International Legal Sanction Processes

This article views international legal sanction processes as richly varied and dynamic, involving numerous types of participants, with various sanction objectives, operating in both formal and less formal fora or processes, utilizing various types of resources, with varied effects and long-term consequences. It identifies certain areas of debate and suggests a future scholarly agenda. With that in mind, it is evident that increasing attention to the creation, shaping, and efficacy of international law outside such traditional institutional settings should be part of a future scholarly agenda regardless of one's jurisprudential bias. The discussion covers participants in the sanction process, sanction objectives, formal fora, less formal processes, and more specific sanction strategies or problems.

Human Rights

This article begins with a brief discussion of what human rights are. It then considers the international treaties which have emerged to protect human rights in national legal systems, focusing on aspects of the scholarship which has developed alongside the cascade of these rights from international law to constitutional law to ordinary municipal law. This is a process which has been controversial as human rights and democracy are seen by some to be mutually dependent, but by others to be engaged in an abrasive struggle for superiority on the battleground of ideas.

Contract

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Abortion and Reproductive Rights

This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.

Families

Family law is largely an aggregation of instrumental legislation, designed to achieve specific social and political purposes. Unlike disciplines that take a legal concept as its starting-point — such as contract, trust, or restitution — family law tends to be more than usually susceptible to shifts in politics and social behaviour, and the complex interplay between the two. This means that a dominant theme of family law scholarship has been that of change and transformation. This article offers a brief history of these transformations in family law, and describes how change has been described and analysed. This historical narrative provides a framework for a discussion of the debates that have characterized the discipline in the latter part of the twentieth century.

Equity Property and Obligation

Equitable property, especially as illustrated in the trust, and equitable obligations, especially fiduciary obligations, are without precise civil law counterparts. This ought to have marked these areas out as prime candidates for innovative and inventive common law and comparative scholarship. Instead, even at the turn of the century, modern equity scholarship is still overwhelmingly devoted to doctrinal analysis that seeks simply to define and understand these equitable concepts. The legal concepts underpinning equitable property and equitable obligation are difficult, and proper definition is important to coherent development of the law's practices. This article discusses the following: ideas of equitable property, fiduciary law scholarship, and the common law-equity divide.

A Transnational Concept of Law

Most of the legal theory of the last four centuries, in the Western world, has been state-centred. It has justified the existence of states, facilitated their expansion, conceptualized their sources and structures, sought to resolve their conflicts, and developed their law. The state has even been taken, in much of this writing, as the exclusive source of law. There are indications, however, that this theoretical preoccupation with state structures, state institutions, and state laws may now be in decline. This would be a significant development, a historical shift in emphasis in the conceptualization of Western law. It would not, however, mean the end of states or of state law, but rather their contextualization. States and state law would exist in a larger field of normativity. This would entail recognition of a wider range of sources of law and a wider range of relations between laws and between peoples. To attempt to understand these processes, and the extent of their progression, this article examines what we know, or think we know, of the relations between law and the state, before turning to current efforts to develop a transnational concept of law.

The Media

Authoritarian regimes regularly rely on murdering journalists, jailing editors, and censoring the media to remain in power and to carry out their objectives. In 2001, thirty-seven journalists were reportedly killed in connection with their work, two-thirds apparently by governments or their supporters who did not like to take the heat of criticism. Ruling elites in market-economy democratic states primarily rely instead on owning or controlling the media or creating conditions in which the media naturally represent the world in a manner congenial to these elites' interests. This article is organized as follows. Section 1 describes debates concerning the normative premises for freedom of the press, premises that reject the censorship required by authoritarian regimes and occasionally imposed by democratic states. Section 2 describes the more pragmatic controversies centring on legal responses to the more indirect democratic threats posed by ruling elites in democratic market societies. Beyond the rejection of overt censorship, it discusses the debates over what legal treatment of the press best supports democracy while appropriately taking account of other societal needs.

Intellectual Property

This article focuses on a group of doctrines that bear a family relation to each other, doctrines usually included under the rubric of ‘Intellectual Property’ (IP), and these include, among others, copyright, patent, trademark, trade secrecy, so-called ‘moral’ rights, rights in the topography of integrated circuits, rights in industrial design, plant breeder rights, rights of publicity, database rights, and rights against misappropriation. Not all nations recognize or enforce all the doctrines, but because of international obligations, most nations must recognize much of this list. Each doctrine involves restraining people from using or duplicating a pattern that is owned by, or associated with, another party. The article describes the primary areas of IP. This is followed by an outline of some of the dominant economic approaches, as economics provides the most developed line of systematic scholarship thus far.

International Business and Commerce

This article analyzes some recurrent themes in that portion of the field which is sometimes referred to as international economic law, namely public international law structures that regulate economic relations and exchange between states, with a primary emphasis upon trade. It suggests that six features characterize current legal scholarship on international economic law relating to business and commerce: a focus on institutions and on constitutions as a means to enhance the authority and legitimacy of the rule-making order; an interdependence with wider scholarship about globalization; a general consensus about the benefits of liberalization and the international economic law framework which supports it, punctuated by occasional critique; a concentration on regulation rather than ‘law’ in the traditional sense; a fixation with the problem of definition of its own scope; and a belief in its transformative nature capable of facilitating improvements in the legal order generally. The aim of this article is to describe and analyse the broad contours of each of these features before critiquing them and suggesting some possible avenues of future research.