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A Very Brief Legal and Social History of Mortgage
No full textProbably in every time when and place where an individual current possessor of land has had the ability to sell that land -- free of the claims of family members, social superiors, or others -- the current possessor has had the power to borrow money by putting up the land itself as a pledge or security for repayment of the loan. In past centuries, such arrangements were extreme last resorts when all other resources and recourses had been exhausted, and even then were usually transacted with lenders already known personally to the borrowers. What became much more common since the first half of the nineteenth century are the expectation that nearly every land-holding individual will use such an arrangement, the impersonality of the transaction, and its regular and ordinary use for the initial purchase of housing
The Deregulatory Moment and the Clean Power Plan Repeal
No full textWe are currently in the midst of the most important deregulatory moment in the United States since the beginning of Ronald Reagan’s presidency in 1981 — perhaps since the dawn of the administrative state. President Donald Trump has issued a series of Executive Orders directing agencies to explore opportunities to reduce regulatory burdens, including Executive Order 13783. This particular Order, inter alia, directs the United States Environmental Protection Agency to review Clean Power Plan (CPP) rules issued by the EPA during the Obama Administration “and, if appropriate . . . as soon as practicable . . . publish for notice and comment proposed rules suspending, revising, or rescinding those rules.” The EPA complied, and on October 16, 2017, it published a notice of proposed rulemaking that would repeal the CPP rules
Bandung\u27s Legacy: Solidarity and Contestation in Global Women’s Rights
No full textThe Bandung Conference brought together leaders from Asia and Africa in 1955. Although the legacy of the conference is contested, scholars and activists credit Bandung as a founding moment in the rise of third world solidarity and the eventual formation of the non-aligned movement (NAM) (Seng 2008). The final communiqué made a significant statement towards human rights, declaring the full support of the Asia-African Conference to the Charter of the United Nations, and took note of the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations (Bandung Final Communique 1955).
This chapter reflects on transnational feminist activism in global governance in the decades following the Bandung Conference. The chapter examines both moments of solidarity and points of departure as women’s rights activists sought to develop a unified platform for advocacy in international law following Bandung. First, using the example of the UN conferences on population, I demonstrate how GS feminists allied with GN feminists to bring a fundamental shift away from population control towards a reproductive health frame. Yet, I argue in Part II, tensions remain as feminists contest the centrality of the broader structural contributors to women’s inequality as part of a feminist agenda. This particular feminist debate, between a broader structural approach to women’s inequality and one based on single-issue feminist projects, is especially present in the global movement to end violence against women (VAW), which often places identity-oriented criminal law and security strategies at odds with broader socio-economic solutions to for addressing VAW
Addressing HIV/AIDS at the Intersection of Anti-Trafficking and Health Law and Policy
No full textSince the inception of the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons (Trafficking Protocol), states have been criticized for a narrow focus on eradicating sex-trafficking through criminal law over a more inclusive and redistributive approach such as labor rights. In response to the critique, the last ten years has seen a slow shift in policy and rhetoric broadening the narrow sex-trafficking agenda to include labor trafficking. In health governance, however, sex-trafficking, and the definitional debates surrounding sex-trafficking, play a growing and contested role in transnational and domestic law and policymaking on AIDS. This chapter explores three sites of the ongoing contestation between harm-reduction and abolitionist actors in the context of HIV: international institutions, peer-reviewed data, and litigation. The chapter argues that actors deploy competing frames in these sites in an attempt to seek legitimation of their understanding of what does or does not constitute exploitation for purposes of trafficking. In doing so, advocates of harm-reduction and abolitionism deploy multifaceted strategies to legitimate particular narratives about harm that may serve to justify or undermine the carceral response to sex-trafficking. While each of these sites has its own contours, the arguments offered by harm-reduction and abolitionist activists in each has remarkable similarity. Taken together, we can see how the arguments of harm-reduction or abolitionists are made in divergent spaces with the goal of seeking legitimation through engagement with and output by purportedly neutral institutions, the peer-reviewed literature, and courts. These sites of knowledge production and legitimation by experts then become the basis of governance projects
Comparing the Federal Arbitration Act and the UNCITRAL Model Law on International Commercial Arbitration
No full textThe United States (U.S.) Federal Arbitration Act (the “FAA”) and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the “Model Law”) are two of the main sources of legislative guidance on international arbitration procedure and the enforcement of arbitral awards in the U.S. (1) State arbitration statutes represent a third category of arbitration legislation that may apply to international commercial arbitrations seated or enforced in the U.S. (2) Chapter 2 addresses the interaction between the FAA and state arbitration statutes. The FAA always applies and the UNCITRAL Model Law may apply to arbitrations seated in the U.S., depending on the location of the seat of arbitration or the place of enforcement of the arbitral award. This chapter compares the key elements of the FAA and the Model Law
The Second Bill of Rights: A Reconsideration
No full texthttps://scholarship.law.bu.edu/clark_speakers/1012/thumbnail.jp
Aging Policy Design: Building from Anne Alstott
Get PDFIn her intriguing lecture, Professor Anne Alstott reminds us that legal scholarship enjoys a unique niche between justice and policy. Political scientists and philosophers evaluate justice, while legal scholars ask where and how justice can be achieved pragmatically. Alstott calls this our comparative advantage, the merging of justice and practicality. This introduction perfectly frames the work Alstott does in evaluating S ocial Security and other income and savings support programs for the aging and retire d population, such as tax benefits given in support of private pensions
Fairness at a Time of Perplexity: The Civil Law Principle of Fairness in the Court of Justice of the European Union
Get PDFThe general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic courts to entertain context-sensitive considerations, in such a way as to redress, within the boundaries of judicial discretion, the predicaments of situationally disadvantaged parties. A Rawlsian reading of fairness would point precisely in this direction. Particularized, policy-oriented inquiries into the distributive stakes of each dispute, such as the relative impact upon low-income subjects of (in)validating certain contract terms or (dis)allowing certain remedies, could ultimately raise the standards of substantive justice in the EU.
These pages, based on the premise that distributive analysis in private law adjudication is desirable, set forth the argument that the CJEU has recently proven capable of identifying distributive trade-offs in the name of fairness, that such uses of judicial discretion do not exceed the scope of the court’s institutional competence, and that the Court should not retreat from this laudable path. To be sure, at times the Court has also misused the idea of fairness, reducing it to an empty representational device through which facile slogans could unduly displace serious distributive analysis. Nevertheless, the Court’s occasional embrace of the principle in substantive terms deserves attention and praise. In the midst of sobering reflections on law’s complicity in perpetuating Europe’s inequalities, it may be important to take stock of narrow, but clear, progress through law. As a result of fairness-driven holdings in Luxembourg, state legislators have already faced considerable pressure to control aggressive debt collection practices in austerity-ridden countries. Progress results as well from the inter-institutional dialogue increasingly triggered by the supranational regulation of private autonomy. The transmission belt that connects the Troika’s recipes for growth to the member state governments’ austerity reforms is notoriously rigid and leaves little room for textured accounts of its social consequences. It is in the context of contract law adjudication that, by contrast, such accounts find a stage. The post-crisis anecdotes of private misery that are found in the litigation of contract disputes acquire not just visibility, but also legal, justiciable form. Shoring up such hard-won expressive outlets in the face of countervailing messages is essential.
The argument proceeds as follows. Section 2 outlines the CJEU’s ‘discovery’ of fairness as a general principle of civil law in the path breaking case E Friz. Section 3 equates the general principle of fairness with distribution-sensitive adjudication, and illustrates how the CJEU’s balancing of conflicting interests in its preliminary rulings could be regularly informed by lucid forms of distributive analysis. Section 4 posits that, given the conceptual and systemic autonomy of civil law principles, judicial fairness can radiate meaning beyond the confines of B2C disputes and onto broader inequality debates without any undue blurring of canonical partitions (private/constitutional, legal/political). By way of comparison, Section 5 identifies several functional equivalents of the general principle of fairness in U.S. contracts adjudication and recounts their rise and fall. Section 6 shows how the decline of judicial fairness has led U.S. progressive jurists to pursue the goal of fairer transactions outside of court, and points to the downsides of excising fairness from contracts adjudication. On the basis of this assessment, Section 7 affirms the usefulness of a judicial principle of fairness in supranational private law, but it cautions the CJEU against resorting to false or facile dichotomies in the balancing exercise that fairness requires.
The essay concludes by joining an emerging strand in current legal scholarship. This strand remains critical of the shortcomings of the EU legal architecture from the perspective of distributive justice, and yet clings to law – as both process and substance – whenever law can effectively fence off two ongoing phenomena: the deployment of economic dogma as a conversation stopper in policy-making circles, discussed in Section 8, and the endless proliferation of ‘unweighted’ narratives in EU discourse, which are too often balanced against one another as if they all had equal importance and legitimacy (Section 9)
Third-party funding in international arbitration
Get PDFThird-party funding, also known as litigation funding, is a financing method in which an entity that is not a party to a particular dispute funds another party’s legal fees or pays an order, award, or judgment rendered against that party, or both. Third-party funding is a growing phenomenon that is becoming more mainstream in both the litigation and the international arbitration communities. The leading jurisdictions worldwide — in terms of volume and sophistication of third-party funding arrangements — are Australia, the U.K., the U.S. and Germany. In the past, third-party funding was a smaller niche market, but in recent years, the demand for third-party funding services in these and other jurisdictions has grown exponentially, due to innovative third-party funding products that resemble corporate finance or venture capital deals