Kjell Å Modéer
This chapter is about the relations between the national legal system and the ‘other’—especially from the creation of the modern nation state in the early nineteenth century and up to current times. Comparative law in the twentieth century was dominated by the concept of ‘valid law’, functionalism, legal positivism and legal realism. The parameters of time and space within law were minimalized. The German law emigrés from Nazi Germany to England and the United States played a special role for the relation to comparative law, and several of these scholars played a great role for the post-war development of comparative law. Critical theories and post-colonialism have developed new legal discourses on culture and identity, and have increased interest not only in history but also in differences between legal cultures—and thus an increasing interest in comparative legal history.
Jane Maslow Cohen
This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.
This chapter examines issues surrounding the right of access to and limits on evidence dossiers in civil law systems. It first provides an overview of the general aims pursued by the law in regulating the parties’ right of access to the investigative file before discussing supranational sources, such as the European Convention on Human Rights (ECHR) and the case law of the European Court on Human Rights (ECtHR). In particular, it explores how the jurisprudence of the Court of Justice of the European Union (CJEU) and certain directives adopted by the European Union on the right to information by defendants and by victims has influenced the criminal procedures of EU Member States. It also analyzes disclosure at the International Criminal Court (ICC) and concludes by explaining how civil law systems have changed in recent years, what their common features and shortcomings are, and how they could be improved.
This chapter discusses how Canadian constitutional issues come before the courts. Its primary focus is on litigation arising under the Charter of Rights and Freedoms. Since the entrenchment of the Canadian Charter in 1982, traditional legal process doctrines, such as standing, intervention, costs, and reference opinions have seen significant expansion. Though initially cautious, Canadian courts have recognized that the ability to initiate constitutional claims is integral to the principle of legality. The mechanisms by which constitutional issues are judicially reviewed, and decisions regarding who may participate and how such litigation may be supported, are crucial determinants of substantive constitutionalism in Canada.
Roderick A. Macdonald
This article discusses the process of empirical research on access to justice, explaining the procedure from data collection to analysis. Research into access to justice finds ways to render civil justice to citizens equitably. Reliable, non-anecdotal data is a prerequisite for useful empirical research into access to justice. Three international initiatives illustrate the reflection of access to justice in research projects. They are, the World Bank's Justice for the Poor Program, UNDP Commission on Legal Empowerment of the Poor, and the Tilburg Microjustice Initiative. The most comprehensive empirical projects on access to justice are those sponsored at the national or sub-national level. Non-governmental drivers of broad-based data collection are other legal actors. This article discusses examples of data collection and evaluation in countries where research has generated data on civil justice. Finally, this article discusses barriers to access to justice, which cause exclusion.
This article examines the five forms of payment for healthcare that are common in the United States: out-of-pocket, charity, direct public provision, public health insurance, and private health insurance (including employer-sponsored insurance). After discussing the history of each of the five approaches, the article considers their advantages and disadvantages as well as their current status. It examines next the 2010 Affordable Care Act. Although the Affordable Care Act focuses primarily on expanding public health insurance and public financing for private health insurance, it incorporates all five approaches to financing care. Finally this chapter considers why the United States retains this patchwork of different forms of coverage rather than adopting a single coherent system of health care finance and discusses the likely future of the American approach.
Eleanor D. Kinney and Priscilla Keith
This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.
This chapter examines the procedures for acceding to and withdrawing from the European Union. It is argued that, while determined by (Member) states’ decisions, accession and withdrawal are also driven by EU institutions, and by the canons of the EU legal order. Indeed, more than simply governing the entry into, and the exit from the Union, the two procedures fulfil a specific function in relation to its objective of an ‘ever closer union amongst the peoples of Europe’. As such, they are fully embedded in the system of the treaties, and form an integral part of the evolving EU constitutional structure they underpin.
This chapter explores some legal and literary ramifications of “accident” in British law and society from the late eighteenth through the early twentieth century. This period saw changes in common law and legislation relating to accidents, including the emergence of negligence as a distinct tort and statutory provisions for employer liability and workplace compensation. The chapter turns on the institution of the deodand, a common-law rule that allowed inquest juries to assess liability for accidental deaths caused by non-humans. After such entities began to include industrial machines, the deodand was abolished by Parliament in 1846. Examining legal-historical cases and norms alongside literary-cultural representations, the chapter claims that the deodand’s disappearance, and concurrent transition to fault liability regimes, marked a loss in the understanding of accident. If the nineteenth-century emergence of modern accident law tended to simplify accidents into surrogates for human interaction, the deodand qua institution grasped how reckoning with accidents demands an alertness to human entanglement with non-human causality. Literary representations of vehicular accidents afford a glimpse of what was coming to be lost in this changing legal-cultural dispensation. From Thomas De Quincey to Thomas Hardy to E. M. Forster, the complex non-human, material, and affective dimensions of accident dissipate into the background, where they continue to supply narrative and formal motivation even as they leave human obligations and institutions in the light.
This chapter examines the issue of accountability in relation to international organizations (IOs). The research questions deserving most intense theoretical and empirical attention are, first, who should be accountable to whom and, second, to what extent they actually are. It outlines some approaches to answering these questions; highlights the most promising one; and sketches the contours of a possible solution to a major problem that plagues that approach. The chapter shows that the selection and design of IOs plays a special role in overall assessments of accountability. The most persuasive answer to the first question remains some version of the principle that everyone who is affected by a political decision should be able to influence that decision. Even under conditions of global interconnectedness, this does not mean that everyone should have a say on any decisions taken anywhere else: decision-makers should be accountable to specific constituencies in proportion to the power they wield over those constituencies.
This chapter focuses on accountability and its political, legal, and financial aspects. Drawing on Mark Bovens’ conception of accountability that addresses the relationship between an actor and a forum, it examines how political, legal, and financial accountability apply to the European Union institutions as well as to the Member States. More specifically, it discusses the nature of the political, legal and financial accountability that rests, or should rest, on the Member States in their capacity as contracting parties to the EU. The chapter also considers three principal dimensions that shape discourse on political accountability, along with the relevance of Member States’ political accountability in relation to substantive Treaty provisions and compliance with EU legislation. After analysing the foundational precepts of EU legal accountability, including the amenability of EU institutions to judicial review and access to judicial review by aggrieved individuals, the chapter concludes by outlining the foundational precepts of EU financial accountability.
Giancarlo Frosio and Martin Husovec
This chapter summarizes recent developments in intermediary liability theory with special emphasis on the emergence of voluntary measures and private ordering. Looking at the legal liability rules always tells only half of a story. Legal rules are often only basic expectations which are further developed through market transactions, business decisions, and political pressure. Therefore, the real responsibility landscape is equally determined by a mixture of voluntary agreements, self-regulation, corporate social responsibility, and ad hoc deal-making. Accountability schemes can differ significantly, ranging from legal entitlements to request assistance in enforcement to entirely voluntary private-ordering schemes. This chapter provides a mapping of these basic approaches in order to illustrate the richness and trade-offs associated with such measures. Miscellaneous policy and enforcement tools, such as monitoring and filtering, graduated response, payment blockades and follow-the-money strategies, private denial of service (DNS) content regulation, and online search manipulation, are discussed to complement the typical legal liability view of the regulation of intermediaries. The discussion of these enforcement strategies will be framed within the investigation of notions such as market and private ordering, corporate social responsibility, assistance in enforcement of a innocent third party made accountable although not liable and public deal-making.
Lawrence A. Cunningham
This chapter examines the functions of corporate accounting and financial reporting around the world, with particular emphasis on how local realities that explain persistent diversity often pose a barrier to aspirations for a universal system. It first charts the history and progress of contemporary efforts to move accounting from its diverse local roots to a unified global stage before turning to a discussion of the varying functions of accounting and reporting laws around the world. It then looks at aspects of accounting that are affected by national variation, including securities regulation, corporate governance, and corporate finance. Finally, the chapter explains how related forces contribute to persistent divergence in financial reporting.
This chapter examines the problems that could arise when a state invokes self-defence to justify action against terrorist groups in another state. It first considers indirect armed attack against armed groups and the controversy surrounding the use of self-defence where armed groups are controlled by a foreign state, with particular reference to the International Court of Justice (ICJ) jurisprudence. It then discusses the possibility that an armed attack could occur, permitting a forcible response in the context of international law, without attribution to a state by citing the Nicaragua case in which the ICJ pronounced that self-defence is permissible against a host state in effective control of an armed group. The chapter also looks at the case of Afghanistan and its relationship to Al Qaeda as an example of a state’s claims of self-defence against terrorism.
This chapter examines the concept of actus reus as a basic, essential component of criminal liability. It considers a range of recent scholarly interpretations of actus reus and the extent to which they are supported in the case law, with particular reference to the Canadian and U.S. jurisprudence. It discusses minimalist and maximalist interpretations of actus reus, the first of which conceives of actus reus on the basis of whatever the legislature has decided to criminalize and the second of which restricts criminal liability to positive acts. The chapter looks at approaches that interpret actus reus based on two factors: a person’s “control” over the prohibited outcome or conduct, proposed by Husak, and the person’s practical reasoning, proposed by Duff. The chapter argues that both minimalist and maximalist views of actus reus conflict with well-established features of the criminal law.
Steven Marans, Hilary Hahn, and Carrie Epstein
Childhood exposure to violence, and resultant traumatic dysregulation pose immediate and long-term threats to individual development and to public health. Recognizing the phenomena and phases of children’s post-traumatic reactions following their exposure to violence has led to a clear roadmap for multidisciplinary and clinical interventions that most appropriately address children’s needs at each phase of post-traumatic reaction. A deeper understanding of childhood trauma and a greater appreciation of the value of early identification and intervention has also increased recognition of the value of multidisciplinary collaborative efforts in addressing the complex needs of traumatized children and families. Greater understanding of the roles that various professionals can play in helping children to recover from violent trauma has resulted in important innovations in law enforcement practice, pediatric health care, child welfare systems, and school systems. Similarly, a better understanding of childhood trauma has contributed to the development of an effective, evidence-based, early clinical intervention that can help to reduce immediate symptoms and the development of longer-term post-traumatic disorders, as well as to treatments that can interrupt the longer-term disorders that emerge when there is a failure of recovery from traumatic events.
The reach of privately ordered online content regulation is wide and deepening. It is deepening with reference to the internet’s protocol stack, migrating downward from the application layer into the network’s technical infrastructure, specifically, the Domain Name System (DNS). This chapter explores the recent expansion of intellectual property enforcement in the DNS, with a focus on associated due process and expressive harms. It begins with a technical explanation of the operation and governance of the DNS. It goes on to discuss existing and proposed alternative dispute resolution (ADR) regimes for resolving intellectual property complaints involving domain names. In doing so, it compares the long-running Uniform Dispute Resolution Policy (UDRP) for adjudicating trademark cybersquatting claims to newer ADR programmes targeting copyright infringement on websites underlying domain names.
Since its inception, the responsibility to protect (R2P) principle has been progressively narrowed in its scope and application in order to capture widespread support from governments and civil society. However, as this chapter will explore, R2P came perilously close to failing to recognize the gendered dimension of mass atrocity crimes and the prevention of these crimes. The chapter examines how R2P came to be characterized as ‘gender blind’, and details how, since 2006, the principle’s supporters have engaged and responded to this challenge. The author argues that there is a need to continually theorize and engage in areas of common discourse to collectively progress the mutual agenda of gender equitable human protection.
This article introduces the rationality and legitimacy conditions and positions them within contemporary sceptical and non-sceptical accounts of adjudication. Two sections are concerned with non-sceptical accounts of adjudication. The next section begins with an analysis of the rationality condition. The article moves on to show that the existence of incommensurability in hard case adjudication ensures that adjudication cannot be rational in the strong sense. It demonstrates that values are implicated within the practice of adjudication, by reference to some examples and by invoking an old jurisprudential lesson about the nature of rule application and interpretation. This article further discusses value pluralism and sketches three claims. It argues that it is difficult to show that rationally indeterminate judicial decisions are legitimate. This article concludes that law and adjudication may not be as pre-eminently desirable as often assumed, since they are not more rational than other non-arbitrary means of organizing our collective life and resolving disputes.
Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.