There is a perception in the literature that, because traditional Islamic law prohibits adoption, Muslim jurisdictions do not, by extension, recognize it. This view is reinforced by the fact that certain Muslim countries explicitly prohibit adoption (tabannī) in their statutes. As a consequence, Western courts generally refuse to recognize the "adoption" of a child, or any "alternatives" to adoption, which has taken place in a Muslim country. This Article reexamines this perception. It argues that the current state of opinion is based on a comparative analysis that fails to consider the changing nature and variety of adoption laws worldwide. A new approach to our understanding of adoption and its respective forms in Muslim jurisdictions is proposed. The starting point is a historical analysis of pre-Islamic adoption in these jurisdictions and its reception in traditional Islamic law. This look reveals that pre-Islamic adoption had little to do with the provision of new homes for parentless minors. On the contrary, it was practiced to strengthen the military and economic power of the tribe. Conversely, Islamic law pays great attention to the protection of children and has developed a multitude of protective measures for their care. While, as a principle, legitimate filiation can only be established by the conception of a child in a valid marriage, Islamic scholarship has developed legal devices for circumventing this rule and establishing kinship relationships between persons who are not genetically related. Traditional Islamic law thus holds great opportunities for the establishment of a comprehensive parent–child relationship between genetically unrelated persons. Moreover, a comparison of adoption regulations reveals a great variety of forms and effects in the various legal systems of the world. It emerges from this functional comparison that the essence of adoption today revolves around the creation of an enduring, intimate parent–child relationship, whereby the new parents are entrusted with full parental care and authority, with the best interests of the child being the paramount principle. It is against this background that the existing regulations on the placement of children in new homes in Muslim jurisdictions are further scrutinized. Through the lens of functionalism, this Article detects functional equivalents to adoption even in countries that have explicitly prohibited tabannī.
{"title":"Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law","authors":"Nadjma Yassari","doi":"10.5131/AJCL.2015.0028","DOIUrl":"https://doi.org/10.5131/AJCL.2015.0028","url":null,"abstract":"There is a perception in the literature that, because traditional Islamic law prohibits adoption, Muslim jurisdictions do not, by extension, recognize it. This view is reinforced by the fact that certain Muslim countries explicitly prohibit adoption (tabannī) in their statutes. As a consequence, Western courts generally refuse to recognize the \"adoption\" of a child, or any \"alternatives\" to adoption, which has taken place in a Muslim country. This Article reexamines this perception. It argues that the current state of opinion is based on a comparative analysis that fails to consider the changing nature and variety of adoption laws worldwide. A new approach to our understanding of adoption and its respective forms in Muslim jurisdictions is proposed. The starting point is a historical analysis of pre-Islamic adoption in these jurisdictions and its reception in traditional Islamic law. This look reveals that pre-Islamic adoption had little to do with the provision of new homes for parentless minors. On the contrary, it was practiced to strengthen the military and economic power of the tribe. Conversely, Islamic law pays great attention to the protection of children and has developed a multitude of protective measures for their care. While, as a principle, legitimate filiation can only be established by the conception of a child in a valid marriage, Islamic scholarship has developed legal devices for circumventing this rule and establishing kinship relationships between persons who are not genetically related. Traditional Islamic law thus holds great opportunities for the establishment of a comprehensive parent–child relationship between genetically unrelated persons. Moreover, a comparison of adoption regulations reveals a great variety of forms and effects in the various legal systems of the world. It emerges from this functional comparison that the essence of adoption today revolves around the creation of an enduring, intimate parent–child relationship, whereby the new parents are entrusted with full parental care and authority, with the best interests of the child being the paramount principle. It is against this background that the existing regulations on the placement of children in new homes in Muslim jurisdictions are further scrutinized. Through the lens of functionalism, this Article detects functional equivalents to adoption even in countries that have explicitly prohibited tabannī.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"2020 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128072198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Intellectual property rights exist to create self-renewing incentive structures that continually replenish the push for product improvement and innovation investment. This Paper turns the traditional analysis on its head by considering tort-like liability of patent holders for victims of product defects, specifically, robotic medical devices. Robotic surgical devices, or da Vinci robots, are gaining popularity in the medical community – despite, and perhaps due to, the novelty of remote surgical technology. However, the complexity lies not in the application of tort law to the United States patent system. The uncertain fit of tort law within patent law will remain for future discussion. In fact, the liability treated in this Paper is identified as tort-like, precisely to avoid the clumsy applicability of tort law to patent holders. Rather, the recent expansion in geographic scope of patient care – via wireless control, or disintermediation – creates the situation this Paper seeks to illuminate: A physician operating from California using a patented stint-placement in complex heart surgery on a patient in Guam, is sued when the stint-placement malfunctions and ruptures. The patient lives but, due to loss of blood to the brain, will live out the remainder of her life with significant neurological damage. In this case, who makes this patient whole? This Paper concludes by considering the difficultly involved when contemplating tort-like liability for injured patients, assuming robotic surgical malfunction.
{"title":"The Dark Side of Altruism in the Context of Patent Incentives: Are You Really Here for Me? Taking Off the Rose-Colored Glasses","authors":"Katherine D Sheriff","doi":"10.2139/SSRN.2735942","DOIUrl":"https://doi.org/10.2139/SSRN.2735942","url":null,"abstract":"Intellectual property rights exist to create self-renewing incentive structures that continually replenish the push for product improvement and innovation investment. This Paper turns the traditional analysis on its head by considering tort-like liability of patent holders for victims of product defects, specifically, robotic medical devices. Robotic surgical devices, or da Vinci robots, are gaining popularity in the medical community – despite, and perhaps due to, the novelty of remote surgical technology. However, the complexity lies not in the application of tort law to the United States patent system. The uncertain fit of tort law within patent law will remain for future discussion. In fact, the liability treated in this Paper is identified as tort-like, precisely to avoid the clumsy applicability of tort law to patent holders. Rather, the recent expansion in geographic scope of patient care – via wireless control, or disintermediation – creates the situation this Paper seeks to illuminate: A physician operating from California using a patented stint-placement in complex heart surgery on a patient in Guam, is sued when the stint-placement malfunctions and ruptures. The patient lives but, due to loss of blood to the brain, will live out the remainder of her life with significant neurological damage. In this case, who makes this patient whole? This Paper concludes by considering the difficultly involved when contemplating tort-like liability for injured patients, assuming robotic surgical malfunction.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127799285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We analyse whether, when and how local office-holders respond to the personal, economic incentives embedded in exogenously imposed population thresholds leading to an increased number and/or remuneration of local office-holders. Using data from all 589 Belgian municipalities over the period 1977-2014, local politicians are found to purposefully influence population growth through policy measures aimed at stimulating net in-migration when approaching important population thresholds. We provide evidence that strategic housing policy decisions – i.e. granting additional building permits early in the election cycle to maximize population growth just before the ‘deadline’ to surpass a population threshold – act as a key mechanism.
{"title":"Strategic Housing Policy, Migration and Sorting Around Population Thresholds","authors":"K. de Witte, B. Geys","doi":"10.2139/ssrn.2717419","DOIUrl":"https://doi.org/10.2139/ssrn.2717419","url":null,"abstract":"We analyse whether, when and how local office-holders respond to the personal, economic incentives embedded in exogenously imposed population thresholds leading to an increased number and/or remuneration of local office-holders. Using data from all 589 Belgian municipalities over the period 1977-2014, local politicians are found to purposefully influence population growth through policy measures aimed at stimulating net in-migration when approaching important population thresholds. We provide evidence that strategic housing policy decisions – i.e. granting additional building permits early in the election cycle to maximize population growth just before the ‘deadline’ to surpass a population threshold – act as a key mechanism.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121746559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Financial hardship occurs where a consumer takes on payment obligations under a contract but then becomes unable to meet them when they fall due. The authors present the results of a survey of financial counsellors with the aim of drawing upon the extensive work experience of the counsellors to put together a broad picture of the underlying causes of this growing problem and how it is addressed in four key sectors: consumer credit, energy, water and telecommunications. The findings include the views of the financial counsellors on the causes of financial hardship, how financial hardship can vary according to gender, and the particular challenges faced by migrants. The findings of the research also include insights into the types of assistance provided to those in financial hardship by providers of consumer credit, energy, water and telecommunications, the adequacy of this assistance and the barriers to accessing appropriate hardship assistance.
{"title":"Financial Hardship: Insights from a Survey of Financial Counsellors","authors":"P. Ali, E. Bourova, I. Ramsay","doi":"10.2139/SSRN.2697970","DOIUrl":"https://doi.org/10.2139/SSRN.2697970","url":null,"abstract":"Financial hardship occurs where a consumer takes on payment obligations under a contract but then becomes unable to meet them when they fall due. The authors present the results of a survey of financial counsellors with the aim of drawing upon the extensive work experience of the counsellors to put together a broad picture of the underlying causes of this growing problem and how it is addressed in four key sectors: consumer credit, energy, water and telecommunications. The findings include the views of the financial counsellors on the causes of financial hardship, how financial hardship can vary according to gender, and the particular challenges faced by migrants. The findings of the research also include insights into the types of assistance provided to those in financial hardship by providers of consumer credit, energy, water and telecommunications, the adequacy of this assistance and the barriers to accessing appropriate hardship assistance.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115523600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Leahy-Smith America Invents Act of 2011 (AIA) defines an “inventor�? as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.�? Prior art that consists of a “disclosure...made by the inventor or joint inventor�? or “subject matter [that] had, before such disclosure, been publicly disclosed by the inventor or a joint inventor,�? when disclosure is “made 1 year or less before the effective filing date of a claimed invention,�? is excepted from the novelty requirement. However, there is nothing in the AIA or its legislative history that specifies whether the “disclosure�? by the inventor or joint inventor must be the work of the inventive entity of the invention claimed, or need only be the work of an individual member or subgroup of that inventive entity. Guidelines developed by the United States Patent and Trademark Office (USPTO) do not clarify this issue. Early commentary on the AIA suggests that the work “disclosed�? need not be that of the entire inventive entity. Such an interpretation, if confirmed by the courts, would be a radical and unnecessary departure from judicial precedent and would fundamentally change the effect of prior work by individuals on claimed joint inventions to which they contributed. The judicially created doctrine of obviousness-type double patenting, which limits inventors to a single patent for each invention considered patentably indistinct in view of another, would also be implicated, as would a recently proposed statutory alternative.
{"title":"Inventorship, Double Patenting, and the America Invents Act","authors":"S. Pierce","doi":"10.15779/Z38ZG2T","DOIUrl":"https://doi.org/10.15779/Z38ZG2T","url":null,"abstract":"The Leahy-Smith America Invents Act of 2011 (AIA) defines an “inventor�? as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.�? Prior art that consists of a “disclosure...made by the inventor or joint inventor�? or “subject matter [that] had, before such disclosure, been publicly disclosed by the inventor or a joint inventor,�? when disclosure is “made 1 year or less before the effective filing date of a claimed invention,�? is excepted from the novelty requirement. However, there is nothing in the AIA or its legislative history that specifies whether the “disclosure�? by the inventor or joint inventor must be the work of the inventive entity of the invention claimed, or need only be the work of an individual member or subgroup of that inventive entity. Guidelines developed by the United States Patent and Trademark Office (USPTO) do not clarify this issue. Early commentary on the AIA suggests that the work “disclosed�? need not be that of the entire inventive entity. Such an interpretation, if confirmed by the courts, would be a radical and unnecessary departure from judicial precedent and would fundamentally change the effect of prior work by individuals on claimed joint inventions to which they contributed. The judicially created doctrine of obviousness-type double patenting, which limits inventors to a single patent for each invention considered patentably indistinct in view of another, would also be implicated, as would a recently proposed statutory alternative.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128123090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much evidence has been presented that legal institutions, and particularly property rights, cause economic growth. Yet, precisely for those countries with the most urgent need for development, we know less about the direction of causation and the functional form of the association between the strength of legal property rights and per-capita incomes. A seminal work in this literature, by Acemoglu, Johnson and Robinson (2000), provides optimistic outlooks, whereby also the Least Developed Countries could grow out of poverty if they implemented strong legal property rights.This paper challenges two of Acemoglu et al’s findings. First, I derive a range of micro-mechanisms suggesting that the relationship between the strength of legal property rights and output may not be linear as asserted by Acemoglu et al and a number of other scholars and institutions. Instead, these mechanisms imply the existence of a weak relationship between property rights and output in the lowest stages of development and a structural break after early growth. Second, I suggest why the direction of causation may turn around after early development. I confirm the predictions from my analysis of those mechanisms with non-parametric, instrumented regressions. My results hold not only for Acemoglu’s dataset but are robust for alternative specifications of property rights. I use four different datasets that employ different methodologies for measuring formal property rights protection and with each of them my theoretical predictions are empirically confirmed. Both predictions also hold true when interacting quantifications of property law and contract law, and whether or not the data is instrumented.Institutional reforms, and particularly reforms to property rights, have been advocated as a panacea in development policy of recent years, for example by the World Bank. The Acemoglu et al (2000) study has continuously been cited as one of the main pieces of evidence supporting these policy suggestions. My study shows, however, that the strength of formal property law matters mostly at specific stages of development and not across all countries. One policy does not fit all cases. I show that property law matters greatly for Mid-Income Countries but that it is important not to overestimate its potential for the Least Developed Countries. We must not stop searching for the causes of growth in the earliest stages of development; reforming and enforcing property law alone does not resolve the poorest nations' poverty traps.
{"title":"Uncovering Acemoglu's Black Box: Why the Contribution of Formal Property Law to Economic Growth Cannot Be Linear But Must Depend on the Development Stage of a Country","authors":"D. Heine","doi":"10.2139/ssrn.2695737","DOIUrl":"https://doi.org/10.2139/ssrn.2695737","url":null,"abstract":"Much evidence has been presented that legal institutions, and particularly property rights, cause economic growth. Yet, precisely for those countries with the most urgent need for development, we know less about the direction of causation and the functional form of the association between the strength of legal property rights and per-capita incomes. A seminal work in this literature, by Acemoglu, Johnson and Robinson (2000), provides optimistic outlooks, whereby also the Least Developed Countries could grow out of poverty if they implemented strong legal property rights.This paper challenges two of Acemoglu et al’s findings. First, I derive a range of micro-mechanisms suggesting that the relationship between the strength of legal property rights and output may not be linear as asserted by Acemoglu et al and a number of other scholars and institutions. Instead, these mechanisms imply the existence of a weak relationship between property rights and output in the lowest stages of development and a structural break after early growth. Second, I suggest why the direction of causation may turn around after early development. I confirm the predictions from my analysis of those mechanisms with non-parametric, instrumented regressions. My results hold not only for Acemoglu’s dataset but are robust for alternative specifications of property rights. I use four different datasets that employ different methodologies for measuring formal property rights protection and with each of them my theoretical predictions are empirically confirmed. Both predictions also hold true when interacting quantifications of property law and contract law, and whether or not the data is instrumented.Institutional reforms, and particularly reforms to property rights, have been advocated as a panacea in development policy of recent years, for example by the World Bank. The Acemoglu et al (2000) study has continuously been cited as one of the main pieces of evidence supporting these policy suggestions. My study shows, however, that the strength of formal property law matters mostly at specific stages of development and not across all countries. One policy does not fit all cases. I show that property law matters greatly for Mid-Income Countries but that it is important not to overestimate its potential for the Least Developed Countries. We must not stop searching for the causes of growth in the earliest stages of development; reforming and enforcing property law alone does not resolve the poorest nations' poverty traps.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131436655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This presentation discusses the interactions between the International Labour Organization (ILO) and broader civil society. There is integration of non-governmental social partners in the identity of the Organization itself – Employers’ and Workers’ Organizations in view of ILO’s focus on labour. However, ILO maintains that… “...employers’ and workers’ organizations are distinct from other civil society groups in that they represent the actors of the “real economy” and draw their legitimacy from their membership” This leads to reduced scope for ILO interaction with broader civil society described as non-governmental organizations or civil society organizations. While there is provision for accreditation of NGOs which share ILO’s principles and values, they have to engage with the ILO as observers.In practice however, there is considerable collaboration at the operational level with a variety of international, regional, national and local nongovernmental organizations. This could be through technical cooperation programmes and projects, advocacy campaigns on priority issues such as labour rights and trade agreements, domestic workers, migrant workers, and public private partnerships, among others. Global and regional trade union federations collaborate with NGO forums to advance common causes. ILO instruments request the involvement of specific civil society groups beyond the social partners. In a number of countries, tripartite plus forums involving NGOs have emerged such as labour and social councils, labour advisory bodies and multi-stakeholder task groups.There are still some problems. NGOs feel left out of the ILO process. Accreditation can sometimes be exclusionary. Special consultative status for NGOs means no role in decision making powers. Fragmentation of NGOs, their narrow focus, their donor driven agendas, and limited resources further constrain their role within the ILO. Yet it is in the interest of all stakeholders to work together for best synergy to serve the interest of workers and promotion of social justice.
{"title":"International Labour Organization (ILO) and Broader Civil Society: An Uneasy Relationship? (Presentation Slides)","authors":"P. Wickramasekara","doi":"10.2139/ssrn.2689000","DOIUrl":"https://doi.org/10.2139/ssrn.2689000","url":null,"abstract":"This presentation discusses the interactions between the International Labour Organization (ILO) and broader civil society. There is integration of non-governmental social partners in the identity of the Organization itself – Employers’ and Workers’ Organizations in view of ILO’s focus on labour. However, ILO maintains that… “...employers’ and workers’ organizations are distinct from other civil society groups in that they represent the actors of the “real economy” and draw their legitimacy from their membership” This leads to reduced scope for ILO interaction with broader civil society described as non-governmental organizations or civil society organizations. While there is provision for accreditation of NGOs which share ILO’s principles and values, they have to engage with the ILO as observers.In practice however, there is considerable collaboration at the operational level with a variety of international, regional, national and local nongovernmental organizations. This could be through technical cooperation programmes and projects, advocacy campaigns on priority issues such as labour rights and trade agreements, domestic workers, migrant workers, and public private partnerships, among others. Global and regional trade union federations collaborate with NGO forums to advance common causes. ILO instruments request the involvement of specific civil society groups beyond the social partners. In a number of countries, tripartite plus forums involving NGOs have emerged such as labour and social councils, labour advisory bodies and multi-stakeholder task groups.There are still some problems. NGOs feel left out of the ILO process. Accreditation can sometimes be exclusionary. Special consultative status for NGOs means no role in decision making powers. Fragmentation of NGOs, their narrow focus, their donor driven agendas, and limited resources further constrain their role within the ILO. Yet it is in the interest of all stakeholders to work together for best synergy to serve the interest of workers and promotion of social justice.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114255077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article considers which junior barristers are appointed to the rank of Queen's Counsel. The criticisms of the old appointments system are discussed and statistical methods are used to assess whether the changes to the QC appointments system introduced in 2004 improved the prospects of appointment for groups, such as women, that were disadvantaged by the previous system. The results show that under the reformed system groups that were historically less likely to be appointed QCs, such as women, continue to be so. However it is discussed how this may (partly) be attributable to lower rates of application, rather than unfair discrimination among applicants.
{"title":"Taking Silk: An Empirical Study of the Award of Queen's Counsel Status 1981–2015","authors":"Michael Blackwell","doi":"10.1111/1468-2230.12157","DOIUrl":"https://doi.org/10.1111/1468-2230.12157","url":null,"abstract":"This article considers which junior barristers are appointed to the rank of Queen's Counsel. The criticisms of the old appointments system are discussed and statistical methods are used to assess whether the changes to the QC appointments system introduced in 2004 improved the prospects of appointment for groups, such as women, that were disadvantaged by the previous system. The results show that under the reformed system groups that were historically less likely to be appointed QCs, such as women, continue to be so. However it is discussed how this may (partly) be attributable to lower rates of application, rather than unfair discrimination among applicants.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116057607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the traditional account, American courts transformed the law of waste, radically diverging from British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law. That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the modern rule in comparison with the drawbacks of the earlier, common law rule. A full history, reaching back to the common law doctrine has not been written until now. This article provides a legal history of the doctrine of waste, exploring the original common law doctrine prior to the nineteenth century transformation, and demonstrating the multiple flaws of the traditional account. This article demonstrates that there is little support for the traditional story of a radical and American break motivated by land development. A full account demonstrates that the change was not radical, but rather consistent with centuries of British law. The shift also was not particularly American, but rather roughly contemporaneous with and parallel to a British shift. Most importantly, courts in both countries shifted doctrines to address a change in the technology of surveying and title recordation, rather than in response to economic forces. This new history of waste law also offers a critique of theories of the transformation of law, along with current methods in legal history that privilege social factors and economic circumstances and largely abandon the traditional legal history methods of tracing the evolution of doctrine. Abandoning doctrine and privileging social factors has detracted from accurately understanding both legal transformation and the role of law — and particularly property law — in American society, suggesting that law is much more flexible and responsive to social change than it necessarily is in everyday politics
{"title":"A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas about the Transformation of Law","authors":"Jill M. Fraley","doi":"10.2139/SSRN.2673652","DOIUrl":"https://doi.org/10.2139/SSRN.2673652","url":null,"abstract":"In the traditional account, American courts transformed the law of waste, radically diverging from British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law. That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the modern rule in comparison with the drawbacks of the earlier, common law rule. A full history, reaching back to the common law doctrine has not been written until now. This article provides a legal history of the doctrine of waste, exploring the original common law doctrine prior to the nineteenth century transformation, and demonstrating the multiple flaws of the traditional account. This article demonstrates that there is little support for the traditional story of a radical and American break motivated by land development. A full account demonstrates that the change was not radical, but rather consistent with centuries of British law. The shift also was not particularly American, but rather roughly contemporaneous with and parallel to a British shift. Most importantly, courts in both countries shifted doctrines to address a change in the technology of surveying and title recordation, rather than in response to economic forces. This new history of waste law also offers a critique of theories of the transformation of law, along with current methods in legal history that privilege social factors and economic circumstances and largely abandon the traditional legal history methods of tracing the evolution of doctrine. Abandoning doctrine and privileging social factors has detracted from accurately understanding both legal transformation and the role of law — and particularly property law — in American society, suggesting that law is much more flexible and responsive to social change than it necessarily is in everyday politics","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"3 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132089119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Patent law has experienced extraordinary upheaval over the past few years, a disruption that touches virtually every aspect of policy and practice. In this essay, I’ll talk about some of the most recent developments in patent law, from broad themes to specific doctrinal moves. Given the limits of this form, and the sheer amount of change, I can only touch on the highlights. But those highlights reveal an area of law that is dynamic — and yet in many respects fundamentally the same.
{"title":"Recent Developments in Patent Law - 2015","authors":"Jason A. Rantanen","doi":"10.2139/SSRN.2658737","DOIUrl":"https://doi.org/10.2139/SSRN.2658737","url":null,"abstract":"Patent law has experienced extraordinary upheaval over the past few years, a disruption that touches virtually every aspect of policy and practice. In this essay, I’ll talk about some of the most recent developments in patent law, from broad themes to specific doctrinal moves. Given the limits of this form, and the sheer amount of change, I can only touch on the highlights. But those highlights reveal an area of law that is dynamic — and yet in many respects fundamentally the same.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125631655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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