Legislative History Research Articles

Crossing the Line: A Quantitative History of Anti-Miscegenation Legislation in the United States, 1662–2000

Crossing the Line: A Quantitative History of Anti-Miscegenation Legislation in the United States, 1662–2000

Redefining Summary Judgment by Statute: The Legislative History of Tennessee Code Annotated Section 20-16-101

Redefining Summary Judgment by Statute: The Legislative History of Tennessee Code Annotated Section 20-16-101

Chinese Professional Consumers at 30: The Rise and Impending Fall

Abstract This paper introduces a unique phenomenon with a distinctive Chinese regulatory approach. Since 1994, the Consumer Rights Protection Law has afforded consumers the right to seek punitive damages in instances of fraudulent practices. This has given rise to a special profession with Chinese characteristics: professional consumers. Their status as enigmatic figures is a consequence of the fluctuating stance of public authorities. Thirty years of consistent inconsistency has been a rarity in China’s legislative history. The year 2024 marks the 30th anniversary of the enactment of the CRPL, China’s Consumer Rights Protection Law and the birth of its implementing regulation. It is an opportune moment to reassess the regulatory system that enabled this group and reconstruct it for the future. This paper presents a comprehensive regulatory review of the emergence, growth, and projected decline of professional consumers. It examines the reasons for this long-standing regulatory inconsistency through a detailed investigation of China’s legal system. It concludes by projecting two upcoming legal positions. The first is the transformation under the state’s co-governance strategy. The second is the displacement by procuratorial public interest litigation. Although seemingly contradictory, these two positions exemplify a distinctive Chinese approach to the co-governance strategy, which is characterized by the preponderance of public authority.

국제물품매매거래에서 CISG상 지식재산권 침해 물품 인도에 따른 매도인의 책임에 관한 연구: CISG 자문위원회의 Black Letter Rule을 중심으로

Purpose: This study explores the liability of sellers of goods that infringe Article 42 of the United Nations convention on Contracts for the International Sale of Goods (CISG) based on the official opinion of the CISG Advisory Council. Research design, data, and methodology: The requirements for seller liability under Article 42(1) of the CISG includes the seller's awareness and geographic limitations. This study also examines the requirements for seller immunity under Article 42(2), including the buyer's expectation of awareness and investigation. Results: M ost o f t he e xisting o pinions a nd t he o fficial o pinions o f t he C ISG A dvisory Council seem to be consistent with the responsibility of the seller who delivers goods infringing on intellectual property rights. However, regarding the timing for determining the suitability of rights to the goods, there are areas where opinions are different from those of scholars who view them as a transfer of risk. Conclusions: The CISG Advisory Council's official opinion appears to be a reasonable interpretation of Article 42 taking into account its purpose, which is to protect the interest of the purchaser in the free use of goods that are not subject to third-party rights or claims, the Secretariat's commentary on the Convention's legislative history, and the existing views of scholars. Therefore, practitioners should prepare for related situations by referring to the official opinion of the CISG Advisory Council on Article 42 of the CISG.

An Overview of Abortion Laws for Nurses to Advocate for Themselves and Their Patients

The impact of the Dobbs decision on abortion policy, nurses, health systems, and health care leaders is profound and complex. Understanding the history of abortion legislation and the impact of that legislation on nursing practice and licensure is important if policy and law are to reflect the needs of society. This article provides a focused history of abortion policy and law, the current implications of the Dobbs’ holding on the practice of nursing, and the future considerations for practice, policy and nursing education that are presented by abortion regulation.

Exploring the Economic, Social, and Moral Justice Ramifications of the Warhol Decision

Beyond rectifying the interplay of the derivative work right and fair use, Justice Sotomayor’s vigorous, direct, and, at times, combative parrying with the dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith drove a dagger into the free culture movement’s critique of copyright law. The resulting decision repudiates the movement’s campaign to undermine the derivative work right through a simplistic transformativeness shortcut for applying the fair use doctrine. As this Article explains, the Copyright Act’s drafters enhanced the financial rewards to, economic power of, and control of copyrighted works by authors through the grant of a bundle of exclusive rights, including a broad exclusive right to prepare derivative works. The Act tempered those rights through limiting doctrines, express recognition and codification of the fair use doctrine, and a series of statutory limitations, exemptions, and compulsory licenses. The codification of fair use, however, was not intended to “change, narrow, or enlarge” the doctrine outside of its traditional bounds—criticism, commentary, news reporting, educational, and research uses—“in any way.” The legislative history further noted courts’ freedom “to adapt the doctrine to particular situations on a case-by-case basis,” “especially during a period of rapid technological change.” Congress saw licensing as a principal vehicle for supporting cumulative creativity and ensuring fair compensation to and control of derivative uses by authors. Notwithstanding this foundation and the Supreme Court’s faithful interpretation of the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., the fair use doctrine veered off course as lower courts collapsed Campbell’s nuanced framework into a simplistic transformativeness analysis. The collision of this approach with the derivative work right prompted the Supreme Court’s intervention. The resulting Warhol decision reinforced the economic and social empowerment undergirding the 1976 Act. After tracing the emergence of the free culture movement and the devolution of the fair use doctrine, this Article explores the economic, social justice, and moral right dimensions of the copyright regime reflected in the Warhol decision.

The False Marking Gold Rush: A Case Study of the Private Enforcement of Public Laws

Abstract Federal law prohibits deceiving the public by falsely marking an item as patented. The “false marking” prohibition has been enforced primarily by private lawsuits on behalf of the United States, with the party plaintiff and the government splitting the penalty. When a court decision dramatically increased the potential recovery for false marking claims, lawyers pounced immediately, filing more cases per week than had previously been filed in years. Indeed, many lawyers who did not previously work on patent cases joined the fray. Within two years, Congress eliminated this type of false marking suit and terminated all pending cases. Using empirical data, interviews with lawyers, legislative history, litigation documents, and news sources, this article tells the instructive history of false marking litigation. This history shows that the supply of private enforcement—lawsuits by private parties to enforce laws in the public interest—is sensitive to market forces. It also shows that, even when concentrated interests encourage Congress to cut back on private enforcement, Congress does not move as quickly as the bar. This matters because once Congress authorizes private enforcement, the maintenance of that system depends on judges and lawyers interpreting private enforcement statutes.

That's amore?: Intimate partner femicide in Italy and the failures of the Italian legislature to prevent violence against women

AbstractIntimate partner femicide has caused growing concern in Italy, as instances continue to occur frequently. The Italian legislature has a long history of legislation that failed to protect women from violence, especially within their family units. Despite significant improvements to legislation over the last few decades, the problem of intimate partner femicide persists. This Note focuses on the failures of the penal code and accompanying statutes in preventing intimate partner femicide. The proposal is for legislation that will impose higher sentences for intimate partner homicide, remove judicial discretion in sentencing procedures, and require anti‐violence and gender equality education in schools.

“Digital Personal Data Protection Act”—A Strudel Served Raw!

The good news is that personal data privacy law has become a reality in India. The bad news is 95% of the public is ignorant of the same, 3% do not know what it entails and the rest 2% are voraciously engaged in an intellectual feud. Privacy as a concomitant of natural or inalienable rights has been recognized in the western hemisphere since the 18th century. In India, the legislative history of the doctrine can be traced to the trilogy of cases during the 1950’s. It was only post 1978, that the apex court of the country passed a slew of judgements recognizing the right to privacy as an essential part of the right to “protection of life and personal liberty” embodied under the Indian Constitution and thereby bestowing the fundamental right status. On August 24, 2017, a nine-judge Constitution bench of the Supreme Court of India (Puttaswamy judgment) re-wrote history as it not only recognized and reconfirmed the fundamental right status of “ right to privacy” but also laid the foundation of data protection law in the country. August 11, 2023, marks a historic date in the legislative annals of digital India, as the country enacted the Digital Personal Data Protection Act, 2023 (“DPDP Act” or “Act”) after more than half a decade of deliberations. At a time when technology has become the defining paradigm of every business, the DPDP Act seeks to lay the foundation for developing a strong data privacy regime in the country. The Act in its new avatar is quite different from its predecessors proposed earlier. Ironically, the regulations themselves have set ajar a host of challenges, issues and steeplechases, which can barely be fathomed at this moment. In addition, the DPDP Act is yet to be notified or implemented by the Central Government. The key question this paper discusses is whether this seemingly endless period of deliberations culminated into a robust and comprehensive law or is it simply a Strudel served raw! To answer this question, the paper first charts the history of the concept with a chronological approach on a global platform. The second part of the paper charts the pre-DPDP era in India. The third part recapitulates the DPDP Act (in the present form) in a nutshell, while the fourth part dissects the DPDP Act highlighting certain potentially problematic features of this law. Lastly, the paper will examine what can be done to influence the development of a robust and sustainable data protection regime in the country in the years to come. Keywords: Data Privacy, DPDP Act, Indian Privacy Law, Origin of Privacy Laws

Passthrough Entity Tax Scandal

Three dozen states have enacted laws since 2018 that are designed to provide passthrough entity owners with an unlimited federal tax deduction for state and local business income taxes. These “passthrough entity tax” regimes respond to the December 2017 federal tax law, which imposed a $10,000 cap on the state and local tax deduction. The new state laws generally allow passthrough entities to opt into paying an entity-level state income tax in exchange for a dollar-for-dollar benefit on their owners’ state personal income tax returns. The optional tax has proven to be immensely popular among passthrough entity owners across the country. But there is a problem with the passthrough entity tax concept: under the plain text of the Internal Revenue Code, the workaround does not work. The December 2017 law clearly precludes passthrough entities and their owners from deducting state and local income taxes beyond the $10,000-per-individual cap. And the legislative history of the December 2017 law—read in context—aligns with the statutory text. Surprisingly, the IRS has chosen to permit passthrough entity owners to utilize the workaround anyway. The IRS has not provided a plausible legal rationale for its position, but no one has standing to challenge the IRS’s position in court. Meanwhile, the IRS’s decision to allow the workaround is likely to cost the federal government more than $50 billion by the end of 2025, with most of the federal tax benefits flowing to passthrough owners with incomes of $1 million or more. In effect, the IRS has created a special tax preference—unauthorized by Congress—for hedge fund managers, law firm partners and other passthrough entity owners. And the Biden administration, notwithstanding its professed commitment to tax fairness, has acquiesced in this massive giveaway to the rich. The Biden administration and the IRS should reverse course immediately and apply the $10,000 state and local tax deduction cap to passthrough entity owners. As long as they permit passthrough entity owners to take advantage of the workaround, the Biden administration and the IRS will be abdicating their duty to enforce the law.

Expansion and Restriction: Divergent Paths Towards Modernizing Family Laws in Japan and China, 1868–1930

Abstract Before their encounters with Western powers in the nineteenth century, Chinese and Japanese societies were deeply embedded in traditional family systems that formed the backbone of their social structures. However, with the onset of legal modernization, these nations adopted nearly diametrically opposed strategies for reforming their customary family laws. Primarily, Japanese legal reformers under the Meiji regime bolstered the family’s authority and emphasized its political role. In stark contrast, the Chinese legal reformers during the late Qing and Republican periods curtailed family authority and diminished its significance. While the modernization of family laws in Japan and China has been the subject of scholarly research respectively, the differences between the two countries and the reasons behind their distinct approaches have not been adequately explored. This Article seeks to fill this gap. Through a comparative analysis of the legislative histories of both countries, this Article argues that their divergent paths stemmed from differences in the historical functions of family systems and the modern political contexts encountered by legal reformers during the period of legal modernization. In Japan, the family system was historically politically connected with the state, and the Meiji regime solidified its control over this system through modern codification efforts. Consequently, Meiji political elites saw the integration of the populace into the new absolutist imperial regime as advantageous, leveraging the political loyalty of families to achieve this. In contrast, the Chinese family system had become politically disconnected from the state by the late imperial era. In the aftermath of the Republican Revolution, the Guomindang regime navigated a landscape of rival political forces that significantly challenged its authority. Political elites aimed to dismantle customary family laws to weaken the traditional family system, which they viewed as a threat to governmental centralization and societal unity. They also sought to project a modern, liberal image to garner wider political support.

The US Endangered Species Act and acceptable risk

The fundamental criterion for listing or delisting species under the United States Endangered Species Act (ESA) is acceptable extinction risk. But what is the meaning of “acceptable risk”? This concept has received little attention in conservation biology, and hence, the purpose of this paper is to explain acceptable risk within the context of the ESA. All complex environmental policy decisions involve trade-offs, and hence, choosing one policy from several policy options entails a comparison of the benefits, costs, and risks of all options. Acceptable-risk problems are decision problems requiring a choice among different policy options, and an acceptable risk is defined as the risk associated with the chosen policy. In general, people will accept the risk imposed by a particular policy when that policy yields sufficient net benefits. The ESA, its legislative history, and implementing regulations clearly state that species listing determinations must be based solely on science and “without reference to possible economic or other impacts” caused by the listing of that species. If economic considerations are prohibited from influencing listing decisions, then risk reduction is not constrained by cost, and therefore, the only rational choice for acceptable extinction risk is zero risk. This outcome, known as a “stopping-point problem”, is absurd, and consequently, federal agencies responsible for listing determinations are forced to issue opaque decisions that obscure their true rationale, which in turn, lead to inconsistency and improper political influence. Illustrations of acceptable risk in null hypothesis tests, the United States Clean Air Act, and minimum viable population size are also presented.

Analyzing Thailand’s Amendments to the Civil and Commercial Code on Marriage Equality: Progress, Shortcomings, and the Struggle for LGBTIQAN+ Rights to Family Establishment

Thailand’s proposed amendment of the Civil and Commercial Code (“CCC”) on marriage equality, recently passed by the lower house of Parliament on 27 March 2024, marks a historic milestone and represents a significant step towards recognizing the rights of Lesbian Gay Bisexual Transgender Intersex Queer Asexual and Non-Binary+ (LGBTIQAN+) individuals to establish families. This commentary article critically examines the draft legislation through the lens of international human rights law and domestic constitutional principles of equality and human dignity. Situating the Act within Thailand’s international obligations, the article traces the legislative history and highlights the progressive vision of the Civil Society Draft, which developed from the thesis-based research of Chawinroj Teerapatcharaporn, School of Law, Sukhothai Thammathirat Open University (STOU). It commends the shift towards gender-neutral language in marriage eligibility while critiquing the retention of binary “father/mother” terminology as falling short of genuine inclusivity. Drawing from parliamentary debates, the commentary engages with objections raised by religious party MPs, countering them by reasserting the primacy of constitutional equality and secular human rights principles over religious precepts in civil law matters. The article concludes by assessing the Act’s potential impact and the ongoing struggle for fully realizing LGBTIQAN+ family rights, calling for further reform that embraces gender neutrality and equality regardless of sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC).

Milestone of China's Foreign-Related Legislation – A Review of the Law of the People's Republic of China on Foreign Relations

The Law of the People's Republic of China on Foreign Relations is China's first foundational and comprehensive law in the field of foreign relations. This law promotes the rule of law both domestically and internationally in a coordinated manner, significantly enhancing the legal framework governing China's conduct of foreign affairs. It also makes substantial progress in the strategic development of foreign-related legislation, advancing the overall foreign-related legal system and integrity, quality and timeliness of specific legislation. Bearing distinct Chinese characteristics and reflecting the ethos of our era, this law stands as a milestone in the legislative history of China.

On Some Issues of Judicial Practice in Human Trafficking Cases

Human trafficking continues to be one of the serious problems of the modern world community. The authors made an attempt on the basis of a comprehensive study (legal analysis of the composition of human trafficking and the study of judicial practice) to identify problematic issues when considering cases of this category, in order to ensure uniform approaches and develop a legal position. Eighteen sentences posted in the public domain in the Judicial Cabinet service, reviewed by the country's courts from 2015 to 2022, were studied. The data of official statistics are analyzed, the latency of crimes related to human trafficking is noted. The “facets” of human trafficking as a legal phenomenon in the history of national criminal legislation are traced. As possible ways to increase the effectiveness of countering trafficking in persons, as well as bringing domestic legislation into line with international law, it is proposed to include in the dispositions of Articles 128, 135 of the Criminal Code of the Republic of Kazakhstan an indication of the methods of committing crimes, differentiate the composition of trafficking in persons and trafficking in minors depending on the nature and purpose of the actions committed, systematically summarize judicial practice in cases of about human trafficking.

VII. Eine Entwicklungsgeschichte des chinesischen Familien- und Erbrechts im Lichte der Rezeption des deutschen BGB

Summary In contrast with China’s several millennia of civilization history, its history of civil law legislation had not started until the late Qing-Dynasty (1911). This discrepancy stood out prominently in the correlated areas of the family law and inheritance law due to China’s cultural features and the compatible cultural awareness of its people, which had naturalized and legitimized their practices in both areas. Actually, in no other areas had the cultural consciousness, the deep-rooted cultural psychology and the consciousness-driven behavioral patterns of the Chinese families and individuals been more profoundly shaped by the rules of rites and etiquette, the ethical rules and the patriarchal clan system, central customary-legal elements enshrined in the Chinese history. As its key achievement, the legal modernization in the late Qing period (1902–1911) brought forth the Civil Code of the Qing- Dynasty (ZGE), the first such milestone in China’s legal history, initiating the civil law legislation in China. With regard to China’s special legal-historical and legal-cultural background, the drafters of the ZGE – especially its family and inheritance law – had to revolutionarily modernize the Chinese civil law, while at the same time, transferring certain traditional cultural legacies. This could not have been possible without adopting the German Civil Code (BGB) as the primary foreign codification model, especially from the legal-technical, legal-systematic and legal-dogmatic perspective. Ever since then, the evolution of the Chinese civil law has been closely connected with the adoption of the BGB, while the history of the former runs parallel to the history of the latter. The influences of the BGB on China’s major civil law codifications, including also the Civil Code of the Republic of China (1929–1931) and the PRC Civil Code (2020), have been significant and continuous. It is legal-historically insightful to probe into these influences while examining the evolutionary history of the Chinese family and inheritance law ever codified since the ZGE, and, accordingly, retracing and closely analyzing the pre-modern state of both areas.

“She is finally home”: feminist storytelling, family imaginaries and transnational solidarity in Irish abortion activism

ABSTRACT Across the so-called West, feminist storytelling positions reproductive justice and the often-twinned issue of women’s place within the family as a progressive issue. This conveniently ignores the inherent contradictions of the existence of only limited access to abortion in many Western nations, as well as parallel histories of access to reproductive justice in non-Western countries. Postcolonial Ireland, as an apparently Western country with a renowned history of anti-feminist legislation, has existed as one of these contradictions. In this article, we examine Irish feminists’ familial storytelling to reveal how they managed their contradictory position in a teleological narrative that positioned Western feminism as the epitome of progress. We adopt a comparative approach – looking at the lead up to the introduction of the Eighth Amendment of the Irish Constitution in 1983, which awarded the foetus constitutional rights, and then the high profile Repeal the 8th movement that successfully revoked that amendment in 2018 – to understand reproductive rights activists’ changing uses of “the family” to effect intergenerational and transnational solidarity. Applying Sara Ahmed’s concept of “sticky” emotions, we examine how feminists transformed “the Irish family” from a site of coldness and despair to one of hope, dignity, humanity and happiness.

MISUSING PREVENTIVE DETENTION IN SECURITY LEGISLATIONS: A HISTORICAL ANALYSIS FROM THE LENS OF PERSONAL LIBERTY

Preventive Detention is an extraordinary instrument used during times of crisis to prevent the commission of criminogenic behaviour by curtailing individual liberty on the apprehension of a criminal act, in the interests of national security. However, within Indian law, this extraordinary power holds a peculiar position in the sense that it is applicable during peacetime as well, an anomaly from the juristic position that it occupies in other jurisdictions. The historical roots of this power are traceable from the colonial era, wherein it was used as a means to silence dissent against the colonial State, yet, even after independence, it was given constitutional recognition and included and incorporated into the constitutional mechanism within Article 22. This is perhaps attributable to the exceptional circumstances surrounding the birth of this nascent nation, yet, over the past seven decades, it has been used as a means of silencing dissent and curtailing the voices of opposition, primarily due to its loose, imprecise, and vague connotation, as well as the blanket power that has been constitutionally granted on the State to exercise preventive detention. Curiously, although the judiciary has historically been an avowed protector of individual liberty and freedom, petitions challenging the validity of preventive detention legislations have often fallen on deaf ears, with the judiciary repeatedly valuing the principles of national security that these legislations envisage to protect over the individual rights of liberty and freedom. Thus, over the past seven decades, the misuse and abuse of preventive detention have become a dark spot in Indian legislative and judicial history. Against this backdrop, this paper is interested in examining the historical development and application of preventive detention laws in India, starting from the colonial period and expanding the discussion to the present, to understand the reasoning for its implementation during the British era, its subsequent inclusion within the constitutional framework, its use and misuse over the decades and the judicial opinion towards its imposition, to try and understand the nuances that this extraordinary power has carried in Indian jurisprudence.

Банковская система России в 1987-1994: новая организация и новые проблемы

The article delves into the evolution of the banking institutions in Russia from 1987 to 1994. The necessity to move away from a single-level banking system by the late 1980s became apparent as it failed to meet the demands of a market economy. The emergence of specialized banks significantly expanded the functionality of banking operations, accompanied by the establishment of numerous regional branches. However, their dependence on the government persisted, and the banks' own capital increased slowly. The advent of commercial banks marked the beginning of the development of a full-fledged two-level structure of the Russian banking system. The number of commercial banks increased rapidly, attributed to the low requirements for obtaining licenses to conduct banking operations. Many banks encountered either liquidation or merging with the others as control over their activities was tightened and new regulations were introduced. The article outlines the legislative history regulating the monetary and credit system. The development and establishment of the banking system in Russia constitute a complex and contradictory process, including the criminalization of this sector in the early 90s, linked to the insufficient regulatory activity of the Central Bank of Russia. This led to citizens mistrust in banks, especially during the growth and subsequent collapse of financial pyramids. Unresolved issues in the banking and financial sectors led to another institutional crisis in 1995.

The Importance of Analysis of Judicial Circumstances in the Sentence Dosimetry Process

The Constitution plays an important role as a point of reference for the critical analysis of the criminal system, not only because it derives from the legal assets susceptible to punitive protection, but also and among other reasons, because the principles enshrined as a government norm in the Penal Code governing The imposition of sanctions is a clear development of the constitutional text and doctrine that the Constitutional Court has been building with its pronouncements, in the form that criminal law must acquire. The dosimetry of punishment in Brazil takes a three-step approach, pushing the system of fixed sanctions implemented by the legislature or the full discretion of the judge, promoting, on the other hand, a distribution of functions between the two, as he chooses the minimum and maximum sentence levels and dosage parameters, and this determines the sanction in the specific case from the legal criteria. In this sense, the present research aims to analyze the importance of analyzing judicial circumstances in the process of penalty dosimetry. The specific objectives are: to present a brief history of criminal legislation in Brazil, to review the most recent literature on the application of the penalty and its principles, to analyze the relationship between the dosimetry of the penalty and judicial circumstances and to point out cases in the jurisprudence that materialize the revised theory. Thus, given the relevance of the theme in the current legal scenario, the research is justified by discussing a contemporary theme. Through research on the principles of exceptionality, state of innocence, motivation of decisions and proportionality and the dosimetry of the penalty, possible judgments of the judge that relate the dosimetry of the penalty with the principles of human rights will be discussed. The judge should take charge of the evidence produced in relation to the facts that, in his opinion, influence the minor or major measure of the exact penalty to be imposed. The lack of motivation currently constitutes a violation of the constitutional guarantee of due process and absolute grounds for invalidity under the Criminal Procedure Code.