Work, family and law: The role of law in reflecting, constituting and challenging the ideal worker norm

Smith, Belinda Columbia University 2006 해외박사(DDOD)

This J.S.D. dissertation explores the role of law in reflecting, constituting, challenging and changing workplace practices and culture that are based on a traditional male model of the unencumbered worker and the traditional female model of unpaid reproductive worker. These two model workers reflect the dichotomy between the public and private spheres, productive and reproductive work, paid work and family. They are gendered---reflecting and maintaining traditional gender roles that limit the equal participation of men and women in both paid work and family caring and burden women disproportionately with the costs of unpaid care work. The dissertation is comprised of three consecutive articles, each building upon the last in developing an understanding of how law currently operates and how law might be used to prompt and enable greater integration of work and family spheres, and gender equality. It commences with an exploration of how laws can impact both gender equality and work-family balance despite having no such explicit objective. The US unemployment insurance regime is used as an example of such laws. It then turns to consider an alternative regulatory setting---Australia---and explores laws that do explicitly attempt to effect gender equality, antidiscrimination laws. Regulatory theory is used to tease out how the Australian Sex Discrimination Act establishes both formal legal and other regulatory mechanisms that operate to effect and limit change. The third article ventures into law reform, outlining a proposal for reforming Australian equality laws to make them more effective at prompting, enabling and holding accountable corporate family-friendly workplace initiatives.

THE PERSPECTIVE OF REFORMERS ON LAW AND GOSPEL AND ITS APPLICATION TO NAGA COMMUNITY, INDIA.

DHARMASING MUIVAH 국제신학대학원대학교 2019 국내석사

This study focuses on misunderstanding of “Law” and “Gospel” in the Church of Naga Community, India. In this thesis, the writer studied about the brief history of Naga and the culture of Christianity. The writer found many challenges in the wrong interpretation and misunderstanding of the word of God, especially of law and gospel. This thesis consists of five chapters. Every chapter contains with different information as per the title given to the chapter. It contained the introduction of the study, ‘law and gospel’, statement of the problem, elaboration of the problem, the purpose of the study, the importance of problems, the objective of the study, the previous research and the definition of some important terms that the author used in this thesis. It begins with the examining of the study of law and gospel in biblical terms: Biblical definition and its function, uses of the topic in both Old and New Testament and their relationship. It contained the understanding of law and gospel in Lutheran theology, its function and development. Furthermore, the understanding of law and gospel in Reformed theology, John Calvin is one of the most important topic that the writer focused and made the conclusion of this thesis. It contained the third uses of law, and comparison between John Calvin and Lutheran theology. Finally, the conclusion of this thesis mainly focused on the impact of the topic in India with special reference on Naga Community. The writer looked at the misunderstanding of the concept of the topic and its reflection.

Henry J. Friendly and the pragmatic tradition in American law

Breen, Daniel Lewis Boston College 2002 해외박사(DDOD)

This dissertation represents the first attempt to place the thought of Henry J. Friendly within the greater American intellectual tradition. Friendly, for twenty-five years a judge of the Second Circuit Court of Appeals, wrote widely on the role of the federal courts in the American system of governance, and helped to shape the development of federal law in profound ways. In doing so, he displayed a characteristic approach to these questions that owed much to American Pragmatism. While not a philosopher himself, Friendly imbibed the ideas of John Dewey through his close acquaintance with the work of Lon Fuller, who applied Dewey's concept of the means/ends relation to problems of law and institutional competence. It is Fuller's positive vision of the possibilities of law, rather than the skepticism of Holmes and the Legal Realists, that best represent Dewey's legacy to legal thought, because it was Fuller that best elaborated a philosophy of how law and lawyers could contribute to the fashioning of a better world. In the body of the dissertation I discuss Friendly's Pragmatism in regard to the question of federal court jurisdiction, Criminal Procedure, Post-Conviction Relief. Constitutional Law and Administrative Law. In all of these areas, Friendly's approach was Pragmatic in that he always asked what type of process would most effectively permit people to collaborate toward the fashioning of satisfactory solutions to problems encountered in the world. In pursuing this quest, Friendly demonstrated a marked tendency to treat legal categories as instruments rather than “absolutes,” and a preference for developing legal guidelines based upon a balancing of social values rather than hard and fast rules. Moreover, Friendly was consistent with Dewey in developing these habits not in isolation but as a response to a specific difficulty he encountered in experience: the “absolutism” of the Warren Court. Friendly's ideas had a demonstrable influence upon the Burger Court, which came to adopt a number of his arguments in regard to Habeas Corpus, administrative due process and the applicability of the Fourteenth Amendment. In a time of renewed worries about judicial activism, accompanied by a widespread scholarly attempts to understand Dewey's influence upon American law, Friendly's nuanced views of what law could do and what it could not do deserve special consideration.

Law and the modern soul, 1870--1930

Roiphe, Rebecca The University of Chicago 2002 해외박사(DDOD)

This dissertation explores changing concepts of the self in American law at the turn of the century. The central argument is that massive shifts in the economic, political, and social universe strained the formalistic model of individuality that dominated nineteenth-century jurisprudence. In its place, courts began to recognize a complex evolving being, inextricably enmeshed in his or her surroundings. By analyzing the new legal subject and uncovering how and why the law generated this new definition of individuality, this dissertation explains some of the doctrinal implications of this fundamental revolution in the language of the law. It simultaneously contributes a new wrinkle in our understanding of why the rule of law persisted despite the economic, political, and social pressures of the era. The thesis suggests that by the time the Court developed its current substantive due process doctrine, judges, lawyers, and academics had long abandoned a model of individuality and freedom based on contract and property. They had already adopted a new definition of individuality rooted in personality and new definition of freedom based on self-development and self-expression. Thus, the law generated a new definition of the self suited to the conditions of modernity. The new self was subject to change; it was fluid and malleable. Principles of contract and property no longer sufficed as a model for freedom and justice: Instead the law began to measure freedom by control over information. In the new legal landscape, individuals enjoyed liberty by developing their faculties and cultivating their personality as they wished. They were free so long as the government and private individuals did not attempt to limit this exercise by the accidents of birth. To explain this shift, this dissertation examines progressive legal theory, Brandeis and Holmes' First Amendment jurisprudence, the emergence of privacy law, the advent of the entrapment defense, and the origin of professional ethics. Each of the chapters simultaneously explores how this new definition of individuality served to legitimate the rule of law, an institution which was under an increasingly ardent attack as the progressive era passed by.

(A) comparative analysis of the intersection between copyright law and antitrust issues in music licensing in South Korea and the United States : focusing on the law, cases and developments

강미소 서울대학교 대학원 2017 국내석사

Ever since the advent of digital music, there have been varying viewpoints as to the usefulness of current music licensing landscape. Across the globe, streaming has drastically changed the way consumers listen and access music and we are consistently exposed to news headlines that reveal negative impacts on songwriters and their future livelihoods stemming from outdated licensing laws. In midst of this complex web of music licensing practice, is the roles of intermediaries, such as music related rights management societies. Calls for proper and efficient management in music copyright have centered around establishing a mechanism to raise the existing level of transparency (or lack thereof) and to enable distribution of royalties that is as real as possible to the creators. In this respect, antitrust law has played an important role to some extent in curbing the inherently monopolistic rights of the intermediaries to ensure that they are held accountable. However, the difficulties in accurately identifying and anticipating the kind of activities that would run counter to the goals of copyright law and antitrust law have posed a significant challenge in effectively protecting the rights of both the creators and to the users in public. In this thesis, a comparative analysis of the kinds of anticompetitive activities undertaken by the music intermediaries have been explored between South Korea and in the United States where the two systems reveal differing music ecosystem but nonetheless continue to face the problem of finding the most equitable balance between the rights-holders and users under the rubric of current copyright and antitrust laws and principles.

Putting justice in its place: Three essays on law and justice

Sheinman, Hanoch Princeton University 2006 해외박사(DDOD)

Even if you do not agree with John Rawls that justice is the first virtue of social institutions, you might still agree that it is the first virtue of the law. After all, we call our judges justices , the administration of law the administration of justice , etc. My dissertation examines a cluster of views that give justice fundamental priority in the explanation and justification of the law and concludes that, despite important differences in the conceptions of justice these views employ and the areas of law they target, they all greatly exaggerate the role justice plays in the law. Under no plausible interpretation is justice the first virtue of the law, private law, or criminal law. Or so I argue. The other side of putting justice in its place is accurately identifying the salutary role justice does play in the law, a role the law and justice theories I criticize tend to blur. My discussion places considerable importance on the distinction between primary legal duties, which presuppose no other legal duties, and secondary legal duties, which only apply in response to, or anticipation of, a breach of some primary legal duty. After introducing and explaining a conception of justice in which justice is concerned with the requital of sanctions for wrongs, I argue that secondary legal duties are duties of requitative justice. I also argue that, given the special relation between secondary legal duties and the law courts, requitative justice is the first virtue of the court system. This conclusion seems to raise an objection to my claim that justice is not the first virtue of the law. The courts are often thought of as the very foundation of the legal system, and it is reasonable to assume that if justice is the first virtue of the foundation of the legal system, it is also the first virtue of the legal system itself. I argue that law-making institutions are at least as essential to the legal system as the courts. Hence the priority justice enjoys in the court system does not transmit to the law as a whole.

A COMPARATIVE STUDY ON THE SELLER'S LIABILITY FOR NON-CONFORMING GOODS UNDER CISG, ENGLISH LAW, EUROPEAN LAW AND KOREAN LAW

이병문 UNIVERSITY OF WARWICK 2001 해외박사

This thesis is a comparative and analytical study which comprises of an analysis of the rules of the seller's liability for non-conforming goods of four legal systems; Korean law, English law, the U.N. Convention on Contracts for the International Sale of Goods (1980) and the E.C, Directive on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees. The purpose of this study is to ask whether there is any need to introduce a unified liability system into Korean law and how to achieve the system under the existing law in order to overcome all the complexities caused by the separate existence of the general liability for nonperformance and the seller's guarantee liability. A further purpose is to investigate how effectively the rules of the seller's liability for non-conforming goods protect the reasonable expectations of the parties; in particular, the interests of consumers and private sellers which are distinguished from those of commercial buyers and business sellers, respectively, and where the issue is not directly related to the particular interests of consumers or private sellers, the common interests of all the parties. The study is conducted by an internal evaluation within the boundaries of law in a legal context and an external evaluation in tight of 'efficiency' as used by economists. It shows, first that Korean law needs a unified liability system which is based on a contract to resolve the problems originating in the distinction between the general liability as a contractual liability and the seller's guarantee liability as a legal liability. Second, achieving a genuine unified liability system requires one's interpretation that rescission and damages in the seller's guarantee liability should be as they are in the general liability. This would settle other problems inherent in the casuistic distinction between the general liability as a fault liability and the seller's guarantee liability as no-fault liability and its consequences in interpreting damages under the seller's guarantee liability. Finally, in what aspects of the seller's liability for non-conforming goods each jurisdiction fails to reflect the interests of consumers and private sellers, and the common interests of all the parties.

The Folded Hands of Equity: Heirs Property, Partition Sales, and the Production of Inequality

Garnar, Tracy L ProQuest Dissertations & Theses The University of 2024 해외박사(DDOD)

Paper #1I analyze the symbolic and material production of racial inequality through formal law and on-the-ground judicial decision-making in heirs property cases involving partition sales. I interrogate how decision-making in these cases permit legal professionals to wield power, legitimate the legal profession as an institution, and reinforce disadvantage for Black Americans, using a rich dataset of case decisions from Pennsylvania and South Carolina from 1840-present. I identify particular mechanisms and circumstances in which the judiciary might opt for one mechanism or strategy over another. The judiciary showed a marked lack of comprehension as to how the weaponization of partition actions simultaneously espouse ideals of formal legal equality and, in practice, treat Black families facing loss of their ancestral property inequitably. I identify three strategies judges deploy to justify their actions as equitable and legitimate and to remain within the letter of the law, while reinforcing racial hierarchies positioning whites as superior: the whitewashing of the law, the strategic use of legal language, and logic to advance a particular vision of the law and to justify its position as THE arbiter of the law, paternalism towards marginalized groups and individuals, racial animus, and imposition of a white moral ideology on Black families. Each of these strategies decontextualizes the legal-moral values of fairness, equity and neutrality and makes these legal-moral values appear inherent to the legal system and natural. These strategies offer insight as to how the legal, economic and political systems establish and legitimate a racial hierarchy that have oppressed and subjugated Black Americans since the beginning of American history. The refusal of the judiciary to recognize the harms of this historical backdrop serve to retrench inequality in the American experience long after Emancipation.Paper #2I examine the role of the legal maxim of ignorantia juris non excusat - roughly translated, "ignorance of the law is no excuse" - in judicial decision-making in case decisions rendered in Pennsylvania and South Carolina from 1840-present. I explore the extent to which judges cast decisions to not receive estate planning assistance from legal counsel as ignorance or negligence, the mechanisms by which they do so, the circumstances under which judges accept or reject ignorance defenses, and the consequences of these conceptions imposed upon decedents that these judges' decisions have on the families left behind. I explore how judges make decisions in heirs property cases in which ignorance is an issue in terms of laypeople case parties, attorneys representing their clients, judges misinterpreting facts or the law in the decision-making process, probate judges managing their own estates in a suboptimal manner, and fraud by one or more people involved with the estate. In developing what I refer to as "weaponization of legal ignorance" theory, I identify four mechanisms - fetishization of court documents, emphasis on "plain meaning/language," abuse of judicial discretion, and a tendency to decide cases based on technical issues, such as jurisdiction or statute of limitations issues, in order to avoid dealing with thornier substantive issues - through which judges and attorneys weaponize ignorance of the law against laypeople in the context of heirs property, at the intersection of property and probate law. Further, I identified some evidence of the operation of Dunn's (2016) two-tiered justice system in the context of probate and property law, in that judges and other legal professionals are afforded much more leeway in the case of their ignorance or negligence than laypeople not educated in the law. In addition to exploring the mechanisms of one heretofore-unexplored consequence of legal ignorance - the possibility of the loss of property held by a family for generations - I extend the moral and practical underpinnings of the ignorance doctrine as applied in criminal cases to consider its operation in civil cases.Paper #3This paper uses case decisions from Pennsylvania and South Carolina and Pennsylvania from 1840-present to examine the role the legal doctrines of coverture, dower, common-law marriage, and probate homestead exemptions play in judicial decision-making in heirs property cases. I uncover tension between two competing desires on the court's part: on one hand, the legal profession's desire to seek legitimacy for itself and its body of work through ensuring internal consistency and equality for all regardless of gender, and on the other hand, the stated desire by many jurists to offer special protection for women widows and their children (particularly minors) in handling of estate-related disputes. I identify mechanisms which operate to produce an inconsistent, incoherent body of law with respect to how gender inflects and informs decision-making in probate cases - the casting of adult women widows and minor children as vulnerable and ignorant, upholding moral ideals of women as primarily responsible for homemaking and childcare while simultaneously not providing the tools for women widows to overcome their legal disabilities, and the weaponization of moral judgments on couples who chose to partake in common-law marriage in order to justify expropriation of estate property. Similarly to the other two papers, judges employ strategies such as fetishization of evidence and language, weaponization of legal ignorance, selective invocation of judicial discretion, and emphasis on technical issues as an end-around to avoid dealing with substantive issues in order to produce gendered inequality in heirs property cases. This paper expands upon heirs property scholarship by introducing an explicitly intersectional approach to consider how Black women, in particular, are treated differently by the judicial system, and the potential downstream consequences of judicial decisions for descendants.

Exporting the rule of law to Central Asia: international actors and localized perspectives

Puckett, Blake K ProQuest Dissertations & Theses Indiana University 2016 해외박사(DDOD)

"Exporting the Rule of Law to Central Asia: International Actors and Localized Perspectives" According to Carothers (2003) and others there is a serious shortage of empirical research on the outcomes and success of global rule of law programs. This is particularly true of Central Asia, where most rule of law programs are just entering their second decade. In light of the growing interest in promotion of the rule of law, exemplified recently by the American Bar Association's World Justice Project, it is of particular importance that attention be paid not only to the state of the rule of law in various countries but to what rule of law programs actually entail and to the practitioners who enact them. In particular, in light of the growing literature concerning the systemic nature and central importance of informal governance mechanisms in Central Asia (Harris 2004, Schatz 2004, Stefes 2006) it is important to evaluate whether rule of law practitioners have an adequate understanding of both the task before them and of the challenges inherent in promoting the rule of law in countries whose political systems are fundamentally at variance with the most basic requirements of the rule of law. This research seeks to describe how rule of law experts working in Central Asia view the rule of law project. Conducting ethnographic research through a wide variety of rule of law and development experts in three sites in Kyrgyzstan, Tajikistan, and Azerbaijan, this study explores issues of professional competency and programmatic coherency. It also exposes the imaginative aspects of rule of law promotion, and suggests that the intersections of rule of law and sovereignty have been overlooked by a rule of law community shaped by over a decade of work in post-conflict situations in the Balkans, Iraq and Afghanistan.

European private international laws on documentary credits and autonomous guarantees

한재필 University of Nottingham 2003 해외박사

This thesis deals with a technically complex subject, which is also of considerable commercial importance. Documentary Credits and Autonomous Guarantees are extensively used for the purpose of effecting reliable arrangement for the fulfillment of payment obligations (generally of high value) in an international context. The variable nature of the approaches to be found in the private international law practices of different countries is a matter of great importance, because certainty and reliability are fundamental to the commercial parties who rely on these arrangements. Particular causes of instability are the diverse approaches to the exercise of jurisdiction over disputes in civil or commercial matters. The thesis follows a clear and logical structure of treatment, setting out (in Chapter 1) the essential features of Credits and Guarantees, and explaining the legal issues that are central to the discussion that is to follow. Charter 2 then relates this information to the characteristic features of private international law and their impact upon the process of resolving commercial disputes. In Chapter 3 and 4 the inter-linked problems of choice of forum and choice of law are explored in the context of the rules now operative within the European Union as a result of unifying programmes initially implemented in the form of conventions. The imperfections and ambiguities of the rules imported by the Brussels and Rome Conventions are accurately depicted, and their destabilising effect on Credits and Guarantees is well explained. In Chapter 5, the candidate sets out his case for introducing specially modified rules to be applied by the courts of EU member states (and prospectively in a more global context), to provide a better degree of stability and certainty in this area of commercial law. It can be confirmed that the thesis satisfies the prescribed criteria for the award of the degree of Ph.D, in that the candidate has displayed originality of mind and critical judgment in the marshalling of his account of a notoriously difficult subject, and in proposing solutions which certainly merit serious consideration, and are supported by balanced and coherent arguments. The materials is handled with sustained assurance that indicates a thorough mastery of the field of scholarship to which his subject belongs. It can also be confirmed that the thesis is a work of substance, and is manifestly the product of assiduous research conducted over the requisite two-to-three years period. It also makes a distinct addition to knowledge, in that it is the first attempt (so far as this examiner is aware) at addressing in a comprehensive manner the impact of the Brussels and Rome Conventions upon the special problems associated with Documentary Credits and Autonomous Guarantees. In the course of so doing, the candidate has provided a critical examination of existing facts and ideas, and of the existing literature in this field, and has also developed new ideas aimed at resolving or reducing the difficulties identified. The thesis is presented in a highly satisfactory manner. The quality and intelligibility of the argument, and the style and citational practices throughout, are of excellent standard. Very few typographical errors were noted, I can detect no basis on which to question that this thesis is the result of the candidate's own work; sources are regularly and fully acknowledged, and the bibliography is suitably comprehensive. In my view, the thesis would provide the basis for a publication in book form. Subject to a satisfactory completion of the viva voce examination by the candidate on December 17th, I am of the opinion that the award of the degree of Ph.D can be recommended.