Extant Laws Research Articles

The Impact of Cybercrimes on Global Trade and Commerce

It is well settled and far beyond controversy, that the exchange of goods and services is an important aspect of human life; the trading activity dates back to history as attested by “trade by barter” during the stone ages; in this modern time, countries of the world are not equally endowed with human and natural resources, moreover, the economic principle espoused by comparative advantage on one hand, the free market economy and globalization on the other, has invariably made trade and commerce, as well as inter-governmental commercial transactions, an indispensable aspect of human life. Hitherto, trade and commerce were facilitated under cumbersome conditions, but with the advent of telecommunications via the cyberspace, the face and nomenclature of business transactions changed irreversibly for better as contracting partners need not meet one another physically, yet, commercial exchanges running into millions of Dollars could easily be effected through electronic commerce. It is apparent that the telecommunications medium is the most economical way to transact businesses irrespective of the geographical separations between trading partners. The telecommunications industry could thus be aptly described as the gate-way to the global economy, due to the phenomenal volume of transactions in goods and services facilitated between thereof between persons, corporate, organizations and sovereign states. Today, trade and commerce have surpassed the rudimentary realm and no longer localized as in the past; it has metamorphosed and become internationalized; unfortunately, cybercriminals capitalize on the advantages occasioned by speed and volume of electronic transactions, to wreak havoc thereby causing huge economic losses, as well as other setbacks which may not be quantifiable financially. This paper argues that losses arising out cybercrimes shall continue as extant laws in place, cannot possibly address the menace as the said laws are fragmented, national and regional. The purpose of this paper, is to attempt a comprehensive account of the impact of cybercrimes on E-Commerce so as to raise awareness and appreciation of the problem, in the hope that a global solution shall be found to the challenges posed by cybercrimes to E-Commerce and of course, global economy.

The Contemporary Presidency: The Obama Administrative Presidency: Some Late‐Term Patterns

President Obama's iteration of the administrative presidency, as his term ended, used both extant tools and stressed new ones. This essay centers on three themes: (1) the array of managerial directives used, as a caution against simply counting executive orders to measure Obama's administrative efforts; (2) the central role of statutory interpretation to find power in extant law to justify presidential preferences in areas such as health care, environmental protection, and immigration, with mixed results in the courtroom and thus on the ground; and (3) the aggressive—and far less challenged—use of that same tool in foreign policy and the war powers. In each area the Obama administrative presidency will bequeath useful precedent to his successors.

Illuminating a New Domain: The Role and Nature of Military Intelligence, Surveillance and Reconnaissance in Cyberspace

Created in 2009 to “[synchronize] warfighting effects across the global security environment as well as providing support to civil authorities and international partners” the United States Cyber Command has spent the intervening years developing a foundation of cyber military doctrine, harnessing and integrating extant forces, and developing the critical mass needed to execute its global mission.Key among the challenges faced by the still fledgling US Cyber Command is the task of effecting intelligence, surveillance and reconnaissance (ISR) in a domain where real-time cognizance is the lifeblood of needed agility while observable distinctions between ISR, preparation for attack, and offensive cyber operations are small and, in many cases, dependent more on context than on objective discriminants.This paper will make the case that real-time ISR in cyber space is an essential and achievable foundation for success in military operations in or dependent on cyberspace. The paper will focus on military vice law enforcement or private sector operations, and will summarize the characteristics of the cyber domain, the attributes needed for success in dynamic and time sensitive operations, and recommend both doctrine and strategy for further development along these lines.The paper assumes that issues of when and where to employ US Cyber Command resources will be resolved in a manner that leaves the current US Cyber Command roles and responsibilities largely intact. None of what follows is intended to suggest US Cyber Command attain authorities it does not currently enjoy under extant law, policy, and tasking. In a similar vein, the paper does not directly consider the organizational structure of operating cyber forces and their support elements though, in the spirit of ‘form follows function’, insights on which structures are best suited to accomplish organizational objectives may be derived from conclusions contained herein.Note: This paper was prepared for a workshop on the strategic use of offensive cyber operations held in March 2016 and organized by the Stanford Cyber Policy Program. On August 18, 2016, this paper was submitted to the Journal of Cybersecurity for entry into its review process and perhaps for publication.

On the German History of Method in Civil Law in Five Systems

AbstractGermany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.

National Legislatures: the Foundations of Comparative International Law

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces defines comparative international law as the process of “seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. While we agree with this volume’s other contributors that courts can play a significant part in diversifying how international law works across different systems, we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts — and therefore, those currently most needing study — are the international law interpretations of national legislatures.

The Law Enforcement Systems of the Republic of Kazakhstan and the Kingdom of Sweden: A Comparative Analysis of Legal Framework and Management Structure

This thesis identifies the primary reasons for the systematic failure of law enforcement of the Republic of Kazakhstan (RK) to satisfy the public need for security and safety. The results follow from examining the legal acts governing law enforcement, and by comparing the RK system and its transition trends to the extant law enforcement system implemented in Sweden. The Comparison is justified by the fact that both countries are distinguished by similar organizational reform preconditions as well as related reform patterns and core structural elements. The legal acts governing law enforcement reforms in Kazakhstan, as opposed to the substantive criminal law, comprise mainly of a sequence of poorly organized and short-sighted governmental decrees that fail to take into account the preconditions for effective and efficient law enforcement: namely, principles of organizational management, science based staffing, and efficient use of available resources. The thicket of legal acts governing law enforcement in Kazakhstan also reveal an absence of democratic procedures to appoint the head law enforcement authority, the Minister of Internal Affairs, and to provide transparency in formulating criteria to appoint other key governmental personnel, and police officers. These problems stem from the single party system in Kazakhstan whereby the judiciary and legislative branches of government are virtually wholly dependent upon the executive branch. This paper also looks into the larger institutional and legislative context of the law enforcement sector in Sweden that enables it to separate the judicial and executive powers. The essential findings of this thesis indicate that law enforcement in Kazakhstan is likely to fail to achieve its objectives until legal reform supports: long-term structural reforms that support consequential and coherent implementation of the reform directives with built-in feedback loops (reflective planning), introduction of science based staff limits and accountability principles, introduction of clear reporting lines and reasonable delegation based on complexity of work and creation of the requisite organization. Legal analysis of the criminal law of Kazakhstan has not revealed any fundamental defect to attribute the failure of the law enforcement system to shortcomings in substantive criminal law legislation. The Swedish law enforcement system, recently re-organized, may serve as a template to introduce legal and structural reforms in Kazakhstan, with suitable adjustments to institutional interdependencies. Research findings indicated that Sweden had vice-versa transformed to a more centrally aligned power allocation model with clear lineal- functional organizational principle.

Carbon Taxation as a Tool for Sustainable Development in Africa: Evaluation of Potentials, Paradoxes and Prospects

Calls for the introduction of a carbon tax into the tax lexicon in African countries may not have come any sooner. South Africa for example has developed a robust proposal aimed at introducing a carbon tax system by 2016. The aim is to reduce greenhouse gas (GHG) emissions from key sectors such as mining, transportation and agriculture and to achieve sustainable development. Following South Africa’s perceived progress in its carbon taxation efforts, there have also been increased calls for Nigeria and other African countries to reform extant taxation laws to introduce a carbon tax system for key polluters in the extractive sector. This paper evaluates the utility, desirability and potentials of achieving sustainable development in Africa through carbon taxation. Following a discussion of the motivations for considering a carbon tax system, we evaluate potential impacts of a carbon tax system on African economies, particularly on poor and vulnerable communities who despite contributing less to GHG emissions may bear disproportionate burden of combating it. We then evaluate the potential legal and logistical barriers that a carbon taxation system might face and propose legal frameworks for addressing these barriers.

Are current port liability provisions in international maritime law adequate in an era of automation?

ABSTRACTAutomation is changing the traditional ports as we know it. The introduction of podded drive propulsion systems, self-unloading bulk carriers, and increasing use of automation in port operations are indicative of a technological paradigm shift in which the human element becomes increasing devalued potentially creating legal conundrums in traditional notions of obligations and liabilities. Many ‘relational’ difficulties attend the interaction between law and technology. This is often exacerbated when laws obstinately remain stationary and fail to anticipate potential legal quagmires. The nature of current and emergent technology in ports may distort extant international maritime law notions of obligations and liabilities diminishing their utility or worse rendering them otiose. Giving the status of ports as enablers of global economic growth, the rapid growth of automation in ports, and the utility of international maritime law in prescribing consensus-driven international legal norms and rules for ports, it is important to examine how extant international maritime law rules on port operations hold up in automated ports. Thus this paper employs a legal doctrinal approach to critically evaluate major obligations and liability provisions on international maritime law and suggest ways in which these provisions can flow with the ‘technological tide’ of increasing automation.

Trust versus contracts in corporate governance: agency theory, contractual theory and the fortification of shareholder welfare governance

Agency theory, despite its influential normative prescriptions, has been subject to a long-standing critique from management scholars for being theoretically inconsistent and empirically unsubstantiated. The article examines how agency theory is rooted in contractarian theory of the firm that by and large renders extant corporate law irrelevant and instead emphasizes the auxiliary benefits of the market (i.e. financial markets). What is addressed as ‘the market for corporate control’, based on the ceaseless pricing of the shares and bonds issued by public firms, is portrayed as a more effective mechanism for disciplining managers and monitoring the corporate system than corporate legislation and court ruling. This argument, derived from elementary neoclassic economic theory, turns a blind eye to the historical roots of corporate law and overstate the ability of the, e.g., shareholders to assess managerial decision-making on basis of information available in the market. Ultimately, agency theorists and contractarians, in their pursuit of free-market capitalism, seek to disconnect the corporate system from the authority and regulatory control of the state.

Problems and Prospects of Administration of Nigerian Prison: Need for Proper Rehabilitation of the Inmates in Nigeria Prisons

The objectives of the study are as follows: To ascertain the extent to which prison congestion in Nigeria poses a serious constraints on prison administration, to find out the extent funding has affected on the administration of Nigeria prison and to verify the extent to which lack of rehabilitation and correctional equipment in Nigeria Prisons constitutes a constraint to rehabilitation of inmates. The researcher adopted a survey design. The data used were mainly from primary sources which supported secondary sources. Data generated were analyzed using tools like simple tables, and percentage. The findings showed that inadequate funding of prisons by federal government of Nigeria constitutes an impediment to effective administration of Nigeria Prisons, lack of correlation facilities for the rehabilitation of offenders in Nigeria prisons is positively related to the increase of recidivism among prison inmates, the Nigeria extant laws on prisons have impacted negatively on the administration of her Prisons. The study recommended among other things that federal government should increase the funding of Nigeria Prison, and the need for government to amend the extant laws on prison to emphasize punishment and grant the rehabilitation of both Awaiting Trial Men (ATM) and the convicted.

State-Level Origins of the United States Labor Relations Order

Why did the United States adopt its labor laws? The extant federal laws have undergone little substantive change since 1959, and are mainly intact from the 1947 Taft-Hartley amendments to the 1935 Wagner Act. This paper goes back to the Wagner to Taft-Hartley period to ask why some states adopted precursor laws to Taft-Hartley while others did not. These states are valuable and understudied sites of investigation in the development of the United States labor relations order. A key lesson of the state-level experience during the 1930s and 1940s is that Congress of Industrial Organization (CIO) density and militance are linked with the adoption of restrictive labor laws. These laws were adopted because they served to restrain organized worker resistance in the form of strikes. The resultant decline in efficacious militance led to the present political canalization of American labor unions. In this paper, I construct a unique dataset of state-level characteristics and laws from 1936 to 1948 and deploy penalized maximum likelihood logistic regression to evaluate standard American Political Development theories of New Deal policy change. Labor militance is found to be a strong predictor of restrictive law adoption. My findings suggest that extant explanations give short shrift to CIO disruption-backlash in the states in explaining the crystallizing of the long-running and extant labor law. This paper is of interest to students of New Deal policy, the development of the United States labor relations order, and American Political Development generally.

India's Journey with Corporate Social Responsibility-What Next?

One of the causes for raised eyebrows to the Companies Act, 2013 is Section 135. The provision mandates companies meeting certain requirements to compulsorily contribute to corporate social responsibility (CSR) activities, or explain the failure to do so. While this has been the subject of an ongoing debate ever since the provision was suggested in 2009, the provision in question has been met with considerable resistance from the industry. Arguments against Section 135 range from specific critiques of the semantics of the statute to critiques of the failure of India as a welfare state altogether.What this paper seeks is to attempt a definitive outline of the CSR law and practice in India, its roots in Hinduism, Buddhism and Islam, Gandhian philosophies and the pre-2013 position on CSR. It shall also attempt to provide a critical analysis of Section 135 of the Companies Act, 2013 and how the provision may be ignored, or worse—misused. Three arguments are presented in this regard. Firstly, that Section 135 constitutes a departure from the accepted position that CSR needs to be imbibed into the business and management principles of a company and is heading towards a potentially destructive conversion of the principles of CSR into corporate altruism. Secondly, the provisions of Section 135 make the Board of Directors liable to show to their shareholders—the compliance of the company’s social responsibilities. Instead, if the company is to have and comply with social responsibilities, the same should be ascertained by the society, or at least a representative of society. Finally, there is a slew of extant laws in India which also mandate certain companies to take into account their social responsibilities.

Endangered, essential and exploited: How extant laws are not enough to protect marine megafauna in Madagascar

The decline of many marine megafauna species is of global concern; but many of these species, in particular marine mammals, have been afforded international and national protection and are the focus of conservation programmes. The existing national and international legislation are reviewed through which marine megavertebrates are afforded protection in Malagasy waters. The decline and protection of marine megafauna has followed a familiar pattern in Madagascar, with two main exceptions: marine turtles and elasmobranchs remain heavily exploited by national and international fishing fleets. The status of legislation governing both taxa is unclear and unknown by many working within the fisheries and marine sector. In Madagascar, marine turtles are fully protected from exploitation by national regulations in conjunction with a number of multilateral agreements. The numerous pieces of legislation that protect marine turtles are not coherent, regularly misunderstood and rarely enforced. Madagascar is taking steps to improve protection of marine turtles through the development of a national strategy, but it is recommended that the opportunity is also taken to improve understanding of current legislation and work more closely with local communities that consider turtle fishing a customary practice. Elasmobranchs however, receive minimal legal protection and only those listed under multilateral agreements are bound by any potential future management. Where legislation does exist to help manage elasmobranchs (eg. bycatch stipulations for foreign fishing vessels) it is incomplete and difficult to enforce. It is also recommended that Madagascar puts in place national elasmobranch legislation to help prevent their continued overfishing, especially in the face of increasing numbers of elasmobranch species on CITES and CMS. As such, both groups of species are rendered effectively unprotected and are in danger of overexploitation. With the growth and proliferation of locally managed marine areas (LMMAs) in Madagascar the potential for local communities to increase protection and management of these species should be considered, especially with the limited capacity available to monitor and enforce legislation along such a vast coastline.

India's Journey with Corporate Social Responsibility What Next?

One of the causes for raised eyebrows to the Companies Act, 2013 is Section 135. The provision mandates companies meeting certain requirements to compulsorily contribute to corporate social responsibility (CSR) activities, or explain the failure to do so. While this has been the subject of an ongoing debate ever since the provision was suggested in 2009, the provision in question has been met with considerable resistance from the industry. Arguments against Section 135 range from specific critiques of the semantics of the statute to critiques of the failure of India as a welfare state altogether.What this paper seeks is to attempt a definitive outline of the CSR law and practice in India, its roots in Hinduism, Buddhism and Islam, Gandhian philosophies and the pre 2013 position on CSR. It shall also attempt to provide a critical analysis of Section 135 of the Companies Act, 2013 and how the provision may be ignored, or worse - misused.Three arguments are presented in this regard. Firstly, that Section 135 constitutes a departure from the accepted position that CSR needs to be imbibed into the business and management principles of a company and is heading towards a potentially destructive conversion of the principles of CSR into corporate altruism. Secondly, the provisions of Section 135 make the Board of Directors liable to show to their shareholders - the compliance of the company’s social responsibilities. Instead, if the company is to have and comply with social responsibilities, the same should be ascertained by the society, or at least a representative of society. Finally, there is a slew of extant laws in India which also mandate certain companies to take into account their social responsibilities.

Corporate Criminal Liability: Call for a New Legal Regime in Nigeria

Corporate Criminal Liability: Call for a New Legal Regime in Nigeria Samson Erhaze, Daud Momodu Abstract The increasingly relevant role that corporations assume in all aspects of modern life is correspondingly attended by their increased participation in criminal activities that result in loss of lives and properties. However, there is a conundrum created by the artificiality of corporations as they do not easily lend themselves to existing criminal laws designed with human actors in mind. The current Nigerian law on corporate criminal liability is disquietingly deficient. The extant law only provides room for civil recompense in the event of tragedies such as the recent petrol tankers explosions in different parts of Nigeria which claimed hundreds of lives. This paper emphasizes the need to make a radical departure from the present position of the law which is fashioned along the old English legal system to the effect that corporations could only be criminally held liable for very limited offences. The paper, while considering the extant position in the UK by virtue of the Corporate Manslaughter and Corporate Homicide Act, 2007, calls for a review of our laws, and more particularly, calls for the expedited passage of the Corporate Manslaughter Bill, 2010 into law if the menace of corporate killings is to be properly confronted in Nigeria. Full Text: PDF DOI: 10.15640/jlcj.v3n2a6

Cost of Governance and Its Implications on Nigeria's Economy

In an effort to prune the rising cost of governance in Nigeria, President Goodluck Jonathan in August, 2011, set up a Presidential Committee on Rationalization and Restructuring of Federal Government's Parastatals, Commissions and Agencies. committee, which was headed by former Head of Service of the Federation, Stephen Orosanye, recently submitted its report, which contained far reaching recommendations some of which have thrown government employees into some sort of quandary and apprehension. In the report, the committee reviewed the extant laws in sync with its mandate and submitted inter alia: The average cost of governance in Nigeria is believed to rank among the highest in the world...If the cost of governance must be brought down, all arms of government must make spirited efforts at reducing their running cost. Out of the present structure of 263 statutory agencies, the panel recommended a reduction to 161, with additional proposals that: 38 agencies be abolished; 52 be merged and 14 others be reverted to departments in various ministries. agencies and parastatals employ varying numbers of workers estimated at 30,000 nationwide. However, since most of these institutions are creations of the law, it remains to be seen how the National Assembly will acquiesce to these proposals. Judging from the welter of public opinion as expressed in the mass media and in other outlets, the Orosanye's Report has attracted far more opponents than those who support it. When the Adoke Review Committee set up to look into the recommendations of the Presidential Panel finally submits its report, the government must exercise utmost caution and discretion in the choices of: what to implement now; what to discard and what belong to the future. In making these choices, it must also consider the contending interests of all stakeholders; the asphyxiating economic environment of the Nigerian worker and how the chosen items will accentuate the realization of the objectives of the government's Transformation Agenda. objective of this paper is to explore the implications of high cost governance on the socio-economic sectors of the Nigeria economy.

Can Consumer Law Solve the Problem of Complexity in U.S. Consumer Credit Products?

People like to know and understand the total cost of credit products they are considering. They also like to know and understand products’ terms and features. Given these preferences, issuers of credit should market products with transparent features and simple pricing. That is not the case. In fact, over the last few decades we have seen a plethora of complex terms in products such as mortgage loans, credit cards, and prepaid debit cards. As credit products have become ever more complex, consumers have more choices and can select products that satisfy their particular needs and preferences. No longer are borrowers limited to a 30-year, fixed-rate mortgage. If they know they will be moving in a few years, a 3-year fixed-rate mortgage with a low interest rate that converts to a 27-year adjustable rate mortgage based on the LIBOR might be the right product for them. However, for borrowers who do not understand the complexities of a 3-27 mortgage loan, the low, initial interest rate could be a costly lure. Confusion is commonplace. In one study giving consumers a choice between two credit cards that varied only in terms of the annual fee and the interest rate, forty percent of the participants chose the more expensive card. One would expect that consumers, who cannot decipher terms and calculate the cost of complex products, would turn to those with easy-to-understand terms. There are some simple products on the market. Instead, consumers often misperceive that the more complex products are less expensive than the simple ones. They, thus, shun the products that would be in their best interest.In this paper, I explain why borrowers make sub-optimal choices when selecting credit products. I then analyze whether extant laws could be used to address obfuscating complexity. I ultimately conclude that policy-makers should look to extra-legal remedies to protect consumers against exploitative complexity.

Desecration, Moral Boundaries, and the Movement of Law: The Case of Westboro Baptist Church

Using participant observation, in-depth interviews, and legislative histories, we examine Westboro Baptist Church, a religious group infamous for homophobic rhetoric and funeral protests. Employing cultural and interactionist perspectives that focus on the semiotics of death, the sacred, and desecration, we outline how Westboro’s activities purposively violate deeply held signifiers of moral order through language, while simultaneously respecting extant laws of behavior. This strategy, in conjunction with the political profitability of opposing the group, explains why the group’s activism triggered extensive legal disputes and modifications at multiple levels of governance. Westboro’s actions and use of symbols—and those of others against the group—lay bare multiple threads in the sacred cultural fabric of American society.

From Heroes to Victims: An Analysis of the Mutation of the Social Meaning of Child Soldiering

Although a considerable body of scholarship on children and armed conflict has developed, little sociological, conceptual and historical analysis has been proffered to help our understanding of the dynamics of meaning-change to the current social conception of child soldiering. This article analyses the evolution of the prevailing ‘social meaning’ of child soldiering. To this end, it recognises the historical and current role of transnational agents in the mutation of the conception of child militarization and universalisation of its negative meaning. The article discusses how the meaning has influenced the legal construction of and regulation of such meaning through instruments in extant international and regional child law. The conviction and imprisonment of Democratic of Republic of Congo (DRC) rebel leader Thomas Lubanga by the International Criminal Court (ICC) in 2012 represented a concretization of the globalized opprobrious social perception of child soldiering through the penal process.

Interrogating the Centrality of Public Interest in the Exercise of Administrative Discretion

No modern government can function without the exercise of some form of discretion by its officials. This is premised on the fact that it is humanly impossible to lay down a rule for every conceivable event in the complex art of modern government. It therefore becomes imperative to grant administrative discretion to government officials to address areas not covered or anticipated by extant rules or laws. Consequently, in this paper, the central question is not whether public officials should exercise administrative discretion in carrying out duties expected of them; rather, the key question is how and for what purposes discretion should be used. This will obviate abuses while at the same time serving the public interest. This paper posits that while the consideration of public interest is the central take in the exercise of administrative discretion, it must not be to the complete negation of secondary interests. Rather, administrators should pursue the public interest which is the primary interest, while sacrificing to the least extent possible the secondary interests connected with it.