Number Of Legal Scholars Research Articles

THE CONCEPT OF SMUGGLING CRIMINAL

Thе article describes in detail the history of the origin of the concept of the crime of smuggling, the application of this concept and the definitions that a number of legal scholars have given in relation to this concept. The norms concerning the conceptof the crime of smuggling in the legislation of our state were also discussed, and the author's definition was given as a conclusion.

The Subject Matter of the Lawsuit as a Feature Individualizing the Lawsuit

The question concerning the concept of the subject matter of the claim, which is one of the features that individualize the claim, is one of the most disputable and unsettled in the doctrine devoted to the claim. A number of legal scholars define the subject matter of the lawsuit as the substantive law claim of the plaintiff against the defendant. However, this definition cannot be accepted as correct, since, first, petitioners bring claims that cannot meet the above requirement (for example, claims for recognizing transactions as invalid), and, second, the statements of claim filed with the court contain demand (request) for the court, rather than a claim against the defendant.According to another point of view, the subject matter of the claim should be understood as the subjective right indicated by the plaintiff and the corresponding obligation or civil legal relationship in general, about which the court must make a decision. It is also impossible to agree with the above definition of the subject matter of the lawsuit in view of the fact that, as A. A. Dobrovolsky correctly noted, the law provides that the statement of claim must indicate the plaintiff’s claim rather than the disputed legal relationship. We should also agree with the argument given by G. L. Osokina, according to which the logic and practice of the statement of claim for the defense dictate the need to include a subjective right or legitimate interest in the basis of the claim, and not in its subject matter. According to the point of view of K. S. Yudelson, the subject matter of the claim is the requirement to the court to protect the right in the form that corresponds to the stated requirement. However, since this definition is too general, it cannot be used to resolve the issue of the equivalence of claims. The definition of the subject matter of the claim as protection (V.N.Scheglov) or a method of protecting the right (G.L. Osokina) also have the similar drawback. The most correct is the definition of the subject matter of the claim as the protection of a subjective right, freedom or legitimate interest through the specific application of one of the methods provided for by law or the direct exercise of the right that the plaintiff asks the court about.

Climate Law and Its Skeptics: Whither Protection of the Atmosphere?

‘Climate change law’ is considered by a number of legal scholars as an emergent novel discipline. The question, then, is whether the advent (and future prospect) of climate change has resulted in a coherent autonomous new body of law, be it a nascent one; or is it nothing more or less than the application of existing national and international environmental law to climatic problems? It is perhaps worth recalling that international environmental law itself only ascended to the rank of a recognized discipline of its own in the 1990s, over considerable academic scepticism at the time. Not un-similarly, the ongoing new project of the UN International Law Commission (ILC) for the drafting of guidelines on “protection of the atmosphere” has met with resistance from a few powerful States claiming that there is no need for further codification of international law in this field. Yet, considering our common interest in conserving the quality of the Earth’s atmosphere and climate, the ILC project may indeed encourage further development of a concept of inter-generational “planetary trusteeship”, owed by States as public trustees to present and future citizens as the beneficiaries.

Constitutional Interpretation of Rights and Court Powers in Kenya: Towards a More Nuanced Understanding

The Constitution of Kenya (2010) has within it guidelines on how it ought to be interpreted. Today, there are a considerable number of legal scholars, practitioners and judges in Kenya who understand these guidelines to mean that a theory of interpretation which calls for rights to be read broadly is always adequate and correct and that it is always a good idea for courts to read their own powers and jurisdictions broadly, especially where rights are concerned. The assumption and conformity caused by this understanding, this article suggests, has led to the exertion of a subtle pressure on all those involved in constitutional interpretation in Kenya to follow this line. Consequently, this has inevitably hampered what would otherwise have been healthy debate on how some constitutional provisions should be interpreted. Thus this article – through applying a textual analysis of the Constitution as well as studying a cross section of judicial decisions – suggests that this standard view is flawed. It then proposes a more nuanced understanding that sees the complex tangle for what it is and that has a place for a differing mode of interpretation.

New Governance Tune-Up: How Behavioral Insights Can Help Refine the New Governance Regulatory Narrative

In recent years, a number of legal scholars have advocated “new governance” approaches to regulation. New governance scholars eschew both traditional command-and-control and complete deregulation models, instead focusing on middle-ground hybrid approaches in which legal actors seek to emulate private-sector success stories. New governance narratives paint a sometimes rosy picture of the potential benefits of this kind of hybrid approach. This Article uses William Simon’s legal scholarship about Toyota as a jumping-off point to examine the framing of new governance narratives. New governance proposals often follow a particular story line, setting out empirical and case-study driven accounts of how to build a better mousetrap based on private-sector successes. This narrative structure is intuitive and is psychologically appealing. However, it may be prone to overstate causal connections, due to a variety of behavioral biases such as confirmation bias, hindsight bias, and representativeness heuristic. Scholars cognizant of these potential issues can better “tune up” the new governance framework.

Constructing Achievement in the International Criminal Tribunal for the Former Yugoslavia (ICTY): A Corpus-Based Critical Discourse Analysis

The International Criminal Tribunal for Yugoslavia (ICTY) was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably linguistics. This represents a significant research gap, as the Tribunal’s public discourse (notably its case law and Annual Reports) can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY.

A Time to Step In: Legal Mechanisms for Protecting Those with Declining Capacity

Current estimates approximate that the population over sixty-five years of age will increase from 40 million in 2010 to 72.1 million by 2030. As society ages, the number of elderly with cognitive deficits that impair decision-making abilities will also increase. This will place additional burdens on families and probate courts seeking to balance individual autonomy with necessary protections. A legal determination of incompetency is a prerequisite to a judicial order appointing a guardianship or other protective mechanism. The current legal-medical model for competency determinations fails to reflect the complexities of declining capacity in an aging population. A global structure for competency determinations leaves a critical gap between competent and incompetent. The gap between competence and incompetence not only raises concerns about how to classify those that fall between the two, but also highlights the lack of legal protections for those within the gap. A revised model is needed to provide protections to individuals who do not yet meet the threshold for incompetence but require additional protections for their personal or financial welfare. This Article provides an unprecedented examination of the legal model for determining competence through a comparison of the medical model for evaluating capacity. While a number of legal scholars have examined the appointment and oversight of guardians, fewer articles have critically examined the process by which individuals are declared incompetent. This Article presents a comprehensive overview of competency and clinical capacity determination procedures, legal mechanisms available to protect individuals with declining capacity, and policy recommendations for improving legal protections in light of inefficiencies related to legal competency determinations.

The Mexican American Struggle for Equal Educational Opportunity in Mendez v. Westminster: Helping to Pave the Way for Brown v. Board of Education

Few people in the United States are aware of the central role that Mexican Americans have played in some of the most important legal struggles regarding school desegregation. The most significant such case is Mendez v. Westminster (1946), a class-action lawsuit filed on behalf of more than 5,000 Mexican American students in Orange County, California. The Mendez case became the first successful constitutional challenge to segregation. In fact, in Mendez the U.S. District Court judge ruled that the Mexican American students’ rights were being violated under the equal protection clause of the Fourteenth Amendment. The decision was affirmed by the Ninth Circuit Court of Appeals. Although the Mendez case was never appealed to the U.S. Supreme Court, a number of legal scholars at that time hailed it as a case that could have accomplished what Brown eventually did eight years later: a reversal of the High Court's 1896 ruling in Plessy v. Ferguson, which had sanctioned legal segregation for nearly 60 years. Even though Mendez did not bring about the reversal of Plessy, it did lay some of the important groundwork for the landmark case that would. In this article, I use the lens of critical race theory to examine how Mendez and Brown were strongly connected and how Mendez served as a harbinger for Brown. This linkage can be captured in at least two ways. First, Mendez was a federal, Fourteenth Amendment case grounded in a theoretical argument—known as integration theory—that stresses the harmful effects of segregation on Mexican American students. Secondly, in order to make this Fourteenth Amendment argument, the attorneys in Mendez used social science expert testimony. Such testimony, grounded in similar theoretical arguments, proved very useful in Brown. For these reasons it is important to remember the role of Mexican Americans and the Mendez case, in particular, in the broader struggle for equal educational opportunity in the United States and appreciate how they helped pave the way for Brown v. Board of Education of Topeka.

The Mexican American Struggle for Equal Educational Opportunity inMendez v. Westminster:Helping to Pave the Way forBrown v. Board of Education

Few people in the United States are aware of the central role that Mexican Americans have played in some of the most important legal struggles regarding school desegregation. The most significant such case is Mendez v. Westminster (1946), a class-action lawsuit filed on behalf of more than 5,000 Mexican American students in Orange County, California. The Mendez case became the first successful constitutional challenge to segregation. In fact, in Mendez the U.S. District Court judge ruled that the Mexican American students’ rights were being violated under the equal protection clause of the Fourteenth Amendment. The decision was affirmed by the Ninth Circuit Court of Appeals. Although the Mendez case was never appealed to the U.S. Supreme Court, a number of legal scholars at that time hailed it as a case that could have accomplished what Brown eventually did eight years later: a reversal of the High Court's 1896 ruling in Plessy v. Ferguson, which had sanctioned legal segregation for nearly 60 years. Even though Mendez did not bring about the reversal of Plessy, it did lay some of the important groundwork for the landmark case that would. In this article, I use the lens of critical race theory to examine how Mendez and Brown were strongly connected and how Mendez served as a harbinger for Brown. This linkage can be captured in at least two ways. First, Mendez was a federal, Fourteenth Amendment case grounded in a theoretical argument—known as integration theory—that stresses the harmful effects of segregation on Mexican American students. Secondly, in order to make this Fourteenth Amendment argument, the attorneys in Mendez used social science expert testimony. Such testimony, grounded in similar theoretical arguments, proved very useful in Brown. For these reasons it is important to remember the role of Mexican Americans and the Mendez case, in particular, in the broader struggle for equal educational opportunity in the United States and appreciate how they helped pave the way for Brown v. Board of Education of Topeka.

Building Theory, Building Community

Critical race theory in the United States is at a crossroads. As a jurisprudence it seems to be a success story: the number of legal scholars affiliating themselves with the movement seems to be steadily expanding; works of critical race theory are widely cited; and the literature is slowly but steadily moving out from the legal academy to reach a wider public. On the other hand, critical race theory as a community seems in danger of fragmentation, implosion, or simple abandonment. This article argues that the ill health of critical race theory as a community stems from a lack of critical attention to the politics of community building itself. This lack of critical attention created a vacuum filled by a patriarchal conception of race as ‘family’, a conception that ignores the lessons of queer activism and theory as well as feminism. The article argues that treating community building and community maintenance with the same critical energies that critical race theorists give to their intellectual constructions is important not just to the project of saving critical race theory as a community, but to the world-wide project of how to situate ‘identity politics’ within a strong commitment to justice and human flourishing.

Precedential Cascades: A Critical Appraisal

A number of legal scholars have recently posited a herding account of legal institutions and precedent. Their arguments draw heavily from the emergent literature on information cascades -- a set of theories that attempts to explain certain pathologies of group behavior. Explicitly, cascade theory demonstrates how rational individuals, when making ostensibly individual decisions, may ignore their own private inclinations, choosing to emulate others instead. When aggregated, such behavior can lead to significant errors of judgment on behalf of the entire group, particularly if exacerbated by other cognitive effects. If legal precedent is a species of cascade, then the consequences for legal theory are profound. Indeed, not only would such a theory call into question the wisdom of celebrated watershed cases from the last century, but it would also severely compromise virtually any positive account of law that conceives of precedent as a central mechanism for judicial learning. This article critically analyzes the viability of a cascade theory of precedent, asking whether such phenomena are (a) possible, (b) plausible, and (c) empirically verifiable. Although I find that a precedential cascade is certainly possible as a matter of theory, the necessary conditions for its occurrence are either extremely rare or easily avoidable. Moreover, even the more modest task of diagnosing when precedential cascades occur may be unavailing: for the outward symptoms of a cascade are essentially indistinguishable from those of more plausible (and less troubling) behavioral hypotheses.

Stepfamilies from a Policy Perspective

A number of legal scholars in the United States (US) have expressed concerns about the uncertain status of stepfamilies in the law (Mahoney, 1994; Ramsey, 1994). Stepfamily members are typically not granted a number of rights and the accompanying responsibilities that are afforded members of biological families. In addition, their treatment under the law varies depending on the issue and, because laws affecting families in the United States are decided at the state level, geographic location. For example, Mahoney (1994) shows that the stepparent-stepchild relationship has received its greatest legal recognition in the area of Worker’s Compensation law, which addresses who receives benefits in the event of injury or death in an industrial accident. By contrast, this relationship has received relatively little legal recognition in the area of inheritance, where, in the absence of a will, stepchildren are seldom allowed to inherit from their stepparents. Thus, the status of stepfamilies in US law is somewhat ambiguous and inconsistent across issues and states. The most common generalization is that stepfamily relationships are not legally recognized. As Mahoney (1994) stated, the ‘‘stepparent-child relationship is not regarded as a legal status’’ (p. 232). Given the inconsistencies in legal status and the general lack of recognition, one might think that there would be strong pressures to invoke policy reforms. However, this does not seem to be the case, as

The Dynamics of the Legal Process

IN the last few years a number of legal scholars have studied the common law from a primarily positive point of view, asking whether or not the behavior of the relevant parties will cause the legal system to move to an outcome. Several have claimed that judges will be motivated to prefer an efficient rather than inefficient outcome,' while others have expanded this approach by arguing that the repeated litigation of inefficient legal rules will generate a tendency to replace these inefficient rules with more efficient precedents.2 Goodman3 has taken this analysis a step further by developing a model which looks more carefully at the adversary process. As a result, he is able to develop a more general set of conditions under which the common law will be efficient. Goodman, as well as Rizzo and Arnold4 and Cooter, Kornhauser, and Lane5 present interesting critiques of the earlier models, while focusing on the question of whether the legal process will tend over time to an efficient outcome. In terms of the language of economics, all of the previous authors focus

Law and Anthropology: A Case Study in Inter-Disciplinary Collaboration

“If the integration of law and anthropology is to flourish, it must be on a truly functional basis. Each must contribute to the dynamics of the other; each must add to the operative effectiveness of the other; each must nourish the other as a process. Mere static comparison, a paralleling of civilized rules of law with selected examples from sundry primitive tribes, is a sterile accomplishment.”E. Adamson Hoebel“Law and Anthropology,” 32 Va.L.Rev. 835 (1946)The partnership between Karl Llewellyn and E. Adamson Hoebel is generally regarded as the most successful example of collaboration between a lawyer and an anthropologist in the annals of Anglo-American scholarship. In many respects it is unique. There have been individuals who have been trained in both disciplines; a number of legal scholars have made extensive use of anthropological literature; jurisprudence has regularly provided ethnographers of law with some of their main concepts and in recent years there has been an extensive, if disjointed, dialogue between representatives of the two disciplines. But, Llewellyn and Hoebel apart, in respect of research there has been little alacrity on the part of lawyers and anthropologists in responding to calls for interdisciplinary co-operation. Moreover, there are sometimes signs of tension in relationships between the two groups, although for the most part such tensions are hidden behind the curtain of academic diplomacy.