FILM: Christmas Movies and Law' from @LawLibCongress at http://t.co/YyCR8t6hjb pic.twitter.com/dieqJpSCzS
— ComparativeLaw (@JurisDiversitas) December 18, 2013
18 December 2013
FILM: Christmas Movies and the Law
17 December 2013
JOURNAL: Legal Scholarship Network: Legal Studies Research Paper Series
The latest issue of Legal Scholarship Network: Legal Studies Research Paper Series. University of Australia Faculty of Law, Vol. 2, No. 5: Dec 13, 2013, is available on SSRN.
Contents include:
Articles
Paper delivered to Australian Association of Constitutional Law, WA branch, at the Constitution Centre, West Perth, 4 September 2013.
PETER JOHNSTON, University of Western Australia - Faculty of Law
Email: peter.johnston@uwa.edu.au
One of the enduring constitutional legacies of the Glorious Revolution in 1688 whereby the English Parliamentary forces under William of Orange defeated largely French royalist troops under James II, thereby ending the Stuart monarchies’ use of arbitrary prerogative power, was the Bill of Rights 1689 (UK). Article 7 guaranteed the freedom of speech and immunity from court proceedings in relation to matters connected with "Parliamentary proceedings". In 2011, the United Kingdom Supreme Court was asked to rule on whether article 7 or the exclusive inherent jurisdiction of the UK Houses of Parliament prevented prosecution of Members for offences relating to misuse of parliamentary allowances. The Supreme Court concluded that while the allowances were ostensibly provided to allow members to carry out their electoral duties that was not a sufficient basis for denying the jurisdiction of the courts in relation to ordinary criminal offences. The prosecutions were therefore able to proceed.
The paper argues that the Supreme Court's decision resolved the possible clash of jurisdictions sensibly and pragmatically, but the Court’s reasoning is far from logically compelling or persuasive. It then notes that currently, similar prosecutions of Members of Parliament have been instituted in Australia. This prompts the question whether Chaytor is relevant in the Australian parliamentary context. Is the privilege and contempt "jurisdiction" of the Houses of Australian Parliaments necessarily exclusive in such matters? The paper concludes that no easy answer can be given as to whether Chaytor, or, at least, its reasoning, would be followed by Australian courts. Certainly, where an Australian House of Parliament declines to deal with a Member who has misused electoral funds privilege ought not to preclude a criminal prosecution. However, if the House were to institute its own contempt proceedings in relation to the Member, the situation may be far from certain.
Paper delivered at the Australian Institute of Administrative Law annual conference, Canberra, 19 July 2013
PETER JOHNSTON, University of Western Australia - Faculty of Law
Email: peter.johnston@uwa.edu.au
This paper in Part I explores the extent to which the Extradition Act 1988 (Cth) incorporates international human rights standards such as the fair trial standards under the International Covenant on Civil and Political Rights 1966 (ICCPR). It argues that that modification of the Act to accommodate conditions in bilateral treaties between Australia and other countries authorising the Attorney General to refuse to surrender a requested person where it would be 'unjust, oppressive or incompatible with humanitarian standards' imports into extradition decisions the fair trial standards in Article 14 of the ICCPR. Further, satisfaction of those fair trial standards arguably amount to a relevant consideration in determining the issue.
Part II by way of qualification questions the capacity of Australian courts to effectively exercise judicial review in respect of an extradition decision even if the foreign trial is likely to be inconsistent with Australian and international standards of fairness. The article concludes that due to limitations on and practical difficulties with the reviewability of the decision to surrender, regard for 'fair trial' standards may be rendered irrelevant due to a lack of any statutory or constitutional requirement for the Attorney to explain and justify a surrender decision. In the absence of any obligation to reveal the basis of the decision a person who faces extradition to a country that is unlikely to afford a fair trial will find it practically impossible to advance any objection founded on that possibility.
(2013) 2(3) International Journal for Crime, Justice and Social Democracy 55
HILDE TUBEX, University of Western Australia - Faculty of Law
Email: hilde.tubex@uwa.edu.au
In this article, I first examine the viability of comparative criminological research in a globalised world. Further, I test the validity of some global explanatory models against the local situation in countries that appear to resist the dominant trend, such as the Netherlands and Canada. I then zoom in even further to the intra‐national differences in some federal nations, such as Canada and Australia, where this situation is often linked to the overrepresentation of Indigenous people and the consequences of colonialism. Finally, I discuss the future of comparative criminological research.
BOOK: Mak on Judicial Decision-Making in a Globalised World
A Comparative Analysis of the Changing Practices of Western Highest Courts" is the new book by Elaine Mak.
Abstract:
Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.
Author:
Elaine Mak is an Associate Professor of Jurisprudence at the Erasmus University Rotterdam.
BOOK: Wu on Competition Laws, Globalization and Legal Pluralism
China's Experience" (Hart Publishing) is the new book of Qianlan Wu
Abstract:
Building upon a theoretical framework and empirical research, this book provides a thought-provoking analysis of the interests, strategies and challenges that China has faced in developing its Anti-Monopoly Law (AML) in the context of economic globalization.
The book comprises three main parts: Part I reviews the directions of convergence of global competition law; Part II provides a contextual analysis of China's market governance and its strategic interests; and Part III examines the latest enforcement of the Anti-Monopoly Law by focusing on the interactions between global actors and China, the relationships between Chinese competition and sectoral regulators, and the enforcement of global competition law norms in the Chinese context. This book is one of the first to provide a critical understanding of China's experience as a new competition regulator, set against the background of the plural sources of global competition laws.
Author:
Qianlan Wu is a Lecturer in Law and Senior Fellow of the China Policy Institute in the School of Contemporary Chinese Studies, University of Nottingham, UK. Dr Wu holds a PhD in Law from London School of Economics and Political Science and an LLM from the University of Edinburgh, UK.
BOOK: "Constitutional Review in Europe. A Comparative Analysis" by Maartje de Visser
A new book for Maartje de Visser : "Constitutional Review in Europe. A Comparative Analysis" (Hart Publishing)
Abstract:
Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'être, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom.
This book is intended for practitioners, academics and students with an interest in (European) constitutional law.
Author:
Maartje de Visser is an Assistant Professor of Law at the Singapore Management University. Prior to this, she held appointments at Maastricht University and Tilburg Law School in the Netherlands. This book is the culmination of research carried out between 2008 and 2013 when Maartje was a member of the European and National Constitutional Law (EuNaCon) Project, funded by the European Research Council (ERC).
BOOK: The Privilege Against Self-Incrimination and Criminal Justice by Andrew Choo
Andrew Choo is Professor of Law at City University London and a barrister at Matrix Chambers. The Privilege Against Self-Incrimination and Criminal Justice (Hart publishing) is his new book.
Abstract:
The privilege against self-incrimination is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. A logical implication of recognising a privilege against self-incrimination should be that a person is not compellable, on pain of a criminal sanction, to provide information that could reasonably lead to, or increase the likelihood of, her or his prosecution for a criminal offence. Yet there are statutory provisions in England and Wales making it a criminal offence not to provide particular information that, if provided, could be used in a subsequent prosecution of the person providing it. This book examines the operation of the privilege against self-incrimination in criminal proceedings in England and Wales, paying particular attention to the influence of the European Convention on Human Rights and the Human Rights Act 1998. Among the questions addressed are how the privilege might be justified, and whether its scope is clarified sufficiently in the relevant case law (does the privilege apply, for example, to pre-existing material?). Consideration is given where appropriate to the treatment of aspects of the privilege in Australia, Canada, India, New Zealand, the USA and elsewhere.
CALL FOR PAPERS: 3rd Global Conference: Sins, Vices and Virtues, Mansfield College
We are pleased to inform You about the 3rd Global Conference: Sins, Vices and Virtues that will take place on Friday 25th July - Sunday 27th July 2014
Mansfield College, Oxford, United Kingdom
Aim:
This interdisciplinary conference seeks a new, provocative, intercultural perspective on virtues and vices, sins and transgressions. Do we need a new list of moral commandments in the globalised, multicultural 21st century? Should they be religious or secular in nature? Who should they be aimed at? And, finally, is it possible, reaching back to the origins of humanity, to find common denominators between religious/spiritual definitions of vices and virtues of all belief systems?
We are inviting scholars, theologians, anthropologists, artists, teachers, psychologists, therapists, philosophers, teachers of ethics, etc. to present papers, reports, works of art, work-in-progress, workshops and pre-formed panels on issues related but not limited to the following themes:
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ARTICLE: Tomlins on Rejection and Recuperation of the Socio-Legal Enterprise
On SSNR the new article of Professor Christopher L. Tomlins from University of California, Irvine School of Law, "Law ‘And’, Law ‘In’, Law ‘As’: The Definition, Rejection and Recuperation of the Socio-Legal Enterprise"
The Abstract:
The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne’s La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally. This essay charts the particular trajectory followed by one of those perspectives, legal history, both at La Trobe and in the wider world. Simultaneously, it offers a short history of the Department itself: of its growth during the 1970s and 1980s; of its transformation into a law school during the 1990s; and of the struggles to maintain a place for the social in the legal that occurred during that transformation.
13 December 2013
ARTICLE: Vico Valentini on the relationship between Continental Criminal Law and European Human Rights Law
New article from Italy on SSRN might be of interest: Vico Valentini "Continental Criminal Law and European Human Rights: A Complicated Reltionship"
The abstract for Valentini' paper reads:
The relationship between Criminal Law and European Human Rights Law (EuHRL) is a complicated one. It is well-known that human rights and Criminal Law are deeply linked, for the simple reason that Criminal Justice System as a whole, namely substantive criminal law and the criminal process, "violates" human rights and ontologically affects basic freedoms: liberty and security, right to respect for private and family life, freedoms of expression and association, and so on; all rights protected by the European Convention of Human Right (ECHR) and the European Court of Strasbourg (ECtHR). Therefore, even if the Convention, compared to other international Covenants on human rights, is particularly 'poor' in criminal provisions , it is obvious that a 'judge of human rights' constantly deals with criminal law. All human beings have fundamental rights that should be protected by criminal law. The problem, however, is that within the criminal justice system, offender’s and victims’ human rights -- more often than not -- conflict with each other, and therefore must be balanced. This paper is aimed at answering the question on why does that relationship between domestic Criminal Law and EuHRL appear so complicated, and often unresolvable.
11 December 2013
COMPARATIVE LEGAL HISTORY (JOURNAL): CALL FOR PAPERS
The editors of Comparative Legal History (CLH), the official publication of the European Society for Comparative Legal History (ESCLH), invite contributions: articles, review articles and book reviews.ESCLH Members receive a free subscription!
is a peer-reviewed international and comparative review of law and history. Its articles explore both internal legal history (doctrinal and disciplinary developments in the law) and external legal history (legal ideas and institutions in wider contexts). Firmly rooted in the complexity of the various Western legal traditions worldwide, it also provides a forum for the investigation of other laws and law-like normative traditions around the globe. Scholarship on comparative and trans-national historiography, including trans-disciplinary approaches, is particularly welcome.
CLH has an exceptional staff and international board and is published by the forward-thinking, helpful folks at Hart Publishing.
The preface introducing the journal is available here; a sample article is available here.
Spread the word, become a member, and ask your library to stock us!!
- Seán Patrick Donlan, Editor
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