scholarly journals THE LAW OF WORDS: STANDING, ENVIRONMENT, AND OTHER CONTESTED TERMS

2018 ◽  
Vol 23 (2) ◽  
pp. 330
Author(s):  
David Nathan Cassuto
Keyword(s):  
Environmental Protection ◽  
Legal System ◽  
Personal Injury ◽  
Environmental Services ◽  
Objective Standard ◽  
The Earth ◽  
The Social ◽  
The Supreme Court ◽  
Citizen Suits ◽  
Definition Of

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article ill’s standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw’s distinbtion between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective standard by which a plaintiff, society or a court can measure harm or injury. Using examples drawn both from history (the 7) aiI Smelter. Arbitration (1930-41)) and fiction (Barbara Klngsolver’s novel Animal Dreams), this Article illustrates that the inherent contingency of language renders it impossible to define harm or injury without acknowledging the systemic perspective from which the concepts are viewed. The path to an intelligible standing doctrine lies not in focusing on this artificial opposition, but instead in acknowledging statutory violations as injurious to the social and legal system of which we all form a part. Assuming the violated statute contains a citizen suit provision, the resulting harm to the system could and should enable individuals to sue. This policy would conform the Court’s standing jurisprudence to the language and intent of the statutes before Ii. Moreover, this policy would counter the undermining of the rhetoric of environmental protection that persists so long as the Supreme Court continues its frequent yet unsucceesfid efforts to retool its definition of cognizable legal injury.

scholarly journals Returning Separation of Powers Analysis to its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Penalties

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Executive Power ◽  
Environmental Services ◽  
Categorical Approach ◽  
The Earth ◽  
Executive Authority ◽  
The Status ◽  
Citizen Suits ◽  
As If

This paper examines the status of debates concerning the constitutionality of private suits to enforce civil fines in light of the Supreme Court's decisions in Vermont Agency of Natural Resources v. United States ex rel. Stevens and Friends of the Earth v. Laidlaw Environmental Services, as well as a pending Fifth Circuit decision in United States ex rel. Riley v. St. Luke's Episcopal Hospital. The two Supreme Court opinions have upheld qui tam and citizen suits against standing challenges, but have reserved the question of their constitutionality under Article II. The Riley panel opinion held qui tam actions to be unconstitutional under Article II, but the Fifth Circuit took the matter en banc on its own motion on the very day the opinion was published. (Subsequent to the publication of this article, the Fifth Circuit overturned the panel opinion and upheld the constitutionality of qui tam actions, Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001).) In the author's judgment, all such private suits to enforce civil fines are plainly constitutional under both Article II and Article III. That such suits appear to raise constitutional doubts is the consequence of missteps in the Supreme Court's implementation of separation of powers principles. The Court, led chiefly in this respect by Justice Scalia, has written often as if constitutionally vested executive authority guarantees the President plenary policy control over all federal civil administration, and as if the purpose of standing doctrine were largely to protect such executive authority from judicial interference. The author believes that the vesting of executive power is better understood as an effort to remove Congress from the business of administration. Standing rules, for their part, ought chiefly to be understood as protecting the judiciary from the dilution of judicial power that would come from the resolution of abstract or collusive litigation. The author explains why the Court should go back to requiring no more as a matter of standing doctrine than that a case be presented in an adversary context and in a manner historically viewed as capable of judicial resolution. The Court's injury, causality, and redressability inquiries should be abandoned in favor of a more straightforward questioning whether plaintiffs in federal lawsuits have constitutional or statutory causes of action to support their complaints. In Article II cases, the Court should adhere to the analytic framework of Morrison v. Olson, and abandon the more wooden and categorical approach to interpreting executive power that informs Justice Scalia's Morrison dissent and his alternative holding in Printz v. United States.

scholarly journals A Criminal Misconduct and the Mechanism of its Establishment

Lex Russica ◽  
2021 ◽  
Vol 74 (10) ◽  
pp. 75-84
Author(s):  
A. M. Gerasimov
Keyword(s):  
Criminal Offense ◽  
Scientific Methods ◽  
Judicial Practice ◽  
The Social ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Common ◽  
Common Nature ◽  
Definition Of ◽  
Criminal Legislation

The study is focused on the development of the theory of a criminal misconduct as an independent type of a criminal offense. The aim of the work was to formulate the author’s definition of a criminal misconduct that meets the social demand for the liberalization of the branch of criminal legislation. In the course of the research, the dialectical method was used, which made it possible to discover and analyze the common nature and, at the same time, the independence of a criminal offence and a criminal misconduct A universal tool of cognition was combined with such specific scientific methods as systemic and formal-logical methods. The theses developed in the work are based on the analysis of the content of criminal legislation, as well as the corresponding standins of the Plenum of the Supreme Court of the Russian Federation and representatives of the criminal law doctrine.The author gives examples from judicial practice as illustrations of legally significant situations that receive an ambiguous criminal-legal assessment at the level of law enforcement.Based on the results of the study, the concept of a criminal offense was formulated and the mechanism of its establishment was revealed. A criminal misconduct is justified as an act, although it contains signs of any corpus delicti, formally belonging to the category of small or medium severity, but recognized by the court, due to its insignificance, as not posing a public danger. The mechanism for establishing a criminal misconduct presupposes a statement in the act of the category of public danger (formal signs of corpus delicti) and further exclusion of the degree of public danger and, as a consequence, public danger in general. The ideas presented in the work can serve as a motive and basis for rethinking issues related to the substantiation of the nature of a criminal misconduct and its delimitation from other legal torts.

scholarly journals PRUNING OF SECTION 377, INDIAN PENAL CODE, 1860 AND CHANGED DYNAMICS OF MORALITY IN INDIAN SOCIETY

2020 ◽  
Vol 7 (6) ◽  
pp. 1077-1081
Author(s):  
Parul Yadav ◽  
Komal Vig
Keyword(s):  
Social Structure ◽  
Supreme Court ◽  
Legal System ◽  
Penal Code ◽  
Indian Society ◽  
Supreme Court Of India ◽  
The Social ◽  
The Supreme Court ◽  
Set Up ◽  
Indian Penal Code

Purpose: The research paper has been written in order to analyze the impact of reading down the notorious section of Indian Penal Code, 1860 which being Section 377 which penalized every sexual act other than a heterosexual union even if consensual in the judgment given by the Supreme Court of India in Navjot Singh v. Union of India on the society of India. This paper aims to see its impact on the morality of the Indian community on the known definitions and working of the morality in the social and the legal system. Methodology: In this work classical method of research has been followed which being doctrinal research also, a comparative analysis between the legal text of Section 377 of Indian Penal Code, 1860 and the judgments announced by the Supreme court of India has been undertaken with the proportional qualitative analysis done with moral set up of Indian Society. Main Findings: The analysis conducted on law and social structure of Indian Society by the researchers point out to the fact that after reading down of Section 377, the social set-up of India is resenting the recognition granted to third sex and gender because it disturbs its moral thread which has knitted the social structure known as of now and introduces a third angle in known concepts of sex and sexuality which till now have been relying on parallel tracks of male and female sex/gender. Application: This research piece will aid students in understanding the concept of morality and will demonstrate its effect on the working of the Criminal system of a country. Moreover, it will also give support in understanding the role of biological sex and sexual preferences in shaping law as known today. Novelty/Originality: This research is novel in its attempt of wherein morality has been traced in the criminal legal system of the country which is most prominent in issues related to the sex of the human body and its sexuality.

scholarly journals Environmental Dispute Resolution Through Class Action Lawsuit

2020 ◽  
Vol 1 (1) ◽  
pp. 16
Author(s):  
K. Tjukup ◽  
P.R. A. Potra ◽  
P.A.H. Martana
Keyword(s):  
Supreme Court ◽  
Environmental Protection ◽  
Legal System ◽  
Active Role ◽  
The United States ◽  
Civil Procedure ◽  
Class Action ◽  
Legal Concept ◽  
Procedural Law ◽  
The Supreme Court

The procedural  law  of Class Action  is  a legal  concept  known  in  the Anglo-Saxon  legal  system  (Common  Law). Whilst  this  concept  is  not  recognised   in  the  Continental  European  legal  system  (Civil  Law),  likewise  in  Indonesian  civil procedure  that based on Herzien Inlandsch Reglement (H.I.R) and Rechtsreglement  voor de Buitengewesten  (RBg). Initially, the procedural  law of class action in Indonesian  legal  system was arranged consecutively under Law No. 23 of 1997  (Environmental Protection  Law), Law No.  8  of  1999  on Consumer Protection  and Law No. 41 of  1999  on Forestry.  The arrangement  of class action lawsuit  in the substantive  law was inspired by the recognition  of class action lawsuit  in the United  States through Article 23 of the US Federal  Rule of Civil Procedure  prescribing  that the requirements  for filing class action  lawsuit are as follows: numerosity,  commonality, typicality,  and adequacy of representation.  In Indonesia there is no procedural  law setting out the class action  lawsuit,  thus  Supreme  Court  Regulation   No.   1      of  2002  was  enacted.  The  replacement   of Law  No.  23  of  1997 (Environmental  Protection Law) by Law No. 32 of 2009 (Environmental  Protection and Management Law) allows the application of the class action with reference to this Supreme Court Regulation.  The arrangement of class action lawsuit in the Supreme Court Regulation No.  1    of 2002 still  encounters many challenges in its application.  The initial process i.e. certification  is very decisive whether the lawsuit  can be accepted  or is  qualified  as a class action lawsuit. In conjunction with this, the judges'  active role is very  important  whilst  waiting  for a specific  and adequate  legislation  to establish  the class action  procedure.  Meanwhilst,  the judges  are supposed to patch up the Supreme Court Regulation No. 1   of 2002.  Keywords:  Environmental Disputes, Procedural Law,  Class Action Lawsuit

scholarly journals DESAPROPRIAÇÃO, FUNÇÃO SOCIAL AMBIENTAL E EXPECTATIVAS SOCIAISDOI: 10.5773/rgsa.v4i3.328

2010 ◽  
Vol 4 (3) ◽  
pp. 53
Author(s):  
Anatercia Rovani
Keyword(s):  
Environmental Management ◽  
Environmental Protection ◽  
Legal System ◽  
Social Function ◽  
Property Right ◽  
Productivity Index ◽  
Social Expectations ◽  
Environmental Function ◽  
The Social

A proteção ambiental, conforme a Constituição Federal Brasileira integra o conteúdo da função social da propriedade. A disposição, o uso e a fruição da propriedade somente se configuram enquanto poderes plenos do proprietário, se respeitada sua função social. Nesse sentido, a gestão socioambiental da propriedade apresenta-se como um conceito que extrapola os limites da gestão organizacional empreendedora e passa a constituir uma exigência aos proprietários de imóveis rurais e urbanos. Baseada na percepção de que o proprietário, atualmente, constitui-se também em gestor socioambiental de sua propriedade, apresenta-se, nesta análise, um estudo da relação entre a função do proprietário e a proteção do meio ambiente. Este estudo inclui uma leitura sobre a evolução da concepção da propriedade no sistema jurídico brasileiro, até a inclusão da função social em seu próprio conceito, ou seja, a propriedade vinculada ao bem estar coletivo. Propõe-se uma leitura na qual o proprietário apresenta-se como necessário gestor de seu domínio, atento tanto para a efetividade do uso da propriedade, quanto da efetividade socioambiental desse uso. A proteção ambiental, portanto, tende a causar expectativa de eficácia no campo social, a qual nem sempre é confirmada pelas decisões judiciais. Após a análise conceitual histórica da conceitualização de propriedade, parte-se para uma leitura da primeira decisão judicial brasileira na qual a procedeu-se a desapropriação pelo desrespeito a função social ambiental, ou seja, por má gestão ambiental. Palavras-chave:propriedade, função social, desapropriação, meio ambiente, gestão. ABSTRACT The environmental protection is announced in the Brazilian Constitution as a fundamental guarantee. However, this guarantee depends on the accomplishment of the social function of property. In fact, the prerogatives regarding the use of the property by its owners are limited, preventing them to use the property as they want. What the Constitution intends is to guarantee that the property right could only be as a full right whether the owner accomplish to the social function of the property. The social function means to exert the property powers without damage neither the collectivities nor the environment. In this sense, the social and environmental function imposes to rural properties some rules for acting as: productivity index, environmental protection and labors protection. The focus of this article is to study the environmental protection as one of the requisites for the social function of the property. It is analyzed the evolution of the property concept into the Brazilian legal system and the first decision of the Brazilian Court concerning the property expropriation by bad environmental management. Keywords: expropriation, environmental and social function, social expectations

scholarly journals O OURO CANIBAL: A TERRA VISTA PELA PERSPECTIVA CAPITALISTA E XAMÂNICA

2019 ◽  
Vol 4 (57) ◽  
pp. 442
Author(s):  
Angélica Ferreira ROSA ◽  
Eliar SZANIAWSKI
Keyword(s):  
Indigenous Communities ◽  
Social Function ◽  
Traditional Use ◽  
Rural Workers ◽  
The Earth ◽  
The Social ◽  
The Supreme Court ◽  
Landless Rural Workers Movement ◽  
The Right ◽  
Indigenous Reserves

RESUMOObjetivo: O objetivo deste artigo é comprovar que a reserva indígena é indispensável para a preservação cultural, social e religiosa das tribos, pois está atrelada à proteção do habitat como garantia de seus costumes, credos e tradições, restando à Constituição de 1988 garantir o amparo às tribos indígenas com o uso dessas reservas.Metodologia: O estudo foi baseado em uma pesquisa bibliográfica e legislativa das Constituições de 1934 e 1988, bem como no   posicionamento do Supremo Tribunal Federal,  contido na Súmula nº. 650.Resultados:  O presente artigo demonstrou que os trabalhadores passaram a pressionar e manifestar-se para mudar o Estado brasileiro por intermédio de uma reforma agrária que gerou, em 1964, a edição do Estatuto da Terra. Assim como os movimentos pela terra, o Movimento dos Trabalhadores Rurais Sem Terra (MST) proporcionou indiretamente, em 1984,  a positivação da “função social da propriedade” na Constituição de 1988, nas leis agrárias (como a Lei 8.629/1993) e nas matérias infraconstitucionais pertinentes à terra.Contribuições: O estudo contribuiu para  demonstrar que o homem branco não consegue compreender a dimensão e a importância em manter-se as terras protegidas; constata-se  que a observância do termo “uso tradicional” utilizado na  Constituição de 1988 prejudica as comunidades indígenas, o que torna essa possibilidade de uso um direito não efetivo, permanecendo a discussão de como essas comunidades podem explorar as terras. Algumas autoridades defendem que esse uso é possível, mediante a assistência indispensável dos órgãos de fiscalização; no entanto, busca-se asseverar que legalmente é direito dos indígenas usar seu habitat, afirmando-se que é sua faculdade a exploração dessas terras, a título de  função social da reserva indígena.PALAVRAS-CHAVE: Xamãs; homem branco; ouro canibal; reservas indígenas; proteção. ABSTRACTObjective: To prove that the indigenous reserve is indispensable for the cultural, social and religious preservation of the tribes, as it is linked to the protection of the habitat as a guarantee of their customs, creeds and traditions, being an obligation of the Constitution of 1988 to guarantee the protection of indigenous tribes through the use of these reserves.Methodology: The study was based on a bibliographic and legislative research of the Constitutions of 1934 and 1988, as well as on the position of the Supreme Court contained in Precedent no. 650.Results: The present article demonstrated that the workers started to press and manifest themselves to change the Brazilian State through an agrarian reform that generated in 1964 the edition of the Earth Statute. Like the land movements, the Landless Rural Workers Movement (MST) indirectly provided in 1984 the enactment of the “social function of property” in the Constitution of 1988, the agrarian laws (such as Law No. 8,629/1993) and relevant non-constitutional matters relating to land.Contributions: The study has shown that the white man cannot understand the scale and importance of maintaining protected lands; the observance of the term “traditional use” used in the Constitution of 1988 is detrimental to indigenous communities, which makes this possibility of using an ineffective right, and there remains a discussion of how these communities can exploit land. Some authorities argue that such use is possible through the indispensable assistance of the supervisory bodies; however, it seeks to assert that it is legally the right of indigenous people to use their habitat, stating that it is their faculty to exploit these lands as a social function of the indigenous reserve.KEYWORDS: Shamans; white man; cannibal gold; indigenous reserves; protection.

scholarly journals L'actualisation des dommages-intérêts en matière de préjudice corporel

2005 ◽  
Vol 28 (1) ◽  
pp. 39-88
Author(s):  
Daniel Gardner
Keyword(s):  
Interest Rates ◽  
Supreme Court ◽  
Legal System ◽  
Personal Injury ◽  
Discount Rates ◽  
Lump Sum ◽  
Inflation Rates ◽  
Productivity Factor ◽  
The Supreme Court

Since 1978 the evaluation of pecuniary loss resulting from personal injury genuinely derives from the restitutio in integrum principle. In this context the operation of discounting the portion of the lump sum indemnity representing the victim's future losses takes on particular importance. The method used by the Supreme Court has been considerably improved: the refusal to consider interest rates and inflation rates separately, the recognition of a productivity factor for losses representing future salaries, etc. Four provinces have decided to legislate on one or more discount rates to make up for the absence or inadequacy of evidence at this level. Despite legislative and courtroom activity, much remains to be done in improving both the present legal system and its replacement by a regime better adapted to the specific problems inherent in evaluating pecuniary losses.

scholarly journals Features of Mental Elements of Bribery Facilitation

2021 ◽  
Vol 12 (4) ◽  
Author(s):  
Vadim Zamaraev
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Social Factors ◽  
Criminal Code ◽  
Judicial Practice ◽  
The Social ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Definition Of ◽  
Criminal Legislation

The article provides a description of relevant features of the mental elements of the crime regulated by Article 291.1 of the Criminal Code of the Russian Federation. The paper also examines the general actor of the specific corruption act by applying a criminological approach and analyzing the empirical base for this category of criminal encroachment. The author researches the "physical" and "intellectual" bribery facilitation ways defined in the literature. Detailed attention is paid to optional features of the mental elements of mediation in bribery, such as: "motive" and "purpose" of the crime. The author proposes his definition of the mental elements of mediation in bribery, and provides the list of the social factors that influence the commission of a crime under Articles 291.1 of the Criminal Code of the Russian Federation having studied law enforcement practice and interviewed representatives of the general population of the Russian Federation. The results of this study can be used for further improvement of the criminal legislation of the Russian Federation, in terms of amendments and additions to the qualifying factors of bribery facilitation and the introduction of appropriate explanations in the current resolution of the Plenum of the Supreme Court of the Russian Federation No. 24 of 09 July 2013 "On judicial practice in cases of bribery and other corruption-related crimes".

ABOUT THE PROBLEM OF CONFLICTABILITY OF INHERITANCE REFUSAL DEALS DURING INSOLVENCY PROCEDURE IN RUSSIA AND GERMANY

2021 ◽  
pp. 193-203
Author(s):  
Tatyana P. Shishmareva ◽  
Keyword(s):  
Legal System ◽  
Roman Law ◽  
Property Damage ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Supreme Court ◽  
Before And After ◽  
Definition Of ◽  
The Right ◽  
To Receive

The possibility of inheritance refusal deals of an insolvent debtor was a subject of discus-sion even in Roman law, in which there were ideas about the impossibility of challenging such a transaction using Actio Pauliana. The problem of the contestability of inheritance refusal deals is investigated using the method of comparative studies with the aim of a deeper scientific and theoretical knowledge of the legal nature of rejection of inheritance in the legal system of Germany, which had a significant impact on Russian law. Main approaches of German legislators to the regulation of refusal of inheritance by the debtor, over whose property an insolvency procedure has been introduced, are indicated, ac-cording to which § 83 Insolvenzordnung specifies that such a transaction was made exclusively by the debtor himself. The author analyzes the German jurisprudence on the disputability of inheritance refusal deals by the insolvent debtor, reveals the legal positions of the Supreme Court of Germany that there are no grounds for challenging such a transaction as aimed at the withdrawal of the assets of the insolvent debtor. Arguments are also presented in favor of the impossibility of challenging the inheritance refusal deals in the doctrine of Germany. The analysis of the Russian inheritance legislation on the rejection of inheritance is carried out. The author defines the nature of the right to acquire an inheritance as a personal right of the heir when deciding to renounce the inheritance both before and after the introduction of the insolvency procedure. In accordance with this definition of the essence of the right to acquire an inheritance, it was concluded that there is no need to receive an approval on the decision of the debtor to accept or refuse the inheritance with the arbitration manager if the debtor enters into inheritance refusal deals during the course of insolvency procedures. The article analyzes the judicial practice that is developing in the Russian legal system re-garding challenging inheritance refusal deals. In jurisprudence, a tendency has been revealed to challenge inheritance refusal deals as suspicious transactions causing property damage to the creditors of the insolvent debtor. It is pointed out that in the modern Russian doctrine, the features of inheritance refusal deals have not been studied. An aspect of current legal system is the concept of “rejection of the inheritance”, which is qualified as the inaction of the debtor, through which he expresses his will to refuse the inheritance. The heir's inaction cannot be challenged on general civil grounds due to his lack of signs of a transaction in the sense in which it is used in the Civil Code of the Russian Federation.The author proves that the rejection of the inheritance does not cause property damage to the creditors, since in this case there is no reduction in the property of the insolvent debtor, and the withdrawal of the debtor's assets is not carried out. The conclusion is made about the possibility of challenging the transaction of rejection of the inheritance on general civil grounds if defects are found in the transaction and there are no conditions for the application of Actio Pauliana.

Clinical Update: Pain and Suffering

2003 ◽  
Vol 8 (1) ◽  
pp. 5-5
Author(s):  
Sheila Wendler
Keyword(s):  
Subjective Experience ◽  
Personal Injury ◽  
Treatment Interventions ◽  
Medical Expenses ◽  
Affective Component ◽  
Pain Behaviors ◽  
The Social ◽  
Patient’S Experience ◽  
Pain And Suffering ◽  
And Training

Abstract Attorneys use the term pain and suffering to indicate the subjective, intangible effects of an individual's injury, and plaintiffs may seek compensation for “pain and suffering” as part of a personal injury case although it is not usually an element of a workers’ compensation case. The AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), Fifth Edition, provides guidance for rating pain qualitatively or quantitatively in certain cases, but, because of the subjectivity and privateness of the patient's experience, the AMA Guides offers no quantitative approach to assessing “pain and suffering.” The AMA Guides also cautions that confounders of pain behaviors and perception of pain include beliefs, expectations, rewards, attention, and training. “Pain and suffering” is challenging for all parties to value, particularly in terms of financial damages, and using an individual's medical expenses as an indicator of “pain and suffering” simply encourages excessive diagnostic and treatment interventions. The affective component, ie, the uniqueness of this subjective experience, makes it difficult for others, including evaluators, to grasp its meaning. Experienced evaluators recognize that a myriad of factors play a role in the experience of suffering associated with pain, including its intensity and location, the individual's ability to conceptualize pain, the meaning ascribed to pain, the accompanying injury or illness, and the social understanding of suffering.

Sign in / Sign up

Export Citation Format

Share Document