privilege to know Sir David Williams in several capacities. First, when I was a post-graduate student his lectures-always elegant, always insightful and with the deep scholarship enlivened by the personal touch-stimulated my interest in judicial review; and this has proved a life-long interest. Then he was the examiner of my PhD thesis and eased me through the ordeal of the oral examination and kindly overlooked its many flaws. Then as a colleague in the Law Faculty he has been helpful and understanding in all matters. When I was Junior Proctor and much involved with university ceremonial and administration we worked together in the Senate House a great deal; I hope that I served him well. In all these capacities he has been entirely consistent: always thoughtful, courteous, fair and efficient whatever the provocation-which was often considerable.
Freedom of Assembly
Authors: Barendt Eric
Published: October 2023

David Williams was one of the first legal scholars in this country to take a serious interest in civil liberties law. In Keeping the Peace, published in 1967, he discussed the peace-keeping powers of the police and administrative authorities within the context of the freedom to hold meetings and to engage in lawful protest. Though the 1960s did see demonstrations on the streets, notably against the Vietnam war and apartheid, David Williams speculated whether the right of peaceful assembly was as important a freedom as it used to be in the nineteenth and early twentieth centuries. He referred to the other opportunities available for the communication of views and the expression of protest. The correspondence columns of national and local newspapers, radio phone-in and current affairs programmes, and more recently Internet discussion groups and web sites provide platforms and fora to which many people enjoy relatively easy access. A vast amount of information is readily available and opinions are disseminated without any need to convene meetings or stage parades for their expression.
Freedom of Expression and the Problem of Harassment
Authors: Qc Bob Hepple
Published: October 2023

Freedom of expression is the dog that did not bark in the development of UK law on harassment. This is in sharp contrast to the United States where the battle over campus speech codes has spread to the workplace. In particular, the prohibition by Title VII of the Civil Rights Act 1964 of discriminatory harassment has been attacked as an unconstitutional infringement of freedom of speech guaranteed by the First Amendment. The defenders of harassment law have argued that it is necessary to workplace equality and is consistent with the First Amendment. Other commentators have taken a middle position and advocated some restrictions on the application of Title VII.
Shoreham-by-Sea
Authors: Thorndon Lord Cooke Of
Published: October 2023

R v Chief Constable of Sussex, exp International Trader’s Ferry Ltd.1 arose from an application for judicial review to quash the decision of the Chief Constable of Sussex to restrict special police protection for the applicant exporter’s lorries at the port of Shoreham, against the activities of animal rights protesters, to two days a week or four a fortnight. The effect of his policy was to prevent the export of live calves to France from Shoreham except on those days. The application succeeded in the Divisional Court on the ground of transgression by the Chief Constable of the principle of the free movement of goods, which is a fundamental principle of the EC Treaty. The Divisional Court decision was reversed by the Court of Appeal, and the House of Lords affirmed the Court of Appeal.
Freedom of Information: The New Proposals
Authors: Palmer Stephanie
Published: October 2023

The Labour Party’s first term in office has been characterized by a commitment to modernize British politics through radical constitutional change. One of the key elements of this bold initiative is to alter the relationship between the state and the citizen. There are a number of important features of this agenda including the Human Rights Act 1998, devolution, reform of the House of Lords and the proposed freedom of information legislation. The Lord Chancellor has promised that the government ‘will govern with a new spirit of openness ... [in] partnership with the people’. This paper critically analyses the recently unveiled proposals to implement freedom of information legislation in England and Wales. In particular, it analyses whether these changes will effect a major shift in the relationship between the governed and the government and transform the culture of secrecy so prevalent in the United Kingdom.
Confidentiality
Authors: Scott Richard
Published: October 2023

There are two basic principles that underlie, or ought to underlie, the law of confidentiality. The first is that private individuals are entitled to protection against the disclosure without consent of confidential information about themselves and their activities unless there is a sufficient public interest reason why the information should be disclosed. The second principle is that government, including local authorities and other emanations of government, such as the National Health Service, the Court Service, the Prison Service etc., are not entitled to protection from disclosure of information about themselves and their activities unless there is a sufficient public interest requiring the protection of the information from disclosure. I regard each of these two principles as self-evidently necessary in a mature democracy. I regard them also as representing the law, properly understood.
Freedom of Information in Commercial Disputes
Authors: Clarke Malcolm
Published: October 2023

A current assumption of commerce and of commercial law is that decisions are more likely to be ‘good’ decisions if reached by persons fully and freely informed. This is widely accepted not only as regards persons making contracts but also those who must help to resolve disputes between contracting parties later. This paper concerns information and the settlement of contractual disputes. Once the facts are clear, they must be tested against the contract. This paper considers mainly the task of working out what the contract means, and some obstacles to the free availability of the information needed. The relevant information is primarily found in the relevant contract terms but it is not free unless it can be understood. Transparency of content is of particular importance when contracts are in standard form because market efficiency depends on easy and accurate product comparison. In the case of insurance, for example,
Renegotiating the Regulation of the Legal Profession
Authors: Parker Christine
Published: October 2023

Chapter 6 used empirical evidence to argue that the best way to make the profession sufficiently accountable without crushing the possibility of public-regarding professionalism is through a responsive contextual strategy of professional regulation. Normatively this would require that regulatory regimes be developed as part of a deliberative process and remain subject to deliberative contestation. The dynamic, contextual nature of the regulation advocated is well suited to capitalizing on the public-regarding elements of a complex and ambiguous profession, without sacrificing the ability to deal with its self-interested elements.
Brief History of International Law on the Control of Infectious Diseases
Authors: Fidler David P
Published: October 2023

Diplomacy on infectious disease control dates back to 1851, when eleven European States and Turkey attended the first International Sanitary Conference. Between 1851 and 1951, States attended international sanitary conferences, negotiated agreements on controlling infectious diseases, and created four international health organizations. Such a large collection of diplomatic activity and international agreements poses a challenge for understanding the history of international law on infectious disease control. Rather than approach this history chronologically, this chapter focuses on the major purposes for which States used international law between 1851 and 1951 to assist in the control of infectious diseases. Focusing on the objectives that States used international law to achieve gives the historical analysis more legal substance than a chronological presentation of events.
War, Weapons, and Infectious Diseases
Authors: Fidler David P
Published: October 2023

War and infectious diseases are old allies. Armed conflict has throughout history resulted in outbreaks of infectious diseases. The war-infectious disease alliance is not merely of historical interest, because pathogenic microbes continue to take advantage of opportunities warfare creates. Despite a body of international law that has developed to minimize the damage infectious diseases wreak during war, this area of international law has not been the subject of much scholarship or analysis. Belanger recognized the importance of international humanitarian law to international health law, but both the general connection to international health law and the specific application of the international law on war and weapons to infectious diseases have not been analysed much in the literature on arms control and armed conflict.