bluuebunny/crossref_metadata_2025 huggingface dataset:
Fundamental Rights in the Private Sphere: The United States and Canada
Authors: Clapham Andrew
Published: October 2023

The limited objectives of this chapter deserve some explanation. No attempt will be made to offer an analysis of the case-law of the United States and Canadian courts concerning the application of the relevant constitutional rights to the private sphere. What this chapter seeks to do is to emphasize the differences between these jurisdictions and the jurisdictions which have to apply the European Convention on Human Rights. Our aim is to explain why the case-law from the other side of the Atlantic should not be seen as offering solutions to the interpretation of the Convention’s application in the private sphere. The appropriateness and reasons for the evolution of this case-law in its home ground is only covered superficially. Paradoxically, the comparative exercise has been embarked on in order to counsel against making such comparisons.
Judgment and Review
Authors: Jackson John , Doran Sean
Published: October 2023

In Chapter Three, one of the distinctions made between contest and inquest models of proof was in the extent to which both information presented to the tribunal of fact and the verdict itself are subject to control. In the typical adversarial trial an extensive network of evidential and procedural rules will closely regulate the presentation of the issues to the fact-finding body, but that body’s ultimate decision will take a cursory and inscrutable form. Conversely, the inquest model is based upon limited input control and permits considerable output control, as the decision will be handed down in the form of a fully reasoned judgment.
The Rule Against Hearsay in Criminal Trials
Authors: Choo Andrew L -T
Published: October 2023

In as much as it implies that any narration by a witness of a statement made by another is prohibited, this depiction of the rule against hearsay by Charles Dickens in The Pickwick Papers is misleading. The rule against hearsay prohibits a witness from reporting a statement made by another person only where the purpose of adducing evidence of the statement is to establish the truth of any fact asserted in that statement.2 A clear-cut and uncontroversial application of the rule in a criminal trial might be as follows. The prosecution wishes to prove that the car seen at the scene of a crime was red. The hearsay rule renders inadmissible the testimony of a prosecution witness, W, that ‘X said that the car was red’. If, however, the testimony is to be adduced to prove, not that the car was red, but that X could speak, then it would not be rendered inadmissible by the hearsay rule.
Inventions and Official Secrecy
Authors: O’Dell T H
Published: October 2023

Secrets will always be a factor in the political life of any society, and it could be argued that none enjoy secrets, particularly Official Secrets, quite so much as the English. Inventions and Official Secrecy traces the little known history of UK legislation which permits the British Government to make Official Secrets of certain technical ideas submitted as patent applications, and thereby prohibit their publication. The story begins in the mid-nineteenth century, and introduces a number of interesting inventors, politicians, and civil servants, including Sir William Armstrong, Marconi, the Wright Brothers, Leo Szilard, Sir Barnes Wallis, Sir Christopher Cockerell, the Earl of Derby, Sir Harold Wilson, and the now forgotten civil servant Mr Clode, Solicitor to the War Office in the 1860s; it ends, as the thirty year rule demands, in the 1960s.
The First Secret Patent
Authors: O’Dell T H
Published: October 2023

On 6 August 1855 one John Macintosh left a provisional specification at the Patent Office in London entitled ‘Certain Improvements in the Application of Incendiary Materials to be Used in Warfare’. This was not the first time that Macintosh had applied for a patent. In fact, it was the fourth time that year, his previous ideas for 1855 being in the more peaceful fields of pens, springs, and matches. His application on 6 August is of particular interest for this book, however, because it became what may be the first example of the British government suppressing the publication of a patent specification.
The Second World War
Authors: O’Dell T H
Published: October 2023

Writing of the Great War of 1914-18, Randolph S. Bourne (1886- 1918) put forward the slogan ‘War is the Health of the State’ in one of his essays (Resek (1964), 71). Bourne also remarked upon the enthusiasm with which men with administrative or managerial expertise had volunteered for military service in the war, ‘as if the war and they had been waiting for each other’ (ibid. 60). In the Second World War we find a very similar situation with men of technical expertise, the ‘boffins’ as they were called in the United Kingdom, although the origin of this new word has been lost.
Explaining American Exceptionalism zn Corporate Law
Authors: Romano Roberta
Published: October 2023

State competition for corporate charters is unique to the United States of America (USA). This chapter examines American exceptionalism in corporate law by contrasting the legal rules, institutions, and corporate ownership patterns of other federal systems, Canada and the European Community (EC), that impede a state or nation-state’s ability to exercise effective juris diction over firms, thereby preventing corporate charter competition. Although Canada has a federal system-firms can incorporate in one of ten provinces or under the Canada Business Corporations Act (CBCA) as a national corporation--an active market for corporate charters has not developed. Similarly, the Treaty of Rome envisions a federal system for the EC, with its integrated economic market, but it has not fostered corporate charter competition among EC members, despite concerns by corporate law commentators that it would.
Institutional Competition and Coordination zn the Process of Telecommunications Liberalization
Authors: Scott* Colin
Published: October 2023

The United States of America (USA) and the European Union (EU) face the same set of basic issues in telecommunications policy. Both must respond to and support technological and economic changes affecting the telecommunications industry, in particular the convergence of telecommu nications, computing and broadcasting, so as to assure the greatest possible yield of benefits to the widest possible distribution. Yet, despite this common objective, the telecommunications policies of the USA and the EU differ in significant respects. Some of these differences can be explained without reference to regulatory institutions-disparate demographic, geographical, and socio-economic factors ordinarily lead to disparate policy choices.
The Parliamentary Commissioner For Administration: Perspectives On Good Administration
Authors: Woodhouse Diana
Published: October 2023

Common to both models of public administration is the part played by the PCA. Indeed, his role in relation to the administrative process has increased in the 1990s. There are several reasons for this. Firstly, the internalization of appeal procedures means that in many cases the PCA has become the only external mechanism for the redress of grievances. Secondly, the Citizen’s Charter has contributed to the development of a complaints culture. It has also provided the PCA with a possible further checklist as to what constitutes maladministration, and, thirdly, the PCA now has a remit to accept grievances with regard to the operation of the Code of Practice on Access to Government Information.
The Courts And Public Administration
Authors: Woodhouse Diana
Published: October 2023

Unlike some continental counterparts, the British Civil Service is not dominated by those with legal training. Lawyers are employed as specialist legal advisers but seldom as administrators and there is generally a lack of ‘interaction in ordinary business between civil servants and lawyers’ . As a result ‘neither wholly understands the other’s point of view and the civil servant is not as responsive to problems about law as he is to problems about politics.’ This accords with the domination of political rather than legal accountability in the British system of government, and with the constitutional position of civil servants as publicly accountable through the minister to Parliament, a position that became established during the nineteenth century and owed much to the apparent success of the mid nineteenth century Parliament in its role as scrutineer and controller of government.
Developing Tensions
Authors: Woodhouse Diana
Published: October 2023

The coincidence of a new public management model of public administration and an interventionist judiciary has resulted in increasing tension between the executive and senior judges. This tension is apparent in the territorial claims, based on the separation of powers, made by both sides, and in the assertion of constitutional principle. From a judicial perspective it arises from Treasury interference in the administration of justice and from the Government’s law and order policies, in particular those relating to sentencing. It would also seem to stem from an underlying concern that rights are being eroded or, at least, that concepts like fairness and reasonableness are taking second place to cost savings.
Judicial Perspectives On Good Administration: The Individual Interest
Authors: Woodhouse Diana
Published: October 2023

The belief that the courts play an active part in fostering principles of good administration is widely held. Indeed, some commentators have argued that the substantive rules, broadly classified as legality, procedural propriety, rationality, and possibly proportionality, themselves amount to principles of good administration, containing, as they do, requirements of fairness, reasonableness, the proper use of power and the absence of bad faith, capriciousness and arbitrary decision making. Moreover, it has also been suggested that how these rules are applied is determined by the judicial view of the proper scope of public administration in the particular case.4 This may account for judicial dicta which sometimes sees good administration as protecting the individual (the main concern of this chapter) and sometimes as aiding administrators and the administrative process and hence the public interest (the subject of Chapter 8). However, the judicial perspective of good administration5 is not limited to the content of the substantive rules or grounds for judicial review. It goes beyond the legal requirements.
Private International Law Redefined
Authors: Lowenfeld Andreas F
Published: October 2023

Fifteen years ago, I gave a short course at the Hague Academy of International Law entitled ‘Public Law’in the International Arena’. My purpose then was to break down the to me unconvincing separation between public and private international law, by focusing on those areas in which private and public interests, and often the interests of two or more states, collided. The lectures were well received-in the sense that they stirred a good deal of comment and reaction, and no little controversy. The lectures also contributed to the agenda, and the approach, of Part IV of the American Law Institute’s Restatement (Third) of the Foreign Relations Law (1987), with which I was associated for close to a decade, and that work in turn stimulated my case- and textbook on International Litigation and Arbitration (1993).
Jurisdiction of Courts
Authors: Lowenfeld Andreas F
Published: October 2023

The bases of judicial jurisdiction in civil actions are much less controversial than the subjects discussed thus far. Actor sequitur forum rei is the fundamental principle accepted virtually everywhere. Plaintiff follows the defendant to the latter’s forum, i.e., to the defendant’s domicile. Evidently jurisdiction founded on defendant’s domicile is not sufficient, and the discussion here, as in other dicussions of the subject, will quickly turn to other bases, some controversial, some almost universally agreed. I want to raise four questions concerning jurisdiction of courts over non-residents.
More on Discovery: The Hague Evidence Convention
Authors: Lowenfeld Andreas F
Published: October 2023

In the preceding chapter, after a somewhat abstract discussion of fact-finding in American litigation, the cases used to illustrate the controversies over transnational discovery were all based on some kind of public law, from enemy property to antitrust to securities regulation to tax evasion and the drug trade. Iii this Chapter, addressed to the Hague Evidence Convention, we come back to the first strand of the Justizkonflikt, American private tort litigation, primarily based on liability for injuries caused by products alleged to be defective. Such litigation nearly always depends on some sort of fact-finding directed to the design and manufacture of the product. As the United States, which had been net exporter until the early 1970s, became a massive importer of automobiles and machinery, and European-made aircraft began to be involved in accidents in the United States, the Hague Evidence Convention took on increasing importance, viewed by some as an aid in procuring information located abroad, by others as a shield against disclosing such information.
Party Autonomy: The 1riumph of Practical Considerations
Authors: Lowenfeld Andreas F
Published: October 2023

Throughout this volume, we have explored conflict and disagreement—about jurisdiction to prescribe, jurisdiction to adjudicate, responsibility of multinational enterprises, enforcement of judgments, and scope of disclosure or discovery in international controversies. In truth, the area of disagreement is not quite as vast as the preceding chapters would indicate. Nearly everyone agrees, today, (1) that parties to a commercial transaction (putting aside certain consumer contracts) may agree on the law applicable to their relations; that they may choose the forum to resolve any disputes that may arise between them; and (3) that they can remove state organs almost completely from the process of adjudication by choosing to have their disputes resolved by arbitration.
Law in Environmental Decision-Making
Authors: Steele Jenny , Jewell Tim
Published: October 2023

This book does not aim to deal with an exhaustive series of legal issues in respect of the environment. Instead, its chapters are concerned with a range of legal frameworks, and a number of sources of environmental law. Included here are elements of national law; of the law and policy of the European Union; and of international law. In respect of these different sources, the chapters address aspects of one broad question: to what extent is law —in a variety of forms —able to play a positive role in decisions having an environmental impact? This question is taken not only to include issues of law-making and legal decision-making on the part of legislatures, courts, or agencies; but also to take in issues about the application of law, and the way it is received by other actors.
Institutional Shareholders and Corporate Governance
Authors: Stapledon G P
Published: October 2023

This book examines the role of institutional shareholders in corporate governance, which is the system by which companies are directed and controlled. This is a subject of great concern to "public companies", their management, their shareholders and their employees. The recent concern about the effectiveness of corporate governance in a number of different countries has produced an outpouring of books and other publications including the Cadbury Committee Report which sought to address the principal problems arising in the UK. The unusual feature of this book is that it compares systems operating in Australia with those in the UK while at the same time also looking carefully at US, German and Japanese experience. The significance of the subject matter of this book lies in the fact that institutional investors collectively hold a very large proportion of the equity capital of the UK "corporate sector", and a sizeable proportion of the equity capital of the Australian equivalent. In addition domestic companies in turn occupy an extremely significant position in the UK economy and a significant one in the Australian economy. How these companies are managed is of very great significance to the economies of these countries.
Tracing, Mixing and Laundering
Authors: Moriarty Stephen
Published: October 2023

If property is misappropriated in circumstances where title to it can still he asserted by the victim, by most people’s standards it would mock common sense for the remedies otherwise available in respect of that property (whether against the rogue or third parties who take from him) to be thwarted solely by the substitution of that asset for some other. Where the property is mixed with other property before the substitution takes place, the common sense of the matter may not always be so self-evident. If the victim’s property has become indistinguishably mixed in a common stock of assets which has been substantially squandered before being used to acquire other items of property, it is at least open to debate whether it makes much sense to treat the victim any differently from the person whose property was consumed straight away. In the most extreme case, however, the fact remains that it would seem little short of capricious to make the continued availability of the victim’s remedies depend upon whether his £1,ooo was mixed with another £1 before an asset was acquired out of the fund. At the risk of gross over-simplification, ‘tracing’ is the technique (to use a neutral word for the present) which forestalls these affronts to common sense by providing, to a greater or lesser extent, for a person’s remedies in respect of his property to endure, notwithstanding the replacement, or mixing, of his original asset with other property.
After Change of Position: Good Faith Exchange in the Modern Law of Restitution
Authors: BARKER KIT
Published: October 2023

The advent of the defence of change of position in English law is significant for at least two reasons. First, it is likely to spur a more liberal approach by the courts to restitutionary causes of action. Armed at last with a more sensitive mechanism for controlling restitutionary rights, judges will now be happier to grant these a longer leash. Secondly, the appearance of the new defence requires us to review carefully the scope of those which preceded it; to determine whether any of these are now redundant, or whether (and if so, in what detail) they continue to have a contribution to make to the modern law.
Overview: Tracing, Claiming and Defences
Authors: Birks Peter
Published: October 2023

The aim of this chapter is not to summarize all that is said in the previous ones but to attempt an overview of the principal questions which arise in the subjects which have been discussed. Some questions relating to defences, especially the new defence of change of position, tend to work their way back into the substance of tracing and claiming, but the chapter none the less divides the overview fairly cleanly into two parts. The first is essentially about tracing and the relationship between tracing and claiming; the second is about defences. Defences have acquired a new importance. The recognition of the defence of change of position will have a profound impact on the whole organization of the law of restitution.
Contracts in Relation to the Exploitation of Intellectual Property Rights: Jurisdiction
Authors: Fawcett James J , Torremans Paul
Published: October 2023

There are two types of contract in relation to intellectual property. Our analysis is only concerned with contracts for the exploitation of intellectual property rights. It is not concerned with contracts where the intellectual property right is not the central element. For example, this chapter will not deal with the issues arising from a contract between the inventor and a patent agent in which the latter is instructed to file an application for a patent.
Infringement: Preliminary Matters
Authors: Fawcett James J , Torremans Paul
Published: October 2023

As has been discussed above, intellectual property rights are granted on a national basis, along the lines of the national intellectual property statutes. It is quite normal though for these intellectual property rights to be exploited internationally. This gives rise to jurisdictional problems in infringement cases.Chapters 5 and 6 deal with jurisdictional provisions and their application in infringement cases. Before turning to these provisions, there are some preliminary matters that need to be discussed.
Infringement: Jurisdiction Under the Traditional Rules
Authors: Fawcett James J , Torremans Paul
Published: October 2023

In the situation where the EC/EFTA rules, outlined in the previous chapter, do not apply, recourse must be had to the traditional rules on jurisdiction. These rules are more complicated than the EC/EFTA rules. It is not simply a question of finding a basis of jurisdiction in respect of a foreign defendant, it also has to be asked whether the English court will exercise its discretionary powers to stay the action. Moreover, in infringement cases, there are subject matter limitations in relation to jurisdiction which do not exist under the EC/EFTA rules.
Jurisdictional Issues in Relation to European Community Rights
Authors: Fawcett James J , Torremans Paul
Published: October 2023

In this chapter, the jurisdictional rules concerning the infringement of European Community rights, and other disputes in relation to such rights, will be considered. The Community rights in question are trade marks, designs, patents and plant variety rights. The most developed jurisdictional rules are to be found in the area of Community trade marks, and, it has been proposed that what has been adopted there should operate as the model for designs and is likely to be the model for patents. Accordingly, the discussion will start, and deal in most detail, with trade marks.
Choice of Law Elements in the Intellectual Property Conventions
Authors: Fawcett James J , Torremans Paul
Published: October 2023

Intellectual property rights have been regulated internationally by many Conventions. These Conventions are the obvious places to start the search for choice of law rules. They might contain a harmonised uniform set of rules for the protection of intellectual property rights. It will soon become clear that such a system, that removes the need for choice of law rules, never was a realistic goal for the draftsmen of these Conventions, but maybe the Conventions contain choice of law rules or elements that may facilitate the choice of such rules. When the Conventions deal, for example, with the exclusive rights that are granted to the patentholder, they might, in the absence of a single harmonised rule that covers this substantive point, contain a rule which decides which national patent law will decide which exclusive rights the French owner of a German patent will receive when he applies in Germany on the back of his original French patent.
Preliminary Remarks
Authors: Fawcett James J , Torremans Paul
Published: October 2023

The first two stages of a private international law case, ie jurisdiction and choice of law, have already been examined. There is, though, a third stage, namely that of the recognition and enforcement of the judgment. It may be possible to enforce the judgment in the State in which the action was brought, but where this is not possible it is necessary to recognise and enforce the judgment in some other State in which the defendant has assets.
The Law of Defamation
Authors: Barendt Eric , Lustgarten Laurence , Norrie Kenneth , Stephenson Hugh
Published: October 2023

The law of defamation is notoriously complex. Although it is not easy to summarize its rules in a few pages, a short statement of English libel law is necessary in order to appreciate its impact on the various branches of the media which we describe in the following chapters. Exposition of these principles is particularly difficult at the time of writing (the summer of 1996), as some aspects of the law have recently been amended by the Defamation Act 1996. Some of the reforms contained in this measure are significant, particularly in the context of defamation procedure; they are referred to in this Chapter at the appropriate point. But they do not alter the main principles of the substantive law of libel. This Chapter also explains how the law and procedure in Scotland differ from those in England.
The Reformation in International Law*
Authors: Higgins Judge Rosalyn
Published: October 2023

My intention in this essay is to demonstrate the deep commitment of the LSE during its first century to international law and to show that during this 100 years we have witnessed, and are witnessing, a reformation in the subject.
Legal Services and the Alternatives: The LSE Tradition
Authors: Glasser Cyril , Harlow Carol
Published: October 2023

It is perhaps not surprising that the LSE and its Law Department have had a long connection with the subjects of access to justice and the provision of legal services for the community. From the School’s beginning, in addition to the teaching of core subjects such as contract and tort, teachers at the LSE introduced students to other topics, such as industrial law, which dealt with the application of the law to everyday life. Members of the Law Department have always been interested in, and closely connected with, the legal aspect of work being carried out by economists and social scientists on social policy issues in order to provide practical solutions to political questions. The combination of theory and pragmatism, which has always been a hallmark of the School’s approach, has been perfectly suited to the liberal outlook of so many of the LSE’s law teachers.
Access to Justice—Towards the 21st Century
Authors: Zander Michael
Published: October 2023

It seems appropriate in a centennial lecture in the approach to the miUenium to attempt to paint on a large canvas. The topic I have chosen embraces a great array of major issues any one of which could itself be the subject of a lecture. In the past twenty to thirty years a vast literature on these issues has developed. A lecture is a very inadaquate way to treat so rich and complex a subject.
Negotiating And Implementing The Uruguay Round: The Role Of Ec Member States-The Case Of Germany
Authors: Hilr Meinhard
Published: October 2023

Among the now fifteen Member States of the European Community, Germany is the one most dependent on international trade in goods and services. The Uruguay Round Agreements have met with Germany’s full and unequivocal support.
Constitutional Problems Involved In Implementing The Uruguary Round In Japan
Authors: Lwasawa Yuji
Published: October 2023

The Uruguay Round of multilateral trade negotiations were concluded in 1993 after more than seven years of intensive discussion. It was a bold Round; the topics for negotiations included new areas which had not been dealt with by the General Agreement on Tariffs and Trade 1947-services, Trade-Related Intellectual Property, and Trade-Related Investment Measures-and the areas which had given exceptional treatment under GATT 1947-agriculture and textiles. The number of participating countries in the Round was far greater than that for the Tokyo Round. The organizational structure of the GATT was reviewed, and a new inter national organization called the World Trade Organization was eventually created. The implications of the Uruguay Round for the world economy, including the economy of Japan, is enormous.
Implementation of the Uruguay Round Results in the United States
Authors: Leebron* David W
Published: October 2023

The Uruguay Round of multilateral trade negotiations constitutes one of the most ambitious efforts at international lawmaking and institution building since the establishment of the United Nations, and it is at least arguably the only one of such efforts that was fully and promptly implemented by the United States. In this context, it is hardly surprising that the implementation of the results by the United States was both controversial and complex. Between the 1979 completion of the Tokyo Round and the completion of the Uruguay Round, international trade agreements had moved from obscurity to front page news and political drama in the United States. Not only was the substance of the agreements attacked, but also the procedure for their implementation in the United States.
Implementation Of The Results Of The Uruguay Round Agreements: Korea
Authors: Chung* Moon-Soo
Published: October 2023

The Uruguay Round has never been popular in Korea and the Korean Government was a reluctant participant throughout the negotiations. The results of the Uruguay Round, in particular those concerning agricultural products, were met by a national uproar and demonstrations against ratification. The Government was blamed for poor negotiations. Partly due to the Government’s all-out campaign, but arguably due more to the reality of a fait accompli, the Uruguay Round agreements passed through the National Assembly on 16 December 1994, followed by the Presidential ratification on 23 December 1994.
Questions and Comparisons
Authors: Jackson John H , Sykes Alan O
Published: October 2023

Each of the papers in this volume reflects a different perspective on the relationship between national legal systems and international economic law. Although the authors considered a common set of questions, the resulting papers exhibit considerable diversity on many fronts. For example, in some of the papers, issues relating to federalism and ‘subsidiarity’ receive great attention. In others, the relationship among branches of government at the central government level were more important. Some of the papers exhibit much concern for the status of the international accords in domestic law and the question of ‘direct applicability’ or ‘invocability’. For still others, the focus is more one of administration, and with the massive task of conforming domestic law to the detailed requirements of the World Trade Organization.
The Location of Legal Theory
Authors: Luhmann Niklas
Published: October 2023

Theoretical exercises are nothing unusual in the world of law. Legal theories of the most diverse kind have been developed in both the traditions of Roman civil law and the common law. This has been due in part to the needs of legal education and in part to those of legal practice, with the latter ultimately becoming more important. Initially it was the arguments used by the parties in legal proceedings that were focused on, but later the major concern came to be the reasons for judicial decisions and, in this context, their consistent usage in courts. Experience of cases and concepts had to be processed and stored for further use. This need for processing and arranging has a double structure, as we shall analyse in detail below. On the one hand, concepts and theories have had to be condensed in such a way as to keep their identity while being processed.
The Function of Law
Authors: Luhmann Niklas
Published: October 2023

What is the function of law? This question is asked here in relation to the social system. In other words, we are concerned with the question of which of the problems of the social system are solved by differentiating specialized legal norms and arriving eventually at the differentiation of a specialized legal system. Asking the question in this way excludes asking, in particular, psychological and anthropological questions. Rejecting them does not mean that they are wrong. Their problem, however, is that, empirically, people exist only as individuals and that general statements about humankind, consciousness, and person are difficult to test. In contrast, ‘society’ means here a concrete, even if highly complex, single system which exists through ongoing communications and which can be observed empirically. Therefore we do not have to make and verify statements that could be generalized by an immense number of different systems.
Justice, a Formula For Contingency
Authors: Luhmann Niklas
Published: October 2023

The unity of the legal system is given first of all within the legal system by the form of its operative sequences, which reproduce the system autopoietically. These operations can observe their affiliation with the system, that is, distinguish between system and environment. This distinguishing is an instantaneous self-reference, that is, a designation of the system in an instant, which designates itself in contrast to everything else.

However, designating itself in this way, as a legal-system-in-an-environment, is too complex to be captured in a fully conscious way, not least because it is done by operations in a temporal sequence. The circle of self-reference, which exists with each operation, has to be repeated from moment to moment. It unfolds into a linear infinity of never-ending operations of the same system. In this way too the system refers to itself and appears as a self-referential system with operative self-references copied into it.
Doing Justice to Difference
Authors: Hudson Barbara A
Published: October 2023

During the 1980s sentencing reforms were enacted in the USA, Sweden, Canada, and Australia, and in England and Wales with the Criminal Justice Act 1991, which, broadly, followed the ‘desert’ or ‘justice’ model of penal policy. The reforms were designed to secure greater consistency of sentencing through adherence to the principle of proportionality of severity of punishment to seriousness of the current offence.
Lawyers and the Limits of Liberalism: the German Bar in the Weimar Republic
Authors: Ledford Kenneth F
Published: October 2023

On Saturday, 22 April 1933, members of the lawyers’ chamber for the Court of Appeal district of Celle convened in Hannover for a special meeting to elect a new Executive Board (Vorstand). This extraordinary and irregular assembly met at the order of the Prussian Ministry of Justice in Berlin, which since 30 January had fallen under the control of the National Socialist party. The sitting Executive Board had on 3 April refused the Ministry’s demand to resign en masse, and it had further declined to accept the tendered resignation of its single Jewish member, ‘in consideration of [his] long years of meritorious service’.
Detention for Questioning in England and Wales
Authors: Dixon David
Published: October 2023

A central argument of this book is that legal regulation and policing practices are inextricably entwined: their relationship is interactive, one cannot be understood without the other. This theme will be explored in this and the following chapter through examining in some detail the relationship between a key policing practice-detention for questioning-and its legal regulation in two jurisdictions, England and Wales and New South Wales.1 In each case, historical analysis will be followed by consideration of research into current policing practices. This comparison focuses on how two jurisdictions which began from the same legal basis (the common law’s insistence that an arrested person should be taken without delay before a magistrate, thereby effectively proscribing custodial interrogation before charge) developed differently in providing legal powers to the police. The analyses begin with discussion of crucial cases in which the legality of detention for questioning was considered.
Silent Suspects and Police Questions
Authors: Dixon David
Published: October 2023

The Criminal Justice and Public Order Act 1994, section 34, permits courts and juries in England and Wales to ‘draw such inferences ... a,s appear proper’ from a suspect’s failure to mention to a police officer investigating an offence a fact relied upon in his or her defence. In other words, it severely restricts the right to silence during police questioning. The caution is transformed from warning to threat,2 and its implications go beyond the specific legal provisions on which it is based. With some significant judicial support, senior police officers had campaigned for such a change in the rules of evidence for almost thirty years.
Legality, Regulation, and Policing
Authors: Dixon David
Published: October 2023

Even the least event had lines, all tangled, going back into the past, and beyond that into the unknown past, and other lines leading out, also tangled into the future. Every moment was dense with causes, possibilities, consequences (Malouf 1990: 296). This final Chapter begins with discussion of how the practices and forms of law and policing intersect. The second section goes on to discuss the limits and possibilities of the legal regulation of policing.
International Law Concerning Child Civilians in Armed Conflict
Authors: Kuper Jenny
Published: October 2023

Each year, many thousands of child civilians are killed, injured, or otherwise physically and psychologically harmed as a result of armed conflicts. There is a considerable body of international law which aims to minimise the harm inflicted on these children, and yet it is little known, or observed. This book is the first major international legal text to focus exclusively on child civilians. It addresses three main questions: (1) what are the precise rules incorporated in the pertinent body of law, and what are its implementation mechanisms? (2) how effective is it (with reference to recent conflicts involving Iraq) in helping to achieve some protection for child civilians? and (3) can it be rendered more effective? The book concludes by proposing a number of strategies to strengthen the impact of the applicable law. As the first detailed analysis of the surprisingly large body of law relevant to the treatment of child civilians, this book is an important contribution to a topical and highly charged human rights issue.
The Law in Practice: Three Conflicts
Authors: Kuper Jenny
Published: October 2023

As mentioned in Chapter 1, the object of this book is not simply to describe the international law regarding child civilians in armed conflict, and those bodies and fora involved in its implementation. Such an exercise, while of some value, is like assembling the components of an engine without seeing how it functions. The concern here is to see how the ‘engine’ can best be mobilised. Accordingly, a further objective of this book is, in this Chapter, to attempt to assess the effectiveness of the relevant law, and, in Chapter 8, to make recommendations to enhance its effectiveness if this seems appropriate and possible.
Against Legal Principles
Authors: Alexander Larry , Kress Ken
Published: October 2023

Conventional Anglo-American jurisprudential wisdom accords legal principles central and even honorific status in determining how legal reasoning does and ought to proceed, and how cases are and ought to be interpreted and adjudicated. Reference to legal principles permeates both philosophical commentary on and doctrinal discussion of law, interpretation, and adjudication. Indeed, reference to legal principles is a staple of the instruction of law students and of the arguments of practising lawyers. For many-including Ronald Dworkin-rules in effect drop out of the picture, leaving the field to principles. Just as the nineteenth-century physicists invoked the ether to explain past observations and predict future ones, traditional legal reasoning and theories of interpretation invoke legal principles to explain the outcomes in past cases and to justify conclusions about how future cases should be decided. And like the invocation of the ether, the invocation of legal principles is misguided. Traditional theories of interpretation and legal reasoning, and the jurisprudential theories that build upon them, rest on a fundamental mistake. So, at least, we shall argue.
Enfants Trouvés, Anonymous Mothers, and Children’s Identity Rights
Authors: Donovan Katherine O’
Published: October 2023

In this paper I bring together two areas on which Brian Simpson has written so elegantly: legal history, and human rights. The history of abandonment shows a movement from charitable concern in the Middle Ages, to the criminalization of parents since the early modern era. Today the language of human rights enters a space, somewhere between crime and welfare, in discussions of children, and of the parents who abandon them. We are more likely to speak of the rights of the child. Specifically the language of identity rights may be used in discussion of the abandonment of small children. Concern focuses not so much on protecting life, as on the child’s loss of knowledge about genetic family and kin.
Environmental Rights in the European Union-Participatory Democracy or Democratic Deficit?
Authors: Douglas-Scott S
Published: October 2023

It might have been thought. at the signing of the original Treaty of Rome in 1957. that the new European Economic Community as it then was, would be an unpromi ing forum for the protection of environmental rights. The EEC Treaty. as originally drafted. contained no provisions. explicit or otherwise, regarding the environment. nor any reference to human rights. These factor . however, have not deterred the European Union (EUJ. as it has now become. from developing considerable competence in the field of environmental law’ strongly influenced by the European Court of Justice·s case law in this area. However, the translation of these competences into the language of rights has. notwithstanding the European Union·s claimed observance of human rights.’ been less transparent.
Environmental Rights and the New South African Constitution
Authors: Glazewski Jan
Published: October 2023

The 27th of April 1994 was a historic day in South Africa with the adoption of its first democratic Constitution. It is a complex and lengthy document-the result of long and protracted negotiations at Kempton Park, Johannesburg where it was agreed that this would be an interim constitution in place for five years during which time a final constitution would be drafted. The new Constitution marks a departure from the Westminster model of parliamentary sovereignty on which the South African constitutional structure has traditionally been based. It is replaced by a constitutional model where executive and legislative power are subject to norms laid down in an entrenched Bill of Rights.
Practical Human Rights, NGOs and the Environment in Malaysia
Authors: Harding Andrew
Published: October 2023

Malaysia exhibits most of the environmental problems which are typical of many of the developing countries. They include over-logging of primary forest resulting in the destruction of wildlife, soil erosion, and the displacement of native populations (especially in Sarawak, but also in Sabah, Pahang, and elsewhere); air and water pollution from industry and traffic, especially in the Federal Territory of Kuala Lumpur and its urban surrounds/ and the dumping of hazardous waste. The pressure of development all over the country creates many social and economic problems which have important environmental and social causes and effects, such as the displacement of squatters, and the destruction of longestablished livelihoods. Malaysia’s unprecedented economic growth over the last twenty years has exacerbated rather than relieved these problems. However, the object of this chapter is not to lament the lamentable, but to discover whether there is a meaningful linkage between human rights and the environment which has any potential in the developing countries of the Commonwealth and beyond.
Constitutional Environmental Rights m Brazil
Authors: Fernandes Edesio
Published: October 2023

In 1988, an intensive world-wide campaign was orchestrated by the international media concerning the deforestation of the Amazon region. Although internal mobilization in Brazil was less significant, the conservationist organizations already existing in the country managed to take advantage of the situation to increase the degree of social awareness not only of the question of the Amazon, but also of environmental issues in Brazil more generally. It was undoubtedly as a result of such a combination of pressures that, for the first time, the constitutional Congress approved a whole chapter dedicated to the environment in the 1988 Constitution. Together with several other related constitutional precepts and the already large body of existing legislation, this has provided a remarkably improved legal framework for environmental action, conservation, and preservation in the country.
Islam And Judicial Activism: Public Interest Litigation And Environmental Protection In The Islamic Republic Of Pakistan
Authors: lau Martin
Published: October 2023

Pakistan only recently began to develop a judicially recognized right to a clean environment. In two cases the Supreme Court of Pakistan has held that the constitutionally guaranteed right to life1 includes the right to live in a clean environment.2 Both judgments arise from so-called ·public interest litigation’, i.e., legal action for the enforcement of constitutionally guaranteed rights involving questions pertaining to public interest. Similar to its Indian counterpart, Pakistan’s judiciary has waived the strict procedural rules pertaining to writ petitions for this class of cases.’
Science, Reason, and Tort Law
Authors: Feldman Heidi Li
Published: October 2023

Remember the reasonable person of ordinary prudence who acts with due regard for the safety of others (‘the reasonable person’)? Appellate opinions constantly invoke this creature, sometimes explicitly developing his character and personality traits, sometimes providing information about him by deciding how he would behave in particular circumstances.
The Environment, Science, and Law
Authors: Mceldowney John
Published: October 2023

The environment poses diverse problems and challenges requiring a scientific explanation. Science provides many of the assumptions that underlie most environmental laws and is frequently used by policy-makers to justify decision-making. The authority of science is sought to support various claims, counter-claims and assumptions about the environment.
Law’s Truth, Lay Truth and Medical Science
Authors: Ward Tony
Published: October 2023

Tom Wolfe displayed severe historical amnesia when he wrote recently that ‘we now live in an age in which science is a court from which there is no appeal. and the issue this time around, at the end of the twentieth century, is ... the nature of our precious inner selves.’
Policy Discussion and Conclusions
Authors: Ward Angela
Published: October 2023

The principles of effectiveness and non-discrimination, as yardsticks for testing the legality of national remedies and procedural rules, carries the potential to disrupt an infinite range of national laws. Indeed, it has been argued that Member States are entirely bereft of procedural autonomy, and that domestic procedural rules are only ‘there to serve Community law’.1 It has also been said that these rules apply ‘only in so far as they contribute to the effective application of Community law. Where they do not, they must be set aside.’2
Politicians and the Press
Authors: qc Michael J Beloff
Published: October 2023

My purpose is to examine the extent to which the law does, and to the extent that it does to which it should, have special rules governing the relationship of politicians and the press. I should note, at the outset, that politicians and journalists are citizens: the law that applies to others, applies to them. My concern is to detect where the particular function of each has created distinctive rules or approaches. That relationship of politicians and the press, one of mutual fascination, is special because the role of each is vital in a democratic society, and the way in which the balance between their respective interests is struck is fundamental to its proper operation. The main areas selected for study will be; parliamentary privilege; libel law; protection of privacy; and the impact of the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA) upon the foregoing.