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Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

Rights in the Australian Federation

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Australian Constitution, bill of rights, constitutional rights, democracy, federalism, freedom of interstate trade, freedom of religion, implied rights, judicial independence, property rights, right to trial by jury, separation of powers
Authors Nicholas Aroney and James Stellios
AbstractAuthor's information

    The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.


Nicholas Aroney
Nicholas Aroney is Professor of Constitutional Law, The University of Queensland. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. Thanks are also due to Terry East for his very capable research assistance. James Stellios is Professor, Law School, Australian National University. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

James Stellios
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open The Application of European Constitutional Values in EU Member States

The Case of the Fundamental Law of Hungary

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Article 2 and 7 TEU, democratic backsliding, Hungary, infringement procedure, rule-of-law mechanism
Authors Gábor Halmai
AbstractAuthor's information

    This article deals with the backsliding of liberal democracy in Hungary, after 2010, and also with the ways in which the European Union (EU) has coped with the deviations from the shared values of rule of law and democracy in one of its Member States. The article argues that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with the Hungarian government, the EU institutions so far have proven incapable of enforcing compliance, which has considerably undermined not only the legitimacy of the Commission but also that of the entire rule-of-law oversight.


Gábor Halmai
Professor and Chair of Comparative Constitutional Law, European University Institute, Department of Law, Florence. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Incorporation Doctrine’s Federalism Costs

A Cautionary Note for the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Bill of Rights, Charter of Fundamental Rights, diversity of human flourishing, federalism, incorporation, individual liberty, jurisdictional competition
Authors Lee J. Strang
AbstractAuthor's information

    In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter.


Lee J. Strang
John W. Stoepler Professor of Law and Values, University of Toledo College of Law. Thank you to Csongor Istvan Nagy for organizing and hosting this conference, and to the conference participants for their thoughtful comments and criticisms. Thank you as well to Michael Stahl for his valuable research assistance. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

Carel Smith
Carel Smith is philosopher of law and associate professor at Leiden Law School.

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.

    This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.
Case Reports

2018/9 Uber’s work status appeal rejected (UK)

Journal European Employment Law Cases, Issue 1 2018
Keywords Miscellaneous, Employment status
Authors Laetitia Cooke
AbstractAuthor's information

    Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.


Laetitia Cooke
Laetitia Cooke is an Associate at Lewis Silkin LLP.
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei

Antonio Buonatesta
Antonio Buonatesta is the Director of Médiante Asbl, Namur (Belgium).

Philippe Gailly
Philippe Gailly is Criminologist and Mediator, Arpège-Ouverture Médiation Asbl, Liège (Belgium).

Denis Van Doosselaere
Denis Van Doosselaere is the Director of Arpège-Ouverture Médiation Asbl, Liège (Belgium). Contact author: dvandoosselaere@gmail.com.

Catherine Rossi
Catherine Rossi is Professor, École de travail social et de criminologie, Laval University, Québec.

Serge Charbonneau
Serge Charbonneau is Director, Regroupement des organismes de justice alternative du Québec. Contact author: scharbonneau@rojaq.qc.ca.
Article

South African female offenders’ experiences of the Sycamore Tree Project with strength-based activities

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Female offenders, positive psychology, Prison Fellowship, strength-based activities, Sycamore Tree Project (STP)
Authors Mariëtte Emmerentia Fourie and Vicki Koen
AbstractAuthor's information

    The aim of this study is to explore South African female offenders’ experiences of the Sycamore Tree Project (STP) with strength-based activities. A qualitative, explorative-descriptive research design was applied. The sample included nineteen female offenders who were purposively sampled. Data were collected through the world café method and thematically analysed. The results identify four main themes, namely experiences of STP with strength-based activities, new discoveries as a result of participation in the STP with strength-based activities, experiences of strength-based activities and recommendations regarding the STP with strength-based activities.


Mariëtte Emmerentia Fourie
Mariëtte Emmerentia Fourie is a Master in Positive Psychology, Africa Unit for Transdisciplinary Health Research, Faculty of Health Sciences, North-West University (Potchefstroom Campus), Potchefstroom, South Africa.

Vicki Koen
Vicki Koen is a Research Psychologist, Department of Psychology, North-West University (Mafikeng Campus), Mafikeng, South Africa. Contact author: Vicki Koen at 12976121@nwu.ac.za.
Article

Adult reparation panels and offender-centric meso-communities: an answer to the conundrum

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Adult reparation panels, meso-community of care, concern and accountability, reintegration, restoration, surrogate familial bonds
Authors Darren J. McStravick
AbstractAuthor's information

    The community paradigm is continually cited as an important influence within restorative practices. However, this influence has not been sufficiently clarified. This article seeks to answer this conundrum by identifying a novel meso-community of care, concern and accountability that has been emerging as part of adult reparation panel procedures. This offender-centric community consists of traditionally secondary justice stakeholders led by criminal justice representative professionals including police officers and probation officials. It also includes lay volunteers and reparation programme officials dependent on state funding and cooperation. Professionalised panellists have led the development of surrogate familial bonds with offenders through the incorporation of a welfare ethos as part of case discourses. This care and concern approach has increased opportunities within case agreements for successful reintegration and rehabilitation. However, this article also acknowledges some concerns within panel processes in that, by attempting to increase accountability for harms caused, there is a danger that panellists are blurring the restorative lines between rehabilitation and genuine restoration and reparation.


Darren J. McStravick
Darren J. McStravick is a lecturer in Law, School of Law, Kingston University, Kingston upon Thames, UK. Contact author: D.mcstravick@kingston.ac.uk.
Conversations on restorative justice

A talk with John Blad

Journal The International Journal of Restorative Justice, Issue 1 2018
Authors Albert Dzur
Author's information

Albert Dzur
Albert Dzur is Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Annual lecture

Access_open Restorative justice and criminal justice: limits and possibilities for Brazil and Latin America

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Justice restorative, criminal justice, punishment, Brazil, Latin America
Authors Vera Regina Pereira de Andrade
AbstractAuthor's information

    This article is based on the 2017 RJIJ annual lecture and seeks to examine the development of the restorative justice movement within the judiciary in Brazil (‘judicial restorative justice’) in the last decade or so (2005-2017). The focus is on its relation to penal justice, listing the main possibilities and challenges in the Latin American context. The main question I wish to address is how does restorative justice, being led by the judiciary in Brazil, look like? When, where, how and under which theoretical and methodological angles is it being developed? What are the human and material resources being used? How can the relationship between restorative justice and the current Brazilian criminal justice system be understood? My hypothesis is that judicial restorative justice in Brazil is going through a process of expansion and development, framing a paradigm that is under construction and in which, despite the possibilities of challenging and transforming the current justice system, it has been nevertheless colonised by this same justice system. Therefore, restorative justice is being left to deal with low-level crimes and facing structural and conjectural limits to the concretisation of its objectives. In addition, the field in Brazil is hit by a structural lack of dialogue with other Latin American countries, which results in a mutual impoverishment of sorts, as the ‘restorativism’ currently experienced, hither and thither, is heated up by the intersection of emancipatory principles and values.


Vera Regina Pereira de Andrade
Vera Regina Pereira de Andrade is Emeritus Professor, Federal University of Santa Catarina, Florianópolis, Brazil. Contact author: vrpandrade@hotmail.com.

Robert Cario
Robert Cario is Professor Emeritus of Criminology, Université de Pau et Pays de l’Adour, France, and Founder President of the French Institute for Restorative Justice.

Benjamin Sayous
Benjamin Sayous is the Director of programmes at the French Institute for Restorative Justice, Pau, France. Contact author: direction@justicerestaurative.org.
Article

Restorative justice: a framework for examining issues of discipline in schools serving diverse populations

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Restorative justice in U.S. schools, school-based discipline, discipline gap, social justice
Authors Carrie Ann Woods and Martha Lue Stewart
AbstractAuthor's information

    The purpose of this article is to explore the literature on restorative justice (RJ) as employed in educational settings and its relationship to student achievement and to present it as a model for working with high-needs populations. While there is no single measure to determine ‘need’ amongst students, the reference in this article is to particularly vulnerable populations of students, due to racial, linguistic, academic or other differences. Information sources utilised in this study were chosen based on their relevance to the application and assessment of RJ programmes implemented with youth in school systems, with a particular focus on its relevance in the context of the United States. This article points at the history of RJ and how particularly impactful such programmes can be with this target group, given the aims and desired outcomes of this philosophy.


Carrie Ann Woods
Carrie Ann Woods is a Doctoral Student, National Urban Special Education Leadership Initiative, University of Central Florida, Orlando, USA. Contact author: carrie.woods@ucf.edu.

Martha Lue Stewart
Martha Lue Stewart is a Professor at the Department of Child, Family and Community Sciences, University of Central Florida, Orlando, USA.
Article

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

Journal European Journal of Law Reform, Issue 1 2018
Keywords devolution, informal jurisdiction, rule of law, disparate impacts, participatory problem-solving, intransitive law, legislative standardization
Authors Lorna Seitz
AbstractAuthor's information

    This article outlines an approach, derived from Ann and Robert Seidman’s Institutionalist Legislative Drafting Theory and Methodology (ILTAM), for drafting laws and developing implementing policies and programmes to realize legislative objectives and promote necessary behavioural change throughout a jurisdiction despite significant sub-jurisdictional socio-economic differences. ILTAM can serve as a powerful tool for catalysing the development of situationally appropriate programmes to initiate and sustain behavioural change in furtherance of legislative objectives. The article begins by discussing the movement towards legislative standardization, and its benefits and failings. It then introduces the concept of informal jurisdictions, and highlights modifications to ILTAM that improve the methodology’s efficacy in devising solutions that work in those jurisdictions. The article then describes the power of intransitive law as a mechanism for catalysing progress towards shared objectives in a manner that allows for localized approaches, promotes governmental responsiveness, brings innovation, and maximizes participatory governance. Lastly, it describes the importance that Ann and Robert Seidman placed on institutionalizing on-going monitoring, evaluation and learning processes; and describes how intransitive drafting techniques can focus implementation on motivating behavioural change while systematically identifying needed policy and law reforms in response to suboptimal legislative outcomes.


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.
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