Category Archives: Fundamental or Human Rights

Michael Foran, ‘Discrimination as an Individual Wrong’

ABSTRACT This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned […]

Cosmin Vraciu, ‘Property Rights and the Regulatory State’

ABSTRACT When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of […]

Ting Xu, ‘A law-and-community approach to compensation for takings of property under the European Convention on Human Rights’

ABSTRACT Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be […]

Mark Geistfeld, ‘The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains’

ABSTRACT The human rights of foreign workers in global supply chains are routinely violated, yet the problem so far has largely evaded a legal solution. Economic analysis shows why domestic tort liability can partially address this problem. Many consumers in developed countries have a lower willingness-to-pay for products produced by global supply chains that systemically […]

CRG Murray, ‘Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses’

INTRODUCTION … Kenya became independent in 1963 and the violent colonial-era conflict receded from public memory, in the UK at least. Any subsequent attempts to challenge the Crown’s conduct during the colonial era in Kenya’s courts would have faced the insurmountable obstacle of state immunity. There thus appeared to be no viable route to redress […]

Richard Fallon, ‘Bidding Farewell to Constitutional Torts’

ABSTRACT The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure – not only among the Justices, […]

Hugh Collins, ‘Private Law, Fundamental Rights, and the Rule of Law’

INTRODUCTION … My aim in this lecture is to explain the concept of the constitutionalization of private law and to consider why it is controversial and even feared. I will set out, in particular, five concerns frequently voiced against the movement in legal reasoning towards the constitutionalization of private law. I will then explain why […]

Gilead Cooper, ‘Open (in)justice: privacy, open justice and human rights’

ABSTRACT The principle that court hearings must be open to the public is regarded as sacrosanct. It has recently been invoked by the Court of Appeal in MN v OP as the reason for refusing an application to anonymise the approval of an arrangement under the Variation of Trusts Act 1958 Act. Yet, the reasons […]

Valentin Pfisterer, ‘The Right to Privacy – A Fundamental Right in Search of Its Identity: Uncovering the CJEU’s Flawed Concept of the Right to Privacy’

ABSTRACT In recent years, the CJEU has impressively brought to bear the protection of the fundamental rights to privacy and protection of personal data as contained in the CFREU. The Court’s decisions in the Digital Rights, Schrems, Tele2, and PNR cases have reshaped the political and legal landscape in Europe and beyond. By restricting the […]

Muñoz and García, ‘The Fundamental Right to Image, Contract and Third Parties in Spain: A Roadmap for Pluralist Private Relations?’

ABSTRACT Fundamental rights and Private law can collide in private-to-private relationships (horizontal situations) where the rights of two or more parties are compromised. In contractual cases, both Private law and Fundamental rights courts tend to solve their respective conflicts between private interests or Fundamental rights using the same tool: party autonomy, which is exercised through […]