scholarly journals Regulações Expropriatórias à luz da constitucionalização do Direito Administrativo / Expropriatory regulations in the light of the constitutionalization of administrative law

2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Maíra Valentim Da Rocha
Keyword(s):  
Economic Value ◽  
Federal Court ◽  
The United States ◽  
Administrative Law ◽  
Regulatory Activity ◽  
Limiting State ◽  
Appropriate Treatment ◽  
Vast Literature ◽  
Federal Court Of Justice ◽  
The Subject

<p>: Este trabalho visa a analisar, à luz da constitucionalização do Direito Administrativo, as regulações expropriatórias, ou seja, a atividade reguladora do Estado que acaba por esvaziar a propriedade de sua utilidade ou valor econômico. A partir de breve exame sobre as características e efeitos da constitucionalização no Direito Administrativo, bem como sobre a proteção conferida, pelo ordenamento jurídico brasileiro, ao direito de propriedade, será tratada a atividade regulatória do Estado, dando ênfase à necessidade de uma renovação no tratamento jurídico-normativo da atividade expropriatória. Depois, serão investigadas as teses já elaboradas pela doutrina acerca das regulações expropriatórias. Serão ainda abordadas as contribuições da vasta doutrina e jurisprudência dos Estados Unidos sobre expropriações regulatórias. Será, então, examinada a evolução do posicionamento do Superior Tribunal de Justiça e do Supremo Tribunal Federal sobre as regulações expropriatórias, demonstrando-se que o tema ainda é controvertido na jurisprudência nacional e internacional. Em que pese não ter ainda a doutrina identificado critérios seguros para a identificação da caracterização de uma regulação como expropriatória, e nem mecanismos de limitação da atuação estatal nesses casos, constata-se que é possível a configuração de expropriação através de regulações, caso em que a regulação caracterizará desapropriação indireta, devendo receber o tratamento adequado.</p><p> </p><p>This essay aims to analyze, considering the constitutionalization of Administrative Law, the regulatory expropriations, in other words, the regulatory activity of the State that ends up deflating property’s utility or economic value. From a brief review over the particulars and effects of the constitutionalization of Administrative Law, as well as over the protection granted by the Brazilian law to the property right, it will be studied the State’s regulatory activity, focusing on the need of a renewal of the legal and normative handling of the taking activity. Afterwards, the theses already formulated by the scholars will be investigated. The contribution of the vast literature and jurisprudence of the United States will be also studied. Then, it will be examined the evolution of the understanding of the Brazilian Superior Court and the Federal Court of Justice over the regulatory expropriations, evidencing that the subject is still controversial in national and international jurisprudence. Although there have not been established safe criteria to identifying the configuration of a regulation as expropriatory, nor mechanisms for limiting State acting in these cases, this study endorses that it is indeed possible the setting of expropriation through regulatory activity, and, in this case, regulation will mean indirect taking, requiring the appropriate treatment.</p>

Freiheit der Advokatur

2021 ◽  
Author(s):  
Philipp Heinrichs
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Selection Procedure ◽  
Federal Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
The Subject

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

The Federal Administrative Procedure Act

1947 ◽  
Vol 41 (2) ◽  
pp. 271-281 ◽  
Author(s):  
Foster H. Sherwood
Keyword(s):  
Separation Of Powers ◽  
The United States ◽  
Administrative Law ◽  
Turn Of The Century ◽  
Administrative Process ◽  
Administrative Procedure ◽  
Separation Theory ◽  
The Subject ◽  
Bar Association ◽  
Separate Discipline

The President's signature of the new Administrative Procedure Act completed the second or legislative phase of the reform of administrative procedure which began with the introduction and passage of the ill-fated Walter-Logan bill in 1939–40. The investigatory phase which preceded it had its beginning in the reluctant recognition accorded administrative law as a separate discipline at about the turn of the century. The refusal to recognize the existence of administrative law gave way before a volume of literature on the subject, and became transformed into a criticism of the administrative process itself. The movement for reform of which the act of 1946 was the culmination has come largely in answer to these criticisms. Ignoring differences in phraseology and attacks on specific agencies, most critics appear to agree on the following arguments:(1) The administrative process is essentially dangerous in that it ignores the traditional American theory of the separation of powers, a principal protection against tyranny and dictatorship in the United States. This argument may appear in several forms. Sometimes it is said that administrative law is to be deplored because it is typical of alien countries which are not as advanced politically as we. In the hands of the American Bar Association, this argument is used to point up dangers inherent in any system that has a tendency to limit judicial review. And sometimes the allegation is merely that the administrative process is a violation of the separation theory, leaving the evils of such a violation to implication.

28 USC § 1782—looking for consensus

2019 ◽  
Vol 35 (3) ◽  
pp. 331-345
Author(s):  
David J Stute
Keyword(s):  
United States ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
The Other ◽  
Court Decisions ◽  
Arbitral Tribunal ◽  
Civil Proceedings ◽  
The Subject ◽  
Definition Of

Abstract Since the 1948 enactment of 28 USC § 1782 in the United States, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. This year, within months of one another, six federal courts have issued rulings that are widely inconsistent on the availability of section 1782 discovery. The courts have ruled that a proceeding before a private international arbitral tribunal is eligible for section 1782 discovery; that, categorically, no such discovery is available; that the definition of private arbitral tribunal applies to CIETAC; and that discovery is available by virtue of a party’s parallel pursuit of discovery through foreign civil proceedings. As these cases demonstrate, recent US court decisions have brought no predictability, let alone certainty, to the subject. Congress, on the other hand, could and should amend the statute so as to include private tribunals in the scope of section 1782. This article discusses the case law’s state of disarray; proposes a legislative solution; considers the proposed amendment’s merits; and advocates for Congress to act.

scholarly journals Developments in German Criminal Law: Speed Merchant or Murderer? The Ku’Damm Road Race Case and the New Criminal Legislation Regulating Illegal Motor Racing

2021 ◽  
Vol 22 (2) ◽  
pp. 288-302
Author(s):  
Khulan Davaanyam ◽  
Franziska Wolff ◽  
Ranya Khalaf
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Court Of Justice ◽  
Life Sentence ◽  
Federal Court Of Justice ◽  
Road Race ◽  
The Subject ◽  
German Parliament ◽  
Criminal Legislation ◽  
Motor Racing

AbstractThe Regional Court of Berlin (Landgericht (LG) Berlin) was the first court in Germany to mete out a life sentence for murder—pursuant to § 211 German Criminal Code (StGB)—to two men convicted of killing an uninvolved driver whose car they hit while they were participating in an illegal car race on a public highway. Upon their convictions, the defendants appealed to the German Federal Court of Justice (Bundesgerichtshof; BGH) claiming that they did not intend to kill the person and were thus acting without the necessary mens rea for murder. The question whether or not the case could be qualified as murder, and thus whether or not the existence of a killing with intent had been sufficiently proven by the LG Berlin, was the subject of several appeals and retrials. In its latest decision, the BGH confirmed the murder conviction of one of the defendants, while quashing the other defendant’s conviction and issuing a retrial. This case caused ripples amongst legal scholars as it called for the toughest possible sanctions to be imposed. However, whether the conduct qualifies as murder remains questionable. As a reaction to several similar cases of illegal car races in recent years, the German parliament subsequently passed a new law—§ 315d StGB—proscribing illegal vehicle races, thereby penalizing the participation, organization, or carrying out of an illegal vehicle race. Until that point there had been no provision criminalizing illegal racing.

Der Verbandsstrafenregress im Nachgang an störendes Zuschauerverhalten

2019 ◽  
Author(s):  
Thorsten Nees
Keyword(s):  
Federal Court ◽  
Legal Issues ◽  
Legal Practice ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
The Subject

Football associations taking recourse to imposing penalties is not only an issue that the German Federal Court of Justice, the Bundesgerichtshof, has had to deal with repeatedly, but is also the subject of numerous articles. However, the topic has not yet been sufficiently covered by monographs. This work closes that gap in research by addressing the topic and discussing in detail the legal issues that arise when football associations impose a penalty on a spectator. The author first addresses the offences that cause liability, pointing out the need for more in-depth reflections. He then examines known problem areas (attribution of damage, limiting the value of the compensation for damages, case-by-case partition of damages and the legal practice of association courts). He also focuses on answering the question of whether the possibility of imposing a penalty is affected in cases where the penalty imposed by the football association is based on its own ineffective regulations. Considering previously expressed positions on this issue, the author presents his own solutions to it.

scholarly journals Legendierte Polizeikontrollen: Judgment from the German Federal Court of Justice (Bundesgerichtshof) of April 26, 2017, 2 StR 247/16

2020 ◽  
Vol 21 (4) ◽  
pp. 756-774
Author(s):  
Dorothee Karbe ◽  
Charlotte Jawurek ◽  
Philipp Sarder
Keyword(s):  
The Netherlands ◽  
Standard Procedure ◽  
Federal Court ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Evidence Gathering ◽  
The Subject

AbstractThe German police stopped and searched a car crossing the border from the Netherlands and thereby detected large quantities of drugs. What sounds like a standard procedure is actually a very controversial case recently heard at the German Federal Court of Justice (Bundesgerichtshof; BGH), dealing with so called legendierte Polizeikontrollen. These are apparently random police checks that are, in reality, well prepared and specifically targeted at the subject of the police check due to ongoing investigations. This case raised the issue of lawful evidence gathering by the police when pursuing both preventive and repressive objectives, as well as the question of the subsequent exploitation in court of the evidence obtained. Addressing issues of the utmost significance, such as the circumvention of the rights of the accused, this BGH judgment was critically reviewed among legal scholars.

Money Laundering and Surveillance of Telecommunication – The Recent Decision of the Bundesgerichtshof (BGH – Federal Court of Justice)

2004 ◽  
Vol 5 (2) ◽  
pp. 123-133 ◽  
Author(s):  
Hans Kudlich ◽  
Florian Melloh
Keyword(s):  
Money Laundering ◽  
Criminal Procedure ◽  
Federal Court ◽  
Court Of Justice ◽  
Procedure Code ◽  
Federal Court Of Justice ◽  
The Subject

The possibility of monitoring telecommunications pursuant to § 100a of the Strafprozeßordnung (StPO – Criminal Procedure Code) existed in Germany for the last 35 years. Nonetheless, the surveillance of telecommunications is still the subject of controversy and dispute; not only in connection with new forms of communications but also with regard to the extent and grounds of application in “normal” cases of telephone surveillance.

scholarly journals Educação domiciliar no Brasil - limites quanto à sua constitucionalidade e distorções na regulamentação legal da matéria

2020 ◽  
pp. 137-164
Author(s):  
Amanda Costa Thomé Travincas ◽  
Lorena Nunes Gonçalves
Keyword(s):  
Federal Court ◽  
Legal Regulation ◽  
Domestic Space ◽  
Right To Education ◽  
General Terms ◽  
Federal Constitution ◽  
Legislative Proposals ◽  
Federal Court Of Justice ◽  
The Subject ◽  
The Right

RESUMOO objetivo deste estudo é avaliar a pertinência da educação domiciliar em face da Constituição brasileira, e, por conseguinte, o cabimento de estender o dever de promoção do direito à educação do Estado, que o opera em ambientes formais de ensino, para os pais e responsáveis, cuja condução se daria no espaço doméstico. O desenvolvimento é estruturado em três partes. A primeira delas consiste na apresentação do trâmite e decisão do RE 888.815/RS, caso em que o tema foi enfrentado pelo Supremo Tribunal Federal no ano de 2018. Na ocasião, por aclamação majoritária, ficou assentado que a educação domiciliar é compatível com a CF/88, porém impraticável por ausência de regulamentação legal. O ato seguinte compreende a avaliação dos aspectos vantajosos e desvantajosos da educação domiciliar em termos gerais, bem como tendo em consideração o contexto brasileiro. A última parte é reservada à análise das proposições legislativas sobre o tema que ocupam a pauta do Congresso Nacional, em especial o PL 2401/2019. Conclui-se que, apesar de não estar proibida expressamente pela Constituição, a roupagem com a qual se apresenta a educação domiciliar nas propostas de sua regulamentação é francamente inconstitucional e violadora dos objetivos da promoção do direito à educação contidos no artigo 205, da CF. Parte-se de considerações gerais acerca da educação domiciliar para, após, cuidar-se de sua regulamentação no Brasil, em movimento de abordagem de predominância dedutiva. O estudo se vale de literatura especializada sobre o tema, assim como da coleta e tratamento de dados diretos jurisprudenciais e normativos.PALAVRAS-CHAVEEducação domiciliar. RE 888.815/RS. PL 2401/2019. ABSTRACTThe aim of this study is to evaluate the homeschooling regarding the Brazilian Constitution, and then, the possibility of extending the duty of promotion the right to education of the State, which operates it in formal environments of education, to the parents and responsible ones whose leading would be done in domestic space. The development is structured in three parts. The first of them consists in presenting the process and decision of RE 888.815/RS, the case which was discussed in Supremo Tribunal Federal (The Federal Court of Justice) in 2018. In the occasion, by major acclamation, it was agreed that homeschooling is compatible with the Federal Constitution (CF/88), however it is impractical in the current conjuncture by the absence of legal regulation. The following act understands the assessment of the advantageous and disadvantageous aspects in homeschooling in general terms, as well as taking into consideration the Brazilian context. The last part is reserved for the analysis of the legislative proposals on the subject that occupy the agenda of the National Congress, especially the PL 2401/2019. It is concluded that, although not expressly prohibited by the Constitution, the clothing with which homeschooling is presented in the proposals of its regulation is frankly unconstitutional and violates the objectives of promoting the right to education contained in article 205 of the Constitution. It starts the general considerations about the homeschooling to, afterwards, take care of its regulation in Brazil, in deductive predominance approach movement. The study is backed by judicial literature and related areas in order to extract conclusions about the theme, as well as the collection and treating of the jurisprudential and normative data.KEYWORDSHomeschooling. RE 888.815/RS. PL 2401/2019.

Review of the Saudi Anti-Sexual Harassment Law: Evolution and Challenges

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 21-40
Keyword(s):  
Sexual Harassment ◽  
State Level ◽  
Federal Court ◽  
The United States ◽  
Complex Nature ◽  
Criminal Cases ◽  
Effective Strategies ◽  
Jury Trials ◽  
Sexual Harassment Law ◽  
The Subject

Sexual harassment is one of the most debated issues in society. This is mainly because of its prevalence and effects both to the victims and other associated parties. It is a pervasive problem existing in almost every institution, organization and society. Despite its pervasiveness, it can also be elusive and in most cases go unnoticed with the victims suffering in silence. Considering its apparent yet complex nature, there has always been the consistent need to research and understand more about the subject of sexual harassment in an attempt to find effective strategies and solutions for its prevention. However, while it can be complicated and pervasive, sexual harassment is increasingly prevalent in the workplace. This may be due to several factors, including the complex nature that includes the different forms of it, such as verbal, non-verbal or physical sexual harassment nly 2% of roughly 80,000 persons charged with crimes in 2018 in federal court in the United States of America had their cases heard by juries of their peers. In those trials, 83% of defendants were convicted and 17% were acquitted. Approximately 90% of criminal cases are resolved by way of plea agreement and sentencing with only 8% dismissed.1 The percentages of jury trials and plea agreements are roughly the same at the state level. Civil cases are also tried by juries but are not the focus of this article.

Regulating the National Pastime: Baseball and Antitrust. By Jerold J. Duquette. Westport, CT: Praeger, 1999. 154p. $59.95.

2001 ◽  
Vol 95 (1) ◽  
pp. 212-213
Author(s):  
Arthur T. Johnson
Keyword(s):  
Legal Status ◽  
Professional Sports ◽  
Federal Court ◽  
The United States ◽  
Historical Narratives ◽  
Oliver Wendell Holmes ◽  
Antitrust Laws ◽  
Comprehensive Examination ◽  
National League ◽  
The Subject

Major league baseball, unlike other professional sports in the United States, has been exempt from antitrust laws for nearly a century. The reason lies with early state and federal court decisions, of which the most frequently cited is the Supreme Court's Federal Baseball Club of Baltimore v. National League opinion, authored by Justice Oliver Wendell Holmes in 1922. Baseball's legal status has been the subject of numerous law review articles and commentaries, historical narratives, and scholarly analyses. Nevertheless, Jerold Duquette claims that there has been no integrated and comprehensive examination of "baseball's unregulated monopoly."

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