This dissertation presents a legal and economic history of the change in method of incorporation from special corporate charters via legislative act to general incorporation laws which make corporate privileges available to all who meet certain, minimal procedural requirements. Prior to the mid-1800's, corporate privileges were allocated by special legislative act in a market for corporate privileges. In this market, legislators had monopoly control over the use of corporate privileges within their respective jurisdictions. Thus, the issue examined is why the legislators relinquished their monopoly control. The thesis of this dissertation, stated briefly, is that legislators in both the United States and Great Britain abandoned the market for special corporate charters because events beyond their control made it difficult or impossible for them to continue to create and capture rents through the passage of special acts of incorporation. Exogenous legal and economic changes are identified and shown to be reliable predictors of the demise of special corporate chartering. In England, changes through the common law courts produced an inexpensive alternative to the corporate form and lowered the rates of return to legislators from passing special acts. In the United States, the growth of interstate commerce and an important Supreme Court decision, Paul v. Virginia, changed the legislative market for corporate privileges from one of localized monopolies into a competitive, national free market in corporate privileges. The historical experience suggests that the passage of a national incorporation law could lead to the same type of abuses that occurred prior to the development of the national free market in incorporation laws and the passage of liberal state general incorporation laws. / Ph. D.

Scholars of human rights and constitutional law have described in great detail the abuses perpetrated by the armed forces and secret services of the United States in the context of the ‘war on terror’. There is copious literature explaining why these violations of fundamental human rights are not justifiable, and why they are not consistent with international treaties or that nation’s constitution. This thesis builds upon this research, but strikes out in a new direction. It does so by asking whether these abuses, combined with the changes to the legal order of the United States that made them possible, have produced a qualitative transformation of its constitutional structure. In particular, this thesis tracks the empowering of the executive. Increasingly, whenever it purports to act in the interests of national security, the executive claims the authority to act unilaterally in a manner that overrides even non-derogable rights. These novel constitutional reserve powers, which this thesis demonstrates were derived from President Nixon’s theory of the executive, were used to justify indefinite arbitrary detention, torture, mass surveillance without warrants, and extra-judicial execution. This thesis seeks to determine if the constitutional crisis inaugurated by this theory of executive supremacy over the laws has been terminated, or whether it has continued into the Obama Administration. If this theory is current within the executive branch, and especially if the violations of jus cogens norms has continued, it signifies a cross-party consensus about a paradigm shift in American constitutionalism. Accordingly, given the fact that the abuse of executive supremacy is what led to the development of the rule of law, this thesis will ask the question of whether the United States is being governed in accordance with its basic minimum norms. This thesis explores whether the executive is still subject to checks and balances from the legislature and the judiciary, such that it cannot violate non-derogable rights at will and with impunity. If the contrary proposition is true, it demonstrates that the crisis of the rule of law in the United States is ongoing, and this permanent state of exception demands significantly more scholarly attention. / Public, Constitutional, and International Law / LLD

Each year, an estimated 318,000 defendants who do not comprehend the Miranda warnings waive their rights and provide incriminating evidence without the protection of counsel (Rogers, 2008), which make Miranda-related competencies one of the most pervasive pretrial issues. A wide range of issues could potentially affect an individual's capacity to provide a knowing and intelligent waiver. Previous Miranda research has focused narrowly on the effects of cognitive and developmental factors. The current study added to the Miranda literature by examining the impact of two highly prevalent conditions found in correctional populations, attention deficits and substance abuse. Adult defendants in custody (N = 118) were evaluated within 36 hours of arrest in order to assess both chronic psychological disorders and situational variables. Results indicate that attention deficits have a significant impact on defendants' ability to provide a knowing Miranda waiver, whereas substance use profoundly affected their reasoning about Miranda waiver decisions. This study represents the first systematic investigation of the effect of transient mental states on Miranda-related abilities with criminal defendants. Important implications for forensic practice are addressed.

University of Macau / Faculty of Law

Not available / text

My dissertation examines the influence of partisanship in decision making on redistricting in state commissions and judicial rulings. My central questions are twofold. First, do Republican- and Democratic-appointed federal judges engage in decision making that favors their respective parties? Second, what is the extent of partisan voting on bipartisan state redistricting commissions? These issues possess considerable substantive importance. Some states have considered moving redistricting responsibility out of the legislature and into state commissions, while some political scientists and legal scholars have suggested more vigorous court involvement in the regulation of redistricting. Implicit in many of these arguments is the assumption that federal courts and state commissions will act as neutral arbiters. But, very little social science research exists on the behavior of these institutions. My investigation combines quantitative and qualitative evidence, using interviews I conducted of federal judges and redistricting commissioners across the country, together with statistical analyses of court decisions and commission votes. I have 138 court cases from 1981 to 2006, totaling 414 observations or judicial votes. I argue that federal judges are neither neutral arbiters nor partisan maximizers. Rather, federal judges act as constrained partisans. Judges do not necessarily favor their own party's plans in court cases anymore than they do plans created by both parties under divided government. But, when a federal judge reviews a redistricting plan drawn up by a different party, and where the judge's own party is the victim of partisan line-drawing, she will be more attuned to issues of unfairness in the process. Under circumstances where Supreme Court precedent is unclear, partisan cues become more salient for the judge, increasing the probability she will rely on partisan influences to declare the plan invalid. Interestingly enough, these partisan effects in judicial voting vanish in cases where the Supreme Court delineates unambiguous rules, such as litigation concerning 1 person 1 vote equal population claims. My analysis of state redistricting commissions, based on the votes of commissioners and in-depth interviews with them, illustrates that commissions, like courts, are also not immune to partisan decision-making. Partisan factors tend to be the overriding concern of commissioners. / text

The international civil aviation system is currently going through a transitional phase. Deregulation and liberalization of air transport services and privatisation of certain airlines have contributed to the modification of the aviation landscape. In this context, airline alliances play a crucial role. Both the US and EC authorities have been supportive of airline alliances because they believe that alliances have the potential to increase competition and to provide the consumers with benefits. / The first part of this thesis intends to provide economic and historical background to highlight the reasons for the multiplication of alliances, as well as the political and economic circumstances under which competition authorities assess alliances. The second part of this thesis is meant to determine which legal regime is applied to transatlantic alliances, and whether alliances are assessed like agreements among companies in any other business sector. The third part focuses more specifically on the antitrust control of the Sky Team alliance which occurs in the context of the EU/US Open skies agreement.

Scholars of human rights and constitutional law have described in great detail the abuses perpetrated by the armed forces and secret services of the United States in the context of the ‘war on terror’. There is copious literature explaining why these violations of fundamental human rights are not justifiable, and why they are not consistent with international treaties or that nation’s constitution. This thesis builds upon this research, but strikes out in a new direction. It does so by asking whether these abuses, combined with the changes to the legal order of the United States that made them possible, have produced a qualitative transformation of its constitutional structure. In particular, this thesis tracks the empowering of the executive. Increasingly, whenever it purports to act in the interests of national security, the executive claims the authority to act unilaterally in a manner that overrides even non-derogable rights. These novel constitutional reserve powers, which this thesis demonstrates were derived from President Nixon’s theory of the executive, were used to justify indefinite arbitrary detention, torture, mass surveillance without warrants, and extra-judicial execution. This thesis seeks to determine if the constitutional crisis inaugurated by this theory of executive supremacy over the laws has been terminated, or whether it has continued into the Obama Administration. If this theory is current within the executive branch, and especially if the violations of jus cogens norms has continued, it signifies a cross-party consensus about a paradigm shift in American constitutionalism. Accordingly, given the fact that the abuse of executive supremacy is what led to the development of the rule of law, this thesis will ask the question of whether the United States is being governed in accordance with its basic minimum norms. This thesis explores whether the executive is still subject to checks and balances from the legislature and the judiciary, such that it cannot violate non-derogable rights at will and with impunity. If the contrary proposition is true, it demonstrates that the crisis of the rule of law in the United States is ongoing, and this permanent state of exception demands significantly more scholarly attention. / Public, Constitutional, and International Law / LLD

No description available.

This research examines the legal issues surrounding killing in defence of property in three selected jurisdictions: South Africa, Cameroon and the United States. The comparative analysis illustrates that although the right to protect one’s property is universal, this defence is interpreted differently in the various jurisdictions. Another issue considered in the study is the constitutional right to life in each jurisdiction and whether or not an unlawful attack against one’s property creates a legal entitlement for the attacked party to take the life of another in defence of his or her property. Private defence of property is available when a person uses force to defend an interest in property, for example; to prevent a would-be thief from taking his own, or another’s property, to prevent someone from damaging his own or another’s property, to prevent an intruder from entering his own or another’s property. When an accused pleads private defence, his claim is that his harm-causing conduct was, in the circumstances, lawful. The reasonable use of force (short of deadly force) in the private defence of property is not disputed. However, the use of deadly force in protection of property is controversial, especially in a constitutional state such as South Africa where life should be prized above property. One should however also consider that there is a close link between the private defence of defending life and of protecting property. In many cases, an assault on property also involves a threat on life. However, there are cases of private defence of property where no threat to bodily integrity exists. These situations will be examined in all three jurisdictions and measured against the various constitutional imperatives. Conclusions and recommendations are made as regards the legal framework on the defence of property in the criminal law of the various jurisdictions. / Criminal and Procedural Law / LL. M.