Statutory Enactments Research Articles

The Crime of Aggression before the House of Lords: Chronicle of a Death Foretold

In the days preceding the invasion of Iraq by the Coalition forces, groups of individuals committed acts of civil disobedience in British military bases to hinder what they thought were unlawful preparations for an aggressive war. In R v. Jones et al., the House of Lords examined the question of whether individuals can rely upon the alleged prevention of crimes against peace to justify otherwise unlawful actions under English law. The Lords ruled that the crime of aggression is a crime under customary international law, yet not under English law. This followed from the principle that customary crimes cannot be incorporated into the English legal system without statutory enactment. As a result, the appellants could not invoke the 'Nuremberg defence' to elude responsibility incurred under domestic legislation.

An appraisal of the legal and institutional framework for combating corruption in Nigeria

PurposeTo examine the adequacy or otherwise of the existing legal and institutional mechanisms for combating corruption in Nigeria and suggest useful strategies for achieving this.Design/methodology/approachThe pre‐existing statutory enactments, the Criminal and Penal Codes governing corruption in Nigeria were examined to assess their effectiveness in dealing with the crime of corruption. In addition, the two main enactments under the present civilian administration dealing with corruption, namely, the Corrupt Practices and other Related Offences Act, 2000 and the Economic and Financial Crimes Commission Act, 2004 were also X‐rayed.FindingsIt was found that the earlier statutory enactments have proved ineffective in combating corruption in contemporary Nigeria, hence the enactment of the Corrupt Practices and other Related Offences Act, 2000 and the Economic and Financial Crimes Commission Act, 2004, with the objective of dealing with various aspects of corruption.Practical implicationsThe implication of this finding is that to be effective, legislative measures to tackle corruption must take cognizance of the multifarious nature of the menace coupled with the requisite political will to enforce the provisions of such statutory enactments.Originality/valueThe paper demonstrates the great benefit of the use of additional legislative measures in tackling corruption in Nigeria. It suggests the strengthening of these mechanisms and a re‐orientation of social values as the best strategy for dealing with the corruption virus in the country.

Unions Dues and Political Contributions – Great Britain, United States, Canada – A Comparison

This paper is concerned with court decisions and statutory enactments which had an effect on active participation of trade unions in political action and, in particular, how the Legislatures, and the courts in interpreting the relevant statutes, attempted to prevent or regularize the use of union dues, levies or funds for political purposes.

La protection sociale et judiciaire de la jeunesse, premier pas vers une réforme globale du droit de la famille

Two recent statutes adopted by the provincial Legislature will have considerable impact on the rights of children: Bill 24 replaces the Youth Protection Act and alters substantially the protection, both social and judicial, afforded to minors; Bill 65 replaces the concept of paternal authority of the Civil Code by that of parental authority. One cannot but laud the Legislator's intentions apparent in such statutory enactments but one must also note certain incoherent aspects of these recent laws. Thus, the reform of parental authority is much too limited and should have been carried out in the context of a complete revision of family law. As for the new Youth Protection Act, such a piece of legislation raises important questions concerning its implantation and application.

Geltung

The transition to a written form of law, as also the mass reproduction and dissemination of statutory enactments, are decisive preconditions for the emergence of positive law. This process of »positivisation« is here understood as a process in the course of which the conception of law and the conditions for its acceptance change. Legal norms will increasingly be accepted as binding or »in force« because a formal enactment and the command of a legislator to obey the norm stand behind them. If throughout the entire early modern period legal theory saw in the actual usage of a norm the necessary precondition for its binding force, the gradual change to a positivistic understanding of law is first realised at the level of the law of evidence. Step by step the demands for proof of the validity of a legal norm are heightened in the legal cases, in which a party relies upon a printed or at least a recorded legal norm. In this way the form of the tradition of the legal norm takes on a new meaning: Legal norms which have a written tradition or are contained in an authorised collection of enactments have a higher chance of being accepted by the court.

Double Effect in the Criminal Code 1899 (Qld): A Critical Appraisal

The Criminal Code 1899(Qld) was recently amended to allow medical practitioners, and those acting under their guidance, to administer palliative care in circumstances where they foresee that, as a consequence of administering the treatment, the patient’s death may be hastened, provided that the treatment is administered in good faith and accords with good medical practice in Australia. The amendment has been described as a statutory enactment of the ethical doctrine of Double Effect. This article examines the doctrine of Double Effect afresh in the light of concerns that the legislation may inherit some of the problems that have traditionally been considered to beset the doctrine, and may therefore have effectively sanctioned euthanasia through the back door. The paper argues that, while the second reading speech, the Explanatory Notes, and some of the secondary literature on the doctrine have failed to provide an adequate response to this concern, an adequate response can be given and that it therefore proves unfounded.

Constitutional Statutory Synthesis

Statutory evolutionists contend that statutes should be updated to reflect modern conditions. Originalists protest - asserting rule-of-law oriented soundbytes such as judges should interpret the law, make - and assume their role as guardians against subjective judicial policymaking and legal unpredictability. Evolutionists respond that laws inherently contain many ambiguities and that the myth of a judge as law-finder was dispensed with by Legal Realists such as Holmes. In the end, the two sides reach an impasse, rhetoric in tow, talking past each other more than anything else. It does have to be this way. A restrained theory of statutory evolution exists - one completely consistent with the predominant originalist premises of legitimacy in a democratic state: Called Constitutional Statutory Synthesis, it uses sufficiently accepted constitutional change as a medium for statutory evolution. The Article demonstrates that the canon of construction to avoid constitutional doubt is only the tip of the iceberg, as there are a number of situations where the Constitution is implicated but violated, and constitutional norms and principles should affect statutory interpretation even where a statute is undoubtedly constitutional. In doing so, the Article develops a framework of not unfaithful statutory interpretation in which the interpretation of a statute evolves only when, but necessarily when, there has been sufficiently accepted constitutional change after the statute's enactment. This synthetic approach sheds light on some of the most famous instances of statutory interpretation from antitrust - Alcoa and Sylvania - to civil rights - Weber and Bob Jones - and lends insight into the Rehnquist Court's use of federalism-inspired clear-statement rules.

Toward A Renewed Sociological Jurisprudence: From Roscoe Pound to Herbert Blumer and Beyond

This article, based on the Distinguished Lecture presented on August 21, 2001, at the annual meeting of the Society for the Study of Symbolic Interaction in Anaheim, California, proposes a synthesis of Herbert Blumer's macrosociological perspective on the race question with Roscoe Pound's philosophy and science of law (i.e., his so‐called sociological jurisprudence), Joseph Tussman's and Jacobus tenBroek's juridical methodology, and Philip Selznick's sociology of responsive law. The compound so produced will help to establish a foundation for a praxiological sociology of American constitutional law. The article focuses on the problem of legislative‐made “classifications” and their relations to the legitimate public purposes entailed in the enactment of statutes, laws, and decrees. Such classifications become problematic when they are said to be “underinclusive,” “over‐inclusive,” or both in seeking to effect their aims. Strategic research sites for this issue are racial and ethnic classifications that single out one or a limited cluster of racial or ethnic groups for special benefits (“affirmative action”) or restitution (“reparations”). Calling for a reinvigoration of Pound's pragmatic approach to sociological jurisprudence, I show how Blumer's analysis of the “color line”—when seen in relation to the original intent of the makers of the Thirteenth, Fourteenth, and Fifteenth post‐Civil War Amendments to the U.S. Constitution and, using Tussman's and tenBroek's showing of how such categorizations might be both methodically evaluated and applied to the challenged classifications—provides grounds for reconsidering whether the latter are instances of “reverse discrimination” and, hence, violations of the constitutional requirement of “equal protection of the law.”The science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society.—Roscoe Pound, Justice According to LawWe did not hold it necessary to wait for nature to put a canal across the Isthmus of Panama, and we shall not much longer hold it necessary to wait for nature to dig the legal canals that will give security to neglected human interests which clamor for recognition and protection.—Roscoe Pound, “Juristic Problems of National Progress”

Preventing Dilution of the Federal Trademark Dilution Act: Why the FTDA Requires Actual Economic Harm

Judicial interpretation of the Federal Trademark Dilution Act of 1995 (FTDA),' which created a federal cause of action to afford famous marks protection against later, unauthorized uses that blur, tarnish, or harm these marks' distinctiveness,' has been unnecessarily inconsistent. Courts have reached conflicting conclusions regarding a claimant's prima facie requirements under the FTDA ever since the statute's enactment, despite the FTDA's intended effect of providing predictability and uniformity to trademark dilution law.3 Not only has their analysis of what constitutes a famous trademark deserving of federal protection been incongruent,4 the judiciary has also split over what must be shown to prove actionable dilution. Specifically, the Fourth and Fifth Circuits have maintained that a claimant must show actual economic injury5 to its famous mark in order to prevail under

Forum Non Conveniens: the Caribbean and its Response to Xenophobia in American Courts

Social jargon of the day embraces the philosophy that the world is now a global village. The use of this expression surprises no one, as in almost every aspect of our lives, we are somehow connected to someone or something which transcends territorial borders. It is in fact the order of the day and the proliferation of transnational issues coming before the courts bears testimony to this. The way in which business is conducted links the local tradesman, company or conglomerate to elements not within his or its jurisdictional purview; the way in which we live our private lives through employment, travel, marriage, or place of birth of our children may make for us connections with a host of other countries not previously contemplated. It is therefore no wonder that at times, serious issues affecting a person's personal rights may fall to be determined by one or another of several courts of law of one or another of several countries which may or may not be the ideal adjudicator of justice. The question obviously raised for determination is what is ideal? Throughout the passage of time, English law, which the Commonwealth Caribbean mainly inherited, has adopted a number of tests through which this ideal adjudicator may be identified. In recent times however, there has been a tendency to reject the established approach and to strike out independently in protest of the constraints imposed by judicial precedent. In Dominica, in relation to transnational causes of action, this was recently done in the form of statutory enactment entitled the Transnational Causes of Action (Product Liability) Act. It is the aim of this paper to examine whether, and if so, to what extent the Act has abolished the doctrine of forum non conveniens as a resource in private international law through which an ideal adjudicator may be located for the determination of transnational disputes, as well as to assess the effectiveness of the Act in dealing with these types of matters.

Everyone’s Doing Congressional Historiography

The growth of administrative government in the United States since the turn of this century has meant the gradual rise of statutory enactments as a (if notthe) primary source of law. Despite the burgeoning importance of the work of legislatures, legal scholars were relatively slow to devote deserved attention to statutes and the bodies that enacted them.The familiar rhythm of the common law continued to draw the bulk of theoretical analysis.Any lingering concern about the relative neglect of statutes and legislative bodies may now be put aside. The last two decades have seen a remarkable collaboration among scholars in the disciplines of law, economics, and political science concerning how we can better understand what motivates legislatures and how we should interpret their work product.1This attention to statutes and the legislative process has caused scholars to engage in a great amount of congressional historiography, as they test their theories against legislative and political practice. Historians are noticeably absent from this interdisciplinary collaboration, a state of affairs this roundtable is designed to address. Everyone, it seems, is doing congressional historiography—everyone, that is, except the historians.

Legislative Incentives and Two-Tiered Judicial Review: A Game Theoretic Reading of Carolene Products Footnote Four

U.S. v. Carolene Products footnote four is great and modem charter for ordering the relation between judges and other agencies of government. Under the footnote, the rigor of judicial review is selected in response to whether a statute's enactment reflects or affects ordinary majoritarian processes. Often neglected, however, is that the process criterion did not originate with the Fourteenth Amendment concerns of the footnote, but originated in the early tax and commerce jurisprudence of the Supreme Court. Drawing upon the jurisprudence in these precedents, a simple game theoretic model is developed of the footnote's suspect legislative incentive structure. Doing so illuminates several controversies surrounding the footnote's doctrine and application: the majoritarian basis for the Court's countermajoritarian prerogative and the type of discrete and insular minority groups that qualify for heightened judicial review. It also corrects the common misconception that the footnote excludes economic regulations from heightened judicial scrutiny.

Tools and Resources: Lower Extremity Impairment Checklist and Worksheet

Abstract The North Dakota Supreme Court has ruled that the “most current” and “most recent” edition of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) is the Third Edition (McCabe v North Dakota Workers’ Compensation Bureau). This counterintuitive holding involved a claimant who injured his back and neck at work and who reached maximum medical improvement in 1994. At issue was which edition of the AMA Guides to use to measure the claimant's permanent partial impairment (PPI). Specifically, the question was whether to evaluate the impairment according to the Range of Motion (ROM) Model from the Third Edition or the Diagnosis-related estimates (DRE) of the Fourth Edition. The relevant statutory language required use of the “most current” or “most recent” edition of the AMA Guides. The court held that the language must be construed to mean the most recent edition at the time of the statute's enactment. At the time of enactment, the AMA Guides, Fourth Edition, (with the DRE Model) had not been published. The court held that the claimant's impairment must be evaluated using the ROM Model. The interpretation of the North Dakota Supreme Court is not consistent with the philosophy of the AMA Guides, and legal interpretations regarding use of the AMA Guides are not always consistent with specific directions therein.

The Justice of the Greeks (review)

Reviewed by: The Justice of the Greeks Robert W. Wallace Sealey, Raphael. The Justice of the Greeks. Ann Arbor: University of Michigan Press, 1994. Pp. xiii 1 164. Over the last fifteen years research in Greek law has expanded rapidly, especially in Anglo-American countries. In consequence, significant differences of approach to this material have become apparent. The older, juristic approach is largely continental, where the living tradition of Roman law as the basis for current legal codes has meant that most Greek legal historians first studied Roman law, were trained as lawyers, and now teach in law schools. By contrast, most Anglo-Americans now working in this field were trained as ancient historians or philologists. They know little of Roman or modern law and mostly care less about it, arguing that most Greek legislation was unsystematic, arising piecemeal in response to interpersonal or community problems. For these scholars, a juristic approach to Greek law is sometimes even misleading: sociology and anthropology offer more appropriate methodologies. Sealey places his new book squarely in the continental tradition. He expressly rejects sociology (22), and modestly announces his intention to publicize the work of Wolff, Ruschenbusch, and Thür (ix–x). However, S. also was trained as a historian and philologist. How far does his book add to the juristic tradition of Greek legal scholarship? And how far does it make its own, historical contribution? [End Page 130] “This book is an inquiry into the rule of law,” its first sentence declares. It is not always that, but rather, a wide-ranging exposition of various questions about Greek law, which ruled and in some areas (S. indicates) failed to rule. S.’s book offers a number of lucid, courteous discussions, presented sometimes in a paratactic way, but conveying overall a sense of chronological development. Its general intention is “to discover the historical contribution of Greek thought to the field of law, justice, and right . . . [and] to discover principles, concepts, and aims that underlay the development of law in Greek cities” (133). With a scope so large, the book is often too brief. With rapid strokes S. adopts positions typically without evaluating much of the scholarship regarding them. Some arguments S. has made before. He repeats them despite previous criticisms. S. includes several lengthy discussions of Roman and Near Eastern law, typically to illustrate differences with Greece. This may contrast with legal anthropologists, who illuminate Greek practices through comparative materials. Although S. adopts various hypotheses of his continental colleagues, it is not his purpose to add much to their arguments. More significantly, despite S.’s intention to find “the historical contribution of Greek thought to the field of law, justice, and right,” it remains unclear that the Greeks made such a contribution. As S. himself says, the Greeks “did not recognize an underlying body of thought expressed” in particular laws (59). By contrast, in smaller instances and in his general conclusions regarding the “principles, concepts, and aims” underlying Greek law, the positive results of S.’s work are historical, and even sociological. Chapter 1, “Scope of the Inquiry,” is perhaps most problematic. S. begins with the role of law in society, the meaning of the term “law,” and philosophical discussions of the nature of law especially in Savigny (7–9). Having set out objections to Savigny’s thesis that every nation’s civil law springs from, and remains true to, its distinctive character or historical circumstances (9–12), S. concludes, somewhat abruptly, that Savigny’s great merit was his recognition that “law can develop without statutory enactment and that the development stays within limits or follows lines that can be discerned” (12). It is so far unclear how Savigny’s thesis pertains to ancient Greece. It remains so during S.’s three illustrations of the development of Greek law beyond statutory enactment, in atimia, testimentary practice, and the marriage of heiresses (12–19). Indeed, it turns out, S. largely rejects Savigny’s primary insight (21–22). For S., laws are shaped not by national character but by “an underlying body of thought” characteristic of the society. Accordingly, S. concludes, the legal historian must fit specific legal provisions into their wider legal and intellectual context...

Megan's Law: Constitutionality and policy

In July, 1994, a seven-year-old girl, Megan Kanka, was sexually molested, then killed, by Jesse Timmendequas, a twice-convicted sex offender who lived with two other sex offenders in a house across from her in Hamilton Township, a small middle-class New Jersey town. Timmendequas had been released earlier from Avenel, New Jersey's prison/treatment center for compulsive, repetitive sex offenders. Timmendequas had constantly refused treatment during his stay at Avenel. Though he had been sentenced to seven and a half years, he maxed after only six because he had earned good credits. The killing of Megan, to which Timmendequas confessed, generated enormous public outrage. More than a thousand people turned out for a vigil in a local park. Over 1500 petitions to the governor were signed insisting that legislation be enacted that would prevent a reccurence of such a tragedy. Less than two months later, in October, the New Jersey legislature, having bypassed hearings on prospective bills because of the alleged emergency created by death, responded to public pressure by enacting a hastily prepared package of nine sex offender statutes that have come to be known collectively as Megan's Law.(1) This article will focus mainly on the constitutionality of the most significant three of these new statutes but will also discuss their soundness as policy. The three statutes discussed here deal with the registration of released sex offenders, community notification of their presence in the community, and the civil commitment of extremely dangerous mentally ill sex offenders.(2) The primary attack on these measures at this time is litigative. The constitutionality of the registration and notification statutes was challenged in federal court almost immediately after their passage. In February, 1995, a federal district court in Newark, in Artway v. Attorney General of New Jersey,(3) which concerned a sex offender who had served seventeen years in prison, struck down portions of the notification statute that applied to sex offenders whose original offences predated the statute's enactment. But the district court did uphold the registration statute as constitutional. The Artway decision was appealed to the Third Circuit Court of Appeals which, on April 12, 1996, affirmed the constitutionality of New Jersey's registration statute. The Court of Appeals then reversed the district court's ruling on the notification statute, holding that the issue of notification was not yet ripe for judicial review since Artway had not yet been evaluated or assigned to a notification category, and that there had been no hearing at which adequate facts concerning notification had been presented. Judge Becker, speaking for the Third Circuit court, characterized the district court's decision by saying that it had allowed no discovery, heard no testimony, and made no finding of fact. Instead it ruled as a matter of law on all the complex issues before it. He concluded that . .we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute `punishment'--the central question under all three clauses--without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated). He further added that Artway's claim that notification constitutes punishment is quite persuasive but simply not ready for judicial review.(4) For the brief time being, then, there is no viable federal determination in New Jersey striking down the notification statute. But there is currently federal litigation pending which raises the question anew. While the registration question now seems fairly well settled, the Third Circuit decision in Artway represents only a delay toward reaching finality of judgment on the community notification issue. The two statutes were also challenged in the state courts. …

Construction européenne et relations industrielles

European project is a challenge for professionnal organizations and for industrial relations systems which have been adopted in the past. The paper explores the ways of an eventual transformation under three points of view. First, are described the actors who are qualified to operate at three levels : the European Community itself, industrial branches and also European firms. Second, some procedures which may be employed are analysed : statutory enactments, collective agreements and social dialogue. Third, the paper takes account of the new rules of the game which may be come to light, either to control disturbing effects and to imagine more adequate mechanisms, or to harmonize practices and to obtain their compatibility or, eventually, to elaborate new labor rules inspired by a real societal project.

Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State

Today, most national public policy is made by administrative agency regulations and not by direct statutory enactment. The lawmaking role of agencies has complicated American constitutional law generally, presenting issues not anticipated by the framers of the Constitution. Two decisions of the Supreme Court in the 1980s significantly changed prior constitutional assumptions about the role of Congress and the judiciary in monitoring the lawmaking functions of agencies. In Immigration & Naturalization Service v. Chadha [462 U.S. 919 (1983)] and subsequent summary decisions, the Court effectively invalidated all statutory provisions that allow either house of Congress, or both acting in concert, to agency action without presentment to the president. The Court conceded that the legislative veto might serve useful purposes but argued that the original intent of the framers of the Constitution left it no other choice than to strike it down. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. [467 U.S. 837 (1984)], the Court held that agency interpretations of statutes they are charged with enforcing are binding on courts, unless inconsistent with the plain meaning of the statutory text. The Court invoked the original intent of the framers to argue that judges should defer to agency interpretations (unless clearly inconsistent with the statutory text enacted by Congress), because the popular accountability of the executive branch makes it a more appropriate forum for making policy choices than the courtroom.

The rhetoric of Eugenics: expert authority and the Mental Deficiency Bill

‘We greatly want a brief word to express the science of improving stock … especially in the case of man’, the influential English scientist Francis Galton wrote in 1883. ‘The word eugenics sufficiently expresses the idea.’ During the ensuing half century, Gallon's new word and the underlying theories that he had already begun developing from the evolutionary concepts advanced by his cousin, Charles Darwin, spread throughout the Western world. With Galton's blessing these theories spawned a political movement advocating the enactment of statutes designed to encourage the propagation of eugenically fit human beings and discourage the propagation of eugenically unfit ones. Yet, while such laws were commonly adopted throughout North America and Northern Europe, the British homeland of Galton and Darwin proved reluctant to act by statutory fiat in the field of eugenics.

The Interpretation of International Maritime Conventions in United States Law

In the United States, the interpretation of international maritime conventions is carried out within the general context of U.S. constitutional law. The Constitution's Article II(2) provides that the President of the United States is granted the Power, by and with the Advice and Consent of the Senate, make Treaties, provided two-thirds of the Senators present concur. Article III(2) extends the judicial power of the United States to all Cases, in Law and Equity, arising under this the Laws of the United States, and Treaties made, or which shall be made, under their Authority. Article VI(2) instructs that the Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State the Contrary notwithstanding. Article I(10) limits the States: No State shall enter into any Treaty, Alliance, or Confederation.' In U.S. constitutional law, treaties need not be implemented by statutory enactment if the treaty or provision in question is deemed be self-executing. This rule was first set forth in 1829 in Foster & Elam v. Neilson by Chief Justice John Marshall:

Access and Privacy for Ontario Municipalities: Will it Help or Hinder Research?

"Public records are public property, owned by the people in the same sense that the citizens own their courthouse or town hall, sidewalks and streets, funds in the treasury. They are held in trust for the citizens by custodians — usually the heads of agencies in which the records have been accumulated... As public property, public records may no more be altered, defaced, mutilated or removed from custody than public funds may be embezzled or misappropriated. Indeed, because records document the conduct of the public's business — including the protection of rights, privileges and property of individual citizens — they constitute a species of public property of a higher value than buildings, equipment and even money, all of which usually can be replaced by the simple resort to additional taxes. It is the unique value and irreplaceable nature of records that has given them a sanctity uncharacteristic of other kinds of property and that accounts for the emergence of com mon-law principles and statutory enactments governing their protection."