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Will the United States Supreme
Court legalize same-sex marriage?
Hollingsworth v. Perry and United
States v. Windsor
This spring the US Supreme Court will make its decision in two well-known cases:
Hollingsworth v. Perry and United States v. Windsor. In both the Court must
resolve the nationwide dispute over the constitutionality of federal and state
laws which defined marriage as a union between a man and a woman. The Ninth
and the Second Circuits found (in Perry and Windsor respectively) that such laws
violate both Due Process and Equal Protection Clauses of the Constitution. The
aim of this paper is to analyze the former Supreme Court’s decisions in this field in
order to propose the most probable rationale of the expected judgements. Taking
into account the Supreme Court’s milestone rulings in Griswold v. Connecticut
from 1965, Loving v. Virginia from 1967, Romer v. Evans from 1996 and Lawrence
and Garner v. Texas from 2003, it seems fairly possible that the Court will uphold
the constitutionality of same-sex marriage. Most likely, it will be done on the
ground of the Second Circuit decision in Windsor which is the best opportunity
to gather the sufficient five-member majority round this solution.

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Sea Loan. A Dead-End Alley of Western
Legal Tradition?

When considering Roman legal framework a key factor in the discussion about the
process of decodification in Europe one cannot overlook some concepts which nowadays
are thought to be a mere history. Roman law does not always pass the test of
flexibility and economical effectiveness. For example a strong affirmation of personal
character of any obligation made Romans reluctant to accept assignment of rights
and pactum in favorem tertii which are broadly recognized in the modern civil law.
However, it seems not to be a case with pecunia traiecticia, i.e. the sea loan. This
special contract of loan had a twofold character: it served to take over the risk of
sea transport and to invest in maritime trade. The main idea was quite familiar: just
price for any loss incurred due to vis maior. Usus modernus applied it also to land
transport. Nevertheless, the sea loan suddenly disappeared at the end of 19th century
after a long tradition of being a part of the western legal thought. The author believes
that there is a place in the realm of obligations for an ancient, but still a vigorous
concept. Pecunia traiecticia was inspiration for two different and more famous contracts:
insurance and bottomry loan which dominated its history. However, as such
it was more like modern risk-sharing instruments which combine credit, insurance
and a bit of speculation. Examination of Roman legal framework and western legal
tradition has proved that some ancient concepts even ‘forgotten’ could revive and
should be included in the market of ideas while shaping a new order of private law.

Animals as Non-personal Carriers
of Legal Rights

The current body of knowledge about the subjectivity (cognition and value-laden
experience) of some non-human vertebrates makes the juristic dichotomy between
commodities and persons untenable. While the great apes may (with some limitations)
be treated as persons, most vertebrates are non-personal agents that
lack the awareness of their own agency, which does not necessarily diminish the
intrinsic value of their lives. Unfortunately, the ongoing efforts to raise the status
and thus improve the treatment of all sentient animals are hin dered by the lack of
realistic conceptual framework for translating the current knowledge of their subjectivity
and ensuing individual interests into politics and legislation. Referring
to Western philosophers of law (H. Kelsen, A. Ross, N. MacCormick, L. Petrażycki)
we therefore propose to grant vertebrates (and possibly some other animals if
their subjectivity is recognized by science) legal rights that are appropriate for
non-personal subjects even if the scope of such rights has to be very limited in
comparison to the rights of human beings.

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Perspectives on Law Science in the Light
of the German Council of Science
and Humanities Report

The report on Legal Studies handed down by the German Wissenschaftsrat
might be of interest for a Polish-speaking public, too: it rightly underlines the
importance of cultural disciplines, internationality and interdisciplinarity. It
avoids an explicit link to the so-called Bologna process (failed in Germany).
However, the measures proposed could, to some extent, be realised under the
proved and tested State Examination system only with financial and personal
resources that seem to be completely unrealistic. In a Bologna logic, they might
indeed work but at the price of a breakdown in overall quality. At any rate, a
Polish-German dialogue on the subject seems highly desirable.