Robert F. Williams
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195343083
- eISBN:
- 9780199866960
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343083.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into ...
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This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.Less
This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0002
- Subject:
- Law, Human Rights and Immigration
The right of individual petition at international level has a long history, which has nowadays consolidated it as a legal right. It has had distinct formulations in several human rights treaties and ...
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The right of individual petition at international level has a long history, which has nowadays consolidated it as a legal right. It has had distinct formulations in several human rights treaties and international instruments, at both universal (United Nations) and regional levels. By means of its exercise, individuals have achieved direct access before international human rights tribunals. This is illustrated by recent developments in the European, the inter-American and the African human rights systems. A remarkable evolution, concerning the legitimatio ad causam, has been taking place, moving from locus standi in judicio to jus standi of individuals in international legal proceedings.Less
The right of individual petition at international level has a long history, which has nowadays consolidated it as a legal right. It has had distinct formulations in several human rights treaties and international instruments, at both universal (United Nations) and regional levels. By means of its exercise, individuals have achieved direct access before international human rights tribunals. This is illustrated by recent developments in the European, the inter-American and the African human rights systems. A remarkable evolution, concerning the legitimatio ad causam, has been taking place, moving from locus standi in judicio to jus standi of individuals in international legal proceedings.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0011
- Subject:
- Law, Human Rights and Immigration
International human rights tribunals, such as the Inter-American and the European Courts of Human Rights, have in recent years been engaged in overcoming obstacles to the individual's direct access ...
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International human rights tribunals, such as the Inter-American and the European Courts of Human Rights, have in recent years been engaged in overcoming obstacles to the individual's direct access to justice. On three recent occasions, for example, the Inter-American Court has pronounced on the incompatibility of self-amnesties with the relevant provisions of the American Convention on Human Rights.This evolution has disclosed both an institutional and a jurisprudential dimension. The former is materialized in the presence and participation of the victims in all stages of the international legal procedure. The second has recently culminated in holdings of the Inter-American Court to the effect that the right of access to justice has nowadays entered the domain of jus cogens.Less
International human rights tribunals, such as the Inter-American and the European Courts of Human Rights, have in recent years been engaged in overcoming obstacles to the individual's direct access to justice. On three recent occasions, for example, the Inter-American Court has pronounced on the incompatibility of self-amnesties with the relevant provisions of the American Convention on Human Rights.This evolution has disclosed both an institutional and a jurisprudential dimension. The former is materialized in the presence and participation of the victims in all stages of the international legal procedure. The second has recently culminated in holdings of the Inter-American Court to the effect that the right of access to justice has nowadays entered the domain of jus cogens.
Astrid Kjeldgaard-Pedersen
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198820376
- eISBN:
- 9780191860294
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198820376.003.0003
- Subject:
- Law, Public International Law
Chapter 3 examines a number of issues of general relevance to public international law. It first inquires why the overall issue of the applicability of international law to individuals was not long ...
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Chapter 3 examines a number of issues of general relevance to public international law. It first inquires why the overall issue of the applicability of international law to individuals was not long ago resolved once and for all. Focusing on treaty law, Section 3.1 analyses the work of the ILC pertaining to the application of treaties to individuals, and studies the few, controversial, rulings by the PCIJ and ICJ on this issue. With the example of the 1920 debate on the proposal for a High Court of International Justice, Section 3.2 studies individual obligations under customary international law. Section 3.3 considers the doctrine of diplomatic protection and its correlation to the notion of direct individual rights under international law. Finally, as an introduction to Chapters 4–8, Section 3.4 sketches out the considerations that are particularly relevant for the determination of treaty provisions as direct rights and obligations of individuals.Less
Chapter 3 examines a number of issues of general relevance to public international law. It first inquires why the overall issue of the applicability of international law to individuals was not long ago resolved once and for all. Focusing on treaty law, Section 3.1 analyses the work of the ILC pertaining to the application of treaties to individuals, and studies the few, controversial, rulings by the PCIJ and ICJ on this issue. With the example of the 1920 debate on the proposal for a High Court of International Justice, Section 3.2 studies individual obligations under customary international law. Section 3.3 considers the doctrine of diplomatic protection and its correlation to the notion of direct individual rights under international law. Finally, as an introduction to Chapters 4–8, Section 3.4 sketches out the considerations that are particularly relevant for the determination of treaty provisions as direct rights and obligations of individuals.
Jesse Wall
- Published in print:
- 2015
- Published Online:
- August 2015
- ISBN:
- 9780198727989
- eISBN:
- 9780191794285
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198727989.003.0006
- Subject:
- Law, Philosophy of Law, Human Rights and Immigration
This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the ...
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This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the use and storage of bodily material. Since property rights are exclusive rights, property rights are exercisable against an open-set of persons, actionable per se, and impose duties of non-interference. This set of features can explain why there is pressure on the common law to recognize property rights in bodily material: to pull the entitlements in bodily material behind an ‘exclusionary boundary’. Additionally, since property rights are also rights that can exist independently of the particular rights-holder, they impose corrective remedial duties and are transferable. This set of features can begin to explain why there are limits to the appropriate application of property law: not all rights regarding an object or resource can exist independently of the rights-holder.Less
This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the use and storage of bodily material. Since property rights are exclusive rights, property rights are exercisable against an open-set of persons, actionable per se, and impose duties of non-interference. This set of features can explain why there is pressure on the common law to recognize property rights in bodily material: to pull the entitlements in bodily material behind an ‘exclusionary boundary’. Additionally, since property rights are also rights that can exist independently of the particular rights-holder, they impose corrective remedial duties and are transferable. This set of features can begin to explain why there are limits to the appropriate application of property law: not all rights regarding an object or resource can exist independently of the rights-holder.
Lars P. Feld and Gebhard Kirchgässner
- Published in print:
- 2008
- Published Online:
- August 2013
- ISBN:
- 9780262140980
- eISBN:
- 9780262280495
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262140980.003.0009
- Subject:
- Economics and Finance, Econometrics
This chapter examines the effects of the three types of constitutional or statutory clauses—fiscal decentralization, direct popular rights, and formal fiscal restraints—on public deficit and debt in ...
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This chapter examines the effects of the three types of constitutional or statutory clauses—fiscal decentralization, direct popular rights, and formal fiscal restraints—on public deficit and debt in the twenty-six Swiss cantons, and is organized as follows. Section 9.2 describes cantonal institutions (called “debt brakes”) aimed at preventing public debt from getting out of control. Section 9.3 presents an econometric model to allow a more systematic analysis of their effects. Section 9.4 discusses the empirical results. Section 9.5 considers the new debt brake that has been introduced at federal level. Section 9.6 discusses the problem of overindebtedness at lower governmental levels that might arise in any federal country. It is shown that with well-designed institutions, federal states might be able to follow a sustainable fiscal policy better than unitary states. Alongside fiscal restrictions, fiscal referenda are useful in achieving that.Less
This chapter examines the effects of the three types of constitutional or statutory clauses—fiscal decentralization, direct popular rights, and formal fiscal restraints—on public deficit and debt in the twenty-six Swiss cantons, and is organized as follows. Section 9.2 describes cantonal institutions (called “debt brakes”) aimed at preventing public debt from getting out of control. Section 9.3 presents an econometric model to allow a more systematic analysis of their effects. Section 9.4 discusses the empirical results. Section 9.5 considers the new debt brake that has been introduced at federal level. Section 9.6 discusses the problem of overindebtedness at lower governmental levels that might arise in any federal country. It is shown that with well-designed institutions, federal states might be able to follow a sustainable fiscal policy better than unitary states. Alongside fiscal restrictions, fiscal referenda are useful in achieving that.
Arvind Panagariya, Pinaki Chakraborty, and M. Govinda Rao
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199367863
- eISBN:
- 9780199367887
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199367863.003.0005
- Subject:
- Economics and Finance, Development, Growth, and Environmental
Agriculture has considerably slowed down from the peak of the green revolution. Accordingly, this chapter focuses on reforms that the states and the center can undertake to revive agricultural ...
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Agriculture has considerably slowed down from the peak of the green revolution. Accordingly, this chapter focuses on reforms that the states and the center can undertake to revive agricultural growth. It argues that the single most important reform relates to the marketing of agricultural produce so that the farmer gets a remunerative price. This involves giving retailers rights to directly purchase from the farmer and the farmer the right to direct sales to whomsoever she pleases. Reforms are also required in land markets both with respect sales and leasing. States also need to put an end to the provision of free water and electricity. India also needs facilitate the introduction of modern technology in agriculture. It needs to explore the prospects for the expansion of drip irrigation and other similar technologies. Finally, the central government needs to speed up the introduction of genetically modified seeds.Less
Agriculture has considerably slowed down from the peak of the green revolution. Accordingly, this chapter focuses on reforms that the states and the center can undertake to revive agricultural growth. It argues that the single most important reform relates to the marketing of agricultural produce so that the farmer gets a remunerative price. This involves giving retailers rights to directly purchase from the farmer and the farmer the right to direct sales to whomsoever she pleases. Reforms are also required in land markets both with respect sales and leasing. States also need to put an end to the provision of free water and electricity. India also needs facilitate the introduction of modern technology in agriculture. It needs to explore the prospects for the expansion of drip irrigation and other similar technologies. Finally, the central government needs to speed up the introduction of genetically modified seeds.
Henry Richardson
- Published in print:
- 2018
- Published Online:
- August 2018
- ISBN:
- 9780190247744
- eISBN:
- 9780190247768
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190247744.003.0012
- Subject:
- Philosophy, Moral Philosophy, General
This concluding chapter restates the book’s central arguments in a simple, linear order, highlighting its conclusions about the nature of the moral community, the proper analysis of dyadic rights and ...
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This concluding chapter restates the book’s central arguments in a simple, linear order, highlighting its conclusions about the nature of the moral community, the proper analysis of dyadic rights and duties, and the possibility of moral authority. It explains how this argument clears away a threshold objection to constructive ethical pragmatism (CEP) and how the book’s accounts of practical intelligence, moral psychology, and objectivity further support this normative ethical view. It considers how the central argument might be extended by dropping the assumption that moral authority is limited to specifying objective moral norms and by relaxing the expository focus on cases of two intelligent individuals working things out together at the input stage. Against the former of these broadenings, it notes the value of the way that the account, as developed, enables us to reconcile morality’s possibly eternal objective core with the possibility of our contingently adding to its objective content.Less
This concluding chapter restates the book’s central arguments in a simple, linear order, highlighting its conclusions about the nature of the moral community, the proper analysis of dyadic rights and duties, and the possibility of moral authority. It explains how this argument clears away a threshold objection to constructive ethical pragmatism (CEP) and how the book’s accounts of practical intelligence, moral psychology, and objectivity further support this normative ethical view. It considers how the central argument might be extended by dropping the assumption that moral authority is limited to specifying objective moral norms and by relaxing the expository focus on cases of two intelligent individuals working things out together at the input stage. Against the former of these broadenings, it notes the value of the way that the account, as developed, enables us to reconcile morality’s possibly eternal objective core with the possibility of our contingently adding to its objective content.