Landmark Cases in Property Law

This book explores the development of basic principles of property law in leading cases. Each paper considers a case on land, personal property or intangibles, discussing what that case contributes to the dominant themes of property jurisprudence - how are property rights acquired? What is the content of property rights? What are the limits or boundaries of property? How are property rights extinguished? Individually and collectively, the papers identify a number of important themes for the doctrinal development of property institutions and their broader justification. These themes include: the obscure and incremental development of seemingly foundational principles, the role of instrumentalism in property reasoning, the influence of the law of tort on the scope of property doctrines, and the impact of Roman legal reasoning on the common law of property. One or more of these themes (and others) is revealed through careful case analysis in each paper and they are collected and critically explored in the editors' introduction. This makes for a coherent and provocative collection.

Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme.

Interpretation of Section 17 Employment Protection Act in the light of ECJ case law and under consideration of the cases pending before the Federal Labour Court

This article analyses the relevance of the ECJ ruling in Junk for German labour law.

A Firm Perspective of Anti-dumping and Countervailing Duty Cases in the United States

The role played by firms in the prosecution of anti-dumping and countervailing duty cases in the United States is understudied. This article provides greater understanding of the challenges faced by firms during the process of prosecuting anti-dumping and countervailing duty cases in the United States. This is achieved by applying a theoretical model of corporate political activity to data collected through interviews with 24 trade attorneys in Washington, D.C., practising in the area of antidumping and countervailing duty law. Anti-dumping and countervailing duty cases are found to require significant resource commitments from firms in the participating industries, as well as requiring individual firms to make a number of strategic decisions. The value of an affirmative decision and imposition of duties to the domestic and foreign industry is found to be more nuanced than previous studies have suggested. Non-duty effects of AD and CVD cases are also confirmed. Finally a clearer understanding of the role of individual firms in anti-dumping and countervailing duty cases is shown to have the potential to improve how industry influence is taken account of in future research.

The Role of Dignity in Equality Law: Lessons from Canada and South Africa

This paper examines the link made on occasion between the concept of dignity and substantive equality; it is further noted that dignity can have very different meanings in different contexts. While the notion of dignity does not often play a substantive role in the resolution of decisions, sometimes the underlying understanding of dignity does matter. However, in all cases, judges should avoid the temptation to rely on unarticulated value judgments or subjective notions of dignity. When judges make reference to dignity, they should articulate the values underpinning their conception of it.

Explicit argumentation as a supervisory tool for decision making in child protection cases involving human rights issues

This paper addresses the problems often faced by social workers and their supervisors in decision making where human rights considerations and child protection concerns collide. High profile court cases in the United Kingdom and Europe have consistently called for social workers to convey more clarity when justifying their reasons for interfering with human rights in child protection cases. The themes emerging from these case law decisions imply that social workers need to be better at giving reasons and evidence in more explicit ways to support any actions they propose which cause interference with Convention Rights. Toulmin (1958, 1985) offers a structured approach to argumentation which may have relevance to the supervision of child protection cases when social workers and managers are required to balance these human rights considerations. One of the key challenges in this balancing act is the need for decision makers to feel confident that any interventions resulting in the interference of human rights are both justified and proportionate. Toulmin’s work has already been shown to have relevance for assisting social workers navigate pathways through cases involving competing ethical and moral demands (Osmo and Landau, 2001) and more recently to human rights and decision making in child protection (Duffy et al, 2006). Toulmin’s model takes the practitioner through a series of stages where any argument or proposed recommendation (claim) is subjected to intense critical analysis involving exposition of its strengths and weaknesses. The author therefore proposes that explicit argumentation (Osmo and Landau, 2001) may help supervisors and practitioners towards safer and more confident decision making in child protection cases involving the interference of the human rights of children and parents. In addition to highlighting the broader context of human rights currently permeating child protection decision making, the paper will include case material to practically demonstrate the application of Toulmin’s model of argumentation to the supervision context. In this way the paper adopts a strong practice approach in helping to assist practitioners with the problems and dilemmas they may come up against in decision making in complex cases.

The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

This paper discusses whether or not Strasbourg organs have created principled criteria governing the use of the doctrine within the context of free speech and public morals. The first part of the paper gives an overview of the doctrine and further examines how the doctrine has evolved within the European context. Part II focuses on the rationale behind the doctrine and discusses the legitimacy of the doctrine in light of its application to various forms of free speech. Part III covers one of the most problematic applications of the doctrine in matters concerning public morality, where Contracting States have a wide margin of appreciation. This part will discuss whether or not the “lack of European consensus” criterion is an elusive concept that might create a risk of abuse in the application of the doctrine. The paper concludes that while margin of appreciation today serves as a flexible instrument between the local necessities and the universal application of human rights, the imprecise and contradictory points might lead to its potential abuse that might endanger its future existence.

Sticks, Stones and Words: Emotional Harm and the English Criminal Law

This article discusses the rule that criminal liability does not normally attach for the causing of emotional harm or mental distress in the absence of proof of a 'recognised psychiatric injury'. It considers what is involved in the diagnosis of psychiatric injury, and to what extent the difference between such injury and 'ordinary' mental distress is one of degree rather than one of kind. It reviews the situations in which the law already criminalises the infliction of emotional harm without proof of psychiatric injury, and assesses the policy arguments for drawing the distinction in the normal case. The article concludes that the law can and should adopt a more flexible approach to cases of this sort.

Enabling Free On-line Access to UK Law Reports: The Copyright Problem

The history of publishing legal decisions (law reporting) in the UK has been that of a privatised system since its inception, and that history has encompassed several hundred years. The privatised nature of this has meant that the product (the law report) has been, except in limited cases, viewed as the property of the publisher, rather than the property of the court or public. BAILII is an open access legal database that came about in part because of the copyrighted, privatised nature of this legal information. In this paper, we will outline the problem of access to pre-2000 judgments in the UK and consider whether there are legal or other remedies which might enable BAILII to both develop a richer historic database and also to work in harmony, rather than in competition, with legal publishers. We argue that public access to case law is an essential requirement in a democratic common law system, and that BAILII should be seen as a potential step towards a National Law Library.

The Victim Test under the Human Rights Act 1998 and its Implications for Domestic Violence Cases

The European Court of Human Rights has now clearly established that domestic violence constitutes a human rights issue. However, there are a number of difficulties involved in using the Human Rights Act 1998 in relation to violence against women in the home. One of these obstacles is the restrictive test of standing found in the Act, which is problematic as regards an ‘unseen crime’ such as domestic violence. This article examines this test of standing and the difficulties it poses in the context of violence against women in the home. It then considers alternative models for the standing requirement and assesses whether a change in the test of standing would produce beneficial results as regards the issue of domestic violence.

Germany v Italy:The Triumph of Sovereign Immunity over Human Rights Law

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.