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In his Ethics of 1901, Wilhelm Herrmann describes the way from a natural form of morality to a Christian-moral life. Thereby religion seems to be the sheer consequence of morality. But that is only the first impression you get, when you analyze the theological concept of Herrmann's Ethics. Discussing the most central terms used by Hermann, such as "experience" and "trust", as well as the Christological concept, the article intends to detect morality as a necessary but insufficient prerequisite of faith. By identifying the method of Herrmann's Ethics as phenomenological, the genesis of faith can only be understood exemplarily. But - if faith in its origin is only an exemplary phenomenon - how can the content of theology be claimed to be true? The article deals with this question in its final part, where an interpretation of Herrmann's Ethics as a reconstruction of originating faith is outlined.

This article offers the justification for a type of carbon customs union in which countries with a diverse range of high-ambition domestic climate measures would adopt a common external tariff on carbon intensive imports from countries outside the union. We explain why any pragmatic approach to carbon border measures (CBMs) is likely to create problems under prevailing interpretations of the World Trade Organization's (WTO) primary rules. Given the urgency of the climate crisis and the fact that the legality of a CBM – no matter how designed – will be a question of first impression for any WTO dispute panel, WTO consistency should take a backseat to considerations of domestic legal and political feasibility in designing a CBM. Instead of trying to fit a CBM into current understandings of WTO rules, WTO members should renegotiate WTO rules to permit a range of aggressive, but likely trade-restrictive, decarbonization measures. Having said that, we also recognize that WTO negotiations may take longer than optimal from a decarbonization standpoint. We therefore suggest an approach that would allow WTO members to take advantage of flexibilities that existing WTO rules afford.

Tryphonin, Papinian and the regard for immaterial losses in the law of obligations. Contrary to the first impression given by the sources, there is no dispute among late classical lawyers as to whether a creditor can obtain compensation for an immaterial loss. Rather, the only disputed issue is whether a creditor can demand compensation for performance of monetary value even if it had benefitted a third party. Papinian and Paul affirm this with reference to the precept of bona fides. Tryphonin focuses on the creditor’s freedom of disposal: If the creditor can claim his interest in a hypothetical sale of the object of performance, he must also be entitled to do so if he wants to pass it on free of charge and thus prove his generosity.

The main purpose of modern information systems (IS) is to support the procedures of controlling many business processes (BP) of an enterprise. At the same time, due to a weak formalization of BP, processes of development, reengineering of various service-oriented IS and IT services are a complex problem. To address this problem, the task to improve the method for choosing IT services that meet an assigned set of functional and non-functional limitations was stated. The specific features of the original method for choosing IT services were analyzed, its main shortcomings were identified. The model of the BP precedent was modified to establish the relationship between descriptions of the precedent, functional requirements, and the used IT services. The method for selecting IT services for the IS was improved by adding the functions of requirements analysis and searching for descriptions of IT services that partially meet the stated functional requirements. In the method, the adaptive linear associator of the mADALIN neuron was used to quantify the degree of match of the functional requirement and the description of the function of the IT service. These proposals were the basis for the improved method for selecting the IT service that best fits the set of constraints that are formed. Based on the result of the conducted research, an experimental test of the improved method for selecting an IT service to solve the problem of automation of the activities of sale force of the electronic policy OSAGO was carried out. The information technology implementing the original method for choosing IT services was compared to the improved method. It was shown that the improved method makes it possible to identify situations of a match of functional requirements of a customer and the descriptions of IT services. This makes it possible to select those IT services that match the functional requirements to a degree above the assigned minimum limit

The icc represents a legal laboratory that is still consolidating itself, with multiple unclarities in evidence and procedural law requiring resolution through jurisprudence. Our paper draws on interaction analysis to unpack this process, focusing on the jurisprudential construction of ‘dual status’ victim participant testimony. To elucidate how this evidentiary/procedural element is locally negotiated, we examine an excerpt from the Ongwen hearing transcripts, in which the defense objects against the testimony by a dual status witness called by the victim participants’ legal representative. The analysis traces how the defense counsel’s objection is anchored in a trajectory of prior decisions, and demonstrates that the implementation of the criteria drawn from these decisions is mediated by deep-rooted common-sense assumptions about the ‘ownership’ of testimony. These unspoken assumptions open up a discursive space in which trial actors can discuss the interactional quality of testimony, which adds an element of contingency to the final decision.

The aim of this article is to show difficulties arising when courts judge the negligence of dog owners in absence of precise legislation and typical precedents. We analyze the elements of a crime in two cases where children were objects of canine aggression, and show how the courts constructed the issue of dog owners’ negligence. In Case 1 the Court of Appeal found that a foster parent was not negligent when leaving a boy with specific needs alone with a heavily built dog that then repeatedly bit the boy to death despite the owners attempt to pull away the dog. The court also ignored the signs of substandard animal husbandry including previous severe incidents where the dog owner also was injured. In Case 2, the Court of Appeal instead found that the breed of the dog also matter, and that not even adult presence is enough to protect a child from dog attack. Because both the child and the dog could behave unpredictably, continuous observation and supervision was required. In both cases, measures to prevent the incident were available and would have been easy to carry out.

The Author provides the results of a comparative analysis of two classically differentiated by legal scholars national legal systems – the American and Russian systems. Obviously, the announced legal systems represent two of the main categories of legal systems: common law and Roman law. Considered traditionally as part of common law, the Author investigates distinctive attributes of American federal and state law, proving the fact of integration of significant features of Continental Europe and Anglo-Saxon legal systems. The article also contains an analysis of the legal nature of the case-law of the European Court of Human Rights and its distinguished place as a precedent (which is the main common law attribute) and source of law in the Russian Federation.

Studies employing network analysis to reveal hidden mechanisms in judicial decision making, both in common law as well as civil law countries often use rather vague concepts of ‘importance’ of judicial decisions, concepts that are not always thoroughly explained, tend towards certain relativity and are used together with other similar words [(legal) relevance, (legal) significance…], with or without attempting explanation of these concepts, or relying purely on operationalization. This paper argues that in the context of legal systems that do not recognize a doctrine of precedent this approach is either oversimplified, or even erroneous. It further shows that ‘importance’ of past case-law is essentially a matter of the judge’s choice. Approaching this concept in this manner allows me to show that this choice is explainable within the theoretical framework provided by theories of relevance. This paper focuses on two major approaches to relevance: linguistic pragmatism and information retrieval, and shows that the concept of optimal relevance, as understood by theories of relevance, may serve well as an underlying explanatory framework for answering the question of why judges tend to argue by referring to past case-law even in those legal systems that do not recognize a doctrine of binding precedent.

Article is devoted by the 30th anniversary from the day of bonfire in the Library of the Russian Academy of Sciences. Based on V. M. Montvilov's book, the author attempts to open his contribution to liquidate the bonfire consequences in the Academy of Sciences’ Library. Montvilov played a great role in organizing negotiations with leading libraries and rendering international aid. His work as a UNESCO official was connected with preservation of such cultural objects of Russia as the Bolshoi Theatre, Russian State Library, the Russian Academy of Sciences’ Library. In the book «International official …», the author opened the specific character of UNESCO and emphasized a special role of this organization in the cultural heritage development of preservation. The book reflected his recollections and first impression about the Academy of Sciences’ Library and revealed new facts of elimination of the bonfire consequences. Montvilov's book is of great interest to the reader due to a wide range of problems posed in it and great factual material.

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions’ policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation’s High Court or to an individual justice influences the public’s agreement with the Court’s rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policy-making operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.

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Funder: University of Cambridge, Research Question: To what extent could police identify victims of modern slavery among growers arrested on cannabis farms as suspects under drug laws, and what challenges of evidence would have to be met to separate offending from victimisation? Data: A purposive sample of criminal history data of all Vietnamese nationals arrested for cannabis cultivation offences in Surrey/Sussex in the 3 years to 2017 (N = 19) was identified and collected. Three ‘cannabis farm’ cases from the period 2014–2017 were analysed to produce key information about growers, including their nationality, criminal history and possible status as modern slavery victims. The case records and interviews provide key information about the extent to which growers on farms were treated as slaves under the 2015 Modern Slavery Act. Methods: Semi-structured interviews were conducted with the three arrested growers to explore their lived experiences of recruitment and labour on the farms. Arresting police officers were also interviewed to explore how they frame the problem of cannabis cultivation and make decisions about their role in confronting it. Interview transcripts were prepared for analytic purposes. All interviewees were informed that the research was focused on the management of the policing of cannabis farms alone and full anonymity was assured. Findings: Five of the 19 Vietnamese nationals had previous criminal disposals. Of the remaining 14 individuals, five had no record and nine had various charges, but the prosecutions had not reached court. Of the three cases examined in depth, the arrested growers provided stories consistent with their having been trafficked and subjected to ‘debt bondage’. They described precarious journeys before being forced to work on UK farms. All three had been exposed to threats of violence or death for themselves and/or their families, should they attempt escape. Varying levels of mental and physical hardship were evidenced. There were a priori reasons to conclude that they were eligible to be considered modern slavery victims. When arrested, however, none had pleaded victimisation. Police officers demonstrated an ignorance of related legislation and varying levels of awareness of the possibility of modern slavery. They responded to the first impression made by the grower as a person culpable under drugs laws. Even where officers had concerns about modern slavery, no appropriate crime was recorded, and no formalised investigation followed. Conclusions: Given reluctance or inability to frame the police response to cannabis farms under modern anti-slavery legislation, policing agencies should consider adopting more detailed practice guidelines to officers on how to react to the complex challenges involved, including the investigative opportunities that may help unearth modern slavery on cannabis farms through greater encouragement of victim accounts.

With the development of the online platforms and the Internet of Things (IoT), various transportation services have been provided, and the lifestyle of the general public has changed significantly. However, the speed of development of technologies and services for the mobility handicapped has been relatively slow. Accordingly, in this paper, the smart mobility patent data for the mobility handicapped is subdivided through clustering to derive the mobility handicapped-related vacant technologies, and the prospect of the vacant technology is verified. For each cluster, a technology level map is generated in consideration of the technology growth level and the scope of authority of the vacant technology derived through the generative topographic map (GTM) patent map, and the level of the vacant technology is checked in terms of quantity and quality. Both indicators perform time series analyses on superior technology to predict technology trends and determine the technology&rsquo, s promisingness. Unlike the precedent studies that focused only on quantitative analysis methods, this paper identified the usefulness of the technology through clustering and various verification processes and materialized it as a vacant technology that is applicable to actual R&amp, D. Accordingly, through this empirical paper, it is possible to understand the current level of vacant technology in smart mobility for the mobility handicapped and establish an R&amp, D strategy to prevent monopoly in technology in the future market and maintain competitiveness. It can also be utilized for new technology development in consideration of convergence with currently developed technology.

As the Trump Administration placed ever new categorical limits on asylum, its opponents countered that asylum decisions have to be made on an individualized basis. The government, they claimed, cannot categorically exclude groups like former gang members or victims of gender-based violence from protection against persecution. Successful as this insistence on case-by-case adjudication has recently been, it stands in tension with past cases in which groups like nuclear families or gay men were categorically deemed eligible for asylum. The litigation and rulemaking currently reshaping asylum law suggest that neither side in the debate has fully understood whether, when, and why case-by-case rather than categorical decision-making is required. It turns out that what at first seems like confusion over procedure actually stems from unclarity about the substantive tests being adjudicated: the “social distinction” and, especially, the “particularity” requirements that are currently (mis)used as the primary reason for denying asylum claims, especially those brought by the tens of thousands of refugees fleeing gang and gendered violence. Properly understanding these tests allows us to understand whether they can be categorically applied—either to bar asylum claims or, perhaps in the Biden Administration, to make them possible.

This paper suggests reassessing the teachings of the Roman method of creation of law, based on the understanding of the ius as ars boni et aequi, which makes evident that the law has a practical purpose and, consequently, topics is the knowledge itself of the law, in which the centrality of the case is highlighted and the realization of justice in terms of what we would today call «effective protection of rights». The text argues that such an understanding presupposes the understanding of the dynamic nature of law, of its artificial nature as created by human beings and, therefore, perfectible, of the active role of the jurist in the construction of a more equitable right, which makes possible the realization of the balanced equality in the preservation of the values of reasonableness that good faith proposes, by considering the requirements of the case, in harmony with the principles that govern the system, in a permanent reconstruction of the balance between topic and system. In rethinking the application of law according to its nature, to the essential function of serving coexistence, and of making the values of a social State of Law a reality, the paper analyzes the experience of Peruvian jurisprudence in the «precedents» of the Supreme Court of Justice, examining several of its most emblematic judgments, under the perspective of topics and, in general, of the Roman method of creating the law. El texto propone revalorizar las enseñanzas del método romano de creación del derecho, basado en el entendimiento del ius como ars boni et aequi, lo cual pone en evidencia que el derecho posee una finalidad práctica y, en consecuencia, la tópica es el saber propio del derecho, en el que se destaca la centralidad del caso y la realización de la justicia en términos de lo que hoy llamaríamos «tutela efectiva de los derechos». Un entendimiento tal supone la comprensión del carácter dinámico del derecho, de su naturaleza artificial en cuanto creado por el ser humano y, por ende, perfectible, del rol activo del jurista en la construcción de un derecho más equo, que haga posible la realización de la igualdad ponderada en la preservación de los valores de razonabilidad que propone la buena fe, mediante la consideración de las exigencias del caso, en armonía con los principios que rigen el sistema, en una permanente reconstrucción del equilibrio entre tópica y sistema. En este repensar la aplicación del derecho atendiendo a su naturaleza, a la función esencial de servir a la convivencia y de hacer realidad los valores de un Estado social de Derecho, se analiza la experiencia de la jurisprudencia peruana en los «Plenos Casatorios» de la Corte Suprema de Justicia, examinando varios de sus fallos más emblemáticos, bajo la perspectiva de la tópica y, en general, del método romano de creación del derecho.

This article analyses the case law of the European Courts of Human Rights on manifestation of religion or belief under Article 9 echr, excluding particular types of manifestation that are covered in other articles in this special issue. It provides an overview of the main holdings of the Court in this area, together with some critical comments about aspects of the Court’s case law that, in the author’s view, should be improved.

To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics—that is, as “just another political institution”—can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants—ideological dissatisfaction, legal realism, and perceptions of judicial politicization—combine to structure judicial legitimacy. Understanding the difference between perceptions of an “ideological” Court versus a “politicized” Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings’ implications for the upcoming highly politicized battles over nominations to the high bench.

Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.

The decisions of the Court of Justice of the European Union (CJEU) have had an immense impact on development of European Union law, and this has raised a critical discussion about how the CJEU establishes and uses case law. Through a comparison with the United States Supreme Court (USSC) and network analysis, this article argues that much of the criticism is based on false expectations as to the nature of the CJEU. We argue that the Court of Justice must be understood as a precedent-driven constitutional court and that, if we take that as our starting point, its approach to case law is quite reasonable.

KONCEPCJA UNII OPARTEJ NA RZĄDACH PRAWA JAKO ARGUMENT PRAWNY PRZED TRYBUNAŁEM SPRAWIEDLIWOŚCI UNII EUROPEJSKIEJNiniejsza praca ma na celu rozważenie koncepcji Unii opartej na rządach prawa, obecnej w prawie Unii Europejskiej, w ramach orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej. Autor podejmuje się analizy ilościowej oraz jakościowej i oceny wskazanego zagadnienia, katalogując ponad 120 poszczególnych orzeczeń Trybunału odnoszących się do „rządów prawa” w powyższym znaczeniu w tym rozważając 95 przypadków, w których omawiane zagadnienie zostało rozważone co do istoty. W ten sposób pytanie badawcze niniejszej pracy brzmi — czy twierdzenie procesowe i argumentacja oparte na „rządach prawa” mają jakiekolwiek szczególne znaczenie dla skarżącego co do prawdopodobieństwa uzyskania korzystnego rozstrzygnięcia przed Trybunałem?

In a case of first impression, the Constitutional Court of Hungary (CCH or Court) ruled on November 30, 2016 that, in exceptional cases, it is competent to consider whether Hungary's obligations to the European Union (EU) violate fundamental individual rights (including human dignity) or Hungarian sovereignty as protected by the Hungarian Constitution. The decision places Hungary squarely within the growing group of EU member states whose constitutional courts have decided that, despite the decisions of the European Court of Justice regarding the primacy of EU law, EU member states are not compelled to violate their domestic constitutional obligations in carrying out their shared EU commitments.

Recently in these pages—in fact, quite recently—we conducted an extensive review of new US Supreme Court landmarks that unequivocally established the paramountcy of federal law regulating the interstate energy markets. This noble triad is composed of Oneok, Inc. v. Learjet, Inc., establishing that federal law is supreme over state promulgations regulating the natural gas industry, followed by FERC v. Electric Power Supply Association, which likewise declared that the interstate wholesale market in electricity is subject solely to national regulation, to the exclusion of state law, and, finally, Hughes v. Talen Energy Marketing, LLC, where, consistent with its earlier precedents, a unanimous Supreme Court voided a state-aid program to certain energy producers as an unlawful intrusion into a domain constitutionally mandated as one susceptible only to federal oversight.

Technology and law both rest upon, acknowledge and borrow from their forebears, but the trajectory of technological development is distinct from legal precedent. The former thrives on innovative and creative leaps where non-linear progression is celebrated. The latter derives purpose and respect from its conservatism and predictability, adhering to established traditions. At moments of technological rupture, the law’s path forward becomes uncertain. By taking the advent of the photographic camera as its focus, this article comments upon the ways in which the law grapples to smooth over technological rupture and naturalize the outcomes of its often ambiguous and hesitant decisions. As the gendered battle for rights in a photographic image during the last few decades of the 19th century shows, the primary owner of copyright in a photograph was not naturally or obviously the photographer. This article encourages us to reflect upon moments of technological rupture and the process by which the once achievable or feasible becomes absurd or forgotten.

In many judgments, the European Court of Human Rights (Court) lists relevant international materials and sometimes uses these documents when determining whether the European Convention on Human Rights has been violated. These materials are often standard-setting documents that originate in the Council of Europe, the Court’s organisational framework. This article analyses the Court’s practice of using such documents, based on a sample of 795 judgments. The analysis serves to provide an answer to the questions of how and why the Court refers to and relies on these documents. More specifically, the article describes the number of judgments and the importance of the judgments in which the Court cites a CoE document, as well as the type of organs and the different documents cited. The analysis continues with a description of the part of the Court’s judgments in which its determination of the question of compliance with the standards in the CoE documents appears and also considers the purposes for which the Court seems to use the materials. Lastly, insight is provided into the relevance of the CoE documents to the Court’s reasoning and explanations are given as to why the Court does (not) follow the standards formulated in a document.

Big data and its use by artificial intelligence (AI) is changing the way intellectual property is developed and granted. For decades, machines have been autonomously generating works which have traditionally been eligible for copyright and patent protection. Now, the growing sophistication of AI and the prevalence of big data is positioned to transform computer-generated works (CGWs) into major contributors to the creative and inventive economies. However, intellectual property law is poorly prepared for this eventuality. The UK is one of the few nations, and perhaps the only EU member state, to explicitly provide copyright protection for CGWs. It is silent on patent protection for CGWs. This chapter makes several contributions to the literature. First, it provides an up-to-date review of UK, EU and international law. Second, it argues that patentability of CGWs is a matter of first impression in the UK, but that CGWs should be eligible for patent protection as a matter of policy. Finally, it argues that the definition of CGWs should be amended to reflect the fact that a computer can be an author or inventor in a joint work with a person.

It is generally accepted that the development of a Union of law is largely due to the judicial decisions of the Court of Justice of the European Union (hereinafter, CJEU). With its judicial pronouncements, the CEJEU aims to achieve the same legal effects in every language version of its judgments and, through them, to ensure the uniform application and interpretation of European Union law. Nevertheless, such judicial pronouncements, with normative and binding force, are the result of collegial decisions and drafted by jurists in a language that is usually nottheir mother tongue. In addition, they are also the result of various permutations associated with the necessary legal translation from and to (and vice versa) the working language of the Court and the official languages of the European Union. The published judgments presented as authentic are, in most cases, translations. To understand the construction of decisions of the CJEU is to understand the construction of the European Union law, and by consequence, the European project itself.

It is generally recognised in many countries that law-making is not exclusively a task for the legislator, but also for the courts, especially supreme courts. In fact, in many European countries, a tendency seems to be emerging towards an even greater focus on the law-making task of the supreme courts. The author of this paper, the President of the Supreme Court of the Netherlands, addresses various topics regarding this law-making task of European supreme courts, such as the question to what extent (supreme) courts make and develop law, whether there is a statutory basis for this activity and what kind of techniques these courts can use. The author also addresses the limits to the power of the supreme courts to develop new rules (especially in relation to the legislator) and what is to be expected in the near future regarding law-making by supreme courts. The article is partly inspired by the answers to a questionnaire on this subject, which was sent to the Network of the Presidents of the Supreme Judicial Courts of the European Union.

Recent federal court decisions have deregulated state campaign finance systems to a significant degree. These decisions are not only rooted in First Amendment jurisprudence but also raise issues of federalism. Although most studies of federal–state conflict focus on disputes between state officials and elected federal policy makers, courts are also policy-making institutions, and in the absence of policy making by other federal branches, courts have become the critical federal policy maker in this area. In response to U.S. Supreme Court rulings that deregulate campaign finance rules and are out of step with the policy preferences of many state electorates and officials, states are attempting to resist these rulings, but using different approaches than are used by states in disputes with the Congress or President. We discuss these rulings and state responses to them. We also describe the implications of these dynamics for federalism.

This article was aimed at (1) discovering and constructing the political dynamics in formulating the Law of the Court of Human Rights; (2) analyzing its implication on the future of politic of Human Rights in Indonesia. This essay was a result of content analysis research with qualitative-comparative approach. The finding showed that (1) substantively, the formulation of Law No. 26 Year 2000 on Human Rights Court has fundamental weaknesses such as a partial adaptation of The Roma Statute, the course of human rights court was constructed weak by stating its authority only on investigation, whereas attorney General's Office authority on investigation lacks of detail prescription, deleting the responsibility of command such as those on the Rome Statute, etc. A lot of lacks indicate that the law was only an instrument of transitional authority. The ‘toothless’ law indicates the victory of the old regime in political battlement and tension with the new regime in reformation era. The politicization of handling of human rights violation before the release of the law of Court on which the Representative People Council has authority to propose but the decision maker is the President by Presidential Decree. 2) the political dynamic has an implication on two long term situations, hoarding impunity and the crises of human rights values.

Scholars have analyzed how those with close ties to Supreme Court justices—including family, friends, and political and legal elites—influence judicial behavior, but there are still questions about how law clerks’ attributes affect their relationship to their justice. This is important because clerks’ genders may affect their credibility and their ability to influence their justice’s behavior when a case involves a clear gender dimension. Scholars have uncovered a great deal about the determinants and consequences of the credibility of a different set of attorneys—those who present at oral argument. I apply insights from the literature on attorney credibility to the context of law clerks and analyze whether women enjoy greater credibility and influence in cases involving sex discrimination and abortion. I find that women influence their justice’s vote on the merits, but this influence is conditional on the number of women a justice hires and the justice’s ideology. This finding is robust to accoun...

This article examines the structure and competences of the Court of the Eurasian Economic Union (eaeu Court). In doing so, it provides a comparative analysis of the eaeu Court with other judicial bodies created in the post-Soviet area, the Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community (Community Court), as well as in some respects with the Court of Justice of the European Union (cjeu). Summarizing major problems of the eaeu Court and setting out the Court’s first case, the article argues that the rules governing the activities of the eaeu Court represent a significant setback against the progress achieved previously by the Community Court. This setback reflects the lack of political will of the eaeu members to transform the eaeu Court into an effective judicial body similar to the cjeu and their insufficient commitment to the rule of law.

In this article, we review and analyze the criminal justice–related decisions of the 2015 term of the U.S. Supreme Court. We also provide a summary of the Court’s voting patterns and opine authorship. Twenty-two of the Court’s 76 decisions touched on criminal justice. There were significant decisions involving the exclusionary rule, search incident to arrest, the death penalty, and sentencing.

The increasing religious diversity in western Europe poses challenges for courts, including the European Court of Human Rights (‘the Court’), whose jurisprudence on the right to freedom of religion has been widely criticized for being too restrictive, unprotective and non-inclusive. This criticism mainly refers to the substantive aspect of the Court’s case law. Indeed when dealing with the question how the religious diversity can be best dealt with from a human rights perspective, the first focus of the Court should relate to the substantive inclusion of this diversity. However, in a diversity context it is inherently impossible to substantively accommodate all religious claims and needs. Building on the social psychology notion of procedural fairness, this article will show how, despite the impossibility of always providing applicants with favourable in- clusive outcomes in their case, the Court can, and should always, ensure that it communicates inclusion at a procedural level. It does so through an in-depth analysis of the Court’s Article 9 case law delivered from 1999 until today.

En este trabajo propongo un concepto de “precedente”, a partir de una teoría analítica del derecho. La hipótesis del trabajo es la siguiente: el “precedente” es una creación de la interpretación que hace un operador jurídico a partir de la lectura de una “sentencia”. Parto de lo siguiente: (i) “sentencia” es el texto que produce el “juez”, (ii) la interpretación que un operador jurídico haga de una o varias “sentencias” es la “jurisprudencia”. A su vez, (iii) la “jurisprudencia” está conformada por: el “precedente”, los “conceptos jurisprudenciales” y la “norma”. Me ocupo de la distinción entre ratio decidendi y obiter dictum, para demostrar que el “precedente” depende de la interpretación que hace un operador jurídico. In this paper, I propose a concept of “precedent”, from the perspective of an analytical theory of law. The hypothesis is: the “precedent” is a creation of the interpretation that a juridical operator does from the reading of a “sentence”. I begin with the assumption that (i) the “sentence” is the text that the “judge” produces, (ii) the interpretation that a juridical operator does of one or several “sentences” it is the “jurisprudence” and (iii) the “jurisprudence” is comprised for: the “precedent”, the “jurisprudential concepts” and the “norm”. I make a distinction between ratio decidendi and obiter dictum to demonstrate that the “precedent” depends on the interpretation that a juridical operator does

This article describes the scope of application of an analogical argument in the province of precedential law. Inter alia, it revolves around such issues of the doctrine of precedent as: distinguishing, ascertaining and crystallizing the meaning of ratio decidendi or expanding its coverage onto the cases of first impression. Allowance has also been made for the presence of analogy in searching for the law-maker’s intention, the determining of the obsolescence of precedents and quoting precedents out-of-jurisdiction. The place analogical reasoning has in legal education has also been touched upon. On top of that, the article highlights the usage of analogy in precedential law which enables the replacement of the conception of rationes decidendi for the proposition of applying judicial precedents directly upon the relationship of similarity that obtains between cases decided previously and the instant case.

In November 2010, the Supreme People’s Court of China introduced a new legal institution called the case guidance system, under which the Supreme People’s Court selects and publishes guiding cases, which are supposed to be followed by all courts when deciding later similar cases. The introduction of the case guidance system is an important step in the quest for better use of cases in China, where cases are formally rejected as a source of law. This paper provides an overview of the general design and functioning of the case guidance system. It also reflects on the limitations of the case guidance system and presents some initial thoughts on possible ways to further enhance the use of cases as a source of law in China.

This article provides an up-to-date and comprehensive canvassing of the judicial case law concerning the responses to students with concussions in the public school context. The two categories of court decisions are (a) those concerning continued participation in interscholastic athletics, referred to under the rubric of "return to play” and (b) those concerning the legal obligations in facilitating the continued educational progress of the student, referred to under the rubric of "return to school." The case law in the first category primarily addresses state common law claims of negligence and federal constitutional claims under the Fourteenth Amendment due process clause. The court decisions in the second category primarily address the successive issues of child find, eligibility, and "free appropriate public education" (including but not necessarily limited to accommodations) under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. The outcomes of the court decisions thus far have been largely in favor of the district defendants, but the case law is far from crystallized and complete.

We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.

The European Court of Human Rights and the English Supreme Court have expanded the scope of the positive obligation to protect the right to life under art 2 of the Convention. A question of particular concern for public authorities is the extent to which negligent conduct may fall within art 2. Strasbourg principles relating to standing for victims, as well heads of damage (just satisfaction), are more generous than the Fatal Accidents Act 1976 in the UK. The art 2 obligation also mandates consideration of matters which would not be regarded as justiciable under the English common law. This article provides a critique of recent developments in the case law under art 2, both at Strasbourg and in the English Supreme Court, and draws out the consequent challenges for coherence in English law.

Fundamental changes in the 1945 is the amendment of Article 1 paragraph (2) as follows: "Sovereignty belongs to the people and carried out according to the Constitution". Change the 1945 Constitution has given rise to the Constitutional Court. By the Constitutional Court, the constitution guaranteed as the supreme law that can be enforced as it should. The Constitutional Court in its development, it is feared will be the agency that has authority super body.Particularly in resolving the matter related to its authority, the Constitutional Court can unilaterally interpret the Constitution without being questioned, other than that produced the Constitutional Court ruling is final and binding, so that when there is one party who feels aggrieved by the decision of the Constitutional Court cannot make the effort for other law. From the approach used in this study is normative juridical, because the study was conducted by examining library materials or secondary data relating to the status and authority of the Constitutional Court in constitutional legal system of Indonesia. Specifications of this research is descriptive analysis, which is expected to give a detailed overview, systematic, and comprehensive on all matters relating to the object to be examined. The data used in this study is secondary data, it means the data obtained from library materials collected through the study of literature and documentary studies, which are then analyzed qualitatively. The conclusion of this study is that the formation of the Constitutional Court in Indonesia is inseparable from the development of judicial review occurring in several countries in the world, especially during the implementation of judicial review which was pioneered by John Marshall in Marbury versus Madison case.Thinking about the importance of the Constitutional Court in Indonesia has emerged during the discussion of the draft Constitution in BPUPKI, then the idea of judicial review of the need to re-emerge during the discussion draft Judicial Power Act (Act No. 14 of 1970). At the time of the discussion of the 1945 changes in the era reformation, the opinion of the importance of the Constitutional Court appeared. Ultimately, the Third Amendment to the 1945 to be of the Constitutional Court, which serves as the guardian of the Constitution and constitutional interpretation. Keywords : Constitutional Court, The Status and Authority in the Constitution

Traditionally, under the “silent witness” theory, when video-surveillance recordings are authenticated and admitted at trial, the video “speaks for itself.” However, with increasing frequency, courts have permitted witnesses to provide lay opinion identification testimony about individuals in the surveillance video. The testimony is offered as lay opinion testimony that assists the jury, particularly in cases where the video is of poor quality, the subject’s face is difficult to see, or the subject’s appearance has changed by the time of trial. Recent state court opinions (including several state supreme courts as a matter of first impression) have upheld the admission of lay opinion identification testimony in an overly lenient manner that should be addressed. The primary problem with this kind of lay opinion testimony is that it poses challenges to effective cross-examination, particularly in criminal cases in which the witness is a law enforcement officer. Cross-examination that attempts to test the officer’s testimony may be ineffective or, worse, harmful, to the extent that it attempts to explore the officer’s familiarity with a criminal defendant. Courts have developed some procedural safeguards to protect against abuse of this form of testimony, but they are insufficient and fail to ensure effective cross-examination in all circumstances. This Article proposes additional safeguards that courts can use to moderate the use of lay opinion identification testimony related to surveillance video, while permitting such testimony when it is helpful to the jury in determining an issue of fact.

Curver Luxembourg, SARL v. Home Expressions Inc. is a case of first impression for the Court of Appeals for the Federal Circuit. The question on appeal is whether a design patent’s scope is tied to the article of manufacture disclosed in the patent. In this amicus brief, the Open Source Hardware Association (“OSHWA”) explains the potential effects on open source hardware development, and design practice generally, of untethering design patent protection from the article of manufacture disclosed in the patent. A large percentage of open-source hardware combines both ornamental and functional elements, and industrial design routinely involves applying design concepts from disparate fields in novel ways. To engage in this practice, open-source hardware designers need to know the universe of available source material and its limits. Further, understanding the licensing requirements of open-source hardware begins with understanding how the elements that make up that hardware may or may not be protected by existing law. Accordingly, while many creators of open-source hardware do not seek patent protection for their own creations, an understandable scope of design patent protection is nonetheless essential to their ability to collaborate with other innovators and innovate lawfully. The brief argues that the District Court in the case—and every district court that has considered the issue—correctly anchored the patented design to the article of manufacture when construing the patent. The brief explains that anchoring the patented design to the disclosed article of manufacture is the best approach, for several reasons. Connecting the patented design to the disclosed article of manufacture calibrates the scope of design patent protection to the patentee’s contribution over the prior art. It avoids encumbering the novel and nonobvious application of prior designs to new articles of manufacture, a fundamental and inventive practice of industrial design. It aligns the scope of design patent protection with its purpose: encouraging the inventive application of a design to an article of manufacture. This balances protection for innovative designs with later innovators’ interest in developing future designs. Finally, anchoring the patented design to the disclosed article of manufacture helps fulfill design patent law’s notice function by clarifying the scope of protection.

The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision. Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare. An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process. In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

INTRODUCTION Presumably, for national courts’ magistrates participating in the present conference and, for that matter, equally for members of any national court as well as the EU courts the substance of state aid cases pertains to the most intriguing and elusive material they ever work with. This may not be very surprising in view of the complexity of state aid regulation as relating to direct control by the European Commission on economic policy measures of Member States, not only those undertaken by central government authorities but also those taken by local and regional bodies, often concerning policies in areas of more or less sensitive interests on which the state aid control may exercise an unexpected impact. Which policy maker would have thought that an Eco tax in Britain1, a social housing scheme in the Netherlands or nature conservation measures in Germany would come under state aid review, to mention but a few examples. Looking at the provisions of Articles 107 and 108 of the TFEU, the first impression may be that state aid control is a bilateral matter between the Commission and the Member State under review. This is indeed the main structural feature also reappearing in the implementing provisions of Regulation (EC) no. 659/1999, even after its recent modification by Regulation(EU) no. 734/2013 which qualifies interested market participants as ‘market information tools’ at the Commission's disposal for purposes of preparing a file. The image is considerably different, however, when looking more closely at the interests of aid beneficiaries and their competitors on the market on which they operate. This is where the national courts come into the picture in view of the protection of their legal interests. In this perspective it appears appropriate, first, to highlight the distinct roles of the European Commission and national courts in this area, then, to look somewhat closer at the role of national courts in state aid litigation and, third, to identify instruments of liaison and cooperation between the EU and national levels of shared decision making and judicial review.