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Ieva Deviatnikovaitė

Abstract

The article first analyses the relationship between the Montreal Convention and Regulation 261/2004. Although the Regulation and the Convention both relate to the protection of air passenger’s rights it remains ambiguous when and in which disputes these acts should be applicable. Thus, this article reveals the problematical issue of how these acts differ and in which situations they are applicable. Second, it reviews the development of the EUCJ case law regarding the application of these acts. Third, it examines the relevant case law of the Supreme Court of the Republic of Lithuania in this area.

Open access

Viljar Veebel and Raul Markus

Abstract

During last two decades the European Union as “normative power Europe” has been associated with the export of certain universal norms, rules and practices to the other countries. Rule of law, democracy, strong commitment to human rights and fundamental freedoms, and social justice — these principles form the core of the identity of the European Union. Relying on shared political, economic and cultural ties among member states, the EU has sought to promote these norms also in the neighbouring countries, including Russia. However, the outbreak of the violent conflict between Russia and Ukraine at the end of 2013 clearly demonstrates that the EU has failed in its efforts in Russia despite extensive mutual relations and comprehensive financial support provided by the EU. The aim of the current article is to analyse how consistent the EU has been in defending and promoting European values and norms in the international arena and with Russia during the Ukrainian-Russian conflict.

Open access

Karin Hilmer Pedersen and Lars Johannsen

Abstract

Many studies have documented the negative effect of corruption on development, economic growth, and democracy. Independent anti-corruption agencies are often recommended as the tool to curb corruption. However, their efficiency depends on the political will to allocate authority, powers, and resources. Moreover, setting up new institutions is always costly and accordingly problematic to low and middle income countries. The present study suggests that public administration processes in their own right are a tool to combat corruption. The article uses a survey with responses from 1706 public employees in Estonia, Latvia, and Lithuania. Using OLS regression, the study confirms others findings that strengthening meritocracy is an important factor in curbing corruption. It adds to this that enhancing monitoring is a factor just as effective against corruption as meritocracy. It adds attention to the reverse effect associated with hierarchical organizations, norms accepting rule bending, and network decisions. Finally, addressing salaries’ and performance payment’s impact on corruption the study finds no relation.

Open access

Reijo Knuutinen

Abstract

In personal income taxation, Finland had used the dualistic income tax model, known as the Nordic model, since 1993. The basic idea is that taxation of earned income is progressive, whereas taxation of capital income is proportional. Here, the model is reviewed from different perspectives: What kind of tax policy background does it have and how is the distinction between types of income argued for on theoretical grounds? How has the borderline of earned and capital income been drawn in tax legislation, and how is it drawn in the court cases, in particular in those related to tax avoidance? The dualistic model has often been criticized using equity arguments, but there are still strong arguments for the model. In any case, the model has not always worked too well in practice. The distinction has required special tax legislation as well as given rise to many court cases.

Open access

John Vlahoplus

Abstract

Senator Ted Cruz’s campaign for the Republican presidential nomination again raised the question whether persons who receive citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders, the First Congress and English and British law to show that they are not natural born under the doctrinal or historical meaning of the term. The relevant constitutional distinction is between citizenship acquired by birth or by naturalization, not at birth or afterward.

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Dred Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land.

The article examines the meaning of the term “natural born” in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable living constitutional interpretation of natural born derivative citizenship.

Open access

Jared Schroeder

Abstract

Truth as a fundamental ingredient within the flow of discourse and the application of freedom of expression in democratic society has historically received considerable attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding First Amendment concerns have been determined by how justices have understood truth and how they have conceptualized the complex relationship truth and falsity share. Despite the attention truth has received, however, the Court has not provided a consistent understanding of its meaning. For these reasons, this article examines how the Supreme Court has conceptualized truth in freedom-of-expression cases, ultimately drawing upon the results of that analysis, as well as pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell Holmes, substantially addressed truth in his dissent in Abrams v. United States. The article concludes by proposing that the courts conceptualize the nature of truth via three substantially related understandings: that truth is a process, that it is experience-funded, and that it is not absolute and is best approached without prejudice. Each of the three ingredients relates, at least to some extent, with thematic understandings put forth by the Court in previous freedom-of-expression cases, and therefore does not represent a significant departure from justices’ traditional approaches to truth. The model, most ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice Holmes, to encourage consistent recognition of certain principles regarding truth as justices go about considering its nature in First Amendment cases.

Open access

Nicholas P. Zinos

Abstract

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Open access

Robert G. Natelson

Abstract

The Constitution’s Postal Clause granted Congress power to “establish Post Offices and post Roads.” This Article examines founding-era legal and historical materials to determine the original meaning and scope of the Postal Clause. It concludes that the Clause authorized Congress to pass all legislation necessary to create, operate, and regulate a unified transportation, freight, and courier system, although it also limited congressional authority in some respects. The founding-era reasons for the postal system were revenue, promotion of commerce, and political control. The Article also corrects some inaccurate claims about the Clause previously advanced by commentators.

Open access

Thomas Halper

Abstract

Felix Frankfurter, renowned as a public intellectual fighting for justice, became as a member of the Supreme Court a figure proclaiming his devotion to the rule of law and its corollary, judicial self restraint, even when its results conflicted with his deepest beliefs. Yet an analysis of several of his leading opinions suggests that his famous balancing tests had little to do with law. In sacrificing his policy and ethical goals in the service of law, he often failed to serve the law, and in that sense, his well publicized sacrifices were for nothing.

Open access

Zia Akthar

Abstract

The doctrine of the Act of State and State Immunity has its foundation in common law frameworks. It is settled law that there is no cause of action that will make a foreign state liable in the domestic court of another country. In the United States there has been acceptance that certain cases involve “political questions” that are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution. The courts have only intervened either where the federal statutes have applied extraterritorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed abroad by a company registered in the United States, or under the Alien Tort Claims Act (ATCA) 1789, which protects foreign parties who are designated sufficiently “alien” for the sole purpose of invoking jurisdiction after a civil wrong has been committed against them. There needs to be an evaluation of the U.S. Supreme Court precedents that have asserted judicial oversight in respect of wrongs committed extra-territorially, and their present rationale for retaining the doctrine. This paper also discusses the scope of the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by another state or its agents. A comparative analysis with the state immunity doctrine in Canada and the framework for litigation under the merits-based approach by the courts is provided. The common law courts have developed the doctrine of the Act of State and it has become a principle of customary international law. The argument of this paper is that there needs to be a greater focus on the civil injuries that are caused in other jurisdictions that should allow the claimants to litigate in the forum court and for judicial review to be available.