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Case Law (case + law)
Kinds of Case Law Selected AbstractsTHE CHARITY COMMISSION , POLITICISED AND POLITICISINGECONOMIC AFFAIRS, Issue 3 2010Stanley Brodie Charities have always had to show that they provide a ,public benefit', the meaning of which has been developed by case law. The Charity Commission, a body created by the last government, has provided guidance on the meaning of ,public benefit' which is at odds with the meaning developed in case law , and therefore in conflict with the statute under which the guidance was ostensibly provided. The Charity Commission has also allowed charities to engage in political campaigning, an activity which the House of Lords has held no charity can lawfully pursue without losing its charitable status. The Charity Commission and its guidance should be scrapped. Professionally qualified and independent Charity Commissioners should be appointed. [source] Litigation and alcohol policy: lessons from the US Tobacco WarsADDICTION, Issue 2009James F. Mosher ABSTRACT Aims This paper explores the role of litigation in preventing alcohol-related harms, identifying lessons from the use of litigation in tobacco control policy in the United States. It analyzes the key components of litigation in an international context, provides a case study of its potential use in addressing the marketing of alcopops to youth and offers recommendations for pursuing litigation strategies in future alcohol policy efforts. Methods The paper's analyses are based on both original and secondary legal research. State and federal case law and secondary sources are reviewed in assessing lessons learned from tobacco litigation in the United States and the potential role of litigation in alcohol policy, both in the United States and internationally. Assessment of alcohol litigation cases and state and federal laws and regulations provides the foundation for the alcopops case study. Findings The tobacco litigation experience demonstrates that litigation is a powerful tool in addressing aggressive marketing by purveyors of addictive products such as alcohol. Conclusions To be effective at both national and international levels, litigation should encompass a broad array of legal tactics designed to identify and restrict unfair, deceptive and misleading alcohol marketing tactics and should be utilized in conjunction with complementary prevention strategies. Research conducted on the impact of alcohol marketing on youth alcohol consumption and problems is needed to support potential litigation claims. Developing litigation expertise within the alcohol policy field and building collaboration with litigation specialists in tobacco control should also be considered a high priority. [source] What Does Free Movement Mean in Theory and Practice in an Enlarged EU?EUROPEAN LAW JOURNAL, Issue 6 2005Sergio Carrera The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro-security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm? [source] The Court of Justice and the Union CitizenEUROPEAN LAW JOURNAL, Issue 6 2005James D. Mather After all, it was Advocate General Lèger who stated that it was for the Court to ensure that its full scope was attained. The article focuses predominantly on three areas of study: Member State nationality law and citizenship, the effect and meaning of Article 18 EC, and the ever-evolving right to equal treatment for the Union citizen. It is fully updated in the light of recent case law, the Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58 EC. [source] Looking for Coherence within the European Community*EUROPEAN LAW JOURNAL, Issue 2 2005Stefano Bertea It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists. [source] Union Citizenship,Metaphor or Source of Rights?EUROPEAN LAW JOURNAL, Issue 1 2001Norbert Reich After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting ,quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing ,implied duties' based on a doctrine of ,abus de droit' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law. [source] ETHICAL, LEGAL, AND PROFESSIONAL PRACTICE ISSUES INVOLVED IN ACTING AS A PSYCHOLOGIST PARENT COORDINATOR IN CHILD CUSTODY CASESFAMILY COURT REVIEW, Issue 3 2004Matthew J. Sullivan The use of Psychologist Parent Coordinators in child custody cases (called Special Masters in California) is becoming increasingly prevalent across the country. This postdivorce parenting coordination role is a legal/psychological hybrid, demanding knowledge and skill in legal domains (legal procedure, relevant case law, etc.), psychological domains (child development, family systems, etc.), and dispute resolution (mediation and settlement processes). Situated in the interface of legal and psychological paradigms, Parent Coordination may be reviewed by multiple legal and psychological regulatory bodies. Coming from varying perspectives, the practice guidelines and mandates of these legal, ethical, and licensing agencies impose multiple standards of review of Parent Coordination. A brief overview of the legal and psychological review processes applicable to Special Master work in California, as they relate to common issues that confront the Parenting Coordinator across the country, is the focus of this article. They suggest that the current lack of coordination of review processes creates a minefield of professional risk for the psychologist who chooses to practice in this role. [source] Parental Rights in Diverse Family Contexts: Current Legal Developments,FAMILY RELATIONS, Issue 4 2002Denise A. Skinner Here, we review case law as it applies to parental rights. Specifically, we examine two issues: (a) Who has been awarded the right to parent? and (b) What rights have been bestowed to parents? The review demonstrates how family law in the United States reflects and perpetuates society's ambivalence about family structure and, subsequently, parental rights and responsibilities. On the basis of this analysis, we recommend a broadened legal perspective that not only communicates society's expectation of responsible parenting but, in addition, gives legal recognition to diverse family forms in which members carry out these responsibilities. [source] Pregnancy and maternity leave: employment law as a family friend?INDUSTRIAL RELATIONS JOURNAL, Issue 2 2000Paul Lewis Law seeking to provide protection for pregnant workers has proved to be complex and uncertain. This article aims to examine the legislation , recently amended , and case law and to assess their effectiveness. The conclusion is that a coherent scheme is emerging but that the level of maternity pay remains problematic. [source] Racial redistricting in the United States: an introduction to Supreme Court case law,INTERNATIONAL SOCIAL SCIENCE JOURNAL, Issue 183 2005Jean-François Mignot Racial redistricting is a form of territorial rearrangement of electoral districts implemented in the United States in 1990s. Its purpose and effect is to increase the number of districts with an African American or Hispanic majority in order to increase the number of elected officials from those minorities. Racial redistricting is thus a public procedure that takes explicit account of the ethno-racial identity of individuals. The emergence of racial redistricting is explained by the fact that, in the political and legal context of the late 1980s, the officials in charge of redistricting had a vested interest in adopting such a scheme in order to ensure their own continued presence in positions of power. However, racial redistricting had hardly been implemented than its constitutionality was challenged. The Supreme Court then defined the conditions for racial classifications to be validly taken into account in the redistricting process. The Court's complex case law is particularly concerned to make the account taken of racial factors in redistricting as invisible as possible. The objective is to ensure more complete integration of African Americans (and Hispanics) into the US political system. [source] Rational Choice and Developmental Influences on Recidivism Among Adolescent Felony OffendersJOURNAL OF EMPIRICAL LEGAL STUDIES, Issue 4 2007Jeffrey Fagan Recent case law and social science both have claimed that the developmental limitations of adolescents affect their capacity for control and decision making with respect to crime, diminishing their culpability and reducing their exposure to punishment. Social science has focused on two concurrent adolescent developmental influences: the internalization of legal rules and norms that regulate social and antisocial behaviors, and the development of rationality to frame behavioral choices and decisions. The interaction of these two developmental processes, and the identification of one domain of socialization and development as the primary source of motivation or restraint in adolescence, is the focus of this article. Accordingly, we combine rational choice and legal socialization frameworks into an integrated, developmental model of criminality. We test this framework in a large sample of adolescent felony offenders who have been interviewed at six-month intervals for two years. Using hierarchical and growth curve models, we show that both legal socialization and rational choice factors influence patterns of criminal offending over time. When punishment risks and costs are salient, crime rates are lower over time. We show that procedural justice is a significant antecedent of legal socialization, but not of rational choice. We also show that both mental health and developmental maturity moderate the effects of perceived crime risks and costs on criminal offending. [source] Strategies to prepare for electronic discovery in healthcareJOURNAL OF HEALTHCARE RISK MANAGEMENT, Issue 1 2009CPHRM, Joseph L. Smetana Jr. MSHL While many healthcare risk managers have not yet received interrogatories requesting electronic information during discovery, all should nevertheless be prepared to face such requests. It is increasingly important to become knowledgeable of the legal exposure, due in part to recent amendments to the rules of civil procedure and case law that support the rules. This article provides healthcare risk managers with the basic knowledge necessary to prepare for electronic discovery. [source] Health, Social Movements, and Rights-based Litigation in South AfricaJOURNAL OF LAW AND SOCIETY, Issue 3 2008Marius Pieterse This article investigates the impact of rights-based litigation on social struggles in the South African health sector. It considers the manner in which individuals and social movements have utilized rights and the legal process in their efforts to dismantle the ill-health/poverty cycle, in the particular context of the struggle for universal access to treatment for HIV/AIDS. Relying on literature concerning the transformative potential of socio-economic rights litigation and on examples from South African case law, the article critically evaluates the gains that have been made and the obstacles that have been encountered in this context. It argues that rights-based litigation presents a powerful tool in the struggle against poverty, but also elaborates on structural and institutional hurdles that continue to inhibit the effectiveness of rights-based strategies in this regard. [source] Autopoietic Law and the ,Epistemic Trap': A Case Study of Adoption and ContactJOURNAL OF LAW AND SOCIETY, Issue 3 2004Carole Smith This paper examines autopoietic theory with reference to functionally differentiated social sub-systems, particularly law, science, and politics. It sets out to ,test' the practical relevance of autopoietic theory in relation to ongoing debates about post-adoption contact and personal identity issues. Law has resisted social scientific pressure to regulate post-adoption contact in the context of a social policy approach, which emphasizes the relationship between identity development and genealogical continuity. I argue that law's response to this pressure relates to the particular nature of adoption as this is expressed through legislation and case law. Law's refusal to intervene in post-adoption contact reflects its self-referential operations and its attempts to avoid epistemic entrapment by a social scientific discourse. Applying autopoietic theory to law's practical operations in adoption clarifies its explanatory value, provides a conceptual framework for understanding the relationship between law, politics, and social science and indicates areas that require theoretical refinement. [source] A Primer on Adoption LawJUVENILE AND FAMILY COURT JOURNAL, Issue 3 2001DOUGLAS E. ABRAMS J.D. ABSTRACT This article surveys major aspects of adoption law encountered by judges, lawyers, and child care professionals. The authors, whose new Children and the Law casebook is already required reading in nearly three dozen law schools, analyze both historical and contemporary materials, and both statutory and case law. [source] Learning to Dispute: Repeat Participation, Expertise, and Reputation at the World Trade OrganizationLAW & SOCIAL INQUIRY, Issue 3 2010Joseph A. Conti This mixed-method analysis examines the effects of repeat participation on disputing at the World Trade Organization (WTO). Differences between disputants in terms of their experience with WTO disputing processes affect the likelihood of a dispute transitioning to a panel review in distinct ways, depending upon the configuration of the parties. More experienced complainants tend to achieve settlements, while more experienced respondents tend to refuse conciliation. Strategies of experienced respondents are derived from the expertise generated from repeated direct participation and the normalcy of disputing for repeat players as well as the benefits accruing from a reputation for being unlikely to settle. Repeat players also seek to avoid disputes expected to produce unfavorable jurisprudence but do not actively try to create new case law through the selection of disputes. This research demonstrates a dynamic learning process in how parties use international legal forums and thus extends sociolegal scholarship beyond the nation-state. [source] The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer LawLAW & SOCIETY REVIEW, Issue 3 2009Shauhin A. Talesh This article demonstrates how the content and meaning of California's consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an "institutional-political" theory that demonstrates how organizations' construction of law and compliance within an organizational field shapes the meaning of law among legislators and judges. This study examines case law and more than 35 years of California legislative history concerning its consumer warranty laws. Using institutional and political analysis, I show how auto manufacturers, who were initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers first using manufacturer-sponsored venues. Organizational venue creation resulted in public legal rights being redefined and controlled by private organizations. [source] Dead, but not buried: bodies, burial and family conflictsLEGAL STUDIES, Issue 3 2003Heather Conway While recent public attention has focused on disputes concerning the fate of the dead such as the Bristol and Alder Hey organ retention scandals, this paper considers a much less publicised area of dispute which has nevertheless generated a significant amount of case law and potentially affects a much wider proportion of society. The paper looks at conflicts which arise when relatives cannot agree on how to bury their dead, the motives behind such disputes and the factors which influence their resolution. It examines the legal framework which has been applied by courts to date, proposes alternative solutions to this framework and questions the potential impact of the Human Rights Act 1998 on family burial conflicts. [source] Religious charities and the juridification of the Charity CommissionLEGAL STUDIES, Issue 1 2001Peter W Edge LLB, PhD (Cantab) The Charity Commissioners have indicated that they possess a law-making role. This paper evaluates the extent to which the Commissioners have exercised this role in relation to charities for the advancement of religion, and evaluates this role in the light of the Human Rights Act 1998. The analysis draws upon both case law and decisions of the Commissioners, in particular the decision of the Commissioners to refuse status as a religious charity to the Church of Scientology. [source] As ,cold as charity'?:, poverty, equity and the charitable trustLEGAL STUDIES, Issue 2 2000Alison Dunn LLB It has often been assumed that the notion of altruism indicative in the ordinary use of the term ,charity' penetrates the rationale for equity's enforcement of charitable trusts for the relief of the poor. This article questions whether in the area of poor relief equity acts out of a humanitarian regard for those whose relief is the purpose of the trust, or whether there is a more pragmatic rationale for action. Examination through case law of equity's reasoning is placed against a backdrop of socio-historical development, and of present day political concerns with resource allocation and professional accountability. This article concludes that whilst the potential for humanitarian relief in charitable trusts for the poor is clear, the operation of equity's jurisdiction in this area has a more prosaic disposition, placing poverty within the practical context of broader economic, social, commercial and industrial political policies. [source] Playing by the rules: Restricted endowment assets in colleges and universitiesNONPROFIT MANAGEMENT & LEADERSHIP, Issue 3 2005Lelia Helms Endowments serve as financial buffers and safety nets for post-secondary institutions in uncertain financial times. Donor-restricted gifts and bequests often complicate the management and deployment of endowment assets. Public policy concerns, the Uniform Management of Institutional Funds Acts, and related case law are changing approaches used by states to alter the donors' "dead hand" when time and circumstances make carrying out conditions of restricted bequests unworkable. [source] Forensic Issues in Pain: Review of Current PracticePAIN PRACTICE, Issue 2 2001Ronald J. Kulich PhD Ethical guidelines and recommendations for assessment, documentation, record review, and court testimony are discussed. Specific issues include the assessment of disability and impairment, malingering, and application of the Daubert standard in forensic pain practice. Examples of case law are reviewed for civil liability and CRPS, malpractice with opioid prescribing, and practice issues in a correctional setting. [source] The Patentability of Computer Programs in Europe: An Improved Interpretation of Articles 52(2) and (3) of the European Patent ConventionTHE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 3 2010Sigrid Sterckx After the introduction we discuss the European Patent Convention (EPC) provisions that are relevant to the exculsion from patentability of computer programs and the broader relevance of the fact that the European Patent Office's (EPO's) Enlarged Board of Appeal has recently been requested by the EPO President to interpret these provisions. Next, we comment on the relevance of the recent EPC revision, before addressing what a computer program must be taken to mean for the purposes of the exclusion from patentability. After drawing attention to the conflict in case law that has developed in relation to the patentability of the computer programs and briefly summarizing the different approaches the EPO has taken to Article 52 of the EPC, we explain the evolution of these approaches, with particular attention to the EPO's dominant "technical character" approach. Subsequently, we address the questions put to the Enlarged Board and how they might be answered. We set out our proposal for what we believe is the approach the Enlarged Board should adopt. Since this approach might have effects beyond the field of computer programs, we show that the EPO case law outside computer programs would not be altered by our approach. Two alternative approaches are then critically addressed before setting out our conclusion. [source] Forced Marriage as a Harm in Domestic and International LawTHE MODERN LAW REVIEW, Issue 1 2010Catherine Dauvergne This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark. [source] The Case for a Rational Reconstruction of Consent in Criminal LawTHE MODERN LAW REVIEW, Issue 2 2007Catherine Elliott This article argues for consistency in criminal law and the need for ,rational reconstruction' of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003. [source] Contractual Discretion and Administrative Discretion: A Unified AnalysisTHE MODERN LAW REVIEW, Issue 4 2005Article first published online: 1 JUL 200, Terence Daintith While judicial control of discretionary power is at the centre of administrative law, it is a topic which has received little attention in contract. By tracing the development of the relevant case law in administrative law judicial review and in contract, the paper seeks to show how review in both contexts has converged upon a single core technique of control through decisional standards. The paper further argues that the consequent identity of method in public and private law review of discretion does not in itself weaken basic public/private law distinctions. While the territories of legislation and contract may overlap, they present basic differences as contexts for the exercise of judicial control of discretion, and these differences of context may weigh more heavily than identity of approach in determining the outcomes of litigation.1 [source] The Presumption of Innocence and the Human Rights ActTHE MODERN LAW REVIEW, Issue 3 2004Victor Tadros There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions. [source] Transforming Breach of Confidence?THE MODERN LAW REVIEW, Issue 5 2003Towards a Common Law Right of Privacy under the Human Rights Act This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited ,horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate. [source] Legally regulating intergenerationally transmitted debtAUSTRALASIAN JOURNAL ON AGEING, Issue 2005Fiona R Burns This article considers the phenomenon of intergenerationally transmitted debt in Australia from the legal perspective. It will be argued that generally while confident and capable elders ought to be able to deal with their assets how they think fit, elders may suffer from vulnerabilities which prevent them from protecting their interests. The legal regulation of guarantees is presently a unco-ordinated and complex amalgam of case law, statute and finance industry self-regulatory codes which do not accord elders any special protection. This article suggests that it may be necessary to take some steps to protect vulnerable elders while still recognising their rights to exercise autonomy over assets. [source] Death penalty support for special offender populations of legally convicted murderers: juveniles, the mentally retarded, and the mentally incompetent,BEHAVIORAL SCIENCES & THE LAW, Issue 2 2004Denise Paquette Boots M.A. The U.S. Supreme Court recently re-examined the constitutionality of the death penalty in the context of two of three special offender populations of murderers (juveniles, mentally retarded, and mentally incompetent). The Court reaffirmed the imposition of the death penalty for juveniles 16 and 17, while reversing itself on the mentally retarded. In reaching its decision, the Court relied on society's "evolving standards of decency." Using Likert-type items, this study is the first to have prospective jurors assess support for the death penalty for these specific offender groups. The public's support for the execution of each of the groups is then compared with existing case law. Descriptive statistics and regression analyses indicate that, as expected, the levels of support for the applicability of capital punishment to the various special offender populations are much lower than that for the general adult offender. Moreover, these findings are congruent with the holdings of the Court with one notable exception: a slight majority of respondents supported executing the mentally incompetent. Reasons for the public's apparent departure from the Supreme Court holding prohibiting the execution of mentally incompetent convicted murderers are discussed. The Court's continued role in protecting marginalized populations from "cruel and unusual punishment" is explored in the context of strong public sentiment demanding justice and finality despite changes in offenders' mental capacity. Copyright © 2003 John Wiley & Sons, Ltd. [source] | |||||||||||||||||||||||||||||||