Court Of Law Research Articles

The Love Jones Cohort and singlehood are family law issues

AbstractThis article reviews the changing Black family and households. The core theme is to understand the uniqueness of those single and living alone in the Black middle class—the “Love Jones Cohort”—and how their intersecting identities of race, class, gender, and singleness inform their lifestyle, shape how they manage life decisions, and their relationship to policy as well as family law and family court. This essay moves beyond the popularized and omnipresent inquiry: “Why are Black women not getting married?” or “Why are there so many single professional Black women?” This line of questioning throws the spotlight squarely on Black women's individual dating practices, while often ignoring structural factors that undergird those decision‐making processes. It implies that because of the individual actions of the Love Jones Cohort, specifically Black women, they are somehow at a deficiency if they are not married and child‐free, rendering them invisible as a family. This article discusses the legal implications of the presence of the Love Jones Cohort.

Confirmation of Arbitral Awards in Emirati Civil Procedures Law Analytical Comparative Study with the Kuwaiti Law

Parties to a dispute do refer to arbitration to have their disputes resolved. This is due to the fact that arbitration achieves more than one advantage to the parties such as speediness and confidentiality. Arbitrators, who are ordinary people as a general rule, deliver a judgment on the case. This judgment (the arbitral award) has no value if not respected and enforced. Both the Emirati and the Kuwaiti laws state that the arbitrators' delivered judgment (the award) is not eligible for enforcement unless confirmed by a court of law. This article analyses, examines and assesses the requirements and steps that must be met and followed in order to confirm the arbitrators' delivered award, both in the Emirati and the Kuwaiti laws. However, the article adopts more than one recommendation concerning the matters it addresses.

Guidelines for Scrutiny of Death Associated With Surgery and Anesthesia.

The death of a patient in the operating room frequently causes great distress to the patient's family, and the surgical team members who performed the procedure typically feel uneasy about it afterward. Anesthetic death is characterized as a death that happens 24 hours after anesthesia is administered and is caused by anesthetic-related factors. However, death can come much later because of its complications. This review thoroughly explains mortality resulting from surgery and anesthesia, including autopsy reports, investigative data, analytical techniques, and conclusions. Following surgery and anesthesia-related death,in case of death after surgery, an autopsy determines the cause of death and if the procedure had any impact on it. Individuals who pass away during or after surgery may do so for a wide range of reasons, such as a generally natural condition, an early or late surgical complication, an anesthetic problem, or an error during the operation or anesthesia. The pathologist should take the results of the examination into account while looking into an anesthetic death. In the majority of anesthesia-related deaths, autopsies reveal little diagnostic informationwith the absence of an underlying cause of death. The analyses help determine and estimate the dosage of medication given, as well as the amount of anesthetic agent overdose provided before death. The best consensus opinion to provide the investigative authorities and courts of law for the cause of death investigation may come from a discussion amongst forensic pathologists, surgeons, and anesthetists. In conclusion, the family and friends of the deceased are greatly affected by an unexpected or unexplained death, and the organizations entrusted with determining the cause of death bear a great deal of responsibility. Science and technology are becoming more and more important in death investigations. Following precise and well-founded procedures is one of the science's defining characteristics.

‘The voice of the child? The child has no voice’: an Irish study exploring the voice of young children in decisions regarding contact

Since January 2016, Irish family law courts have been obliged to take into consideration the voices of children in proceedings where decisions regarding contact with parents are being made. This article examines the findings of an Irish study that shed light on how young children’s voices are heard in decisions regarding contact with parents who do not, or no longer, live together. The views of key stakeholders who have some involvement with contact arrangements for young children in the 0–6 years age category are highlighted. A thematic analysis of the data was conducted in order to understand various perspectives on how and under what circumstances young children are heard in contact cases. The findings demonstrate that the voices of young children are virtually absent in family law decisions regarding contact. Determining factors relate to the infrastructure of the courts, a significant lack of resources to support the Irish family law system and significant variation in practice approaches between social and legal professionals. As a result of these findings, suggestions are proposed for informing practice and improving service delivery in family law in a way that best meets the needs and rights of young children.

The Pragmatic Impact of Grammatical Structures in Courtroom Interpretation and Translation

Courtroom interpretation and translation require a nuanced understanding of not only vocabulary but also the pragmatic impact of grammatical structures. This paper examines the pragmatic impact of grammatical structures on interpretations in the Kisii Law Courts. Using data collected from actual proceedings, the paper analyzes how seemingly minor grammatical differences can have significant consequences for the accuracy and fairness of the legal process. By applying Mey's (2001) Pragmatic Act Theory (PAT), we analyze how modal verbs, passive voice and nominalisation function within the context of the courtroom, influencing the interpretation of witness testimonies, judge's instructions, and lawyer's arguments. Specifically, we explore the use of passive voice within the context of PAT, analyzing how these choices interact with the social context and speaker intention. We will also examine the pragmatic effects of passivisation on agency, responsibility, and the focus of witness testimony, examining how they shape the understanding of events and culpability. It is crucial for court interpreters and translators to accurately convey the intended meaning and effects of pragmatic acts in court proceedings. Keywords: Pragmatic Act Theory, court interpretation and translation, passive voice, nominalisation, modal verbs

The Enka v. Chubb/Anupam Mittal v. Westbridge Controversies: Why Not the Hong Kong (Partial) Solution?

This paper explores the critical theme of determining the governing law of arbitration agreements amidst the intricate landscape of international arbitration. Focusing on divergent approaches from key jurisdictions, including England and Wales, Singapore, and Hong Kong, it elucidates the challenges posed by varying legal frameworks. Recent developments, such as potential statutory adjustments in England and Wales influenced by recommendations from the English Law Commission, underscore the need for clarity in governing law determinations. The controversial ‘composite test’ approach in Anupam Mittal v. Westbridge and the traditional English approach in Enka v. Chubb exemplifies the global concerns surrounding these divergent approaches, highlighting the complexities faced by common law courts worldwide. Drawing on these cases, the paper emphasizes the importance of parties expressly choosing the governing law of arbitration agreements to mitigate uncertainties. It underscores the potential positive contributions of model clauses and jurisdiction-specific approaches, such as the Hong Kong International Arbitration Centre (HKIAC) model clause and Hong Kong’s guidance for HKIAC arbitrations. The paper also addresses enforcement challenges, particularly in light of Article V(2)(b) of the New York Convention. It discusses the discretionary invocation of the public policy exception and its impact on enforcement efficacy, emphasizing the need for a holistic approach transcending contractual formalism.

Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights

Based on the analysis of theoretical approaches to the essence of the institute of detention of a person, the article substantiates the position that detention is a procedural action which has a temporary restrictive nature of the rights of a person who was detained during the commission or attempted commission of a criminal offence, immediately after the commission of a criminal offence or during the continuous prosecution of a person suspected of a criminal offence, and which aims to ensure further pre-trial investigation, clarification of the circumstances of the event which occurred. Based on the generalisation of the provisions of international legal acts and taking into account the case law of the European Court of Human Rights, the author defines the standards for providing legal aid to a person detained on suspicion of committing a criminal offence. It is established that the special international standards, compliance with which is crucial for ensuring the rights of a detainee and which also guarantee the effectiveness of legal aid received by a detainee, include 1) the principle of confidentiality in the course of communication between a detainee and a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the rights of a detainee or their violation; 4) the principle of independent and free choice of one's legal position. The following are proposed to be the sectoral international standards, compliance with which is crucial for ensuring the rights of a detainee, and which also guarantee the effectiveness of legal aid received by a detainee 1) the principle of confidentiality in the course of a detainee’s communication with a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the detainee’s rights or their violation; 4) the principle of independent and free choice of one’s legal position. The emphasis is placed on the fact that the prospects for further research should be to determine the legal mechanisms for implementing the outlined standards into the national practice of law enforcement and judicial authorities.

Ochrona danych genetycznych – od koncepcji indywidualnej do grupowej

The article presents a gradual shift from the individual concept of data protection to the application of the group concept in the case of genetic data, which by its nature applies to more than one person. The application of the group concept is based on the norms of EU law, the case law of the European Court of Human Rights, the Court of Justice of the European Union, the Supreme Court of Iceland, as well as soft law documents. The jurisprudence presented in the paper argues that genetic information is relevant both to the donor of genetic material and to his relatives. Thus, the genetic data of person A created from a biological sample taken from him, may also constitute the genetic data of person B. Thus, the status of the data subject established under EU law should be extended to a larger number of persons than suggested by EU data protection legislation. The argumentation presented confirms the formation of indicating the group nature of genetic data. The continuous increase in the amount of genetic information in social and economic circulation will only reinforce this trend, which is aimed at the full realization of the right to personal data protection.

The Ban of Political Parties – An Analysis of the Criteria Developed by the German Federal Constitutional Court and the European Court of Human Rights and their Interconnection

It is possible to ban political parties in many modern democracies. However ideologically extreme they may be, their ban constitutes a violent interference in the political sphere and should therefore only be applied in particularly justified cases. The article analyses the relevant case law of the German Federal Constitutional Court and the European Court of Human Rights. It comes to the conclusion that the jurisprudence of the two courts is closely linked and builds on each other. Moreover, by today’s standards, it is not possible to ban a political party that has an unconstitutional programme, even if it tries to implement it aggressively and violently, as long as it is not in a position to actually implement it, i.e. it does not have the necessary political power.

THE PROCESS OF CONSTITUTIONALIZATION OF INTERNATIONAL HUMAN RIGHTS LAW AT THE REGIONAL LEVEL: THE CHALLENGES OF THE EUROPEAN COURT AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS

This article discusses the process of constitutionalization of international law, based on an examination of the case law of the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR). Through a bibliographical review, the objectives were to present the idea of ​​constitutionalization at the international level, based on an examination of the precedents of regional protection systems; then, the aim was to analyze the consolidation of the use of the constitutional perspective by the ECHR and the IACHR in their judgments. As a hypothesis, it is believed that regional protection systems develop the constitutional approach to international law through their judgments on human rights. Filling gaps in conventional international law, resorting to custom to prove its existence and the possibility of exercising “conventionality control” in cases related to human rights violations are some of the ways in which certain situations are subject to law and its jurisdiction. As a result, it was found that the hypothesis was partially confirmed. By examining the cases, it is clear that each regional system for the protection of human rights has a specific characteristic, within which it must act for the constitutional development of international law. In this regard, it can be inferred from the examination of the cases of the ECtHR and the Inter-American Court of Human Rights that the constitutionalization of international law can be constructed from both bottom-up and top-down perspectives, using the sources of international law – customs, the case law of the regional courts themselves and the general principles of law – to fill the gaps in the international legal system.

Legal provision for the rights of persons who receive rehabilitation assistance

The research is devoted to the problems of legal provision of the rights of persons who receive rehabilitation assistance. The author examines the norms of international and national legislation that enshrine the rights of citizens in the field of healthcare. The works of scholars who have examined the peculiarities of exercising certain patients’ rights are studied. The article describes the legislative acts regulating the rights of a patient in a rehabilitation institution in Ukraine. It is indicated that certain patient rights are enshrined in the Civil Code of Ukraine and the Fundamentals of Healthcare Legislation. Special rights of the patients of rehabilitation institutions are provided for by the Laws of Ukraine “On Rehabilitation in the Healthcare Sector” and “On Rehabilitation of Persons with Disabilities in Ukraine”. The classification of patient's rights into socio-economic, legal, informational, ethical and those related to ensuring the quality of rehabilitation care is proposed. It is indicated that informational rights include the right to information about rights and obligations, diagnosis, functional limitations, nature of treatment, and preservation of medical confidentiality. It is concluded that socio-economic rights consist in the possibility of access to free rehabilitation services at the expense of budgetary funds under the programme of State medical guarantees. It is noted that ethical rights provide for a humane and respectful attitude of medical personnel towards patients. Among the legal rights of the patient is the possibility of judicial and administrative protection of the patient’s rights by applying to law enforcement agencies and courts. The patient has the right to qualified rehabilitation care. Proposals for amendments to the current legislation are made. The necessity to systematise patient rights and provide for them in a separate Law of Ukraine “On Protection of Patients’ Rights” is emphasised.

Systematic and Contractual Protection of the Commercial Establishment in the Saudi Legal System

Although the Saudi Commercial Court Law does not specifically regulate commercial assets, the Saudi legislator has addressed the protection of such assets through the Competition Protection Law issued by Royal Decree No. 75 of the year 1440 AH. This law aims to protect merchants from any unfair competition that may affect their capital, or in other words, their commercial assets. In commercial jurisprudence, these assets are referred to as the "commercial establishment" or "store," which comprises both tangible and intangible movable assets owned by the merchant as a single unit. Moreover, there exists an alternative method of protecting the commercial establishment beyond the statutory framework, namely, the protection provided through contractual agreements. Merchants may include clauses in their contracts that prohibit competition that harms them, commonly referred to as "prohibited competition." Thus, there are two types of protection for the commercial establishment: the first is protection from unfair competition, regulated by law, and the second is protection from prohibited competition, regulated by contractual clauses.

An Analysis of Representative Speech Acts in Selected Subordinate Courts of Law in Kenya

An Analysis of Representative Speech Acts in Selected Subordinate Courts of Law in Kenya

Shylock in Fuquieo: Shakespeare’s The Merchant of Venice and the Trial of a Portuguese Stranger by China’s Courts in Richard Hakluyt’s Principal Navigations

In 1548, the Portuguese merchant Galeotto Perera was captured along with his shipmates in the waters off China’s southeastern coast. In his account of his time as a prisoner in Fuquieo (in contemporary Fujian province), Perera details his trial before the city’s magistrates in a Chinese court of law, writing of his amazement when he and his fellow Portuguese merchants were acquitted of the charges brought against them by two of the city’s most prominent men. Perera’s prison account reached an Elizabethan readership via Richard Hakluyt’s Principal Navigations (1589), a sprawling compendium of European travel writing translated into English. In this essay, I maintain that the outcome of Shylock’s trial in Shakespeare’s comedy entails a reversal of Perera’s legal fortunes in China. In light of Perera’s assertion that the Chinese legal process “cannot be falsified, as it happeneth sometimes with vs,” I argue that The Merchant of Venice asks why these European failures of justice, mercy, and truth sometimes happen in Europe’s courts and in negotiations with non-Christian peoples. I aim to demonstrate that the comedy’s treatment of economic and religious exchange with strangers is inflected by Perera’s account of his encounters with the Chinese during his time in Fuquieo—as well as by other travel writings collected by Hakluyt that describe legal, financial, and inheritance quandaries that European traders faced during their travels to places like China, Java, and modern-day Myanmar.

Using AI to Mitigate the Employee Misclassification Problem

Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. My first goal is to sharpen the explanation of why misclassifications persist; I argue that three well‐known problems – the indeterminacy of employee status tests, the barriers to self‐enforcement, and the inequality of bargaining power – together combine to give employers de facto power to set the default legal status. Putting the burden on the worker to initiate legal proceedings and challenge their classification as an independent contractor is the ultimate reason for persistent misclassifications. The second and main contribution is to propose a solution that relies on new AI capabilities. Thanks to technological advancements it is now possible to require employers to seek pre‐authorisation before engaging with someone as an independent contractor. The authorisation would be granted (or refused) by a state‐run automated system, based on an AI prediction about the law. Both parties would still be able to bring the case before a court of law; but the power to set the default legal status would be taken away from employers. The article considers the difficulties with relying on AI predictions, and argues that those difficulties can be addressed, proposing a model that can be justified.

On the Compatibility of the Democratic Rule of Law and the Self-Regulation of Meta: The Oversight Board as a Guardian of Freedom of Expression

The article examines the role of Meta in relation to the principles of the democratic Rechtsstaat. The perspective focuses on the importance of the human right to freedom of expression in a global network society, where Internet intermediaries, through their self-regulation and content moderation, have a crucial impact on the realisation of freedom of expression and, by extension, on democratic processes. Because of their influence, their self-regulatory systems can be seen as independent systems of norms, governed by fundamentally different principles from those of European nation-states committed to democracy, human rights and the rule of law – especially in the context of the European Union. This is of particular importance for public debate and the free expression of opinions, which are fundamental values in democratic societies. Social media both enables and, in some cases, limits the exercise of fundamental and human rights. They also share, or to some extent have even taken over, the institutional role of traditional media in society. The article takes a legal-theoretical approach to the subject matter, as it addresses the role of public debate in the digital environment as part of the legitimacy of the legal order itself. In this respect, the article analyses the relationship between Facebook and the public sphere, which is essential for democracy, and the role of the state in promoting freedom of expression in the online environment. The theoretical framework is based on Kaarlo Tuori's theory of the levels of law and the concept of democratic Rechtsstaat. Against this framework, Facebook/Meta is examined in a European context, which includes both the European Union and Council of Europe law. Most focus is put on the case law of the European Court of Human Rights. Through this framework, the role and position of the Oversight Board at the interface of human rights implementation and Meta's self-regulation will also be examined. Given the emphasis in the ECtHR's jurisprudence on the positive obligations imposed on the state, the article concludes that a more effective horizontal impact of fundamental and human rights is needed. This is supported by the conclusion that Facebook may not be considered as a well-suited public sphere for democracy.

Is a distributive analysis enough? A critical take on the case law of the European Court of Justice

ABSTRACT This essay articulates both empirical and historical insights of a distributive analysis, which entails presenting a critical intervention in a legal field dominated by a mainstream scholarly or policy view that is both ideologically tainted and empirically inaccurate. The transition from distributive consequences to what critical scholars refer to as a distributive analysis is a strategic intervention within each specific legal field that ought to be historicised. This article shows how the application of a distributive analysis to two canonical case studies in consumer law and gender discrimination as two distinct and relatively marginal fields in European Union law developed through the jurisprudence of the European Court of Justice. Finally, this article questions whether a distributive analysis, without a theoretical grounding in critical theory, is sufficient to ensure that it is not only an empirical tool but also committed to not perpetuating the existing inequalities within the liberal or neoliberal foundations of the European legal order.

The principle of competitiveness of the parties and freedom to present their evidence to the court and to prove their conviction before the court in the case law of the European Court of Human Rights

The principle of competitiveness of the parties and freedom to present their evidence to the court and to prove their conviction before the court in the case law of the European Court of Human Rights

Case law of the European court of human rights on compensation for non-pecuniary damage: Certain issues

Compensation is considered a means of restoring the violated rights. Ukrainian legislation directly provides for the possibility of compensation for non-pecuniary damage, however, a number of problems arise when considering cases on this issue in national courts. Firstly, there is no legally enshrined definition of this concept in Ukraine. Secondly, there is no single methodology or model for assessing moral damage, no formula for calculation is established at the legislative level, due to which judges assign different amounts of compensation for harm caused under the same or similar circumstances. Besides, there are no clear criteria for determining the amount of damage caused, which makes it almost impossible to unambiguously calculate, for example, the extent of the mental pain or the infringement on dignity and honor in property equivalent, that is, it is in fact a conditional compensation. Reference to the case law of the ECHR on this matter may contribute to solving these problems, because its decisions are referred to by national courts. The ECHR has not developed a universal formula for calculating the amount of non-pecuniary damage, but there are certain criteria for its assessment: the nature of the offense and violated right; payments accrued based on the results of consideration of previous cases; victim’s personality; the respondent State; collective statements or mass offenses; other circumstances of the case.

The Right to Social Protection: Analysis of the Case Law of the Constitutional Court of Ukraine

The Right to Social Protection: Analysis of the Case Law of the Constitutional Court of Ukraine