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Artykuł dotyczy zagadnień z zakresu problematyki podmiotów prawa cywilnego i praw podmiotowych prywatnych obywateli polskich w Generalnym Gubernatorstwie (Generalgovernment für die besetzten polnischen Gebiete), istniejącym w latach 1939–1945. Po ogólnym nakreśleniu koncepcji i rzeczywistości Generalnego Gubernatorstwa jako Reststaatu autor wykazuje, że odrębna sytuacja prawna poszczególnych grup narodowościowych (status narodowy, status rasowy) zamieszkujących w Generalnym Gubernatorstwie, naruszająca zasadę równości wobec prawa, wpływała na wiele stosunków cywilnoprawnych. Analizie kolejno zostają poddane takie kwestie, jak: prawo do wstępowania w związki małżeńskie oraz utrzymywania stosunków seksualnych, naruszenie autonomii woli w zakresie prawa do świadczenia pracy, ograniczenia autonomii woli podmiotu prawa i pozycji prawnej w obrocie profesjonalnym, a wreszcie dyskryminacja ludności żydowskiej jako podmiotów prawa prywatnego. Autor dowodzi, że w odniesieniu do ludności polskiej, w interesującym nas tu zakresie prawa cywilnego, co prawda przed sądami polskimi stosowano polskie ustawodawstwo, jednak zostało ono w istotny sposób zmienione bądź uchylone przez ustawodawstwo Generalnego Gubernatorstwa. Ponieważ autonomia jednostki przestała być zasadniczym elementem prawa prywatnego, to tym samym nie tylko coraz wyraźniej zawężała się sfera, w której podmiot prawa swobodnie regulował sytuacje prawne stworzone aktami swojej woli, lecz także, a nawet w szczególności, zmniejszała się sfera tradycyjnie chronionych przez prawo cywilne praw podmiotowych prywatnych jednostek. Efekt dyskryminacji narodowościowej i rasowej Polaków łączył się tu nierozerwalnie z fundamentalnym dla interesów Trzeciej Rzeszy aspektem wyzysku ekonomicznego. W stosunku do ludności żydowskiej natomiast od samego początku zasadniczym celem okupanta było pozbawienie Żydów godności osobistej, ich stygmatyzacja, upokorzenie, pozbawienie woli oporu i zmuszenie do posłuszeństwa eksploatacja ekonomiczna, „wyniszczenie przez pracę”, a ostatecznie eksterminacja całego narodu.

Cases of marine environmental pollution (MEP), such as condensate leakage in the Sanchi case, not only directly infringe on private personal health and property rights, but also cause serious damage to the marine ecological environment. This paper analyzes dozens of MEP cases and summarizes the typical rights, interests, and remedies under Chinese law. Traditional tort liability legislation remedies the problem of infringement of private interests by environmental torts through compensation and punitive damages but it cannot reverse the damage to the marine ecological environment. Traditional civil legislation is built on the basis of rights and interests regarding damages and relief. MEP infringes on a wide range of citizens’ environmental rights and should be addressed by the environmental public interest litigation (EPIL), which is an important way to protect citizens’ environmental rights. This paper analyzes the legal interests, relief measures, and limitations of the existing EPIL legislation that is applicable to MEP cases under Chinese law, so as to make corresponding legislative suggestions.

Objectives: This paper studies the legal system of tobacco control based on environmental protection law under the background of the Framework Convention on tobacco control. Methods: Using the research methods of comparative analysis and literature analysis, and taking the tobacco control law as the starting point, this paper expounds the development of global tobacco control civilization and the historical process of tobacco control at home and abroad. By analyzing the problems existing in the production, sales and consumption of tobacco products in China, we can trace the source in the specific links of the life cycle of tobacco products. At the same time, this paper systematically analyzes the defects of China's tobacco control system in taxation and private rights, and summarizes the shortcomings of China's tobacco control system. Results: Many cities have begun to try to enact non-smoking regulations to control smoking in public places. China's deficiencies in this regard are mainly due to the low level of relevant laws and regulations, which are basically local laws and administrative rules. The second is the problem of implementation, resulting in the inadequate or virtual implementation of many laws. Conclusion: From the development trend of various countries, the view of respecting others' health rights and gradually banning smoking has gradually become everyone's consensus. The consolidation of this understanding needs the support of laws to form a set of nonsmoking system with national laws as the core and administrative rules and local regulations as the supplement. Rights and responsibilities are clear, and rewards and punishments are based on evidence. Only in this way can we ensure to reduce the smoking rate, protect everyone's health, and finally form a good atmosphere of no smoking and no respect for smoking in the whole society.

Introduction. Adoption of new laws of civil and substantive law, the novelty of legal relations governed by the rules of these laws, the complexity of civil conflicts arising from these legal relations, require a high level of legal protection, compliance with the rule of law by all members of society. Only the law allows interested parties to choose the form of protection. This form can be traditional – jurisdictional (provides for the establishment of a body and procedure for the protection of violated rights), and non-jurisdictional (but certainly allowed by law), which may resort to interested parties. obstacle to the exercise of the right. Resolution of legal conflicts is possible not only through a jurisdictional form of protection. A non-jurisdictional form of protection of civil rights is the independent protection of a person of his violated rights. That is, the person does not apply to the competent state authorities. In fact, it is the commission of actual actions aimed at protecting and securing their personal property and other non-property rights. The purpose of the paper is a thorough study of models of non-jurisdictional protection of property rights in the system of protection of civil rights by analyzing the theoretical and practical aspects of using alternative methods of protection of private rights in general and mediation. Result. It is determined that the non-jurisdictional form of protection of civil rights is the actions of citizens and organizations aimed at protecting their own civil rights, freedoms, and legally protected interests. It is noted that these actions are carried out and implemented by eligible entities independently, without seeking legal assistance from government agencies and structures, as well as officials. It is determined that the mechanism of legal protection is implemented in non-jurisdictional ways in the field of legal regulation when it is necessary to overcome and eliminate obstacles that arise in the exercise of rights and legitimate interests of the subject of law, in other words – to quickly protect (ensure) legal status. It is determined that in international practice, namely in European countries, the basis of non-jurisdictional protection of property rights is mainly in the use of negotiation and mediation procedures. Non-jurisdictional form, which is usually local in nature, is achieved as a result of actual actions, occurs not in jurisdictional or procedural forms, but within the protected substantive legal relations, which are the subjects of such legal relations (usually imply The main difference between jurisdictional and non-jurisdictional forms of protection of rights is that the protection of rights in jurisdictional form is carried out by the competent state and public authorities with each of them a certain procedural order of activity, while protection in a non-jurisdictional form takes place within the framework of a substantive legal relationship and is carried out by the parties themselves in the legal relationship. Conclusion. The study proves that in Ukraine, priority should be given to the development of various forms of out-of-court dispute resolution. The basis for this should be the legislative consolidation of out-of-court settlement of civil disputes as one of the basic principles of protection of violated private rights (of course, without revoking or replacing the right to judicial protection). Non-jurisdictional methods of protection of private rights are defined in the legislation of Ukraine and can be used due to the dispositive nature of the civil law method of regulation. However, this is insufficient, as participants in civil legal relations in case of violation of their rights are primarily confronted in the law with a defined right to judicial protection of violated rights, and often consider the court as the only possible form of protection.

This paper offers a non-reductivist account of the requirement of legitimate authority in warfare (RLA). I first advance a distinction between private and public wars. A war is private where individuals defend their private rights with their private means. A war is public where it either aims to defend public rights (e.g., a people’s right to self-governance) or relies on public means (e.g., conscription and taxation). I argue that RLA applies to public war but not private war. A public war waged by a belligerent without legitimate authority involves a form of illegitimate domination of the people. Contra the conventional wisdom that RLA is only an ad bellum principle, I show that RLA is also a vital in bello principle. Relying on the Kantian non-voluntarist account of political authority, I argue that only legitimate states have the right to wage public wars. However, I also contend that RLA is not an absolute requirement, even regarding the justice of public war. Under extremely unfavorable conditions, this requirement may be overridden by weighty considerations in favor of resorting to public war without legitimate authority. In sum, my account of RLA protects ordinary people from illegitimate coercion involved in guerrilla warfare in general yet generates proper permission for responsible, aspiring state founders to secure social justice by coercive means under extraordinary situations.

The principles of adjusting the regulation of civil relations in the context of the Covid-19 pandemic are analyzed. The admissibility of restricting human rights in the context of the conflict of private and public interests are researched. Besides, the authors tried to determine the optimal algorithm of government actions aimed at preventing the spread of the epidemic. The main approach to the understanding of human rights in the article is based on Dworkin's concept of “rights as trumps”. A system of such categories as “a man”, “a private person”, “natural private rights”, “private law” and “national civil law” is analyzed. The conclusion is that the importance of the category of “natural” human rights is underestimated, which exacerbates the problem of ensuring human rights in a pandemic, when the state actively uses public law to cope with the crisis. As a result, there is a conflict of basic principles of private and public law: “everything is allowed except what is prohibited by law” vs. “only what is allowed by law is possible”. It is proposed to assume that the usual way of the legal existence of a person is that he/she acts as a participant in civil relations of a private type, even in a pandemic. Private relations, which arise during the quarantine period, are proposed to be regulated mainly by private law methods, limiting the influence of the state. This will allow us to reach a compromise of private and public interests, without restricting the rights of individuals voluntarily.

This article examines the extent to which Christianity and the Church have influenced Jamaican constitutional law regarding the guarantees of equality and freedom from discrimination on the grounds...

The U.S. led the world in environmental policy in the 1970s, but now lags behind comparable nations and resists joining others in tackling climate change. Two embedded, entwined, and exceptional American institutions—broad private property rights and competitive federalism—are necessary for explaining this shift. These two institutions shaped the exceptional stringency of 1970s American environmental laws and the powerful backlash against these laws that continues today. American colonies ensured broad private rights to use land and natural resources for profit. The colonies and the independent state governments that followed wielded expansive authority to govern this commodified environment. In the 1780s, Congress underwrote state governance of the privatized environment by directing the parceling and transfer of federal land to private parties and of environmental governance to future states. The 1787 Constitution cemented these relationships and exposed states to interstate economic competition. Environmental laws of the 1970s imposed unprecedented challenges to the environmental prerogatives long protected by these institutions, and the beneficiaries responded with a wide-ranging counterattack. Federalism enabled this opposition to build powerful regional alliances to stymie action on climate change. These overlooked institutional factors are necessary to explain why Canadian and American environmental policies have diverged.

The paper given by the problem of legal status of representatives of execution process parts. Legal regulation of the status of the representatives of execution process parts has been analyzed in the scientific article and researched. Representatives of execution process parts are determined as the members of executive process (par. 1 art. 14 The Law of Ukraine “On Executive Process”). In compliance with this prescriptions of legislation the parts of executive process are one member of executive process, the representatives of execution process parts are other members of executive process. It is slightly strange because the representatives of execution process parts realize in the executive process rights and execute obligations of parties, but not theirs own private rights and obligations. So, the question of necessity of separation, mentioned above, rises. Similar situation existed in civil process some time ago, but nowadays the prescription of art. 42 of The Civil Procedural Code of Ukraine provide that parties are the members of civil process, but the prescription of art. 58 of The Civil Procedural Code of Ukraine provide that parties can take part in the civil process by their own or via the representatives. There is resumed in the article that the capacity of the part of executive process to have the representative in executive process and realization rights and obligations in executive process via representatives are not identical. The author of the scientific article propose to state the prescriptions of par. 1 art. 16 The Law of Ukraine “On Executive Process” by the following manner: “Physical person can take part in the executive process by its own, or via representative. If the debtor is obliged to fulfil the acts by its own, execution of these acts can be made only by the debtor and cannot be executed by its representative”. If the representative has some restrictions to fulfil some acts under the name of the part of executive process, these restrictions are to be determined by the power of attorney. Other scientific researches of the theme of legal status of representatives of execution process parts are imagined as perspective because of the thesis as follows: representation in the jurisdictional activities as the legal relationship has different aspects – legal-material aspect and legal-procedural aspect.

The article is devoted to the memory of the outstanding Russian scholar Dmitriy I. Meyer (1819—1856) — the ancestor of Russian civilistics who declared that the rights of individuals depend on different circumstances that are, to some extent, natural and, to some extent, historical. Meyer’s statement that “there are different degrees of insanity: sometimes it is stronger, sometimes weaker” turned out to be accepted by the Russian legislator only in 2015 by making appropriate changes in the Russian legislation regarding the problem of legal capacity of citizens. The paper has investigated the evolution of the content of legal personality of individuals in the field of private legal relations, including family relations, as well as in the field of relations complicated by a foreign element, i.e. in the field of private international law. On the basis of the analysis, the author explores a civil legal personality of a natural person category as her ability to be a subject of civil law including such elements as capacity and legal capacity. Civil capacity should be understood as a legally equal abstract opportunity for everyone to have civil rights and duties. It is unacceptable to consider capacity as a subjective right to have the right: this leads to an unjustified doubling of the category of “subjective right” and hinders a proper understanding of the mechanism of civil regulation. The article investigates the subjective right as implementation of capacity of a particular person, and, therefore, citizens being legally equal in their capacity, to be not equal in the presence of specific subjective rights that constitute the content of their capacity in the abstract form. The authors have analyzed the amendments to the Civil Code of the Russian Federation introducing a new basis for limiting the legal capacity of citizens, as well as taking into account the degree of actual reduction of the ability of citizens to understand the meaning of their actions or to be in control of such actions. The article analyzes the conflict-of-laws principles of determination of capacity and legal capacity of foreign citizens. Jurisprudence, along with the recognition of the national regime of foreign citizens on the territory of the Russian Federation, indicates the need to apply foreign laws in determining the civil capacity and legal capacity of foreign nationals. The article analyzes the private law component of the institute of retortions the immediate purpose of which is to protect private rights and legitimate interests of Russian citizens. Thus, the content of the concept of civil personality of natural persons in the field of private law relations that consists of such categories as capacity and legal capacity evolves into the recognition of equality and the protection of the interests of all persons on the basis of the principles of justice, humanity and reasonability. At the same time, the State secures legal guarantees applied for the completion of the legal capacity of minors and certain categories of adult citizens through institutions of parental responsibility, guardianship and custody and establishes procedural guarantees of observance of the rights of these persons in judicial proceedings.

Regulatory rules are omnipresent today. Increasingly, they also influence private rights and obligations, from employment contracts to competition law and data protection. Private international law...

In recent years, there has been increasing pressure on public health systems in high-income countries due to high medicines prices, one of the underlying causes of which are the market monopolies granted to pharmaceutical undertakings. These monopolies have been facilitated by expanded forms of intellectual property protections, including the extension of the exclusivity period after the expiration of the patent term concerning medicinal products. In the European Union such an approach lies in the Supplementary Protection Certificate, a mechanism formally introduced under Regulation 1768/92/EEC (now: Regulation 469/2009/EC, amended). After more than 20 years of implementation since it was first introduced, the common justifications for SPCs are being challenged by recent findings as to their functioning and impact. Similarly, legitimate questions have been voiced as to the negative impact of SPCs on timely access to affordable medicines.On the basis of an analysis of three medicines for hepatitis C and cancer treatments, the present article critically engages with the policy justifications underlying SPCs. It then analyses access challenges to a hepatitis C medicine and an HIV treatment in Europe, highlighting the social cost of the introduction of SPCs. Both the normative and empirical analyses have demonstrated that the common justifications supporting the SPC regime are deeply questionable. The addition of SPC exclusivity has also heavily delayed competition and maintained high medicines prices in European countries. Ultimately, the granting of such extended exclusive private rights on medicines may result in unnecessary suffering and be a factor in the erosion of access to medicines for all.

The essential features of the concept of the sham marriage are considered (registration of marriage, the expression of the will of the couple to register marriage, and the lack of intention to create a family). The analysis of the legal grounds for the emergence of marriage bona fide spouse rights in case of the invalidity of the sham marriage and the rehabilitation of the sham marriage, which are sets of legal facts, is carried out. The authors argue for the possibility of invalidating the sham marriage after the death of the spouses. There is a critical point of view on the issue of establishing administrative or criminal liability for the sham marriage if only private rights are violated. It is advisable to protect private rights violated by the sham marriage by means of private law, which allows ensuring the personal privacy. At the same time, the commission of the sham marriage can be considered as a qualifying feature of an illegal act that violates public law (violation of the procedure for admission to citizenship, acquisition of the right to state benefits, and others), or as an aggravating circumstance when imposing the appropriate punishment. In the comparative legal aspect, the system of measures to counteract the sham marriages is considered. Given that the liberalization of views on cohabitation and the possible de lege ferenda recognition of their legal force will complicate the problem of fictitious marriages, it is proposed to put the recognition of the status of spouses for cohabitees under the condition of providing evidence of the creation of a family and establishing the relevant fact in court.

The ability of federal agencies to carry out actions or programs is based on their legal authorities. Efforts to improve federal capacities for the early detection of and rapid response to invasive species (EDRR) require careful delineation of legal authorities, regulations, and policies that would enable or limit EDRR. Building on information provided by federal agencies and an inspection of the US Code and the Code of Federal Regulations, we review and identify relevant authorities to determine federal legal capacities, gaps, and inconsistencies to address EDRR. The EDRR process can be examined in the context of four categories, including (1) explicit invasive species authorities, (2) emergency authorities that could be triggered during a crisis or serve as models for enhanced invasive species EDRR authorities, (3) supporting authorities that could be used under agency discretion, and (4) constraining authorities and legal requirements. Although the Plant Protection Act and the Animal Health Protection Act are comprehensive authorities that address the detection of and response to organisms that threaten plant and livestock health, there is no single authority that encompasses EDRR for all invasive species. Rather, there is a patchwork of authorities that unevenly addresses various aspects of EDRR. In addition to gaps in authority, EDRR efforts could be constrained by environmental compliance, as well as subnational governance and private rights. Although some of these gaps could be closed through legislation, others need to be addressed using the discretionary power of federal agencies and their ability to establish cooperation mechanisms with private and subnational entities.

The 2001 Cape Town Convention provides a mechanism for recognizing and recording international security interest in high- value moveable equipment. However, Law No.83 of 1958 did not mention the recording of secured private rights or security interests in aircrafts. Furthermore, Law No.15 of 1992 on Airport Transportation succeeded Law No.83 of 1958 which contained some rules on secured rights in aircraft. Chapter X of the new law no 1 of 2009 on Aviation could be regarded as the implementation of the Ratified Cape Town Convention and its Protocol. Does it mean that a national interest should be registered in the International registry, even though the aircraft object is legally owned by an Indonesian seller /lessor/creditor, but beneficially owned and operated by an Indonesian airliner/lessee based on a contract governed by Indonesian Law?

The prospect theory of patents views patents as a tool for the development and commercialization of inventions. Prospect patents rely on broad control of technology so that rivalry between competing products is diminished thus avoiding waste of common-pool resources. The theory has been widely criticized but in this article we argue that it does not address the realities of an economy where many innovations are created by universities. Although university patents on inventions such as new gene-editing tools fit squarely in the definition of prospect patents, they may still allow rivalry to resurface at the commercialization stage. This rivalry is not between competing firms; it is between competing visions of the prospect: ‘the university’s vision versus the licensees.’ We use as a case study the CRISPR-Cas9 technology invented by universities and commercialized by licensees. We employ patent landscape analysis showing that CRISPR-Cas9’s prospects comply with the characteristics of prospect patents and, above all, diminish rivalry at the commercialization stage. As the lack of competition leads to excessive treatment prices, tensions arise because the licensee understands CRISPR-Cas9 as a revenue-generating prospect, whereas the university views it as a technology requiring broad distribution. Such discerning visions can breed rivalry between licensor and licensee despite broad patent rights. In addressing this we turn to the literature on semi-commons, which implies an environment where private rights of exclusion such as prospect patents work with ethical licenses and a domain of resources open for reuse to foster innovation. We argue that in this environment, universities can emerge as important actors in the regulatory enterprise through additional ex post licensing. To this end, we propose a market-based solution in the form of a license allowing for patent re-licensing if the licensee fails to address a predefined demand for the final product.

With the advent and popularization of computers, network technology, digital technology and smart phones since the 20th century. Electronic data plays an increasingly important role in judicial proof activities all over the world. So far, a new proposition “electronic evidence era” has been put forward. On this basis, the civil law is not enough to provide comprehensive protection for the right of privacy, and the academia began to study the constitutional protection of the right of privacy. There is no place where the right of privacy needs to be protected by the constitution more than the stage of criminal investigation, that is, the stage where public power and private rights are most likely to conflict. In view of the particularity of electronic data that the traditional types of evidence do not have, the search and seizure of electronic data is more likely to infringe on citizens' privacy. Therefore, it is particularly important to study the protection of privacy in electronic data search and seizure.

A secular state, like United States of America, guarantees the private right of individual to express their religious ideas in public. In the era of media, religious broadcasting serves as a mean for individuals to express their private rights of speech and act based on their faith in public. By taking prosperity televangelical broadcasts as the main object, this article examines several aspects that are critical for understanding the religiousness and the secularization of American televangelism. This article provides an overview of the socio circumstances and movement roots of evangelism, examines the religiosity and spirituality frames in televangelism, and identifies the commodification of the religiosity and spirituality frames.

We use the social-ecological trap (SET) concept and path-dependence analysis to explain the emergence and persistence of illegal fishing, taking the Chilean king crab fishery as a case study. The results suggest that the fishery is caught in a SET, which we label the “illegality trap”, characterized by positive feedbacks between regulation astringency, illegal access, fishers’ resistance, and fishing effort that keep the fishery in an undesirable state. As a process, illegal fishing arises as the denunciation of past poverty conditions and policies enacted to protect private rights to the sea, against traditional fishing logics. As a state of the system, illegal fishing is a relational phenomenon involving fishers, intermediaries, processors, and consumers. Over time, the different types of fishers emerge along well-structured international and local fish chains: the legal fisher, the cooperative fisher, the legal-illegal fisher, and the illegal fisher, encompassing a continuum from subsistence to competitive rationalities, which reflect adaptive strategies in the face of normative-legislative constrictions and market opportunities. Yet, the “legal” or the “illegal” is not a permanent condition, but it can be one and/or the other, depending on the circumstances. These results contend the reductionist view of the deterrence dogma which depicts illegal fishing as a matter of rational utility maximizers. On the contrary, the SET described here reflects the complexity of a problem with many edges, from legislation legitimacy to cultural responses across all the actors involved.

This chapter explores IP and oil and gas frameworks particularly in the UK and in Canada, and the different approaches taken to information sharing and some litigation at national level and through Investor State Dispute Settlement. This chapter notes that the existence of clear goals of a regulatory system, an assertive regulator with robust enforcement powers, and industry support for new regulatory approaches may seem to have created oil and gas regimes which can prevail over IP rights when the two fields clash in respect of information of sharing and re-use. It is suggested that the two sets of decision makers are in fact taking a blinkered, or at least incomplete, approach to addressing this apparent battle of equals. This chapter then builds arguments which can have an impact on all regulatory and legislative actions to address a public goal when the response (properly viewed) involves more than one policy area and field of law, and also involve private rights.

In a political society where service to the king and kingdom are passed down family lines – so, where public responsibilities are hereditary, where the monarch himself is simultaneously head of State and head of a lineage but sacrifices his inheritance to run the country – the boundary between public and private is problematic, to say the least. This article uses the royal domain to analyze how theorists of power under the Ancien Régime discussed the dividing line between the public and private spheres. The domain, the inheritance of the kings of France, was originally composed of possessions of the Capetian family but ownership gradually shifted to the crown, thus making them possessions of the State. Private rights then challenged collective interest in a history deeply shaken by the accession of Henri IV to the crown and the union of his holdings with the royal domain. The ensuing enquiry by legal advisors raised issues that are active to this day, ultimately shedding light on a central aspect of political construction both before and after the French Revolution. The connection between the dynastic nature of the monarchical regime and the assertion of sovereignty leads to a tension that opens the path of modernity, but without resolving one of the major contradictions of the system, in which the respect of personal or corporate acquisitions presupposed by privilege could upset an all-powerful dedicated to the benefit of all. Dans une société politique où le service au roi et au royaume se transmet dans la famille, où donc les charges publiques sont héréditaires, où le monarque lui-même est tout à la fois un chef d’Etat et un chef de lignage et qui, pourtant, sacrifie ses biens patrimoniaux au fonctionnement du pays, la frontière entre le public et le privé est pour le moins problématique. Cet article se propose ainsi d’analyser la manière dont les théoriciens du pouvoir discutent, sous l’Ancien Régime, des limites entre ce qui relève de la sphère publique et ce qui appartient à la sphère privée en prenant pour objet le domaine royal, cet héritage des rois de France formé à l’origine par les possessions capétiennes mais progressivement rattachés à la couronne et, à ce titre, un bien de l’Etat. C’est alors l’intérêt collectif qui est mis à l’épreuve des droits particuliers à travers une histoire profondément secouée par l’avènement d’Henri IV et la réunion de ses biens familiaux au domaine royal. Le questionnement engagé par les jurisconsultes soulève des interrogations qui viennent jusqu’à nous et éclaire, finalement, un aspect essentiel de la construction politique en amont comme en aval de la Révolution. L’articulation entre la nature dynastique du régime monarchique et l’affirmation de la souveraineté crée une tension qui ouvre la voie de la modernité sans cependant résoudre une des contradictions majeures d’un monde où les privilèges supposent le respect des acquis personnels ou corporatifs susceptibles de heurter une toute puissance dédiée au bénéfice de tous.

Polemics with the view that the right to the grave is always only a property right has led me to pay attention to the phenomenon of private rights. Probably all private rights to goods are both of proprietary and non-proprietary character, certainly in various proportions. Moreover, an attempt to define the nature of goods as only property or only non-property seems unreliable. The article also reminds the former role of footnotes as a place of valuable digressions, complementing polemics, sometimes invaluable pieces of information. Besides I present such areas of research on law, regarding the post mortem situations, which are rarely of interest to scholars.

As it works to define the relationship between the federal courts and the boards, commissions, and agencies that make up the administrative state, the Supreme Court has long distinguished between public and private rights. Dating from the decision in Murray’s Lessee, the public rights doctrine allows Congress to assign some matters either to the Article III judiciary or to non-Article III courts. Despite the doctrine’s pedigree, however, courts and commentators disagree about what triggers it. Only two years ago, in Oil States v. Greene’s Energy, the Court upheld the patent board’s power to review patent validity as a matter of public right. But a spirited dissent argued that patent validity contests require an Article III court. Similar disagreements have peppered the Court’s analysis of other public rights questions. This Article offers a new account of Murray’s Lessee and a new synthesis of the public rights doctrine. Murray’s Lessee did not turn on Congress’s power to manage the government’s immunity from suit or on the government’s appearance as a party to the litigation (as many have mistakenly assumed). Instead, the Court drew on a distinction between the creation or constitution of new rights and the adjudication of disputes over existing rights. Nineteenth century jurists insisted on judicial control of adjudicatory matters, but deferred when Congress conferred discretionary authority on a board or commission or court to fashion new rights through the issuance of a constitutive decree or order. The distinction between the adjudicative resolution of disputes over existing rights and the issuance of constitutive orders to create new rights does much to explain Murray’s Lessee and other controversial applications of the public rights doctrine. Applying this new understanding to Oil States, the Article concludes that although patents issue through a constitutive process, disputes over their validity present adjudicative issues that fall outside the public rights doctrine.

Internationalism has long been regarded as an important goal of any national conflict of laws system. The three main branches of the subject–jurisdiction, choice of law and recognition and enforcement of foreign judgments–should be developed in a manner sympathetic to the needs of international trade and interaction and allow for recognition of foreign interests. In exceptional cases, however, local public policy should also be available to protect private rights. Internationalism is a major theme in the recent book, The Conflict of Laws in New Zealand. This article assesses the state of internationalism in New Zealand conflict of laws and the contribution of the book to the issue.

This chapter first provides a historical survey of Japan’s townscape preservation movement and the legal system surrounding preservation, and then situates the Otaru canal preservation movement within this general picture. I argue that Japan’s systems of urban planning and cultural asset protection are ill-equipped to address the challenge of preservation. I also review Japan’s traditional townscape “etiquette” as a technique for combining private rights with publicness, and contrast this approach with modern urban planning in Japan, which makes no attempt to mediate the clash between public and private rights. Japan’s townscape preservation movement recognized that the “legality” of individual buildings obstructed attempts to preserve the broader townscape. This chapter demonstrates how preservation movements that challenge problematic yet “legal” cityscapes and protest the demolition of townscapes that have fallen through the cracks of the system of legal protections, constitute a sharp criticism of contemporary Japan’s urban environment.

One of the fastest growing areas of international law in recent times is also one of the most controversial. Between 1990 and 2010, the number of investment treaties surged from less than 500 to over 3,000. Through this expansion, foreign investors gained extensive rights to sue sovereign states directly in arbitration through investment treaty arbitration (ITA). The result: a remarkable transfer of sovereign power to a semi-private supranational adjudication system. Once investors challenged governments through the ITA system, bringing hundreds of claims, backlash ensued. Cases in which foreign investors challenged public interests—for instance, health regulations and emergency financial management—amplified outrage. Adjudicating disputes between foreign investors and sovereigns involves the assertion of private rights in matters of public interest. ITA involves the intrusion of international law into domestic spheres—in a sense, “peak” globalization. Yet, despite direct and compelling consequences for public interests, transparency in ITA is persistently low. Our study uses predictive modeling to shed light on ITA activity. We calculate the dimensions of overall ITA activity, combining known amounts with an estimate of unknown claims and awards. In doing so, we illustrate the “transparency gap” in ITA, which we estimate as an unreported $186 billion in claims and $15 billion in awards.

In this work, I examine the impact that breach notification laws have had on the incidence rate of breaches of consumer data. Since 2003, every US state has passed some form of breach notification requirement. In doing so, the stated goal has been to create a market for consumer privacy, wherein consumers may select into interacting with firms that are more responsible stewards of their data. However, limited empirical work has been devoted to determining the impact of these legislative efforts. Results from a multi-site difference in difference estimation indicate no significant change in the number of breaches or the number of breached records after the passage of such statutes. Results further suggest no demonstrable long-term change in the number of identity thefts or claims of fraud, i.e., a precisely estimated null. This absence of effect persists when considering legislative efforts that create private rights of action, require notification of the attorney general, and more; and suggests the need to consider different ways to approach consumer privacy. I propose one such alternative, standards setting by an administrative agency which creates safe harbors for conforming firms.

America was founded on institutionally recognized and supported racial oppression, namely, slavery and conquest. The fact that the inequality spawned by this oppression continues to exist today should therefore surprise absolutely no one. That said, the extent of the racialized social and economic inequality that pervades American society today is being exposed in horrifying and glaring detail, as a result of the Covid-19 pandemic. But the devastation is not being felt equally--people of color are dying at greater rates and suffering the economic consequences of the pandemic much more than white people. And, of course, Wall Street and American billionaires are doing really well. The Haves come out ahead. We’ve all seen and heard this before. But two important details are obscured and therefore overlooked in this widely accepted observation, namely, the role that contracts and contract law play in facilitating this reality and the profound and often devastating social consequences that contracts and contract law help produce in this process. This Essay attempts to redress this oversight. The Essay first provides a brief step by step analysis of contract law in action, the practical effect of which is to ensure that contracting parties who start with more end up with more. The first part thus shows how contracts and contract law help to create and perpetuate inequality in American society. The Essay then explains why contracts and contract law’s role in producing economic and social inequality is largely ignored. The short answer is because, depending on who the adversely affected contracting party is, a contract is usually understood as a private transaction between private parties asserting their private rights. To understand how you get everyone to buy into the fiction that contracts are usually private is to understand ideology and how it is reproduced in the field of contract law. Perhaps counterintuitively, the Essay traces part of contract law’s evolution story to Emancipation of the slaves and the Reconstruction that followed it. The final part of the Essay briefly revisits the housing market crash that precipitated the Great Recession of 2007-2009 to illustrate the devastating consequences that contracts and contract law help produce and the skewed response to those consequences that are engendered, at least in part, because we cling to the fiction that contracts and contract law have nothing to do with inequality. Unless we do something differently, like acknowledging that the day-to-day practice of contracts and contract law help create and perpetuate inequality in American society, then it seems very likely that the Haves will continue to come out ahead. But the Have Nots will end up being evicted from their homes and remain on the hook to their landlords for the back-rent.

The Biden–Harris Administration’s ambitious America the Beautiful Campaign to protect thirty percent of the United States’ lands and waters by 2030 will require a comprehensive inventory of conservation tools. This Article contributes to that inventory by identifying and evaluating a novel use of the authority of the Bureau of Land Management (BLM) to issue rights-of-way under Title V of the Federal Land Management & Policy Act (FLPMA) over the vast public lands managed by the agency, which account for roughly ten percent of the surface area of the United States. It contends that the BLM could issue a “conservation right-of-way” to a state, tribe, local government, or private party seeking to restore and protect ecological systems. Creating private rights to conservation in appropriate circumstances could address persistent asymmetries between active use of public lands — which tends to occur through private rights — and conservation use of public lands — which tends to occur through public policy. The BLM could plausibly deploy conservation rights-of-way in an array of circumstances, for example, to authorize the construction and maintenance of mitigation banks for wetlands or wildlife habitat or to monitor and maintain wildlife corridors. Conservation rights-of-way could be small in scale, nuanced and context dependent, and they could be issued in a distributed fashion at BLM field offices throughout the United States. These features suggest that conservation rights-of-way could serve as an important supplement to other conservation tools.

Children, especially Black children, are killed, traumatized, injured, and terrorized through assaults, solitary confinement, inappropriate handcuffing, and other excessive applications of physical force upon children in public schools. The state employees enacting such maltreatment are not just police. They are mainly teachers, principals, and security guards, and they are given authorization by law for purposes of “educating,” “disciplining,” and “maintaining order” in public schools. Scientific research does not support the use of physical force to improve behavior, however. This article describes the problem of school brutality, the excessive, unwarranted, and traumatizing use of physical force by state employees upon students. By traumatizing children, school brutality can cause lasting and disabling developmental and educational harm. School brutality is facilitated by multiple legal structures, including a tort law privilege rooted in colonial times; an inconsistent patchwork of state laws permitting seclusion, restraint, and corporal punishment; qualified immunity; lack of regulation of police officers’ actions in schools; federal funding for regular police presence in public schools; and lack of enforcement and review of reporting on school brutality. Substantive due process rights under the Fourteenth Amendment, originally framed to protect adult criminal suspects, are inadequate for children. Unless state employees become less shielded from civil and criminal actions that seek to hold them accountable for school brutality, new private rights of action are needed. State and federal legislators can save lives and support educational achievement by ending the legalization of school brutality.