LLM

From 2007 to 2008, Perfecto `Boyet´ Caparas conceptualized, originated & transmitted to Prof. George Edwards, in Edwards’ concurrent capacity then as IU McKinney External Faculty Director of the Graduate Programs & Co-Chair of the Graduate Affairs Committee, his (Caparas’) own original, comprehensive & integrated body of written work & system containing seed ideas, approaches, principles, concepts & perspectives on various facets of LLM, JD & SJD education in the US, from the point of view, perspective, based on the interests, needs, aspirations of & intended for foreign attorneys & professionals as well as law school administrators, that Prof. Edwards used for & in LL.M. Roadmap: An International Student’s Guide to US Law School Programs. This document shows Caparas' own original body of work.

We will analyse the major themes that have arisen from the case law surrounding the express derogations available in relation to ‘quantitative restrictions and measures having an equivalent effect’ on the import or export of goods between Member States.

We will also critically examine the way(s) the ECJ has tested for whether a justification falls within the permitted categories of exception and decide whether the measure itself can be justified as proportional to its aims. Included in the discussion any problems between the ‘cross-over’ considerations raised by situations which can be discussed both in terms of express derogations or the ‘mandatory requirements’ of the ‘indistinctly applicable rules’.

Companies when incorporated not only utilizes the equity provided by the shareholders, it also borrows from the various providers to seek growth  in its activity and provide benefits to its shareholders.  Here, the legal relationship establishes with the shareholders (provides equity) and debenture holders (provides loans or credit at certain terms and conditions) with a given company associated to the capital they have invested, they invest with a view to enhancing their value of equity and creditors look for interests. Thus they have different rights under different agreements with the company.  In this paper, we will discuss their rights in relation to income, return of their capital, their voting rights and also discuss the key differences between a shareholder and debenture holder.

Although divorce disrupts the marital bond thereby terminating marital rights and obligations, each parent’s obligations to the wellbeing and upbringing of children (custody, visitation rights, and maintenance) persists. This research examines the comparative study of maintenance and custody in dissolution of marriage. The experience of various court decisions engaging in marriage with respect to these matters is explored. Since the laws do not have detailed provisions that regulate the various issues of child custody, visitation and child support, there is inconsistency in judicial decisions. Many decisions do not distinguish between physical and legal custody. As a result, the legal and physical custody of the child usually rest on the same person. With regard to visitation, there is variation in court decisions although the conventional arrangement seems standard visitation. In some cases, courts specify the duration and form of visitation. However, in many cases, courts do not indicate how and when visitation shall be allowed. There are cases where courts overlook the issue of visitation. There is also inconsistency in court decisions with regard to child support. These problems call for detail provisions to ensure consistency and predictability in child custody, visitation and child support decisions.
Key terms: Family • Divorce, Child Custody, Visitation, Maintenance and Dissolution of Marriage.

A Chose in Action is a property right in something intangible, or which may be tangible but are not in one's possession, but enforceable through legal or court action. Generally representing a mere right to sue for a debt or for damages, such as a contractual right, the term gradually developed as lawyers and judges, and especially creditors were attracted to incorporeal personal property, increasingly prevalent in a growing commercial world. The document discussed about regarding “the nature of a chose in action, critically assess whether choses in action may be transferred, realized, mortgaged or charged, and, if so, what are the legal requirements, under English law, to ensure that such dealings are effective.

This paper was written and submitted in February 2012 as an assignment forming part of a LLB in Law. The author’s aim was primarily to attempt to critically analyse the causes of the London Riots of August 2011 through the perception of two criminological theories. The author endeavoured to evaluate the riots within the framework of the developing concepts of the following; firstly, anomie whereupon the competing roles of individuals within society are increasingly moving away from similarity and becoming more characterised by difference. This difference further engenders a division in labour leaving the individual in a position of isolation: thus can exacerbate a feeling of normlessness. Secondly, consideration will be given to the concept of sub-cultural theories relating to youths and gangs that ‘lack of access to socially approved avenues for success could lead to criminal conduct.’ 
Nonetheless, any theorising only addressed the mere description of such criminological elements against the backdrop of the August London riots. What the paper will fail to achieve is to give a comprehensive explanation of the primary cause of the riots. Such an attempt to explain would be superficial as riots are uncertain creatures of emotional complexity. As E. P. Thompson, British historian socialist writer expounded,
[t]his simple four-letter word can conceal what may be described as a spasmodic view of popular history. These intrusions are compulsive, rather than self-conscious or self-activating: they are simple responses to economic stimuli. 
In other words, riots are more multifarious than a simple explanation of cause through any particular social science viewpoint.

by Carl Taylor

Doctrine of Election:

Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on a person in such a manner that one right is in lieu of the other, that person can choose or elect only one of them. A person cannot take under and against the same instrument.
Election is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of the grantor that the grantee should not enjoy both.
The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden. In other words, a person cannot take under and against one and the same instrument.

The inclusion of environmental rights as human rights in the 2013 Constitution of Zimbabwe represents a massive step in environmental regulation and protection efforts, as well as in the quest to achieve sustainable development. Environmental rights are now justiciable and this can be seen as a positive and progressive move in addressing Zimbabwe’s myriad of environmental problems. In spite of the fact that this is an important step in environmental protection and the realisation, fulfillment and enforcement of environmental rights, there remains need for a clear understanding of the nature, scope, content and extent of the constitutional environmental right clause.

This research contends that this understanding is critical in the application, enforcement and implementation of the right and also in the achievement of various environmental related objectives. This argument is based on the understanding that environmental rights have always been part and parcel of Zimbabwean law, but that various factors that include lack of understanding of the right by the judiciary, lack of awareness by the citizens of their environmental rights and how to claim them, among others militated against implementation and realization of environmental rights. Thus, another argument pursued in this research is that unless these other issues are confronted, the constitutional environmental right will remain a paper tiger.

The methodology used in the research is essentially desktop which entails the study of primary and secondary literature. Both primary and secondary literature were all very useful at various stages of the study. The research methods that were adopted are descriptive, doctrinal analysis and comparative perspectives.

In resolving the major environmental problems affecting Zimbabwe and giving the right scope, content and extent, the research makes a loud call for comparative approaches from other jurisdictions, such as South Africa, which has comparable environmental rights provisions. Indeed, from comparative studies, a number of approaches can be adopted in order to enrich Zimbabwe’s approach to the realization, enforcement and implementation of environmental rights. The major lessons drawn from these other jurisdictions include capacity building in the judicial sector in environmental enforcement, development of an environmental rights interpretive guide, revisiting various provisions of the Environmental Management Act, which pre-dates the 2013 Constitution, among other suggested approaches. It is only by a clear understanding of the constitutional environmental right, followed by comprehensive application and enforcement in terms of the suggested guidelines that the promise and potential in the constitutional environmental right entrenched in the 2013 Constitution can achieve positive outcomes in the environmental protection and regulation regime.

The research concludes that while the inclusion of a constitutional environmental right is a positive development, it is the first of many steps to be undertaken to ensure that it is fully realized and enforced.

In this paper, we will analyse the major themes that have arisen within the case law surrounding Article 56 TFEU. Critically examine the way(s) in which ECJ jurisprudence has (or has not) achieved the ‘elimination of all hindrances to the free provision of services’, as suggested by Hatzopoulos and Do.

Article 34 TFEU is the central provision within this Chapter of the Treaty, and it is quite unequivocal in its prohibition of quantitative restrictions in relation to imports between Member States. Article 35 TFEU creates a similar prohibition in relation to exports.

We will analyze the major themes that have arisen from the case law surrounding ‘quantitative restrictions and measures having an equivalent effect’ on the import or export of goods between Member States, and explain the legal consequences of a measure being found to be of ‘equivalent effect’.

We will critically examine the way(s) the ECJ has tested for whether a measure may fall into this category, paying particular attention to the distinction between direct and indirect discrimination caused by such restrictions.

This research paper reviews and analyzes China’s AML policies, its internal institutional architecture, modus operandi, enforcement processes and its effectiveness.  China was one of the fastest growing emerging economies in the early 90s, today China is considered as one of the major economies and a powerhouse of trade

In this paper, we will summarize and critically examine the major elements of the Treaty Provisions (and related subsidiary legislation) in relation to freedom of movement to workers and the relevant ECJ jurisprudence. To what extent do you believe freedom of movement of workers has actually been achieved within the EU? What obstacles to that freedom do you believe still remain?

In this paper, we will critically discuss to what extent the free movement of workers is now a legally feasible freedom in the EU. The paper is focused on the extent of the freedom of movement enjoyed by workers in Member States where this freedom has been fully implemented.

‘Rawls’s claim seems false; probability calculations are possible in the original position...One is of course barred from basing one’s calculations on...one’s own personal good or bad fortune...for these are unknown to the parties under the veil of ignorance...the parties are assumed to have complete knowledge of theory and of facts that cannot serve special interests...I see no reason why one cannot use such information for calculating the likelihood of one’s having certain natural endowments...I conclude that, despite the veil of ignorance, the parties in the original position can still calculate to maximise general expectations, which Rawls admits is generally the most natural approach...It is therefore, difficult to see why they would opt for the maximin rule, and not naturally incline towards utilitarianism.’ David Lyons cited in John Rawls: Critical Assessments of Leading Political Philosophers at page 286.

In light of the above statement, this assignment paper critically examines whether any paradoxes subsist within the principles of John Rawls ‘Theory of Justice’ which can legitimise such claims that, given the choice, people in the original position would opt for the principle of utility in preference to Rawls’ preferred ‘maximin’ rule.

by Carl Taylor

“Primitive, tribal societies appear…to lack ‘law’ in the form that it exists in so-called advanced societies. The apparent absence of the institutions that we normally associate with legal systems – courts, law enforcement authorities, prisons, legal codes – [has] led to the conclusion that these communities were governed by custom rather than law.”
(Understanding Jurisprudence R Wacks 2nd Edition [2009], p.244)
To accept the statement acephalous societies lack law in the form that exists within an institutionalised state society one has to draw a conclusion from not only the divergence between custom and law but also several competing schools of thought within the field of anthropology.  This paper will examine briefly the importance of legal anthropology when applying a cross-cultural approach to find a universal definition against the ethnocentricity of one-system-fits-all, the concept of social mobility, and different validations of law and laws as rules. A critical evaluation will be drawn of the variance between function as opposed to form of a custom, customary law and law itself. Further examination will consider, by probing different anthropological viewpoints, if reciprocal economic obligation as a method of internalised self-regulation is an important mechanism to a stateless society as a norm of compromise as opposed to the external regulation of force. Deducing from the evidence, concluding remarks will consider the statement that face-to-face communities were governed by custom rather than law as either an affirmative or negative.

by Carl Taylor

For years academics theorised whether there truly is a breakdown of the boundaries between contract and tort. Competing opinions disseminate whether there is a need for unification to the law of obligations  or whether the divisions remain distinct but just blurred.  Whichever opinion is held proffers judicial interpretation has muddied the waters between these two distinct areas of obligations, creating uncertainty within the law.

Consequently this paper will first appraise the prescribed approach of deciding cases on categorisation  of founded principles  set down by previous decisions to attain certainty: hence formalistic adherence encumbered unjustly law’s advancement through its rigidity.  Secondly consider the increased use of tort of negligence through the development of physical damage identifying inconsistent judicial interpretation. Thirdly explore pure economic loss and the judiciary’s willingness to develop new doctrines to fill lacunas within other categories of law so to remove inequitable principles overlooked by societal changes. Fourthly conclude unification is not possible due to inconsistent decision-making which obfuscates the law.

by Carl Taylor

PRAXIS - The Official Peer-Reviewed Journal of the Alumni for International Human Rights Law.  This is the official version of the inaugural issue of PRAXIS.  This official version supersedes and/or modifies accordingly any and all versions, descriptor, announcement, communication and/or related matter appearing here and/or elsewhere.

Global Integrity report of 2013 indicates that illicit financial outflow from developing country has increased from 2004 to 2013; for e.g. in 2004 the outflow was US$ 465.3 billion and in 2013 it is US$ 1,090.1 billion (above US$1 Trillion).  The illicit outflow or such high propensity of capital flight creates critical challenge to developing countries with rich resources but they remain poor on economic grounds. It is the proceeds of illicit activities or tax evasion or embezzlement or nepotism that denies the developing country of much desirable resources for public and private sector investment, which inherently hampers infrastructure development, health, education, human capital and overall economic growth

In this paper, we will analyse the major themes that have arisen within the case law surrounding Article 49 TFEU, especially as it applies to the movement of companies within the EU. Critically examine the way(s) the ECJ has (or has not) upheld justifications for restrictions on freedom of establishment of companies between Member States.

In this paper, we review the ECJ case law surrounding Articles 56-62 TFEU (49-55 TEC) as it existed prior to Directive 2005/36 on the recognition of professional qualifications and Directive 2006/124, ‘The Services Directive’, analysing, in particular, the ECJ rulings as to the scope of Article 56 TFEU (49 TEC) relating to the freedom to provide services and the development by the ECJ of a test for justification in relation to restrictions on that freedom. We will also critically discuss to what extent the free movement of services has now been achieved within the EU.

The object of this LLM assignment-based paper was to briefly explore the extent to whether the current voluntary concept of corporate social responsibility (CSR), of pursuing shared social values between business and society is a fair and just system or whether it lacks governmental legitimacy and adequate accountability mechanisms.
Historically corporate social responsibility’s (CSR) is a moot point amidst business entities, governments and academics that are still unable to agree on how the concept should be defined. Nevertheless critics on both sides of the argument do accept CSR by its nature is voluntary. The United Kingdom (UK) government in line with Europe distinguishes CSR as a voluntary exercise business takes above and beyond the minimum legal requirements to enhance and manage their economic, environmental and societal impact.  Therefore by its very nature the definition of the concept of CSR has been precluded from the legislative agenda. This in itself has led to dissention to the effectiveness of corporate voluntarism and self-regulation over governmental mandatory regulation to manage and enhance societal needs. The core divergence is ostensibly whether entrepreneurial corporations in search of corporate self-interest and profit can also embrace morality through a strategic approach to integrate shared values for business and society without government intervention. With India paving the way as the first country to mandate CSR activities and expenditure should the United Kingdom (UK) alter their voluntary position and align their legislation accordingly.

by Carl Taylor

One of the stringent requirements for UK companies under CA 2006 stems from the stricter Second Directive of the EC Company Law for maintenance of capital regime in public companies.  However, management who acts in the best interest of shareholders have incentive to design the company’s operational distinctiveness and its financial arrangements in many ways which could benefit the shareholders, i.e., through dividend payment, claiming dilution, substitution of assets, and underinvestment,  this is an opportunistic behaviour on behalf of the company, its management and shareholder at the expense of its creditors

Over the past decade the courts have been incrementally developing a law of privacy underpinned by ancestral academic opinion  and case law dating back to the nineteenth century.  However, the courts have been reluctant to declare a distinct common law tort of privacy though the judicial language suggests otherwise. Such language has seemingly blurred the boundaries within the doctrine of confidence.  To further muddy the waters since the introduction of the Human Rights Act 1998 there have been claims a separate action of a tort of privacy now exists. Therefore this paper examines such claims.

by Carl Taylor

The significance of the Henry Dunant Moot Court Competition is celebrated among the law students around the world. But what if all their efforts fall prey to the hands of some materialistic individuals uptight to get attention? Alluring students with this signature title surely gave them what they had sought for, pictures in leading national dailies, their names highlighted.

• An overview of the rationale behind the establishment of the single market, its evolution and the legislative instruments (including subsidiary legislation) that have been used to promote its aims;
• An analysis of each of the three freedoms studied in terms of the nature and scope of each freedom and the nature and scope of permissible derogations and exceptions;
• A critical overview of the three freedoms, highlighting differences between the scope and nature of each of the freedoms;
• A critical overview of the ‘residual sovereign rights’ of Member States in relation to each of these freedoms (i.e., permitted restrictions on the freedoms), highlighting differences bet ween both the scope and nature of the permissible derogations and exceptions; and
• A final commentary on the current state of the ‘balancing act’ between total freedom of movement for goods, people, services within the supranational EU entity and sovereignty of its independent Member States in relation to permitted derogations and exceptions to these freedoms in order to achieve national aims.