Developments In Case Law Research Articles

Judicial Discomfort over 'Innovative' Treatment for Adolescents with Gender Dysphoria.

Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing court involvement in Australia and recent judicial review proceedings in the UK. In Re Imogen [No 6], the Family Court of Australia held that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent’s capacity to consent, or the proposed treatment. In this article, we examine the Family Court’s rationale for preserving its welfare jurisdiction in gender dysphoria cases. We analyse case law developments in Australia and more recently in the UK and identify a thread of judicial discomfort in gender dysphoria jurisprudence about adolescents consenting to medical treatment that the court perceives to be ‘innovative’, ‘experimental’, ‘unique’, or ‘controversial’. We explore whether treatment for gender dysphoria can be characterised as ‘innovative’ and identify four factors that appear to be influencing courts in Australia and the UK. We also consider how such a characterisation might impact (if at all) on an adolescent’s capacity to consent to gender dysphoria treatment. We critique the ongoing role of courts in these cases and recommend a robust decision-making framework for gender dysphoria treatment to minimise court involvement in the future.

FEDERAL ALMAN ANAYASA MAHKEMESİ İÇTİHATLARI VE AB HUKUKU

Federal Alman Anayasa Mahkemesi içtihatlarıyla AB Hukukuna yön veren bir role sahiptir. Anayasa mahkemesinin AB Hukuku ve ulusal hukuk ilişkisinde 1974 tarihli “Solange I” kararı, 1986 tarihli “Solange II” kararı, 1993 tarihli “Maastricht” kararı, 2009 tarihli “Lizbon” kararı, 2010 tarihli “Honeywell” kararı ve 2014 tarihli “OMT” kararı bu bağlamda milat teşkil eden kararlar olarak AB hukuk literatüründe yer almaktadır. Makalede Federal Alman Anayasa Mahkemesi’nin AB birincil (primer) hukukunun ultra-vires denetimi ve anayasal kimlik denetimi bağlamındaki içtihatlarında ortaya çıkan gelişime ışık tutulması yanı sıra, diğer anayasa organları ile (Federal Meclis ve Federal Hükümet) entegrasyon rolü paylaşımı ve AB Divanı ile ilişki değerlendirilmektedir.

Sami Land Rights

Abstract The Indigenous Sami people traditionally live in what is now Sweden, Norway, Finland, and Russia. A crucial matter for Indigenous peoples, including the Sami living in Sweden, is that of the recognition of their land rights and access to their traditional lands. This article’s aim is to present and analyse recent case law developments in Sweden that relate to the recognition and protection of Sami land rights, specifically the Girjas and Talma cases, through legal-scientific and textual analyses and relevant legal literature. Both cases concern Sami reindeer herding rights in Sweden and the Swedish state as defendant. These cases raise complex legal issues and historical circumstances, demonstrating the need for the Swedish state to treat Sami land rights as equal to other civil rights in Swedish society, in line with international human rights law.

Trans Rights: The Ongoing Debate in Latin American Legal Agendas

This article offers an overview of the Trans people's rights agenda in Latin America. It focuses on various Latin American countries to reveal how the route towards rights has been marked by a binary and medicalizing approach to non-normative identities, directly influenced by the traditional and conservative moral projects prevalent in the region. It also accounts for some recent normative and case-law developments, which however coexist with restrictive norms that criminalize the rights of gender-diverse people. It concludes that the recognition of Trans people’s rights is often insufficient, that it contributes to rendering Trans diverse realities invisible, thus reinforcing discrimination.

A Matter of (Joint) control? Virtual assistants and the general data protection regulation

This article provides an overview and critical examination of the rules for determining who qualifies as controller or joint controller under the General Data Protection Regulation. Using Google Assistant – an artificial intelligence-driven virtual assistant – as a case study, we argue that these rules are overreaching and difficult to apply in the present-day information society and Internet of Things environments. First, as a consequence of recent developments in case law and supervisory guidance, these rules lead to a complex and ambiguous test to determine (joint) control. Second, due to advances in technological applications and business models, it is increasingly challenging to apply such rules to contemporary processing operations. In particular, as illustrated by the Google Assistant, individuals will likely be qualified as joint controllers, together with Google and also third-party developers, for at least the collection and possible transmission of other individuals’ personal data via the virtual assistant. Third, we identify follow-on issues relating to the apportionment of responsibilities between joint controllers and the effective and complete protection of data subjects. We conclude by questioning whether the framework for determining who qualifies as controller or joint controller is future-proof and normatively desirable.

Appalachian Basin–Pennsylvania, West Virginia, and Ohio–Oil and Gas Law Developments

This article addresses oil and gas case law developments that have occurred within the Appalachian Basin’s primary oil and gas producing states of Pennsylvania, West Virginia, and Ohio during 2021 by reviewing opinions issued by the highest appellate courts within each of these three states. The oil and gas law topics addressed by these state supreme courts during 2021 have ranged from those occurring upstream, such as leasing, to those occurring downstream, such as approval of a utility rate increase for the extension of a natural gas pipeline.

Jurisprudence of the Strasbourg Court of 2020

The Article concerns the Jurisprudence of the European Court of Human Rights of 2020. It does not have an ambitious objective to give an exhaustive analysis of the Court’s Case – Law, it only tries to show several important issues, which reflect current approaches of the Court and tendencies or directions of its Case-Law development. The following issues and cases will be discussed in the Article: jurisdiction of a State (art.1) and its interconnection with the admissibility of the application (inter-state case Slovenia v. Croatia, concerning an alleged violation of convention rights of a legal entity, which could not be classified as a “non-governmental organization” in the meaning of the art. 34); refusal by the Court to acknowledge extra-territorial jurisdiction in respect of the foreign nationals who apply for a visa at an embassy or consulate abroad ( M.N and Others v. Belgium); extra-territorial effect of a refugee status within the EU (SHIKSAITOV v. Slovakia); just satisfaction in respect of property outside of a respondent state territory and indirect binding nature of the Court’s judgment for a State, which was not a party in convention proceedings (MOLLA v. Greece ); issue of a state responsibility (in the meaning of violation of negative or positive obligations) for acts committed by a state agent in his private capacity, and the issue of whether and under what circumstances the approval by a state of a committed act raises its responsibility before the Convention; obligations in the context of extradition and arbitrary release from serving a prison sentence for a racially motivated hate crime (MAKUCHYAN and Minasyan v. Azerbaijan and Hungary); importance of the freedom of expression of a member of Parliament from the opposition political party (SELAHATTINDEMIRTA v. Turkey,); and of an accused person during his case hearing in the context of the statements for self-defense that resulted in his conviction for defamation (MILJEVI v. Croatia); compatibility of an organized calling for boycott with the art. 10 and the threshold, that should never be overstepped while exercising freedom of speech (BALDASSI and Others v. France), etc. It is emphasized in the Article that the Court has developed a number of new approaches and principles in order to protect VULNERBE groups (Roma community, asylum seekers, homosexuals, victims of domestic violence or trafficking, children (from ill-treatment by their parents)), as well as to introduce more detailed criteria to estimate the foreseeability of criminal provisions, concept of “tribunal established by law” (within the meaning of art.6) or more guarantees for personal data protection, etc. The Author is of an opinion that ECHR does follow its way of harmonious interpretation of the Convention with the other International law instruments and, in later cases, extends the application of the principle of subsidiarity including making its judgments indirectly binding for a State, which was not a party in the convention proceedings.

Medical Liability in the First Period of Independence of Latvia (1918–1940)

The aim of the paper is to investigate the development of medical law and jurisprudence in the Republic of Latvia during its First Period of Independence (1918–1940), with a particular focus on the liability of doctors for instances of negligence that occurred during the fulfillment of their professional duties. The author seeks to identify the main routes of the emergence of medical liability in the Republic of Latvia, the influence of the laws and legal precedents on the adoption of national legislation relating to medical liability, and the development of case law relating to medical malpractice by Latvian courts during the First Period of Independence.

Lasting Legal Legacies: Early English Legal Ideas and Later Caselaw Development During the Industrial Revolution

AbstractWe explore English legal evolution by empirically investigating the relevance of late-medieval and early-modern legal ideas for caselaw development during the Industrial Revolution, an era of unprecedented societal change. To ascertain the prevalence of specific legal ideas in pre-1765 case reports, we draw on existing topic model estimates. We measure the relevance of those ideas for subsequent caselaw development using post-1764 citations to the pre-1765 cases. We show that deliberations on court cases heard between 1765 and 1870 systematically invoked a broad range of preexisting legal ideas. Strikingly, the strongest effects are exhibited by Coke-style analysis and precedent-based thought. A key legacy of early English caselaw therefore lay in bestowing modes of reasoning. The reason why a subset of preexisting legal ideas does not exert a detectable effect is that those ideas were generally no longer key to post-1764 legal disputes. Our approach to investigating legal development could be applied in many other contexts.

Social Networks as New Public Forums?

Abstract The article provides a comparative overview on recent case law developments concerning the so-called deplatforming, calling for a more in-depth consideration of the role of social network service providers. By comparing the US and Italian scenarios, it delves into the question on whether these operators should be equalized to public forums or State actors and then subject to stricter regulation with respect to content moderation.

A Case-Law Analysis of The Commercial Enterprise of The Sole Proprietor and Its Co-Relation to The Matrimonial Community Property

The present research puts the focus upon the development of case law regarding one of the fundamental aspects of matrimonial property relations of the sole proprietor (SP) whenever the statutory regime of community of property is applicable, in particular the co-relation between the matrimonial community property and the commercial enterprise of the spouse – SP. The article focuses on case law development regarding the substantive legal requirements to cancel the effect of the presumption of joint contribution pursuant to art. 21, s. 1, 3 of the Family Code 2009 concerning property rights acquired by the SP during his or her marriage to be included into his or her commercial enterprise. Special regard is attributed to the shift in recent case-law since the entry into force of the present Family Code in 2009 on the origin of money used to acquire property rights, that become personal property of the spouse-SP pursuant to art. 22, s. 3 of the Family Code. Moreover, attention is being credited to the general purpose of the requirement to include property rights into the enterprise of the spouse-SP and its significance for the acquisition of personal property pursuant to art. 22, s. 3 of the Family Code.

The Appraisal Right in terms of Section 164 of the Companies Act 71 of 2008: An Overview

The appraisal right in terms of section 164 of the Companies Act 71 of 2008 has been applicable to fundamental transactions undertaken by companies for a number of years. The first two aims of this article are first to provide an overview of the appraisal right, and second to revisit certain concerns that were raised about the determination of fair value by the courts where a shareholder makes an application to court for a determination of fair value. It is suggested that this should not present a major problem in practice, considering that existing practice in takeover laws requires the valuation of shares by an independent expert when a company undertakes an affected transaction. In the main, the requirements for fundamental transactions overlap with those for affected transactions. The requirements for affected transactions adequately deal with the determination of fair value. The third aim is to provide an overview of how companies attempt to limit the effect of the appraisal right on fundamental transactions using various terms and conditions precedents, and the fourth is to discuss developments in case law on the appraisal right remedy. It is concluded that the decisions of the courts on its application will assist companies in structuring fundamental transactions and shareholders in exercising the appraisal right. Finally, the article suggests reasons for including certain subsections in the appraisal right remedy, for instance, the power of the courts to award costs in certain respects and a requirement that extends the time periods within which a shareholder may make a demand where the company fails to comply with specific requirements. It is suggested that this enhances the ability of shareholders to exercise the appraisal right. The article also provides concluding remarks advising companies and shareholders. In the case of companies, it concludes, for instance, that due diligence in identifying the risk that certain shareholders may raise appraisal rights is required before initiating a transaction that may be subject to appraisal rights. Failure to do so may be costly to the company. And, in the case of shareholders, failure to adhere to the required procedures may result in loss of their appraisal right remedy, or loss of the right to approach the courts for an appropriate relief under the appraisal right remedy.

The Appraisal Right in terms of Section 164 of the Companies Act 71 of 2008: An Overview

The appraisal right in terms of section 164 of the Companies Act 71 of 2008 has been applicable to fundamental transactions undertaken by companies for a number of years. The first two aims of this article are first to provide an overview of the appraisal right, and second to revisit certain concerns that were raised about the determination of fair value by the courts where a shareholder makes an application to court for a determination of fair value. It is suggested that this should not present a major problem in practice, considering that existing practice in takeover laws requires the valuation of shares by an independent expert when a company undertakes an affected transaction. In the main, the requirements for fundamental transactions overlap with those for affected transactions. The requirements for affected transactions adequately deal with the determination of fair value. The third aim is to provide an overview of how companies attempt to limit the effect of the appraisal right on fundamental transactions using various terms and conditions precedents, and the fourth is to discuss developments in case law on the appraisal right remedy. It is concluded that the decisions of the courts on its application will assist companies in structuring fundamental transactions and shareholders in exercising the appraisal right. Finally, the article suggests reasons for including certain subsections in the appraisal right remedy, for instance, the power of the courts to award costs in certain respects and a requirement that extends the time periods within which a shareholder may make a demand where the company fails to comply with specific requirements. It is suggested that this enhances the ability of shareholders to exercise the appraisal right. The article also provides concluding remarks advising companies and shareholders. In the case of companies, it concludes, for instance, that due diligence in identifying the risk that certain shareholders may raise appraisal rights is required before initiating a transaction that may be subject to appraisal rights. Failure to do so may be costly to the company. And, in the case of shareholders, failure to adhere to the required procedures may result in loss of their appraisal right remedy, or loss of the right to approach the courts for an appropriate relief under the appraisal right remedy.

The case law of the European Court of Human Rights: Its content and effect on suicide prevention in custody and detention

This article analyses developments in case law based on Article 2 (right to life) in the European Court of Human Rights as they relate to suicide prevention for those in detention (in prison, police stations, or psychiatric hospitals) and the paradoxical effects they have had on prevention policies enacted by states condemned by the Court. I first show that the jurisprudential philosophy used by the Court is characterized by an emphasis on risk management and a narrow understanding of individual motivations for suicide. I then demonstrate that, under pressure from the Committee for the Prevention of Torture and the national associations for the defence of the rights of detainees, the Court’s judgments have led states to adopt suicide prevention policies that are actuarial (based on risk management) and punitive. However, this perverse effect seems to be partially offset by the possibility that the families of detainees, through the investigative duties of member states of the Council of Europe, can exercise at least some supervision over the custodial and police systems.

Europejski Trybunał Praw Człowieka wobec totalitarnej destrukcji porządku własnościowego w Polsce. Część 1

The aim of this article is to analyze the role of the European Court of Human Rights in overcoming totalitarian regime in the area of proprietary rights in Poland, the only state not adopting special legislation to meet these claims. It is the destruction of this part of the traditional legal system after World War II that can be considered as a key element of totalitarianism itself. However, this paper is not focused on historical developments, but rather on their current consequences, trying to evaluate links between them and modern legal order — particularly important in terms of limited temporal court jurisdiction over the area. In terms of the rule of law principle, it is essential how can a state cope with making good damages suffered by the victims. Careful research has proved practical application of the domestic law as well as functioning of public institutions to be based on serious systemic deficiencies making effective legal protection very difficult and sometimes impossible. They were rulings of the court playing a crucial role in supporting national authorities and setting standards of better protection — also achieved through judicial dialogue with the national judiciary. This very case-law also has a more general meaning, as it pictures a mode of ECHR’s jurisdictional activity and quite functional approach to the interpretation of the convention.
 This article is divided into two parts. The first one presents the general meaning of the area, the genesis of the protection, and major trends in the case-law development. The second part will offer a legal analysis of art. 1 and careful a systematization of leading rulings.

Interstate Application on Behalf of Organisations Lacking Non-governmental Status is Inadmissible. Comment on ECtHR Decision in Slovenia v. Croatia (Application No. 54155/16)

The present commentary concerns the claims alleging a violation under Article 6(1) (right to a fair trial), Article 14 (Prohibition of Discrimination) and Article 13 (Right to an Effective Remedy) of the European Convention on Human Rights as well as Article 1 of Protocol No. 1 (Peaceful Enjoyment of Possessions) to the European Conventionon Human Rights by preventing Ljubljana Bank (a Slovenian bank) from enforcing and collecting the debts of its Croatian debtors in Croatia by the Croatian authorities. The case under discussion is an inter-state case and the applicant was the Republic of Slovenia. The decision is significant from the perspective of the development of case law in inter-state cases, which are still rare in the practice of the European Court of Human Rights. It has been confirmed that inter-state applications are additional measures for the protection of the rights of individuals which cannot be used to protect State interests.

Climate Change Litigation: Indian Perspective

AbstractThis article covers the recent trends in climate change litigation in India, capturing the peculiarities of the Indian judicial system that lend it the will, ability, and credibility to accommodate emerging principles of climate change laws within the law of the land. While tracing the historical underpinnings of judicial activism, environmental considerations, and strength of democratic institutions, this Article discusses some of the current developments in climate change case law in the country. Finally, in showcasing an increasing and immersive trend towards the inculcation of international principles of environmental law, this article establishes the dichotomy between an active judicial system applying international environmental principles at the domestic level and the roadblocks in terms of climate litigation in the recent times.

A Migrants’ Right to Respect for Family Life – The Problematic Developments of the European Court of Human Right’s Case Law

Summary This paper analyses the inconsistency in the case law of the European Court of human Rights when applying Article 8, the right to respect for family life, of the European Convention of Human Rights in the immigration context. Even though Article 8 has permeated the area of immigration policy, critics claim that the case law has shown a number of extremely problematic developments. The main question of the paper is how the Court can be more consistent when determining a States’ compliance with Article 8. It examines whether the use of the same compliance test for all immigration cases could offer a more structured framework. The paper also explores additional adjustments in the application of Article 8 in order to improve the current development of the inconsistent case law.

Judicial review and the Common Foreign and Security Policy: Limits to the gap-filling role of the Court of Justice

Since Opinion 2/13, the ECJ has gradually clarified that its role in the field of CFSP is less limited than a cursory reading of the Treaties may suggest. This article aims to take stock of this evolving case law and discuss the remaining uncertainties and criticisms regarding the Court’s approach. After a brief introduction to the ambiguous position of the CFSP in the EU legal order, specific attention is devoted to the “gap-filling” role of the ECJ’s case law in relation to CFSP matters. It is argued that the Court has developed a consistent line of case law, based on the horizontal application of general constitutional principles and mechanisms. The question remains how much further this “gap-filling role” can be stretched in light of the principles of institutional balance and conferral. The article discusses to what extent the specific features of EU law as regards judicial review in CFSP matters may still be regarded as an obstacle for EU accession to the ECHR. Judicial review, Common Foreign and Security Policy, CFSP, Court of Justice, ECJ, CJEU, jurisdiction, gap-filling, judicial protection, constitutional principles, EU accession to the ECHR

Disentangling capacity and the First-tier Tribunal: bringing case law into clinical practice

SUMMARYIt has been common clinical practice for staff members to make an application to a mental health tribunal (the First-tier Tribunal (Mental Health) in England or the Mental Health Review Tribunal in Wales) on behalf of a patient detained in hospital for psychiatric treatment who may lack capacity to make that application, for example in dementia in-patient settings. Following a series of cases in the Upper Tribunal, such practice may not be appropriate and there is now a risk that the application will be struck out. It is important that clinicians are aware of developments in case law and therefore we provide guidance on how clinicians should approach applications to the tribunal and the assessments of capacity that may be required.