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This article concerns the ongoing conflict over the authority of the European Court of Human Rights (ECtHR). As has been widely discussed, the authority of the Court has come under sustained pressure from states over the last decade. As one response to this pressure, the Court has undertaken what the literature calls a procedural turn—a doctrinal shift that has incorporated its changing political dynamic into its case law. The procedural turn is constituted by renewed deference to national authorities “premised on good faith domestic engagement with [European Convention on Human Rights] principles.” This article sets out a functional critique of the procedural turn by drawing attention to certain limitations in its assumptions and application. Is there an alternative—or additional—way for the Court to respond? Drawing on the practice of other courts, I propose that the ECtHR take seriously judicial avoidance as a way to protect its authority—specifically, the Court might avoid making a determination of a particular case at a particular time. This approach—though not without objection—may provide the Court with an ad hoc, flexible capacity to protect its authority, and comes with the additional benefits of neither legitimating the underlying domestic measure nor upsetting important doctrinal structures relevant to other cases. I further suggest that control of its docket through introducing strategic considerations at the admissibility stage would be the most appropriate technique of avoidance for the Court.

The retention and display of the remains of Charles Byrne, an Irishman with acromegaly, by the Hunterian Museum of the Royal College of Surgeons has been contentious for some years, and the moral case for his release for burial has been repeatedly made. This article makes the legal case through five arguments. The first three concern common law rights and duties; Byrne’s right to burial, the duty of the State to ensure his burial where others do not, and the right of his friends to assume that duty. The fourth concerns Byrne’s common law right to direct his disposal, and, related to this, not to be retained and displayed. The fifth, which underpins the rest, is that Byrne is not, and has never been property, and it is in fact intuitively and legally arguable that he, like other corpses, remains a person. The article finally outlines three options available to those wishing to ensure Byrne finally has the burial at sea that he sought to ensure in 1783.

This chapter explores the democratic character of the common law by examining the implied contractual duty of good faith and its dismissive treatment by the US Supreme Court in Northwest v. Ginsberg, a 2014 preemption decision. The decision was mistaken because it failed to recognize law’s morally indispensable role of publicly articulating and interpreting our shared moral commitments, treating law instead as a mere means of resolving disputes. The chapter also celebrates the democratic character of common law, which, although articulated by judges, responds to reasons and problems emerging from the citizenry and attends to moral expectations embodied in customary practices. The chapter underscores the importance of common law (and the doctrine of good faith) in publicly articulating reasons and drawing on the underlying values that law serves, democratic functions that are lost when litigation is replaced by private arbitration and overlooked by a narrow focus on elections.

This chapter explores the first concentrated effort to theorize and defend Madhva’s inversion against traditional interpretive theory. The protagonist of this chapter is Vyāsatīrtha, the great architect of Dualist Vedānta as a major philosophical, social, and political movement under the auspices of the Vijayanagara Empire. Vyāsatīrtha assembles a systematic defense of the power of the closing. He builds his argument out of existing Mīmāṃsā case law, gathering an array of interpretive decisions in which, he argues, it is really the closing that is the deciding factor. He also reexamines the cases traditionally thought to illustrate the power of the opening, demonstrating in each that some interpretive criterion other than sequence really dictates the agreed-upon conclusion. Thus, without actually challenging the existing interpretive conclusions of the entire Mīmāṃsā tradition, Vyāsatīrtha develops (or, in his mind, reveals) a “new math” that both upholds Madhva’s theory and explains a variety of old results.

Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law.

The ‘range of reasonable responses’ (RORR) test for assessing the fairness of a dismissal under section 98(4) ERA 1996 started life as a mistake and never recovered. Where the statute tells judges a dismissal is unfair if an employer acted ‘unreasonably’, the RORR tells them this refers to a special kind of ‘employer reasonableness’. In a setting where the only question is whether a dismissal is too harsh or not it is senseless to ask anyone, including a judge, to behave as if a dismissal they consider too harsh is nevertheless not too harsh. Yet this is what the RORR has always asked Employment Tribunal judges to do, with predictable results. Because they are told that they may not use their own idea of what counts as reasonable, they have no choice but to assume that ‘employer reasonableness’ tolerates more harshness than ‘reasonableness’. Lady Hale, possibly viewing the matter in the same light, appears to have invited a Supreme Court challenge to the RORR in Reilly v Sandwell Metropolitan Borough Council. This article argues that the Supreme Court must do away with the RORR because it artificially makes it harder to succeed in an unfair dismissal claim, it is doctrinally confused, and incremental efforts by the lower courts to resolve these problems within the RORR framework inevitably fail. The answer must involve distinguishing between a ‘standard for decision’ and a ‘standard of review’. The RORR tried to perform both functions by distorting the standard for decision to address standard of review concerns. Recent Supreme Court case law on proportionality, however, has made it clear this is the wrong approach. What the Court should install, in place of the RORR, is (a) a clear standard for decision, not subject to modification over standard of review concerns, and (b) targeted guidance about how tribunals should focus their inquiry and where to give deference to employers.

The presence of third States occurs when two countries delimit their maritime boundary in a maritime area where there are more than two coastal States. The bilateral nature of maritime delimitation between two States requires the delimitation process not to prejudice the legal rights and interests of third States. On the one hand, at the procedural stage of international adjudication, third States may file an application for permission to intervene in the proceedings before a court or tribunal; at the merits stage, a third-party judicial organ may leave undecided the endpoint of a final boundary line to be delimited, so as not to affect the rights of a third State. On the other hand, in interstate maritime boundary agreements through international negotiation, in order to take care of third States' legal rights and interests, States may adopt several ways of addressing the existence of tripoints. This paper, in four parts, discusses the presence of third States in international maritime boundary delimitation. The first part gives a definition of a third State in the framework of maritime delimitation. The second part reflects on international adjudication relating to the presence of third States. The third part provides some observations on State practices relating to the existence of tripoints. The conclusion points out that there is a widening gap between maritime delimitation in theory and in practice, since recent case law particularly confines the delimitation to a purely bilateral status, without enough focus on the presence of third States, resulting in procedurally prejudicial impacts upon the legal rights and interests of third States.

Case law of the International Court of Justice and international criminal tribunals reveals different judicial attitudes toward the relationship among State responsibility law, international humanitarian law (IHL) and the classification of armed conflicts. The legal precedents on this topic have been called 'the most cited example of the "fragmentation of international law"'. This contribution examines this conflict, or fragmentation, in order to shed light on the question whether IHL, or its interpretation and application, has had any influence on the general international law of State responsibility. With arguments specifically derived from the nature of international humanitarian law and from the structural design of State responsibility law, the article demonstrates that international armed conflicts involve two States that are responsible for the acts of their forces through which they act. Having in mind this symbiotic relationship between IHL and State responsibility for purposes of the classification of conflict, the case law on this matter, which is often cited as an example of fragmentation, can to some extent be reconciled, as long as one recognizes that attribution rules have a certain influence on the scope and application of primary rules of IHL. The article concludes that IHL (and the interpretation thereof by international tribunals with subject-matter expertise) has exercised no influence on attribution rules as found in the general international law of State responsibility, apart from the recognition that primary rules of international law (such as IHL) may contain secondary leges speciales rules dealing with the attribution of conduct in times of armed conflict.

This chapter continues the discussion of sources of domestic law, focusing on material produced by the courts through cases. It covers the reporting of cases, the hierarchy of courts, legal principles, and the operation of precedent. The courts operate a system of precedent known as stare decisis (‘let the decision stand’). The type of precedent set depends on the court sitting, with the most complicated rules occurring in the Court of Appeal. As a general rule of thumb, the court setting the precedent will bind every court below it but the real question is under what circumstances that court is bound by itself.

Introduction Ethical and professional duties compelled surgeons to act outside their specialties during the SARS-CoV-2 pandemic. Our work explored the legal liabilities that have arisen for surgeons during this period. Method A literature review was conducted of medical and legal databases; PubMed, MedlineOvid, WestLaw, and LexisNexis. Statues and case law across three jurisdictions; Canada, the United Kingdom, and the Republic of Singapore were retrieved and analyzed. Results Professional regulatory bodies impose a duty to act in healthcare emergencies. Yet, formal legal protection has not been codified by either professional regulatory bodies or governments. These discrepancies between legal and professional standards leave surgeons vulnerable to litigation. Conclusions Following our analysis of cases and outcomes within these jurisdictions we propose a framework that provides basic protection to surgeons acting outside their surgical specialty, but within a general medical capacity, whilst providing care during acute health crises.

The Anglo-Saxon countries or the liberal market economies are just about the only example of a country grouping that both the cultural theories and the comparative institutional theories agree on. Culturally, these countries are characterized by low power distance, high individualism, and low uncertainty avoidance. Institutionally, these countries have shared legal origins (common law) and specific political systems (first-past-the-post in most instances). They are the stock market capitalist, liberal market, or compartmentalized capitalist countries. They are characterized by powerful private property rights, lesser rights for other stakeholders, and government being less interested in supporting stakeholder rights, with commensurate suspicion of government involvement (other than in respect of bailouts of politically connected insider corporations) and taxation. Competition is depicted as unalloyed good, even if in practice such markets are often characterized by powerful oligopolies. This is important because the original theories of management and of human resource management, most of the research, and much of the current thinking in these areas come from the United States of America; most of the largest management consultancies have their headquarters or draw their inspiration from the United States; and academic teaching and publication follow the United States. There have, however, been debates about how cohesive and consistent the Anglo-Saxon category is and precisely how the implications for human resource management are manifested in each country.

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

The Snowden revelations have raised public awareness about the potential abuses in cyber-surveillance and have sparked a global debate about protection of privacy and the need of enhanced transparency and oversight of intelligence activities. They have also led to several policy changes and legal reforms and an improvement on the overall control and oversight of surveillance in democratic States. From this point of view the impact of the Snowden revelations cannot be neglected. On the other hand, the intrusive government surveillance programmes around the world not only remain largely intact but are also supported by new legal frameworks. Indeed, governments worldwide have enacted new intelligence and surveillance laws providing adequate legal cover to cyber-surveillance activities. As the Guardian, which published the initial Snowden revelations, stated, ‘the principal change on the agenda is granting the intelligence agencies formal licence to continue doing what they were caught doing’. This chapter examines the case law of the European Court of Human Rights in the field of surveillance. This focus on the ECtHR is justified by the fact that the Court was the only one at the international level that has had the opportunity to analyse on numerous occasions relevant domestic laws and to proceed to a balancing of interests in such detail. The Chapter analyses the criteria used by the Court to assess the compatibility of surveillance laws with the European Convention of Human Rights – comparing them with the case law of the Court of Justice of the European Union. It concludes that the year 2020 and 2021 will be critical in assessing the Court’s future direction on these issues as some very important judgments are expected. Beyond these cases challenging existing surveillance laws, one could expect that a new generation of cases will progressively arrive at the Court, concerning the use of even more sophisticated technologies such as facial recognition technologies.

The administrative detention of migrant children, and the conditions of deprivation of liberty, pose serious challenges to the realisation of their rights. The present chapter discusses the concept of vulnerability and the principle of the best interests of the child, and their legal consequences, for the effective respect, protection, and fulfilment of the human rights of migrant children in the context of immigration detention. In doing so, it gives a short overview of the developments in the Court’s case law related to detention of migrant children. Using the Court’s concepts of vulnerability, the best interests of the child, and circumscribed child’s autonomy, as well as taking inspiration from other international instruments and EU law, this chapter attempts to demonstrate where the European Court of Human Rights (ECtHR) case law on the detention of migrant children in particular under Articles 3, 5, and 8 of the ECHR could grow further, and the opportunities for such growth, as well as the barriers to it.

This article is about institutional change in the Banking Union. It has two related aims. The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court. The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change. For this purpose, this article adopts an interdisciplinary approach that seeks insights on institutional change in the political science literature. In particular, the article seeks to shed light on the role played by courts. In short, it argues that whilst the SSM is a story of change following an exogenous shock (ie the sovereign debt crisis), it is also an account of change and contestation between courts made possible by the ambiguities and incompleteness of the SSM rules. It will show that the evolution of the SSM is by no means frictionless and that it is only by tracing change from the point of the enactment of the law to its interpretation by the courts that one gains a real appreciation of the dynamics and salience of change within the SSM.

Analysing the administrative case law of the Belgian Supreme Court between 1890 and 1910, this chapter shows that the Supreme Court applied the main features of a positivist legal thought (based on the assumption of clarity, coherence, and completeness of the formal law) to administrative action and its legality. It equipped the central and local institutions of the State with functioning powers, allowing an operational state to develop despite social unrest. As the social and technological context changed at the end of the nineteenth century, the statute book became more confused, however. This gave the Supreme Court ample room to interpret the law creatively and pragmatically. The ‘administrative miracle’ in Belgium is that the Supreme Court did not shackle social forces and unbridle the administration so much that the very course it wanted to avert actually happened. This may be down to the creative judicial genius that the Belgian judiciary developed a formal approach whilst deciding pragmatically on the substance of cases.