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Edinburgh Law School Legal Studies Research Paper Series - January 2021

Mon 18 January 2021

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The latest in the Legal Studies Research Paper Series (Vol. 9, No. 1: Jan 14, 2021) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Enabling Global Climate Markets to have More Impact: Networked Emissions Trading Using Disruptive Technologies

Justin Macinante, Edinburgh Law School

Abstract: This article briefly introduces a model for making climate markets more efficient and of greater impact in bringing about timely mitigation of GHG emissions. The proposed networked market model and, importantly, a governance structure for such within the policy and regulatory setting of the Paris Agreement, are elaborated by the author in his recently published book, Effective Global Carbon Markets – Networked Emissions Trading Using Disruptive Technology.

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Forced Heirship in Italy

Alexandra Braun, Edinburgh Law School

Abstract: Civil-law systems do not generally grant testamentary freedom without limitations. Often, the most significant constraints on the freedom to dispose of assets on death derive from legislative provisions that protect the interests of close family members by way of a forced share, even against the wishes of the deceased. These restrictions can be more or less extensive. In the case of Italy, they are significant, both in terms of how little the testator can sometimes freely dispose of, whether on death or during her lifetime, and in terms of the limited degree of autonomy with which she can modify or reduce the forced share in the estate and enter into agreements with those entitled to a forced share. This chapter provides an historical overview of forced heirship in Italy and examines its main features as well as the mechanisms that are in place to protect forced shares. It evaluates the various proposals to reform forced heirship, including proposals to abolish forced heirship altogether, none of which have been implemented. It argues that Italian law in this area is in an unsatisfactory state, for not only do forced heirship provisions impinge on a person’s freedom of testation and her freedom to make gratuitous transfers during her lifetime, they also affect the interests of donees and other third parties, ultimately hampering the free movement of goods. What is more, the provisions that are in place, including those on the calculation of the forced share and on anti-avoidance, are of considerable complexity. A reform of the area is therefore highly desirable.

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Brexit and the Mechanisms for the Resolution of Conflicts in the Context of Devolution: Do We Need a New Model?

Elisenda Casanas Adam, Edinburgh Law School

Abstract: The referendum vote in 2016 to leave the European Union (Brexit) and the process for its implementation have had a significant impact on the devolution framework, and in particular on its legal mechanisms for ensuring harmonious relations between Westminster and the devolved legislatures, and for resolving conflicts between them. Focusing on the Miller and Scottish Continuity Bill cases, this chapter highlights the problems arising from the use of the mechanisms established in the devolution settlements, primarily designed to ensure that the devolved legislatures do not act ultra vires, for the legal resolution of competence conflicts between both orders of government. Taking into consideration the significant role that the courts play in federal or quasi-federal systems by providing an independent and balanced interpretation of the constitutional framework, this chapter reflects on the effectiveness of these mechanisms in the UK system and argues that, in the light of recent developments, they need to be reformed to enable the access of the devolved institutions to the courts in this context.

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Transitional Justice Between the Individual and the State: Criminal Trials, Historical Record, Societal Responsibility

Andy Aydin-Aitchison, Edinburgh Law School

Abstract: The paper responds to Jelena Subotić’s claim that societal responsibility is a missing pillar in current transitional justice frames. The paper accepts that the criminal justice approach exemplified by the International Criminal Tribunal for the Former Yugoslavia (ICTY) cannot deliver societal accountability for past atrocities. But because of the connections between micro-, meso- and macro-levels in complex atrocity crimes, exploring individual guilt in an open trial process inevitably provides resources for examining societal responsibility in its diverse forms. The paper advances in four steps. First it extends Subotić’s account of societal responsibility, breaking it down into individual (micro-), corporate (meso-), and political and communal (macro-) dimensions of societal responsibility. Second, it sets out the role of the historical record in accounts of transitional justice, particularly in terms of truth and memory. Third, claims for the ICTY as a ‘court of historical record’ are presented. Fourth, the paper examines the trial of Radoslav Brđanin for evidence of corporate-societal responsibility using the example of the Serbian Orthodox Church. The detailed reading demonstrates corporate-societal responsibility of the Church through the actions of bishops, failure to stand against atrocity crimes, meaningful participation in support of atrocity policy, and in benefitting from atrocity crime. The paper finishes by looking forward to the possibility of translating legal resources into processes of societal reckoning.

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