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Irish judges have tended to 'jealously guard' the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in this or that non‐judicial body – not the non‐judicial actors operating at the coalface. But in Zalewski v Workplace Relations Commission a majority of the Supreme Court has signaled a shift away from the rigid judicial 'centralism' that has prevailed for a century in the Irish legal system. The judges have departed from the formulaic approach to assessing what counts as judicial power, preferring instead a purposive approach more in line with comparator countries. They have revived a 'saver' provision of the Constitution (Article 37.1) expressly providing for 'the exercise of limited functions and powers of a judicial nature' by bodies other than courts. And they have indicated that courts and lawyers do not have a monopoly on authority in respect of public law norms. Things remain in flux, however, because there are conflicting messages in the majority judgment in respect of this more 'pluralist' conception of public law. [ABSTRACT FROM AUTHOR]

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called 'limitations', and elements of a rule that exist separately from it, called 'exceptions'. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights. [ABSTRACT FROM AUTHOR]

References to the European Convention on Human Rights by Israeli courts – the European Convention on Human Rights and the European Court of Human Rights as sources of comparative law – comparative law as technique of legitimation – content analysis of use by domestic courts of European Court of Human Rights jurisprudence – European Court of Human Rights jurisprudence and deference to state [ABSTRACT FROM AUTHOR]

It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court's subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in 'vulnerability backsliding'. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the 'special protection' to which they were previously afforded courtesy of M.S. S. [ABSTRACT FROM AUTHOR]

Knowledge implies the presence of a positive relation between a person and a fact. Factual ignorance, on the other hand, implies the absence of some positive relation between a person and a fact. The two most influential views of ignorance hold that what is lacking in cases of factual ignorance is knowledge or true belief, but these accounts fail to explain a number of basic facts about ignorance. In their place, we propose a novel and systematic defense of the view that factual ignorance is the absence of awareness, an account that both comes apart from the dominant views and overcomes their deficiencies. Given the important role that ignorance plays in moral and legal theory and our understanding of various epistemic injustices, a precise and theoretically unproblematic account of the nature of ignorance is important not only for normative epistemology, but also for law, ethics, and applied epistemology. [ABSTRACT FROM AUTHOR]

When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required. [ABSTRACT FROM AUTHOR]

Arbitration has become a popular method for resolving disputes in Jordan due to its flexibility, confidentiality, and efficiency. However, the validity of an arbitration award depends on several factors, including the adequacy of the award's reasoning. This case report from Jordan highlights the importance of adequate reasoning in arbitral awards and the consequences of its absence. The report analyzes a recent court ruling that annulled an arbitration award due to the lack of reasoning and examines the criteria that arbitration jurisprudence has set for appropriate reasoning. The report concludes that an arbitration award without adequate reasoning is tainted by a flaw where the reasoning behind a decision is not provided or is insufficient, leading to its invalidity/annulment. [ABSTRACT FROM AUTHOR]

Ijtihād is an important term of Islamic Shari'ah. Deducing practical rulings and duties from jurisprudential sources with specific conditions is called Ijtihād. Collective Ijtihād refers to a group of jurists using their abilities to search for a Shariah ruling through inference and then reaching a consensus on a Shariah ruling on a problem after mutual consultation is called collective ijtihad. He handled thought and opened new doors of ijtihad with his knowledge and grace and introduced the Muslim Ummah to a new dimension of thought. During the Khilaphat e Rashidah, the jurists of the Companions of the Prophet (peace be upon him) spread to the major Islamic cities and established academic councils and educational circles there. The number of followers who benefited from these Companions was very large and these followers took over the post of teaching and teaching in these cities after the death of the Companions. Until the era of Hazrat Abu Bakr and Hazrat Umar, the institution of collective and advisory ijtihād continued to develop well. But during the era of Hazrat Uthmān and Hazrat Ali (RA), due to some political and intellectual differences and mutual wars and conflicts, the community of Muslims became a victim of chaos, which had an impact on various sub- institutions of the Islamic State. Therefore, the institution of collective ijtihad, which we see at its peak during the time of Hazrat Umar, began to decline in the last part of the Caliphate during the reign of Hazrat Usman Ghani. By the time of the Tabi'in, mutual conflicts had come under control to some extent, but the foundations of intellectual and political differences had become very deep, so many new differences had also emerged. [ABSTRACT FROM AUTHOR]

In August 2022, the Association of Social Work Boards released a long called for pass rate analysis that revealed significant disparities. While many states look to cease the requirement of the Bachelors, Masters, and Advanced Generalist exams in their licensure process, status quo bias leads to hesitancy to remove the requirement of the Clinical exam. A critical review was undertaken to identify possible alternatives to the current multiple-choice competency-based exam which yielded three assessment formats (oral exams, portfolios, and performance assessment/simulations) and two alternatives (jurisprudence exams and provisional licensure). Informed by an Afrocentric lens, we undertook a social and racial policy analysis to examine alternative pathways for licensure from the perspective of a social work board member. We centered our analysis on the impacts on (1) Black social workers, who currently have the highest pass-rate disparities; (2) social workers whose primary language is not English, and (3) social workers with disabilities who have anecdotally reported difficulty with getting testing accommodations. We rated each alternative on four social equity analysis criteria of procedural fairness, access, quality, and outcomes. These ratings were computed into an overall rating for each alternative from equitable to inequitable. We found jurisprudence exams and provisional licensure have the best possibility of being equitable pathways to licensure, with potential impacts on the regulation of supervision and continuing education. Anti-racism and social justice as praxis require social work as a profession to divest from competency-based testing to eliminate racism in our own professional policies. [ABSTRACT FROM AUTHOR]

Background: Physical restraint (PR) is used to ensure the safety of care recipients. However, this causes an ethical dilemma between the autonomy and dignity of the recipients and the provision of effective treatment by health workers. This study aimed to analyze legal and ethical situations related to the use of PR using written judgments. Methods: This study uses a qualitative retrospective design. Qualitative content analysis was performed on South Korean written judgments. A total of 38 cases from 2015 to 2021 were categorized. The types of court decisions and ethical dilemma situations were examined according to the four principles of bioethics, and the courts' judgments were compared. Results: Written judgments related to PR were classified into three types according to the appropriateness of PR use, the presence or absence of duty of care, and legal negligence. Ethical dilemmas were categorized into three situations depending on whether the four principles of bioethics were followed. The courts' decisions regarding the ethical dilemmas differed depending on the situational factors before and after the use of PR and the conflicting conditions of the ethical principles. Conclusions: Health workers should consider legal and ethical requirements when determining whether to use PR to provide the care recipient with the necessary treatment. [ABSTRACT FROM AUTHOR]

The interaction of divine decree among His creation gives rise to states, and groups emerge, defining the cultural features of each nation. The knights of the word, the creators of innovative thought shape these features. The cultural characteristics persist through them as the ages unfold, generation after generation. You see them in every field, affirming their cultural legitimacy and stability across the ages. This necessitates researchers to examine the works of these knights, highlighting their importance and profound impact. The significance of the study lies in focusing on a renewing personality that traversed various fields. Its owner is firm in his opinion, and clear in his presentation. Some consider him the foremost in his field for the last century, while others oppose him and challenge his ideas. The crux of the issue lies in the conflicting opinions and varying acceptance. The Sheikh follows a middle path between two extremes. The first is the submissive model of Muslims without regard for their dignity, and the second is the extremist approach that disregards the suffering of Muslims, pays no attention to consequences, and is only concerned with opposing everyone and waging war against all. This approach has caught the researcher's attention, prompting her to delve into it. She tackles it from various angles, one of which will be discussed in the following paragraphs. The researcher seeks to address the research topic (Civilization and its Components in the Thought of Al-Qaradawi) from two perspectives. The first is to identify and analyze the theory of renewal and civilization in Al-Qaradawi's jurisprudence, and the second is to clarify the renewal aspects and components in Al-Qaradawi's jurisprudence, using the descriptiveanalytical method based on describing the research problem, segmenting and analyzing it. The researcher arrives at several results, including the categorization of the guidelines adopted by Al-Qaradawi to preserve Islamic civilization and its stability in the face of changing circumstances while embracing the world, based on the solid religious principles brought by the Prophet Muhammad, peace be upon him. [ABSTRACT FROM AUTHOR]

This discussion includes the quality of removing a tyrannical or corrupt ruler in peaceful ways, such as peaceful demonstrations and sit-ins. This discussion for the reader explains how to remove a tyrannical or corrupt ruler as the right of the ummah through new means such as: peaceful demonstrations, and after removing the tyrannical or corrupt ruler, it gives them the right to choose a ruler to lead them according to Islamic law. to do And the basic purpose of this discussion of Sharia rulings, which limits the ruling system in Islam, also reveals to the reader how the ruler takes authority, and the responsibility arising from this authority, and states: that the people have the power, and they have the right to act like They choose a person as their ruler, whenever this ruler oppresses them; In the first step, it is necessary to find him unpleasant in the heart and deny him in the tongue, but if his cruelty continues, it is necessary to remove him from the government through peaceful means such as demonstrations and gatherings, this is what we have witnessed. We are that, and it has happened in our time, sometimes people revolted against the cruel rulers, and boldly revealed their will, causing the cruel rulers to move away from their seats, and the nations spread the fragrance of freedom, and they deserve the same honor. And they were honored that dear Islam had brought them to choose a distinguished person who would apply the commands of Allah Almighty to them correctly. [ABSTRACT FROM AUTHOR]

Augustine is typically interpreted as having believed that temporal laws cannot help people become virtuous and thus are not deficient for failing to do so. In this respect, he is seen as out of step with much of ancient political philosophy and a precursor to modern liberal legal theory. However, examining Augustine's analyses of two temporal legal systems – Roman law and Mosaic law – reveals this interpretation to be false. Augustine believed that laws should help their followers become virtuous and offered a mechanism by which this happens. The standard interpretation has overlooked these concrete analyses in favor of Augustine's programmatic claims about law. This paper therefore not only corrects a misreading and proposes a novel reading; it also suggests an alternative method for studying ancient legal thought. [ABSTRACT FROM AUTHOR]

A contradiction about the role of the President has emerged between the Roberts Court's Article II jurisprudence and its major questions doctrine (MQD) jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the President is the "most democratic and politically accountable official in Government" because the President is "directly accountable to the people through regular elections," an audacious new interpretation of Article II of the U.S. Constitution. Tight presidential control of agency officials, the Roberts Court argues, lends democratic legitimacy to the administrative state. We identify these twin arguments about the "directly accountable president" and the "chain of dependence" as the foundation of "Roberts Court presidentialism.". Meanwhile, each of the major questions policies over the past three decades is the product of the "directly accountable president" and the "chain of dependence" in action: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Roberts Court has almost always ignored the President's role in major questions policies and instead blamed the agency for overstepping its delegated power. The erasure of presidential involvement serves the Court's narrative of blaming "unaccountable bureaucrats," rather than either granting the policy more democratic legitimacy for its presidential backing or holding the President accountable for overstepping the separation of powers. The erasure suggests that the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: the Court relies on a theory of presidential accountability, but then retreats from holding presidents accountable; it expands the power of unaccountable judges based on a narrative of "unaccountable bureaucrats.". The rule of law requires consistent reasoning. We suggest doctrinal opportunities to resolve the contradictions between the Roberts Court's Article II presiden-tialism and its major questions' erasures of presidents, including: appointment and removal doctrine; the contours of the MQD and its potential extension to statutory delegations of authority to the President; the future of Chevron deference; and the application of the non-delegation doctrine. The Roberts Court can untangle the "chain of dependence" with more consistency in either direction, but perhaps the most important lessons from these contradictions are recognizing the value of judicial restraint and acknowledging the costs of direct presidential power over agencies, not just the benefits. [ABSTRACT FROM AUTHOR]

This Note explores the issue of access to adequate education by examining the liberty rights of students at chronically underperforming public schools. The issue was previously considered by the Sixth Circuit Court of Appeals in 2020, in Gary B. v. Whitmer. After delineating positive and negative rights and addressing the dearth of positive rights in the U.S. Constitution, the Note turns to the explicit and implicit adoption of the negative rights framework within federal education jurisprudence, as well as case law on arbitrary confinement. The Note then considers the factual allegations and liberty-based legal argument advanced by the Gary B. plaintiffs: schools that fail to provide a basic minimum level of education are schools in name only. Compulsory attendance laws and truancy policies, in this 'warehousing' context, arbitrarily confine students, infringing upon the right to personal liberty guaranteed by the Due Process Clause. In order to remedy this constitutional violation, plaintiffs argued, the State must provide students with some basic level of educational attainment. This Note argues that the Gary B. plaintiffs strategically sought to mask the goal of establishing a positive right to education in the language and dress of negative rights. Such a strategy exemplifies the weak philosophical and logical underpinnings of the broader negative/positive rights dichotomy. Although this negative rights argument may seem appealing--especially given the Court's rejection of a positive right to education promulgated in San Antonio Independent School District v. Rodriguez in 1973--whether future litigants find success with this approach may require the Court to reconsider or ultimately abandon the negative/positive rights dichotomy. [ABSTRACT FROM AUTHOR]

Public approval of the United States Supreme Court has fallen to record lows, driven by Americans who object to the Roberts Court's conservative jurisprudence. This Article explores how incisive, bold, and creative dissents aimed at social mobilization can bolster ordinary citizens who feel estranged from this Court. Using intellectual history tools, the Article shows that Justice Kagan's 2018 dissent in Janus v. AFSCME created a dialogic relationship between the Supreme Court and labor activists and liberal academics. The dissent amplified rhetoric pioneered by union leaders and scholars, disseminating it to a mass audience. After Janus, the labor movement and its allies deployed the dissent in political organizing, litigation, and storytelling. Overall, the dissent became a mobilizing force that channeled constitutional alienation into constitutional construction. The Article also contextualizes the Janus dissent among other demosprudential dissents, with a focus on those of Justices Scalia, Ginsburg, and Sotomayor. The Article challenges the juricentric and prospective lens that scholars use to evaluate Supreme Court dissents. The Janus dissent embodies a genre of dissent aimed at movements and contemporary constitutional meaning making, not just influencing future courts. The Article also defends movement dissenting against institutionalist critiques. By refusing to accept the finality of the Court's decisions, demosprudential dissents create discursive space for popular resistance and reimagination that allows disempowered citizens to feel constitutional ownership. Movement dissents can moderate and channel anger at constitutional decisions, repairing faith in the process of constitutional explication in the long run. [ABSTRACT FROM AUTHOR]

Much of modern copyright law is cloaked in the language of neutrality. No matter how successful or popular, all copyrighted works are shielded by the same rights. In theory, our system neither celebrates nor condemns commercial success. All works are created equal under the law. This standard account is radically askew. In reality, questions of commercial success pervade virtually every aspect of copyright doctrine. Courts consider whether the work is commercially successful in cases spanning a range of doctrinal contexts, including the scope of protectable subject matter, the standards of liability, the limits of fair use, and the range of available remedies. Commercial success looms over all of copyright law--and its dominion is swelling. This Article brings together doctrine, history, and theory to analyze this increasingly important phenomenon. It canvasses a variety of seemingly disparate doctrines that tap into notions of success in both direct and subtle ways. It grapples with the practical and normative implications of our success-driven system and asks whether and under what conditions courts should take account of the work's success. After demonstrating that questions of commercial success scaffold every major copyright doctrine, I argue that these rich patterns resist the standard heuristics used to conceptualize our copyright regime as a uniform and neutral body of law. In the end, this Article reveals that success plays a surprisingly important and complex role in copyright jurisprudence, implicating profound questions about the relationship between markets and incentives, the structure of copyright doctrine, and the proper scope of copyright law. [ABSTRACT FROM AUTHOR]

There is a debate in World Trade Organization (WTO) law about whether the right to regulate for public interest purposes is conditioned on a requirement to do so consistently. While the early Appellate Body (AB) jurisprudence eschewed consistency testing under the formal legal test, it refrained from explicitly rejecting the practice. Subsequent AB rulings have seemingly adopted a narrow type of consistency testing through the doctrine of 'legitimate regulatory distinctions'. A case could also be made that WTO tribunals sometimes embrace consistency testing under Article XX of the General Agreement on Tariffs and Trade, although this is not explicitly acknowledged or universally recognized. In Seals , Canada explicitly attacked the European Union's (EU) seal products ban for its lack of consistency with the EU's broader animal welfare settings. This dispute provided an opportunity – indeed, an obligation – for the AB to establish a clear doctrine on consistency testing. This article argues that the AB shirked its duty through reasoning techniques that avoided meaningful engagement with the substance of Canada's argument. The AB did not truly reject consistency testing, but its precise views are hard to glean due to reasoning that is opaque, confused and even contradictory. This article argues that there is a compelling case for consistency testing, at least in certain 'public morals' disputes, and that the AB should provide clearer guidance. [ABSTRACT FROM AUTHOR]

This article offers a critical feminist reading of the home birth jurisprudence of the European Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court in its legal reasoning and knowledge production. Since its first decision on the permissibility of a blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court has given five judgments on the matter, including a Grand Chamber decision in the case of Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis. In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias in knowledge formation and (re)production at the Court in addressing cases of home birth. The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping as well as to literature on the Court's gender sensitivity. [ABSTRACT FROM AUTHOR]

At the turn of the seventeenth century, jurists such as Alberico Gentili (1552–1608) and Hugo Grotius (1583–1645), began to advance a novel account of the law of nations (ius gentium) as a law that binds a world of sovereign states. That they would produce such a theory is surprising, however, considering that sovereign states were neither the dominant form of political organization at the time, nor did conventional medieval jurisprudence treat them as the normative standard. This article traces this evolution to a broader transformation in legal interpretation. In an effort to put Roman law on a more rational foundation, jurists such as François Connan (1508–51) and Hugues Doneau (1527–91) connected the origin of law to the unfolding of a certain account of human sociability, with the result that a conception of the state as an autonomous body acquired a normative status within their version of the global legal order. It then argues that we should see Gentili's work on the ius gentium as part of this tradition. In so doing, the article demonstrates how the innovations of a particular school of legal interpretation, by combining Roman law with a distinctive social theory, contributed to making the sovereign state the legal norm. [ABSTRACT FROM AUTHOR]

Federal and state actors sometimes condition access to benefits that they are constitutionally permitted but not obligated to provide on the willingness of recipients to engage in certain behavior that governments cannot compel directly. Current judicial doctrine treats such conditional offers as sometimes permitted and sometimes prohibited. But existing case law addressing such "unconstitutional conditions" challenges lacks a coherent account of when and why such conditional offers violate the Constitution. A wide-ranging academic debate has swirled around the doctrine, with commentators proposing various reforms to bring order to the courts' confused and confusing jurisprudence. A curious feature of this debate has been the relative inattention most participants have given to what the Constitution itself has to say on the subject. The comparative paucity of text-centered arguments in the unconstitutional conditions literature is likely attributable to a perception that the text has little or nothing to say on the issue. This Article challenges that assumption by demonstrating how the text can provide important insights regarding the permissible limits of conditional governmental offers. This analysis suggests that certain aspects of current judicial doctrine, including the presumed waivability of most significant individual rights guarantees and the courts' tendency to focus on the "germaneness" of particular conditions to the government's regulatory objectives as a measure of constitutionality, are likely consistent with a proper interpretation of the constitutional text. But not every feature of current unconstitutional conditions jurisprudence is similarly textually defensible. In particular, this Article contends that efforts to extend the unconstitutional conditions framework developed in cases involving individual rights to the much different context of state-federal bargaining ignores important textual distinctions between the Constitution's individual rights guarantees and the structural limitations that allocate authority between the states and the federal government. And while the Constitution almost certainly places some limits on the permissible scope of state-federal bargaining, certain aspects of the Supreme Court's existing federalism jurisprudence--including the presumed invalidity of federal offers that "compel" or "coerce" state decision-making--lack any firm grounding in the constitutional text. [ABSTRACT FROM AUTHOR]

Research objectives: This study aims to: • Studying the interaction of Islamic thought with unprecedented incidences, past and present, as dictated by the realistic moment when this virus entered the life of humanity and the umma without warning. • Addressing the historical and current jurisprudence of dealing with this pandemic, by seeking to monitor the fatwas of some scholars, institutions and individuals. Research problem: The problem of this research deals with the following question: To what extent has the Corona pandemic revealed a new awareness of a current discourse that highlights the ability of Islamic thought to dismantle emerging phenomena, re-set them Islamically with an appropriate method and realize the anticipated objectives of this process? Methodology: This study adopted two overlapping approaches, the historical and the analytical, in order to track the structure of the subject and its intertwining. Results: This study confirmed the vitality and effectiveness of Islamic thought and its ability to develop, participate and cooperate in order to confront and treat human problems. [ABSTRACT FROM AUTHOR]

Rudolf Smend's constitutional theory, developed in the context of the Weimar Republic crisis, sought to address and resolve the challenges of that time. The integration concept he articulated in his theory assumes the unity of the political community around a set of shared values, embraced by individuals from a conviction of their validity. The underlying objective of this approach was to find a pathway out of the political conflicts that hindered the stabilization of the German state. However, Smend's theory surpassed its initial purpose, leaving behind interesting points of reflection that can now serve as valuable tools for interpreting contemporary reality. The article aims to identify in the jurisprudence of the Spanish Constitutional Court some of Smend's ideas particularly those related to the process of material integration facilitated by national symbols, language, rights, and the notion of a community bound by shared values. The ultimate goal is to assess the strength of this jurisprudence and consider whether it allows us to speak of its quality as a tool for integration". [ABSTRACT FROM AUTHOR]

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children's upbringing with few exceptions. The principle governing this norm is that parents know best and will use their better knowledge to protect their children's welfare. The COVID-19 pandemic, public school rules, and children's privacy laws offer modern examples of regulations in which the interests of parents and children may not align. Minors may want access to vaccines, despite a parent's refusal to sign a consent form. Minors may want to talk to their teachers about their sexual orientation, despite laws limiting discussions about gender and sexuality in public schools. Minors may want to privately explore the internet, despite young people having no legally recognized expectation of privacy from their parents. This Article offers a comprehensive legal analysis of how parent, child, and state rights collide in the modern era. This Article examines how COVID-19 vaccine decisions, recent parental rights legislation, and attention on children's online safety have illuminated young people's lack of independent rights. It argues that young people have a right to grow and thrive as individuals, even when doing so may exist outside of the shade of their parents' long-held values and beliefs. [ABSTRACT FROM AUTHOR]

Problem-Solving Courts ("PSC") are one of the prominent developments in the criminal justice system in the last three decades. They are an interdisciplinary rehabilitative initiative designed to provide a profound solution to crime. This combination of therapeutic knowledge in criminal proceedings has been shown to radically change legal discretion, creating a "theralegal" approach, which occasionally holds therapeutic considerations above legal ones, forming a new theoretical outlook termed as the Radical Therapeutic Jurisprudence ("RTJ"). Drawing from RTJ theoretical thinking, this Article will discuss whether PSCs offer a profound solution to crime, or, if a radical approach is required to prevent offering more than a Band-Aid fix. [ABSTRACT FROM AUTHOR]

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women's Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court's evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court's outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning Roe v. Wade and what losing abortion access meant for millions of people, particularly women. Their stories mirrored those shared by dozens of women in the amici briefs filed in support of Jackson Women's Health Organization. But, unlike previous abortion-related decisions, these stories were completely ignored by the Court in its decision to overturn Roe v. Wade. By ignoring the stories of women, the Court failed to understand what "liberty" means to women. This Article discusses how the Dobbs Court failed to consider the lived experiences of women--not only those women who seek or have had abortions, and ultimately decided that the liberty and freedom protected by the Fourteenth Amendment of our Constitution do not include what women need to be autonomous and free. By fully constricting the right to abortion, a right which was already limited to those who lived in certain states and to those who could afford the procedure, the Court broke with its own tradition. By ignoring the lived experiences of those most affected by the substantive right at issue, the Court broke with its practice of considering the content and meaning of liberty of those most affected by the government regulation. Rather, as this Article illuminates, the Court's disregard, intentional or not, of these women's stories in deciding Dobbs shows that what women need to be free is no longer protected by the Fourteenth Amendment's Due Process Clause. Moreover, this Article concludes that the diminution of women's constitutional rights in this context, reduces women to their reproductive capacities and to state-sanctioned gender roles, and ultimately it consigns them to a form of second-class citizenship. [ABSTRACT FROM AUTHOR]

Congress recently passed the Respect for Marriage Act to assure that certain marriages would remain valid even if the Supreme Court were to overrule past precedent and hold that the Constitution does not protect the right to marry a partner of the same sex or of a different race. However, the Act, as written, may not offer protection for certain same-sex or interracial marriages and may open the door to the federal protection of plural marriages, congressional intent notwithstanding, because of the Court's increasingly robust free exercise jurisprudence. [ABSTRACT FROM AUTHOR]

In the 1922 case Pennsylvania Coal v. Mahon, Justice Holmes proclaimed that regulations going "too far" constituted takings under the Fifth Amendment. But over a century later, courts rarely find a land-use restriction they think fits this description. This is largely due to Penn Central Transportation Company v. City of New York, the Supreme Court's "landmark case about landmarks" establishing the judiciary's highly permissive stance toward historic preservation laws. Though initially employed to save beloved structures from destruction, preservation ordinances have proliferated to prevent the redevelopment of tens of thousands of buildings, worsening the country's housing shortage. Fortunately, there are signs that the Roberts Court is open to correcting course. In the 2021 case Cedar Point Nursery v. Hassid, the Court reinterpreted two well-established precedents governing takings challenges to favor property owners over regulators. Though so far cabined to "physical" takings, Cedar Point may signal the Court's appetite for takings challenges to historic preservation laws as well. Part I of this Note discusses the history of preservation in the United States and the Supreme Court's deferential takings jurisprudence regarding such regulations. Part II explores the costs of this deference, both to individual property owners and society at large. Part III analyzes Cedar Point in light of the Court's underused but still-extant line of property-protecting precedents to suggest that the Court's deference to historic preservation laws may soon change. Part IV then offers several avenues that courts could take in the wake of Cedar Point to declare abusive historic preservation practices as takings necessitating compensation, and thereby clarify Takings Clause doctrine in the process. [ABSTRACT FROM AUTHOR]

This Note seeks to contribute to scholarship on the growing tension between secularism and religion in the United States by considering the claim, made by some commentators, that secular liberalism should be considered a religion for the purposes of the First Amendment. Part I explains the historical background of the First Amendment's Religion Clauses and surveys what little jurisprudence there is from the U.S. Supreme Court and lower courts regarding secular liberalism's potential status as a religion. Part II lays out the landscape of current scholarship on the status of secularism, secular liberalism, and adjacent nontheistic belief systems as religions, including: (1) arguments made by some conservative Christians who maintain that secular liberalism is a religion; (2) related but distinct arguments made by scholars who argue that non-theistic beliefs should be accorded respect equal to that granted religions under the First Amendment; and (3) arguments from scholars who believe religion should continue to be treated as "special" and separate from non-religious, secular belief systems. Part III argues that, even if secular liberalism could be defined as a religion, it should not be, for two reasons. First, the proposition that secular liberalism is a religion is conceptually incoherent because it conflates strong moral conviction with religious belief. Advocates of this position misconstrue passion as transcendent commitment and treat "religion" as a functionalist label. Second, if accepted as true, this proposition would be problematic for legal theory and for the Constitution. This Note argues that the answer to the question of whether secular liberalism is a religion implicates the legitimacy of our government, because without a neutral principle of governance a democracy cannot justify its use of force against its citizens. [ABSTRACT FROM AUTHOR]

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment's Self-Incrimination and Due Process Clauses. Although the Supreme Court's self-incrimination cases have examined the privilege's historical roots in British and early American common law, the Court's jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors. The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation's Second Founding following the Civil War. Enslaved persons' understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine firstperson slave narratives in order to draw upon enslaved persons' experiences for insights into self-incrimination doctrine. This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court's self-incrimination jurisprudence. The Article next discusses the nation's Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons' views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons' own first-person narratives. This evidence reveals that the Supreme Court's cramped and formalistic approach to selfincrimination is inconsistent with the post-Civil War Constitution's purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination. [ABSTRACT FROM AUTHOR]

The article "From Jurisprudence in Criminal Cases" deals with the requirements for the legal prognosis according to § 56 of the German Criminal Code. It is stated that in the case of a defendant who has already received a suspended sentence, it can generally not be expected that they will behave differently if they become recidivist. Another probationary period is only possible for heavily preconvicted offenders and under exceptional circumstances. The appellate judgment in the present case does not meet these requirements. The article also addresses the new regulation of § 64 of the German Criminal Code, where the requirements for placement in a therapeutic institution have not been sufficiently substantiated. Various legal aspects related to the amendment of § 64 of the German Criminal Code and the specificity of a reporting order within the framework of supervision are discussed. The Higher Regional Court of Karlsruhe agrees with the opinion that an order is sufficiently specific if a minimum number and an upper limit for the appointments are determined. [Extracted from the article]

The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking. [ABSTRACT FROM AUTHOR]

This article scrutinises the jurisprudence of the European Court of Human Rights and the Hong Kong Court of Final Appeal concerning same-sex marriage and the legal acknowledgment of same-sex relationships, specifically focusing on the recent decisions in Fedotova & Ors v Russia and Sham Tsz Kit (岑子杰) v Secretary for Justice. The authors critically analyse the courts' interpretation of marriage, privacy, and equality. They conclude that whilst both courts took a step forward by recognising same-sex partnerships, they also took two steps back by foreclosing any future attempts to litigate for universal marriage rights via the application of the equality principle. The authors draw on a variety of judgments from courts in Nepal, Taiwan, the United States, Latin America, and Europe to support their arguments. The article concludes by posing the question of how universal human rights can be maintained in the face of these challenges. [ABSTRACT FROM AUTHOR]

Theorists of legal interpretation often argue that their theory describes or fits well with legal practice without using empirical evidence to support such claims. In this article, we provide a proof of concept for how such claims can be established using Critical Discourse Analysis – a qualitative method of coding texts – as applied to High Court decisions. Particularly, we assess whether a slightly modified version of Philip Bobbitt’s theory of constitutional modalities can be used to describe Australian constitutional interpretation working backwards from the start date of the project in August 2021. We find that Bobbitt’s modalities were used by High Court judges in the period studied. Predominantly, the High Court used the doctrinal modality supplemented strongly by textual and structural modalities. The ubiquitous use of doctrine to interpret the Australian Constitution in the period studied suggests a need for a greater understanding of doctrine as an interpretive modality. [ABSTRACT FROM AUTHOR]

To receive intellectual property protection under the International Convention for the Protection of New Varieties of Plants, new plant varieties must pass a Distinctness, Uniformity and Stability (‘DUS’) trial proving that they are distinct from existing varieties, uniform in their relevant characteristics, and stable across generations. This article examines how this scientific-legal judgement process occurs in Australia, contrasting its relatively decentralised approach with the centralised assessment systems used in most European countries. I argue that the pursuit of objective judgement is the central tenet of the plant breeder’s rights systems, and that calls to increase objectivity with technological changes can obscure embedded value judgement and power relations. The DUS criteria serve to reinforce this objectivity, and to discipline mutable and heterogenous plant life into a form which approximates a consistent and identifiable object – a necessity for the operation of intellectual property law, despite consequences for agricultural genetic diversity and resilience. [ABSTRACT FROM AUTHOR]

Despite having a central constitutional function of determining the validity of legislation, the High Court of Australia adopts a variety of principles and doctrines that can result in it declining to resolve constitutional questions. One way this can occur is by only deciding constitutional questions when they are ‘necessary to do justice in the case and to determine the rights of parties’. Although this practice has been followed since the Court’s earliest days, it was only recently labelled the ‘prudential approach’ to resolving constitutional questions by the plurality in Mineralogy Pty Ltd v Western Australia. This article seeks to identify the different ways in which the prudential approach can be followed and why the High Court adopts the practice. It will then turn to analyse the High Court’s adherence to the practice during the tenure of Kiefel CJ, arguing that the Court’s application would benefit from greater clarity and consistency. [ABSTRACT FROM AUTHOR]

The article explores the "injurer-innovator problem," where patent and tort law create conflicting incentives for innovators. It argues that tort law's duty to invest in care can discourage innovation, as the cost of self-implementation may outweigh patent revenues. It propose "anti-patents," a legal concept granting immunity from tort law's heightened standard of care while retaining patent protection.

The concept-rich international legal space has expanded in the past few years by incorporating the notion that there is a distinct form of international law possessing authoritarian traits. This notion stands in contrast with the time-honored mainstream variant which is assumed to have liberal-democratic roots and dispositions. A product of the current decade, authoritarian international law has nevertheless left a palpable mark on international legal theory and is believed to have materially reshaped the international legal landscape. The primary aim of this Article is to summarize the achievements made in analyzing the dimensions of this new concept and its considerable practical implications, with a view to suggesting some additional lines of inquiry. [ABSTRACT FROM AUTHOR]

It is a volatile time in the jurisprudence of the First Amendment's Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court's definition of religion, the weaker its regime of religious exemptions. The reverse has also been true: when the Court has moved toward more robust accommodations, it has simultaneously narrowed its definition of religion. This Article traces this pattern across time in the United States, as well as in several foreign jurisdictions. The upshot is that, over time and across jurisdictions, the antecedent question of religion's definition is inescapably linked to the substantive strength of protections for religious exercise. In a time of rapid doctrinal flux, courts and commentators alike should attend more consciously to this strong link. [ABSTRACT FROM AUTHOR]

This paper analyzes the uses in legal language of the terms allegality or allegal. Recently these terms have been incorporated into the Dictionary of The Royal Academic Spanish Academy of Language, however, there is a use of them in doctrinal, jurisprudential and even legal language. Firstly, the very definition provided by the Dictionary and its confusing or contradictory nature is studied. Next, the relationship of legality with the principle of permission is raised, that is, if in any case the absence of express regulation of a matter implies that there are a series of behaviors that are allowed by the legal system. On the other hand, it is evaluated if the allegality, the lack of a legal norm that regulates an area of social life, means that we are facing a legal gap or before spaces that cannot and should not be regulated by law. That is to say, if the behaviors not regulated by the law necessarily have to be resolved through the integration of the law or if they are aspects that do not belong to the legal sphere. We also study the fact that the allegal may represent a problem not so much of integration of legal norms but of interpretation of law, in which the attribution of meaning to normative statements may imply a lack of legal response. An analysis is made, below, of the use of terms «allegal» and «allegality» in the legal, jurisprudential and doctrinal discourse. From the legislative point of view, there are few cases in which the normative statements contain the terms allegal or allegality. Very exceptionally, in norms with a lower rank, and in general in the Statement of Reasons, these expressions are used. These terms are used in this speech as a synonymous with illegal. In the jurisprudential discourse we find that our courts make more frequent use of the terms allegal or allegality, even long before its incorporation into the Dictionary of the Royal Spanish Academy of Language. In this language, a plurality of meanings is given to the these statements, perhaps predominating their identification with the assumptions of illegality, the allegal is illegal. However, in other cases these expressions are used to refer to a legal situation with legal significance and the judge integrates the law to provide a legal response. The gaps in the law are resolved through the self-integration mechanisms provided by the legal system itself. But there are also cases in which legality is understood to be those cases that have no legal significance and therefore are unrelated to the judicial decision. The judicial discourse refers to these cases as cases that do not have to be regulated by the legal norm. As for the doctrinal language, it is necessary to point out that terms allegality o allegal also have a plurivocal character, probably having a greater weight than that in which the regulation of a matter is requested, de lege ferenda, citing reasons that would improve insufficient regulation. In most cases, the regulation and prohibition of certain behaviors is postulated. In this sense, the authors allude to the allegal as a pathology of the legal system that must be remedied by the legislator. Notwithstanding this, there are also cases in which conducts contrary to law and, therefore, punishable are indentified with illegality. This plurality of meanings and their redundant nature in some cases mean that we must reconsider the incorporation of these terms into legal language. From our point o view, they do not provide security and create confusion in different legal discourses. [ABSTRACT FROM AUTHOR]

The political character of law in general, basically consisting of its final orientation to the political common good, has been recognized by authoritative doctrine in the field of classical realism. Notwithstanding this, the pursuit of the common political good through law has been predominantly admitted at the level of legislative activity (mediate efficient cause of law) with some degree of oblivion regarding its presence in concrete justice and -particularly- in the judicial concrete justice (immediate efficient cause of law). Faced with the anomalous practices known as the «politicization of law» or the «judicialization of politics», it is pertinent to understand the scope and sense of a correctly conceived political character of judicial sentences. [ABSTRACT FROM AUTHOR]

This article examines the most prominent features of Javier Hervada's scientific personality, as foundation for the understanding of its potentiality of expansion and development. It deals with questions such as what kind of thinker was Javier Hervada, what was the academic context of his work, what where specific problems that he had to address. It also considers Hervada's intellectual influences, his relationship with Thomistic tradition and the XX's century legal theory and science, and the nature of his attempt to introduce the classical legal philosophy into a totally new epistemological field as the modern jurisprudence. The article also postulates a distinction between the different epistemological levels in which Hervada's contributions are made. For example, it distinguishes the philosophical conceptualizations from the ones that corresponds more accurately to the scope of the Legal theory and Legal science. This distinction, allows to formulate a criterion to evaluate the impact of the reformulation of certain ius-philosophical elements in the scope of legal theory and science. Consequently, the article, gives some insights on the question of the continuity and rupture between «the fist» and «the second» Hervada. Finally, the article, states that as the topics and accents of Hervada's work respond, at least partially, to the problems of his time, the hervadian legacy, is to be continued in a way that can also answer to the problems of our own ius-philosophical and jurisprudential context. To accomplish this challenge, the text hints some possible routes of expansion and development of the hervadian legacy. [ABSTRACT FROM AUTHOR]

This paper analyzes the protection of victims of forced migration from the perspective of the philosophy of law and international human rights law. On the one hand, it focuses on the origin and philosophical-legal foundations of human dignity and its practical requirements as a legal principle. Understood in this sense, dignity is considered as the foundation of the most basic human rights; and implies universally enforceable legal prerogatives in favor of all persons, by the mere fact of their human nature; and without considering exogenous factors, such as origin or nationality. Within this context, fundamental notions such as ius communcationis, or the right of sociability of human beings and hospitality, which entail a common use of the universal land within the comunitas orbis or universal community, are recovered. It is concluded that, despite the efforts and the many legal instruments that exist in this regard, and which are based on the dignity of the individual, the protection afforded to them in practice is not sufficient. The reason for this lies in several factors, in particular, in the fact that although human dignity can be considered as the basis for the recognition of human rights on equal terms, its scope is limited to the most fundamental rights, such as life or the prohibition of torture and inhuman and degrading treatment, but does not imply more specific rights such as freedom of movement or residence. [ABSTRACT FROM AUTHOR]

The historical moment we are living through is characterized, among other issues, by a surprising acceleration of dynamics that are self-destructive to peaceful coexistence. Humanity is called upon to face great challenges that, probably and naively, were considered to have been overcome. In this context, it becomes once again urgent to reflect on the crucial function of the legal system and, in more general terms, on the basis and requirement of law. Starting from the conceptions of two illustrious thinkers -Arthur Kaufmann and Hans Jonas-we shall propose a practical and concrete philosophical itinerary which aims to restore the due importance of certain characteristics of human rights for a humanity in crisis. [ABSTRACT FROM AUTHOR]