Law

A sense of crisis in the administration of civil justice is present in many countries. Delays and high costs render access to the civil courts either useless or prohibitively expensive or both. The crisis takes different forms. In some jurisdictions the problems lie in high and unpredictable costs but in others there are overcrowded courts and exorbitant delays. Those interested in civil justice will be familiar with their own system but they will seldom have knowledge of other systems. The chapters in this book survey different systems of civil justice from other jurisdictions. An understanding of other systems will enrich reform discussions in each country by drawing attention to common problems, to their roots, to the solutions tried and, above all, to the consequences (for better or for worse) of reform. This book shows that we can learn from others' successes but that we may find the failures even more instructive.

Ten years after the Civil Procedure Rules changed the landscape of civil justice in England and Wales, this book presents an analysis, by some of the leading judges, academics, and practitioners involved in civil litigation in the UK, of the effectiveness of the Woolf Reforms, and the challenges facing civil procedure today. The book includes sections on the nature of the CPR as ‘a new procedural code’, case management, costs and funding, civil evidence (including the changes to expert evidence under the CPR), alternative dispute resolution, the influence of the CPR on reforms in civil law jurisdictions and the effect of EC law on English civil procedure, and empirical evidence for the effectiveness of the CPR.

This book recounts the history of the nation's first civil rights act, from its passage in 1866 through its interpretation and reenactment in developments that reach the present day. The Civil Rights Act of 1866 created civil rights as we now know them, and it exercised a deep and continuing influence over the constitutional and statutory protection of these rights. Almost all of the controversy over civil rights, from the scope of federal prohibitions against private discrimination to the remedies available to victims of civil rights violations, finds its roots in debates over the act. These issues are important in themselves, and all the more so because they exemplify the complementary roles of the legislature and the judiciary in giving meaning to the constitutional ideal of equality in public life. This book offers an appreciation of the Civil Rights Act of 1866, hitherto regarded in only selective and partial perspective, and provides a comprehensive view of the act over nearly a century and a half and a detailed account of its leading role in making civil rights a reality.

Global climate change presents one of the most difficult problems the international community has ever faced. Recent events at the 2009 Copenhagen Climate Change Conference suggest that the United Nations is not yet equipped to address the issue, and national politics reveal that, in most cases, domestic politicians have neither the political will nor the regulatory tools at their disposal to structure effective policy regimes. Against this daunting backdrop, the experiences of United States and European Union climate policy over the last two decades offers instructive lessons. The historical evolution in US and EU climate policy exemplifies how climate change has risen to the top of political agendas in divergent contexts while the spans separating US and EU climate policy to date epitomize the struggles inherent in on-going global efforts to address climate change. Neither the EU nor the US offer unqualified lessons in success, but both offer many lessons, some of which reveal successes but all of which offer opportunities to learn from social, political, and regulatory experiments. Premised on the notion that US and EU efforts to address climate change are closely linked to global climate change politics, this book explores the content and process of climate change law and policymaking in the US and the EU to reveal policy convergences and divergences, and to examine how these convergences and divergences influence the ability of the global community to structure a sustainable, effective, and equitable long-term climate strategy.

Displacement caused by climate change is an area of growing concern. With current rises in sea levels and changes to the global climate, it is an issue of fundamental importance to the future of many parts of the world. This book critically examines whether States have obligations to protect people displaced by climate change under international refugee law, international human rights law, and the international law on statelessness. Drawing on field work undertaken in Bangladesh, India, and the Pacific island States of Kiribati and Tuvalu, the book evaluates whether the phenomenon of ‘climate change-induced displacement’ is an empirically sound category for academic inquiry. It does so by examining the reasons why people move (or choose not to move); the extent to which climate change, as opposed to underlying socio-economic factors, provides a trigger for such movement; and whether traditional international responses, such as the conclusion of new treaties and the creation of new institutions, are appropriate solutions in this context. In this way, the book queries whether flight from habitat destruction should be viewed as another facet of traditional international protection or as a new challenge requiring more creative legal and policy responses.

This book examines the origins of the controversial practice of plea bargaining, a procedure that appears to reward the guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, it shows the practice to have emerged early in the American Republic. The book argues that plea bargaining arose in the 1830s as part of a process of political stabilization, and as an effort to legitimate the democratic institutions of self-rule that were crucial to Whig efforts to reconsolidate the political power of Boston's social and economic elite. At this time, local political institutions were spare and fragmentary, and the courts, the author argues, stepped forward as agents of the state to promote social order. Plea bargaining drew conflicts into the courts while maintaining elite discretion over sentencing policy. The book argues that plea bargaining should be seen as part of a larger repertoire of techniques in the Anglo-American legal tradition through which law might be used as a vehicle of rule. In this context, plea bargaining provided a unique match between the needs of the elites to maximize flexibility in criminal sanction and an emerging liberal ideology.

The EU legal order sits above a diverse mix of 27 national legal systems, with some 23 different languages. Amongst such diversity, how can the unity and coherence of the European legal system be guaranteed? Is there a common understanding between lawyers from different national backgrounds as to the meaning and application of EU law? In addressing these issues the idea of ‘common concepts’ has played a crucial role. It is argued that the unity of the system is guaranteed by the consistent application of certain core principles shaping the law. Believers in common concepts argue that there is a relatively clear, shared, and accepted framework of ideas, providing an understanding of the system that is ultimately unified in spite of all apparent divergence. Sceptics hold that there is no such framework; ‘common concepts’ turn out to be additional sources of misunderstanding, confusion and, subsequently, legal divergence. According to a third thesis, there is indeed no common conceptual core, but the necessary unity and coherence of EU law can be articulated and even reinforced through the use of divergent concepts. The contributors to this collection of essays address these issues from different disciplinary perspectives — legal sociology, linguistics, comparative law, European legal scholarship, legal theory, and practical experience. The research group focused on the application of two general themes: the protection of rights and judicial discretion. In addition to the thematic research, case studies from core policy sectors are featured, including energy regulation and social policy.

In managing the growing number of refugees arriving in the industrialised world, beginning at the end of the 1970s, States have devised increasingly restrictive policies. The objectives of these measures have been to restrict access to the territory or, at least, to asylum procedures. Thus, while international co-operation in the refugee field traditionally focused on protection and assistance, the last two decades have been characterised by the emergence of transnational policies aimed at containing refugee flows, primarily on the European continent. The convoluted refugee routes — often described as ‘secondary’ or ‘irregular’ movements of refugees between countries of origin and their final destination — have been among States' major preoccupations. To combat what they often perceive to be proof of the fraudulent or manifestly unfounded nature of asylum claims, European States have passed legislation or agreed on international instruments designed to allocate and even evade responsibility for the examination of asylum applications. Even bolder solutions have been advocated more recently, such as the outsourcing of asylum procedures through regional or offshore schemes. This book presents a critical legal analysis of the mechanisms and arrangements devised by States to tackle secondary movements of refugees, and offers innovative solutions to the protection crisis afflicting the global refugee regime. After providing a breakdown of the various legal tools used by States to combat secondary refugee movements, it argues that, while the legality of these various arrangements is in doubt, the most appropriate way to address these protection failures is to strengthen and develop adequate international accountability mechanisms.

This is the first comprehensive study of the role, powers and functions of international institutions in the area of peace and security, including both inter-state wars and crises and intra-state situations such as civil wars and serious violations of the rights of individuals and peoples. It examines collective security as one single system consisting of the United Nations and regional security institutions, the foundation of which is laid in Chapter VIII of the UN Charter. The operation of this single system involves multiple ways of inteaction between institutions, ranging from collaboration to confrontation. This study draws on the principles that determine the competence of collective security institutions and provide both the guidance for inter-institutional interaction and the criteria of legitimacy of decisions by the relevant institution. The treatment of this area, and of collective security as a whole, is premised on the consensual imperative that allows extending institutional powers only so far as states have delegated these powers to institutions. This impacts not only on which basis institutions can take action, but also the legal consequences of that action, including the issues of responsibility, judicial review, and implementation of institutional decisions by states.