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The Charter of the Forest: Evolving Human Rights in Nature

Fri, 05/22/2015 - 14:57

Carta de Foresta, the Charter of the Forest of 1217, is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in 13th century England, the Charter of the Forest became a framework through which to reconcile competing environmental claims, then and into the future. The Charter confirmed the rights of “free men.” Kings resisted conceding these rights. When confronted with violation of the Charter, barons and royal councils obliged kings repeatedly to reissue the Forest Charter and pledge anew to obey its terms.

Categories: Books

Preclusion of Remedies Under Article 16(3) of the UNCITRAL Model Law

Fri, 05/22/2015 - 11:17

In search of actual consequences of (mis)use of the available remedies, Chapter II of the foregoing article starts by exploring whether the Model Law implies “choice of remedies” policy by examining its travaux préparatoires (hereinafter “travaux”). It also seeks to determine existence of “alternative system of defences” at cross-border level between remedies at the seat of arbitration and in the enforcement country. Chapter III engages in a determination of general framework of preclusions under the Model Law by analyzing specific provisions such as Article 4, 13 and 16(2).

Chapter IV, by analyzing the travaux, determines the primary purpose of the Model Law. It further engages in analysis and discussion of what may affect purported preclusionary nature of Article 16(3) by looking at the form of the preliminary ruling, language of the article and analyzing time limit provided therein.

Subsequently, Chapter V examines the correlation between Article 16(3) and remedies against final award under the Model Law. By detailed analysis of travaux, the article determines whether Article 16(3) should fall under the purported “choice of remedies” policy or rather under the framework of preclusion of the Model Law. The chapter engages in examination of pertinent case law and literature in order to reach the conclusion on the preclusiveness Article 16(3) of the Model Law on post-award stages.

Finally, the article provide author’s conclusion on the preclusive nature of Article 16(3) of the Model Law and proposes a possible solution in order to address the problem of ambiguity and inconsistency.

Categories: Books

Reflections of the World Bank’s Report on the Treatment of the Insolvency of Natural Persons in the Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland

Fri, 05/22/2015 - 11:17

In 2011, the World Bank initiated its first-ever examination of the policies and characteristics of effective insolvency systems for individuals (natural persons). This paper describes the two-year process that led to the publication of the World Bank’s landmark Report on the Treatment of the Insolvency of Natural Persons. After examining the key content and three major themes of the Report, three of the most recent new personal insolvency regimes are introduced with an eye to identifying the ways in which the themes of the Report are reflected in these new laws. The personal insolvency provisions in Colombian law most directly evidence the influence of the World Bank project. Its major themes are reflected distinctly in the new laws in Italy and Ireland, as well, though in very different ways, lending support to the World Bank’s predictions of convergence but continuing diversity of approach around the world in this rapidly developing area of law.

Categories: Books

Contractual Excuse Under the CISG: Impediment, Hardship, and the Excuse Doctrines

Fri, 05/22/2015 - 11:17

This article will examine the law of excuse as espoused in the Convention on Contracts for the International Sale of Goods (CISG). It will examine the relevant case law applying the doctrine of impediment found in CISG Article 79. The question posed in this analysis is whether the word “impediment” relates only to the occurrences of force majeure, impossibility and frustration of purpose events or if it also includes changed circumstances, impracticability and hardship events. For purposes of simplicity, the first set of excuse or exemption doctrines will be analyzed under the heading of “impossibility” and the second set will be discussed under the heading of “hardship”.

The key issue to be explored in this article is the distinction between excuse requiring impossibility or frustration of contractual purpose and hardship as it relates to Article 79 of the CISG. These terms and doctrines have often been conflated. This is understandable given the number of such doctrines found in various national laws and international law instruments, such as impossibility, impracticability, frustration of purpose, force majeure or Act of God, hardship, change of circumstances, and so forth. The question posed is whether the impediment doctrine provides an exemption from liability only for “absolute” excuse (impossibility, force majeure) or if it also extends to the more liberal “relative” excuse doctrines (hardship, changed circumstances, impracticability).

Given the vagueness of Article 79’s use of the word impediment, its interpretation and application has had to be constructed anew. This has to, of course, be done with all CISG provisions under the autonomous interpretation mandate. However, the interpretation of the exemption of impediment is an especially difficult task given the context of the numerous excuse doctrines in the various national legal systems, as well as the conflation of different excuse doctrines within national legal systems. French law has the most form of excuse recognizing only force majeure events that make it impossible to perform; the United Kingdom’s law is slightly more liberal, adding the doctrine of frustration of purpose to the impossibility doctrine; and German law incorporates the more common civil law bifurcation of impossibility and hardship doctrines, while also recognizing frustration of purpose, as well as recognizing both physical and economic impossibility. The United States has a tripartite excuse regime involving impossibility, frustration, and impracticability.

Part II briefly examines the law of excuse in the German and American legal systems focusing on the German concept of changed circumstances and the American doctrine of impracticability, while Part III briefly reviews the law of excuse provided in the UNIDROIT’s Principles of International Commercial Contracts (PICC) and the Principles of European Contract Law (PECL). The reviews in Parts II and III will set the context for analyzing the case law relating to CISG Article 79 that is undertaken in Part IV.

Categories: Books

The Conformity of the Goods to the Contract in International Sales

Fri, 05/22/2015 - 11:17

The present article aims to provide a general overview on the issue of conformity of the goods to the contract as regulated by Article 35 of the Convention on Contracts for the International Sales of Goods (“CISG”).

The analysis will focus on Article 35 CISG and, after having retraced the history that led to the current formulation of the provision, will concentrate on the implications following the adoption of a “unitary” notion of conformity. The evaluation will proceed focusing on the single express and implied conformity obligations covered, respectively, in the first and second paragraphs of Article 35 CISG.

The discussion will then delve into the cases of exclusion of liability. After having considered the exemptions falling under Article 35(3) CISG, the two cases of failure to give notice provided by Article 39 CISG will be addressed.

Categories: Books

Is the Albert H Kritzer Database Telling Us More Than We Know?

Fri, 05/22/2015 - 11:17

This article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by domestic courts are developed. The article contains a cursory study according to which the success of the Convention in Germany and China is considered, and the feasibility of the proposed study is assessed. The article concludes that a geographical and temporal overview of the Convention’s application would add to current discussions of revising the Convention and provide the basis for considering alternative ways to promote uniformity. The proposed study concludes that the Albert H. Kritzer Database is capable of shedding a new light on topics like transparency of decisions, the courts’ protection of their home industries, and the use of the concept of good faith. The article exposes a number of limitations when it comes to generalising about the entire trading community and providing detailed overview of uniformity over time.

Categories: Books

Transportation, Cooperation and Harmonization: GATS as a Gateway to Integrating the UN Seaborne Cargo Regimes into the WTO

Fri, 05/22/2015 - 11:17

This paper seeks to analyze how the World Trade Organization (WTO) may cooperate with the United Nations (UN) to unify sea-borne cargo regimes. Beginning with the current dilemma of uni-form maritime transport regime, the paper explores the relation-ship between the UN and the WTO. In light of the successful precedent of the incorporation of the UN intellectual property re-gime into the WTO, this paper probes into the feasibility that the UN and the WTO may interactively unify a maritime transport regime by reference to selected previous treaties, which include UN-administrated treaties. This paper argues the WTO-based sea transport negotiations do not start from a zero basis so that it can be traced backwards to negotiating the General Agreement on Trade in Services (GATS). Having scrutinized the progress and regress in the negotiations so far under the WTO framework, this paper stresses the potential role of an annex on sea transport to the GATS so as to address the issue of harmonization.

Categories: Books

Criminal Responsibility for Arbitrators in Chinese Law: Perversion of Law in Commercial Arbitration

Fri, 05/22/2015 - 11:17

This article is prompted by a recent Chinese criminal provision governing the impartiality of arbitration. The goals of the article fare to critically examine the new criminal statute created by the provision and to put forward some proposals for reform, which could be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the new provision appears to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding U.S. provision, as well as an analysis of some cultural and traditional elements influencing the new criminal statute in China. Ultimately it will be argued that the concerns can be addressed by fine-tuning the rule in order to keep a balance between the previous two conflicting values. Borrowing from U.S. experience, a mechanism of judicial interpretation is proposed that could well suit China’s needs because the benefits of arbitration can be retained without sacrificing the impartiality of arbitration.

Categories: Books

Here We Are Now, Entertain Us: Defining the Line Between Personal and Professional Context on Social Media

Thu, 05/21/2015 - 15:21

Social media platforms such as Facebook, Twitter, and Instagram allow individuals and companies to connect directly and regularly with an audience of peers or with the public at large. These websites combine the audience-building platforms of mass media with the personal data and relationships of in-person social networks. Due to a combination of evolving user activity and frequent updates to functionality and user features, social media tools blur the line of whether a speaker is perceived as speaking to a specific and presumed private audience, a public expression of one’s own personal views, or a representative viewpoint of an entire institution. However, the intent of the speaker is frequently lost to the wide and diverse breadth of social media audiences or obscured due to the workings of the specific social media platform being used.

In this article, we ask the question: should the job of drawing the line between personal and professional speech lie with the individual? Should the divide be clearly determined by the functionality of the social media platform or by third party processes and procedures such as organizational social media policies or by state/federal law?

This issue of personal versus professional speech becomes increasingly relevant not only to public figures such as celebrities or athletes, but to anyone whose online or social media presence is directly or indirectly connected to a larger institution, such as a workplace or educational institution. As social media platforms and online culture encourage “transparency” and open sharing of personal details online, it is not always easy to determine when personal versus professional viewpoint is being represented via social media channels. When an individual shares a controversial opinion outside of work, it is not necessarily representative of their workplace, yet may be perceived as such. When does an employer have the right to monitor or dictate an individual’s online communications?

The line is difficult for everyone to walk – from the perspective of both employers and employees, considering that employees generally want to remain employed and employers generally want to minimize anything negative reflecting back on the employer. In this article, we discuss the tenuous balancing act between the interests of a brand/employer with those of the individual/employee regarding social media communications.

We illustrate this tension through the example of the regulation of student-athletes within institutions of higher education, considering they now might be considered to be employees. However, we conclude that the challenges in developing law and policy around social media speech are due to a number of issues, including the rapid pace of development of social media platforms. Social media gives greater access into the lives of individuals due to emerging social norms that encourage open sharing of personal information online. At the same time, social media tools are used by companies to promote a curated brand identity for marketing purposes. Social media policies created both internally by employers and those established by law and policymakers focus almost exclusively on the interests of companies regarding social media, rather than the individual interests of those who participate on social media to connect with peers.

We conclude that the present approach that federal financial regulators take regarding social media is the closest to a well-balanced test as presently available – in this test, whether an employer can take action against an employee is grounded on whether a statement could be seen as directed by or an official statement of the employer. A national standard following this overall approach would best balance the interests of both employers and employees.

Categories: Books

Social Media Thoughtcrimes

Thu, 05/21/2015 - 15:21

As people live out their lives online, what is protected expression and what is criminal speech? This article begins to explore this fine distinction, and advocates for a shift in the way online speech is protected vis-à-vis the First Amendment. Part I provides examples of criminalized social media activity and explores why people seemingly treat online speech as private communications. Part II looks at existing jurisprudence regarding the criminalization of speech and First Amendment protections. And Part III attempts to determine where to draw the line by advocating for a return to simpler times in First Amendment jurisprudence.

Categories: Books

Death by Bullying: A Comparative Culpability Proposal

Thu, 05/21/2015 - 15:21

This article explores the possibility and advisability of imposing homicide charges against bullies, a controversial approach because of the serious causation questions it poses. Nonetheless, there is precedent for holding a person criminally culpable for a victim’s suicide. A notorious case involved the head of the Ku Klux Klan who was convicted of murder after the woman he raped killed herself by swallowing poison, “distracted by pain and shame so inflicted upon her.” Some may see her shame as analogous to gay teens who commit suicide after being bullied about their sexual orientation. But perhaps the law should not demand that free will be completely lacking before a person is charged for another’s suicide. In other instances such as provocation, the criminal law recognizes that the relationship between victim and defendant shapes culpability. This article explores whether it is feasible and desirable to do so with suicides.

Part I provides background on cyber-bullying with a focus on two highly-publicized cases. Causation rules and their application in suicide-by-victim cases are laid out in Part II. Part III assesses whether homicides charges would be possible against a bully. It suggests the all-or-nothing approach to causation, and its exceptions are based on artificial and outmoded reasoning. For example, using the Stephenson reasoning, a prosecutor would have to paint a bullying victim as mentally unstable and irresponsible. For victims of bullying who are considering suicide, these prosecutions reinforce their sense of hopelessness and helplessness because they blame the bully for the victims’ suicidal acts. The goal, instead, should be to empower bullying victims to seek other avenues to escape their bullies, to feel that they have choices; and that suicide is not an option. The bully should be punished, but the focus should be on his actions, not on the victim’s response. Using a comparative causation analysis, as some scholars propose, we look to a person’s role in another’s death and punish according to the amount he contributed to the death. Factors such as the imbalance of power between the bully and his victim, and the nature and severity of the bullying should be considered in determining whether a person who has a role in another’s suicide should be punished.

Categories: Books

Social Media and the Internet: A Story of Privatization

Thu, 05/21/2015 - 15:21

This article will question what role private and public actors assume in the current structure of data collection and what potential rights are violated. To tease out the relationship between the private and government sectors, this article, for sake of argument, accepts as fact that surveillance is a core government function and that data is a public resource collected by private organizations. While those assumptions may be challenged by different definitions of what constitutes a public function, public resource, or mode of collection, this article does not take on those challenges. It also does not ask the normative question of whether data collection should cease or the descriptive inquiry of whether data collection could even be halted if the public wanted it to be.

Rather, this article simply examines the structure surrounding data collection in terms of privatization, and asks whether certain legal doctrines may be triggered, including the Fourth Amendment. To do so, this article will first set out a definition of a privatization and use the military as an example. In Section II, the article will then engage in a short history of the Internet to show how electronic data collection was a core government function later “privatized” by Silicon Valley corporations. Section III will then explain how this dynamic between private and public oversight raises Fourth Amendment concerns. Finally, the Conclusion will then set out suggestions for the future, including a potential justification for new privacy rights.

Categories: Books

Investigating Jurors on Social Media

Thu, 05/21/2015 - 15:21

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

Categories: Books

Copyright and Social Media: A Tale of Legislative Abdication

Thu, 05/21/2015 - 15:21

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join forces to stem infringement. The final section lays out the difficulties with the voluntary solution and suggests that legislators have abdicated their responsibility to maintain a fair balance between rights of social network users and commercial content providers.

Categories: Books

The Constitution and Revenge Porn

Thu, 05/21/2015 - 15:21

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem to face some very tough sledding—if indeed they can be written in ways that are constitutionally permissible at all.

At the end of this paper, I propose a possible approach to crafting a law that addresses the primary harms of revenge porn, but which seeks avoid the direct affront to the First Amendment of the revenge porn laws currently proposed and enacted. Whether this approach would actually work is a question that cannot be answered with certainty but, unless the Supreme Court changes the application of the First Amendment to accommodate revenge porn, I think its chances are at least better than the statutes, drafts and proposals to date.

Categories: Books

#Snitches Get Stitches: Witness Intimidation in the Age of Facebook and Twitter

Thu, 05/21/2015 - 15:21

In order to better understand witness intimidation in the age of social media, one must examine both the forms it has taken as well as the response by law enforcement and the criminal justice system. As this article points out, the digital age has brought with it a host of new ways in which witnesses may be subjected to online harassment and intimidation across multiple platforms, and those means have been used to target not only victims and fact witnesses but even prosecutors and expert witnesses as well. The article will also examine potential responses to the problem of witness intimidation via social media, including proposed legislation. And while the focus of this article is on this problem as it currently stands in the United States, it should be remembered that just as social networking is a worldwide phenomenon, the use of such platforms for witness intimidation is an international problem. For example, Arab women living in the United States who have filed domestic abuse charges against their husbands have reported members of their families overseas being intimidated and harassed through social media postings as a form of pressure on the complaining victim. And in Mexico, drug cartels use social media to harass and target those who report their actions.

Categories: Books

Social Justice, Social Norms and the Governance of Social Media

Thu, 05/21/2015 - 15:21

This article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies, focusing on the advantages, disadvantages and pitfalls of reliance on private parties. In Part III, the article describes, in general terms, the above-mentioned empirical study, explaining its methodology, the specific challenges to its design and implementation, and how these were met. The discussion specifically centers on a survey taken to establish the nature of social norms. Part IV presents a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V briefly discusses insights that the “real names” test case might provide for the broader questions regarding justice and fairness in social media governance. The article concludes with yet another context, the “right to be forgotten,” which might provide additional insights into the important research questions this project and others begin to address. It further notes additional extensions of the methodological design this article introduces.

An important caveat is due. While the article strives to argue a normative point as to the fair, just and proper way to govern social media, it draws on empirical findings regarding users’ actual social norms. Clearly, however, there are numerous examples of situations demonstrating descriptive social norms to which can hardly be considered a normative baseline to aspire. In fact social norms embraced by the majority might reflect prejudice, errors and the inability to adapt to social changes. In some instances, especially those pertaining to information privacy, the “crowd” might not be wise at all. For these reasons, the policy implications and recommendations to be derived from the discussion that follows are noted carefully, and must be subjected to additional considerations and scrutiny. Nevertheless, establishing whether governance methods, as applied in these innovative settings, are objectively fair and just, is extremely difficult if not impossible. Thus, reliance on imperfect proxies such as the nature of “social norms” will surely prove constructive. Therefore, examining the differences between these four subsets of governance (“code,” “contract,” “law,” and “social norms”) can provide us with insights into the “justice” of the governance administered by the platform provider and address the nuances of this intriguing reality.

Categories: Books

Anarchy, Status Updates, and Utopia

Thu, 05/21/2015 - 15:21

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; PayPal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power, there is also social power. Whenever people come together through software, they must agree which software they will use. That agreement vests technical power in whoever controls the software. Social software cannot be completely free of coercion—not without ceasing to be social, or ceasing to be software.

Rule-of-law values are worth defending in the age of software empires, but they cannot be fully embedded in software itself. Any technical design can always be changed through an exercise of social power. Software can help by making this coercion more obvious, or by requiring more people to join together in it, but software alone cannot fully protect users. Whatever limits make social software humane, free, and fair will have to come from somewhere else—they will have to come from We the Users.

Categories: Books