scholarly journals Environmental torts and civil punishment

Revista IBERC ◽  
2021 ◽  
Vol 4 (2) ◽  
pp. 131-145
Author(s):  
Andrew Klein
Keyword(s):  
Common Law ◽  
Punitive Damages ◽  
Environmental Damages ◽  
Legal Grounds ◽  
The U.S

This article presents, in its first part, a general expositive overview regarding responsibility for environmental damages on US law, outlining its key guidelines, as well as a brief parallel regarding its differences with Brazilian law. In the second part, the main aspects of punitive damages on US law are discussed, including a description of the circumstances under which states in the U.S. permit punitive damages. In both parts of the text the main jurisprudential cases that concern the topics discussed and that support the legal grounds of the responsibilities that fall upon the defendant are indicated. The approach taken is inductive, according to US common law.

The Lost European Aspirations of U.S. Constitutional Law

2003 ◽  
Vol 4 (6) ◽  
pp. 595-611 ◽  
Author(s):  
Charles F. Abernathy
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Constitutional Law ◽  
Common Law ◽  
The Rule Of Law ◽  
The Many ◽  
The U.S

Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.

Primacy of Reality

2019 ◽  
pp. 63-92
Author(s):  
Gamonal C. Sergio ◽  
César F. Rosado Marzán
Keyword(s):  
Common Law ◽  
Labor Law ◽  
The United States ◽  
Employment Relationship ◽  
Independent Contractors ◽  
International Labor ◽  
Legal Texts ◽  
The Common ◽  
Employment Tests ◽  
The U.S

Chapter 3 describes the principle of primacy of reality in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. The principle is also contained in the International Labor Organization’s Recommendation 198. The principle posits that facts must be given preference over what parties, particularly employers, state in legal texts, documents, and agreements. It is particularly important when determining threshold questions in labor law, such as employee and employer status. While employers might deny an employment relationship given a formal agreement to hire workers as independent contractors, the facts might show otherwise. However, the chapter also argues that primacy of reality depends on the principle of protection and in dubio pro operario to resolve questions when the facts are not dispositive given vague or missing rules. The chapter then searches primacy of reality in the United States and finds it in various employment tests, such as the common law control test. It is also finds it in employer tests of joint employer status. However, many of those tests remain vague, requiring supplementation with the U.S. versions of in dubio pro operario, i.e., liberal construction of the statutes that derogate the common law, and with legislative purpose. Primacy of reality makes it even more important for legal operators to be cognizant of labor law principles and, principally, the protective principle.

THE INTERSTATE COMMERCE COMMISSION AND THE GENESIS OF AMERICA'S JUDICIALIZED ADMINISTRATIVE STATE

2016 ◽  
Vol 15 (2) ◽  
pp. 129-148
Author(s):  
Hiroshi Okayama
Keyword(s):  
Twentieth Century ◽  
Common Law ◽  
State Building ◽  
Administrative State ◽  
Interstate Commerce Commission ◽  
Critical Juncture ◽  
Interstate Commerce ◽  
The Common ◽  
The U.S

AbstractRevisiting the origins of the Interstate Commerce Commission (ICC) created in 1887 and offering a fresh interpretation that the commission was conceived and operated as a highly court-like agency, this paper argues that its emergence triggered the judicialization of the U.S. administrative state. It has been argued that the blueprint of the ICC took after existing railroad commissions. Its proponents in Congress, however, redesigned it with judicial courts as a model after facing criticisms based on the common-law principle of the supremacy of law allowing adjudication only to judicial courts. In accordance with such an institutional scheme, both the president and judiciary promoted the commission's judicialization by appointing lawyers as its members and reviewing its decisions. By the early twentieth century, the ICC was a prototypical agency whose court-like features permeated the administrative state. This paper thus offers a corrective to the literature on the U.S. administrative state building that has come to trivialize the role of the rise of the ICC. It was, instead, a critical juncture in the emergence of the modern administrative state in which being “quasi-judicial” was the norm rather than the exception for an administrative agency.

Alcoholics and Public Drunkenness

1970 ◽  
Vol 16 (3) ◽  
pp. 238-254 ◽  
Author(s):  
Burr C. Hollister
Keyword(s):  
Criminal Responsibility ◽  
Common Law ◽  
Revolving Door ◽  
State Court ◽  
Court Decisions ◽  
Criminal Sanctions ◽  
Eighth Amendment ◽  
Federal Constitutional ◽  
Legal Defense ◽  
The U.S

The widespread problem of indigent alcoholics trapped in the "revolving door" of public intoxication arrests should be rem edied by construing alcoholism as a legal defense. The U.S. Supreme Court recently declined to issue a federal constitutional mandate requiring all fifty states to provide such a defense through the Eighth Amendment, but that decision does not fore close such a constitutional defense in the future if the proper factual situation reaches the court. Moreover, each state can remedy the incongruous imposition of criminal sanctions on helpless and sick alcoholics by creating a common-law defense of alcoholism to the charge of public intoxication. Such a de fense has substantial precedent to support it in the evolving mens rea standard of criminal responsibility increasingly relied upon in state court decisions. More important, common sense supports the creation of this defense to alter the continuing spectacle of skid-row alcoholics being punished for a condition— public intoxication—which they cannot control.

THE CHESAPEAKE BAY OIL SPILL—FEBRUARY 2, 1976: A CASE HISTORY

1977 ◽  
Vol 1977 (1) ◽  
pp. 523-527
Author(s):  
John V. Roland ◽  
Glenn E. Moore ◽  
Michael A. Bellanca
Keyword(s):  
Chesapeake Bay ◽  
Oil Spills ◽  
Root Systems ◽  
Coast Guard ◽  
Potomac River ◽  
Aquatic Resources ◽  
Environmental Damages ◽  
The Cost ◽  
The U.S ◽  
Marsh Grass

ABSTRACT On February 2, 1976, one of the worst oil spills in recent history occurred in the lower Chesapeake Bay. Approximately 250,000 gallons of No. 6 oil were discharged into the bay after a barge, the STC-101, sank in a storm near the mouth of the Potomac River. The oil contaminated extensive beach and marsh areas on both sides of the bay. Cleanup operations lasted almost a month and the cost approached $400,000. The U.S. Coast Guard estimated that 167,000 gallons of oil were recovered by cleanup crews. The remaining oil is believed to be widely dispersed over large areas of the bay—possibly tied up in fringe marsh grass, buried under sand on the beaches or carried out into the Atlantic Ocean. The heavily-contaminated fringe marsh grasses were cut, leaving the root systems intact, in order to protect the fragile marsh areas. An overall assessment of the environmental damages caused by the spill is almost complete. Estimates of the number of waterfowl killed range from 20,000 to 50,000 birds. Damage to shellfish and other aquatic resources is still under study. Preliminary reports indicate that damages to the environment may not be as severe as initially expected.

scholarly journals Corporations and Transnational Litigation: Comparing Kiobel with the Jurisprudence of English Courts

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 23-30
Author(s):  
Andrew Sanger
Keyword(s):  
United States ◽  
International Law ◽  
Common Law ◽  
The United States ◽  
Federal Courts ◽  
The U.S ◽  
Alien Tort Statute

As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.

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