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The 1998 Agreement between the Nisga'a people of Northern BC, the federal government, and the government of BC, is a treaty protected under s. 35 of the Canadian Constitution. Existing s. 35 jurisprudence allows treaties to be infringed by government so long as the government can justify the infringement under the Sparrow test. In the one significant court case dealing with the Nisga'a Agreement, it was assumed that this jurisprudence applied. In this paper, the author argues that the Sparrow test ought not to be applied in the context of modem treaties such as the Nisga'a Agreement. Modem treaties, negotiated between equal parties in the light of Charter protection, should not be interpreted according to the special rules that have been developed for interpreting pre-Charter agreements. In order to achieve the reconciliation purpose of treaty making, modern treaties should be respected and courts should intervene as little as possible. On the express wording of the Nisga'a Agreement, the parties intended it to be a full and final settlement. The courts should give effect to that intention.

From the time that Robert Bork issued his first attack on the Warren Court, originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions. Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars. Recently, a prominent constitutional theorist with unmistakably liberal credentials announced his conversion to originalism. Michael Perry, once a self-described non-originalist, now argues that originalism is the only legitimate method of interpreting the Constitution. Perry did not change his political commitments along with his methodological ones, however; his recent work is an extended argument against the "conservative originalism" advocated by Bork. Like John Ely, who sought to defend the activist decisions of the Warren Court against conservative attacks on their legitimacy, Perry seeks to blunt more recent conservative criticism of the Court by demonstrating that originalist interpretation need not foreclose broad readings of the individual rights protected by the Fourteenth Amendment. Despite their considerable ideological differences, both Bork's "conservative originalism" and Perry's less constrained "progressive originalism" divide the process of understanding into cognitive and normative aspects. The determination of the original meaning of the Constitution is methodologically separated from the question of how this predetermined meaning should be applied in a particular con- temporary case. This places both Bork and Perry squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" as ...

Communication présentée dans la session "Stratégies pour la littérature grise académique ; Abstract: 1997 grey literature was defined at Luxembourg as "that which is produced on all levels of government, academics, business and industry in print and electronic formats, but which is not controlled by commercial publishers". Distinction between commercial (white), non-commercial (grey) and other (dirty) literature seemed easy. Six years later, the landscape of scientific and technical information has radically changed. What is the place of grey literature between continuous electronic resources, open archives and new economic models of scientific literature? Is there any place left? The authors describe the evolution and relative decline of traditional grey literature from a French perspective and present some actual trends in the processing of grey literature by INIST-CNRS. ; En 1997 au Luxembourg la littérature grise a été définie comme littérature produite par tous les niveaux d'organismes gouvernementaux, académiques, économiques et industrielles sous forme imprimée ou électronique, mais qui n'est pas contrôlée par les éditeurs commerciaux. La distinction entre littérature commerciale (blanche) et non-commerciale (grise) ou autre (sale) paraissait facile. Six ans après, le paysage de l'information scientifique et technique a changé radicalement. Quelle place pour la littérature grise entre les ressources électroniques continues, les archives ouvertes, et les nouveaux modèles économiques pour la littérature scientifique ? Reste-t-il une place ? Les auteurs décrivent l'évolution et le déclin relatif de la littérature grise traditionelle sous une perspective française et présentent quelques tendances dans le traitement de la littérature grise par l'INIST-CNRS

Communication présentée dans la session "Stratégies pour la littérature grise académique ; Abstract: 1997 grey literature was defined at Luxembourg as "that which is produced on all levels of government, academics, business and industry in print and electronic formats, but which is not controlled by commercial publishers". Distinction between commercial (white), non-commercial (grey) and other (dirty) literature seemed easy. Six years later, the landscape of scientific and technical information has radically changed. What is the place of grey literature between continuous electronic resources, open archives and new economic models of scientific literature? Is there any place left? The authors describe the evolution and relative decline of traditional grey literature from a French perspective and present some actual trends in the processing of grey literature by INIST-CNRS. ; En 1997 au Luxembourg la littérature grise a été définie comme littérature produite par tous les niveaux d'organismes gouvernementaux, académiques, économiques et industrielles sous forme imprimée ou électronique, mais qui n'est pas contrôlée par les éditeurs commerciaux. La distinction entre littérature commerciale (blanche) et non-commerciale (grise) ou autre (sale) paraissait facile. Six ans après, le paysage de l'information scientifique et technique a changé radicalement. Quelle place pour la littérature grise entre les ressources électroniques continues, les archives ouvertes, et les nouveaux modèles économiques pour la littérature scientifique ? Reste-t-il une place ? Les auteurs décrivent l'évolution et le déclin relatif de la littérature grise traditionelle sous une perspective française et présentent quelques tendances dans le traitement de la littérature grise par l'INIST-CNRS

Recent legal battles in the lender-borrower arena have received widespread attention. The fact that these battles occur merits little surprise because borrowers often seek recourse against lenders when financial commitments go awry. Moreover, recent lender-borrower cases do not introduce any new legal theories. The outcome is the noteworthy feature of these cases. Borrowers increasingly are obtaining judgments against lenders. This Note examines recent lender-borrower cases from a contractual perspective, analyzing the application of traditional contract principles in the lender-borrower context. Part II of this Note contends that courts are trying to address three concerns in the lender-borrower context: maintenance of banking stability through enforcement of written contracts, avoidance of adhesion contracts, and provision of legal recourse to borrowers against abusive lending practices. Part III considers several state legislatures' attempts to deal with these concerns by amending their Statutes of Frauds. Finally, Part IV concludes that the state legislatures' use of the Statutes of Frauds better addresses the concerns of banking stability, adhesion contracts, and abusive lending practices than recent judicial efforts.

There was a time when observers had the impression that European companies could think of no better gift from the government than a subsidy of some sort. Scrutiny of such governmental largess at the E.U. level was perceived as lax and any consequences for violating the E.U. competition rules against such handouts were seen as remote and timid. Times have changed. As the European Commission (the "Commission") stiffens its resolve to police and punish unlawful State intervention in the marketplace, governmental subsidies to favored undertakings, broadly referred to in the European Union as "State aid," are fast becoming gifts that companies sometimes wish they had not received. The characterization of State aid granted in a straightforward manner as unlawful, e.g., through the grant of a loan at an artificially low rate, is relatively unproblematic, but the Commission is more and more often scrutinizing suspected State aid in unobvious and novel situations. In doing so, the Commission has been using the tests applied in straightforward cases and has adapted them to the situations under review (to use a French expression --c'est dans les vieilles marmites qu'on fait la meilleure soupe)

In the late 60s, Gary Becker incorporated into his formal model of deterrence theory an explicit statement that the theory´s components—certainty and severity of punishment—are more or less influential than one another depending on an individual´s preference for risk. The certainty of punishment is more influential than the severity of punishment in the decision of whether or not to commit crime if an individual is risk acceptant; if a criminal is risk averse, then the severity of punishment is more important than the certainty of punishment. Many aggregate deterrence studies arrive at estimates that reveal varying effects of the certainty and severity components of deterrence theory, with the certainty of punishment carrying the greater, and many times the only, weight. Leaning on Becker´s extension of deterrence theory, empiricists assume that criminals have a preference for risk. Assertions that arrests and convictions are greater deterrent tools imply important worldly consequences because they indicate to governmental authorities where resources should be invested to insure the best deterrent payoff. In this paper, I question both the need to take risk into consideration in aggregate level deterrence studies and the empirical evidence that has been offered in support of attaching greater weight to the certainty of punishment. I show, first, that deterrence theory, from an applied policy standpoint, is encumbered through the explicit consideration of risk preferences. Next, I work through the algebra of the statistical formulations of deterrence models and demonstrate that the greater weight associated with certainty could well be an artifact of the model specification. Finally, I reanalyze data that appear to be consistent with the greater weight for certainty than severity argument and show that the evidence does not support that inference. Potential criminals mentally combine the three deterrence components—regardless of whether they are risk neutral, averse, or acceptant. I conclude by considering what ...

In Copperweld Corp. v. Independence Tube Corp. the United States Supreme Court held that corporations and their wholly owned subsidiaries cannot conspire and, thus, cannot violate section 1 of the Sherman Act. The decision signals an important shift in interpretation of the Sherman Act. Before Copperweld, corporations and their wholly owned subsidiaries were subject to conspiratorial liability under the Act. The Supreme Court had recognized intra-enterprise conspiracies on at least six occasions. Despite their diverging views on how broadly the doctrine was to be interpreted, the federal courts of appeals had unanimously applied the doctrine. The Court implicitly addressed the two fundamental questions underlying section 1 analysis, however, by rejecting alternative ways of resolving the intra-enterprise inconsistency. This Note suggests that the Copperweld Court implicitly concluded that it is desirable to police single-firm conduct only when such conduct violates the monopoly provisions of section 2. The Note examines the assumptions and rationales that underlie this conclusion, and challenges the persuasiveness of such assumptions in light of the specific fact pattern presented in Copperweld. Specifically, this Note challenges the "efficiency" interpretation of the Sherman Act adopted by the Court. Additionally, this Note questions whether a narrow interpretation of the "restraint of trade" provision remains faithful to the broad and flexible nature of section 1 as previously interpreted by the Supreme Court. The Note suggests that the complex philosophical and political presumptions that underlie antitrust analysis are essentially concerns for the legislature and not the courts. The Court, therefore, must make these critical presumptions explicitly and not disguise them in a circuitous maze of economic certainty. The Note proposes, in conclusion, that a rule of reason test, incorporating an open balancing of policy objectives, is a more appropriate tool for assessing the reasonableness of restraints of trade ...

Shipping list no.: 2000-0049-P. ; Distributed to some depository libraries in microfiche. ; Mode of access: Internet.

Shipping list no.: 2000-0049-P. ; Distributed to some depository libraries in microfiche. ; Microfiche. ; Mode of access: Internet.

Option theory is used here to determine the variables that should explain the price of bank loans to foreign governments. As usual, the key explanatory variable is the variance of the underlying state variable (in casu, government income). It is also shown that these bank loans can often be considered to be riskless in the quantity dimension, because repayment will be made with certainty. They are risky in the time dimension, however, in the sense that banks do not know with certainty the exact moment of repayment.

'In this world nothing can be said to be certain, except death and taxes'. If one agreed with this statement, made by Benjamin Franklin one year prior to his death, one could come to the ultimate conclusion that there has to be a special certainty about capital transfer taxes, estate duties, inheritance taxes or other death duties levied on deceased estates. There seems to be no reason whatsoever to doubt the final truth of the first part of Franklin's statement. But is it also right to assume that there is a certainty about taxes or, what is more, to draw the conclusion that there could be a special certainty about the different types of taxes connected with the death of an individual? On the one hand it seems to be true. There are only a few countries throughout the world levying very limited or no taxes at all, and if one forgets about a few tax havens, like the Caymen Islands for example, one is also inclined to agree with the latter part of Franklin's statement - there seems to be certainty about the levying of taxes. But, on the other hand, is the amount of taxes, especially the amount of capital transfer taxes, estate duties, inheritance taxes or other death duties levied on a persons death, always that certain? The avoidance of double taxation has been an objective of most of the world's nations since the negotiation of the first Income Tax Convention in the middle of the nineteenth century. The development of most of the world's countries into modern industrial nations, with trade links all over the world, gradually demonstrated the problems which can arise if one country levies taxes without considering the levying of an equal or similar tax in another country. Today the negative consequences of double taxation on the movement of goods, services and capital are widely understood by modern states enacting tax systems for their citizens.

The dynamic effects of fiscal policies on the real equilibrium have been the subject of a large body of recent research, emphasizing the intertemporal dimensions of tax and spending policies both in closed and open-economy contexts. The analysis in this paper extends the intertemporal analysis which was conducted under full certainty to uncertain environments. The paper uses a two-country stochastic general-equilibrium model of the world economy to address issues concerning the effects of government tax and spending policies on private sector consumption asset portfolios and stock market valuations. The ket result of the paper us that the consequences of expected future policies and the characteristics of the international transmission depent on a transfer-problem criterion involving the government and the private-sector marginal propensities to spend in different states. General conditions for government-finance neutrality under uncertainty are derived. The paper shows that the effects of current spending policies on consumption savings and stock market prices conform to the predictions of the corresponding certainty intertemporal model. ; Published in connection with a visit at the IIES.

The authority of animal husbandry arrangements in general should be arranged by the central government, therefore the regency/city government unnecessarily rule in general by using regency rules. It is for setting law certainty in the national law system while developing law especially for land affairs, whereas the Republic of Indonesia is still under one national defence law, that is, local law arrangement and technical practice.

This paper proposes and analyzes a model of a "European economy" with three overlapping generations, redistributive social security, and public universities without tuition. Individuals differ ex ante. The effect of wage tax rate on occupational choice and the voting equilibrium of wage tax rate and educational investments are analyzed both under full certainty and with income risks facing the educated and the uneducated.