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While there are substantial differences in the regulatory regimes, cultures, economic history, nature of government, and institutions among the countries surveyed in the book, these countries have also faced common problems. This chapter provides a comparative assessment of how differences in some of these factors have affected accounting, auditing, and corporate governance. It shows that diversity in financial reports prevails worldwide, and discusses various ways used by companies and users of financial reports to cope with this diversity. The appendix illustrates accounting diversity by describing crucial differences among international financial rules and standards (IFRSs) and national standards, in particular, U.S. generally accepted accounting principles (GAAP).

Much argument in modern legal systems (certainly in the American legal system) seems to be a manifestation of this stylized dispute about the relative virtues and vices of rules and standards. Indeed, the rules vs. standards disputes play an important role in fashioning legal directives. In this chapter we will consider the arguments for and against rules and standards.

Chapter Six offers a preliminary exploration of how Balanced Federalism theory would depart from the status quo, imagining the strongest judicial role within such a model. It sets forth the theoretical ideals, factors for consideration, and mechanics of how judicially-enforceable Balanced Federalism constraints could work in lieu of existing doctrine, focusing on the Tenth Amendment. It proposes replacing the bright-line anti-commandeering rule with a judicial standard for evaluating commandeering and even preemption claims. Where dual federalism asks the Tenth Amendment to police a boundary between mutually exclusive spheres of state and federal authority, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity in the gray area between for impermissible compromises to federalism’s underlying values—checks, accountability, localism, and problem-solving. The chapter illustrates the balancing test through application to four concrete controversies: the regulation of stormwater pollution, climate governance, the Katrina response, and national health insurance reform. The chapter concludes with a defense of judicial balancing as a tool of constitutional interpretation in the federalism context. It rebuts the most powerful critiques of judicial balancing, including indeterminacy, judicial bias, and separation of powers. In a world with any judicial federalism constraints, explicit judicial balancing is preferable because values-balancing is inevitable—either covertly in application of a set doctrinal rule or through the initial act of balancing that produced the doctrinal rule. Nevertheless, legitimate concerns about expansive judicial discretion lay the foundation for later discussion of when the judiciary should defer to the federalism determinations of political actors.

Humans who are governed by emotional states have the capacity to establish, develop, and retain different interpretations of the people familiar to them. Hence it is the part of the biographer to examine these untethered interpretations and create from them a portrait that will be identifiable from all angles. A biography cannot present a life in the unclear and multi-faceted form that is its familiar and daily form. A biography in this sense is therefore an illusion. This chapter discusses the challenge of shaping biographies. In it, possible flaws of the biographical genre, including the invasion of privacy to the delivery of truths to one's life story, are considered. The chapter also discusses the standard rules governing the biographer's manner of using confidential information or documents. Particular focus is on the ethics of biography, the rights and the wrongs of presentation of those to whom death affords little protection.

While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override them.

This chapter suggests another legal technique for advancing the goals of labour law: using open-ended standards. In recent years the use of such standards has become widespread in many legal systems. Courts are using these legal tools to develop labour law and adapt it to new needs and new circumstances. Focusing on three standards—good faith, proportionality, and the managerial prerogative—I justify the new trend and support its further expansion by relying on the literature concerning rules vs standards and by showing how these standards have been applied in practice. The general idea is that standards allow ongoing adaptation and response to new problems in line with the goals of the law.

The three global regulatory standards seen in the disputes studied in this book comprise: a regulatory coherence standard calling for certain relationships between regulatory measures and their purposes, a standard requiring that a regulating State has demonstrated due regard for the interests of other States, and a standard requiring the exercise of due diligence in the exercise of States’ obligations to prevent transboundary harm. These three core regulatory standards consistently characterise the environmental and health disputes in this book, and they appear to be gaining status as global regulatory standards for the future. The appearance of regulatory standards is best understood as an aspect of the functioning of the plural world legal order rather than as a constitutionalisation of this order in a stronger sense. Theories of legitimate authority in plural legal orders cast valuable light on the legitimacy of the emerging standards-enriched international law.

This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and coherence-based reasoning. It examines how various heuristics and biases—such as the compromise and contrast effects, hindsight bias, omission bias, and anchoring—are reflected in judicial decision-making. Special attention is given to the limited ability of fact-finders to disregard inadmissible evidence, the interactions between race and judicial decision-making, the role of non-consequentialist moral judgments in judicial decision-making, and the impact of the choice between rules and standards on the predictability of judgments. Finally, the chapter discusses two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making, and decision-making by judges (as opposed to laypersons).

This chapter deals with the question of conditions of imprisonment or detention. It enumerates the principles of the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the African Charter on Human Rights on prisoner conditions and investigates its jurisdiction. It briefly describes the predicament on whether these provisions are binding only on states that are members of these associations or does it reflect a rule of general international law. In addition, it looks into the Standard Minimum Rules for the Treatment of Prisoners passed by the UN Congress on the Prevention of Crime and Treatment of Offenders and the practices done by the UN Human Rights Committee. Furthermore, it states the legal consequences of unlawful conditions of imprisonment or detention.

The reasoning of international adjudicatory bodies in regulatory disputes is gradually producing a set of ‘global regulatory standards’ conditioning the exercise of States’ regulatory freedom and obligations. Global regulatory standards sit at the meeting point between domestic and international authority in a wide range of regulatory fields. Their emergence is the result of the increasing interdependence among States reflected in international law at the present time in history. This book enquires into the legitimacy of this new ‘standards-enriched’ international law, examining the part played by international courts and tribunals in its articulation, the interpretive techniques employed and the influence of the pleadings. These analyses point to the need for political attention to the emerging global regulatory standards, particularly if the relationship between international and domestic authority is to be governed through requirements for proportionality in domestic decision-making. The book goes on to examine a range of further challenges and opportunities arising in connection with the emergence of global regulatory standards. These include the accompanying reconception of sovereignty as conferred power, the need to address the fragmentation of international law, and the potential for developments in the status of private actors within international law.

This chapter discusses the difference in the rules of liability for employers when it enters the area of sexual harassment. Traditionally, and as a general proposition, employers are vicariously responsible for the wrongful acts of their employees, when committed at the work site. However, in cases of sexual harassment, applicants or employees who can describe tangible effects from the harassment, such as loss of employment or the denial of a promotion, may take advantage of the standard rule. Those bringing claims of hostile work environment sexual harassment, on the other hand, are subject to more stringent requirements. Until quite recently, they were required to prove that the employer itself either authorized the harassment, or knew that it was occurring and failed to take appropriate corrective measures.

This chapter will demonstrate how taking into account considerations arising from studies on the external dimension of EU law improves on existing descriptive models by helping to make sense of the classic debates on the concept of restriction on economic free movement that were reviewed in the preceding chapters. It will also be shown that a contextual approach, by explaining the existence of individual tests developed for specific areas of free movement law that are usually ignored in de-contextualized debates on the concept of restriction, is more comprehensive than existing descriptive models. Lastly, this chapter will demonstrate how institutional inputs lead to the development of more context- and institutional-sensitive normative approaches to the concept of restriction on economic free movement.

This chapter briefly assesses the geographical scope of the practice of corporal punishment and investigates reports of the rare occasions upon which it has been considered by the General Assembly and other UN bodies. It compares the Third and Fourth Geneva Conventions' prohibition of corporal punishment and takes on the question whether the infliction of corporal punishment would entail a grave breach of the Conventions within their respective meaning. In the environment of international human rights law, the chapter studies the UN Standard Minimum Rules for the Treatment of Prisoners definition of corporate punishment. Furthermore, it analyses the Tyrer v. United Kingdom case brought before the European Commission of Human Rights to test the compatibility of jurisdiction under the European Convention on Human Rights.

This chapter follows the path towards the enactment of the CRPD. It looks at the preceding international instruments on disability as well as the steps taken to elaborate a legally binding international instrument. It goes on to evaluate the way in which the Convention distinguishes itself from other human rights treaties. It not only discusses the role of the prohibition of discrimination with regard to disabled people as well as its potential to address their marginalisation but also analyses any resemblances between the CRPD and the Convention on the Rights of the Child. It moreover examines how the CRPD has improved human rights protection generally by advancing the principle of substantive equality.