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Whether, and in what circumstances, public authorities should be held liable for negligence in the performance of their public functions is a highly complex area of the law. Written by Cherie Blair and Dan Squires QC, the first edition of The Negligence Liability of Public Authorities provided a much needed guide to these complexities and offered a detailed account of the law for practitioners and academics. This second edition builds on the reputation of the first, including full coverage of the many important cases which have been decided since 2006. Divided into two parts, Part I focuses on the extent to which the public nature of a defendant affects civil liability and the principles that govern and limit that liability. Part II considers the law as it impacts upon specific areas of public authorities' activities. It examines cases in a range of key areas, including the police, social services, highways, education, and the emergency services and aims to set out in a comprehensive way the different legal issues that have arisen in each area. By examining cases in a variety of jurisdictions, including Australia, Canada, South Africa, New Zealand and the USA, the authors further broaden the scope of this authoritative text. The book also identifies the underlying principles and policy arguments which have shaped the law more generally, making it an extremely useful resource for a wide variety of practitioners.
Non-territorial autonomy (NTA) is a statecraft tool that is increasingly gaining importance in societies seeking to accommodate demands by ethno-cultural groups for a voice in cultural affairs important to the protection and preservation of their identity, such as language, education, and religion. As states recognize the specific rights of identity minorities in multicultural and multi-ethnic societies, they are faced with a need to improve their diversity management regimes. NTA offers policy-makers a range of options for institutional design adaptable to specific circumstances and historical legacies. It devolves degrees of power through legal frameworks and institutions in specific areas of ethno-cultural life, while maintaining social unity at the core level of society. Throughout Europe and North America, NTA exists and is implemented at a state, regional, and local level. Much has been written about the concept of autonomy and its usage as a statecraft tool in states facing regional division, but little literature addresses its non-territorial institutional and public administration functions. This edited volume seeks to fill this gap. Managing Diversity through Non-Territorial Autonomy: Assessing Advantages, Deficiencies, and Risks, carves a space for contextual knowledge production on NTA in law, as well as social and political sciences. Contextual knowledge involves a description of institutions and their functionality as well as of the institutional and legal frames protecting these. What are the institutions, bodies, and functions that ethno-cultural groups can draw on when seeking to have a voice over their own affairs, as well as over issues in society related to their identity production? How are these entities incorporated and empowered to have a voice? What degree of voice do they have, and how are they designed to project this voice? Thus, contextual knowledge also involves critical assessment and risk analysis as well as penetrating insights as to the unintended consequences and hidden agendas that may inform NTA policies. This volume is to provide both policy-makers and ethno-cultural groups with a tool-kit that promotes social cohesion while respecting diversity. This is the first volume in a series of five which will examine the protection and representation of minorities through non-territorial means.
This book explores the creation, development, and impact of the concept of 'good governance'. It argues that, alongside the ideas of the rule of law and democracy, good governance acts as a third conceptual cornerstone of the modern state. Good governance can be viewed as a multilevel concept influenced by regional and international legal developments while being grounded in national administrative law. The book presents six principles of good governance: properness, transparency, participation, effectiveness, accountability, and human rights. The development of each of these principles on the national level is explored in a wide range of European contexts, and in Australia, Canada, and South Africa. As well as offering a fully up-to-date and comprehensive overview of administrative law in different jurisdictions, the book compares the implementation of the principles of good governance, taking into account international and European administrative law developments.
Bibliography: http: //www.nyupress.org/webchapters/9780814775998_benhabib_biblio.pdf
In an increasingly globalized world, the movement of peoples across national borders is posing unprecedented challenges, for the people involved as well as for the places to which they travel and their countries of origin. Citizenship is now a topic in focus around the world but much of that discussion takes place without sufficient attention to the women, men, and children, in and out of families, whose statuses and treatments depend upon how countries view their arrival. As essays in this volume detail, both the practices and theories of citizenship need to be reappraised in light of the array of persons and of twentieth-century commitments to their dignity and equality.
Migrations and Mobilities uniquely situates gender in the context of ongoing, urgent conversations about globalization, citizenship, and the meaning of borders. Following an introductory essay by editors Seyla Benhabib and Judith Resnik that addresses the parameters and implications of gendered migration, the interdisciplinary contributors consider a wide range of issues, from workers' rights to children's rights, from theories of the nation-state and federalism to obligations under transnational human rights conventions. Together, the essays in this path-breaking collection force us to consider the pivotal role that gender should play in reconceiving the nature of citizenship in the contemporary, transnational world.
Contributors: Selya Benhabib, Jacqueline Bhabha, Linda Bosniak, Catherine Dauvergne, Talia Inlender, Vicki C. Jackson, David Jacobson, Linda K. Kerber, Audrey Macklin, Angela Means, Valentine M. Moghadam, Patrizia Nanz, Aihwa Ong, Cynthia Patterson, Judith Resnik, and Sarah K. van Walsum.
The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.
Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791--born in political struggle between the English and the colonists--served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.
With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.
What Happened to Governance in Kashmir is a telling tale on the state of governance in Kashmir; the policies and strategies adopted by Indian state and the successive patronage governments to grapple with the multifarious problems of the state. Kashmir is an ailing state. It is the victim of colonialism and partition, which subverted its geographical centrality with serious economic implications besides making it a permanent conflict state causing immense human and material loss. Besides being claimed by India, Pakistan, and Kashmiris, it is also a rainbow state very difficult to manage with various ethno-regional and sub-regional nationalities at cross-purposes. Added to this, it is a dependent state. This book situates governance in its total milieu and examines the governance in the framework of challenge and response continuum. It unfolds how in a conflict state like Kashmir democracy and governance is always guided and controlled. This is the first comprehensive book on the post-1947 governance in Kashmir.
In August 2007, asset-backed securities (ABS), particularly those backed by subprime mortgages, suddenly became illiquid and fell sharply in value as an unprecedented housing boom turned into a housing bust. Losses on the many ABS held by financial firms depleted their capital. Uncertainty about future losses on illiquid and complex assets led to firms having reduced access to private liquidity, sometimes catastrophically. In September 2008, the financial crisis reached panic proportions, with some large financial firms failing or having the government step in to prevent their failure. Initially, the government approach was largely ad hoc, addressing the problems at individual institutions on a case-by-case basis. The panic in September 2008 convinced policy makers that a system-wide approach was needed, and Congress created the Troubled Asset Relief Program (TARP) in October 2008. In addition to TARP, the Treasury, Federal Reserve (Fed) and Federal Deposit Insurance Corporation (FDIC) implemented broad lending and guarantee programs. The primary goal of the various interventions was to end the financial panic and restore normalcy to financial markets, rather than to make a profit for taxpayers. This book presents how much the programs ultimately cost (or benefited) the taxpayers based on straightforward cash accounting as reported by the various agencies. This book describes the various actions by the Federal Reserve to stabilise the financial markets and how those actions are likely to affect the federal budget in coming years. The book also presents estimates of the risk-adjusted (or fair-value) subsidies that the Federal Reserve provided to financial institutions through its emergency programs.
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Author Interview on "The Brian Lehrer Show"
aDiscrimination against the obese is today pervasive and
oppressive. The problem will only grow worse as the epidemic of
obesity spreads. Kirkland has written the definitive study of
obesity within American law. It is required reading for anyone
concerned with this issue. This is an admirable and profound
aProvides a much-needed conceptual map for making sense of how
we in the U.S. talk about difference, discrimination, and rights
generally. The result is an imaginative, insightful, savvy, and
unusually accessible inquiry that should be required reading for
anyone interested in the politics of civil rights. Highly
America is a weight-obsessed nation. Over the last decade, thereas been an explosion of concern in the U.S. about people getting fatter. Plaintiffs are now filing lawsuits arguing that discrimination against fat people should be illegal. Fat Rights asks the first provocative questions that need to be raised about adding weight to lists of currently protected traits like race, gender, and disability. Is body fat an indicator of a character flaw or of incompetence on the job? Does it pose risks or costs to employers they should be allowed to evade? Or is it simply a stigmatized difference that does not bear on the ability to perform most jobs? Could we imagine fatness as part of workplace diversity? Considering fat discrimination prompts us to rethink these basic questions that lawyers, judges, and ordinary citizens ask before a new trait begins to look suitable forantidiscrimination coverage.
Fat Rights draws on little-known legal cases brought by fat citizens as well as significant lawsuits over other forms of bodily difference (such as transgenderism), asking why the boundaries of our antidiscrimination laws rest where they do. Fatness, argues Kirkland, is both similar to and provocatively different from other protected traits, raising longstanding dilemmas in antidiscrimination law into stark relief. Though options for defending difference may be scarce, Kirkland evaluates the available strategies and proposes new ways of navigating this new legal question.
Fat Rights enters the fray of the obesity debate from a new perspective: our inherited civil rights tradition. The scope is broad, covering much more than just weight discrimination and drawing the reader into the larger context of antidiscrimination protections and how they can be justified for a new group.
Charles L. Black Jr.'s classic guide to presidential impeachment, now in an updated edition with new material by Philip Bobbitt Originally published at the height of the Watergate crisis and reissued in 1998, two months before the second impeachment of a U.S. president, Charles Black's Impeachment became the premier guide to the subject of presidential impeachment. Now thoroughly updated, it is essential reading for every concerned citizen. Praise for earlier editions of Impeachment "The most important book ever written on presidential impeachment."--Lawfare "A model of how so serious an act of state should be approached."--Wall Street Journal "The best essay written on the subject."--Jeffrey Rosen, New Republic "A citizen's guide to impeachment. . . . Elegantly written, lucid, intelligent, and comprehensive."--Mary Ann Gale, New York Times Book Review
The indigenous Bedouin Arab population in the Naqab/Negev desert in Israel has experienced a history of displacement, intense political conflict, and cultural disruption, along with recent rapid modernization, forced urbanization, and migration. This volume of essays highlights international, national, and comparative law perspectives and explores the legal and human rights dimensions of land, planning, and housing issues, as well as the economic, social, and cultural rights of indigenous peoples. Within this context, the essays examine the various dimensions of the negotiations between the Bedouin Arab population and the State of Israel.
"Indigenous (In)Justice" locates the discussion of the Naqab/Negev question within the broader Israeli-Palestinian conflict and within key international debates among legal scholars and human rights advocates, including the application of the Declaration on the Rights of Indigenous Peoples, the formalization of traditional property rights, and the utility of restorative and reparative justice approaches. Leading international scholars and professionals, including the current United Nations Special Rapporteur on Violence against Women and the former United Nations Special Rapporteur on the Rights of Indigenous Peoples, are among the contributors to this volume."
Since the US Constitution came into force in 1789, it has been amended just twenty-seven times, with ten of those amendments coming in the first two years following ratification. By contrast, state constitutions have been completely rewritten on a regular basis, and the current documents have been amended on average 150 times. This is because federal amendments are difficult, so politicians rarely focus on enacting them. Rather, they work to secure favorable congressional statutes or Supreme Court decisions. By contrast, the relative ease of state amendment processes makes them a realistic and regular vehicle for seeking change. With State Constitutional Politics, John Dinan looks at the various occasions in American history when state constitutional amendments have served as instruments of governance. Among other things, amendments have constrained state officials in the way they levy taxes and spend money; enacted policies unattainable through legislation on issues ranging from minimum wage to the regulation of marijuana; and updated understandings of rights, including religious liberty, equal protection, and the right to bear arms. In addition to comprehensively chronicling the ways amendments shape politics in the states, Dinan also assesses the consequences of undertaking changes in governance through amendments rather than legislation or litigation. For various reasons, including the greater stability and legitimacy of changes achieved through the amendment process, he argues that it might be a more desirable way of achieving change.
This groundbreaking book contributes to an emerging literature that examines responses to the rights revolution that unfolded in the United States during the 1960s and 1970s. Using original archival evidence and data, Stephen B. Burbank and Sean Farhang identify the origins of the counterrevolution against private enforcement of federal law in the first Reagan Administration. They then measure the counterrevolution's trajectory in the elected branches, court rulemaking, and the Supreme Court, evaluate its success in those different lawmaking sites, and test key elements of their argument. Finally, the authors leverage an institutional perspective to explain a striking variation in their results: although the counterrevolution largely failed in more democratic lawmaking sites, in a long series of cases little noticed by the public, an increasingly conservative and ideologically polarized Supreme Court has transformed federal law, making it less friendly, if not hostile, to the enforcement of rights through lawsuits.
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"Colker's book provides a comprehensive review of the ADA's
history and a thorough analysis of how effective it has been in
vindicating the rights of the disabled. She does not paint a pretty
picture, but it is an accurate, empirically based
"[A] comprehensive, factually-supported, and carefully reasoned
book in a manner worthy of academic interest. At the same time,
[Colker] writes in a plain style free of academic jargon and
returns consistently to the human-interest arena of practical
"This book is must reading for teachers, school administrators,
parents, vocational rehabilitation counselors, disability rights
lawyers, and Deaf Community leaders who hope to help take the
citizen ship interests of deaf and hard-of-hearing people to the
next level. The book helps these constituencies make the essential
connections between raising and educating deaf children and the
rights and opportunities those children hope to enjoy."
"The Disability Pendulum chronicles societal views and court
reactions to the evolving ADA. Ruth Colker shows that public
acceptance and inclusion of persons with disabilities into society
is as much driven by attitudes about disability as by law and
policy themselves. Colker offers an enriched and fresh analysis of
the forces affecting the civil rights movement of persons with
disabilities in American society."
"Ruth Colker's bookis an absolute must-read for anyone
interested in disability rights. Colker has long been one of the
most astute observers of the development of disability rights in
the courts. This book lays out the compelling story of what the ADA
was intended to do and what the courts have done to the ADA. The
book is both inspiring and sobering."
a[Colker] does not paint a pretty picture, but is an accurate,
empirically based assessmenta
"The Disability Pendulum helps us to appreciate that how we
address these issues will shape the lives of the next generation of
children with disabilities."
Signed into law in July 1990, the Americans with Disabilities Act (ADA) became effective two years later, and court decisions about the law began to multiply in the middle of the decade. In The Disability Pendulum, Ruth Colker presents the first legislative history of the enactment of the ADA in Congress and analyzes the first decade of judicial decisions under the act. She assesses the success and failure of the first ten years of litigation under the ADA, focusing on its three major titles: employment, public entities, and public accommodations.
The Disability Pendulum argues that despite an initial atmosphere of bipartisan support with the expectation that the ADA would make a significant difference in the lives of individuals with disabilities, judicial decisions have not been consistent with Congressa intentions. The courts have operated like a pendulum, at timesswinging to a pro-disabled plaintiff and then back again to a pro-defendant stance. Colker, whose work on the ADA has been cited by the Supreme Court, offers insightful and practical suggestions on where to amend the act to make it more effective in defending disability rights, and also explains judicial hostility toward enforcing the act.
The exceptionality of America's Supreme Court has long been conventional wisdom. But the U.S. Supreme Court is no longer the only one changing the landscape of public rights and values. Over the past thirty years, the European Court of Human Rights has developed an ambitious, American-style body of law. Unheralded by the mass press, this obscure tribunal in Strasbourg, France, has become, in many ways, the Supreme Court of Europe. Michael D. Goldhaber introduces American audiences to the judicial arm of the Council of Europe - a group distinct from the European Union, and much larger - whose mission is centered on interpreting the European Convention on Human Rights. The council routinely confronts nations over their most culturally sensitive, hot-button issues. It has stared down France on the issue of Muslim immigration, Ireland on abortion, Greece on Greek Orthodoxy, Turkey on Kurdish separatism, Austria on Nazism, and Britain on gay rights and corporal punishment. And what is most extraordinary is that nations commonly comply. In the battle for the world's conscience, Goldhaber shows how the court in Strasbourg may be pulling ahead.
This book presents the first detailed history of the modern passport and why it became so important for controlling movement in the modern world. It explores the history of passport laws, the parliamentary debates about those laws, and the social responses to their implementation. The author argues that modern nation-states and the international state system have 'monopolized the 'legitimate means of movement',' rendering persons dependent on states' authority to move about - especially, though not exclusively, across international boundaries. This new edition reviews other scholarship, much of which was stimulated by the first edition, addressing the place of identification documents in contemporary life. It also updates the story of passport regulations from the publication of the first edition, which appeared just before the terrorist attacks of 9/11, to the present day.
* Utilises a text and materials format accompanied by extensive author commentary integrating both the theory and law * Adopts a comparative and constitutional approach to discrimination law * Provides a comprehensive exposition of anti-discrimination law, comparing domestic law, EU law, the European Convention on Human Rights, and US, Canadian and South African law * Places the law in contextby considering the history of anti-discrimination protections and their political and philosophical justifications * Vital for students and academics in the fields of employment law, anti-discrimination law, civil liberties, human rights and constitutional law
The last few years have seen major reforms to the delegation of powers and post-delegation supervision of the European Commission. In light of these reforms, Rulemaking by the European Commission: The New System for Delegation of Powers assesses whether the new system has really affected the old doctrine of delegation of powers, and if so, how? Specific questions answered include: have the objectives of the reform been achieved and what were these objectives? How does the new system affect the division of functions between the institutions of the EU and the institutional balance? Has this new system affected the relationship between the EU and its Member States, and if so, how does it concern its citizens? Presented by an interdisciplinary group of experts who have actively followed or participated in the process of reform, the book is structured in four parts: (1) the political and historical context in which the rule-making takes place, (2) the operation and functioning of the system before and after the reform, (3) the legal substance of a new framework for rule-making and the emerging case law from the Court of Justice of the EU, and (4) the procedural dimension, including the legal preconditions for non-institutional actors to participate.
Tony Wright's Very Short Introduction to British Politics is an interpretative essay on the British political system, rather than an abbreviated textbook on how it currently works. He identifies key characteristics and ideas of the British tradition, and investigates what makes British politics distinctive, while emphasizing throughout how these characteristics are reflected in the way the political system functions. Each chapter is organized around a key theme, such as the constitution or political accountability, which is first established and then explored with examples and illustrations. In this new edition Wright considers how the system has recently changed and continues to do so, in light of the coalition government and the fall of New Labour, as well as the impact of the financial crisis and issues such as terrorism and immigration. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.
This study explores the use of precedents in the case law of the Court of Justice of the European Union (CJEU). It argues that a strategic use of precedent-based discourses aids the Court in developing its jurisprudence autonomously; that is, independent of the political preferences of EU member states. The study is based on a long-term assessment of CJEU case law in the politically sensitive area of immigration law. It traces the Court's rulings in this area from the 1970s up until the most recent period. The study identifies a series of consistent discursive patterns that slowly, but surely, moved EU immigration law beyond what member states had intended. The work takes an interdisciplinary approach, engaging with both political science and legal discussions on the Court of Justice and its role in processes of European integration.
Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions', challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics, and philosophy.
Americans have a love-hate relationship with government. Rejecting bureaucracy--but not the goods and services the welfare state provides--Americans have demanded that government be made to run like a business. Hence today's privatization revolution.But as Jon D. Michaels shows, separating the state from its public servants, practices, and institutions does violence to our Constitution, and threatens the health and stability of the Republic. Constitutional Coup puts forward a legal theory that explains the modern welfare state as a worthy successor to the framers' three-branch government.What legitimates the welfare state is its recommitment to a rivalrous system of separation of powers, in which political agency heads, career civil servants, and the public writ large reprise and restage the same battles long fought among Congress, the president, and the courts. Privatization now proclaims itself as another worthy successor, this time to an administrative state that Americans have grown weary of. Yet it is a constitutional usurper. Privatization dismantles those commitments to separating and checking state power by sidelining rivalrous civil servants and public participants.Constitutional Coup cements the constitutionality of the administrative state, recognizing civil servants and public participants as necessary--rather than disposable--components. Casting privatization as an existential constitutional threat, it underscores how the fusion of politics and profits commercializes government--and consolidates state power in ways both the framers and administrative lawyers endeavored to disaggregate. It urges--and sketches the outlines of--a twenty-first-century bureaucratic renaissance.
Public procurement is an important and rapidly evolving area of practice in the European commercial legal environment, and the Court of Justice of the European Union (CJEU) has been instrumental in shaping the current regime. The size of the market, the volume of transactions between public and private sectors, and new developments in the interface between sectors has created a need for a comprehensive conceptual framework to assess important law, policy, and jurisprudence. This book offers a lucid and authoritative guide to the development and application of public procurement law in the European Union (EU) and its Member States, with a core focus on the principles and case law of the CJEU. It evaluates the policies which underpin public procurement regulation in the EU and the characteristics of public procurement litigation before the CJEU, and closely examines the Court's approach to different areas of public procurement, with insightful and in-depth analysis of the legislation and case law, and the themes that emerge in relation to the Fundamental Principles of EU Treaties. The book's holistic approach, comparing EU acquis on public procurement with the Member States' stance on both application and enforcement, make it an important and innovative reference for legal practitioners, judges, policy makers and academics.
The British constitution is regarded as unique among the constitutions of the world. What are the main characteristics of Britain's peculiar constitutional arrangements? How has the British constitution altered in response to the changing nature of its state - from England, to Britain, to the United Kingdom? What impact has the UK's developing relations with the European Union caused? These are some of the questions that Martin Loughlin addresses in this Very Short Introduction. As a constitution, it is one that has grown organically in response to changes in the economic, political, and social environment, and which is not contained in a single authoritative text. By considering the nature and authority of the current British constitution, and placing it in the context of others, Loughlin considers how the traditional idea of a constitution came to be retained, what problems have been generated as a result of adapting a traditional approach in a modern political world, looking at what the future prospects for the British constitution are. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.
The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a single-minded conception of development as economic growth, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. However, today, under conditions of immense poverty, insecurity, and political instability, the rights to education, health care, housing, social security, food, water, and sanitation are central components of the human rights agenda. The Future of Economic and Social Rights captures the significant transformations occurring in the theory and practice of economic and social rights, in constitutional and human rights law. Professor Katharine G. Young brings together a group of distinguished scholars from diverse disciplines to examine and advance the broad research field of economic and social rights that incorporates legal, political science, economic, philosophy and anthropology scholars.
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