Law Commons^™

Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel

David C. Brown

Imprisonment is a growth industry in Australia. Over the past 30-40 years all state and territory jurisdictions have registered massive rises in both the absolute numbers of those imprisoned and the per capita use of imprisonment as a tool of punishment and control. Yet over this period there has been surprisingly little criminological attention to the national picture of imprisonment in Australia and to understanding jurisdictional variation, change and continuity in broader theoretical terms. This article reports initial findings from the Australian Prisons Project, a multi-investigator Australian Research Council funded project intended to trace penal developments in Australia since about …

Financial Assistance - The Case For Re-Examining Section 76 Of The Companies Act, Wai Yee Wan

Wai Yee WAN

Section 76 of the Companies Act prohibits the giving by a company of financial assistance for the purpose of or in connection with the acquisition of its own shares. This penal provision is highly controversial in view of its breadth and uncertainty in its application. In the recent criminal prosecution of PP v Lew Syn Pau and in the recent civil litigation of Wu Yang Construction Group v Zhejiang Jinyi Group Co, Ltd, the Singapore High Court had to determine the scope of the prohibition under s 76 of the Companies Act. This case comment examines the two Singapore decisions …

Commentary On Recommendations On Prohibition Of Financial Assistance: A Response To Consultation Paper: Report Of The Steering Committee For Review Of The Companies Act, Wai Yee Wan

Wai Yee WAN

This is a commentary on the recommendations on prohibition of financial assistance in the Report of the Steering Committee for Review of the Companies Act

Quem Defende A Constituição?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

A fase actual de ataque à Constituição parece ser a de legislar sem lhe prestar atenção, esperando que ninguém se lembre que existe, e ninguém levante questões de inconstitucionalidade. 2012 vai ser um ano em que se vão tirar as teimas sobre quem defende e quem não defende a Constituição. Feliz Ano Novo, com controlo da Constitucionalidade!

The Unimportance Of Being "Electronic" Or Popular Misconceptions About “Internet Contracting”, Eliza Mik

Eliza Mik

Existing e-commerce literature abounds with misconceptions regarding both technology and contract law. Long-standing legal concepts are adorned with “e-” or “cyber-” to appear more exciting. The traditional contractual regime issupplanted with new principles instead of being supplemented with technological considerations. It is one thing, to include technology in legal analyses, it is another to create separate, technology-specific categories. Separate categories justify the departure from traditional principles. Most, if not all, alleged “challenges” created by new communication scenarios fit within the existing legal framework, technological complexity and novelty of the Internet notwithstanding. Most “challenges” are also unrelated to the fact that …

Special Immigrant Juvenile Status: Problems With Substantive Immigration Law And Guidelines For Improvement, Maria V. Martorell

Maria V Martorell

There is a long-standing tradition in the justice system of recognizing that legal matters involving minors are inherently different, requiring laws to protect children in the courthouse and in society. The juvenile system of justice began in the United States in 1824 and was designed for the benefit of children. The purpose of creating a separate system for juveniles was “(1) to separate children from adult offenders and (2) to rehabilitate” juveniles. Most juvenile courts have exclusive jurisdiction over the majority of cases involving minors, and these are transferred to the adult court system only when it “serve[s] the best …

Research And Resources: Where To Begin Researching Civil Rights Law

Rebecca A. Mattson

No abstract provided.

Banning Churches From Meeting In New York Public Schools, Neil J. Foster

Neil J Foster

Discusses and critiques a recent US court decision upholding the banning of a church meeting in a public school on the weekend.

A Constituição Laboral Em Alto Risco, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

A Constituição labora está a ser vítima de graves ataques. Já quase se pode ler o texto da nossa Constituição como se fora uma utopia de um país distante. Arriscamo-nos, por este caminho, a ter uma constituição nominal ou semântica, não normativa, não efectiva. E contudo ainda existe o texto, ainda existe o princípio da proibição do retrocesso, ainda existe um Tribunal Constitucional.

Don't Tax The Rich, Tax Inequality, Aaron S. Edlin

Aaron Edlin

A Brandeis tax can stop inequality in its tracks.

Ignatian Spirituality And The Life Of The Lawyer: Finding God In All Things – Even In The Ordinary Practice Of The Law, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

All of us know lawyers who seem unhappy, unfree, directionless, and dis-integrated, who seem to be following paths they haven’t consciously chosen, leading them to places they would never have chosen to go, seemingly locked in lives they haven’t freely chosen to live. Some would characterize this reality as a manifestation of a spiritual crisis, a crisis of meaning and value in the law, rooted in the difficulty lawyers have integrating the practice of the law into the whole of their lives. This article argues that the spirituality flowing from the life of Ignatius of Loyola, the founder of the …

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of developing doctrine …

Law School As A Culture Of Conversation: Re-Imagining Legal Education As A Process Of Conversion To The Demands Of Authentic Conversation, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

Conventional wisdom holds that the principal task of a law school is to teach law students to "think like lawyers." However, law school can be experienced as a form of narrow training that diminishes something central to the human person: the fundamental drive to question and to follow those questions wherever they lead. This Article will explore the ways in which the thought of two scholars, Bernard Lonergan and James Boyd White, can usefully inform our understanding of this crisis of meaning and value within the context of a conception of law as a social and cultural activity. First, this …

John Paul Ii, John Courtney Murray, And The Relationship Between Civil Law And Moral Law: A Constructive Proposal For Contemporary American Pluralism, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

In his 1995 encyclical, Evangelium Vitae, Pope John Paul II outlined a jurisprudential vision which includes the “doctrine on the necessary conformity of civil law with moral law.” The Pope’s jurisprudential reflections prompt the question I consider in this Article: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic society like that of the United States today? My objective is to articulate a vision of the relationship between moral values and civil law that is grounded in the tradition of Catholic social thought and that can allow the …

Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to …

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

Gregory A. Kalscheur, S.J.

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

Conscience And Citizenship: The Primacy Of Conscience For Catholics In Public Life, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

In their statement, Forming Consciences for Faithful Citizenship, the U.S. Catholic bishops acknowledge that “the responsibility to make choices in political life rests with each individual in the light of a properly formed conscience.” This essay argues that, in light of this responsibility, it is important to affirm a commitment to the primacy of conscience as that idea has been understood in the Catholic tradition. If we really expect voters and public officials to make responsible, conscientious decisions about matters of public policy, we should not speak in ways that suggest that the proper formation of conscience is simply a …

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational basis …

The Holocaust And Mass Atrocity: The Continuing Challenge For Decision, Winston Nagan, Aitza Haddad

Winston P Nagan

This article begins with an appraisal of a report published by the United States Institute for Peace and authored by the former Secretary of State, Albright, and former Secretary of Defense, Cohen. This Report generated a great deal of interest and reaction from scholars across the globe. The article will introduce the broad outline of this Report and provide a summary of the principal criticisms that it has generated. This sets the stage for approaching the problem that is sensitive to the issue that this phenomenon be explore with a view to developing usable insights and data as well as …

Inconstitucionalidade Da Abolição De Feriados, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Feriados celebrando datas essenciais do Estado ou da República são símbolos nacionais. Como tais, são matéria constitucional (materialmente constitucional) ainda que não constante do texto da Constituição. Abolir feriados destes, para mais sem sequer prévia discussão nacional, além de denotar um desprezo profundo pela cultura e pela História... é inconstitucional.

Command Responsibility In The International Tribunals: Is There A Hierarchy?, Adria De Landri

Adria De Landri

No abstract provided.

De Keynes Aos Desafios Futuros, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Keynes anda esquecido pelos economistas da moda. É pena, porque o resultado, catastrófico, das políticas neoliberais está à vista. Entretanto, reflecte-se sobre como a velha esquerda moderada se deixou contaminar pelo vírus do neoliberalismo (e a velha direita social também, e mais ainda), havendo porém novas teorias e propostas no horizonte, como o capitalismo humanista, no Brasil e em Espanha, e a "next left", no Reino Unido. Será possível uma confluência coerente e frutuosa dos que não querem, de uns e de outros lados, um mundo só baseado na ganância e na aniquilação do mais fraco? É o grande desafio …

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive airspace …

Un Hombre, Un Voto, Germán M. Teruel Lozano

Germán M. Teruel Lozano

No abstract provided.

The Pension Factor: Assessing The Role Of Defined Benefit Plans In Reducing Elder Hardships, Frank Porell, Beth Almeida

Frank Porell

Traditional defined benefit (DB) pension plans have long been an important source of income for elder households seeking to maintain a middle-class standard of living after a lifetime of work. Under traditional DB plans, retirees receive a guaranteed, regular stream of income after retirement that continues until death. The monthly pension benefit is typically based on years of service to the employer, age, and salary history. Retirees also have the option to elect a joint-and-survivor benefit, to ensure that pension payments continue to a surviving spouse. DB plan participation rates among private sector American workers have sharply decreased from about …

Fun With Numbers: Disclosing Risk To Individual Investors, Christian A. Weller

Christian Weller

This paper discusses the need for better information on investment risks. The information should be relevant, concise, and accessible to individual investors. More and better information on factors that are likely to influence an investment’s performance and investors’ decisions should eventually lead to better investment decisions – more savings and higher retirement incomes. This paper presents a number of ways to disclose risk to individual investors. There are three numerical and three visual representations to risk. The discussion centers on the pros and cons of each risk representation. All risk descriptions show relevant information, are concise, and more or less …

States To The Rescue: Policy Options For State Government To Promote Private Sector Retirement Savings, Christian A. Weller, Amy Helburn

Christian Weller

We provide an overview of retirement plan proposals that could be implemented at the state level. All aim to increase participation in retirement savings, mainly by lowering the cost of doing so and possibly by offering some employer or government matches to employee contributions. The proposals vary widely on how much risk employees are exposed to. Some proposals leave most of the risks of saving for retirement – investment, market, and longevity risk – with the employee, while others try to eliminate them all. The tools of risk management range from well-diversified index funds and default investments to required offers …

The Supreme Court 1997- 1998 Labor And Employment Law Term (Part Ii): The Nlra, Takings Clause, And Ada Cases, Marley S. Weiss

Marley S. Weiss

No abstract provided.

Two Steps Forward, One Step Back- Or Vice Versa: Labor Rights Under Free Trade Agreements From Nafta, Through Jordan, Via Chile, To Latin America, And Beyond, Marley S. Weiss

Marley S. Weiss

No abstract provided.

Gerrymandering And The High Court, Alan E. Garfield

Alan E Garfield

No abstract provided.