The overlapping of legal concepts:a legal realist approach to the classification of private law

The thesis presented an overlapping analysis of private law institutions, in response to the arguments that law must be separated into discrete categories. The basis of this overlapping approach was the realist perspective, which emphasises the role of facts and outcomes as the starting point for legal analysis as opposed to legal principle or doctrine.

It is Time for Something New: A 21st Century Joint-Employer Doctrine for 21st Century Franchising

[Excerpt] The joint-employer doctrine is perhaps the hottest issue in labor and employment law for 2015 and the foreseeable future. In the September 2015 Browning-Ferris ("BFI”) decision, the National Labor Relations Board (the "NLRB" or the "Board"), the administrative agency that enforces the National Labor Relations Act (the "NLRA" or the "Act"), issued what is expected to be the first of two decisions, expanding the joint-employer doctrine. In the BFI decision, the so-called putative employer (e.g., the lessor of employees or a franchisor) is now considered the employer of individuals who had in the past been considered employees of the supplier employer. Like in Browning-Ferris, a number of McDonald's employees and the Service Employees International Union ("SEIU") are arguing that the world's largest franchisor is the joint employer of all its franchisees' employees. At first blush, one might believe that this is another esoteric labor and employment law issue that only lawyers and scholars care about. However, depending on how the Board and courts rule on this issue, the joint-employer doctrine could fundamentally change business in the United States by destroying the franchise model.

Institutional Persistence and Change in England's Common Law: 1700-1865

Institutions are widely regarded as important, even ultimate drivers of economic growth and performance. A recent mainstream of institutional economics has concentrated on the effect of persisting, often imprecisely measured institutions and on cataclysmic events as agents of noteworthy institutional change. As a consequence, institutional change without large-scale shocks has received little attention. In this dissertation I apply a complementary, quantitative-descriptive approach that relies on measures of actually enforced institutions to study institutional persistence and change over a long time period that is undisturbed by the typically studied cataclysmic events. By placing institutional change into the center of attention one can recognize different speeds of institutional innovation and the continuous coexistence of institutional persistence and change. Specifically, I combine text mining procedures, network analysis techniques and statistical approaches to study persistence and change in England’s common law over the Industrial Revolution (1700-1865). Based on the doctrine of precedent - a peculiarity of common law systems - I construct and analyze the apparently first citation network that reflects lawmaking in England. Most strikingly, I find large-scale change in the making of English common law around the turn of the 19th century - a period free from the typically studied cataclysmic events. Within a few decades a legal innovation process with low depreciation rates (1 to 2 percent) and strong past-persistence transitioned to a present-focused innovation process with significantly higher depreciation rates (4 to 6 percent) and weak past-persistence. Comparison with U.S. Supreme Court data reveals a similar U.S. transition towards the end of the 19th century. The English and U.S. transitions appear to have unfolded in a very specific manner: a new body of law arose during the transitions and developed in a self-referential manner while the existing body of law lost influence, but remained prominent. Additional findings suggest that Parliament doubled its influence on the making of case law within the first decades after the Glorious Revolution and that England’s legal rules manifested a high degree of long-term persistence. The latter allows for the possibility that the often-noted persistence of institutional outcomes derives from the actual persistence of institutions.

Transmission Easement and Adverse Possession of Transmission Easement in the Polish Law

The object of analysis in the text are the issues concerned with the transmission easement and the adverse possession thereof on the grounds of the Polish law. The text features: (1) a historical outline of the solutions concerned with easements in the Polish law following 1945, (2) the institution of transmission easement introduced in 2008 and the solutions concerned with the claims for the establishment thereof at court, (3) the institution of adverse possession of transmission easement pursuant to civil law regulations, judicature and the legal doctrine. On account of the need to elaborate the wide-ranging legal issues concerned with the transmission easement in this text, the analysis embraces two research questions giving rise to the following conclusions: (1) What function is performed by the institution of transmission easement in the system of civil-law relations in the Polish law? The legislator in the articles introducing a transmission easement ossified the solutions functioning in the judicature of the Polish courts before 2008. The legal interpretation took a turn for clarification, that is for the establishment of a norm in the situation where its comprehension was dubious. It is noteworthy that in the period prior to 2008, the law provided for easement appurtenant, and on account of the usual course of judicial decisions also for easement appurtenant with the content corresponding to transmission easement. In 2008 these two “legal existences” were supplemented with a transmission easement, which nevertheless failed to resolve all the legal problems; nay, this gave rise to even more problems, e.g. the one of non-establishment of interpolar norms which would address the issues arising in connection with the use of various easement institutions in legal transactions. While amending the civil law, the legislator aimed to bring order to legal transactions by streamlining the unregulated actual state of easement in relation to transmission infrastructure, but also in relation to the situations where an easement was yet to be established and a facility yet to be constructed. Thus, such action is intended to regulate the disorderly legislation in force as well as to safeguard investment processes. This is of particular significance, for example, for energy companies which are burdened with statutory public-law obligations as regards securing energy supplies and providing for the development of energy infrastructure. Hence, the de facto introduced civil-law solutions indirectly served to realise the principles of the doctrine of easement in the public interest. (2) What legal problems in the civil-law relations does the application of the institution of transmission easement by adverse possession entail? On account of the functioning of various institutions of easement, that is (1) an easement appurtenant, (2) an easement appurtenant with the content corresponding to a transmission easement, and as of 2008 (3) a transmission easement, a problem arose as to which of the given easements companies exercised in particular periods, all the more so because before 1989 the State Treasury owned them and many of the transmission facilities were put in place by virtue of administrative decisions. The commonly held belief is that in the period of “society-oriented economy” as well as up to 2008 infrastructure companies could exercise an easement appurtenant which corresponded to the content of a transmission easement. Therefore, in such a case the running of the prescriptive period should allow for the general rules laid down for an easement appurtenant. Apart from the problem of the relation of a capacity to exercise a right to property and the free development of civil-law relations before 1989, the recognition of the running of prescriptive periods – given the functioning of the three various easements as legal institutions – became a significant legal problem. By way of illustration, the recognition – against the period of exercising transmission easement – of the period required for the acquisition thereof by adverse possession, whereby before 3 August 2008 the real estate featured the legal state corresponding to the content of this right, is debatable. One cannot recognise that within that period a transmission easement was exercised, because such a right was not in existence as yet. Therefore, the institution that might be employed is the running of the period as regards the adverse possession in relation to an easement appurtenant with the content of a transmission easement. Still, the problem remains as to whether the period of the exercise of the easement appurtenant with the content corresponding to a transmission easement can be recognised against the period of possession required for the adverse possession of a transmission easement pursuant to the regulations introduced in 2008. One might incline to the position whereby in such a case it would be right to fully recognise – against the period of exercising a transmission easement – the period of exercising an easement appurtenant corresponding thereto in respect of its content. That being so, the adverse possession of a transmission easement might ensue in such a situation on 3 August 2008 at the earliest, that is the moment the regulations governing this right come into effect. Conversely, if the prescriptive period expires before that date, the entrepreneur would acquire an easement appurtenant with the content corresponding to the transmission easement. Such an interpretation is aligned with the purpose intended by the legislator, which is to bring order to the actual state of the broadest scope with the aid of a new legal instrument. The text, while analysing the issue of a transmission easement and an adverse possession thereof as a institution of the civil law, presents only some selected problems. Hence, the analysis does not include, for example, the issues concerned with claims for remuneration (for usufruct without contractual basis or usufruct fees), or claims for compensation (redress or amends). Furthermore, the text does not conduct a more profound analysis of the relation between the provisions regulating public-law relations (e.g. acts of law introducing the institution of dispossession) and the provisions regulating civil-law relations (the easements in question).

The roots of punitive damages at common law: a longer history

This Article aims to revisit the historical development of the doctrine ofexemplary or punitive damages. Punitive damages are anomalous in that they lie in both tort and crime, a matter that has led to much criticism by modern commentators. Yet, a definitive history of punitive damages does not exist to explain this anomaly. The main contribution of this Article, then, is to begin such a history by way of a meta-narrative. It identifies and links the historically significant moments that led to punitive damages, beginning with the background period of classical Roman law, its renewed reception in Western Europe in the twelfth and thirteenth centuries that coincided with the emergence of the English common law,the English statutes of the late thirteenth century, to the court cases of Wilkes v. Wood and Huckle v. Money in the eighteenth century that heralded the "first explicit articulation" of the legal principle of punitive damages. This Article argues that this history is not linear in nature but historically contingent. This is a corrective to present scholarship, which fails to adequately connect or contextualize these historical moments, or over-simplifies this development over time.

Europe and its (tragic) statelessness fantasy: the lure of European private law, post-national governance and political order

This book presents the first comparative and multi-disciplinary investigation into what is the process to Create a supra-national entity in which it is the classic forms of law and politics. In arguing that the post-modern phase of the 'Europeanization of Europe' is the continental paradigm of the doctrine, the concept of the "depoliticization" and "dejuridification" of the world, Siliquini Cinelli explains why its statelessness is profoundly linked to the Global '(a-) spatial turn' that is legal and sociopolitical theories are undergoing. (Noun, masculine) (Auch: the European Union, the European Union, the European Union, the European Union, the European Union) A banking union. Later, Siliquini Cinelli's comparative and inter-disciplinary approach for a thorough reconsideration of this project through an inquiry into (1) the lure of European private law as a particular type of 'stateless law'; (2) the several pluralist channels of soft-networked post-national governance. And (3) the challenges of the political order within the EU's boundaries.

Engaging Students in the Implementation of Criterion Referenced Assessment in First Year Law

The Queensland University of Technology (QUT) University Academic Board approved a new QUT Assessment Policy in September 2003, which requires a criterion-referenced approach as opposed to a norm-referenced approach to assessment across the university(QUT,MOPP,2003). In 2004, the QUT Law School embarked upon a process of awareness raising about criterion-referenced assessment amongst staff and from 2004 – 2005 staggered the implementation of criterion-referenced assessment in all first year core undergraduate law units. This paper will briefly discuss the benefits and potential pitfalls of criterion referenced assessment and the context for implementing it in the first year law program, report on student’s feedback on the introduction of criterion referenced assessment and the strategies adopted in 2005 to engage students more fully in criterion referenced assessment processes to enhance their learning outcomes.

Increasing relevance and interest : teaching environmental and planning law to built environment students

A new approach was taken to delivering a challenging "stewarship of land" unit to over 350 predominantly first year built environment students stewardship. The new approach involved incorporating environmental and planning law into the syllabus, exposing students to a wide range of statutes, selecting legal cases according to a et of criteria and revisiting the material using different modes of delivery and teaching resources. To evaluate the effectiveness of the new approach, the students were surveyed to elicit their learning experience and preferences. The survey found that most students perceived learning about environmental and planning law, including legal cases, worthwhile.----- Areas identified by the surcey for improvement included the perception by some students that: environmenatl and planning law is irrelevant to their discipline and future caree; studying law is dull and sometimes daunting; and the prescribed reading could be omitted.----- To address student perceptions, it is proposed to reorder the topics commencing with local, charismatic topics, while explanding international content and cases, to enlarge and enhance the repertoire of video clips to include sites of legal cawses and development projects, and to reformat the online weekly quizzes to promote reading of primary material.----- Overall, the approach to teaching environmental and planning law to built environment students, including the criteria for selecting legal cases, described in this paper, was found to be effective.