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South Africa’s mixed, pluralistic legal order demands a nuanced approach to cultural expertise in litigation. Culture in general and cultural expertise in particular have…
South Africa’s mixed, pluralistic legal order demands a nuanced approach to cultural expertise in litigation. Culture in general and cultural expertise in particular have always played an important role in all areas of law, both state and non-state, and a rich collection of jurisprudence is available to serve as illustration. Even though both the common law and the customary law are both recognized legal systems, they are treated differently by the judiciary. The general rule is that judicial notice must be taken of the common law rules and that judicial notice of customary law may only be taken “in so far as such law can be ascertained readily and with sufficient certainty.” The ascertainment of customary law provides a challenge to the judiciary because of its adaptive inherent flexibility and indeterminate nature, especially where the rules are oral or so-called “living” customary law. Cultural expertise also plays an important role in the case of non-state law. A considerable quantity of case law exists where the courts have considered expert evidence regarding the content of certain religious legal systems to provide protection to litigants claiming that they are subject to those systems. The aim of this contribution is to investigate the diverse approaches of the South African courts when it comes to the admissibility of expert evidence in cases where culture (both custom and religion in both state and non-state law) is relevant. The fact that the South African legal system has its roots firmly in Western law and has been confronted with cultural diversity for a very long time might provide some lessons to the Western world, even if those lessons are only to prevent it from making the same mistakes as the South African legal system has made or might still be doing.
This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades…
This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing the epistemic community framework, it demonstrates how network members, acting as amici curiae, litigators, academics, and judges worked to transmit intellectual capital to Supreme Court decision makers in 12 federalism and separation of powers cases decided between 1983 and 2001. It finds that Federalist Society members were most successful in diffusing ideas into Supreme Court opinions in cases where doctrinal distance was greatest; that is, cases where the Supreme Court moved the farthest from its established constitutional framework.
This paper aims to familiarize readers about the nature and extent of the risks that listed companies and their boards of directors face by not addressing their attention…
This paper aims to familiarize readers about the nature and extent of the risks that listed companies and their boards of directors face by not addressing their attention to insuring the cyber-security of their operations and not disclosing cyber-episodes and their impact on operations as suggested by the SEC's Division of Corporate Finance.
This article provides an overview of recent developments that led the SEC's Division of Corporate Finance to issue a non-binding guidance on cyber-security, along with an analysis of the importance of cyber-security in today's marketplace, those business sectors that already must comply with statutory and regulatory duties to safeguard private information, the applicable duties of directors under Delaware law, and an overview of the enforcement activities against companies that have experienced data breaches, as well as a discussion of private class actions that have sought damages claimed to have resulted from the negligence of companies and their boards to fulfill their duties to protect such information from being stolen due to inadequate systems and protective measures.
The SEC Division of Corporate Finance's voluntary disclosure guidance concerning cyber-security offers various, non-binding reasons for listed companies to report about cyber-events that may be material to a business operation or profitability. Listed companies and their boards face enforcement and private litigation risks in the event of a cyber-incident because of the heightened interest in cyber-security, the considerable costs likely incurred as a result of a cyber-event, and the duties they owe to exercise appropriate oversight in the face of known risks.
The paper provides practical explanation of developing issues by experienced corporate and litigation lawyers.
The Federal Trade Commission (FTC) has initiated policies and legal challenges that have shaped the evolution of competition in healthcare. This chapter discusses not only…
The Federal Trade Commission (FTC) has initiated policies and legal challenges that have shaped the evolution of competition in healthcare. This chapter discusses not only discusses the current matters in healthcare competition, but it also gives a history of past issues faced by the FTC and the approaches used to resolve them. These FTC actions range from challenges to hospital mergers to preventing “reverse payments” from patent holders to generic entrants in pharmaceuticals. Ultimately the healthcare industry faces many unique regulatory and competitive aspects that, while challenging, do not require special rules.
This chapter uncovers the destabilizing and transformative dimensions of a legal process commonly described as assimilation. Lawyers working on behalf of a marginalized group often argue that the group merits inclusion in dominant institutions, and they do so by casting the group as like the majority. Scholars have criticized claims of this kind for affirming the status quo and muting significant differences of the excluded group. Yet, this chapter shows how these claims may also disrupt the status quo, transform dominant institutions, and convert distinctive features of the excluded group into more widely shared legal norms. This dynamic is observed in the context of lesbian, gay, bisexual, and transgender (LGBT) rights, and specifically through attention to three phases of LGBT advocacy: (1) claims to parental recognition of unmarried same-sex parents, (2) claims to marriage, and (3) claims regarding the consequences of marriage for same-sex parents. The analysis shows how claims that appeared assimilationist – demanding inclusion in marriage and parenthood by arguing that same-sex couples are similarly situated to their different-sex counterparts – subtly challenged and reshaped legal norms governing parenthood, including marital parenthood. While this chapter focuses on LGBT claims, it uncovers a dynamic that may exist in other settings.
The purpose of this paper is to analyse the current proposals for reform of the World Trade Organization (WTO) dispute settlement system. Two areas of proposed reforms…
The purpose of this paper is to analyse the current proposals for reform of the World Trade Organization (WTO) dispute settlement system. Two areas of proposed reforms have been chosen: one is regarding democratic control over the WTO dispute settlement body and the other is regarding structural balance within the WTO.
It is a theoretical study based on decided cases, opinions and writing of other writers.
Democratizing a judicial body from within is not the most desirable method to control it. Separation of powers and checks and balances which is termed as institutional balance in WTO is a better way to rein in the judicial organ of the WTO.
Most of the work on WTO judicial reforms have either concentrated on technical aspects. Some writers have written about the dispute settlement system from a political point of view. Most of the writings seem to be shy of pointing towards obvious developments in the WTO dispute settlement system, e.g. the precedent system. The work analyses the proposed reforms from two perspectives and presents writer’s opinion on them which is clearly and openly stated.
By taking conventionalist view of the evolution of biotechnology, we suggest that the process by which entrepreneurs determined what made biotechnology valuable and…
By taking conventionalist view of the evolution of biotechnology, we suggest that the process by which entrepreneurs determined what made biotechnology valuable and figured out how to organize around such an economic logic was contested. The shape that biotechnology has ultimately taken emerged from the resolution of these contests. Convention theory – as elaborated in Boltanski and Thévenot's (2006) On Justification 1 – argues that our economy is shaped by participants affecting the rules of economic action. Whereas most economists would argue that the assignment of value underpins any system of exchange, conventionalists suggest that this value is not only given by the principles of optimization but instead can be derived from many possible spheres such as civic duty, attainment of fame, proof of technologic performance, and demonstration of creativity. More specifically, Boltanski and Thévenot (2006, p. 43) claim that the establishment of a particular logic “comes about as a part of a coordinated process that relies on two supports: a common identification of market goods, whose exchange defines the course of action, and a common evaluation of these objects in terms of prices that make it possible to adjust various actions.” Simply put, economic logics embody principles of economic coordination or conventions that guide interpretation of the technology and its value.
From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly…
From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly curtailing the constitutional protection of abortion rights. From another angle, however, it is puzzling that the Reagan/Bush Court repeatedly refused to overturn Roe v. Wade. We argue that time and again electoral considerations led Republican elites to back away from a forceful assertion of their agenda for constitutional change. As a result, the justices generally acted within the range of possibilities acceptable to the governing regime but still typically had multiple doctrinal options from which to choose.
Fingerhut, based in Minnetonka, Minnesota, is a direct-marketing company that sells a smorgasbord of consumer goods through an array of specially targeted catalogs. In…
Fingerhut, based in Minnetonka, Minnesota, is a direct-marketing company that sells a smorgasbord of consumer goods through an array of specially targeted catalogs. In November 1996, an article in the Star Tribune, a major Minneapolis newspaper, drew attention to a class-action lawsuit pending against Fingerhut that suggests the firm made its profits by exploiting the poor. Several civil rights groups rallied around the suit and submitted amicus curiae in favor of the litigation. The case illustrates issues in ethics and management communication. Discussions focus on the constituencies. Is Fingerhut exploiting its customers or providing them with an affordable method of obtaining valued consumer goods on credit? Do retailers have a duty to offer products at reasonable prices? Are the high interest rates reasonable given the risk? What are the options: pawn shops, rent-to-own? What is the profile of the typical Fingerhut customer? Discussions also focus on the issues communicating to the constituencies. How much damage will the lawsuit do to Fingerhut's image as an ethical, socially conscious company? What communication strategies can the firm employ? Should it react to the lawsuit? What should it tell its employees?
The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided…
The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided by a preponderance of the evidence. This means that conduct challenged under the rule of reason is only condemned if the conduct resulted in more competitive harm in the actual world than a world without the alleged violation. Under conventional analysis, the intent of the parties also plays only a supporting role in determining whether the conduct was anticompetitive. A holder of a valid patent has a right to exclude others practicing the patented technology. And, the patent holder is not assumed to have market power because it expended resources in maintaining exclusionary rights. Actavis creates doubts about these propositions in circumstances beyond the “reverse” payment settlement of a patent suit that may have delayed an alleged infringer market entry. This chapter explores whether applying Actavis logic to antitrust litigation can result in condemnation of practices where there is little chance of an anticompetitive effect, where the patent holder likely has a valid and infringed patent, where there is little reason to believe that the patent holder has market power, and where only one party, or no parties, to an agreement have an anticompetitive intent. This chapter also investigates whether Actavis creates new problems with standing analysis, damages calculations, and the balancing of efficiencies against anticompetitive effects. Nevertheless, the lower courts have begun to extend the logic of Actavis. This is apparent in the condemnation of no-Authorized-generic settlements.