Legal Controversies Research Articles

Do unilateral trade measures really catalyze multilateral environmental agreements?

Unilateralism remains an opaque concept associated with discriminatory or coercive policy implications. Legal controversies about unilateralism have not prevented a continuing proliferation of unilateral trade measures in domestic fishery management regimes to deter illegal, unreported and unregulated fishing. The widespread application of trade leverage requires a refined study of the confluence of multilateral trade and environmental governance frameworks on novel state activism. This article probes the long-running trajectory of the US Tuna and Shrimp disputes within the cross-institutional context of the World Trade Organization, multilateral environmental agreements and regional fisheries management organizations. It aims to shed new light on the nexus between unilateral trade measures and multilateral environmental agreements as an evolving and mutually adaptive process. Inspired is the critical thinking on elevating trade and environmental partnerships to coherently monitor and discipline trade unilateralism in its indirect role to ameliorate global environmental problems.

“Jurisdictional Realization of Law” as Judicium: A Methodological Alternative, Beyond Deductive Application and Finalistic Decision

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a (normativistic-positivistic) syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism(s) of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy.

Risk-Oriented Approach to Resolving Legal Controversies

The study focuses on the specific features of the justice dealing with the results of measuring the characteristics of safety and quality of production, works, or services. It is shown that the error (uncertainty) that appears in such situations is a measure of data scatter and a source of legal uncertainty, which causes a risk of judicial errors. The level of such risk increases with increasing demands of economy to the standardization of the ever-decreasing values of characteristics evaluated with higher uncertainty. The study shows that a necessary condition for the rule of law in such cases is the risk-oriented approach to resolving arbitration cases.

Un traité de droit mālikite égyptien redécouvert : Aṣbaġ b. al-Faraǧ (m. 225/ 840) et le serment d’abstinence

RésuméLe présent article propose l’édition de deux papyrus juridiques relatifs à la répudiation, conservés dans la collection Michaelidès de la Bibliothèque universitaire de Cambridge. Le premier, une page de titre datant du milieu du iiie/ixe siècle, suggère que le second, un extrait relatif au serment d’abstinence (īlāʾ), est attribuable au juriste mālikite égyptien Aṣbaġ b. al-Faraǧ (m. 225/840). Cet échantillon, qui pourrait constituer les seules pages survivantes du Samāʿ ou des Nawāzil de cet auteur, fait alterner des citations du Muwaṭṭa⁠ʾ de Mālik et l’argumentation d’une autre autorité, peut-être Aṣbaġ lui-même ; il préserve par ailleurs la trace de controverses juridiques tant dans le milieu des savants médinois que dans celui des juristes égyptiens. Ces deux papyrus offrent ainsi un témoignage inédit sur la formation d’un maḏhab mālikite en Égypte et sur la relation dialogique qui s’instaura, dans la première moitié du iiie/ixe siècle, entre les juristes qui se réclamaient du maître médinois.

Regulating Preimplantation Genetic Testing across the World: A Comparison of International Policy and Ethical Perspectives

Preimplantation genetic testing (PGT) is a reproductive technology that, in the course of in vitro fertilization (IVF), allows prospective parents to select their future offspring based on genetic characteristics. PGT could be seen as an exercise of reproductive liberty, thus potentially raising significant socioethical and legal controversy. In this review, we examine-from a comparative perspective-variations in policy approaches to the regulation of PGT. We draw on a sample of 19 countries (Australia, Austria, Belgium, Brazil, Canada, China, France, Germany, India, Israel, Italy, Japan, Mexico, Netherlands, Singapore, South Korea, Switzerland, United Kingdom, and the United States) to provide a global landscape of the spectrum of policy and legislative approaches (e.g., restrictive to permissive, public vs. private models). We also explore central socioethical and policy issues and contentious applications, including permissibility criteria (e.g., medical necessity), nonmedical sex selection, and reproductive tourism. Finally, we further outline genetic counseling requirements across policy approaches.

MENAKAR PRO-KONTRA HUKUM UJRAH PENGAJAR ILMU AGAMA DAN URGENSINYA DALAM KONTEKS ERA MODERN

Abstract: This research is based on the legal controversy of wages for Islamic religious teachers that occur in society which is often used as a reason for people to ridicule one another with reasons for preaching and or teaching Islam not sincerely and materialistically. Even though people who are mocked also have legitimate reasons and arguments in doing their dakwah and teaching by taking wages from their dakwah or teaching. This research is librabry research which focus on the written data with research focus is how important wages for islamic religious teachers and its consequences in daily life, then how about the legal law in recieving a wage for islamic religous teachers. The result of this research is giving a wages is mandatory if islamic teacher’s job is just as a Islamic religious teacher (no job else). Beacause of teaching the religous subject is an obligation for all of people who knows about religous knowladge. Islamic law scholars’ opinions are different about this issue. According to one of them giving wages is legal, and others stated illegal, but however giving wages for the Islamic teachers is reasonable or permitted. Because all this time there is no complain from the society to give wages for Islamic religious teachers.
 Keyword: Legal, Controvercy, Wages (Ujrah), Urgency, Islamic Religious Teachers.

The Politics of Citing: José Martí, Oscar Wilde, and the Renaissance of Author Photography

My article reexamines two chronicles by José Martí in which the Cuban intellectual discusses Oscar Wilde’s arrival in New York and his first public lecture there. I take a suspicious approach to these chronicles, proposing a critical reading of Martí’s decision to blindly cite the eccentric Irish dandy. Martí’s first chronicle about Wilde, which appeared in Caracas on 21 January 1882, can be read as an artifact that emphasizes the relevance of author photography. I argue that the photographs of Wilde that Napoleon Sarony took in New York City and the legal and other controversies that developed around them constitute a renaissance of author photography as a self-figurative vehicle and attempt at material autonomy by a new kind of writer in the public sphere. Photography composes a luminous skin that can not only operate on the materiality of the author but also respond to the lustful eyes that look at it.

Economic Constitutionalism in the EU and Germany – The German Constitutional Court, the European Court of Justice and the European Central Bank between Law and Politics

Abstract The relationship between the European Union (EU) and its member states has recently been the subject of several legal proceedings in the German Federal Constitutional Court (GFCC) and the European Court of Justice. The backdrop to the underlying controversies were policies instituted by the European Central Bank (ECB) dealing with the economic and monetary situation in various member states in the context of the sovereign debt crises to influence interest rates, combat deflationary tendencies and keep inflation under but close to the ECB’s 2% inflation target. Especially so-called outright monetary transactions (OMTs) and the corresponding OMT-program and a particular high volume public sector asset purchasing program (PSPP) announced by the ECB have been controversially discussed. Legally, the controversies are about the prohibition for the ECB to finance debt held by the EU or member states (Article 123 TFEU) and about the delineation of economic policy (Article 119 et seq. TFEU), which lies in the hands of the members states, and monetary policy (Article 127 et seq. TFEU), which is exclusively in the hands of the ECB. The GFCC in its decisions propagated a restrictive approach emphasizing the role of the member states and pointing to the doctrines developed by it around ultra vires acts and so-called identity review. This paper attempts to shed some light on this controversy and argues that beyond the legal controversy lies a deeper problem of the relationship between judicial and political decision-making that the GFCC should exercise restraint in exercising its functions and remember its own doctrine of “open constitutional norms” developed in a different context but applicable here as well.

The Cactus and the Anthropologist: The Evolution of Cultural Expertise on the Entheogenic Use of Peyote in the United States

This paper explores the complex evolution of the role anthropologists have played as cultural experts in the regulation of the entheogenic use of the peyote cactus throughout the 20th century. As experts of the “peyote cult”, anthropologists provided testimonies and cultural expertise in the regulatory debates in American legislative and judiciary arenas in order to counterbalance the demonization and prohibition of the medicinal and sacramental use of peyote by Native Americans through state and federal legislations. In the meantime, anthropologists have encouraged Peyotists to form a pan-tribal religious institution as a way to secure legal protection of their practice; in 1918, the Native American Church (NAC) was incorporated in Oklahoma, with its articles explicitly referring to the sacramental use of peyote. Operating as cultural experts, anthropologists have therefore assisted jurists in their understanding of the cultural and religious significance of peyote, and have at the same time counseled Native Americans in their interaction with the legal system and in the formatting of their claims in appropriate legal terms. This complex legal controversy therefore provides ample material for a general exploration of the use, evolution, and impact of cultural expertise in the American legal system, and of the various forms this expertise can take, thereby contributing to the contemporary efforts at surveying and theorizing cultural expertise. Through an historical and descriptive approach, the analysis notably demonstrates that the role of anthropologists as cultural experts has been marked by a practical and substantive evolution throughout the 20th century, and should therefore not be restrictively understood in relation to expert witnessing before courts. Rather, this paper underlines the transformative and multifaceted nature of cultural expertise, and highlights the problematic duality of the position that the two “generations” of anthropologists involved in this controversy have experienced, navigating between a supposedly impartial position as experts, and an arguably biased engagement as advocates for Native American religious rights.

International Criminal Judiciary Decisions: Is It A Source of International Criminal Law?

The Sources of international criminal law are very important because they drive us to international and revelation of criminal texts, and because they are related to the principle of legality. In addition, international criminal judiciary decisions played significant part in development of this law, in spite of legal controversy over consideration of those decisions as source of international criminal law, particularly because Rome Statutes of International Criminal Court didn’t refer to consideration of those decisions as a source that International Criminal Court can reference. Keywords: International Criminal Court, International Criminal Law, International Judiciary Decisions. DOI : 10.7176/JLPG/86-11 Publication date :June 30 th 2019

A Critical Examination of the Distinction between Interpretation and Construction

The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation. Although the distinction is a valuable precaution against those who would seek to claim that the application of law is entirely or mostly a question of meaning, it runs into trouble when it confronts the existence of technical legal language in the law. Interpreting such language, especially when it is constitutive or evaluative, requires recourse to legal values, legal goals, and the purposes of legal institutions, but in doing so it requires recourse to law at interpretation stage. As a result, the basic insight of the distinction between interpretation and construction – that semantic content and legal values are different, and that law enters the process only at the construction stage – is of limited value when the language at issue is legally technical.

Defining Seaward Boundaries in a Domestic Context: Norway and the Svalbard Archipelago

This article analyzes a little-noticed aspect of the international legal controversy pertaining to Svalbard’s maritime zones. It concerns where and by which method Norway should draw the boundaries between Svalbard’s continental shelf and the 200-mile zone, on the one hand, and other maritime zones subject to Norwegian jurisdiction, on the other. The assumption upon which the discussion rests is that the Spitsbergen Treaty signatories enjoy treaty rights in the maritime zones beyond Svalbard’s territorial waters. The law of the sea does not contain rules on the drawing of maritime boundaries between different parts of a state’s territory, but the rules on delimitation between states offer a strong analogy. In the search for an equitable solution, primacy should be given to geographical factors. The article argues that Norway could do more to enhance the openness regarding the Svalbard delimitation question since its outcome will be of significant interest to other states.

Implementing Achmea: The Quest for Fundamental Change in International Investment La

The judgment of the Court of Justice in the Achmea case evoked significant repercussions regarding the application and operation of the bilateral investment treaties (BITs) concluded between EU Member States. As a result of this decision, EU Member States have decided to terminate almost 190 intra-EU BITs. Nevertheless, full implementation of the Achmea judgment remains a complex issue, entangled in political and legal controversies concerning intra-EU BITs which have been present for more than a decade. On a more general level, the implementation process is simultaneously entwined in two other significant debates: the specifics of the rights of investors, and the relationship between EU law and international law.

Enforceability of electronic contracts in light of the Ethiopian General Contract Law: appraising the issues

ABSTRACTModern information communication technologies, especially the Internet, have been extensively used in contracts. Yet laws which govern contractual relationships were passed at a time when Internet was unknown. Due to this fact, conventional contract laws empirically face significant challenges to address legal controversies arising from electronic contracts. In the same fashion, Ethiopian General Contract Law is unfit to accommodate legal controversies resulting from the occurrence of electronic contracts. The main legal challenges due to the development of electronic contracts are uncertainty regarding legal recognition of data messages, issues associated with consummation of consent, attribution of communications, input errors, time of contract formation, formality requirements, variation, notice of nonperformance, privity of contract, admissibility and parole evidence rule of electronic records. The above-underlined issues, which stem from the emergence of electronic contracts, are hardly addressed by our civil code. Therefore, this work is mainly meant to make a humble attempt to examine the appropriateness of the Ethiopian General Contract Law to accommodate technologically driven electronic contracts.

Siege Warfare in the 21stCentury from the Perspective of International Humanitarian Law

Professor Karol Wolfke was an expert in many areas of public international law, including the sources of law, and in particular international custom. His flagship publication in this field was recognized and quoted internationally. Therefore it was not surprising that the International Committee of the Red Cross (hereinafter referred to as the ICRC) invited Professor Karol Wolfke to contribute to the completion of the Study on Customary International Humanitarian Law, the purpose of which was to identify customary rules of international humanitarian law applicable in international and non-international armed conflicts. He reviewed some parts of the Study and also advised during experts’ meetings convened in Geneva by the ICRC. Therefore it seems very appropriate to reflect in Professor Wolfke’s commemorative book on a topic proving the important role of customary law in filling gaps in international treaties. The topic that has been chosen – siege warfare – unfortunately belongs to very hot issues in today’s international relations and law. In recent years Aleppo in Syria has become a symbolic example of political and legal controversies about siege tactics in contemporary armed conflicts. Keywords: siege, warfare, international humanitarian law, armed conflicts

Voice of cancer patients (VoCP): Patient perceptions regarding use of marijuana and its derivatives in cancer.

228 Background: Despite legal controversies, medical Marijuana use is increasingly accepted for mitigating side effects from chemotherapy in cancer patients. In this study we analyzed cancer patient perception and experience on the use of Marijuana and its derivatives. Methods: We collected 15.7 million freely shared messages from cancer patients from 52 unrestricted web forums. Using our VoCP platform based on techniques artificial intelligence, we processed unstructured text and analyzed these messages to extract relevant information and experiences on the use of Marijuana and its derivatives. Results: Of 15.7 million messages, 27,510 messages from 11,244 distinct users discussed Marijuana and cancer. 2,770 users had firsthand experience and shared 5,251 messages. Overall, 876 users (1,150 messages) were satisfied, 319 users (332 messages) were dissatisfied, and the remaining 1,575 did not say. Common reasons for use of Marijuana included nausea (526), insomnia (526), appetite (165), pain (122), weight loss (102), fatigue (57), anxiety (60), gastroparesis (27), and neuropathy (11). Questions asked by patients were related to people’s experience with marijuana, availability, preparations, efficacy, legality views, and side effects. Common cancer types where marijuana use was discussed were breast (3745), lung (1,476), colorectal (675), head and neck (405), pancreatic (239), stomach/esophagus (485), lymphoma (512), CNS tumors (499), and unspecified type (1,869). Methods of use discussed by ,1338 users and included smoking (875), oils (368), tincture (31), capsules (11), and other edibles (41). Source of obtaining marijuana mentioned as legal organization / licensed practitioner (254), online (34), friends and family (33), and growing ( 34). 1,111 messages discussed availability of marijuana. 2,912 messages discussed legal issues concerning Marijuana. 1,737 said that it is legal in their states and 1,179 said that it is illegal. Conclusions: Marijuana and its derivatives are increasingly being used by cancer patient to mitigate cancer and treatment-related side effects, and the use is increasing as recreational use of marijuana is being legalized in more states.

A Note on the 2017 Landmark US Ruling on the Constitutionality of Prohibiting the Trademarking of Potentially Disparaging Names

The Lanham Act was enacted by the US Congress in 1946 with the overall purpose of regularizing the nation’s registration and use of trademarks. Despite undergoing a number of amendments since its enactment, for the past 70 years, the Act has continued to provide key federal protections against not only the unlawful or deceptive use of trademarks. It also strictly forbad the registration of marks that reasonably could be considered immoral, scandalous, contemptuous, or disparaging. Though hailed by some as an important protection against hateful speech in the public marketplace, others have questioned whether the statute violates the constitutional right to Freedom of Speech. This year, the US Supreme Court issued a ruling that put an official end to this legal controversy. This article provides a detailed description of the case that led to this landmark decision and discusses some of the potential implications for trademarking potentially disparaging brand names.

Contentious Ethical and Legal Aspects of Determination of Brain Death.

Although the concept of death by neurologic criteria is accepted throughout much of the world and death can legally be determined by neurologic criteria throughout the United States, the process is fraught with contentious ethical and legal controversies. I explore historic and contemporary ethical and legal disputes about determination of death by neurologic criteria including the need for consent from patients' surrogates prior to determination of death, the role of religion in determination of death, management of objections to determination of death by neurologic criteria, the approach to patients who are dead by neurologic criteria but are pregnant, and gamete retrieval after determination of death.

Science, Common Sense & Judicial Power in U.S. Courts

Courts routinely resolve factual disputes as an adjunct to settling legal controversies, and such fact-finding frequently involves scientific and technical evidence. It is important to ask what intellectual resources judges bring to this task. Instead of assessing how much science judges know or understand, this essay focuses on the judge's role in articulating and reinforcing prevailing cultural attitudes toward science. Background judicial assumptions matter at three significant junctures. First, judges maintain the lay-expert boundary by deciding whether an issue demands expert testimony at all. Second, judges act as epistemological gatekeepers, by determining which expert claims and ways of reasoning are entitled to deference and which are not. Third, judges decide how to classify and categorize things of uncertain ontological status as a prelude to applying legal rules. Each kind of decision offers a window into judicial common sense, a relatively neglected topic in studies of law and science.

Legal Controversies and Challenges with the So Called Act on Decision for Life-prolongation Treatment of Patients - With a Focus on the Patient-oriented Medical Care -

Legal Controversies and Challenges with the So Called Act on Decision for Life-prolongation Treatment of Patients - With a Focus on the Patient-oriented Medical Care -