1,721,037 research outputs found
The Rule of Law and Online Dispute Resolution
No full textThere is a tension in the rule of law between the need for dispute resolution, and the need for conformity to law. The tension arises because conformity to law can require cumbersome processes that stand in the way of dispute resolution. I address the capacity of Online Dispute Resolution (ODR) to advance the rule of law by providing resolution of disputes that cannot effectively be resolved through the judicial paradigm of dispute resolution. And I point out pathologies of ODR, that can lead to one of the two antitheses of the rule of law: anarchy, or the arbitrary exercise of power. I conclude that ODR is not necessarily contrary to the rule of law, and may be a huge advance in the rule of law. But its potential failings are potential failures in the rule of law
A theory of reasonableness in administrative law
Get PDFAdministrative law requires that public authorities do not make decisions that are, in a
particular sense, unreasonable. Yet there is remarkably little clarity about what this
requirement amounts to. This thesis develops a new theoretical account of the
reasonableness standard and argues that such a standard is a moral imperative in
administrative law.
There are four central components to my account. The first is an organising
distinction between substantive reasonableness (the reasonableness of what is decided)
and deliberative reasonableness (the reasonableness of the process of reasoning leading
to a decision). The second component is a conception of reasonableness as a standard of
relativised justification. Substantive reasonableness, I argue, requires a decision to be
justified relative to, or from the perspective of, some eligible view of the balance of
reasons, where the range of eligible views reflects the court’s institutional and
constitutional position, at some distance from the primary decision.
Third, I show how reasonableness requires adequate deliberation in the process
of reaching a decision. Deliberative reasonableness includes requirements to gather
sufficient evidence, to weigh and balance the relevant considerations, and to avoid
substantial ‘structural’ irrationalities—incoherent relations between beliefs, intentions,
and other attitudes.
The final component of my argument is a moral principle that places special
emphasis on the idea of safeguards. In the absence of appropriate safeguards, those
affected by government decisions are subjected to an unjustifiably high risk of
wrongdoing, and if the state proceeds without such safeguards it manifests insufficient
moral regard for those under its authority. I argue that a standard of substantive
reasonableness is an appropriately general safeguard against heterogenous wrongs that
might be committed in public administration. The standard of deliberative
reasonableness, meanwhile, reduces the risk that government decisions are wrongful by
ensuring that they proceed on the basis of sufficiently reliable reasoning
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Administrative jurisdiction
Get PDFJurisdiction is the extent of a power. This gives rise to an important distinction. Jurisdictional errors take an authority outside the scope of its power. Nonjurisdictional errors do not, even if they render the ensuing exercise of power unlawful. Unwelcome baggage has made the task of arriving at a coherent account of jurisdiction needlessly difficult. That baggage is the common assumption that lack of jurisdiction is the sole basis for judicial review. This is wrong. Abandoning it makes space for an attractive account of when an error is jurisdictional. An error is jurisdictional if (i) it is an instance of a kind of error, in the sense of ground of review, which could arise at the outset of proceedings, but (ii) it does not pertain to a collateral matter, the purpose of which is tangential to the purpose of the inquiry. I shall call this the revised temporal view of jurisdiction. It accepts the possibility of judicial review on both jurisdictional and nonjurisdictional grounds. But the distinction has practical significance for at least three reasons. First, only acts with a jurisdictional flaw are nullities. Second, jurisdictional questions take analytical priority over nonjurisdictional ones. Third, post hoc explanations are only acceptable for jurisdictional issues
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Legal practice and its continuity
Get PDFThis thesis has a particular and a general aim. The particular aim is to provide a satisfactory account of constitutional crises. Available accounts tend to either exaggerate the disruptive character of such crises or, conversely, to deny it; the challenge is thus to acknowledge the disruption without blowing it out of proportion.
The general aim is to outline a theory of law from which such a satisfactory account would follow. The available accounts oscillate between the two extremes because they are attached to the idea that law is a system of legal norms. I critique this idea—not to reject it, though, but to show that it is only one element in a complete account of law. Instead of viewing legal practice as governed by a system of norms, posited and administered by state institutions, we may view it as a collective practice among the general population, whereby they make sense of each other’s actions in legal terms so as to know how best to navigate their mutual interactions. The legal system does have a place in this latter picture, but this place corresponds to the important yet limited role of the state in wider social practice.
Articulating and substantiating this proposal takes up the better part of the thesis, eventually to yield an understanding of legal continuity which translates into a satisfactory account of constitutional crises. The continuity of legal practice is not a direct function of the continued efficacy of some normative system, but depends on whether participants in the practice can make enough legal sense of their interactions to know how to carry on with them. In a constitutional crisis, no such legal sense can be made of at least certain practices of constitutional actors; but many everyday interactions may still make perfectly good legal sense
Obligation and modality
Get PDFThis thesis investigates the structure of legal obligation. Each essay in it defends, more or less directly, the claim that legal obligation has a normal modal logic: this logic is classical and guarantees that whatever follows from what is legally obligatory is itself legally obligatory. Knowing what follows from our legal obligations, and so knowing their logic, matters whether we care about obeying the law or avoiding the coercive power of the state. Essay 1 defends the inference scheme of deontic explosion, which says that conflicting obligations entail any obligation at all. The logic of legal obligation is normal only if it validates this scheme, which is standardly assumed to be absurd. But deontic explosion for legal obligation is not absurd. The scheme shows that the law effectively gives up on guiding our action as soon as any of our legal obligations conflict. Essay 2 defends the classicality of the logic of legal obligation. Some dialetheists claim that legal obligations can be inconsistent: the same action can be both legally obligatory and not legally obligatory. These dialetheists assume that the semantic or asserted content of a legislature’s enactment is the law. But the law controls the interpretation of its own instruments: the legal content of an enactment is the law. Inconsistencies in legislation give no reason to doubt classicality since such inconsistencies are resolved by standard legal principles. Moreover, the law assumes the impossibility of inconsistent legal obligations when determining rights and duties. Essay 3 evaluates perspectivalism, which holds that legal obligations amount to claims by the law about moral obligations. This popular view is committed to a theoretically unnecessary distinction between strong and weak legal-deontic modalities. It also entails that the law implausibly claims that it doesn’t claim what it doesn’t claim. Atomism, which denies that legal obligation can be resolved into more fundamental modalities, suffers from neither of these difficulties
Property in criminal law and private law
Get PDFA proposition of law about the allocation of proprietary rights or about the objects of a proprietary right which is true at private law is, usually, also true at criminal law. In the ordinary course of things, whatever private law takes to be property owned by X, criminal law would take to be property owned by X. To illustrate, it is true to say that things like balloons, balustrades and ballparks count as the sort of object over which a person can have a proprietary interest, as a matter of both private law and criminal law. It is also true to say that if private law allocates to me a certain balloon, balustrade or ballpark then so will criminal law – on the whole. This is what we expect in the ordinary case.
However, there are a number of instances in English & Welsh law in which this expectation does not hold. The aim of the thesis is to explain why the ordinary case occurs most of the time. A derivative aim is to explain why the ordinary case does not obtain all of the time. Certain vivid occasions on which criminal and private law have come apart, cases such as R v Hinks [2001] 2 AC 241, have received attention. However, there has never yet been a sustained exploration of the influence that both criminal and private law, together, bring to bear on the reasoning and outcomes of cases that involve property and wrongdoing.
My proposal is that the ordinary case is explained by the influence which four features of the legal system exert over the reasoning and outcomes in case-law. The four features are: the laws which constitute ownership, the technical lexicon used to state property laws, concurrent civil and criminal jurisdiction over property, and the maxim that wrongdoers should not benefit from their wrongdoing. These are necessary conditions but they are not necessary and sufficient conditions – whether individually or jointly – because, as we have seen, there is case-law which bucks the trend. That latter case-law is, in turn, explained by two things. The first is value pluralism. The second is a contest between two of law’s claims: law’s claim to moral authority and law’s claim to have comprehensive practical authority
- …
