Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases

Abstract

The railway was a key factor in nineteenth-century economic development. R.W. Kostal considered the interaction of the industry with lawyers in his book Law and English Railway Capitalism 1825–1875. Yet his conclusion that the law coped badly with the new industry is vitiated by his failure properly to analyse the way the courts applied legal doctrine. In areas such as preincorporation liability for railway companies’ debts, rating and compulsory purchase, the courts applied well-established principles. Even new law in cases like Priestley v Fowler can only be understood in terms of common law principles.     

Labor Regulation,Corporate Governance,and Legal Origin: A Case of Institutional Complementarity?

We explore the influential claim that "legal origin"—the historical origin of a given national legal system in the common law or civil law—accounts for a significant degree of cross-national diversity in economic regulation and development. We show that the claim is undermined by problems in index construction and by a misreading of the implications of the common law/civil law divide for the respective roles of courts and legislatures in law making. We argue that a critical factor, instead, was the timing of industrialization in relation to the emergence of legal institutions associated with the modern business enterprise (the employment relationship and the joint stock company). We also show how distinctive "legal cultures" of the common law and civil law have played a part in setting national systems on separate pathways to economic development.     

美国产品责任中的纯粹经济损失规则探析——兼论我国相关法律制度的构建

在美国的侵权法上,因产品自身存在的缺陷而发生的产品本身价值的减损、修理更换发生的费用,以及因产品不能使用而发生的利润损失等被视为是一种纯粹经济损失。针对该类损失,美国的法院创造了责任排除规则,并且各州在对这一规则在运用时采用的是一种灵活且有弹性的实践方式。这样灵活的纯粹经济损失规则对于我国相关法律制度的构建非常有借鉴意义。     

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.     

有限公司股东退股的法律分析

传统的有限公司理论不允许股东退股,但社会的实践对此提出了质疑。允许股东退股,不仅符合世界公司法改革的潮流,而且具有充足的理由。股东退股是有限公司人合性、契约自由等原则的必然要求。股东可以通过请求公司收购股份的方式实现退股,该项权利可以依法获得司法救济。     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.     

The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

解读“规范出发型”诉讼理念——以具体个案为基点

“规范出发型”和“事实出发型”是分别作为代表罗马法系和日尔曼法系诉讼理念的关键词;在中国这一有着悠久成文法传统的国度,裁判案件应在“规范出发型”理念下指导下进行。一般来说,实体法保护的权利仅限于自身框架之内,避免以虚构权利的方式达到保护利益的目的,特别是在该利益可以通过实体法上本来就具有的权利予以保护之时。在适用上,外部的基准应是民事实体法,而不应是宪法;内部的基准应是以规则为主体,只在个别情况下适用原则予以矫正或弥补。     

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.     

历史演绎正义:论有限责任制度之伦理进路

伦理融入法律促使法律制度蕴含人文气息而富有长盛不衰的生命力,有限责任制度是公司安身立命的前提性基础,有限责任的伦理决定了公司法的伦理内涵与人文精神.历史上的有限责任初显可能是出于经济需要,而有限责任旺盛的生命力则必然有其伦理性依归,有限责任制度化、规模化发展的本身体现着公众的伦理抉择.有限责任经历了从初期的个体间约定责任的民法选择到法律认可并予以制度化适用的商法选择,这个过程是伦理域内信任到信用的伦理过程,是契约自由和经济理性发挥能动性的过程,因此,有限责任的进化历程是人类衡平各方利益的伦理化进程.     

Interpretation of Law and Judges Communities

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role.     

中国经济刑法法益:认知、反思与建构

当前基于秩序、利益、自由等表述的经济刑法法益学说在认知进路上存在问题,无法形成本体和功能自洽的法益观。应当承认集体法益的独立性,立足法益二元论对经济刑法法益进行本体重塑与功能展开。它勾连宪法,是保障在经济领域中实现个人自由的外部条件的统一体,也是经济秩序市场经济规范保护的客体。法益不是刑法独有的保护目标,仅根据法益标准难以有效区分刑事不法与行政不法。经济刑法的犯罪化应坚持保护适格的集体法益,同时更加注重合比例原则和明确性原则的补充与限制。经本体重塑的经济刑法法益兼具体系超越与体系内在功能,有助于在反思当下中国经济刑法立法与司法的基础上,重构经济刑法的立法理念与犯罪化标准,厘清经济犯罪的类型与解释原理。     

Collective Security and the Economic Interventionism of the UN--the need for a coherent and Integrated Approach

The scope of the collective security system established underthe United Nations Charter has expanded significantly sincethe end of the cold war to cover new fields. An increasing linkagebetween maintenance of peace and economic reconstruction haslead the United Nations to play an unprecedented role withinthe economic realm, be it by the widening of the range of measuresadopted by the Security Council under Chapter VII of the Charterwith economic consequences or through the direct managementof economies in post-conflict situations as part of a globalstrategy to restore peace in war-torn territories. This evolutionhas brought to light the limits of the existing UN collectivesecurity system as a framework to deal with economic issues.It is submitted that the ‘derogatory’ logic underArticle 103 of the Charter and under WTO law through its exceptionclauses is no longer sufficient to review and assess the UNaction in the economic sphere. The promotion and integrationof a broader set of principles and rules of international economiclaw such as principles of fair competition, non-discrimination,or transparency, would help enhance the legitimacy of actionsof the UN Security Council. Moreover, this article argues thattaking into account international economic law would contributeto achieve UN goals in post conflict situations by paving theway for a stable and safe economic environment in a long-termperspective. The recently established Peacebuilding Commissionmay contribute to develop a coherent and integrated legal approachin this area.     

A qualitative study of the impact of law clinics on students’ perceptions of emotional labour expectations

The benefits to students of being given some form of clinical legal education are well documented. Research has been conducted in the area of legal education and emotion, emotional intelligence and clinical legal education. There have also been studies which explore emotional labour in the legal profession. However, there is currently no research into the role of clinical legal education in advancing law students’ understanding of emotional labour expectations in the legal profession. This Legal Education Research Network (LERN) funded project aims to fill that gap by examining the contribution law clinics make to the development of law students’ emotion management skills in preparation for entry into the legal profession. The project seeks to achieve this by considering the changes to law students’ perceptions of emotional labour expectations as a result of undertaking this type of clinical legal education. The paper offers insights into the types of emotional labour as well as the perceived drivers of emotional labour, which are regarded as necessary to fulfil the role of the solicitor. The paper will also analyse the potential consequences of performing emotional labour identified by participants.     

The Use of Unwritten Legal Principles by Courts*

Abstract. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.     

The Structure of American Legal Institutions and the Diffusion of Wrongful‐Discharge Laws, 1978–1999

This article evaluates how the social structure of American legal institutions influenced the diffusion of wrongful‐discharge laws over the period 1978–1999, and it assesses whether economic or political variables influenced the diffusion process. The results are surprising and quite striking. Precedents by other courts within the same federal circuit region were generally more influential in the diffusion process than precedents by courts in neighboring states or by courts within the same census or West legal reporting region, even though the precedents were on matters of state law rather than federal law and the decisions were usually made by state courts rather than federal courts. There is some limited evidence that political variables may also have been a factor, but economic variables were not statistically significant, even though the new employment laws may have had important economic consequences.     

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.     

“需要国家干预说”的法哲学分析

“需要国家干预说”是 20世纪中国经济法学最重要的学说之一。有限理性假设、国家适度干预、经济民主、社会公平、经济法治是其基本的法哲学叙事立场。国家是干预需要的满足者,“需要”是通过干预重建经济自由秩序的法律理由。国家超越市场利益关系对经济进行干预调节,国家干预由此构成经济法的基本哲学范畴与法理标志。经济宪政哲学是国家干预经济的法哲学进路,通过经济民主机制设定的干预才能避免经济专制,国家与社会成员共同分享经济权力才能保障干预的社会性与民主性,干预的达成并非一定为了公共,公共中的个体主义是结成公共的价值指引。     

Economic Crises,Crisis of Labour Law? Lessons from Weimar

Labour law has been thrown into turmoil in many large industrialized countries with democratic tradition and market economies. In fact, rapid economic globalization resulted in an irremediable decline in collective bargaining in most of the states that entered into the sphere of Anglo-Saxon capitalism. On a first reading, the financial crisis of 2008 exacerbated this retreat of labour law back to its initial individualist and contractual forms. In analysing the contemporary crisis of labour law, the historical-comparative method can be highly fruitful, especially if one considers the precedent of the economic crisis of 1929. On this basis, I first consider an influential text by Hugo Sinzheimer on the ‘crisis of labour law’ in Weimar Germany and a study by Otto Kahn-Freund on the changing function of labour law in the same context. These works can be connected to the concept of the ‘labour constitution’, which Max Weber notably developed in an empirical sense, and which finds its extension in the later works of Thilo Ramm, a labour scholar of international reputation.     

Alive and well: the good faith principle in Turkish contract law

Good faith is a principle prominent in civil law countries but less so in common law countries, and which allows courts to deviate from black letter law. It provides them with flexibility to change the outcome of a deductive legal decision if they regard it as absurd. The principle of good faith thus empowers the judiciary to deviate. It can be used for an indefinite number of cases and might lead to almost all conceivable legal consequences. For instance, the judge can invalidate the contract, change the price, suspend or change a clause in the contract, or grant injunctive relief, compensation of damages, the disgorgement of profits or a removal claim. We argue that if the principle of good faith is used to develop contract law into an instrument for redistributing wealth in favor of poor parties, this can destroy the concept of contract as a social mechanism for generating mutual gains for parties, which might lead to unwanted economic consequences in terms of efficiency losses. We argue that the principle of good faith must be carefully and reluctantly used to reconstruct the fully specified contract and that well-informed judges, who understand the factual environment of a contract well should ask how fair bur self-interested parties would have allocated the risk in a pre-contractual situation. If the courts restrict the application of the good faith principle to these functions, this provides elasticity that otherwise would not exist if courts would strictly use the rules laid down in black letter law. Moreover, it saves transactions costs and is therefore in line with economic reasoning. We look at the most important Turkish cases and find that the Turkish Supreme Court following Continental European doctrines of good faith actually uses this principle to curb opportunistic behavior of parties and not to achieve redistribution from the rich to the poor by way of interfering into contract law.