The politics of criminal sentencing has recently crystallised around the issue of whether and how a system of structured sentencing should inform judicial approaches to punishing criminals. Increasingly, structured sentencing guidelines are being introduce to frame judicial discretion. This volume is the first to examine the experience in England and Wales in the light of international developments. This collection of essays begins with a clear and concise history of the guidelines as well as a description of how they function. Topics addressed include the effect of guidelines on judicial practice, the role of public opinion in developing sentencing guidelines, the role of the crime victim in sentencing guidelines, and the use of guidelines by practicing barristers. In addition, the international dimension offers a comparative perspective: the English guidelines are explored by leading academics from the United States and New Zealand. Although there is a vast literature on sentencing guidelines across the United States, the English guidelines have attracted almost no attention from scholars. As other jurisdictions look to introduce more structure to sentencing, the English scheme offers a real alternative to current US schemes. Contributors include practicing lawyers, legal and socio-legal academics, and also scholars from several other countries including New Zealand and the United States, providing a multidisciplinary and cross-jurisdictional approach to sentencing. This book will be of interest to academics from law, sociology and criminology, legal practitioners, and indeed anyone else with an interest in sentencing, around the world.

The central argument of this book explores the disillusionment that Australians feel with regard to the way politics is conducted. The book explores causes of that disillusionment, and argues that because these are ultimately traceable to defects in the constitution, it is only through constitutional reform that government can be improved. This book argues that the current approach to constitutional debate suffers from the flaw of being anti-theoretical, in the sense that it is not grounded in any set of values, and is afflicted by a tendency to consider practical objections to reform before considering the moral case for it. This book argues that instead of accepting the constitution as it is, it is time we began to discuss how it ought to be, taking human dignity as the fundamental value upon which a constitution should be based. It then puts the case for change in a number of areas, including reform of the electoral system, enhanced parliamentary scrutiny of the executive, the inclusion in the constitution of a full bill of rights, the abolition of the federal system, realisation of the rights of Indigenous people, codification of constitutional conventions either in conjunction with or separately from an Australian republic, reform of the rules of standing in constitutional matters and, finally, the need to improve civics education. This book is designed to be provocative in the way that it directly challenges current academic orthodoxy. This book also outlines a proposed draft new constitution. This book will be of interest to anyone who is concerned about how Australia is governed and why it has been so difficult to achieve constitutional reform.

This book is a 'must read' for legal practitioners and legal academics involved in the complicated procedural relationship between national law and European law. In principle, nations have procedural autonomy; however, European legislation has an impact on national procedures, an impact that is much greater than one would expect. Whether in practice or conducting research, one can no longer restrict oneself to national procedural law. In the areas of law covered in his book-public procurement, intellectual property, consumer protection and competition-Wilman conclusively shows that it is European law that sets out the main procedures to be followed by national courts and national legislators. To some, this may be frightening; to others, it creates new opportunities. All in all, this work is compulsory reading for anyone wishing an in-depth understanding of the enforcement of EU law in local courts.' - Jan M. Hebly, Houthoff Buruma, the Netherlands'This book offers a splendid, comprehensive overview of the ways in which private enforcement can help to reinforce the rule of law in the European Union. The lessons which the author draws from his analysis are certainly of interest to practitioners and scholars of European law. But there is a wider interest as well: while keeping in mind obvious differences, the experiences with EU law can also stimulate our thinking about where private claims and domestic courts could play a larger role in the enforcement of international economic law.' - Marco Bronckers, Partner, VVGB Advocaten, Belgium 'The so-called 'private enforcement' of EU law before national courts is an area of growing importance. The book offers an excellent framework of the relevant legislation, remedies and case law. As such it is of great interest to both practitioners, whether they advise or litigate, and academics seeking a deeper understanding of private enforcement-related instruments.' - Tom Ottervanger, Advocaat, Allen & Overy LLP, the Netherlands Private Enforcement of EU Law before National Courts provides an in-depth analysis of how, when, and why the EU legislates to facilitate the private enforcement of EU law before the courts of Member States. Conducting a detailed examination of the legal basis and prospects for private enforcement in the fields of public procurement, intellectual property law, consumer protection, and competition law, Folkert Wilman discusses not only the EU rules on remedies and procedures typically adopted, but also many broader issues arising such as: the EU's scope to act and the autonomy of the Member State, the legal and practical limits, and implications, of the EU's private enforcement model, as well as the fundamental rights dimension. The thorough and practical treatment of private enforcement mechanisms makes this book an essential reference work for practising lawyers advising or acting before domestic courts in matters of EU law. Scholars will also be attracted by the questions it raises, and answers, relating to the relationship of the EU to Member States. Key features of the book include: - Expert authorship from a Member of the Legal Service of the European Commission - Comprehensive assessment of EU legislation on the private enforcement of EU law before national courts - Detailed examination of the legal basis for private enforcement at a general level, followed by consideration of its application across several substantive fields - Extensive discussion of the scope for the EU to act vis-a-vis the autonomy of the Member State - One of the first in-depth analyses of the recently adopted and widely debated Competition Damages Directive (No. 2014/104) - Exposition of key case law relating to private enforcement and the remedies available to private parties.

In The Trial of Hissein Habre: The International Crimes of a Former Head of State, Emmanuel Guematcha recounts the trial of Hissein Habre, the former Head of State of Chad. Accused of committing crimes against humanity, war crimes, and torture while he ruled Chad between 1982 and 1990, he was tried and sentenced to life imprisonment in 2016 and 2017 by the African Extraordinary Chambers. Guematcha examines the process that led to this achievement in Africa, including the failed attempts to try Hissein Habre in the Senegalese, Chadian, and Belgian courts. Guematcha discusses the mobilization of victims and the involvement of non-governmental and international organizations. He describes the particularities of the Extraordinary African Chambers, discusses the establishment of Hissein Habre's criminal responsibility, and presents the trial through the testimonies of several victims, witnesses, and experts. These testimonies shed light on what it means for individuals to be subjected to international crimes. The author also questions the impact and significance of the trial in Africa and beyond.

This book is about those who represent themselves as Litigants in Person in the family justice system. It calls for a refocusing of the debate about the historical challenges associated with Litigants in Person as well as the role they should play within the family justice system in England and Wales. Drawing together interviews with Litigants in Person and decades of research into self-representation from across multiple jurisdictions, this book provides an account of the family justice system through the eyes of its users. It employs an innovative socio-legal framework comprising feminist theory, a Bourdieusian theory of class, vulnerability theory, and actor-network theory to explore the journey that Litigants in Person take through the legal, cultural and social context of the family court. It provides fresh insight into the diverse challenges that people face within this process and how these relate to wider pressures within the family justice system. It argues that there are important lessons to be learned from Litigants in Person. By understanding how and why people come to the point of self-representing, and the kinds of experiences they have when they do, the book advocates the importance of forging a more positive and effective relationship between Litigants in Person and the family justice system.

This book explores victims' views of plea negotiations and the level of input that they desire. It draws on the empirical findings of the first in-depth study of victims and plea negotiations conducted in Australia. Over the last 50 years, the criminal justice system has seen major changes in both the role that victims play in the justice process and in how the vast majority of criminal cases are finalised. Guilty pleas have become the norm, and many of these result from negotiations between the prosecutor and the defence. The extent to which the victim is one of the participating parties in plea negotiations however, is a question of law and of practice. Drawing from focus groups and surveys with victims of crime, Victims and Plea Negotiations seeks to privilege victims' voices and lived experiences of plea negotiations, to present their perspectives on five options for enhanced participation in this legal process. This book appeals to academics and students in the areas of law, criminology, sociology, victimology and legal studies, those who practice in the criminal justice system generally, those who work with victims, and policy makers.

This book reviews for the first time some of the less frequently addressed actors in international investment law. Traditional studies concerning actors in international investment law have tended to focus on arbitrators, claimant investors and respondent states. This book explores transnational actors, such as UNCITRAL, the EU, international standardizing bodies, domestic and international courts and tribunals, etc., shedding light on their transnational activity and pluralistic role in international investment law.

Goldfarb argues persuasively for cameras in the courtroom, O.J. notwithstanding. He is aware of the problems but believes strongly that the more open a courtroom, the more open and free our society. The challenge, which he describes so well, is to balance the new demanding technology against our traditional dedication to democracy.
"-- Marvin Kalb, Director, Shorenstein Center on the Press, Politics, and Public Policy, Harvard University."

A tour de force, a one-stop repositiory of the history, facts, and the law of the matter. I plan to plagiarize from it shamelessly. This is an important subject, and Goldfarb's book provides the first comprehensive, in-depth study of the issue.
"-- Fred Graham, Chief Anchor and Managing Editor, Court TV"

Going beyond the ovious controversies of recent years, Goldfarb surveys the role of television in courtrooms with cool but crisp detachement. He brings historical context, legal analysis, and rich experience to bear on the issue, concluding that courts are public institutions that do not belong exclusively to the judges and lawyers who run them. His persuasive argument for greater openness is bound to influence future debate on the topic.
"-- Sanford J. Ungar, Dean, School of Communication, American University"

In the last quarter century, televised court proceedings have gonefrom an outlandish idea to a seemingly inevitable reality. Yet, debate continues to rage over the dangers and benefits to the justice system of cameras in the courtroom. Critics contend television transforms the temple of justice into crass theatre. Supporters maintain that silent cameras portray "the real thing," that without them judicial reality isinevitably filtered through the mind and pens of a finite pool of reporters.

Television in a courtroom is clearly a two-edged sword, both invasive and informative. Bringing a trial to the widest possible audience creates pressures and temptations for all participants. While it reduces speculations and fears about what transpired, television sometimes forces the general public, which possesses information the jury may not have, into a conflicting assessment of specific cases and the justice system in general.

TV or Not TV argues convincingly that society gains much more than it loses when trials are open to public scrutiny and discussion.

The Global Community Yearbook is a one-stop resource for all researchers studying international law generally or international criminal tribunals specifically. The Global Community Yearbook publishes annually in two-volume editions of carefully chosen primary source material and corresponding expert commentary. The general editor, Professor Giuliana Ziccardi Capaldo, employs her vast expertise in international law to select excerpts from important court opinions and also to choose experts from around the world who contribute essay-guides to illuminate those cases. Although the main focus is recent case law from the major international tribunals and regional courts, the first volume of each year's edition features expert articles by renowned scholars who address broader themes in international law, themes that appear throughout the case law of the many courts covered by the series as a whole. The Global Community Yearbook has thus become not just an indispensable window to recent past jurisprudence: the series now also serves to prepare researchers for future international case law.
The 2009 edition of The Global Community Yearbook both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook has already established itself as the authoritative resource for research and guidance on the jurisprudence of both U.N.-based tribunals and regional courts. The 2009 edition continues that sterling reputation through expert coverage of diverse tribunals from the criminal tribunals for the Former Yugoslavia and Rwanda, to economically-based tribunals such as ICSID and the WTO Dispute Resolution panel. This edition includes expert introductory essays by prominent scholars in the realm of international law, on topics as diverse and current as criminalizing hate speech, the global importance of human rights for environmental protection, the evolution of international environmental law and the politics of global powers. In the court opinion excerpts and expert commentary that fill this edition, researchers will find detailed guidance on a rich diversity of legal topics, from whether the European Court of Human Rights is effective as the centerpiece of the European human rights protection system to the jurisdictional challenges by respondent States under applicable investment agreements. On these questions and a host of others, this edition provides to students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates.
This publication can also be purchased on a standing order basis.

An invaluable resource for trainee and newly qualified solicitors in Ireland, Civil Litigation provides a comprehensive understanding of the practice and procedure in the most commonly encountered aspects of civil litigation. The manual sets out the steps to be taken by a solicitor in civil proceedings in the District Court, the Circuit Court and the Superior Courts, from initiating or defending an action to obtaining an order and enforcing it, to preparing the bill of costs.
The text focuses on key practice areas, with chapters on the practice and procedure of each of the courts; damages; the limitation of actions; concurrent wrongdoers; appeals; civil evidence; discovery; injunctions; judicial review; personal injury litigation; summary procedure and enforcement of judgments; litigation costs and client care and file management.
Fully updated with new legislation and case law, this third edition is essential reading for all trainee solicitors on the Professional Practice Course, and will also be a useful reference for students, academics, and practitioners in the field.

Nearly 50 years ago a California court heard a complaint from a recent high school graduate who alleged that he could not read at a level that would allow him to apply for, let alone hold, a meaningful job. He asserted that the public school district was negligent and that his prospects for a productive life were diminished by their negligence. The court disagreed and educational malpractice was cast outside the schoolhouse gate and an educational malpractice wall was erected. In sum, both federal and state courts have constructed a sturdy wall against the recognition of educational malpractice lawsuits. However, recent advances in research on instruction, statistical analyses that some have argued can identify substandard teaching, may have cracked the wall. Thus, confluence of events may lead to demolishing the educational malpractice wall constructed over the past half century. The authors of Raising a Cautionary Flag: Educational Malpractice and the Professional Teacher, explore the judicial reticence to recognize educational malpractice as a viable tort of negligence. They review the concept of what constitutes a professional, what is malpractice and how is it related to the professional malpractice of physicians and attorneys, and the potential responses to education malpractice. They conclude by raising a cautionary flag about breaching the judicial wall.

While challenges to authority are generally perceived as destructive to legal order, this original collection of essays, with Magna Carta at its heart, questions this assumption. In a series of chapters concerned with different forms of challenges to legal authority - over time, geographical place, and subject matters both public and private - this volume demonstrates that challenges to authority which seek the recognition of rights actually change the existing legal order rather than destroying it. The chapters further explore how the myth of Magna Carta emerged and its role in the pre-modern world; how challenges to authority formed the basis of the recognition of rights in particular areas within England; and how challenges to authority resulted in the recognition of particular rights in the United States, Canada, Australia and Germany. This is a uniquely insightful thematic collection which proposes a new view into the processes of legal change.

Freedom of establishment is one of the four fundamental freedoms of the European Union. The principle is that natural persons who are European Union Citizens, and legal entities formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the EU, may take up economic activity in any Member State in a stable and continuous form regardless of nationality or mode of incorporation. This book examines the way in which EU law has influenced how national courts in Europe assert jurisdiction in cross-border corporate disputes and insolvencies, and the mechanism which allows them to decide which national law should apply to the substance of the dispute. The book also considers the potential for EU Member States to compete for devising national corporate and insolvency legislation that will attract incorporations or insolvencies.
Central to the book is the concept of national choice of law. In considering the impact of freedom of establishment on private international law for corporations, the book uniquely analyses both corporate and insolvency law together, presenting the topic in the broadest possible sense.
Importantly, the doctrine of abuse in corporate and insolvency law is covered, raising the question of 'forum shopping' and regulatory competition which underpins the intersection between freedom of establishment and private international law. Through examination of the most recent and leading judgments of the European Court of Justice in Centros and Cadbury Schweppes, the book derives certain conclusions as to the operation of the doctrine of abuse and the limits thereof in the context of freedom of establishment.
Being the first in the field to examine the leading ECJ cases of Inspire Art, Sevic and Cartesio regarding the real seat doctrine, the book makes the judgment that there is no incompatibility as such between the doctrine and the freedom of establishment.
Ultimately, the book analyses to what extent diversity in the corporate and insolvency laws of the Member States should be preserved, so as to encourage competition between jurisdictions in Europe.

In recent times there has been a dramatic change in the nature and scope of constitutional justice systems in the global south. New or reformed constitutions have proliferated, protecting social, economic, and political rights. While constitutional courts in Latin America have traditionally been used as ways to limit power and preserve the status quo, the evidence shows that they are evolving into a functioning part of contemporary politics and a central component of a system of constitutional justice. This book lays bare the political roots of this transformation, outlining a new way to understand judicial design and the very purpose of constitutional justice. Authors Daniel M. Brinks and Abby Blass use case studies drawn from nineteen Latin American countries over forty years to reveal the ideas behind the new systems of constitutional justice. They show how constitutional designers entrust their hopes and fears to dynamic governance systems, in hopes of directing the development of constitutional meaning over time.

Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions. Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions. These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses. The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.

Utilizing Foucault's genealogical method, this book traces the history and development of the victim from feudal law, arguing that the historical power of the victim to police, prosecute, and punish offenders significantly informed the development of the modern criminal law and justice system. Leading to the repositioning of the victim into the twenty-first century, this book advocates the victim as an agent of change, presenting a new perspective for the relevance of the victim in today's justice system.

The tradition of the public inquiry has become a pivotal part of public life, and a major instrument of accountability in the United Kingdom. There have been over 30 significant public inquiries in the decade (including the BSE, Shipman, Hutton, Bloody Sunday and Billy Wright Inquiries). This book is written and edited by practitioners who have appeared in a large number of these significant inquiries. This new work is the first of its kind, and will function as a handbook for practitioners. The work examines and explains both statutory (in particular the Inquiries Act 2005 and the Inquiry Rules 2006) and non-statutory inquiries in chapters relating to the need for and purpose of the public inquiry, the mechanisms for establishing a public inquiry, terms of reference, the subject matter of inquiries, the relationship of inquiries to other legal proceedings, the constitution of an inquiry, the administration of an inquiry, evidence and procedure, public access to an inquiry, immunities and defamation, representation and funding, inquiry reports and the duty to be fair, ending the inquiry and challenging an inquiry. This book is fully indexed and cross-referenced, including extensive referencing to the position in other jurisdictions. With a Foreword written by Lord Brown.

As the nation turned its back on Reconstruction, the Supreme Court in turn narrowed Thirteenth-, Fourteenth-, and Fifteenth-Amendment protections of former slaves, thus straying from the understanding of the amendments' framers. Tracking a long line of cases that employed narrow constructions of these amendments and accompanying statutes, this study compares the Court's propositions to the framers' own interpretations. The resulting portrait makes it clear that the Court contributed in a significant way to the nation's retreat from Reconstruction. Before analyzing the relevant cases, Scaturro provides a historical synopsis of the collapse of Reconstruction. The final section demonstrates how the twentieth-century Court handed down decisions that accommodated the demands of the Civil Rights Movement, but did so with constitutional interpretations that preserved several misunderstandings about the Reconstruction Amendments, especially the Fourteenth. This study helps to resolve a contemporary dilemma regarding the consequences of the Court's narrowing of the Interstate Commerce Clause. It also challenges long standing assumptions about the "state action" requirement of the Fourteenth and Fifteenth Amendments as well as the Fourteenth Amendment's Privileges and Immunities Clause. Besides being valuable to Supreme Court historians, the subject matter of this volume, which covers both constitutional law and legal history, will be of substantial interest to lawyers, judges, and political scientists, particularly in view of recent developments on the high Court. The lessons taught by this chapter of Supreme Court jurisprudence offer insight into constitutional interpretation in general, andthe conclusion develops this idea by looking at the problematic interaction between law and outside historical influences.

The culture of defense work has undergone significant change over the course of the last twenty years. These changes may have generated confusion and uncertainty concerning the role of the defense lawyer in the modern era. If the lawyer is confused as to his role, is it possible to zealously advance the best interests of his client? While the role of the defense has been explored through the culture of their law firms, the individualized role of the defense lawyer in the context of criminal procedure and their contribution to adversarial justice is something that has not been exposed to scrutiny. This book explores how lawyers view their own individual role in the context of the changed obligations introduced by the CPIA 1996 and the CrimPR, looking at the defense lawyer as part of a system, rather than as part of a relationship. Through a theoretical lens, Ed Johnston provides a wider perspective on the changing nature of criminal justice and the place of a key actor within it to draw conclusions regarding the role of the defense lawyer in the modern era.

This book explores engagement between the trade and investment law regimes and the extent to which this is being driven by Preferential Trade and Investment Agreements (PTIAs). It provides an empirical analysis of engagement between the two regimes using data from 60 PTIAs and 60 Bilateral Investment Treaties concluded between 2005-2019 to see whether PTIAs result in increased engagement and whether they are doing so over time. The book explores eight of the factors identified as evidencing inter-regime engagement. These chapters look at when engagement is appropriate and to what extent it is appropriate in relation to each of these areas. Based on the findings of this book's empirical and comparative law analysis of PTIAs, BITs, and the trade and investment law regimes, the book examines whether the conclusion of PTIAs compared to BITs has resulted in increased levels of engagement between the trade and investment law regimes. This book does not put forth the view that convergence between trade and investment is always appropriate, but provides recommendations as to how treaties may be formulated and interpreted in a manner that takes inter-regime engagement into account with a view to ensuring the harmonious simultaneous development of the two regimes. The question of the future direction for engagement between the trade regime and the investment regime is very topical in light of changes to the architecture of both regimes at present.

This book examines the impact of EU trade and investment agreements on public services, a topic that continues to be the subject of heated political debate. It surveys a broad range of EU agreements and provides a comprehensive, up-to-date analysis of the rules and disciplines of such agreements that can affect the provision of public services. Going beyond the existing literature, it asks whether the treatment of public services in EU trade and investment agreements is coherent with the special status of public services in "internal" EU law, specifically internal market law, while also challenging the notion that trade and investment agreements automatically pose serious threats to public services. The book will be of keen interest to legal scholars and students specialising in EU and/or international economic law together with national and international policy-makers. Luigi F. Pedreschi is affiliated to the European University Institute in Florence, Italy, and currently works as a Research Associate at the Robert Schuman Centre for Advanced Studies, also located in Florence.

This book examines how alcohol intoxication impacts upon the memory of rape victims and provides recommendations for how best to investigate and prosecute such rape complaints. An estimated 75% of victims are under the influence of alcohol during a sexual assault and yet there is surprisingly little guidance on conducting interviews with complainants who were alcohol-intoxicated during the attack. This book will provide a distinctive, rigorous and important contribution to knowledge by reviewing the evidence base on the effects of alcohol on memory performance. The book brings together a range of academics from various disciplines, including psychology, law and criminology, and it discusses the implications for practice based on consultation with various criminal justice practitioners, including police officers, barristers who defend and prosecute rape cases and policy makers.

In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and how it would be a solution for the American legal system as well.