The Constitution of the United State has never been a document with a fixed and determinable meaning and demanded continual reinterpretation. During the early republic, legal and political battles over constitutional meaning were commonplace, leading to claims of disloyalty as well as threats of violence. Challenges to actions of the federal government often were done in the name of the Virginia and Kentucky Resolutions and the “Principles of ‘98.” Reflecting a strand of mainstream political thought, the Virginia and Kentucky Resolutions were employed by Pennsylvanians, who militarily resisted federal efforts to enforce a Supreme Court decision, by New Englanders, who effectively nullified certain federal laws during the War of 1812, and by South Carolinians, who attempted to nullify a federal tariff. Authored by James Madison and Thomas Jefferson, respectively, in 1798, the Resolutions offered differing visions of the nation’s founding. Jefferson interpreted the Constitution as a contract between state governments, akin to a treaty between independent nations. Thus, unconstitutional actions by the federal government were a breach of the compact, and each state had a right to nullify the offending action. For Madison, the thirteen peoples of the several states, acting in their highest sovereign capacity, were the parties to the compact. Madison did not interpret the Constitution as a contract or treaty and did not deem every breach of the compact as justifying nullification by the people. Only a majority of the people could nullify actions of the federal government.

Thesis (Ph. D.)--University of Washington, 1998. / Vita. Includes bibliographical references (leaves [81]-85).

The Supreme Court of Kenya was the first on the Continent to nullify a Presidential election after it departed from the hitherto used substantial effect rule in election determination, thus ushering a new era where the quality of the elections process, and not merely the numerical results truly mattered in an election. Section 83 of the Elections Act which was the ‘fulcrum’ that enabled the Supreme Court to depart from the substantial effect rule no longer exists in Kenyan law. This means that there is a risk that the courts may fall back to applying the restrictive substantial effect rule. This dissertation interrogates the legal framework on elections disputes resolution in Kenya, and particularly explores how the qualitative aspects of the election process can continue to play an essential role in the adjudication of election disputes in Kenya even in absence of section 83 of the Elections Act as it were. This dissertation argues that even in the absence of specific statutory guidelines on how the courts may adjudicate election petitions, there are constitutional and other legal provisions that can still guide the court to arrive at a decision that ensures procedural, qualitative and substantive justice when deciding election matters. The dissertation also argues that it is of paramount importance that the National Assembly re-introduces the original (disjunctive) section 83 into the Elections Act to ensure that in cases where the elections are held in an environment of substantial illegalities and irregularities, then the courts shall have specific statutory tools to deliver substantive electoral justice. / Mini Dissertation (LLM)--University of Pretoria 2021. / Centre for Human Rights / LLM / Unrestricted

<p>The general contract law principle of loyalty between negotiators, in deliberation, leads to a duty of disclosure for negotiators. The extent of this duty of disclosure is influenced by many different factors; amongst others the type of agreement, the negotiators knowledge and opportunity of procuring knowledge. The general duty of disclosure is both a part of the contract law principle of loyalty between negotiators in negotiating a contract, and an indirectly statutory obligation, that, if neglected will lead to nullification of the agreement. The legislator has stated that the general contract law, Lag (1915:218) om avtal och andra rättshandlingar på förmögenhetsrättens område (avtalslagen), should be used to regulate negotiating of contracts, including the negotiation of contracts of employment. In arbetsdomstolens judging, additional factors have been weighed in, and the judgement is done also through the use of a concept taken from employment law, the concept of ”saklig grund för uppsägning”. Arbetsdomstolen appear to prefer using employment law and principles of protection for the employee, even though the legislators opinion was that general contract law should regulate negotiations of contracts of employment. This way, other factors are included in the judging of the duty of disclosure when seeking employment than in the general judging of duty of disclosure. Amongst other the interests of society and the will of protecting the person seeking employment, affects arbetsdomstolens judging of the duty of disclosure in negotiating contracts of employment. The thesis arguments that this interpretation, of the confines between contract law and employment law, is contrary to the statements of the legislator, and also an unfit interpretation of the principle of duty of disclosure, in terms of reaching partition of risks between negotiators of contracts of employment.</p>

The general contract law principle of loyalty between negotiators, in deliberation, leads to a duty of disclosure for negotiators. The extent of this duty of disclosure is influenced by many different factors; amongst others the type of agreement, the negotiators knowledge and opportunity of procuring knowledge. The general duty of disclosure is both a part of the contract law principle of loyalty between negotiators in negotiating a contract, and an indirectly statutory obligation, that, if neglected will lead to nullification of the agreement. The legislator has stated that the general contract law, Lag (1915:218) om avtal och andra rättshandlingar på förmögenhetsrättens område (avtalslagen), should be used to regulate negotiating of contracts, including the negotiation of contracts of employment. In arbetsdomstolens judging, additional factors have been weighed in, and the judgement is done also through the use of a concept taken from employment law, the concept of ”saklig grund för uppsägning”. Arbetsdomstolen appear to prefer using employment law and principles of protection for the employee, even though the legislators opinion was that general contract law should regulate negotiations of contracts of employment. This way, other factors are included in the judging of the duty of disclosure when seeking employment than in the general judging of duty of disclosure. Amongst other the interests of society and the will of protecting the person seeking employment, affects arbetsdomstolens judging of the duty of disclosure in negotiating contracts of employment. The thesis arguments that this interpretation, of the confines between contract law and employment law, is contrary to the statements of the legislator, and also an unfit interpretation of the principle of duty of disclosure, in terms of reaching partition of risks between negotiators of contracts of employment.

Thesis (M.A.)--Georgia Southern University, 2008. / "A thesis submitted to the Graduate Faculty of Georgia Southern University in partial fulfillment of the requirements for the degree Master of Arts." Directed by James Woods. ETD. Includes bibliographical references (p. 90-92)

This dissertation examines jury nullification - the ability of American juries in particular criminal cases to ignore or override valid law to be applied to defendants by acquitting them in cases in which the facts are undisputed or clear - as an exercise of sovereignty over the friend-enemy distinction as those terms are defined by Carl Schmitt. It begins with a biography of Schmitt and a description of his concept of sovereignty as ultimate decisional power. It then discusses sovereignty in the American context, with particular attention to the principles of the Founding and the nature of the fictively constructed American people. It next applies Schmitt's concept of decisional sovereignty to the American context, concluding that sovereignty in America is diffuse, and its exercise by particular governmental actors is to some degree cloaked, and that the sovereignty of the American people, while crucial to the founding moment, is largely latent in ordinary times. This application of Schmitt to sovereignty in America also demonstrates the deep tension between democratic popular sovereignty and rule-of-law liberalism. The dissertation then turns to Schmitt's understanding of the distinction between friend and enemy as the central political axis, and argues that the criminal in the American context is functionally the enemy, if not the absolute enemy of the polity. It then discusses in detail the mechanics and history of jury nullification, ultimately concluding that jury nullification both operates at the crucial political moment at which enemies are generated (or not) through the application of criminal law to defendants, and is an act of popular sovereignty, intended by the Founders to help preserve a balance between democracy and liberalism by maintaining a central political role for the people.

““Fraught with Disastrous Consequences for our Country”: Cherokee Sovereignty, Nullification and the Sectional Crisis” explores how the national debates over Indian sovereignty rights contributed to the rise of American sectionalism. Although most American citizens supported westward expansion, the Cherokee Nation demonstrated effectively that it had adopted Western civilized standards and, in accord with federal treaty law, deserved constitutional protections for its sovereignty and homelands. The Cherokees’ success divided American public opinion over that nation’s purported rights to constitutional protections. When Georgian leaders and the state militia harassed Northern white American missionaries who supported Cherokee sovereignty rights, even citizenship rights seemed in question. South Carolina’s leaders capitalized on the Cherokee debate by framing their own protest against federal tariffs as a complementary states’ rights issue. Thus, in 1832, nine months after the U.S. Supreme Court upheld Cherokee sovereignty protections against Georgia’s removal efforts in Worcester v. Georgia, South Carolina issued an Ordinance of Nullification, proclaiming its state right to nullify federal taxation. Current historiography tends to suggest that most Americans at that time ignored Cherokee sovereignty to confront South Carolina’s Nullification challenge. Alternatively, this project proposes that the debates over Cherokee sovereignty exacerbated Americans’ fear over South Carolina’s Nullification crisis, because together they representing a two-state challenge to federal authority. While current historiography also recognizes that expansion was a critical feature of American sectionalism, the debate over Indian sovereignty within already established Eastern states demonstrates that the politics of expansion was not simply a Western borderlands issue. Nullification threatened the Union because Georgia and President Andrew Jackson simultaneously ignored the U.S. Supreme Court’s authority to interpret constitutional law, while promoting the vital importance of constitutional law. To explore the sectional tensions that linked Cherokee sovereignty and Nullification, this project reviews the earlier period in American politics when these issues evolved separately to demonstrate the effect of their eventual connection. The first chapter provides an example that shows how the Cherokees protected their treaty rights successfully during this earlier period. Chapter Two considers the unique histories of South Carolina and the Cherokee Nation, and their collective challenges to the evolving American political economy. Chapter Three explores how the non-white republic of the Cherokee Nation contributed to the weakening of race-based slavery positivism, despite its own investment in slavery. Chapter Four demonstrates how a widening circle of congressional figures began connecting publicly the debates over Cherokee removal, tariffs, and slavery, made especially visible during the Webster-Hayne debates in the Senate. Chapter Five delineates the national discord over the extra-legal violence against white missionaries who protected Cherokee interests. As evident through the recently discovered prison journal of Rev. Samuel Austin Worcester—of Worcester v. Georgia—this chapter also demonstrates that despite their rhetoric otherwise, Jacksonians recognized the sectional toxicity when the American public connected Cherokee sovereignty and Nullification. / History

La thèse propose quatre contributions sur la méthode axiomatique. Les trois premiers chapitres utilisent le formalisme des jeux coopératifs à utilité transférable. Dans les deux premiers chapitres, une étude systématique de l'opération de nullification est menée. Les axiomes de retraits sont transformés en axiomes de nullification. Des caractérisations existantes de règles d’allocation sont revisitées, et des résultats totalement neufs sont présentés. Le troisième chapitre introduit et caractérise une valeur de Shapley proportionnelle, où les dividendes d’Harsanyi sont partagés en proportion des capacités des singletons concernés. Le quatrième chapitre propose une variante multi-dimensionnelle de l’indice de Hirsch. Une caractérisation axiomatique et une application aux classements sportifs sont fournies. / The dissertation provides four contributions on the axiomatic method. The first three chapters deal with cooperative games with transferable utility. In the first two chapters, a systematic study of the nullification operation is done. The removal axioms are translated into their nullified counterparts. Some existing characterizations are revisited, and completely new results are presented. The third chapter introduces and characterizes a proportional Shapley value in which the Harsanyi dividends are shared in proportion to the stand-alone worths of the concerned players. The fourth chapter proposes a multi-dimensional variant of the Hirsch index. An axiomatic characterization and an application to sports rankings are provided.

O presente trabalho versa sobre a sentença parcial no processo arbitral. Seu tema inicial é a demonstração da existência de um processo arbitral, de natureza jurisdicional, no curso do qual o julgamento do mérito pode ser fracionado em diferentes momentos, por meio da prolação de mais de uma sentença, sendo aquela proferida no ínterim --- e não pondo fim a toda a lide --- denominada sentença arbitral parcial. Conceituamos esse tipo de sentença como o ato pelo qual o árbitro define parcialmente a causa, com ou sem julgamento do mérito. A partir desse conceito, são analisadas diversas categorias de decisão, tais como as sentenças finais, decisões referentes à definição da jurisdição do árbitro, decisões interlocutórias, e decisões de caráter provisório. Também são analisados os requisitos de admissibilidade das sentenças parciais, bem como as situações em que a cisão do julgamento do mérito é ou não é recomendável, tendo em vista critérios de efetividade do processo e de eficiência, em termos de tempo e recursos. Com base nesses critérios, são analisadas algumas hipóteses típicas de sentenças parciais. Trata-se, ademais, da problemática envolvendo a execução e a invalidação das sentenças arbitrais parciais, com vistas às possíveis consequências da anulação de sentenças parciais e dos eventuais efeitos que a invalidação de sentenças finais pode provocar nas sentenças parciais --- e vice versa --- e em procedimentos arbitrais que estiverem em curso. Por fim, o trabalho versa a respeito das especificidades da homologação no Brasil das sentenças arbitrais parciais estrangeiras. / This paper addresses the partial award in the arbitration procedure. Its starting point consists of the existence of an arbitration procedure of jurisdictional nature, during which the judgment of the merits can be divided in different moments, by way of the rendering of more than one award, being the one rendered in the middle of the procedure --- and not concluding the entire conflict --- called partial arbitral awards. Such type of award can be defined as the act by which the arbitrator decides the dispute partially, with or without resolving the merits. Based on such concept, various categories of decisions will be examined such as final awards, awards on the arbitral jurisdiction, interlocutory awards and interim awards. Additionally, the legal requirements for partial awards to be rendered will be examined, as well as the situations in which the parceling of the judgment of the merits is or is not recommended aiming at the effectiveness of the procedure and efficiency in terms of time and resources. Based on such criteria, this paper will analyze the most common cases in which partial awards are rendered. Moreover, this paper deals with the problems involving the enforcement and the setting aside of partial arbitral awards aiming at analyzing the possible consequences of the nullification of partial awards and also the possible effects over partial awards that the voidance of final awards --- and vice versa --- may cause. Finally, the paper deals with the particulars of the recognition in Brazil of foreign partial arbitral awards.