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The article is devoted to the study of essential terms in the content of contracts in the field of road construction with due regard to the existing scientific approaches, provisions of current legislation and case law. The author analyzes the essence of the essential terms of contracts of this type and provides a list of such terms. The author establishes that the list of essential terms of road construction contracts is exhaustive and may be supplemented by legislation, parties and courts. In addition, the author recognizes the possibility of listing the list of essential terms and conditions within the relevant offer by a party to the contract as a priority. The study of the subject matter of a contract in the field of road construction in terms of the dichotomous “subject matter-contract” pair has created the prerequisites for supporting the position that the subject matter of a contract is understood as the result of construction works (engineering, geological, topographic, geodetic, hydrological, research and development, construction and installation works), i.e., a road as a complex object. It is indicated that the price of contracts of this type is reflected in the design and estimate documentation and should be classified by the method of determination and peculiarities of adjustment. The term of construction works may be differentiated depending on the components of the work according to the design and estimate documentation. It is noted that if the term is included in the list of essential conditions, the provision on reasonable terms cannot be applied. The author classifies terms and makes proposals for bringing the provisions of legal acts in this part into line with the terminology and requirements of the Civil Code of Ukraine. The author supports the idea of including provisions on the parties’ liability for improper performance or non-performance of obligations among the essential terms of a contract in the field of road construction. Attention is drawn to the specifics of essential terms in the content of contractor agreements and related investment agreements in the field of road construction. Given the importance and specifics of implementation of this type of contracts, the author suggests that it is possible to determine the list of essential terms in a standard contract with due regard for the nature of special contractual structures in this area. [ABSTRACT FROM AUTHOR]

The article clarifies the actual issues of non-application of the law by the court on the grounds of its contradiction with the Constitution of Ukraine, in particular: the historical evolution of the legislative regulation of the possibility of non-application of the norms of the law on the grounds of their contradiction with the Constitution; peculiarities of modern regulation of this issue and key problems that arise in practice; proposals for improving legislation and judicial practice. It was concluded that one of the most typical forms of direct application of the provisions of the Constitution, along with the possibility of applying the Constitution in the absence of legislative regulation, is the possibility of law enforcement contra legem, i.e. law enforcement contrary to the law due to its (law’s) inconsistency with the Constitution. The fundamental possibility of not applying a law that contradicts the Constitution of Ukraine directly follows from the idea of the supremacy of the Constitution of Ukraine, the recognition of its provisions as norms of direct effect, and, ultimately, from the principle of the rule of law. Another issue is that such an opportunity should have an adequate procedural form of its expression, as well as be organically combined with the activities of the body of constitutional jurisdiction, the specialized body of constitutional control-CCU. Historically, initially, Ukrainian legislation required a stay of proceedings in case of doubt about unconstitutionality, however, the legislation itself was contradictory and conflicting, which made such a stay almost impossible in practice. At the same time, there was an approach that in the absence of doubt, that is, when there is a clear certainty of the unconstitutionality of the application of contra legem, it is possible and no suspension of the proceedings is necessary. Such ideas were partially embodied in the 2017 reform, when courts in all types of proceedings, except for criminal ones, received an explicit opportunity not to apply the law, at the same time turning to the Supreme Court (assuming that the latter would later turn to the CCU). At the same time, there was the problem of motivating such a conclusion, the actual practice of appeals to the Supreme Court, the role of the Supreme Court itself (which sends relevant submissions very rarely). In addition, the experience of foreign countries proves the need for courts to interact with the constitutional court without intermediaries. In practice, significant concerns about the possibility of non-application of the law arise in the field of social rights. [ABSTRACT FROM AUTHOR]

In 2020, a research study was conducted surveying homicide investigators and managers within the province of Alberta (Canada). This study provided investigator insight and knowledge of current issues impacting investigations, focusing on issues related to the law and prosecutions. Specifically, two key Supreme Court of Canada decisions were identified as having significant impact on homicide investigations. Limiting factors regarding the law and prosecutions included case law developments impacting privacy issues, warrant requirements, disclosure, and prosecution timelines, which continue to challenge homicide investigators. Recommendations are made to assist investigators and managers in navigating these legal changes. [ABSTRACT FROM AUTHOR]

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Copyright of FinanzRundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Wirtschaft und Wettbewerb is the property of Fachmedien Otto Schmidt KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Umsatzsteuer-Rundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Retos: Nuevas Perspectivas de Educación Física, Deporte y Recreación is the property of Federacion Espanola de Asociaciones de Docentes de Educacion Fisica and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This contribution to the special issue considers Felicity Kaganas as a feminist socio-legal scholar who persistently ‘asked the woman question’ in family law. It focuses on one of her important articles, ‘When it comes to contact disputes, what are family courts for?’ . After summarising her argument concerning the evolution of the family courts’ approach to contact disputes, it examines her critique of a problem-solving approach, in light of the recent introduction of the Pathfinder pilot courts, following the recommendations of the Ministry ofJustice report, Assessing risk of harm to children and parents inprivate law children cases (2020). [ABSTRACT FROM AUTHOR]

This study examines a unique form of intertextual reference – the personification of case names in legal discourse. In the U.S. legal system, the holdings of courts in prior cases can function as binding law, and the resolution of most legal issues relies on an overt, conventionalized system of intertextual citations to these cases. I analyze references to case names in an oral argument before the U.S. Supreme Court that involve personification, which I operationalize as subject-verb pairings of case names with verbs that are normally associated with animacy or agency. I find that cases which appear more frequently in the oral argument are more likely to be personified, with the most frequent cases being bestowed with traits that are increasingly explicit in their humanization, such as the ability to communicate, make utterances which can then be presented as direct reported speech, and express emotions and intentions. I argue that the existence of this cline suggests that the participants in the oral argument use personification as a means of managing information in sequences that are particularly dense with intertextual references to case law. Implications for research on intertextuality, personification, and legal discourse are then explored. • Legal discourse has many unique features, including explicit intertextuality. • This intertextuality sometimes involved references to case names, which are sometimes personified. • More frequently-cited cases are more likely to be personified. • These more frequently-cited cases also show more explicit personification. • This suggests that case personification functions as an information management tool. [ABSTRACT FROM AUTHOR]

Copyright of Umsatzsteuer-Rundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Over the last decades, a growing body of literature has focused on the role of compassion in legal decision making. To this respect, judicial compassion has been almost exclusively thematized in relation to human animals. In this paper, I claim that compassion shows itself especially relevant when judges should decide controversial cases involving animals. Drawing on Schopenhauer’s account of compassion, I contend that this emotion in particular can contribute to good decision making. To illustrate the argument, I analyze a renowned case from Argentinian jurisprudence: the case of Cecilia the chimpanzee. [ABSTRACT FROM AUTHOR]

One of most famous fatwa books written in the Indian subcontinent during the Babur’s period (1526-1858) is al-Fatawa al-Hindiyya. It was written by a commission by the order of the ruler during the reign of Emperor Abu-Muzaffar Muhammed Muhyiddin Awrangzeb (1658-1707). al-Fatava al-Hindiyya was prepared in six volumes. The completed sections of this work were personally discussed on a weekly basis by Emperor Awrangzeb himself. This book differs from other studies on fatwa literature in the two aspects mentioned. al-Fatawa al-Hindiyya is a voluminous book written to serve as source of law in the Babur judicial system facilitate the work of Hanafi jurists and ensure uniform of application in the Indian territories. In the context of the fatwa-sect relationship, this research will attempt to answer the question of whether this book was prepared with the aim of legislating or to base the official sect practice. In addition, it is aimed to examine Fetâvâ-i Hindîyye by taking into consideration its writing process, content and systematics, sources and effects after its completion. The study will provide data to discuss the existence of the IndoHanafi tradition. From its onwards al-Fatawa al-Hindiyya has been widely accepted and as a source in other major centers where Hanafi mazhab prevailed. Providing information about literature developed around al-Fatawa al-Hindiyya is also one main objective of this study. [ABSTRACT FROM AUTHOR]

Solidarity is a key concept in the European Union. However, the concept of solidarity lacks systematic theoretical examination to enable a sufficient understanding of its contextual meaning and to provide an operationalisable benchmark for analysis. To address this research gap, I propose an analytical framework for solidarity in the European Union that features four necessary conditions: particularity, instrumentality, reciprocity, and responsibility. I develop the framework through a transdisciplinary conceptual history approach, substantiated with a thorough document and legal analysis of European integration and CJEU case law. I demonstrate the robustness and validity of the proposed framework by using EU asylum policy as a test case, a field where the question of solidarity is notoriously salient, which is exemplified by an area-specific expression of the concept: fair sharing of responsibility between the EU member states. Moreover, I show that the EU's solidarity principle is necessary to maintain the bloc's raison d'être. [ABSTRACT FROM AUTHOR]

AI inventions, from ChatGPT to self-driving taxis, have taken the world by storm. Many of these inventions are protected by patents, and the number of AI patents is rapidly growing. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment argues that many AI patents were granted on legally flawed grounds, pursuant to United States Patent and Trademark Office (USPTO) regulations that systematically departed from controlling case law. The existence of these flawed patents poses a growing problem. Courts may invalidate the patents, upsetting expectations of an important, nascent industry. On the other hand, courts may acquiesce to the USPTO's leniency, which could have the perverse effect of further unsettling the law, increasing examination uncertainty, and proliferating bad patents. This Comment asks, in light of the policy of the patent system, which AI inventions ought to receive patents. It concludes that AI methods and models should be patent eligible because they are likely to be incentivized by patents and unlikely to chill follow-on innovation. This Comment further argues that both the USPTO's guidance and much of the Federal Circuit's recent eligibility case law are inconsistent with finding these inventions patent eligible. However, the Federal Circuit demonstrated an understanding of eligibility that would allow patents for many AI methods and models in its 2016McRO, Inc. v. Bandai Namco Games America Inc. decision. This Comment concludes by advocating that the Federal Circuit explicitly apply the holding of Bandai to hold that an AI invention is patent eligible at the first opportunity in order to settle the law while granting the benefits of patents only to deserving inventions. [ABSTRACT FROM AUTHOR]

Supreme Court justices' opinions shape the contours of case law binding throughout the United States. Importantly though, justices do not write their opinions de novo. Rather, they routinely draw on lower court judges' opinion language when crafting opinions. In doing so, justices stretch the substantive impact of lower court judges' reasoning beyond the boundaries of their circuits. However, justices do not draw equally on lower court opinions; while previous work often ties this to judges' professional qualifications, we draw on work stressing female supervisors are more likely to enforce professional norms on subordinates. We argue female justices are more likely to draw upon lower court opinions complying with professional norms because of greater implicit norm internalization over the course of their careers. We test this proposition with a quantitative textual analysis of the justices' opinions and lower court opinions. We find support for our argument. This raises normative concerns about the overall impact of greater judicial diversity. [ABSTRACT FROM AUTHOR]

The dissemination of hate speech online necessitates forceful content moderation to protect individuals and democratic values, without undue infringement of freedom of expression and the right to access information. In Europe, recent regulatory measures like the Digital Services Act (DSA) address the amplification of harmful content on social media, and place responsibilities on Very Large Online Platforms to counter societal risks, such as hate speech. The DSA mandates that platforms balance commercial interests with protecting user rights and safety, necessitating nuanced moderation strategies. However, both automated and human moderation face challenges in accurately identifying and countering hate speech. The European Convention on Human Rights (ECHR) and its interpretation by the European Court of Human Rights (ECtHR) provide essential guidance for navigating how to counter hate speech and also protect freedom of expression. This article aims to contribute to the understanding the emerging landscape of platform regulation and how the demands in the DSA can be better understood and operationalized regarding moderation of hate speech, in light of ECtHR case law. [ABSTRACT FROM AUTHOR]

This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the courtroom. Interviews with family lawyers in Quebec show that bringing claims under the adapted doctrine is complex and costly. Variable and unpredictable outcomes impede fair and efficient private ordering. Cohabitation agreements do not seem a satisfactory solution. The study highlights shortcomings in the leading Canadian judgment, which recognizes some cohabiting couples as partnerships but stops short of presuming an equal sharing of gains during the union. But, since the participating lawyers pointed to factors that would reduce the efficacy of reform by judges or by legislatures, the study does not yield a broad preference for legislative reform over judicial reform. [ABSTRACT FROM AUTHOR]

Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect 'innovation' to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The findings suggest that EU courts treat innovation inconsistently in competition law cases, often assigning different weight to innovation in similar contexts and neglecting central parameters agreed upon in the literature. To address this inconsistency, the article proposes measures to maintain the predictability of competition law analysis while giving innovation a more central role in the definition of relevant markets, evaluation of market power, and assessment of practices. [ABSTRACT FROM AUTHOR]

Copyright of FinanzRundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Die Unternehmensbesteuerung (Ubg) is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Die Unternehmensbesteuerung (Ubg) is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

General-purpose AI models have emerged as a disruptive technology with paramount spillover economic effects across industries. The owners of such models, namely big tech enterprises, can leverage their dominance in general-purpose AI models to expand into existing or new downstream markets. However, competition law is poised to constrain this expansion effectively. Nevertheless, there is uncertainty about the legal standard when assessing a refusal to deal in the case of access to general-purpose AI models. While EU competition law judicial practice reveals an adversary tendency against big tech enterprises leveraging in downstream markets, there is a case for adopting a narrower standard regarding access to general-purpose AI models. [ABSTRACT FROM AUTHOR]

Copyright of Revista de Estudios de la Administración Local y Autonómica is the property of Instituto Nacional de Administracion Publica and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The 'right' to protect one's name, reputation, and character from slanderous attacks or defamatory falsehoods confronts freedom of expression with a limit. First Amendment law constrains what one party may publish about a second party in the presence of or to a third party. In an effort to address the question of how to negotiate prudently the dialectical tension between protecting and yet limiting speech with respect to defamation, this essay gives primary attention to the Espionage Act cases of 1919 and to the Times v. Sullivan case of 1964. Drawing upon the work of legal scholar Francis J. Mootz, I frame the judge's task as engaging in philosophical hermeneutics of the law and legaljudicial decision-making as generative of rhetorical knowledge. I propose that twentieth century defamation case law demonstrates the epistemic and educative functions of legal-judicial practice as an inherently hermeneutic and rhetorical endeavor. [ABSTRACT FROM AUTHOR]

Copyright of Wirtschaft und Wettbewerb is the property of Fachmedien Otto Schmidt KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the courtroom. Interviews with family lawyers in Quebec show that bringing claims under the adapted doctrine is complex and costly. Variable and unpredictable outcomes impede fair and efficient private ordering. Cohabitation agreements do not seem a satisfactory solution. The study highlights shortcomings in the leading Canadian judgment, which recognizes some cohabiting couples as partnerships but stops short of presuming an equal sharing of gains during the union. But, since the participating lawyers pointed to factors that would reduce the efficacy of reform by judges or by legislatures, the study does not yield a broad preference for legislative reform over judicial reform. [ABSTRACT FROM AUTHOR]

Copyright of Umsatzsteuer-Rundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Supreme Court appears to be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal, state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under "background principles," the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of, the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could guide courts and help them to make more tenable decisions: an originalist rationale, a cultural consensus rationale, and an actual notice rationale. The arguments for and against these rationales are explored using contemporary property rights debates involving public access to beaches, evictions of tenants, and preservation of wildlife habitat on private land. The courts cannot be expected to clearly and consistently demarcate the public/private divide in property law in an unimbeachably rigorous manner, but they can and should do better. [ABSTRACT FROM AUTHOR]

Justiciability doctrines are intertwined with constitutional commands and prudential concerns. They weave together text and history; they aim to protect democracy and individual rights. In 2019, the Supreme Court, in Rucho v. Common Cause, determined that partisan gerrymandering claims suffer from justiciability problems by implicating a doctrinal subpart--the political question doctrine. Within its decision, the Court intended to calm fears that the decision would reach too far, so it wrote that other types of politically implicated claims were not impacted. For example, one-person, one-vote claims are still justiciable, the Court wrote, because they are "relatively easy to administer as a matter of math." But, beyond one-person, one-vote claims, where else is math "relatively easy"? Multiple courts are now struggling to answer this question across diverse legal problems. This Essay proposes an analytic framework to ease that struggle and answer that question: the mathematical question doctrine. In turn, this Essay defines the contours, shows its advantages, and reconceptualizes Rucho. First, it explores the background of the political question doctrine and articulates a set of its justifications. Second, it explains how those justifications flare when courts need to consider math, but it rejects a categorical treatment. Instead, the Essay enumerates factors at the core of a mathematical question: the complexity of math, numerosity of variables, and ease of quantifiability. It roots these factors within the jurisprudential justifications of the political question doctrine and shows their problematic traits. Third, the Essay revisits Rucho to show that although the proposed approach is consistent with caselaw, it is more fully fleshed out, better explains the approach and outcome of Rucho, and gives useful guidance to future courts. [ABSTRACT FROM AUTHOR]

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act ("APA"), which requires courts to decide "all relevant questions of law" and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes--the "ordinary" questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, if not most, ordinary questions involve questions of law that depend on questions of policy for resolution and can be characterized either way for purposes of judicial review. Under Chevron, courts did not need to decide how to characterize such mixed questions because the doctrine instructed them to treat statutory ambiguities as presenting questions of policy for the agency to decide. That directive eased the pressure of determining how to handle such questions for purposes of judicial review under the APA. Loper Bright has altered the doctrine but not the nature of ordinary questions. Even though courts may no longer treat these questions as ones of policy "simply because the statute is ambiguous," they do not need to characterize every question as one of law simply because a statutory term or phrase is involved. Many agency interpretations are no different in kind or degree from the agency policy decisions subject to the arbitrary and capricious standard of review in the APA. Courts determine which of the underlying questions are for them to decide independently and which are for the agency to decide, subject to the arbitrary and capricious test. This is a judicial policy choice, and we should be interested in how courts make it. Before Chevron, courts made the choice on an ad hoc basis. After Loper Bright, the temptation is for courts to ignore the problem and decide what they can. This Foreword contends that courts should make the choice mindful of established judicial norms for questions of policy. More specifically, a court should consider whether resolving a question itself would amount to judicial policymaking in the relatively concrete ways that the arbitrary and capricious test discourages. The claim is not that courts should apply the arbitrary and capricious test straight away to ordinary questions. Rather, the considerations for applying that test are useful in the first instance to discern whether a question is best regarded as one of law or policy, consistent with the APA and the normative values that undergird the allocation of authority between courts and agencies. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article describes the divorce trial of Hannah and George Webb, who appeared in Sydney’s Divorce Court in late 1901 before Judge George Bowen Simpson without a jury. Over nine days, Hannah Webb provided a harrowing account of her husband’s ongoing abuse, while George Webb described his wife’s adulterous affair, fondness for beer, and slovenly housekeeping. Drawing on Court Reporting Office transcriptions, divorce records, and press reports, my discussion considers what the legal approach to marital cruelty reveals about gender ideals and gendered power in late nineteenth-century Australia. Ample witness confirmation and widespread community knowledge of George Webb’s violence render curious the judge’s pronouncement that Hannah’s allegations of cruelty were ‘unfounded and unsubstantiated.’ Webb v Webb shows how the law could silence women by discounting their testimony, with the cards often stacked against women who appeared in court. Newly established cruelty provisions were open to individual judicial interpretation and the belief persisted that wives could avoid violence by modifying their behaviour. At a time of social change, uneducated and unskilled women like Hannah Webb remained disempowered and dependent while a male breadwinner held the balance of marital power. [ABSTRACT FROM AUTHOR]

Copyright of Umsatzsteuer-Rundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This essay articulates both empirical and historical insights of a distributive analysis, which entails presenting a critical intervention in a legal field dominated by a mainstream scholarly or policy view that is both ideologically tainted and empirically inaccurate. The transition from distributive consequences to what critical scholars refer to as a distributive analysis is a strategic intervention within each specific legal field that ought to be historicised. This article shows how the application of a distributive analysis to two canonical case studies in consumer law and gender discrimination as two distinct and relatively marginal fields in European Union law developed through the jurisprudence of the European Court of Justice. Finally, this article questions whether a distributive analysis, without a theoretical grounding in critical theory, is sufficient to ensure that it is not only an empirical tool but also committed to not perpetuating the existing inequalities within the liberal or neoliberal foundations of the European legal order. [ABSTRACT FROM AUTHOR]

Bosphorus doctrine of equivalent protection activated when states implement strict international organisations' obligations – EU principle of mutual trust requires executing member states to presume issuing member states' human rights compliance – Presumption influences the Bosphorus doctrine's application – The European Court of Human Rights drew four relevant scenarios (full discretion; strict obligations; qualified discretion; EU law breach) – Case law consistent with Bosphorus logic but unfair to applicants – Court's subsequent recalibration of 'strict obligations' requirement renders it moot, empties Bosphorus doctrine of its substance and equally undermines mutual trust regimes – Absence of equivalence of mutual trust regimes or EU accession to the ECHR as sole remedies [ABSTRACT FROM AUTHOR]

Though the Polish rule of law crisis has been on the scholarly agenda since the Law and Justice Party (PiS) took power in 2015, the individual agents of legal disruption within the judiciary have been largely off the radar. This intervention aims to fill this gap. This article analyses the legal mobilisation practices of the Supreme Court (SC) judges appointed by the PiS party in a court-packing manner after 2017. It is argued that this is a specific type of legal mobilisation; because it is conducted from within the legal system by judges, it aims to challenge doctrinal views strategically and to legitimise the status of unlawfully elected judges, which consequently destabilises the legal system. Because the legal tools to solve the conflict appear to have been exhausted, new judges engage in public discourse to convince citizens that they have a right to sit on the bench. In the first part of this paper, I critically analyse this public discourse in order to explain the framing of the rule of law crisis. The analysis of this discourse is drawn from 106 texts produced by new SC judges between 2017 and 2023. It is argued that although the 'populist' group of SC judges is internally differentiated and does not exhibit clear ideological linkage with the PiS party, it strategically produces certain legal narratives in which their appointments and judicial practices at the SC conform to the Constitution and to relevant statutes and, as such, are legitimate in legal terms. The new judges' narratives are based on four populist dichotomies that distinguish them from old judges (legitimacy–lack of legitimacy, autonomy–political dependence, formal rule of law–legal anarchy and accountability–corporatism). In the second part, the article proceeds to analyse selected case law of the Supreme Court to explore whether and how court-packing makes it more responsive to the legal mobilisation of the conservative Christian organisation Ordo Iuris (OI) and helps the governing party maintain its power. It is argued that the judicial mobilisation inside the packed Supreme Court is mostly of a discursive nature, as there is limited evidence that newly appointed judges side ideologically with the government and right-wing organisations in recent case law. [ABSTRACT FROM AUTHOR]

The special international regime for Palestinian refugees established by Article 1D of the 1951 Refugee Convention has yet to receive sufficient attention in Turkish asylum literature. Although Turkish law has incorporated Article 1D, neither scholars nor practitioners have pushed for its implementation. This research contends that Palestinians should be recognised as refugees in Turkey. Despite Turkey only granting refugee status to individuals from Europe due to the Convention's geographical limitation, this article argues that an exception should be made for Palestinians. To this end, this article addresses how Article 1D of the 1951 Refugee Convention applies in Turkey by focusing on the interplay between the Convention and Turkish laws and regulations, as well as considering recent case law in other jurisdictions, particularly in Europe. By doing so, it aims to demonstrate that it is possible, though challenging, to improve the legal status of Palestinians in Turkey, mainly through strategic litigation. [ABSTRACT FROM AUTHOR]

It has taken a while, but what has been described as the first 'gig economy' case has been decided by the Irish Supreme Court. Although the case did not involve the use of a platform to organise work, it did require the Supreme Court to rule on the question of the employment status of pizza delivery drivers, all of whom were labelled as 'independent contractors' in the contracts between the company and the drivers. The case was taken by Revenue, which contended that the drivers, in fact, should have been classified as employees for tax purposes. The Supreme Court took the opportunity to present a long and detailed judgment on the correct approach to determining employment status, and, in particular, on the role of 'mutuality of obligations' in this consideration, with an extensive review of case law from the UK. This analysis discusses the case, with a particular emphasis on the view taken by the Court on mutuality of obligations in the context of 'casual work'. [ABSTRACT FROM AUTHOR]

This article provides an overview of the Northern Ireland protocol and its implementation three years after its announcement. It explores the legal mechanisms of the protocol and how recent developments, such as the Windsor Framework, have impacted the status of EU law in Northern Ireland and Great Britain. The Windsor Framework introduces changes in areas like customs, agri-foods, VAT and excise, medicines, and governance. The article also offers background information on the Northern Irish legal order and the history of the protocol. It discusses the Withdrawal Agreement, the Northern Ireland Protocol, and the REUL Act in relation to the post-Brexit legal order, highlighting their significance in domestic law. [Extracted from the article]

Generative Artificial Intelligence (Al) tools like ChatGPT, Gemini, and Stable Diffusion are trained using datasets that often include entire copyrighted works. The use of copyrighted works to train these increasingly prominent tools has proven so controversial that a senior executive from one of the most well-known AI firms recently resigned, stating it was "exploitative for AI developers to scrape and use mass amounts of internet data to train their systems without first gaining consent from copyright holders: In this article, I examine these concerns and ultimately conclude that the ingestion of entire copyrighted works for the purpose of training Generative AI tools likely constitutes a transformative use under U.S, copyright's Fair Use Doctrine. In arriving at this conclusion, I first provide a brief overview of current litigation, then introduce case law instructive to the application of fair use to challenges presented by Generative AI tools. Next, I apply that case law to the ingestion of copyrighted works for training Generative AI tools, arguing that such use constitutes a transformative, fair use under U.S. copyright law. Finally, the article ends with optimism, exploring implications for the future of copyright law and outlining the numerous avenues that creators still have to uphold their exclusive rights. [ABSTRACT FROM AUTHOR]

This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of April 2024 and the end of June 2024. Out of a total of 231 judgments decided in this period, 26 had a contract law dimension. [ABSTRACT FROM AUTHOR]

This article examines the Hebrew Bible's use of legal metaphors in its depiction of the material cosmos (exemplified by the use of חקק) and compares it with the same phenomena in Mesopotamian texts (exemplified by the use of kittu). This study shows that the two metaphors are of two different types: the one around חקק is »legislative«, in which the creator-legislator imposes laws on the cosmos to ensure the regularity in its working; the one around kittu is »judicial«, in which the divine judge reveals his decision over divinatory cases truthfully through cosmic phenomena. [ABSTRACT FROM AUTHOR]

This article examines how imperfect legislative agreements offer an opportunity for higher courts' intervention in policymaking. In concrete terms, it explains that lawmakers in certain situations avoid resolving apparent conflicts of interest due to high transaction costs in the legislative process, maintaining statutory criteria considered transparently inefficient or by simply developing regulatory arrangements with a significant degree of indeterminacy. Employing a simplified model of rational choice behaviour, the article asserts that those scenarios constitute an opportunity for strategic involvement of the higher courts in crafting public policy. As an unintended consequence of the imperfect legislative agreements, justices look at them as an indicator that members of the other branches of government have reached weak political compromises or are unable to impose their policy preferences. Therefore, justices can exercise discretion, foreseeing prospects to increase their authority while the risk of an overruling or the implementation of other retaliatory measures remains low. [ABSTRACT FROM AUTHOR]

On 16 January 2024, the Organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE ODIHR) published its Guidelines on Democratic Law-making for Better Laws. The creation of the Guidelines was driven by the acknowledgment that strengthening democratic institutions and processes is essential in the era of democratic and constitutional erosion and decay and the recognition that contemporary law-making displays several weaknesses. Based on its decades of experience in assessing legislation and legislative processes in the OSCE participating states, ODIHR intended to provide an overview of the guiding principles of the law-making process that ensure that both the process and the resulting laws comply with the requirements of democracy, the rule of law and human rights commitments. The Guidelines offer a new and rich source of inspiration for scholars devoted to strengthening democracy. This paper identifies new(er) avenues for research in democratic erosion and revival, institutional protection of the democratic legislative process, constitutional change, and the impact of constitutional rights. Further, based on some non-OSCE participating states related examples, it shows how the potential inspirational reach of the Guidelines and the research paths it potentially encourage might go beyond the geographic scope of the OSCE participating states. [ABSTRACT FROM AUTHOR]

In the wake of excessive judicial reliance on a contractarian approach to the assessment of fiduciary duties in commercial contexts, both judicial and academic concern has been voiced as to whether such an approach is the most appropriate to ensure fair dealing. What's more, the emergence of novel commercial relationships facilitated by changing values in business and exponential leaps in the capabilities and use of technology warrant a reassessment of whether contractarianism is fit for the purpose of ushering in appropriate legal analysis so that such new developments can be appropriately facilitated. This article argues that contractarianism is not fit for that purpose and that the 'characterisation' of the relationship between parties is a superior and more equitable approach to determining the extent of fiduciary duties in commercial contexts. [ABSTRACT FROM AUTHOR]

Many common law jurisdictions recognise that directors have an obligation to consider the interests of company creditors when the company is experiencing financial distress. Despite numerous cases attempting to crystalise legal principles related to this obligation and significant academic commentary on the topic, the parameters of the obligation remain uncertain. This paper provides an analytical comparison of the latest case law in Australia and the UK concerning the two most important issues that exist in relation to this obligation, namely when is the obligation triggered and what do directors have to do to ensure that they comply with the obligation. We found that the UK courts appear to be adopting a much more restrictive approach regarding the trigger for the obligation, whereas the obligation may arise much earlier in Australia, due to the liberal framing of the trigger. An analysis of case law also revealed that the weight attached to the interests of creditors once the obligation is triggered seems to be much more significant in the UK, compared to Australia. This analysis is important as there is no doubt that courts in other common law jurisdictions, and particularly in the Commonwealth, will examine the Australian and UK jurisprudence in making their decisions in relation to any claim that directors have failed to comply with the obligation to consider the interests of creditors. [ABSTRACT FROM AUTHOR]

This article aims to situate Traveller evictions within discussions on local authorities and their role in realising human rights. It focuses on the scenario where local authorities choose to merely tolerate rather than regularise Travellers' housing situation, leading to forced evictions without culturally appropriate alternative accommodation. Through a case study in a Belgian city, three aspects will be examined. First, the local authority's position will be evaluated against the case law of the European Court of Human Rights. Second, the article will analyse the involved actors' human rights engagement. Based on these findings, a third aspect will be to briefly explore three strategies to improve local authorities' human rights performance in this context: to further develop their position within human rights law and strengthen their engagement with the supranational level; to hold local authorities accountable in terms of human rights law at the domestic level; and to integrate a human rights framework into local authorities' daily decision-making processes. It will be argued that these strategies show different strengths and weaknesses, highlighting the importance of cooperation between multiple levels and actors. Taken together, they hold the potential to reinforce each other and promote processes and outcomes truly benefitting human rights implementation. [ABSTRACT FROM AUTHOR]

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