Law Today Research Articles

ON SOME LEGAL APPROACHES TO DETERMINING THE LEGAL PERSONALITY OF ARTIFICIAL INTELLECTUAL SYSTEMS

The issues of determining the place of artificial intellectual systems in the structure of new legal relations determined by the level of technological development are one of the most urgent tasks of modern Russian law today. The most important problem, determined by the requirements of law enforcement and the need to comply with the requirements of building of the rule-of-law state, is the study of fundamental positions regarding the conditions and procedure for bringing subjects to legal responsibility for torts involving artificial intelligence (AI). Purpose: to analyze approaches to the definition and content of legal personality, in particular, the possible legal personality of artificial intellectual systems, with an emphasis on the rules for imposing liability for torts involving them. Methods include dialectical and metaphysical methods of cognition (as the philosophical basis of the work performed); general scientific methods (analysis, synthesis, abstraction, hypotheses, etc.); as well as special scientific (comparative-legal, legal-dogmatic, cybernetic, interpretation) methods of scientific cognition. Results: the study, for the purpose of determining the legal personality of AI, justifies the greatest significance of its classification into: weak narrow-purpose AI (Narrow AI), strong general-purpose AI (General AI), and super-strong intelligence (Super AI). Based on the materials of scientific sources, the concept of «partial legal capacity» is formulated and the possibility of its application to strong and super-strong AI is scientifically justified. Fundamental theoretical positions (General rule and exceptions) regarding the conditions and procedure for bringing subjects to legal responsibility for torts involving AI are presented.

The (Erroneous) Requirement for Human Judgment (and Error) in the Law of Armed Conflict

One of the most intriguing and important discussions in international law today is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and NGOs, but focuses on views expressed by States, many of which have been publicized as part of the discussions of States Parties to the Certain Conventional Weapons Convention. As a result of this analysis, It is clear that States have not yet come to a consensus on the issue of the legal role of human decision making in LOAC compliance. Given that lack of consensus, one can only conclude that the law does not currently require a human decision for selecting and engaging targets to be lawful. Though the international community may come to such a decision, it has not yet done so. Therefore, States should continue to research and develop weapons that incorporate machine learning and artificial intelligence because such weapons offer the promise of not only greater compliance with existing norms and processes, but also increased opportunities to provide protections in new and creative ways in the future.

The Conundrum of Common Ownership

The common ownership debate has become one of the most contentious issues in corporate law today. This debate is a by-product of major changes to capital market ownership structure, which have triggered concerns about the rise of institutional investors, the growth of index investing, and the rapid concentration of ownership in major international financial markets. Common ownership theory focuses on concerns about the incentives of large financial institutions holding widely diversified portfolios of shares in competing companies within a particular economic sector. Proponents of the common ownership theory argue that, even where institutional investors have relatively small ownership stakes, their collective holdings in competing companies produce anticompetitive effects. Other scholars, however, have challenged both common ownership theory and its regulatory prescriptions. Although common ownership theory began in the United States, it is now being discussed around the world. This article examines three conflicting narratives that emerge in this literature concerning institutional investors and common ownership theory. The article seeks to position these narratives within the context of the rising influence of institutional investors since the early 1990s and its relation to major international corporate governance developments. It analyzes aspects of common ownership theory in light of these contemporary corporate governance developments, and argues that drawing regulatory and policy conclusions from the current body of conflicting empirical findings on the effects of common ownership is premature.

Challenging the call: Should sports governing bodies be subject to judicial review?

English law is settled in its view that Sports Governing Bodies (“SGBs”) are not amenable to judicial review, following the Court of Appeal decision in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan. However, this article argues that, 27 years on from the leading decision, the issue merits reconsideration owing to flaws in judicial reasoning and, in particular, the subsequent growth of the government’s involvement in sport. Moreover, the availability of judicial review in other jurisdictions and against other self-regulatory organisations suggests that the position of SGBs in English law is anomalous. Since Aga Khan, the courts have developed a private law “supervisory jurisdiction” which somewhat accounts for the absence of judicial review but, building on the work of Michael Beloff QC (among others), this article considers the substantive and procedural limitations of private law in challenging SGBs, finding that judicial review may be a preferable forum for sporting litigants. The paper also provides the opportunity to reflect upon the nature of the public–private divide in English law today.

Immigration, Plenary Powers, and Sovereignty Talk: Then and Now

AbstractThis essay surveys the changes and continuities in U.S. immigration law and policy between the Gilded Age and the 1990s–2010s. It points to how the administration of immigration law today is rooted in doctrines established in late nineteenth-century immigration cases. In particular, the essay connects current anxieties over immigration, borders, and national sovereignty to the “plenary power” doctrine that came out of the Supreme Court's decision inChae Chan Ping v. United States(1889). Examining recent federal actions to “secure” the border and enforce immigration law, this essay begins to address the ways in which current policy continues to reflect Gilded Age anxieties about territory, sovereignty, migration, and diverse populations during an era of constantly shifting borders.

ОРГАНІЗАЦІЙНО-ЕКОНОМІЧНИЙ МЕХАНІЗМ ФОРМУВАННЯ ДЖЕРЕЛ ФІНАНСУВАННЯ ПІДПРИЄМСТВ ДОРОЖНЬОГО ГОСПОДАРСТВА

The article reveals the structure of financing sources of road economy enterprises approved by law today, and for a number of reasons it is proposed to introduce a new approach to the filling of the State Road Fund by applying the principle of "user pays" and it is proposed to introduce financing from the toll, as well as a new concept of distribution of financial resource.

Which European Regulation for Security Tokens?

Distributed register technology allows financial instruments to be represented by security tokens, opening up many economic opportunities. However, today's financial law reflects a conception of the dematerialization of securities and a technological state of the art that are both 40-year-old. The purpose of this article is first of all to identify areas of European financial law that would need to be revised so that trading of tokenized securities could be subject to the same level of regulatory requirements as book-entry securities. It then considers three possible scenarios for legislative action by the European Commission.

Introduction to the Symposium on Prosper Weil, “Towards Relative Normativity in International Law?”

Published in the American Journal of International Law in 1983, “Towards Relative Normativity in International Law?” remains a reference point for scholars writing about sources of international law, international organizations, positivism, formalism, pluralism, authority, the international community, values, power relations, and even disillusionment — to list just some of the subjects on which it has been cited in 2019 alone. Described as the sounding of an alarm or a warning of the apocalypse, this article by the esteemed French international lawyer Prosper Weil (1926-2018) sets out what he saw as the potential dangers of relativizing normativity. “Towards Relative Normativity?” is a classic, to be sure — it is the second most cited article in AJIL’s history. Does it also speak to international law today? This AJIL Unbound symposium brings together six authors from three continents to reflect on the contemporary significance of Weil’s famous article. This introduction to the symposium previews four of the topics winding through the essays: relative normativity, positivism, power and values, and whistle-blowing and unmasking.

International Commercial Law Today: Old Habits and New Challenges

International Commercial Law Today: Old Habits and New Challenges

The teaching of (another) international law: critical realism and the question of agency and structure

ABSTRACT In this article I explore the potential of a critical realist approach to the teaching of international law. Critical realist scholars have advanced a compelling account of the importance of paying attention – in designing educational curricula, delivering materials and classroom interactions – to the close relationship between agency and structure, a relationship that has also come to preoccupy international legal scholars. Recent academic work, especially that developed by critical international legal scholars, has revealed and insisted upon the structural dimension of the international legal order. According to these scholars, this dimension should be taken into account in order to explain and challenge some of the ways in which international law has historically constituted, and continues to constitute, our persistently violent and unequal material and social world at all levels, from international to local spaces, and from collective to individual subjectivities. If the aim is to generate another global order, and another international law, teaching international law today requires us to learn how to negotiate the structure and agency divide. The work of critical realists has the potential to help teachers of international law create a more emancipatory learning experience for their students in order to face this crucial task.

A Benford Analysis of National Collegiate Athletic Association Division I Finance Data

The Equity in Athletics Disclosure Act (EADA) database and the USA Today NCAA athletics department finance database are two of the most commonly used databases for scholars, policy makers, and other constituents interested in studying the economics of college athletics. Many in the higher education community, however, question the validity of these databases. This study used Benford’s Law of First Digits as a tool for spotting irregularities in EADA and USA Today college athletics financial data. After reviewing 5 years of data, the findings show that while there was some slight deviation from Benford’s Law, EADA and USA Today data largely conformed to the expectations of Benford’s Law.

Patent Reform, Then and Now

One of the most significant legislative reforms of the U.S. patent system occurred in 1952. Prior to 1952, the patent system found itself languishing, undermined by a confusing non-statutory patentability requirement called the “invention” requirement. In 1952, Congress and the President eliminated it. Today we find ourselves in a situation surprisingly similar to the one prior to 1952. The patent system again finds itself languishing, undermined by a new confusing non-statutory patentability requirement, this one called the “inventive concept” requirement. Today, just like in 1952, there are ongoing calls for Congress and the President to eliminate it. Given the striking parallels between these two eras — and the success of legislative reform efforts in 1952 — I have studied the forces behind the reform of 1952: the problems with the law of the day, the people and groups of people involved in reform efforts, and the circumstances and strategies they used to their advantage to create change. This study has led me to identify various factors that led to the success of those efforts in 1952. In parallel with the study of the history behind the Patent Act of 1952, I highlight the problems with the law today, the people and groups of people involved today in reform efforts, and the circumstances and strategies they might use to their advantage to create change. Moreover, drawing from the factors that led to the success of legislative reform efforts in 1952, I analyze how those same factors may contribute to the success of current legislative reform efforts — or hinder it.

Gender Identity and Nihilism: Some Anthropological Implications of Recent Caselaw

The gender identity movement has had tremendous success reshaping American law, especially in the last few years. This article discusses both the reasons for and implications of this success. In particular, it clarifies how the changing legal treatment of sexuality has reshaped our understanding, not only of sexuality, but of the human person and the social order as a whole, by closely examining some of the philosophical and anthropological presuppositions and implications of reconceiving the meaning of sex. It traces the history of the concepts of gender and gender identity in the work of John Money and Robert Stoller as well as the influence of their conceptual framework on law, as made apparent in recent court decisions. The article concludes that legal rationality’s tendency toward nominalism and reductivism implies a metaphysics and epistemology that cannot support a holistic and organic understanding of sexuality and its relationship to subjectivity and human community. In effect, American legal discourse finds itself without a rational framework for understanding these basic and vital human realities, despite their empirically and universally obvious importance. The article traces the larger philosophical context of legal rationality’s epistemological blindness. It asks whether the success of the movement might not be, in part, an effect of the form of legal rationality dominant in American law today.

Christianity and Global Law: Introduction

This is a brief introduction to a book that explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. In this book, two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historical-biographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges.

Comparative Company Law 2018

Comparative company law is at once very old and very modern. It is very old because ever since companies and company laws first existed, trade has not stopped at the frontiers of countries and states. The persons concerned, practitioners as well as rule-makers, had to look beyond their own city, country, rules, and laws. This became even more true after the rise of the public company and the early company acts in the first half of the nineteenth century. Ever since, company lawmakers have profited from comparison. But comparative company law is also very modern. Most comparative work has focused on the main areas of private law, such as contract and torts, rather than company law. Internationally acknowledged standard treatises on comparative company law took a very long time to emerge. Company law and comparative company law work remained a task for professionals. The few academics who joined in this work tended also to be practitioners (such as outside counsel, arbitrators, or advisers to legislators), who were less interested in theory and doctrine. This changed only fairly recently with the spread of 1930s US securities regulation into Europe, the company law harmonization efforts of the European Community since the late 1950s, and most recently, in the 1990s, with the rise of the corporate governance movement, an international bandwagon that started in the United States and the United Kingdom, swooped over to Continental Europe and Japan, and has since permeated practically all industrialized countries. Corporate governance covers core company law, particularly the board and more recently also the shareholders and other stakeholders like employees. But it reaches well beyond classical company law into other areas of law, in particular capital market law, that is, securities regulation and most recently bank regulation; into other forms of rulemaking, in particular self-regulation and codes; and into disciplines other than law, in particular economics. In stark contrast to traditional company law, corporate governance, as it is presently studied and practised, is essentially international and interdisciplinary. It follows that comparative company law today is to a considerable degree part of comparative corporate governance, though casebooks and case-based books on corporate law are now available.

Populism and constitutional tension

Abstract The recent resurgence of populism poses a significant challenge to constitutional law today and to the deeper tradition of modern constitutionalism. Despite resisting formal limitations on their power to represent the “true” popular will, populist regimes nevertheless find instrumental and ideological reasons to endorse their own version of constitutionalism. And despite their nativist commitments, populist leaders across the globe find common constitutional cause and mutual encouragement in their critique of cosmopolitan institutions and values. The distinctiveness of populism’s constitutional orientation rests on its occupation of a space between authoritarian and popular versions of constitutionalism, overlapping both but not reducible to either. There situated, populism involves a reaction against what it condemns as the neglect of the “unitary collective particular” in the liberal version of modern constitutionalism. Many critical of the inflated narratives and methods of populism nevertheless share some its underlying anxieties. For in an age in which an expanding commitment to the democratic pedigree of our constitutional arrangements has unfolded alongside the increasing transnationalization and fragmentation of political authority, the very instability of the balance between various constitutional goods—between plurality and unity, individualism and collectivism, and universal and particular rationalities—that fuels populists’ ire, deepens the defining tension of modern constitutionalism, and poses a challenge to all who continue to endorse it.

Populism and Constitutional Tension

The recent resurgence of populism poses a significant challenge to constitutional law today and to the deeper tradition of modern constitutionalism. Despite resisting formal limitations on their power to represent the ‘true’ popular will, populist regimes nevertheless find instrumental and ideological reasons to endorse their own version of constitutionalism. And despite their nativist commitments, populist leaders across the globe find common constitutional cause and mutual encouragement in their critique of cosmopolitan institutions and values. The distinctiveness of populism’s constitutional orientation rests on its occupation of a space between authoritarian and popular versions of constitutionalism, overlapping both but not reducible to either. There situated, populism involves a reaction against what it condemns as the neglect of the unitary collective particular in the liberal version of modern constitutionalism. Many critical of the inflated narratives and methods of populism nevertheless share some its underlying anxieties. For in an age in which an expanding commitment to the democratic pedigree of our constitutional arrangements has unfolded alongside the increasing transnationalisation and fragmentation of political authority, the very instability of the balance between various constitutional goods - between individualism and collectivism, universal and particular rationalities, and plurality and unity – that fuels populists’ ire, deepens the defining tension of modern constitutionalism and poses a challenge to all who continue to endorse it.

A Dozen Landmark Nuisance Cases and Their Environmental Significance

Over four centuries, nuisance law has proved its versatility. Originally, a near strict liability doctrine restraining uses that interfered with traditional agrarian and domestic uses, nuisance evolved to accommodate the industrial revolution, providing nuisance defendants with defenses like suitability of uses to their location, use of best available technology, and a high standing bar for private plaintiffs alleging public nuisances, making injunctive relief unlikely. In the mid-20th century, the Restatements were interpreted by some courts to endorse wholesale balancing of the gravity of harmful activities versus their economic value to the defendant and society not just limited to the issue of injunctive relief versus damages but whether a nuisance existed at all. This transformation of nuisance doctrine, like the earlier one, was the product of instrumentalism: a perceived need to accommodate economic growth, as judges were able to deny nuisance plaintiffs relief based on value judgments about the relative value of development versus environmental quality. In recent years, the U.S. Supreme Court has intervened to stop federal nuisance law from applying to interstate pollution, including greenhouse gas emissions. The Court did so not on the basis of congressional intent but on its vision of federalism and judicial competency. While these decisions seem to remove nuisance law from the foremost pollution threat in our time, the doctrine may regain relevance if the Court proceeds to narrowly interpret the scope of federal environmental legislation protecting resources like wetlands and groundwater, thereby eliminating displacement arguments. If those resources are not federally regulated, nuisance doctrine would give injured landowners a remedy, just as it has afforded those injured by emissions from hog farms, recently the subject of multi-million dollar damage suits. This paper traces the evolution of nuisance law, examining a dozen landmark cases, revealing a doctrine that began by protecting traditional agrarian and domestic uses, yet was malleable enough to accommodate perceived development priorities in the 19th and 20th centuries. The paper does suggest that where not federally displaced or preempted by state statutes, nuisance law today remains a viable cause of action for injured landowners, particularly where the issue is left to juries. Given the evident hostility of the Supreme Court, nuisance may not be available to combat greenhouse gas emissions, despite the felt necessities of the 21st century, like the evident damages due unrestrained atmospheric pollution and ocean acidification, but could supply injured parties a remedy against unregulated activities. Those parties might encourage courts to rediscover nuisance’s strict liability roots and return the doctrine to its origins protecting against uses that inflict substantial injuries on their neighbors and the public at large.

TRANSFORMATION OF COMMUNICATIONS LANGUAGE IN THE INTERNATIONAL LAW CONTEXT

Introduction. Over time, any phenomenon is in one or another way experiencing its development, evolution, transformation. This is true with a transformation of the language of communication related to international law as a social and humanitarian phenomenon. The article examines the features and specifics of the general communicative tendencies that have manifested themselves in international law, primarily on the basis of legal texts – written communicative acts. This aspect of the study is chosen on the fact that legal communication, and today's international law, in one way or another, are primarily implemented in the language of written communicative acts – international treaties, international conventions, acts of international organizations. The aim of the article is to investigate the boundaries of communicative development of contemporary international law in written and oral forms, to determine the correlation of general communicative tendencies with the corresponding stages of the formation of international law. The aim is determined by the following tasks: to consider the general peculiarities of development of the problem of communication in philosophy and, therefore, to determine the generalized changes that have occurred over time in international legal practice in the context of its sectoral communication. The research methodology consists of socio-cultural, structural-functional and comparative-historical approaches. Research results. In international law, there is a certain set of consistent vocabulary that applies in writing (international treaties, international conventions, acts of international organizations) and oral forms, where acts of interaction between states are based on the international legal tradition, which subjects of international law are recognized as a legal norm, or on the basis of general principles of law, which are understood by participants in intergovernmental relations as a "basis of the basis", and therefore do not require a separate discussion. Each of the historical periods of the formation of communication from ancient times to the present left its clear imprint on the nature of relations between states. Today's international law operates in the language that was formed after the adoption of the UN Charter and a large number of international legal instruments – treaties, conventions, acts of international organizations. The international relations usually speak the terminology of the documents mentioned above, since in their relations the states rely on their written communicative acts, and the oral form of international communication is based on it, in international legal acts on all areas of international legal practice. Discussion. International law is a "sub-branch" of the legal spiritual being, in which throughout its history used as a characteristic in general for human communication communicative means, and communicative acts that are characterized by international law, in which, over time, the adoption of a universal language for all subjects of international law was carried out, the development of which was, historically, due to the general history of mankind. Conclusion. Summarizing all above, we have grounds to state that international law, as one of the spheres of human communication, was a reflection of those communicative processes that have taken place with humanity throughout its history. As the example of the general changes that have taken place in the field of international law, we can also observe communicative tendencies of a particular historical epoch that directly affect the nature of communications within international law

WHAT COULD BE A SUPRANATIONAL (GLOBAL) TREATY IN THE FIELD OF SPORTS

The article concerns the prospects for the formation of the treaty for the field of sports, it is proposed to study and systematize certain law aspects: what influences on the status of the treaty and its main functions in the system of international sports law today. To do this, the authors turn to unexplored concepts, terms of an international treaty in the modern theory of law, considered the principles and norms of international law regulation in the field of sports. Characteristic features of international sports regulation through Lex Sportiva are highlighted and described. The debatable issue of the law framework for international regulation in the field of sports and the influence on it of the institutional framework for organizing international sports activities will remain the subject of international sports law. In this article, the authors address the content of such concepts as the Treaty of Lisbon, international treaty for the field of sports, international sports law, sports activities, autonomy of norms, selfregulation. The presented view and concern will be of interest to specialists in the field of international sports law.