Manifestation Determination as a Golden Fleece

2001 ◽  
Vol 68 (1) ◽  
pp. 85-96 ◽  
Author(s):  
Antonis Katsiyannis ◽  
John W. Maag
Keyword(s):  
Social Context ◽  
Case Law ◽  
Educational Purpose ◽  
Manifestation Determination ◽  
Alternative Approach ◽  
The Social ◽  
Relevant Case ◽  
Functional Implications ◽  
The Law ◽  
Law And Legislation

Manifestation determination is a mandated provision for deciding whether a student's misbehavior is related to his disability and, consequently, whether cessation of services will be allowed. However, it is conceptually and methodologically flawed and appears to serve more of a political than educational purpose. In this article, we critique the manifestation determination provision by reviewing relevant case law and legislation, examining the social context surrounding this mandate, and questioning the validity of current approaches for making a manifestation determination. We believe this analysis will corroborate our thesis. Therefore, we conclude this article by proposing an alternative approach for conceptualizing and conducting a manifestation determination that has more functional implications than those currently in use and still addresses the spirit and letter of the law.

Part VII Characteristics of Legal Risk, 25 Causation

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Social Context ◽  
Case Law ◽  
Specific Context ◽  
Legal Risk ◽  
The Social ◽  
Legal Risks ◽  
Relevant Case ◽  
Bar Association ◽  
The Relationship

This chapter first considers the relationship between the sources of legal risk considered in Chapter 24 and the causes of loss attributable to legal risk identified in the International Bar Association definition. Whereas the sources describe the social circumstances that cause legal risk to arise, the definition is concerned with how an institution, when faced with a legal risk-originated problem, should answer the question: how did this happen (or how can we prevent this happening)? Consideration of the sources helps us to understand why legal risks arise in the broader social context but it is the definition that provides the pointer to the more immediate causes of risk and loss in any specific context. The remainder of the chapter turns to relevant case law.

Counterfactual Reasoning and Expropriation Compensation: An Argument for Elimination of Elimination Rules

2016 ◽  
Vol 2016 (3) ◽  
Author(s):  
Sjur K Dyrkolbotn
Keyword(s):  
Legal Reasoning ◽  
Counterfactual Thinking ◽  
Case Law ◽  
Property Value ◽  
Counterfactual Reasoning ◽  
England And Wales ◽  
Legal Professionals ◽  
Unique Mode ◽  
The Law ◽  
Law And Legislation

AbstractTo award compensation for expropriated property, it is usually necessary to determine what the value of the property would have been if there had been no expropriation. This requires counterfactual thinking, a form of “make-believe” reasoning that legal professionals and valuators often find difficult to apply. The challenge becomes particularly difficult and important when the scheme underlying expropriation influences the value of the property that is taken. In such situations, rules developed in case law and legislation often attempt to clarify when aspects of property value should be attributed to the expropriation scheme and disregarded from further consideration. This article critically addresses elimination rules of this kind, arguing that they interfere with counterfactual assessments in ways that can render these assessments more difficult, less predictable, and more open to manipulation. To illustrate the overarching point, it is argued that recent proposals for reform in England and Wales, aiming to constrain the scope of contrary-to-fact elimination in expropriation cases, might not work as intended and could potentially make the situation worse. More broadly, the article argues that counterfactual reasoning in expropriation cases cannot be circumvented by legislative and casuistic interventions. Just as the law of tort, the law of expropriation compensation illustrates why counterfactual reasoning should be recognised as an irreducible and unique mode of legal reasoning, one that should be addressed as such by legal theorists and lawmakers alike.

Company Directors: Duties, Liabilities, and Remedies

2017 ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
Court Decisions ◽  
Cayman Islands ◽  
Market Abuse ◽  
Company Directors ◽  
The Law ◽  
The Uk ◽  
Law And Legislation ◽  
Court Of Appeal

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

The Rule of Law

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Social Context ◽  
Rule Of Law ◽  
The State ◽  
Successful Operation ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

The rule of law requires that law make the differences it purports to make; linking the formal demands of law and the reality of the rules that structure power within a community. The chapter begins by outlining the rule of law. There are two aspects to the principle: first, the rule of law requires that laws be expressed in a way that enable people to obey the law; secondly, the rule of law requires that the social context is such that people are led to obey these rules. The second part of the chapter examines the connection between the rule of law and the state. First, it will be contended that states need to comply—to a degree—with the rule of law in order to exist. Secondly, in societies such as ours, non-state legal orders require the existence of the state, and state legal orders, for their successful operation.

Some Aspects of the Regime of Islands in the Law of the Sea

2017 ◽  
Vol 32 (2) ◽  
pp. 316-331
Author(s):  
David Anderson
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
The South China Sea ◽  
Law Of The Sea ◽  
Open Sea ◽  
Relevant Case ◽  
The Law ◽  
The Many

This paper examines the international law of the sea as it applies to islands and low-tide elevations, with particular reference to the many disputed islands, atolls, rocks and shoals in the South China Sea. After distinguishing the law on the acquisition of sovereignty from the law of the sea, the paper analyses the relevant terms of the un Convention on the Law of the Sea, as well as their negotiating history and some failed proposals concerning historic waters. The rules relating to islands, rocks, artificial islands, seamounts in the open sea and maritime boundaries are then reviewed in turn, together with the relevant case law.

Lying and the Law

2018 ◽  
pp. 482-494
Author(s):  
Stuart P. Green
Keyword(s):  
Social Context ◽  
Legal Regulation ◽  
Government Officials ◽  
Political Candidates ◽  
Chilling Effect ◽  
Criminal Sanctions ◽  
The Social ◽  
The Media ◽  
The Law

This chapter considers the various ways in which the law regulates lies and other forms of deception. In the case of offenses such as perjury, fraud, and rape by deception, it takes a hard line, subjecting offenders to serious criminal sanctions. With respect to deception used by the police (during interrogations) and lawyers (in litigation), the law is more tolerant. And lies told by the media and by political candidates are sometimes regarded as constitutionally protected and therefore beyond the scope of permissible legal regulation entirely. The main point is that the law’s treatment of deception varies significantly depending on the role of the person deceiving (e.g., private individuals versus government officials), the social context in which the deception occurs (e.g., courtrooms, the marketplace, police stations, and sexual encounters), the harms the deception is believed to cause, and the chilling effect its regulation might entail.

scholarly journals Restating the common law? The Social Action, Responsibility and Heroism Act 2015

Legal Studies ◽  
2017 ◽  
Vol 37 (4) ◽  
pp. 577-598 ◽  
Author(s):  
James Goudkamp
Keyword(s):  
Social Context ◽  
Social Action ◽  
Common Law ◽  
Personal Injury ◽  
Large Network ◽  
Reasonable Care ◽  
The Social ◽  
The Common ◽  
The Law

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

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