Articoli di riviste: "Jurisprudence united states"

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Tamanaha, Brian Z. "Sociological Jurisprudence Past and Present". Law & Social Inquiry 45, n. 2 (12 luglio 2019): 493–520. http://dx.doi.org/10.1017/lsi.2019.26.

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Through the mid-twentieth century, jurisprudents considered sociological jurisprudence to be one of the most influential theories of law in the United States. By end of the century, however, it had virtually disappeared. The publication of Roger Cotterrell’s Sociological Jurisprudence: Juristic Thought and Social Inquiry (2018) provides an occasion to examine what this theory of law was about, why it disappeared, and its prospects for revival. The topics covered in this essay are the circumstances surrounding the origin of sociological jurisprudence, the tenets of sociological jurisprudence, the successes of sociological jurisprudence, its relationship with sociology of law, its relationship with legal realism, its place in contemporary jurisprudence, and finally, the need to keep jurisprudence open.

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Telesetsky, Anastasia. "Maritime Historic Rights in United States Jurisprudence". Korean Journal of International and Comparative Law 7, n. 2 (4 ottobre 2019): 189–207. http://dx.doi.org/10.1163/22134484-12340124.

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Abstract This article provides a review of the major “historic rights” cases in United States federal jurisprudence involving disputes between the United States and its constituent states. On the basis of these cases, the article describes the three step-approach taken by the judiciary in deciding whether there are cognizable “historic right” claims.

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Green, Craig. "United/States: A Revolutionary History of American Statehood". Michigan Law Review, n. 119.1 (2020): 1. http://dx.doi.org/10.36644/mlr.119.1.united/states.

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Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential. “States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification. Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

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SIM, KWAN KIAT. "Rethinking the mandatory/discretionary legislation distinction in WTO jurisprudence". World Trade Review 2, n. 1 (marzo 2003): 33–64. http://dx.doi.org/10.1017/s1474745603001319.

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A WTO member state whose legislation is alleged to have infringed WTO rules often invokes the mandatory/discretionary distinction, which states that only legislation mandating actions inconsistent with WTO rules can be challenged; legislation merely granting the discretion to do so cannot be challenged. This article highlights the treatment of this distinction by the Panel and the Appellate Body in recent decisions, in particular, United States–Section 211 Omnibus Appropriation Act of 1998 (‘US–Section 211’), and United States – Countervailing Measures Concerning Certain Products from the European Communities (‘US–Countervailing Measures’). The reasoning and analysis in these cases extended beyond the characterization of the form of the legislation to an examination of the effect of the legislation, and may portend a reconsideration of the mandatory/discretionary distinction and a reformulation of the test for reviewing a state's legislation for WTO-compliance.

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Appelbaum, Paul S. "The Empirical Jurisprudence of the United States Supreme Court". American Journal of Law & Medicine 13, n. 2-3 (1987): 335–49. http://dx.doi.org/10.1017/s009885880000839x.

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The age of empirical jurisprudence appears to be upon us. At both trial and appellate levels, empirical data are playing ever more prominent roles in civil and criminal adjudication. Expert witnesses were once confined to a narrow class of forensic scientists. Today psychologists, sociologists, statisticians, and other empirical researchers regularly testify in court. Lawyers aware of the value of using empirical argument hire expert witnesses to discuss and dispute vast bodies of data often generated precisely for the purpose of influencing legal decision-makers.Courts are continually being asked to settle broad issues of social policy, many of which turn on empirical analyses of the effects of actual and proposed statutes, regulations, and judicially-generated rules. As a result, the use of data-oriented arguments continues to grow. Scholars are looking for change in the traditional structures for regulating the introduction of data into evidence, and have proposed innovative procedures that recognize the potential contributions of empirical results.

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Parry, John T. "Ahmad and Others v. The United Kingdom (Eur. Ct. H.R.)". International Legal Materials 52, n. 2 (aprile 2013): 440–95. http://dx.doi.org/10.5305/intelegamate.52.2.0440.

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In Ahmad and Others v. United Kingdom, the European Court of Human Rights (the Court) upheld the extradition of several suspected terrorists to the United States, despite the possibility that if convicted, the suspects could face life sentences and imprisonment or both, in a “supermax” prison. This decision marks another important step in the development of the Court’s Article 3 extradition jurisprudence. It also illustrates the uneasy tension between that jurisprudence and the efforts of European states to cooperate with U.S. anti-terror initiatives.

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강경래. "Drug Court as a Therapeutic Jurisprudence in the United States". HUFS Law Review 37, n. 4 (novembre 2013): 21–39. http://dx.doi.org/10.17257/hufslr.2013.37.4.21.

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Machaj, Łukasz. "Symbolic communication as speech in united states supreme court jurisprudence". Wroclaw Review of Law, Administration & Economics 1, n. 1 (1 giugno 2011): 38–50. http://dx.doi.org/10.2478/wrlae-2013-0039.

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Mijangos González, Javier. "La doctrina de la Drittwirkung der Grundrechte en la jurisprudencia de la Corte Interamericana de Derechos Humanos". Teoría y Realidad Constitucional, n. 20 (1 luglio 2007): 583. http://dx.doi.org/10.5944/trc.20.2007.6772.

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Through a study of the jurisprudence of the region over the last twenty years, it becomes possible to see that the CIDH has constructed an entire theory about the applicability of fundamental rights in relations between individuals in Latin America. Through this theory it has addressed the most important social problems in contemporary Latin American history, thus contributing to the transition to democracy for many countries in the region. The study will analyze the stages that the jurisprudence of the CIDH has passed through and which have led to the current criteria that this organization uses. The first stage consists of a series of rulings whose common denominator is the analysis of the obligation of respect and vigilance for fundamental rights by the states listed in article 1.1 of the American Convention on Human Rights. This principle, which is ever-present in its jurisprudence, brings the Inter-American Court to approaches that are similar to those proposed by the United States doctrine of state action, as it makes use of a good number of rulings made by the Supreme Court of the United States between 1960 and 1980. In the second stage, the importance originally placed on determining the characteristics of the agent who committed the violation of fundamental rights is replaced by a series of approaches in which the nature of the actual violation itself becomes the focus. In this phase, the Inter-American Court establishes the idea that the fundamental rights listed in the Convention are erga omnes obligations that are imposed not only in relation to the power of the State but also with respect to the actions of third-party individuals. Finally, the third stage in the evolution of the court’s jurisprudence is represented by the most pertinent case in this matter: Opinión Consultiva 18/03, requested by the United Mexican States regarding the legal status of immigrants. This resolution, which has established a trend up until today, definitively establishes the direct effectiveness of the fundamental rights in relations between individuals.

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Cohn, Stuart R. "Mergers and Antitrust Regulation in the United States". Leiden Journal of International Law 1, n. 2 (novembre 1988): 137–48. http://dx.doi.org/10.1017/s0922156500000832.

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In his article on mergers and antitrust regulation in the United States, Professor Cohn describes the intricate relationship between the two concepts. Antitrust law is analyzed along the lines of the Sherman Act, the Clayton Act and the Hart-Scott-Rodino Act. Furthermore, Professor Cohn frequently refers to relevant jurisprudence in his efforts to clarify the present-day legal situation in the United States with respect to horizontal and vertical mergers. He concludes that merger law in the United States is an amalgam of state and federal law which does not account for a ‘unified set of rules governing mergers’.

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Lillich, Richard B., e David J. Bederman. "Jurisprudence of the Foreign Claims Settlement Commission: Iran Claims". American Journal of International Law 91, n. 3 (luglio 1997): 436–65. http://dx.doi.org/10.2307/2954182.

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The Foreign Claims Settlement Commission (Commission or FCSC) was granted jurisdiction to determine the validity and amounts of certain claims by U.S. nationals against Iran by the Iran Claims Act and the 1990 Settlement Agreement (lump sum settlement) between the United States and Iran. The Iran Claims Act, a 1985 statute enacted in anticipation of the lump sum agreement settling U.S. “small claims” against Iran, required the Commission to apply: (1)the terms of any settlement agreement [lump sum settlement];(2)the relevant provisions of the Declarations of the Government of the Democratic and Popular Republic of Algeria of January 19, 1981, giving consideration to interpretations thereof by the Iran-United States Claims Tribunal; and(3)applicable principles of international law, justice, and equity.

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Lushnikova, Alexandra. "The right to euthanasia: the analysis of the United Kingdom and the United States jurisprudence". Sravnitel'noe konstitucionnoe obozrenie 117, n. 2 (2017): 106–20. http://dx.doi.org/10.21128/1812-7126-2017-2-106-120.

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Behuniak-Long, Susan. "Justice Sandra Day O'Connor and the Power or Maternal Legal Thinking". Review of Politics 54, n. 3 (1992): 417–44. http://dx.doi.org/10.1017/s0034670500018246.

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Sandra Day O'Connor, the first woman on the United States Supreme Court, has been criticized by some for failing to bring a woman's perspective to the Court, and by others for acting too much like the stereotypical woman who cannot make up her mind. Both criticisms overlook the possibility that O'Connor's impact as a female is derived from the fact that she is promulgating a very specific jurisprudence—that of the feminine. However, it is in employing this jurisprudence that she undermines the potential for both a feminist jurisprudence and for a cohesive conservative bloc on the Court.

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Meier, Mike. "Criteria Relating to Eligibility for ‘Asylum’ and ‘Withholding of Deportation’ in the United States". Leiden Journal of International Law 2, n. 1 (maggio 1989): 49–63. http://dx.doi.org/10.1017/s0922156500001072.

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This article deals with recent developments in the United States' refugee legislation and policies. After an examination of the relevant procedural aspects, the author discusses several concepts and criteria that play an important role in the decision whether an alien will be granted asylum in the United States. Despite recent jurisprudence, the related concepts of ‘wellfounded fear’ and ‘clear probability’ of persecution remain vague and illdefined. Thus, according to the author, it is doubtful whether the present standards of United States refugee law contribute to the protection of truly politically persecuted. Besides, the concept of ‘safe haven’ should not replace the concept of ‘firm resettlement’.

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Simeon, James. "The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada". Laws 8, n. 1 (14 febbraio 2019): 5. http://dx.doi.org/10.3390/laws8010005.

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Terrorism is a concept that defies a simple and straightforward legal definition. Therefore, it is not surprising to find that there is no Comprehensive Convention on Terrorism with a universally accepted definition of what constitutes “terrorism.” Consequently, States have devised their own definitions of what constitutes terrorism that are typically found in their criminal law. This raises the fundamental question of whether there is a convergence or divergence in jurisprudential trends on what constitutes terrorism among States? Presumably, a convergence in jurisprudential trends is more likely to contribute to combatting the threat of terrorism at the international and national levels. Accordingly, this article comparatively analyzes the definition of terrorism in three common law jurisdictions: the United Kingdom, the United States, and Canada. It finds that although there are a number of similarities in the definition of terrorism in these three States, they have significantly different definitions of what constitutes terrorism. The UK definition, ostensibly, has the broadest definition of terrorism of the three States. The US has, undoubtedly, the most unique, with separate definitions for “international terrorism” and “domestic terrorism.” Additionally, Canada has the most international definition of terrorism, drawing on 13 functional terrorism Conventions to define offenses such as hijacking, hostage taking, and bombing, etc. The second part of the article comparatively analyzes seven of the leading Supreme Court cases on terrorism in these three States. From the ratio or rationes decidendi in each of these cases, it draws out the twelve legal principles that underlie these judgements and finds that they are similar and overall consistent. The conclusion reached is that there is, at least in these three common law jurisdictions, an apparent convergence in jurisprudential trends in the law of terrorism. This augurs well for the development and emergence of a common definition of what constitutes terrorism at the international and transnational levels, as well as more rigorous and effective counter-terrorism laws and policies within and across States.

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Gordillo Pérez, Luis Ignacio. "El TJUE y el Derecho Internacional: la defensa de su propia autonomía como principio constitucional básico = The CJEU and International Law: the defence of its own autonomy as a basic constitutional principle". CUADERNOS DE DERECHO TRANSNACIONAL 9, n. 2 (5 ottobre 2017): 330. http://dx.doi.org/10.20318/cdt.2017.3876.

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Resumen: Este trabajo realiza un análisis crítico de la jurisprudencia del Tribunal de Justicia respecto del Derecho internacional. Para ello, analiza los acuerdos internacionales y otras fuentes afines, la problemática derivada de los acuerdos firmados por los Estados miembros con terceros Estados, la relación entre el Derecho de la UE y el Convenio Europeo de Derechos Humanos y, finalmente, el valor que el Tribunal confiere al Derecho internacional general y a la Carta de Naciones Unidas. La conclusión fundamental será que el principio básico que guía la jurisprudencia del TJ es la reivindicación y protección de su propia autonomía.Palabras clave: monismo, dualismo, pluralismo, autonomía, acuerdos mixtos, Dictamen 2/13, Dictamen 2/15.Abstract: This paper critically analyzes the jurisprudence of the Court of Justice of the European Union on International law. To that end, it analyzes international agreements and other related sources, the problems arising from agreements signed by Member States with third States, the relationship between EU law and the European Convention on Human Rights, and finally the value that the Court confers on general international law and the Charter of the United Nations. The fundamental conclusion will be that the basic principle guiding the jurisprudence of the CJEU is the claim and protection of its own autonomy.Keywords: monism, dualism, pluralism, autonomy, mixed agreements, Opinion 2/13, Opinion 2/15.

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Behrman, Robert W. "Equal or Effective Representation: Redistricting Jurisprudence in Canada and the United States". American Journal of Legal History 51, n. 2 (aprile 2011): 277–304. http://dx.doi.org/10.1093/ajlh/51.2.277.

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Coffey, Ger. "An exploration of ECtHR jurisprudence governing the administration of release processes for life and long-term sentence prisoners: Perspectives from the United Kingdom". New Journal of European Criminal Law 12, n. 4 (18 novembre 2021): 594–621. http://dx.doi.org/10.1177/20322844211061551.

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The purpose of the research themes examined in this article is to contribute to the ongoing debate pertaining to substantive criminal laws and procedures governing sentence reviews of prolonged detention for life and long-term sentence prisoners in accordance with Article 5(4) ECHR. The incompatibility of whole life irreducible sentences with Article 3 ECHR is examined through the lens of the ECtHR judgment in Vinter, Moore and Bamber v United Kingdom. The analyses of ECtHR jurisprudence is heavily skewed towards the administration of indeterminate life, and by analogy long-term determinate sentences, in the United Kingdom which is an outlier jurisdiction in a European context given that, in conjunction with Turkey, it accounts for the majority of persons serving life sentences. The article focuses on pertinent ECHR provisions and associated ECtHR jurisprudence, with perspectives from the United Kingdom on their implementation as a case study. While key themes are disinterred from the ECtHR’s jurisprudence that will presumably inform sentence review procedures in European states, a broader analysis of release systems operative in a European context is beyond the scope of the article.

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Bekker, Pieter, e Robert van de Poll. "Unlocking the Arctic’s Resources Equitably: Using a Law-and-Science Approach to Fix the Beaufort Sea Boundary". International Journal of Marine and Coastal Law 35, n. 2 (26 settembre 2019): 163–200. http://dx.doi.org/10.1163/15718085-23441076.

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Abstract This article analyses the unresolved maritime boundary situated in Arctic waters in the Beaufort Sea, between Canada and the United States through an integrated law-and-science approach incorporating new imagery technology. Resolving the Canada-United States disagreement over the Beaufort Sea boundary based on modern geo-scientific technology and the three-step delimitation methodology developed in the jurisprudence of international courts and tribunals could serve as a catalyst for the peaceful and equitable resolution of all other unresolved boundaries in the Arctic Ocean. This includes the boundaries involving Russia, which can claim more than 40 per cent of the Arctic shoreline. Given that the United States is not a party to the United Nations Convention on the Law of the Sea, this article focuses on mechanisms available to Canada and the United States under general international law and by applying ‘best law’ and ‘best science’.

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Khan, Bushra. "JUDICIAL REVIEW OF COUNTER-TERROR LEGISLATION: THE JURISPRUDENCE OF THE UNITED STATES SUPREME COURT AND THE SUPREME COURT OF PAKISTAN". Pakistan Journal of Social Research 04, n. 04 (31 dicembre 2022): 1010–18. http://dx.doi.org/10.52567/pjsr.v4i04.907.

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Since the attacks of 9/11, terrorism has emerged as a serious concern for national security. Both the United States and Pakistan have and continue to experience the scourge of terrorism and strive to grapple with it in a manner that is compliant with their constitution. Consequently, the counter-terrorism measures put in place by both states have been put to review by the highest constitutional courts of the states. This work attempts to analyze the jurisprudence of the United States Supreme court and the Supreme Court of Pakistan and examines whether the former has impacted the interpretation of the latter. Keywords: Judicial Review, Judiciary, Terrorism, Legislation

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Neeraj, R. S. "A Defining Act: How TPP Rules Are Undermining WTO Jurisprudence". Journal of World Trade 53, Issue 1 (1 febbraio 2019): 169–85. http://dx.doi.org/10.54648/trad2019008.

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Despite the withdrawal of United States from the Trans-Pacific Partnership Agreement (TPP) agreement, the TPP continues to remain relevant as it carries the potential to shape future bilateral and multilateral negotiations on trade issues. This article argues against the suitability of TPP rules for future negotiations at the World Trade Organization (WTO) as these rules undermine, if not directly contradict, WTO’s treaty provisions as interpreted by its adjudicating bodies. The article elaborates three instances where TPP rules are in direct conflict with WTO jurisprudence. Moreover, TPP disciplines on these three areas incorporate the arguments that were advanced by the United States (US) in disputes at the WTO and were rejected by its adjudicating bodies. This shines fresh light on the ‘norm enterpreneuring’ role of the US within the TPP and also demonstrates how TPP rules reconstruct the meaning of WTO’s treaty provisions in a manner that is most suitable for the parochial interests of the US.

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Grossman, Lewis A. "James Coolidge Carter and Mugwump Jurisprudence". Law and History Review 20, n. 3 (2002): 577–629. http://dx.doi.org/10.2307/1556320.

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When James Coolidge Carter died at age seventy-seven in 1905, a front page article in theNew York Timesdeclared, “It was admitted everywhere that he possessed one of the most thoroughly equipped legal minds which this country ever produced.” His friend Congressman William Bourke Cockran eulogized him on the floor of the United States House of Representatives as “a man recognized all over the world as the leader of the American bar.” Lawyer and diplomat Joseph H. Choate, another longtime friend, remarked in his memorial address at the Association of the Bar of the City of New York that Carter “had become at the time of his death one of [this nation's] best known and most valued citizens.”

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Oba, Issa Babatunde. "The dynamics of Islamic marital jurisprudence in Islamic courts: the experience of the Kwara state and Zanzibar". IJoReSH: Indonesian Journal of Religion, Spirituality, and Humanity 2, n. 1 (30 giugno 2023): 43–67. http://dx.doi.org/10.18326/ijoresh.v2i1.43-67.

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Zanzibar is an island located in East Africa and part of the United Republic of Tanzania. In contrast, Kwara State is one of the states of the Federal Republic of Nigeria in the West Africa sub-region. Both regions have similar colonial histories and post-colonial experiences. Islamic Jurisprudence has undergone many reforms since the post-colonial era in Zanzibar Island of Tanzania and Kwara State of Nigeria. Islamic Jurisprudence is used in the adjudication process in Islamic religious courts in these two regions of Africa with a sizeable Muslim population. These courts essentially adjudicate Muslim personal matters, such as marriage, divorce, inheritance, wills, and endowment. The official jurisprudence of the people Zanzibar-Tanzania is Shafi’i jurisprudence. For the people of Kwara State of Nigeria, Maliki jurisprudence is recognized. Marriage is considered part of Muslim identity; therefore, applicable jurisprudence is necessary for a fair hearing on Muslim personal matters. The Muslim judges (qadis) play a laudable role in the justice system under Islamic Jurisprudence. This paper uses doctrinal, case law and empirical approaches for the discourse.

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Rogers, C. Paul. "Scots Law in Post-Revolutionary and Nineteenth-Century America: The Neglected Jurisprudence". Law and History Review 8, n. 2 (1990): 205–35. http://dx.doi.org/10.2307/743992.

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Little scholarly attention has been paid to the role of Scots law in the development of the post-Revolutionary law and legal system of the United States. This neglect stems largely from the fact that Scots law has had little apparent permanent influence on American law. However, during the “formative era of American law” from the Revolution to the Civil War, a notable effort to introduce America to civil law concepts took place. Furthermore, the impact of the Scottish enlightenment on the fledgling United States in higher education, philosophy, and medicine is well documented. Scottish Enlightenment thought arguably had a significant impact on the Declaration of Independence, which was signed by at least two native-born Scots and an American who was a graduate of the University of Edinburgh.

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Fernando, Inura. "Litigating Climate Change – Of Politics and Political Questions: A Comparative Analysis of Justiciability of Climate Change in the United States and Canada". Victoria University of Wellington Law Review 49, n. 3 (1 novembre 2018): 315. http://dx.doi.org/10.26686/vuwlr.v49i3.5327.

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This article seeks to highlight the differences in the jurisprudence on the justiciability of climate change in Canada and the United States. Underpinning this article are questions about the appropriate role of the judiciary in addressing polycentric policy issues. This article will first outline the policy context in which legal issues of climate change are framed. Second, this article will explore the general doctrines of justiciability in Canada and the United States, and how these interrelate with specific doctrines on the justiciability of climate change. The author argues that, with respect to the justiciability of climate change, the approach of the courts in the United States is more principled than that of the Canadian courts, the Canadian approach being more broadly framed. This is because the United States approach encompasses the classic strand of the political questions doctrine. Conversely, though the courts in Canada deny the existence of an American-style political questions doctrine, they unwittingly follow its prudential strand. This has negative implications for legal reasoning. This means that despite contrary appearances from the United States executive, the courts in the United States provide a stronger framework for the protection of the climate.

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Mhango, Mtendeweka. "Is It Time For a Coherent Political Question Doctrine in South Africa? Lessons from the United States". African Journal of Legal Studies 7, n. 4 (23 febbraio 2014): 457–93. http://dx.doi.org/10.1163/17087384-12342055.

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This article describes the development and current status of the political question doctrine theme in South African jurisprudence. It does this through a comparative discussion of the application of this doctrine in the United States. The purpose of this comparative examination is twofold: the first is to gain insight into the origins, trends and early application of the political question doctrine. The second is to gain insight into the challenges and best practices in relation to the application of the political question doctrine elsewhere. The paper argues that while the political question doctrine theme exists in South African jurisprudence, this has not matured into a clear and transparent doctrine. It calls for the development of a clear doctrine for South Africa and offers some recommendations.

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Tara Helfman. "Transatlantic Influences on American Corporate Jurisprudence: Theorizing the Corporation in the United States". Indiana Journal of Global Legal Studies 23, n. 2 (2016): 383. http://dx.doi.org/10.2979/indjglolegstu.23.2.0383.

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Santos, Mauricio Gomm Ferreira dos, e Mauricio Gomm Ferreira dos Santos. "Impactful Case Summaries: an Analysis of Developing Arbitral Jurisprudence in the United States". Revista Brasileira de Arbitragem 6, Issue 23 (1 settembre 2009): 189–221. http://dx.doi.org/10.54648/rba2009049.

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ABSTRACT: The Miami Arbitration Reports cover a number of topics, all of them relevant to the intersection between American law and international arbitration. This collection begins with a number of eye-catching decisions. First, the Sixth and Second Circuits have resurrected the non-statutory ground of "manifest disregard" for vacating an arbitral award. After what seemed like the final word from the US Supreme Court, it looks like the law is continuing to diversify and provide greater uncertainty. Second, the battle to obtain discovery in the United States in aid of private international Tribunals has started to really become interesting. At first, it appeared that the Federal courts would routinely enforce petitions for discovery, but the Southern District of Texas has taken a different path and laid down a challenge to other courts throughout the country. Third, the Fifth Circuit has defined the standard for non-signatories to compel arbitration, but the standard raises questions about the Federal policy favoring arbitration and conflicts over the effectiveness of the standard. And finally, in a case that is very important for those working with consumer contracts, the Eighth Circuit has taken great efforts to provide a workable standard for class action waivers. Then the Reports return to development of the case law after Hall Street. The Ninth Circuit takes up the challenge to interpret Hall Street and the definition of manifest disregard. After noting changes in the Second and Sixth Circuits last edition, the Ninth Circuit adds its voice to the conversation. Second, we profile the Arbitration Fairness Act and its potential effects on American law. With a new President and Congress, many people expect the Act to be passed, and it is crucial to understand it and how it can impact any arbitration with certain connections to American law. Third, the Third Circuit has delved into maritime law to decide how a party can secure a potential arbitral award by beginning proceedings against the ship. The decision has a complex factual and procedural history, and it has a significant impact for litigation arising from contracts on the high seas. And finally, the Eleventh Circuit has charted a course for courts to punish recalcitrant parties who abuse the appellate process by challenging arbitral awards under the manifest disregard standard. These cases seek to stem the tide of unnecessary appeals that dramatically slow the arbitration process. To finish the collection, the Reports conclude with a number of interesting cases. First, we discuss the decisions in both the United States and France regarding the ability of parties to blame the institution for aspects of the award or proceedings that do not work out according to plan. While none of the courts sided with the parties seeking relief, none of the courts closed the option. In the future, we might see more cases against arbitral institutions, and it is important to note the developing trend. Second, we return to the topic of manifest disregard one more time to see how another court interprets the Supreme Court's opinion in Hall Street. This decision is particularly interesting due to its discussion of the history of arbitration and the strength of the opinion relative to the other courts of appeal. Third, we venture into the world of labor arbitration. While many readers may not be particularly familiar with the topic, the Supreme Court has written a thought provoking opinion with implications for the international arbitration community. Finally, we analyze a recent decision from the D.C. Circuit that discusses two important topics: arbitration in the context of joint venture agreements and the length of time an arbitral clause can survive.

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Mercier, Matthew T. "Fighting to fit in: gay–straight alliances in schools under United States jurisprudence". International Journal of Human Rights 13, n. 2-3 (giugno 2009): 177–91. http://dx.doi.org/10.1080/13642980902758101.

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Nolasco, Claire Angelique, e Michael S. Vaughn. "Construing the Legality of Solitary Confinement: Analysis of United States Federal Court Jurisprudence". American Journal of Criminal Justice 44, n. 5 (14 novembre 2018): 812–35. http://dx.doi.org/10.1007/s12103-018-9463-5.

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Chen, Yulin, Xin Liu, Jianglei Li, Tan Huang, Zhiyu Zong e Jiaheng Meng. "Research on easement for environmental protection". Journal of Education, Humanities and Social Sciences 14 (30 maggio 2023): 548–55. http://dx.doi.org/10.54097/ehss.v14i.8926.

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Abstract (sommario):

The servitude conservation system, originating in the United States, is a juridical instrument devised to safeguard the ecological and anthropological value of the environment. In implementation, this system has flourished in the United States due to its emphasis on autonomy of intention. This has infused new vigor into the US environmental conservation system and provided a novel perspective for traditional government-led environmental conservation endeavors. From a comparative jurisprudence standpoint, this article scrutinizes various servitude conservation system from countries including America, Russia, Chile, and France. The objective is to ascertain whether a similar system could be successfully transplanted into China's current national conditions.

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Machaj, Łukasz. "Freedoms of Expression, Political Extremism and Seditious Speech in the United States Supreme Court’s Jurisprudence Part I". Studia nad Autorytaryzmem i Totalitaryzmem 39, n. 3 (26 febbraio 2018): 7–21. http://dx.doi.org/10.19195/2300-7249.39.3.1.

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FREEDOMS OF EXPRESSION, POLITICAL EXTREMISM AND SEDITIOUS SPEECH IN THE UNITED STATES SUPREME COURT’S JURISPRUDENCE PART IThe article is the first part of a monothematic cycle devoted to the case law of the Supreme Court of the United States concerning the scope of constitutional protection of seditious and politically extremist speech under the First Amendment to the United States Constitution. The author discusses the historical origins of the problem in question, focusing particularly on the decisions and practical application of the so-called Sedition Act of 1798, a regulation which drastically restricted the freedom of public debate by de facto criminalising speech that was critical of the government. Although the normative act in question has never been the subject of the Supreme Court’s rulings, it was unequivocally condemned in the obiter dicta to several statements of reasons behind the Supreme Court’s opinions and is commonly deemed unconstitutional in the doctrine.

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Fedkina, Marina A. "The Raymond Wacks’ “Non-Textbook”: A Comparative Analysis of Educational Concepts". History of state and law 2 (11 febbraio 2021): 15–18. http://dx.doi.org/10.18572/1812-3805-2021-2-15-18.

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The article is devoted to the analysis of the work of Raymond Wacks «Understanding jurisprudence», which he outline as a «non-textbook». In the article, the author highlighted the features and main differences of educational approaches in the framework of teaching the theory of state and law in Russia and the United States.

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J. Moon, Wiliam. "The Brussels Effect and the Extraterritoriality of Delaware Corporate Law". European Business Law Review 35, Issue 3/4 (1 maggio 2024): 367–82. http://dx.doi.org/10.54648/eulr2024023.

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This essay explores possible shareholder claims in the United States that may arise if and when member states of the European Union implement the proposed Directive on Corporate Sustainability Due Diligence. As a doctrinal matter, legal compliance obligations for corporations incorporated in Delaware extend beyond the borders of the United States. Under Delaware law, shareholders can bring viable fiduciary suits against directors and officers when corporations violate applicable “positive law.” This jurisprudence, principally aimed at ascertaining whether directors and officers betrayed shareholders by engaging in or facilitating lawbreaking, is not limited to complying with American law. As Delaware corporations expand their operations globally, their compliance obligations necessarily include sources of non-American law, including the laws of European nations. Interestingly, the Directive may require American corporations to comply with international treaties that the political branches of the United States have not incorporated as binding sources of domestic law. While exploring scenarios where shareholder claims may be viable, this essay also highlights several limiting principles that may constrain the Directive from opening the floodgate to shareholder suits in the United States.

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Melançon, Geoffroy, e Et Jocelyn Aubut. "Dangerosité Et Obligations Du Thérapeute: Perspective Canadienne". Canadian Journal of Psychiatry 40, n. 8 (ottobre 1995): 474–78. http://dx.doi.org/10.1177/070674379504000808.

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Objective To clarify the position Canadian therapists must adopt regarding their obligation to protect others against patients' potentially violent actions. This obligation is based on jurisprudence which has been well established in the United States since the Tarasoff case, but which does not apply in Canada. Method A review of jurisprudence in Canada and recent clinical recommendations. The latter are then discussed in the Canadian context and followed by a range of suggested avenues to explore. Conclusion Professional standards could be established but they should be reviewed on a regular basis and allow flexibility for clinicians.

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Fay‐Ramirez, Suzanna. "Therapeutic Jurisprudence in Practice: Changes in Family Treatment Court Norms Over Time". Law & Social Inquiry 40, n. 01 (2015): 205–36. http://dx.doi.org/10.1111/lsi.12067.

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Abstract (sommario):

Family treatment court (FTC) is an example of an increasing number of problem‐centered courts currently operating in the United States. Problem‐centered courts such as FTC encompass the ideas of therapeutic jurisprudence but operate within the broader court system. Presented are the results of an FTC case study that seeks to understand the evolution of courtroom norms and practice over time. Observations of courtroom interactions and interviews with courtroom personnel show that initial observations are consistent with the ideals of therapeutic jurisprudence. However, over time, daily demands and pressures on the courtroom undermine the therapeutic approach.

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Galdámez Morales, Ana. "M'Bala M'Bala c. Francia: la singularidad del negacionismo en Europa". Revista Jurídica Universidad Autónoma de Madrid, n. 36 (26 febbraio 2018): 219–30. http://dx.doi.org/10.15366/rjuam2017.36.009.

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EspañolLa proliferación de un discurso discriminatorio dirigido, en los últimos años, a determinados colectivos y grupos sociales -"hate speech"- nos lleva al debate sobre la libertad de expresión y sus restricciones legítimas en democracia. Partiendo de las diferencias culturales y jurídicas entre Europa y Estados Unidos, nos detenemos en la jurisprudencia del Tribunal Europeo de Derechos Humanos, a través de la sentencia M'Bala M'Bala c. Francia.EnglishThe proliferation of discriminatory messages towards certain groups -hate speech- It makes us consider the scope of freedom of expression and its legitimate restrictions in a democracy. Starting from cultural and legal differences between Europe and United States, we focus on the jurisprudence of the European Court of Human Rights, with the judgment M'Bala M'Bala vs. France.

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Gray, Anthony. "Mandatory Sentencing Around the World and the Need for Reform". New Criminal Law Review 20, n. 3 (2017): 391–432. http://dx.doi.org/10.1525/nclr.2017.20.3.391.

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This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.

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Herder, Matthew. "Toward a Jurisprudence of Drug Regulation". Journal of Law, Medicine & Ethics 42, n. 2 (2014): 244–62. http://dx.doi.org/10.1111/jlme.12139.

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Abstract (sommario):

Efforts to ensure greater transparency in the regulation of “drugs” (used here as a catch-all for pharmaceuticals, biologics, medical devices, and biomarker-based technologies such as genetic testing paired with a pharmaceutical or biologic) are well underway. For example, laws in the United States and Europe now require registration of most clinical trials beyond phase 1. Yet instances of avoidable harm to patients continue to arise. In response, calls for disclosure of clinical trial data in the form of “clinical study reports,” not just trial designs and basic results, are growing. In this paper, I argue that disclosure of clinical trial data is necessary but insufficient. Rather, the regulatory decisions that flow from those trial data —whether positive (i.e., product approvals) or negative (i.e., abandoned products, product refusals, and withdrawals) —should also be open to outside scrutiny provided they are final in nature.

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Manfredi, Christopher P. "The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms". Canadian Journal of Political Science 23, n. 3 (settembre 1990): 499–518. http://dx.doi.org/10.1017/s0008423900012737.

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AbstractThe adoption of the Canadian Charter of Rights and Freedoms has generated considerable interest among legal commentators who question the potential impact of United States civil rights jurisprudence on Charter adjudication. This article offers a preliminary analysis of the impact of US constitutional law generally, and civil rights jurisprudence in particular, on Charter adjudication in the Supreme Court of Canada between 1984 and 1988. Focussing on the Supreme Court's citations of US decisions, the study finds that the frequency of such citations has increased under the Charter. Moreover, the Court's use of these decisions has had a significant substantive impact in defining the nature of constitutional interpretation and the content of the Charter's legal rights.

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Machaj, Łukasz. "Freedoms of expression, political extremism and seditious speech in the United States Supreme Court’s jurisprudence (Part II)". Studia nad Autorytaryzmem i Totalitaryzmem 44, n. 1 (25 agosto 2022): 137–49. http://dx.doi.org/10.19195/2300-7249.44.1.7.

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Abstract (sommario):

The article constitutes the second part of a series devoted to analyzing the jurisprudence of the Supreme Court of the United States with respect to the First Amendment’s guarantee of freedom of expression and politically extremist speech. The author discusses the seminal case of Schenck v. United States wherein Justice Oliver Wendell Holmes established the famous “clear and present danger” standard as a means to determine the constitutionality of legislation pertaining to speech. The test allowed for criminalization of expression which had been deemed to cause such a peril. The article analyzes the original meaning of the standard, pointing out its speech-restrictive impact.

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42

Jeffrey, M. "The Implications of the Wood Pulp Case for the European Communities". Leiden Journal of International Law 4, n. 1 (aprile 1991): 75–107. http://dx.doi.org/10.1017/s0922156500001849.

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The liberal extension by the United States of its laws to non-resident non-nationals under a so called ‘effects’ doctrine has been the cause of much concern to its closest trading allies. Some fear the European Court of Justice's recent Woodpulp case indicates that the European Community will follow the example of the United States. Jeffrey examines the legality of the ‘effects’ doctrine before looking in detail at the ECJ's decision in Woodpulp. He concludes that the Woodpulp case will not support the use of an ‘effects’ doctrine. Instead it evidences an exciting development in Community jurisprudence within the accepted limits of international law.

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Kachika, Tinyade. "Juxtaposing emerging community laws and international human rights jurisprudence on the protection of women and girls from harmful practices in Malawi". African Human Rights Law Journal 23, n. 1 (24 luglio 2023): 126–55. http://dx.doi.org/10.17159/1996-2096/2023/v23n1a6.

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In recent years, community laws to address harmful practices affecting women and girls in rural Malawi have been forming under the leadership of traditional authorities (chiefs), plural justice system actors who usually are suspected by international human rights law and jurisprudence of being on the side of women's rights violations. Yet, being community engineered, the community laws have some potential to practically protect women and girls from harmful practices. Taking off from a 'norm internalisation' conceptual footing, this article closely examines how the phenomenon of community laws sits with the expectations of international human rights law and jurisprudence on measures that states ought to take to internalise norms protecting women and girls from harmful practices. The article establishes that international human rights law and jurisprudence is saturated with calls for states to prioritise formal and macro-level measures to address harmful practices, although latest jurisprudence at both United Nations and African Union levels has cautiously begun to also recognise the role of plural justice systems. The article argues that it is high time that the human rights treaty-monitoring bodies started to critically re-examine the high insistence on formal measures, given that the community laws, which are also internalising the norm protecting women from harmful practices, are manifesting at the level of chiefs' jurisdictions.

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Tompkins Jr, George N. "The Continuing Development of Montreal Convention 1999 Jurisprudence". Air and Space Law 35, Issue 6 (1 novembre 2010): 433–40. http://dx.doi.org/10.54648/aila2010047.

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The Montreal Convention 1999 (MC99) replaces the 1929 Warsaw Convention (WC29). MC99 was adopted on 28 May 1999 and came into force on 4 November 2003 with the deposit of the thirtieth instrument of ratification by the United States on 5 September 2003. There are, as of 12 November 2010, nine-seven State Parties to MC99. The drafters of MC99 were vigilant in not changing the substantive wording of the principle liability rules of WC29, so as to preserve the validity of the seventy-five years of WC29 legal precedents for courts when applying the comparable liability rules of MC99. Since MC99 came into force, the courts interpreting and applying the MC99 liability rules have been ever cognizant of this intent of the drafters of MC99. This is the third article summarizing MC99 court decisions for the benefit of the readers of A&SL and this summary will appear each year as court decisions are rendered in the States Party to MC99 applying the MC99 liability rules.

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Burdon, Peter. "The Jurisprudence of Thomas Berry". Worldviews: Global Religions, Culture, and Ecology 15, n. 2 (2011): 151–67. http://dx.doi.org/10.1163/156853511x574478.

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AbstractOn June 1 2009 Fr Thomas Berry passed away at his home in Greensboro N.C. In his final book before passing, Berry challenged human society to a carry out a transition from a period of human devastation of the Earth to a period when humans would be present to the planet in a mutually beneficial manner. This 'Great Work' encompassed religion, education, science and law. In this paper I will address Berry's argument that our current legal system supports the destruction of the environment and outline two ideas he put forward for evolving law. The first idea recognises that human law operates within and should be bound by the overarching laws of the natural world. From this perspective, the laws of nature are primary and human law would receive its legal quality and authority from its conformity with this law. The second proposal was to recognise that the earth consists of subjects, not objects and that all subjects are capable of holding rights. I will consider this argument in the context of two recent enactments of 'rights for nature' legislation in municipalities in the United States and in the constitution of Ecuador.

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Sanger, Andrew. "Corporations and Transnational Litigation: Comparing Kiobel with the Jurisprudence of English Courts". AJIL Unbound 107 (2013): 23–30. http://dx.doi.org/10.1017/s239877230000965x.

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As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.

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Rodziewicz, Piotr. "Wpływ braku uznania rządu państwa totalitarnego i autorytarnego na zdolność sądową tego państwa w świetle koncepcji brytyjsko-amerykańskich". Studia nad Autorytaryzmem i Totalitaryzmem 43, n. 4 (31 dicembre 2021): 573–79. http://dx.doi.org/10.19195/2300-7249.43.4.42.

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Abstract (sommario):

Although government recognition is a legal concept of public international law, it interacts with other branches of law, including private international law and international civil procedure. According to the jurisprudence of British and American courts, unrecognized governments do not possess locus standi in civil proceedings in regard to matters which fall within the state dominium. In the mentioned jurisprudence, a doctrine has been formulated according to which judges are bound by the position of their state executive bodies in regard to foreign state and government recognition, which has direct influence on the locus standi of foreign states in the courts of Britain and the United States. The aim of this paper is to present the above rulings, as well as to analyze whether there are grounds for accepting the doctrine which follows from them in Polish civil litigation.

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Blom, Joost. "Canadian Cases in Private International Law in 2006–7 / Jurisprudence canadienne en matière de droit international privé en 2006–7". Canadian Yearbook of international Law/Annuaire canadien de droit international 45 (2008): 563–605. http://dx.doi.org/10.1017/s0069005800009437.

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The plaintiff, a New Brunswick company, maintained aircraft engines and often sent engines to the United States to be repaired by the original manufacturer or other repair facilities. The plaintiff contracted with the first defendant, a Canadian logistics operator, to handle the customs clearances. The first defendant often subcontracted the work to the second defendant, a United States logistics operator. When the plaintiff, under pressure from United States authorities, undertook a review of its compliance with United States customs laws, the defendants (so the plaintiff alleged) failed to provide sufficient or timely assistance, a default for which the plaintiff sued them in British Columbia. The first defendant was registered as an extraprovincial corporation in British Columbia, and so had appointed an agent for service there, but the second defendant applied to have the claim against it dismissed on the basis that the court lacked jurisdiction. Jurisdiction depended on whether the claim had a real and substantial connection with the province as required by section 3(e) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. The chambers judge held that the plaintiff had pleaded sufficient jurisdictional facts to bring its claim with one or other of the categories of presumed real and substantial connection in section 10 of the act.

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Russo, Charles J., e Ralph D. Mawdsley. "An update on the conflicting first amendment jurisprudence of the United States Supreme Court". Education and the Law 12, n. 3 (settembre 2000): 195–200. http://dx.doi.org/10.1080/09539960020012103.

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Caudill, David S. "An assessment of the existence and influence of psychoanalytic jurisprudence in the United States". International Journal of Law and Psychiatry 48 (settembre 2016): 15–23. http://dx.doi.org/10.1016/j.ijlp.2016.06.003.

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