scholarly journals Legitimação ativa da defensoria pública no mandado de injunção coletivo

2018 ◽  
Vol 42 (1) ◽  
pp. 80-95
Author(s):  
Olavo Augusto Vianna Alves Ferreira ◽  
Guilherme De Siqueira Castro
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
The Other ◽  
Public Defender ◽  
The Public ◽  
The Supreme Court ◽  
The Subject ◽  
The Law

O presente artigo tem o objetivo de examinar a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. Para a consecução desta finalidade, o tema será abordado tanto do ponto de vista constitucional como do ponto de vista processual. Será estudado o vício de constitucionalidade formal da Lei 13.300/2016 no que tange a legitimidade ativa da Defensoria Pública no mandado de injunção coletivo. A necessidade de pertinência temática para a impetração e o tipo de interesse transindividual tutelado são questões que envolvem um profícuo debate constitucional que já foi objeto de exame pelo Supremo Tribunal Federal. Por derradeiro, abordaremos a possibilidade de litisconsórcio ativo no mandado de injunção envolvendo a Defensoria Pública e os demais legitimados extraordinários previsto na lei de regência da ação injuncional.   Abstract This article aims to examine the active legitimacy of the Office of the Public Defender in the collective writ of injunction. To achieve this purpose, the subject will be addressed both from a constitutional point of view and from a procedural point of view. This paper will study the formal constitutional vice of Law 13.300 / 2016 regarding the active legitimacy of the Office of the Public Defender in the collective writ of injunction. The need for thematic relevance to the filing and type of ward transindividual interest are issues involving a fruitful constitutional debate that has been the subject of examination by the Supreme Court. For last, we discuss the possibility of active joinder in the writ of injunction involving the Office of the Public Defender and the other extraordinary legitimated under the law of Regency injuncional action.

scholarly journals Establishment by virtue of the law of land easement with the content corresponding to transmission easement in the light of the resolution of the Supreme Court of June 5, 2018, in case III CZP 50/17

2019 ◽  
Vol 29 ◽  
pp. 227-236
Author(s):  
Anna Maria Barańska
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court ◽  
The Subject ◽  
The Creation ◽  
The Law ◽  
Owned Company

The subject of this article is the resolution of the enlarged composition of the Supreme Court of June 5, 2018, which resolves the issue of acquiring by land easement with the content corresponding to transmission easement together with the acquisition by a state-owned company of transmission facilities developed on State Treasury properties. As a result of granting property rights to state-owned companies of state property in the early 1990s, the ownership of the transmission infrastructure and the property on which they were situated were separated.In the judicature, divergent concepts emerged regarding the solution of the issue of  further use of this land by transmission companies. According to the first one, the transfer of property rights was accompanied by the creation by law of a land easement with the content corresponding to a transmission easement. On the other hand, according to the second concept, obtaining a legal title for further use of the property was possible only through contractual acquisition or prescription of transmission easement. Powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu w świetle uchwały Sądu Najwyższego z dnia 5 czerwca 2018 roku, sygn. akt III CZP 50/17 Tematem artykułu jest uchwała powiększonego składu Sądu Najwyższego z dnia 5 czerwca 2018 roku, która rozstrzyga kwestię nabycia z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu wraz z nabyciem przez przedsiębiorstwo państwowe własności urządzeń przesyłowych posadowionych na nieruchomościach Skarbu Państwa. W wyniku uwłaszczenia mienia państwowego na początku lat dziewięćdziesiątych ubiegłego wieku doszło do rozdzielenia własności infrastruktury przesyłowej oraz nieruchomości, na której były one posadowione. W judykaturze pojawiły się rozbieżne koncepcje odnośnie do rozwiązania kwestii dalszego korzystania przez przedsiębiorstwa przesyłowe z tych gruntów. Zgodnie z pierwszą z nich przeniesieniu prawa własności towarzyszyło powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu. Na podstawie drugiej — uzyskanie tytułu prawnego do dalszego korzystania z nieruchomości było możliwe wyłącznie w drodze umownego nabycia albo zasiedzenia służebności przesyłu.

Constitutional Law in 1910–1911: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1910

1912 ◽  
Vol 6 (4) ◽  
pp. 513-523
Author(s):  
Eugene Wambaugh
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
Point Of View ◽  
The Other ◽  
The Public ◽  
Preceding Article ◽  
The Supreme Court ◽  
Constitutional Decisions

As was indicated in a preceding article, the chief feature of the judicial year 1909–1910, from the point of view of Constitutional Law, was that the decisions, though numerous, were comparatively unimportant. On the contrary the chief feature of the constitutional decisions of the judicial year 1910–1911 was that an unusual number of them appeared to the public to be of great interest and consequence. Hence it is advisable to deal with the judicial year 1910–1911 in a manner wholly different from that which was adopted with its predecessor. The article covering the judicial year 1909–1910 collected all the constitutional cases in the Supreme Court of the United States, and, with the briefest possible indication of the point decided, distributed them among the several clauses of the Constitution which they served to annotate. For the judicial year 1910–1911, on the other hand, the plan adopted is to confine attention almost wholly to the few decisions making the year memorable. Thus it becomes possible to give a rather full statement of those few decisions and now and then to add comments.

scholarly journals L'égalité selon la Cour suprême

2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Other ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The One ◽  
The Right

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals We Can Thank Harvey Weinstein for Doing What Congress and the Supreme Court Failed to Do

2018 ◽  
Vol 59 (2) ◽  
pp. 174-188 ◽  
Author(s):  
David Sherwyn ◽  
Paul Wagner
Keyword(s):  
Social Movements ◽  
Sexual Harassment ◽  
Supreme Court ◽  
Popular Press ◽  
Legal Concept ◽  
The Public ◽  
The Supreme Court ◽  
The Law

While the years 2017 and 2018 will be remembered for numerous geo political and social movements, any retrospective of this time will include the issue of sexual harassment and the corresponding “Me Too” movement. In this time, sexual harassment has transformed from a workplace legal concept to an issue that is defining the fabric of the country. While no one could persuasively argue that sexual harassment has not expanded from its legal roots to a movement that transcends the law, the fact is that the concept is rooted and adjudicated in law. Sadly, the commentators and the popular press often ignore or misstate the law. This creates a dangerous culture where the public is misinformed of their rights and responsibilities. More troubling, is the fact that there are serious problems with the law that need to be understand and, we contend, changed, in order for the entire problem to be eliminated, or, at least, mitigated. This paper explains the law with regard to what constitutes sexual harassment and when the employer is liable, identifies the problems, and proposes a fix so that we can create a future workplace where the authors’ five daughters (between them) and the rest of their generation will be able to honestly not raise their hands and not have to say: “Me Too!”

Some New Emphases in Extradition Case Law

1981 ◽  
Vol 16 (2) ◽  
pp. 204-224 ◽  
Author(s):  
S.Z. Feller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
District Court ◽  
The Supreme Court ◽  
The Subject ◽  
State Of Israel

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words: L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

Constitutional Law in 1959–1960

1961 ◽  
Vol 55 (1) ◽  
pp. 112-135
Author(s):  
David Fellman
Keyword(s):  
United States ◽  
Gulf Of Mexico ◽  
Supreme Court ◽  
The United States ◽  
Point Of View ◽  
Important Place ◽  
The Public ◽  
The Pacific ◽  
The Supreme Court ◽  
The Pacific Ocean

The personnel of the Supreme Court remained unchanged during the 1959 Term. From the point of view of the decisions rendered in the public law field, this was an undistinguished Term. Few of the constitutional cases are likely to hold an important place among the precedents, and a considerable number of well-argued decisions turned entirely upon private law questions. But there was no dearth of writing, during the period under review, about the Court as an institution and about the Justices who sit there.Note may be made at this point of the latest chapter in the long dispute over the so-called tidelands. In 1947 the Supreme Court had ruled that, as against the claims of California, the United States possessed paramount rights in lands underlying the Pacific Ocean seaward from the low-water mark. Similar rulings were made in 1950 as regards the claims of Louisiana and Texas in the Gulf of Mexico. But with the enactment in 1953 of the Submerged Lands Act, the United States relinquished to the coastal states all of its rights in all lands beneath navigable waters within the three-mile limit, and in excess of that limit within state boundaries as they existed at the time a state became a member of the Union, or as theretofore approved by Congress. The limit of the grant was three leagues (about ten and one-half miles) in the Gulf of Mexico and three geographical miles in the Atlantic and Pacific. The actual extent of the claims of the coastal states involved in the question was therefore left to be settled by litigation.

scholarly journals The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?

2017 ◽  
Vol 48 (3) ◽  
pp. 471
Author(s):  
Victoria Stace
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Enrichment Analysis ◽  
The Other ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
The Law ◽  
Significant Change

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.

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