Category Archives: Fundamental or Human Rights
Jorge Gaxiola Lappe, ‘Actual Malice, Truth, and the Social Dimension of Reputation’
ABSTRACT The actual malice standard establishes that speakers cannot be held liable for false defamatory statements about public figures and officials unless it is proved that their statements were made with actual malice, that is, with knowledge or high suspicion of their falsity. The Supreme Court of the United States’ justification of the standard portrays […]
‘How Can Contracts Contribute to Human Rights Protection in Global Value Chains?’
Contracts are the central building blocks for many developments in the transnational sphere such as the global value chains (GVCs) where they become vehicles for distribution, participation, and equality, a role more far-reaching than a mere buyer-supplier relationship (Eller, 1408, 1410). In this regard, the European Union’s (EU) recent Corporate Sustainability Due Diligence Directive (CSDDD) […]
Patrick Parkinson, ‘The Constitutional Constraints on Altering Property Rights After Relationship Breakdown’
ABSTRACT Section 79(2) of the Family Law Act 1975 (Cth) provides that the court shall not make an order altering property rights unless it is just and equitable to do so. This article argues that s 79(2) is required by the constitutional foundations upon which the power to alter property rights rests. The discretion of […]
Leonard Brahin, ‘Contract Rights after Lochner: The Clause that Time Forgot’
ABSTRACT The Contract Clause occupies a unique position in our constitutional jurisprudence. Its language sweeps broadly and the Marshall Court used it like a bludgeon to limit the power of overzealous state governments. But much has changed since the Founding. The end of the Lochner era rendered the Contract Clause all but a dead letter. […]
Farrington, Borg-Barthet and Ferguson, ‘Should Scotland SLAPP-back? A comment on the need for bespoke anti-SLAPP legislation in Scotland’
ABSTRACT Strategic lawsuits against public participation (SLAPPs) are abusive lawsuits or threats of legal action that have the purpose or effect of undermining public participation in matters of public interest. Currently, Scotland does not have a dedicated anti-SLAPP law in place. However, the Scottish government has committed to holding a consultation on SLAPPs in autumn […]
Alexandra Allen-Franks, ‘Discretion to Exclude Improperly Obtained Evidence in Civil Proceedings in England and Wales’
ABSTRACT Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence […]
Muriel Fabre-Magnan, ‘Constitutional Values and Freedom of Contract’
ABSTRACT The balancing of freedom of contract against fundamental values seems to be a classic subject. It is commonly taught in contract law that fundamental principles may constitute a limit on freedom of contract, and justify infringement of the freedom of choice of the contracting party or, above all, of the freedom to determine the […]
Alexander Kirk, ‘Consumer Autonomy and the Charter of Fundamental Rights’
How is the autonomy of consumers protected by the Charter of Fundamental Rights? In this essay, I aim at showing two things: Firstly, the principle of autonomy is enshrined in European economic rules (eg on competition) as a general concept that applies to all market actors – including consumers. Secondly, consumer autonomy is protected on […]
Matteo Godi, ‘Section 1983: A Strict Liability Statutory Tort’
ABSTRACT Scholars have traditionally framed Section 1983 as a ‘constitutional tort’, and they have recently devoted much attention to critiquing one side effect of that constitutional rhetoric: the doctrine of qualified immunity. That approach misses a more fundamental issue: the transformation of Section 1983 into a fault-based tort. Through textual and historical analysis, as well […]
Peter Cashman, ‘Civil Liability in Australia for international human rights violations’
INTRODUCTION This research paper examines a number of issues concerning the civil liability of corporations in Australia and in other jurisdictions for international conduct which violates human rights. The issue of corporate accountability and corporate social responsibility is of increasing concern internationally. In 2011, the United Nations Human Rights Council adopted the United Nations Guiding […]