This book is the third in a series of essay collections on defences in private law. It addresses defences to liability arising in contract. The essays range from those adopting a predominantly black-letter approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while others are concerned with the links between defences, or with how defences relate to the structure of contract law generally. One goal of the book is to determine what light can be shed on contract law doctrines by analysing them through the lens of defences. The contributors - judges and academics - are all leading jurists. The essays are addressed to all of the major common law jurisdictions.

The concept of legal culture, Roger Cotterrell; the concept of legal culture - a reply, Lawrence Friedman; civil litigation as indicators for legal cultures, Erhard Blankenburg; puzzling out legal culture - a comment on Blankenburg, David Nelken; comparative criminal law for criminologists - comparing for what purpose?, Malcolm Feeley; for a sociological use of the concept of legal culture, Carlo Pennisi; comparing legal cultures and the quest for law's identity, Michael King.

This book contains a series of essays discussing the uses of precedent as a source of law and a basis for legal arguments in nine different legal systems, representing a variety of legal traditions. Precedent is fundamental to law, yet theoretical and ideological as well as legal considerations lead to its being differently handled and rationalised in different places. Out of the comparative study come the six theoretical and synoptic essays that conclude the volume.

How far do contemporary English and German judges go when they interpret national legislation? Where are the limits of statutory interpretation when they venture outside the constraints of the text?Judicial Law-making in English and German Courts is concerned with the limits of judicial power in a legal system. It addresses the often neglected relationship between statutory interpretation and constitutional law. It traces the practical implications of constitutional principles by exploring the outer limits of what courts regard themselves as authorised to do in the area of statutory interpretation. The book critically analyses, reconstructs and compares judicial law-making in English and German courts from comparative, methodological and constitutional perspectives. It maps the differences and commonalities in both jurisdictions and then offers explanatory accounts for these differences and similarities based on constitutional, institutional, political, historical, cultural and international factors.It will be shown that a fundamental unity of statutory interpretation exists in English and German judicial practice in the sphere of rights-consistent and EU-conforming judicial law-making. The constitutional settings and legal cultures in Germany and the UK have converged in both areas of judicial law-making. However, that is not the case for judicial law-making under conventional canons of statutory interpretation, where significant differences in judicial approach to statutory interpretation remain.Judicial Law-making in English and German Courts is the first monograph in English that compares English and German legal methodology as applied in judicial practice, appealing to those interested in statutory interpretation, comparative law or legal methodology.

Are intellectual property rights like other property rights? More and more of the world's knowledge and information is under the control of intellectual property owners. What are the justifications for this? What are the implications for power and for justice of allowing this property form to range across social life? Can we look to traditional property theory to supply the answers or do we need a new approach? Intellectual property rights relate to abstract objects - objects like algorithms and DNA sequences. The consequences of creating property rights in such objects are far reaching. A Philosophy of Intellectual Property argues that lying at the heart of intellectual property are duty-bearing privileges. We should adopt an instrumentalist approach to intellectual property and reject a proprietarian approach - an approach which emphasizes the connection between labour and property rights. The analysis draws on the history of intellectual property, legal materials, the work of Grotius, Pufendorf, Locke, Marx and Hegel, as well as economic, sociological and legal theory. The book is designed to be accessible to specialists in a number of fields as well as students. It will interest philosophers, political scientists, economists, legal scholars as well as those professionals concerned with policy issues raised by modern technologies and the information society.

Annually, the government commits significant expenditure to a type of public contracts which are known as Public-Private Partnerships (PPPs) or the Private Finance Initiative (PFI). These contracts bind the public purse for decades in sectors such as Health, Defence and Detention, and involve the assignment of a significant role to the private sector in the provision of public services. This book explores the controversial subject of the public accountability of these contracts, and the corresponding large sums of public money involved. It explains how public accountability works for PPPs and the PFI, and it argues that it should be provided as part of the Economic Constitution. Drawing comparative understandings from the UK and the USA constitutional legal traditions, the book investigates public accountability from the perspective of the Economic Constitution, focusing on three accountability criteria - legal, accounting and administrative. In doing so, it provides an analysis which informs both from the perspective of academic research and from that of legal and consulting practice.

This book offers a comprehensive introduction to the developmental history and structural framework of Chinese competition law from a law and economics perspective. It examines the philosophical foundations, the substantive law, and enforcement issues concerning competition law and policy in China by pursuing an economic and comparative approach. Further, the book presents and analyzes competition cases involving monopolistic agreements, abuse of dominant position, and concentration. The book will help professionals and business practitioners to understand the distinct features of competition law and policy in China, and how the substance and enforcement of the law can be compared with competition regulations in the US and EU from an economic perspective. Given its scope, it offers a valuable guide for academic, public sector and professional audiences alike, and will appeal to researchers, students and anyone with an interest in economic law and policy in China. The book can also be used as reading material to accompany courses such as China's Competition Law and Policy, Comparative Competition Law, and Market Regulation in China for foreign students studying Chinese law and policy at the undergraduate, graduate and doctoral levels.

In 1986, the Supreme Court's leading conservative William H. Rehnquist, labelled by Newsweek as 'The Court's Mr. Right' was made Chief Justice. Almost immediately, legal scholars, practitioners, and pundits began questioning what his influence would be, and would he remake our constitutional corpus in his own image? Would the centre hold, or fold? This collected volume, which follows in the series edited by the late Bernard Schwartz, includes The Warren Court and The Burger Court, and contains the work of a varied body of scholars and practitioners. It includes an overview of the Rehnquist Court's influence to date, a detailed examination of the seminal issues confronted by the Court, and places the Court in broad historical perspective. Some of the issues examined in detail are First Amendment rights and cyberspace, criminal justice reform, the Court's pattern of constitutional interpretation, the international impact of the Rehnquist Court, and The Supreme Court's increasing interaction with state constitutional law.

Although rooted in a similar ideal, human rights (IHRL), international criminal law (ICL) and international humanitarian law (IHL) are separate fields of law, best represented as circles, each of which overlaps with the other two. However human rights often seems to absorb the other two, while in other situations, the lines between human rights law and its next door neighbours are blurred or contested.This volume consists of three main parts. The first main part explores the convergences and divergences between IHL and/or IHRL on the one hand, and ICL stricto sensu on the other hand. The second part investigates the convergences and divergences between IHRL and transnational crimes, or ICL in the broader sense, which suppresses crimes such as drug trafficking, trafficking in human beings and corruption through international treaties providing for domestic enforcement. The last main part of this volume provides the reader with novel and original insights as to how IHRL and IHL converge and diverge by considering if and how the norms of other branches of international law come into play and how the European Court of Human Rights has engaged with the sometimes contradicting norms of IHL. It furthermore analyses the relationship between the specific IHL and IHRL norms which prohibit arbitrary displacement and maps their interaction. Finally, the effectiveness of States' investigations of war crimes committed by their armed forces is evaluated by emphasising attention to the relevant standards developed within IHRL, since IHL does not indicate specific criteria to evaluate the effectiveness of an investigation.

This volume presents a leading contribution to the substantive arena relating to homicide in the criminal law. In broad terms, the ambit of homicide standardisations in extant law is contestable and opaque. This book provides a logical template to focus the debate. The overall concept addresses three specific elements within this arena, embracing an overarching synergy between them. This edifice engages in an examination of UK provisions, and in contrasting these provisions against alternative domestic jurisdictions as well as comparative contributions addressing a particularised research grid for content. The comparative chapters provide a wider background of how other legal systems treat a variety of specialised issues relating to homicide in the context of the criminal law. The debate in relation to homicide continues apace for academics, practitioners and within the criminal justice system. Having expert descriptions of the wider issues surrounding the particular discussion and of other legal systems' approaches serves to stimulate and inform that debate. This collection will be a major source of reference for future discussion.

Many governments face similar pressures surrounding the hotly debated topic of immigration. Yet, the disparate ways in which policy makers respond is striking. The Comparative Politics of Immigration explains why democratic governments adopt the immigration policies they do. Through an in-depth study of immigration politics in Germany, Canada, Switzerland, and the United States, Antje Ellermann examines the development of immigration policy from the postwar era to the present. The book presents a new theory of immigration policymaking grounded in the political insulation of policy makers. Three types of insulation shape the translation of immigration preference into policy: popular insulation from demands of the unorganized public, interest group insulation from the claims of organized lobbies, and diplomatic insulation from the lobbying of immigrant-sending states. Addressing the nuances in immigration reforms, Ellermann analyzes both institutional factors and policy actors' strategic decisions to account for cross-national and temporal variation.

This collection explores the practical operation of the law in the area of litigation costs and funding, and confronts the issue of how exposure to cost risks affects litigation strategy. It looks at the interaction of the relevant legal regime, regulatory framework and disciplinary rules with the behaviour of litigants, courts and legislatures, examining subjects such as cost rules and funding arrangements. The book discusses a wide range of topics such as cost-shifting rules, funding and mass tort litigation, cost rules and third-party funding (TPF) rules in specific areas such as intellectual property (IP) litigation, commercial arbitration, investment arbitration, the role of legal expense insurance arrangements, fee regulation and professional ethics. The contributors include renowned scholars, experts in their respective fields and well-versed individuals in both civil procedure and the practice of litigation, arbitration and finance. Together, they present a broad approach to the issues of costs, cost-shifting rules and third-party funding. This volume adds to the existent literature in combining topics in law and practice and presents an analysis of the most recent developments in this fast developing area.

This book explores the recent trend of enhancing the role of the people in constitutional change. It traces the reasons underlying this tendency, the new ways in which it takes form, the possibilities of success and failure of such ventures as well as the risks and benefits it carries. To do so, it examines the theoretical aspects of public participation in constitutional decision-making, offers an analysis of the benefits gained and the problems encountered in countries with long-standing experience in the practice of constitutional referendums, discusses the recent innovative constitution-making processes employed in Iceland and Ireland in the post financial crisis context and probes the use of public participation in the EU context. New modes of deliberation are juxtaposed to traditional direct-democratic processes, while the reasons behind this re-emergence of public involvement narratives are discussed from the aspect of comparative constitutional design. The synthetic chapter offers an overview of the emerging normative and comparative issues and provides a holistic approach of the role of the people in constitutional change in an attempt to answer when, where and how this role may be successfully enhanced. The work consists of material specifically written for this volume, and authored by prominent constitutional scholars and experts in public participation and deliberative processes.

The rise of the regulatory state has been a major feature of modern constitutional democracies. India, the world's largest democracy, is no exception to this trend. This book is the first major study of regulation in India. It considers how the development of regulation in India has altered the nature and functions of the state; how it is reshaping the relationship between business and the state; how it has called for the refashioning of established legal principles; and how it has raised new questions about the relationship between technical expertise and the rule of law. The chapters cover topics ranging from the foundations of the Indian regulatory state to the form of regulation across different sectors to regulation in practice. Together, the chapters reveal the challenges, promise, and limitations offered by contemporary regulatory practices, and they capture the close if sometimes fraught relationship that regulation must inevitably share with the political economy and constitutional schema within which it operates.

Comparative legal history is generally understood to involve the comparison of legal systems in different countries. This is an experiment in a different kind of comparison. The legal world of the first Elizabethans is separated from that of today by nearly half a millennium. But the past is not a wholly different country. The common law is still, in an organic sense, the same common law as it was in Tudor times and Parliament is legally the same Parliament. The concerns of Tudor lawyers turn out to resonate with those of the present and this book concentrates on three of them: access to justice, in terms of both cost and public awareness; the respective roles of common law and legislation; and the means of protecting the rule of law through the courts. Central to the story is the development of judicial review in the time of Elizabeth I.

This book investigates the role of Islam and religious freedom in the constitutional transitions of six North African and Middle Eastern countries, namely Morocco, Algeria, Tunisia, Egypt, Turkey, and Palestine. In particular, the book, with an interdisciplinary approach, investigates the role of Islam as a political, institutional and societal force. Issues covered include: the role played by Islam as a constitutional reference - a "static force" able to strengthen and legitimize the entire constitutional order; Islam as a political reference used by some political parties in their struggle to acquire political power; and Islam as a specific religion that, like other religions in the area, embodies diverse perspectives on the nature and role of religious freedom in society. The volume provides insight about the political dimension of Islam, as used by political forces, as well as the religious dimension of Islam. This provides a new and wider perspective able to take into account the increasing social pluralism of the South-Mediterranean region. By analyzing three different topics - Islam and constitutionalism, religious political parties, and religious freedom - the book offers a dynamic picture of the role played by Islam and religious freedom in the process of state-building in a globalized age in which human rights and pluralism are crucial dimensions.

Major land reform programs have reallocated property in more than one-third of the world's countries in the last century and impacted over one billion people. But only rarely have these programs granted beneficiaries complete property rights. Why is this the case, and what are the consequences? This book draws on wide-ranging original data and charts new conceptual terrain to reveal the political origins of the property rights gap. It shows that land reform programs are most often implemented by authoritarian governments who deliberately withhold property rights from beneficiaries. In so doing, governments generate coercive leverage over rural populations and exert social control. This is politically advantageous to ruling governments but it has negative development consequences: it slows economic growth, productivity, and urbanization and it exacerbates inequality. The book also examines the conditions under which subsequent governments close property rights gaps, usually as a result of democratization or foreign pressure.

Every government engages in budgeting and public financial management to run the affairs of state. Effective budgeting empowers states to prioritize policies, allocate resources, and discipline bureaucracies, and it contributes to efficacious fiscal and macroeconomic policies. Budgeting can be transparent, participatory, and promote democratic decision-making, or it can be opaque, hierarchical, and encourage authoritarian rule. This book compares budgetary systems around the world by examining the economic, political, cultural, and institutional contexts in which they are formulated, adopted, and executed. The second edition has been updated with new data to offer a more expansive set of national case studies, with examples of budgeting in China, India, Indonesia, Iraq, and Nigeria. Chapters also discuss Brexit and the European Union's struggle to require balances budgets during the Euro Debt Crisis. Additionally, the authors provide a deeper analysis of developments in US budgetary policies from the Revolutionary War through the Trump presidency.

This book provides an in-depth analysis of 4 economically significant Asian jurisdictions: Mainland China, India, Hong Kong and Singapore. These jurisdictions have recently either reformed - or are considering reforming - their corporate restructuring laws to promote regimes conducive to restructuring financially distressed, but otherwise economically viable, companies. Mainland China, India, Hong Kong and Singapore continue to adhere to a framework that requires the court's final approval but draw references from Chapter 11 of the Bankruptcy Code 1978 in the United States and/or the schemes of arrangement in the United Kingdom. However, the institutional and market structures are very different in Asia; in particular, Asia has a far higher concentration in shareholdings among listed firms, including holdings by families and the state, and a different composition of creditors. The book explains how, notwithstanding the legal transplantation, corporate restructuring laws in these Asian jurisdictions have adapted and evolved due to the frictions in shareholder-creditor and creditor-creditor relationships, and the role of the state in resolving non-performing loans and financial distress of state-owned enterprises which are listed, or which issue public debt. The study argues that any reforms must go beyond professionalising the insolvency professionals and the judiciary but must be designed to address fundamental issues of corporate governance, bank regulation and enforcing non-bankruptcy rules. It offers invaluable insights for academics and policy makers alike.

This volume presents an analysis of controversial events and issues shaping a rapidly changing international legal, political, and social landscape. Leading scholars and experts in law, religious studies and international relations, thoughtfully consider issues and tensions arising in contemporary debates over religion and equality in many parts of the world. The book is in two parts. The first section focuses on the anti-discrimination dimension of religious freedom norms, examining the developing law on equality and human rights and how it operates at international and national levels. The second section provides a series of case studies exploring the contemporary issue of same-sex marriage and how it affects religious groups and believers. This collection will be of interest to academics and scholars of law, religious studies, political science, and sociology, as well as policymakers and legal practitioners.

While the visibility of disability studies has increased in recent years, few have thoroughly examined the marginalization of people with disabilities through the lens of political economy. This was the great contribution of Marta Russell (1951-2013), an activist and prominent scholar in the United States and best known for her analyses of the issues faced by people with disabilities. This book examines the legacy of Marta Russell, bringing together distinguished scholars and activists such as Anne Finger, Nirmala Erevelles and Mark Weber, to explicate current issues relevant to the empowerment of people with disabilities. Drawing from various fields including Law, Political Economy, Education and History, the book takes a truly interdisciplinary approach, offering a body of work that develops a dextrous understanding of the marginalization of people with disabilities. The book will be of great use and interest to specialists and students in the fields of Political Economy, Law and Society, Labour Studies, Disability Studies, Women's Studies, and Political Science.

Within the global phenomenon of the (re)emergence of religion into issues of public debate, one of the most salient issues confronting contemporary Muslim societies is how to relate the legal and political heritage that developed in pre-modern Islamic polities to the political order of the modern states in which Muslims now live. This work seeks to develop a framework for addressing this issue. The central argument is that liberal theory, and in particular justice as discourse, can be normatively useful in Muslim contexts for relating religion, law and state. Just as Muslim contexts have developed historically, and continue to develop today, the same is the case with the requisites of liberal theory, and this may allow for liberal choices to be made in a manner that is not a renunciation of Muslim heritage.

Law and Policy in Modern Family Finance - Property Division in the 21st Century adopts a conceptual approach to address key questions about the legal division of property when a marriage, civil union, de facto relationship, or other close personal relationship ends. These questions include: which relationships should be subject to a statutory regime; which property should be shared; whether property held on trust should be included; how property should be shared; how economic disparity caused by the division of functions within the relationship should be addressed, if at all; whether, and if so to what extent, the interests of children of the relationship should be considered; whether parties should be allowed to contract out of a statutory regime and, if so, whether such contracts should be binding; and whether death should be treated in the same way as relationship break-down.The authors use New Zealand's current legislative framework as a basis for critical analysis and reflection. Despite New Zealand's Property (Relationships) Act 1976 being hailed as socially progressive legislation when it was enacted, there is concern in New Zealand that its property sharing regime no longer meets society's needs and expectations. However, issues of fairness, equality, and modern complexities in the division of relationship property are not unique to New Zealand. Other jurisdictions are facing similar problems, including Australia, England and some continental European countries.The inclusion of internationally recognised relationship property experts from England, Australia and Germany ensures the utility of the book for international audiences, making it of interest to law reformers, academics, the judiciary, the legal profession, and law students everywhere in the world.

The United States is extremely diverse religiously and, not infrequently, individuals sincerely contend that they are unable to act in accord with law as a matter of conscience. The First Amendment to the United States Constitution protects the free exercise of religion and the United States Supreme Court has issued many decisions exploring the depth and breadth of those protections. This book addresses the Court's free exercise jurisprudence, discussing what counts as religion and the protections that have been afforded to a variety of religious practices. Regrettably, the Court has not offered a principled and consistent account of which religious practices are protected or even how to decide whether a particular practice is protected, which has resulted in similar cases being treated dissimilarly. Further, the Court's free exercise jurisprudence has been used to provide guidance in interpreting federal statutory protections, which is making matters even more chaotic. This book attempts to clarify what the Court has said in the hopes that it will contribute to the development of a more consistent and principled jurisprudence that respects the rights of the religious and the non-religious.

This timely book examines crucial developments in the field of privacy law, efforts by legal systems to impose their data protection standards beyond their borders and claims by states to assert sovereignty over data. By bringing together renowned international privacy experts from the EU and the US, the book provides an accurate analysis of key trends and prospects in the transatlantic context, including spaces of tensions and cooperation between the EU and the US in the field of data protection law. The chapters explore recent legal and policy developments both in the private and law enforcement sectors, including recent rulings by the Court of Justice of the EU dealing with Google and Facebook, recent legislative initiatives in the EU and the US such as the CLOUD Act and the e-evidence proposal, as well as ongoing efforts to strike a transatlantic deal in the field of data sharing. All of the topics are thoroughly examined and presented in an accessible way that will appeal to scholars in the fields of law, political science and international relations, as well as to a wider and non-specialist audience. The book is an essential guide to understanding contemporary challenges to data protection across the Atlantic.