Number Of Key Cases Research Articles

Responsibility of the Executive Body of a Legal Entity for Fraud

The paper discusses various legislative and enforcement approaches in the Russian Federation, USA, and Great Britain; compares the various provisions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Armed Forces of the Russian Federation on issues of good faith; analyzes the application of these provisions by the courts when considering issues of holding directors to account as a result of malpractice that entailed property damage. By the example of consideration of a number of key cases from the law enforcement practice of the courts of the Anglo-American system of law, the question of the use of tests is considered: objective and subjective integrity tests to regulate the issue of holding the executive body accountable. English and American courts resort to the criterion of good faith in very rare cases, and the fiduciary duty of directors in commercial companies was significantly limited. The approach used by the common law courts implies a minimal degree of court interference in the economic affairs of commercial companies. Holding the director accountable is allowed only in case of obvious neglect of duties or is considered in some cases based on the specific circumstances of the case. Russian courts often hold directors accountable not as a result of gross negligence or proven intentional actions by executive bodies to harm the company, but as a result of society not achieving the desired economic result. Besides, dishonesty compensates for obvious gaps in the internal corporate routine, which do not make it possible to precisely determine the boundaries of authority and the area of responsibility of the executive body. The author formulates a conclusion on the degree of admissible judicial discretion when applying the provisions on good faith to corporate relations as requiring special regulation.

The ECtHR's Understanding of Torture: An Essential Insight

This paper is aimed at providing a concise historically-informed as well as theoretically-updated account of the “state of the art” regarding the European Court of Human Rights’ understanding of torture, drawing on both the preventive measures adopted by the Council of Europe and the judgemental criteria established via the massive jurisprudence of the aforementioned Court. A number of key-cases are scrutinized through comparative lenses, with particular emphasis on the long-lasting, uneven relationship with the UK rulers, not to mention the controversial membership of the Russian Federation and the Republic of Turkey. Several issues and conceptual frameworks are examined, building on an extensive academic and non-academic literature. Among them: the disputed threshold between “torture” and “inhuman/degrading treatment”; the priority policy of the Court; the so-called “ticking bomb”-justification; the practice of incommunicado detention; and the duty to introduce evidences before the Court.

The three worlds of emigration policy: towards a theory of sending state regimes

ABSTRACTMigration theory has historically dismissed the role of sending states in labour migration, with theories grounded in social and economic mechanisms that left little room for political interventions. The theory was supported by evidence from major cases, like that of Mexico, in which sending state policies were understood to be either altogether absent, or overridden by other processes. However, migration flows have changed significantly in the neoliberal era, and these changes have produced different policy orientations among sending states. Many sending states – the Philippines is a prominent example – now have explicit migration management policies that are geared towards promoting and facilitating particular types of labour migration. Even sending countries without such programmes have policies to manage relations with their diaspora, whose remittances now play critical roles in their economies. Drawing from primary case studies of the Mexican, Moroccan, and Philippine cases, with additional evidence from a number of key cases, I propose a tripartite typology for theorising sending state interventions in labour migration.

Habeas Corpus, Imperial Rendition, and the Rule of Law

In the decades which followed the publication of AV Dicey’s Law of the Constitution, most English lawyers felt confident that the rights and liberties of Englishmen were protected by a rule of law, which was secured through ancient common law remedies such as the writ of habeas corpus. In their view, this ensured that no political activists would be detained without trial, unless there were particular emergencies which allowed the writ’s suspension, in order to protect the very rule of law. At the same time that these arguments were being made, however, detention without trial became an increasingly routine feature of colonial governance. This article examines the attempts used by political detainees from different parts of the empire to challenge their rendition and detention, and explores what the judicial response tells us about perceptions of the rule of law in the era when Dicey’s work was establishing itself as the classic text of constitutional law. Focusing on a number of key cases, it examines how courts examined two central issues in habeas corpus cases. The first concerns the legality of the detention. In discussing this issue, courts were presented with rival approaches to the rule of law, one which was more ‘formalist’ (asking whether the legislative instrument ordering the detention had a valid pedigree derived from the sovereign legislature), and another which was more ‘substantive’ (invoking a notion of fundamental rights). The second concerns the question of control, and explores the response of the courts to challenges to the writ by defendants who argued that they no longer had control over the detainee.

Humanitarian intervention and post-conflict reconstruction in the post-Cold War era: a provisional balance-sheet

It is over twenty years since the ‘international community’ embarked on what seems to be an increasingly regular policy of intervening in the internal affairs of states on humanitarian grounds. A massive literature has developed that analyses the theoretical, political, legal, normative and strategic dimensions of humanitarian intervention. This article engages with that literature and attempts to draw a provisional balance sheet for this twenty-first-century activity by examining a number of key cases and analysing the motivations and drivers behind the decision to intervene as well as the practical consequences of the intervention itself. In the context of the recent crises in Libya, Syria and Mali, which are seemingly comparable situations but which have produced significantly different policy preferences on the part of the international community, the article concludes that there are few clear prescriptions as to when intervention is and is not appropriate or justified. The cases examined suggest that, all too often, intervention takes place hastily and in ad hoc fashion with too little thought about the medium- and long-term consequences, which often turn out to be in contradiction with the original motives for intervention.

Law reports for psychiatrists

SummaryThe article briefly describes the structure of the civil courts in England and Wales and explains how laws are drafted. This information is used as a basis for understanding the rule of precedent: how earlier court decisions may be binding in later cases. The article explains what law reports are, how cases are reported in the legal literature and how they may be located and cited. A number of key cases are summarised to illustrate the process of judicial reasoning and to show how case law contributes to psychiatric practice and defines the legal structure of medical work. A list of useful legal websites is given.

Lord Cave, the Privy Council and Ireland

This article examines the career of Lord Cave and his influence on the history of the Irish appeal to the Judicial Committee of the Privy Council in the 1920s and 1930s. Cave was a controversial figure in Anglo-Irish politics in the early twentieth century. Nevertheless, he held the office of lord chancellor for much of the 1920s and presided over a number of important appeals emanating from the Irish Free State. This paper argues that Cave’s pre-occupation with maintaining the integrity of the British Empire influenced decisions in a number of key cases that directly or indirectly affected the Irish Free State. This supports the conclusion that Lord Cave had a profound impact on the history of the Irish appeal to the Privy Council. This paper also examines suggestions made by other scholars to the effect that decisions made in cases affecting the Irish Free State support a conclusion that the Judicial Committee was occasionally influenced by the interests of the British government. These scholars question the entire position of the Judicial Committee of the Privy Council as an independent court of law and suggest that the Privy Council appeal was occasionally used as a tool of British governmental policy. This paper concludes that the decisions made in these key cases are more likely to have been influenced by the personal views of Lord Cave and not by policies embraced by the British government. This supports the conclusion that the Judicial Committee of the Privy Council of the 1920s and 1930s was, after all, an independent court of law.

Adopting Direct Democracy

Why was direct democracy adopted in some U.S. states and not others? In this article, we sort through the various arguments advanced in the predominantly historical literature by using event history analysis. Among other factors we identify the importance of popular support for Populists and Socialists as well as the constraints imposed by state constitutions. We also find that the demographic composition of states was strongly associated with success or failure to adopt the initiative. Furthermore, we identify a number of key cases—highlighted by this approach—that present intriguing anomalies to the general patterns identified in the historical and political science literatures to date.

Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice: Lessons for Universities and Courts

Universities are faced with an apparent increase in incidents of student academic misconduct, in particular allegations of plagiarism. An adverse finding may have significant consequences for a student in their academic progression. A plagiarism incident, with or without an adverse finding, may have longer term consequences for some students. These include students seeking admission to legal practice. This paper examines a number of key cases illustrating how the admitting courts are dealing with such applicants and the recent changes to admission disclosure rules implemented to meet the problem. The paper discusses the implications of these developments for the higher education community and the courts.

The ACCC Compliance and Enforcement Project: Assessment of the Impact of ACCC Regulatory Enforcement Action in Unconscionable Conduct Cases

This paper evaluates the success of the Australian Competition and Consumer Commission (ACCC) in changing and reinforcing norms of business behaviour in relation to avoiding unconscionable conduct. First the Report sets out the reasons for, and controversy over, the introduction of unconscionable conduct provisions into the Australian Trade Practices Act. The Report goes on to use qualitative empirical evidence to evaluate the success of the ACCC in enforcing the unconscionable conduct provisions in a number of key cases concerning retail leasing, franchising and consumer transactions. We conclude that the ACCC has, through its enforcement activity, succeeded in raising awareness of the prohibition against unconscionable conduct, and its role in enforcing those provisions. However, the ACCC did not have much success in actually winning unconscionable conduct cases. Therefore it has made a limited contribution to developing the law on unconscionable conduct and sending out a clear message about what amounts to acceptable or unacceptable business conduct in this area. Moreover, the ACCC has been criticized in relation to some unconscionable conduct cases for commencing cases too quickly, for not giving alleged offenders an adequate chance to put their point of view, and for refusing to negotiate settlements or mediate cases in certain circumstances - all criticisms that might undermine the perceived legitimacy of the ACCC's enforcement activity.

Retailer–manufacturer responsibility in the marketing of firearms: exploring the concept of negligent distribution

One of the most divisive, controversial issues confronting Americans today is the regulation of firearms. Statistics pertaining to firearm-related injuries and death in the United States are staggering; approximately 32,000 Americans die annually from gunshot wounds, the vast majority of which can be attributed to handguns. Estimates of the costs of gun-related violence in the United States run as high as $100 billion/year. Not surprisingly, the firearms death rate in the United States is among the highest in the world, and clearly the highest among industrialized nations. To what extent, if any, do manufacturers and retailers share responsibility for harm caused by firearms? Manufacturer/retailer responsibility for firearm-related injuries may be tested under any one or more of a number of legal theories: products liability, public nuisance, and negligence. Of particular interest to marketers and retailers is the assertion that responsibility can be traced to negligent distribution practices. Although negligent distribution has been alleged in a number of key cases, the concept remains ambiguous. What does seem clear is that legal responsibility for injuries and death attributable to handguns has expanded, and negligence in marketing and distribution practices will become a paramount issue shaping the future direction of the firearms industry worldwide.

Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the Pre-Trial Criminal Process

Recent years have seen an intermittent debate amongst journalists, policy-makers and academics in adversarial jurisdictions about the nature and quality of the inquisitorial tradition in criminal process. Much of the political impact of the debate in Britain has stemmed from the view asserted periodically by certain high profile figures that some form of judicial supervision of police investigation – as practised for example in France – might be introduced in England and Wales.1 Such views tend to find expression when events call into question not just particular rules but also the underlying structures and assumptions of our adversarial tradition of criminal process. Thus in 1991 the public revelation of serious miscarriages of justice led to the appointment of a Royal Commission on Criminal Justice in which the adversarial character of the pre-trial process seemed to be a key point of interrogation.2 The police view, demonstrated in a number of key cases, was that once they were clear that a suspect was guilty they had no responsibility to pursue exculpatory lines of investigation. This, combined with the failure of defence lawyers to play the extensive, autonomous investigative role the adversarial system demanded of them, encouraged some to ask whether there might not be advantages in somehow ensuring that the resources and rights of the state were devoted to pursuing exonerating as well as incriminating evidence. Given the limited empirical evidence then available on the workings of judicial supervision in practice4 and the sometimes vehement dispute in France itself about the future of its pre-trial process and especially the juge d''instruction(examining magistrate), the proposals were perhaps not surprisingly rejected.5 But since the mid 1990s, British funders have begun to finance a number of empirical studies of French criminal justice.6 This paper reports the principal findings of a empirical study primarily funded by Britain''s Economic and Social Research Council into the role of defence lawyers in France.7 Our focus and primary theme is the developing nature of their dialogue and exchanges with key state actors such as judges, prosecutors and the police on the one hand and with clients on the other. But in so doing we aim to cast light on the broader functioning of the pre-trial process in France.

Lessons my Clients have Taught Me†

The theme of the 1989 Family Therapy Conference Patterns of Experience provided an opportunity to consider the experiences in one's work as a therapist that shape and order our activity. A central concept is that clients perturb and alter the structure of the therapist such that our work is inevitably and permanently changed. A number of key cases are reviewed which illustrate one therapist learning from her clients.

The Saudi Religious Elite (ULAMA) as Participant in The political System of The kingdom

The Ulema are the power that holds the Sultan and his people together—the medium of control. But they seldom meddle in politics. This premise was expressed by Ameen Rihani, an Arab traveller, in 1928, before either Sultan 'Abd al-'Aziz became king or Najd and its dependencies became the Kingdom of Saudi Arabia.Was Rihani correct in his conclusion? Is he right today? This article will endeavor to explore the term ulama in the Saudi context in the twentieth century. Later, an attempt will be made to discuss the participation of Saudi ulama in a number of key cases in the history of Saudi Arabia.The house of Saud along with the house of Muhammad b. 'Abd al-Wahhab, the founder of the Unitarian movement, were parties to a unique coalition in the eighteenth century. The coalition embraced the Unitarian movement, or Wahhabiyah, founded in the mid-eighteenth century, and members of the Arab noble house of Saud of Najd.