{"title":"After Misogyny: How the Law Fails Women and What to Do About It","authors":"Katharine G Young","doi":"10.1093/ajcl/avae025","DOIUrl":"https://doi.org/10.1093/ajcl/avae025","url":null,"abstract":"","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"4 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141920270","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 concerns the legislative regulation of administrative procedure in Europe. Two main themes are discussed. The first is the spread of administrative procedure legislation. The vast majority of the member states of the European Union, though not all, have adopted some type of code of administrative procedure. Arguably, this constitutes a significant change in the pattern of modern administrative law. The second theme concerns commonality and diversity in European laws. Both common and distinctive features are considered from a twofold point of view: functional and structural. Functionally, attention is devoted to the rationales for such a legislative instrument, including procedural fairness and administrative efficiency. The structural features of administrative procedure acts (APAs) include, first, their size and scope and the nature of their provisions; second, their legal status, in particular whether some of them can be regarded as “super-statutes”; third, their provisions concerning the rights and duties of the individual. Interestingly, despite numerous differences between national APAs, deriving from both context and policy choices, there are certain basic requirements, such as the right to be heard and the duty to give reasons, which seem to prevail everywhere. The Article suggests that such common features depend on a mix of factors, including functional needs, prestige, and the influence of supranational legal orders.
{"title":"Administrative Procedure Acts in Europe: An Emerging “Common Core”?","authors":"G. D. Cananea, Leonardo Parona","doi":"10.1093/ajcl/avae016","DOIUrl":"https://doi.org/10.1093/ajcl/avae016","url":null,"abstract":"\u0000 This Article concerns the legislative regulation of administrative procedure in Europe. Two main themes are discussed. The first is the spread of administrative procedure legislation. The vast majority of the member states of the European Union, though not all, have adopted some type of code of administrative procedure. Arguably, this constitutes a significant change in the pattern of modern administrative law. The second theme concerns commonality and diversity in European laws. Both common and distinctive features are considered from a twofold point of view: functional and structural. Functionally, attention is devoted to the rationales for such a legislative instrument, including procedural fairness and administrative efficiency. The structural features of administrative procedure acts (APAs) include, first, their size and scope and the nature of their provisions; second, their legal status, in particular whether some of them can be regarded as “super-statutes”; third, their provisions concerning the rights and duties of the individual. Interestingly, despite numerous differences between national APAs, deriving from both context and policy choices, there are certain basic requirements, such as the right to be heard and the duty to give reasons, which seem to prevail everywhere. The Article suggests that such common features depend on a mix of factors, including functional needs, prestige, and the influence of supranational legal orders.","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"19 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141927280","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}
{"title":"The Constitution of the Russian Federation: A Contextual Analysis","authors":"Robert C. Blitt","doi":"10.1093/ajcl/avae020","DOIUrl":"https://doi.org/10.1093/ajcl/avae020","url":null,"abstract":"","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":" 929","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141823132","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}
When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This Article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order. The Article explores the particular strategies that courts might employ in service of self-empowerment: first, a strategy of maxi-minimalism features Marbury-style maximalist reasoning that expands judicial power while issuing a narrow ruling to avoid political backlash; second, an inverse strategy of mini-maximalism involves formalistic, orthodox doctrine that downplays the expansion of judicial power, even as a court delivers a decision of immediate consequence; third, a strategy of coalition-building that aids a judiciary in seeking allies in other institutional stakeholders; fourth, a rhetorical strategy that courts may use to craft a constitutional narrative of popular salience; and, fifth, a unanimous, single-voice decision that provides the optics of a unified judicial front. This Article also considers the conditions that tend to give rise to instances of judicial self-empowerment. Courts in diverse contexts tend to assert themselves, for example, when their own institutional turf is threatened, during moments of political or constitutional crisis, when judges can capitalize on popular support for the outcome of a ruling, and under an influential judicial leader mindful of establishing a legacy.
{"title":"Strategic Judicial Empowerment","authors":"Yvonne Tew","doi":"10.1093/ajcl/avad040","DOIUrl":"https://doi.org/10.1093/ajcl/avad040","url":null,"abstract":"\u0000 When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This Article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order.\u0000 The Article explores the particular strategies that courts might employ in service of self-empowerment: first, a strategy of maxi-minimalism features Marbury-style maximalist reasoning that expands judicial power while issuing a narrow ruling to avoid political backlash; second, an inverse strategy of mini-maximalism involves formalistic, orthodox doctrine that downplays the expansion of judicial power, even as a court delivers a decision of immediate consequence; third, a strategy of coalition-building that aids a judiciary in seeking allies in other institutional stakeholders; fourth, a rhetorical strategy that courts may use to craft a constitutional narrative of popular salience; and, fifth, a unanimous, single-voice decision that provides the optics of a unified judicial front. This Article also considers the conditions that tend to give rise to instances of judicial self-empowerment. Courts in diverse contexts tend to assert themselves, for example, when their own institutional turf is threatened, during moments of political or constitutional crisis, when judges can capitalize on popular support for the outcome of a ruling, and under an influential judicial leader mindful of establishing a legacy.","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"55 35","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141339257","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 United States, Canada, Israel, Australia, and many parts of Europe, conflicts between religious liberty and gender equality (including LGBTQ equality) are understood and analyzed as “culture wars.” This view has shaped the sociolegal understanding of the conflict—how the legal community makes sense of cases and interprets their social significance—and has narrowed the perceived scope of legal solutions to religion–equality conflicts to zero-sum, either–or decisions: either a carte blanche for religious objectors or a strict and universal enforcement of anti-discrimination law. Drawing on qualitative (N=41) and experimental (N=559) evidence from the United States and Israel and on cases from a range of countries and contexts, this Article makes two arguments: First, the understanding of religion–equality conflicts shall not be complete unless we recognize that they occur both between and within cultures. The two wars are connected in a feedback loop, as the struggle within religion influences what conflicts are waged at the culture war and what conflicts are resolved internally. Second, the war within religion has normative implications: in this struggle, religious communities form intermediate solutions to regulate—and mitigate—religion–equality conflicts. These policies can help expand the nuance and scope of legal solutions to the conflict. Showing how, this Article makes a timely intervention in a legal debate that struggles with setting clear rules and seeks to find more nuanced resolutions for the conflict.
{"title":"The War Within Religion: Towards a More Nuanced Resolution of Religion–Equality Conflicts","authors":"Netta Barak‐Corren","doi":"10.1093/ajcl/avae005","DOIUrl":"https://doi.org/10.1093/ajcl/avae005","url":null,"abstract":"\u0000 In the United States, Canada, Israel, Australia, and many parts of Europe, conflicts between religious liberty and gender equality (including LGBTQ equality) are understood and analyzed as “culture wars.” This view has shaped the sociolegal understanding of the conflict—how the legal community makes sense of cases and interprets their social significance—and has narrowed the perceived scope of legal solutions to religion–equality conflicts to zero-sum, either–or decisions: either a carte blanche for religious objectors or a strict and universal enforcement of anti-discrimination law.\u0000 Drawing on qualitative (N=41) and experimental (N=559) evidence from the United States and Israel and on cases from a range of countries and contexts, this Article makes two arguments: First, the understanding of religion–equality conflicts shall not be complete unless we recognize that they occur both between and within cultures. The two wars are connected in a feedback loop, as the struggle within religion influences what conflicts are waged at the culture war and what conflicts are resolved internally.\u0000 Second, the war within religion has normative implications: in this struggle, religious communities form intermediate solutions to regulate—and mitigate—religion–equality conflicts. These policies can help expand the nuance and scope of legal solutions to the conflict. Showing how, this Article makes a timely intervention in a legal debate that struggles with setting clear rules and seeks to find more nuanced resolutions for the conflict.","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"37 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140979158","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}
Tax administrations have long grappled with the question of how noncompliant taxpayers should be allowed to correct their tax affairs voluntarily. While many jurisdictions have adopted various voluntary disclosure programs, several countries—including some of the world’s largest economies—have not done so. This Article examines the voluntary disclosure practices in twenty-five countries that do not have voluntary disclosure programs. It finds that the tax authorities in these jurisdictions frequently follow informal voluntary disclosure practices that operate as de facto substitutes for formal policies. In some countries, informal voluntary disclosure practices coexist alongside formal schemes. In light of these findings, this Article explores the tax policy considerations concerning the choice between formal and informal voluntary disclosure policies, and shows that formal schemes have several advantages over informal practices.
{"title":"Formal vs. Informal Voluntary Disclosure Policies","authors":"Noam Noked, Viktoria Wöhrer, Pierce Lai","doi":"10.1093/ajcl/avae015","DOIUrl":"https://doi.org/10.1093/ajcl/avae015","url":null,"abstract":"\u0000 Tax administrations have long grappled with the question of how noncompliant taxpayers should be allowed to correct their tax affairs voluntarily. While many jurisdictions have adopted various voluntary disclosure programs, several countries—including some of the world’s largest economies—have not done so. This Article examines the voluntary disclosure practices in twenty-five countries that do not have voluntary disclosure programs. It finds that the tax authorities in these jurisdictions frequently follow informal voluntary disclosure practices that operate as de facto substitutes for formal policies. In some countries, informal voluntary disclosure practices coexist alongside formal schemes. In light of these findings, this Article explores the tax policy considerations concerning the choice between formal and informal voluntary disclosure policies, and shows that formal schemes have several advantages over informal practices.","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"12 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140980600","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}
There has been considerable discussion concerning the key values or goals underpinning the express trust device in English law. However, there is as yet no existing scholarship that explores the normative values of Chinese trust law since its enactment in 2001. This Article examines Chinese trust law from the perspective of personal autonomy. It identifies three dimensions of the conception of personal autonomy and explores how the trust law rules engage with each dimension. It finds that, in China, individuals have the autonomy to use the express trust device to arrange their property plans. However, such autonomy is limited in that it can only be exercised in alignment with the state’s regulatory goals. This is in stark contrast to its English counterpart, which allows individual autonomy to the largest possible extent. This Article considers the implications this analysis has for the reformation of Chinese trust law. It discusses some reform proposals that have been intensely debated in recent literature and highlights the insights the autonomy-based analysis can offer.
{"title":"The Autonomy-Based Account of Chinese Trust Laws","authors":"Hui Jing","doi":"10.1093/ajcl/avae001","DOIUrl":"https://doi.org/10.1093/ajcl/avae001","url":null,"abstract":"\u0000 There has been considerable discussion concerning the key values or goals underpinning the express trust device in English law. However, there is as yet no existing scholarship that explores the normative values of Chinese trust law since its enactment in 2001. This Article examines Chinese trust law from the perspective of personal autonomy. It identifies three dimensions of the conception of personal autonomy and explores how the trust law rules engage with each dimension. It finds that, in China, individuals have the autonomy to use the express trust device to arrange their property plans. However, such autonomy is limited in that it can only be exercised in alignment with the state’s regulatory goals. This is in stark contrast to its English counterpart, which allows individual autonomy to the largest possible extent. This Article considers the implications this analysis has for the reformation of Chinese trust law. It discusses some reform proposals that have been intensely debated in recent literature and highlights the insights the autonomy-based analysis can offer.","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"6 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139958234","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}
{"title":"Comparing Law: Comparative Law as Reconstruction of Collective Commitments","authors":"Vincenzo Zeno-Zencovich","doi":"10.1093/ajcl/avad033","DOIUrl":"https://doi.org/10.1093/ajcl/avad033","url":null,"abstract":"","PeriodicalId":506824,"journal":{"name":"The American Journal of Comparative Law","volume":"156 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139181308","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：