Recent (2013) and Forthcoming Books
Showing 175 recent books sorted by year, then title [change this]
J Cartwright, ''Authenticity' and 'Authentic Instruments': The Perspective of English Law' in L. Aynès (ed), L'authenticité (La documentation Française 2013) [...]
Comparative discussion of English law and French law provisions regarding formalities for private law transactions (contract and property) with focus on the absence from English law of notarised and other 'authentic' instruments. Part of published proceedings of Commission on Authenticité established by the Conseil supérieur du notariat, France under the direction of Professor Laurent Aynès.
E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law (Hart Publishing 2013) [...]
The delict of iniuria is among the most sophisticated products of the Roman legal tradition. The original focus of the delict was assault, although iniuria - literally a wrong or unlawful act - indicated a very wide potential scope. Yet it quickly grew to include sexual harassment and defamation, and by the first century CE it had been re-oriented around the concept of contumelia so as to incorporate a range of new wrongs, including insult and invasion of privacy. In truth, it now comprised all attacks on personality.
It is the Roman delict of iniuria which forms the foundation of both the South African and - more controversially - Scots laws of injuries to personality. On the other hand, iniuria is a concept formally alien to English law. But as its title suggests, this book of essays is representative of a species of legal scholarship perhaps best described as 'oxymoronic comparative law', employing a concept peculiar to one legal tradition in order to interrogate another where, apparently, it does not belong. Addressing a series of doctrinal puzzles within the law of assault, defamation and breach of privacy, it considers in what respects the Roman delict of iniuria overlaps with its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and the degree to which the Roman proto-delict points the way to future developments in each of these three legal systems.
E Descheemaeker, 'Iniuria and the Common Law' in E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law (Hart Publishing 2013) [...]
This article is the introductory chapter of Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), a book which comprises the papers that were presented at a namesake seminar at All Souls College, Oxford, in 2011 by the following scholars: John Blackie, Jonathan Burchell, François du Bois, Paul du Plessis, Anton Fagan, David Ibbetson, Paul Mitchell, Kenneth Norrie and the two editors.
The book is a form of ‘oxymoronic comparative law’: that is to say, it employs a concept from one legal tradition (the Roman delict of iniuria, ie insult or contempt) to interrogate another where, on the face of it, it does not belong (the common law, including the mixed legal systems of South Africa and Scotland). Its overall theme and purpose is to consider in what respects the delict of iniuria overlaps with, fall short of or exceeds its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and, finally, the degree to which the Roman proto-delict points the way to future development or rationalisation in each of these three legal systems.
The introductory chapter seeks, first, to provide a concise account of the Roman law of iniuria and, second, to explore some of the conceptual issues arising from our attempt to examine iniuria from the outside perspective of the common law: these pertain, in particular, to the internal structure of the delict, the place of the actio iniuriarum within the broader context of the punitive and reipersecutory functions of the law, and the relationship of iniuria with the modern common law in the three jurisdictions under examination.
E Descheemaeker, 'Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory' in E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law ( 2013) [...]
Injuries to feelings have been a perennially difficult issue for the law of civil wrongs. The Romanist tradition pressed into service the word ‘solatium’ (solace) to designate the box in which such injuries would commonly be placed and addressed. While the concept is not formally part of the common lawyer’s toolbox, English law has also resorted to it in a number of circumstances, typically related to wounded feelings. After having examined the use of the word in Roman law, the later civilian tradition and English law, this paper argues that the word solatium should be done away with, because it is intrinsically ambiguous and allows by its very existence the perpetuation of these ambiguities. More fundamentally, the underlying idea of injuries to feelings should be discarded as an organizational category in the law of tort. Feelings, it is argued, are not another interest in need of protection alongside property and personality rights; rather they constitutes a separate level of analysis (internal, as opposed to external), from which the entirety of the law of wrongs can be examined. When the law aligns the two levels of enquiry, it commits a category mistake which will inevitably result in inconsistency or double-counting.
J Pila, 'A Constitutionalised Doctrine of Precedent and the Marleasing Principle as Bases for a European Legal Methodology' in Ansgar Ohly and Justine Pila (eds), The Europeanisation of Intellectual Property Law: Towards a European Legal Methodology (OUP 2013)
D J Galligan, 'A Moment Missed: The Levellers and the Constitution' in D. J. Galligan (ed), Constitutions and the Classics (Oxford University Press (confirmation pending) 2013) (forthcoming)
P P Craig, 'Accountability and Judicial Review in the UK and EU: Central Precepts' in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution ( 2013)
A L Young, 'Accountability, Human Rights Adjudication and the Human Rights Act 1998' in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford University Press 2013)
G Loutzenhiser and John Tiley, Advanced Topics in Revenue Law (Hart Publishing 2013)
P S Davies, 'Aid, abet, counsel or procure?' in S Pitel, J Neyers, E Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart 2013) (forthcoming)
A J B Sirks, 'An inheritance lost and a fraudulent slave' in A. Burrows, D. Johnston, R. Zimmermann (eds), Judge and Jurist, Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013) [...]
An exegesis of two Digest texts, D. 188.8.131.52 and 4. It is suggested that two ways of valuation of the damages, a positive and a negative, are behind these.
M R Macnair, 'Arbitrary Chancellors and the problem of predictability' in Willem Zwalve & Egbert Koops (eds), Law and Equity: Roman Law and Common Law approaches (Brill 2013) (forthcoming) [...]
Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors. The remedies adopted, however, are profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern ‘Chancery bar equity’ is perhaps the least ‘equitable’, in the Aristotelian ἐðéåßêåéá sense of ‘flexible’, branch of English law.
A Higgins, Andrew Mitchell and James Munro, 'Australia's Plain Packaging of Tobacco Products ' in Bryan Mercurio and Kuei-Jung Ni (eds), Science and Health Measures in International Economic Law (Routledge 2013)
S Fredman, 'Breaking the mould: equality as a proactive duty ' in Nicola Countouris and Mark Freedland (eds), Resocialising Europe in a Time of Crisis ( 2013)
M Bosworth, 'Can Immigration Detention be Legitimate' in KF Aas and M Bosworth (eds), The Borders of Punishment: Citizenship, Crime Control and Social Exclusion (Oxford University Press 2013) (forthcoming)
J J W Herring, Caring and the Law (Hart 2013) [...]
This book explores at a theoretical and practical level the law's interaction with caring.
S Fredman, 'CEDAW in the UK' in A Hellum and H Sinding Aasen (eds), Women's Human Rights: CEDAW in International, Regional and National Law (Studies on Human Rights Conventions Cambridge University Press 2013)
M Bosworth, 'Citizenship and Belonging in a Women's Immigration Detention Centre' in C Phillips and C Webster (eds), New Directions in Race, Ethnicity and Crime (Routledge 2013) (forthcoming)
This paper provides an overview of issues raised by the nature of coercion. It outlines four major distinctions that are both important to understanding the nature of coercion and important to disputes about its nature: (1) coercion in the sense of actions that aim to force another to do something, as opposed to actions that simply have that effect (i.e. are "coercive"); (2) coercion by the use of physical force as opposed to coercion by the creation of a "forced choice"; (3) coercion as a factor affecting the liability of the person who succumbs to the force ("duress") as opposed to coercion as a means of making another do as one wills; and (4) distinguishing between proposals that are threats rather than offers. These distinctions all bear on the question of why the use of coercion is ordinarily regarded as requiring some moral warrant.
Simon Whittaker and K Reisenhuber, 'Conceptions of Contract' in G. Dannemann and S. Vogenauer (eds), The Common European Sales Law in Context: Interactions with English and German Law (OUP 2013)
European Max Planck Group on Conflict of Laws etc, Conflict of Laws in Intellectual Property: The CLIP Principles and Commentary (Oxford University Press 2013)
R Ekins, 'Constitutional Principle in the Laws of the Commonwealth' in R. George and J. Keown (eds), Reason, Morality and Law: The Jurisprudence of John Finnis (Oxford: OUP 2013) (forthcoming)
P S Davies, 'Construing commercial contracts: no need for violence' in M Freeman and F Smith (eds), Law and Language: Current Legal Issues Volume 15 (OUP 2013)
J Cartwright, Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer, 2nd edn (Hart Publishing 2013) [...]
Second edition of book designed to introduce English contract law to lawyers with a civil law background.
A S Burrows and C Busch, 'Contract Terms in favour of Thrid Parties' in Gerhard Dannemann and Stefan Vogenauer (eds), The Common European Sales Law in Context (OUP 2013)
D J McBarnet, 'Corporate social responsibility beyond law, through law, for law' in J Moon and D Matten (eds), Corporate Citizenship (Edward Elgar 2013) (forthcoming)
John Gardner and James Edwards, 'Criminal Law' in Hugh LaFollette (ed), International Encyclopedia of Ethics (Wiley-Blackwell 2013)
J J W Herring, Criminal Law, 8th ed ( 2013)
John Gardner, 'Criminals in Uniform' in R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros (eds), The Constitution of Criminal Law (Oxford University Press 2013)
J Cartwright and M Schmidt-Kessel, 'Defects in Consent: Mistake, Fraud, Threats, Unfair Exploitation' in Gerhard Dannemann and Stefan Vogenauer (eds), The Common European Sales Law in Context (Oxford University Press 2013) [...]
Comparison of English law on defects in consent in the formation of a contract with German law and European private law (the proposed Common European Sales Law and the Draft Common Frame of Reference).
In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.
L Lazarus and Natasha Simonsen, 'Democratic Deliberation and Judicial Review' in Murray Hunt (ed), Parliament and Human Rights: Redressing the Democratic Deficit (Oxford University Press 2013) (forthcoming) [...]
This chapter argues provides a model which Courts could apply in their assessment of Parliamentary deliberation of rights limiting legislation. It argues for such a transparent assessment as a prerequisite of the exercise of judicial deference.
J Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing 2013)
J Goudkamp and Charles Mitchell, 'Denials and Defences in the Law of Unjust Enrichment' in Charles Mitchell and William Swadling (eds), The Restatement Third, Restitution and Unjust Enrichment: Comparative and Critical Essays (Hart Publishing 2013)
A Ashworth, 'Die Rettungspflicht im englischen Recht' in Andreas von Hirsch, Ulfrid Neumann and Kurt Seelman (eds), Solidaritat im Strafrecht (Nomos Verlagsgesellschaft, Baden-Baden 2013) [...]
Abstract: A theoretical examination of the principles on which English criminal law grounds liability or non-liability for omissions.
G Dinwoodie, 'Dilution as Unfair Competition: European Echoes' in Rochelle Cooper Dreyfuss and Jane C. Ginsburg (eds), Intellectual Property at the Edge: The Contested Contours of IP (Cambridge University Press 2013) (forthcoming) [...]
This response to Barton Beebe explores whether contemporary experience in Europe supports the central arguments advanced by Beebe in The Supressed Misappropriation Origins of Trademark Antidilution Law. The development of E.U. law is largely consistent with the idea that dilution law is in part an effort to install a misappropriation regime, at least insofar as the objects of protection are trademarks with a reputation (increasingly, a smaller caveat as the scope of potential trademark subject matter expands and the reputation threshold falls). This has important local consequences: if dilution law is in truth is a law against misappropriation, the Court of Justice of the European Union has greater scope to contribute to the creation of a nascent European law of unfair competition. But examining recent European case law also suggests that understanding misappropriation as part of a broader system of unfair competition may moderate the formalist critique of misappropriation as wholly indeterminate and unlimited. Understood in its unfair competition milieu, a misappropriation-based concept of dilution retains some potential for measured delineation of the edges of protection.
D J Galligan, 'Discretion Revisited: From Autonomy to Sound Judgement' in A. Ruiz Ojeda (ed), To be settled (to be entered 2013) (forthcoming) [...]
A reassessment of the concept of discretion in the regulatory context, the argument being that discretion as autonomy has to be modified by discretion in its original meaning as sound judgement.
S Vogenauer, 'Drafting and Interpretation of a European Contract Law Instrument' in G Dannemann and S Vogenauer (eds), The Common European Sales Law in Context: Interactions with English and German Law (Oxford University Press 2013) [...]
pp 82-119. A European contract law regime will not necessarily be drafted and interpreted in ways that correspond to the approaches of a particular national legal system. In this chapter I will assess the peculiarities of drafting (II.) and interpreting (III.) European rules against the background of English and German contract law. I will then explore how these aspects will influence the interaction of the European contract law regime, both as an ‘optional instrument’ and as a ‘toolbox’, with the domestic laws of these two Member States (IV.).
G. Giacca and T. Karimova, 'Education as a “Battleground” in Conflicts' in S. Casey-Maslen (ed), The War Report 2012 (Oxford University Press 2013)
D Leczykiewicz, 'Enforcement or Compensation? Damages Actions in EU Law after the Draft Common Frame of Reference' in M Kenny and J Devenney (eds), The Transformation of European Private Law (Cambridge University Press 2013)
S Fredman, 'Engendering socio-economic rights' in A Hellum and H Sinding Aasen (eds), Women's Human Rights: CEDAW in International, Regional and National Law (Studies on Human Rights Conventions Cambridge University Press 2013)
E Fisher, B Lange and E Scotford, Environmental Law: Text, Cases & Materials (OUP 2013)
E Fisher, B Lange and E Scotford, Environmental Law: Text, Cases and Materials (OUP 2013)
P S Davies and G Virgo, Equity and Trusts: Text, Cases, and Materials (OUP 2013)
A Ashworth, 'Eroding the Structure of the Convention? The Public Interest in Prosecutions for Serious Crime' in K.S. Ziegler and P.M. Huber (eds), Current Problems in the Protection of Human Rights (Hart Publishing 2013) [...]
An examination of the European Court of Human Rights' tendency to give increasing weight to public interest considerations, moving away from older doctrines.
P P Craig, 'EU Administrative Law and Tradition ' in M Ruffert (ed), Administrative Law in Europe: Between Common Principles and National Traditions (Europa Law Publishing 2013)
I Benöhr, EU Consumer Law and Human Rights (Oxford University Press, Oxford Studies in European Law 2013) (forthcoming)
A Ezrachi and Gilo, European Competition Law and Policy: A Comparative Perspective (forthcoming 2013)
E Ramaekers, European Union Property Law: From Fragments to a System? (Intersentia 2013)
J S Getzler, 'Faith, Trust, and Charity' in A Burrows, D Johnston, and R Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013) [...]
Lord Rodger's last book examined constitutional issues arising from the Disruption of the Church of Scotland of 1843. This essay in honour of Lord Rodger looks at the Disruption anew through the lens of private law. It examines problems arising where a court is vested with jurisdiction over issues of religion by the regular operation of secular law as a source of private rights created at will by private actors. This is quite distinct from cases where religious practice collides with secular law created directly by coercive public command so as to bind all subjects. For example, where a group forms an association based on civil institutions of contract, co-ownership and trust in order to pursue a common religious life, then regular enforcement of those private-law agreements and shared property rights can give the courts a lever to decide matters of religion enshrined in the original constitution of the group. Thus if A and B vest property into common or entrusted ownership and agree that this will be used to support a certain form of religious practice, creed, and ritual, then A may sue B to force him by law not to vary the practice, creed, or ritual, as a matter of contract, property, or trust law. Successors may perpetually rely on the original agreements to enforce religious forms many generations later. And a religious form of life may be "double-entrenched" by making the original means of governance of the religious community a fundamental condition of the association and so immune to normal majoritarian vote. These issues were fought out in many great cases before and after the Disruption, and this jurisprudence forms a backdrop to Lord Rodger's important dissent in the Jewish Free School Case of 2009.
J M Eekelaar and Mavis Maclean, Family Justice: The Work of Family Judges in Uncertain Times (Hart Publishing 2013) [...]
Based on observations of court proceedings the book analyses the nature of activities in the lower family courts in England and Wales, showing them to be very different from the way they are commonly perceived by policy-makers. It sets these findings within an account of the place of justice in the resolution of family conflicts.
J J W Herring, 'Family Law' in All England Law Review 2012 (Butterworths Lexis Nexis 2013)
J J W Herring, 'Family Law' in A. Burrows (ed), English Private Law (OUP 2013)
J J W Herring, Family Law, 6th ed (Pearson 2013)
J J W Herring, Family Law: Questions and Answers, 2nd ed (Pearson 2013)
John Gardner, 'Finnis on Justice' in John Keown and Robert P. George (eds), Reason, Morality, and the Law: The Philosophy of John Finnis (Oxford University Press 2013)
M Köpcke Tinturé, 'Finnis on Legal and Moral Obligation' in John Keown, Robert George (eds), Reason, Morality, and Law: The Jurisprudence of John Finnis (Oxford University Press 2013)
I Goold, Flesh and Blood: Owning Our Bodies\\\\\\\' Parts (Hart Publishing 2013) (forthcoming)
V Moreno Lax, 'Frontex as a Global Actor: External Relations with Third Countries and International Organisations' in M Dony (ed), The External Dimension of the Area of Freedom, Security and Justice (Brussels: Bruylant 2013) (forthcoming)
P Eleftheriadis, 'Global Rights and the Sanctity of Life' in Glenn Cohen (ed), The Globalization of Health Care (Oxford University Press 2013)
P Eleftheriadis, 'Hart on Sovereignty' in Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013) (forthcoming)
D Leczykiewicz, 'Horizontal Effect of Fundamental Rights: In Search of Social Justice or Private Autonomy in EU Law?' in U Bernitz and X Groussot (eds), General Principles of EU Law and European Private Law (Kluwer 2013)
J Vidmar, 'Human Rights and Democratic Legitimacy of Governments in International Law: Practice of States and UN Organs' in Panara, Wilson (eds), The 'Arab Spring': New Patterns for Democracy in International Law (M Nijhoff 2013)
S Douglas-Scott, 'Human Rights in the EU' in Dennis Patterson (ed), Blackwell Companion for EU law and International Law (Oxford: Blackwell 2013) (forthcoming)
W Cornish and G Dinwoodie, 'Intellectual Property' in Andrew Burrows (ed), English Private Law (3d ed) (Oxford University Press 2013) (forthcoming)
J Pila, 'Intellectual Property Law as a Case Study in European Harmonisation: Methodological Themes and Context' in Ansgar Ohly and Justine Pila (eds), The Europeanisation of Intellectual Property Law: Towards a European Legal Methodology (OUP 2013)
D Sarooshi, 'International Organizations and State Responsibility' in M. Ragazzi (ed), The Responsibility of International Organizations: Essays in memory of Sir Ian Brownlie (Martinus Nijhoff 2013) (forthcoming)
D Sarooshi and A. Tzanakopoulos, 'International Organizations before United Kingdom Courts' in August Reinisch and Gregor Novak (eds), Transnational Judicial Dialogue of Domestic Courts on International Organizations ( 2013)
R J Smith, Introduction to Land Law (Pearson 2013)
I Loader, 'Introduction: Mapping the Penal Landscape of England and Wales' in A Dockley and I Loader (eds), The Penal Landscape: The Howard League Guide to Criminal Justice in England and Wales (London: Routledge 2013)
G Dannemann and S Vogenauer, 'Introduction: the European Contract Law Initiative and the ‘CFR in Context’ Project' in G Dannemann and S Vogenauer (eds), The Common European Sales Law in Context: Interactions with English and German Law (Oxford University Press 2013) [...]
pp 1-20. This book explores the interactions between a European contract law instrument and national legal systems, using English law and German law as examples. The purpose of this Chapter is to set out the background to our enquiry and the methodology we employed. The first Part gives an overview of the ‘European contract law initiative’ which has resulted in various drafts for a European contract law regime, culminating in the two instruments that are the focus of the following chapters: the European Commission’s Proposal for a Regulation on a Common European Sales Law of October 2011 and one of its precursors, the 2009 Draft Common Frame of Reference. The second Part of this Chapter describes the Anglo-German research project which led to the present book. It will explain the overarching questions we set out to answer and the methodology employed by the authors of the various chapters.
A S Burrows, 'Is there a Defence fo Good Consideration? ' in Charles Mtichell and William Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment (Hart 2013)
L Duarte d'Almeida, J Gardner and L Green (eds), Kelsen Revisited: New Essays on the Pure Theory of Law (Hart Publishing 2013) [...]
Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.
I Loader and R Sparks, 'Knowledge Politics and Penal Politics in Europe' in T Daems, S Snacken and D van Zyl Smit (eds), European Penology? (Oxford: Hart 2013)
M Paparinskis, 'Latvia' in Chester Brown (ed), Commentaries on Selected Model Investment Treaties (Oxford University Press 2013)
S Douglas-Scott, Law After Modernity (Hart Publishing 2013)
J M Eekelaar, 'Law and Community Practices' in Mavis Maclean and John Eekelaar (eds), Managing Family Justice in Diverse Societies (Hart Publishing 2013) [...]
Proposes a strategy for state law when interacting with norms of minority communities within the state which reconciles the values of respecting cultural identity with commitment to individual human rights.
J Dickson, 'Law and Its Theory: a Question of Priorities' in R P George and J Keown (eds), Reason, Morality and Law: the Jurisprudence of John Finnis (Oxford University Press 2013)
F Pirie, 'Law and Religion in Historic Tibet' in F.&K. von Benda-Beckmann, M. Ramstedt, B. Turner (eds), Religion in Disputes (Palgrave MacMillan 2013)
N. W. Barber, 'Legal Realism, Pluralism, and Their Challengers' in Ulla Neergaard and Ruth Nielsen (eds), European Legal Method – towards a New European Legal Realism? (DJOEF Publishing 2013)
S Vogenauer, 'Lenel and Daube: a Cross-channel Friendship' in A Burrows, D Johnston and R Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earslferry (OUP 2013) [...]
pp 277-96. This contribution explores the relationship between two outstanding Roman law scholars, Otto Lenel and David Daube, on the basis of their correspondence in 1933 and 1934. It also discusses the influence of Daube on Alan Rodger.
S J Bright, 'Manchester City Council v Pinnock' in N Gravells (ed), Landmark Cases in Land Law (Hart 2013) [...]
This chapter explores what the case of Manchester CC v Pinnock means In terms of the rhetoric of ownership and our doctrinal thinking about property rights. It is argued that it heralds a much more contextualised understanding of what it means to assert ownership of land and of how claims for the recovery of land should be resolved. It is these dimensions that are explored in this chapter
A J B Sirks, 'Mommsen und der Codex Theodosianus' in I. Fargnoli (ed), ( 2013) (forthcoming) [...]
How reliable is Mommsen's edition of the Theodosian Code? Is there any ground for a new edition, where the books 1 to 5 are restored in the way Krüger endeavoured in his edition? The conclusion is that Mommsen's edition is reliable though in need of some improvement in some places, but that a reconstruction as envisaged by Krüger is too unreliable.
J J W Herring, 'Older People and Nursing Care' in John Tingle and Alan Cribb (eds), Nursing Law and Ethics (Wiley Blackwell 2013)
I Benöhr, 'Out-of-Court Settlement of Consumer Disputes in Financial Services' in C. Hodges and A. Stadler (eds), Resolving Mass Disputes (Edward Elgar 2013)
R Williams, 'Overpaid Taxes: A Hybrid Public and Private Approach' in Birke Haecker, Charles Mitchell, Steven Elliott (eds), Restitution of Overpaid Tax ( 2013) [...]
Continues the argument developed in 'Unjust Enrichment and Public law' in the light of the decision of the Supreme Court in FII. Argues that in Deutsche Morgan Grenfell the House of Lords took a wrong turning on the law of unjust enrichment in a public law context, a decision which has led to unnecessary and avoidable litigation, as evidenced by FII. Suggests that such litigation could in future be avoided by reversing the Deutsche Morgan Grenfell decision and adopting the hybrid public and private approach to cases of unjust enrichment involving public bodies.
S J Bright, N Hopkins and N Macklam, 'Owning Part but Losing All: Using Human Rights to Protect Home Ownership' in N Hopkins (ed), Modern Studies in Property Law (Hart 2013) [...]
“Shared ownership” is used to provide an affordable route into home ownership. Yet there is a significant problem with the shared ownership scheme; as Richardson v Midland Heart  L & TR 31 shows, in the event of the home “owner” falling into rent arrears, he or she may lose not simply his or her home, but also the equity in the property. This chapter examines whether there is some way of using existing legal principles to avoid this unjust outcome by either; first, protecting the use value of the home by relying on Convention rights under the Human Rights Act 1998 to prevent termination of the “shared ownership” lease; or, secondly, recouping the investment value of the home by using human rights law to enable the home “owner” to retain the equity even if the home is lost.
L Green and B Leiter (eds), Oxford Studies in Philosophy of Law (Oxford University Press 2013)
G S Goodwin-Gill, Palestine, UN Membership and Popular Representation: International Legal Challenges and Strategic Options (Mutaz Qafisheh, Cambridge Scholars Publishing 2013)
A L Young, 'Parliamentary Sovereignty Re-defined' in R Rawlings, P Leyland and A L Young (eds), Sovereignty and the Law: Domestic European and International Perspectives (Oxford University Press 2013) [...]
This chapter investigates whether Parliament should be able to bind its successors as to the manner and form in which it enacts legislation. First, it evaluates the argument of Jeffrey Goldsworthy that this should be so, provided that these restrictions do not restrict the substantive law-making powers of Parliament. It argues that Goldsworthy’s theory may be difficult to implement in practice, and that his aim of empowering Parliament to enact long-standing commitments could be achieved more clearly without creating practical difficulties, or requiring a change in the conception of sovereignty. Second, it provides a normative justification against empowering Parliament to bind its successors. Goldsworthy’s theory can be understood as an argument in favour of maximising the sovereignty of Parliament, where sovereignty is understood as unlimited law-making power. The chapter adopts a different focus, looking at the extent to which sovereignty entails the ability to determine the sphere of one’s own competences. It argues that, when understood in this light, it is more descriptively accurate and normatively justifiable to regard sovereignty as shared between Parliament and the courts. To empower Parliament to bind its successors is normatively undesirable as it could upset the delicate balance of powers in the UK constitution, where acceptance by Parliament and the courts is required to enable a change in the rules regarding the definition of Parliament and the manner in which legislation is enacted. This requirement facilitates legitimacy, ensuring that the long-standing commitments that Parliament wishes to preserve reflect the long-standing commitments shared by the people and the courts.
J Pila, 'Patent Eligibility and Scope Revisited in the Light of Schütz v. Werit, European Law and Copyright Jurisprudence' in R.C. Dreyfuss & J.C. Ginsburg (eds), Intellectual Property at the Edge: The Contested Contours of IP (Cambridge University Press 2013)
S Gardner, 'Persistent Rights Appraised' in N Hopkins (ed), Modern Studies in Property Law, Vol 7 (Hart Publishing 2013) (forthcoming)
B Bradford, J Jackson and M Hough, 'Police futures and legitimacy: Redefining ‘good policing’' in J Brown (ed), The Future of Policing (Routledge 2013) (forthcoming)
B Bradford, J Jackson and M Hough, 'Police legitimacy in action: lessons for theory and practice' in M Reisig and R Kane (eds), Oxford handbook of police and policing (Oxford University Press 2013) (forthcoming)
J. Ryberg and J Roberts (eds), Popular Punishment: The Normative Significance of Public Opinion for Penal Theory (Oxford University Press 2013)
A Ashworth, Postitive Obligations in Criminal Law (Hart Publishing 2013) [...]
A series of essays on issues of principle in criminal law, with two new essays -- one on criminalizing omissions, and the other on human rights and positive obligations to create particular offences.
KF Aas and M Bosworth, 'Preface' in KF Aas and M Bosworth (eds), The Borders of Punishment: Citizenship, Crime Control and Social Exclusion (Oxford University Press 2013) (forthcoming)
A Ashworth, L.H. Zedner and P.R. Tomlin (eds), Prevention and the Limits of the Criminal Law (Oxford University Press 2013) [...]
An edited volume (with editors' introduction) on the insections between the criminal law and preventive justice, presenting arguments from leading international scholars.
A Ashworth, L Zedner and P Tomlin (eds), Prevention and the Limits of the Criminal Law (Oxford University Press 2013) [...]
Edited volume of essays by leading criminal lawyers, political theorists and philosophers on criminalization for the purposes of preventing harmful wrongdoing.
A Ashworth and J.C.N. Horder, Principles of Criminal Law (7th edn, Oxford University Press 2013) [...]
An updated version of my text on criminal law, co-authored for the first time.
M Bosworth and E Kaufman, 'Prison and National Identity: Citizenship, Punishment and the Sovereign State.' in D Scott (ed), Why Prison? (Cambridge University Press 2013) (forthcoming)
J Pila, 'Professional and Academic Employee Inventions: Looking Beyond the UK Paradigm' in M Pittard, A Monitti and J Duns (eds), Business Innovation: A Legal Balancing Act – Perspectives from Intellectual Property, Labour and Employment, Competition and Corporate Laws (Edward Elgar 2013)
D Kimel, 'Promise, Contract, Personal Autonomy, and the Freedom to Change One's Mind ' in ( 2013)
R Burrell and E Hudson, 'Property Concepts in European Law: The Case for Abandonment' in H Howe and J Griffiths (eds), Concepts of Property in Intellectual Property Law (Cambridge University Press 2013)
TR Tyler, J Jackson and B Bradford, 'Psychology of procedural justice and cooperation' in Gerben Bruinsma and David Weisburd (eds), Encyclopedia of criminology and criminal justice (Springer 2013) (forthcoming)
N Ghanea and Farrah Ahmed, 'Religion and Human Rights: Conflicts and Connections' in Paul Hedges (ed), Controversies in Contemporary Religions, Volume 2: Public and Ethical Controversies (Praeger Publishers 2013)
Paul Weller, Kingsley Purdam, N Ghanea and Sariya Contractor, Religion or Belief, Discrimination and Equality: Britain in Global Contexts (Continuum, London and New York 2013) (forthcoming) [...]
This book will present and analyse key results of the Religion and Society programme (Arts and Humanities Research Council/Economic and Social Research Council) research project “Religion and Belief, Discrimination and Equality: Theory, Policy and Practice, 2000-2010” research project. Reflecting on a decade of change, the book will compare these results with those of a 1999-2001 Home Office commissioned research on “Religious Discrimination in England and Wales”. These findings will include data from a national questionnaire survey; the reported experiences of individuals interviewed during the project’s fieldwork; and the perspectives of those who understand themselves not be to be of any religion and who took part in project focus groups. The book will set these findings within the context of a broader consideration of the impact of legal and policy developments on religion and human rights in which, over the last decade, the category of religious discrimination has become more widely accepted, while modified by reference to belief, and also in relation to a shifting policy focus around shared values and social cohesion. The proposed book will therefore be a groundbreaking, benchmark, seminal and interdisciplinary contribution to both public and academic debate about these issues.
Relocation disputes arise between separated parents when one of them proposes to move to a different geographic location with their child and the other parent objects to the plan. Whether the proposed move is within the United Kingdom or international, the consequence of either allowing or refusing a relocation application is usually of the greatest importance to the parents and children involved. Relocation: A Practical Guide offers practitioners and parents a comprehensive handbook on the law and practice which is needed to successfully handle any relocation dispute, whether it ends up in court or not. Written in an accessible style by a team of experienced specialists, Relocation: A Practical Guide explains the entire process of dealing with a relocation case. After a detailed discussion of both international and internal relocation law (including case examples and key summaries), the book moves step by step through the entire process of a case, from first discussions to final hearings and appeals. Essential relocation cases and relevant Practice Directions are also contained in the appendices, making this an indispensable guide for anyone working in this complex and fast-changing area of law and practice.
J Prassl and M Freedland, 'Resolving Ownership Invention Disputes: Limitations of the Contract of Employment' in M Pittard (ed), Business Innovation – A Legal Balancing Act (Elgar 2013)
D Sarooshi, Responsibility and Remedies for the Unlawful Acts of International Organizations (D Sarooshi, Martinus Nijhoff, Hague Academy of International Law Imprint 2013) (forthcoming)
D Sarooshi, 'Responsibility, Immunities, and Remedies for the Acts of International Organizations' in D. Sarooshi (ed), Responsibility, Immunities, and Remedies for the Acts of International Organizations (Martinus Nijhoff, Hague Academy of International Law Imprint 2013) (forthcoming)
J Goudkamp, 'Rethinking Contributory Negligence' in Erika Chamberlain, Jason Neyers and Stephen Pitel (eds), Challenging Orthodoxy in Tort Law (Hart Publishing 2013)
S Douglas-Scott, 'Rethinking Justice for the EU' in Maduro, Tuori , Walker (eds), Rethinking EU law (Cambridge University Press 2013)
S Wallerstein, 'Safety Interviews, Adverse Inferences and the Relationship Between Terrorism and \'Ordinary\' Criminal Law' in Aniceto Masferrer & Crive Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013) (forthcoming) [...]
‘Safety’, or ‘urgent’, interview is one where the suspect is interviewed for information that might help the police protect life and prevent serious damage to property. A suspect’s right to legal advice and not to be held incommunicado could be delayed by a senior officer to enable a ‘safety interview’ to take place in order to secure public safety in situations of immediate urgency. English law permits the conduct of such interviews under strict conditions, both in investigations concerned with ‘ordinary’ criminal offences and those related to terrorism. In practice, however, it is mainly used in the context of terrorism. This paper highlights the legal arrangements and the two difficulties that are arise from possible use of the content of these interviews as evidence in a subsequent trial. The first is that the curtailment of immediate legal advice may affect the right to fair trial. The second concern deals more specifically with the possibility to draw adverse inference from silence during the interview, especially where no legal advice was given. It argues that the possibility of drawing adverse inferences from either silence or admissions made during such interviews should be rejected both as a matter of public policy, since the drawing of adverse inferences seem to be counter-productive to the aims of such interviews, and in terms of its opportunistic nature, since such interviews take advantage of the vulnerable and legally-ignorant suspect. Finally it examines the relationship between counter-terrorism and ordinary criminal law in this area and the effect that the use of such measures in the context of counter-terrorism has on other criminal investigations.
A Ashworth and J. V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (Oxford University Press 2013) [...]
An edited book of essays on the English sentencing guidelines, reflecting critically on their merits both intrinsically and as compared with guidelines in other jurisdictions.
P Pichonnaz and L Gullifer, set-off in arbitration and commercial transactions (Oxford University Press 2013) (forthcoming)
L Green, 'Sex-Neutral Marriage' in J Feinberg, J Coleman, and C Kutz (eds), Philosophy of Law (Cengage Learning 2013) (forthcoming)
E J F Simpson, Sham Transactions (Miranda Stewart and Edwin Simpson, OUP 2013) (forthcoming)
M R Macnair, 'Sham: early uses and related and unrelated doctrines.' in Edwin Simpson and Miranda Stewart (eds), Sham Transactions (OUP 2013) (forthcoming) [...]
‘Sham’ is a late 17th century slang expression which passed into legal usage in the 1690s, first becoming a term of art in the contexts of ‘sham pleas’, and a bit later in that of ‘sham bidders’ at auction. Beyond these contexts it is not apparent that it had become a term of art before the 1850s, though there is some evidence of restrictive interpretation at that period and down to 1875. The related doctrines, which were very extensive and hence can be discussed only very briefly, are the late medieval doctrine of ‘colour’ in pleading, and its offshoot, the description of actions and transactions some of which might have been called ‘shams’ as ‘merely colourable’; ‘fraudulent conveyances’ of goods under Statute 3 Hen. VII c. 4 (1487), and of land under the Elizabethan statutes 13 Eliz. I c. 5 (1571) and 27 Eliz. I c. 4 (1585), ‘fraud apparent’ as an expression for avoidance schemes in revenue and regulatory contexts, and ‘fraud on the law' (fraus legis) [e.g. ‘fraud on the bankrupt laws’] . An example of an unrelated doctrine which, however, also produces the result that transactions are not what they seem to be, is the old property law dogma that a licence to occupy land (not consistent with the licensor remaining in occupation) is ipso facto a lease. This dogma was established in the late 15th century, apparently on numerus clausus grounds, and continuously accepted until the early 20th. Its entanglement with ‘sham’ in Street v Mountford and AG Securities v Vaughan appears to be the result of counsel and judges in those cases not appreciating the age or the scope of the doctrine on the basis of the very summary use in Glenwood Lumber v Phillips.
A L Young (ed), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford University Press 2013)
A. Ashworth and J Roberts (eds), Structured Sentencing in England and Wales: From Guidance to Guidelines (Oxford University Press 2013)
S J Bright, Jeremias Prassl and Hannah Glover, 'Tenancy Agreements' in E Simpson and M Stewart (eds), Sham Transactions (Oxford 2013)
S Bright, H Glover and J Prassl, 'Tenancy Agreements' in E Simpson and M Stewart (eds), Sham Transactions (OUP 2013)
M Chen-Wishart and U Magnus, 'Termination, Price Reduction and Damages' in S Vogenaur, G Dannemann (eds), The Common European Sales Law and its Interaction with English and German Law (Oxford University Press 2013) (forthcoming)
A C L Davies, 'The 'Constitutionalisation' of Labour Law: Possibilities and Problems' in KS Ziegler and PM Huber (eds), Current Problems in the Protection of Human Rights: Perspectives from Germany and the UK (Hart 2013)
R M Bagshaw, 'The Animals Act 1971' in TT Arvind and Jenny Steele (eds), Tort Law and the Legislature (Hart Publishing 2013) [...]
Account of the process that led to the passing of the Animals Act 1971 and its subsequent interpretation.
F Pirie, The Anthropology of Law. ( Oxford University Press 2013) (forthcoming)
L Green, The Authority of the State (Chinese Edition) (China University of Political Science and Law Press 2013) [...]
Abstract: This is a Chinese translation, by Singgui Mao, of the corrected 1990 edition of The Authority of the State (Oxford University Press).
K Aas and M Bosworth (eds), The Borders of Punishment: Citizenship, Crime Control, and Social Exclusion (Oxford University Press 2013) (forthcoming)
G Dannemann and S Vogenauer (eds), The Common European Sales Law in Context: Interactions with English and German Law (Oxford University Press 2013) [...]
lxvii + 789 pp. European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (2009) to a European Commission proposal for an optional Common European Sales Law (2011) which is to facilitate cross-border marketing. This book investigates for the first time how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters, co-authored by British and German scholars, examine such interface issues for eg pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.
D Leczykiewicz, 'The Constitutional Dimension of Private Law Liability Rules in the EU' in D Leczykiewicz and S Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing Oxford 2013)
A Tzanakopoulos, 'The Countermeasure of Disobedience: Implementing the Responsibility of International Organisations' in M Ragazzi (ed), The Responsibility of International Organisations: Essays in Memory of Sir Ian Brownlie (Martinus Nijhoff Publishers 2013) [...]
This short study in memory of Sir Ian Brownlie QC discusses the countermeasure of disobedience as a means of implementation of the responsibility of international organisations. Focusing on Security Council sanctions under Chapter VII of the Charter, it argues that actions of the Security Council may be illegal and thus engage the responsibility of the UN. It then argues that disobedience of such sanctions on the part of States may qualify as a countermeasure against the Organisation. This legal characterisation of disobedience has significant advantages over the 'invalidity theory' in that it subjects decentralised reaction to a specific legal framework.
S Vogenauer, 'The DCFR and the CESL as Models for Law Reform' in G Dannemann and S Vogenauer (eds), The Common European Sales Law in Context: Interactions with English and German Law (Oxford University Press 2013) [...]
pp 732-52. This Chapter will assess the potential of the DCFR and the proposed CESL to serve as models for law reform. It will first set out the various ways in which sets of legal rules and principles in general and, more specifically, contract law regimes can play such a role (II.). Thereafter it will ascertain the suitability of the DCFR and the CESL to function as models (III.), and finally it will attempt to predict how this function might have a bearing in the particular context of English law and German law (IV.).
AV Lowe and A Tzanakopoulos, 'The Development of the Law of the Sea by the International Court of Justice' in J Sloan and CJ Tams (eds), The Development of International Law by the International Court of Justice (Oxford University Press 2013) [...]
This paper surveys and evaluates the contribution of the International Court of Justice to the development of the (public international) law of the sea. It does so by comparing the Court's contribution as against other 'competing' agents of development of international law, ie other adjudicators, codifiers, regulators, and lawmakers. It concludes that the impact of the Court on the law of the sea has not been great, and is now diminishing. However, it argues that the more important contribution of the Court lies less in its influence on the development of the law, and more in its authority in consolidating it.
S Douglas-Scott, 'The European Court of Justice and the ECHR after Lisbon' in Weatherill, de Vries, Bernitz (eds), The Protection of Fundamental Rights in the EU after Lisbon (Hart Publishing 2013)
A Ohly and J Pila (eds), The Europeanisation of Intellectual Property Law: Towards a European Legal Methodology (Oxford University Press 2013)
This Chapter analyses one harmonisation project within European intellectual property law, namely, the recent development of trade mark law within the European Union (EU). It highlights several characteristics of trade mark harmonisation within the European Union. First, harmonisation of national trade mark laws in the Union has been “tight”. In this regard, for reasons that make sense in the European political and legal theatre, it is different from the international model of so-called “minimum rights” harmonisation that drove convergence of trade mark norms for the preceding century. Second, the Trade Mark Directive (with the aid of the Court of Justice and national courts) has effected almost total harmonisation of substantive trade mark law, belying the claims of limited harmonisation that are found in the recital to that Directive. Third, the Court of Justice has exhibited a tendency to limit any room for member state manoeuvre, for example, finding that even optional provisions of the Directive must be given a single European meaning. The Court has paid little attention to concerns of subsidiarity. Finally, additional pressure to find single European solutions results from the existence of a Trade Mark Regulation that creates a counterpart unitary regional right (the Community Trade Mark, or CTM) and attendant EU institutions to administer and enforce that right. This parallel EU-level regime tends to reinforce the idea that trade mark law has been wholly Europeanised, and exerts pressure on the content of Directive-driven national law because the demands of vertical coherence have trumped the potential benefits of regulatory competition between national and regional regimes. In short, there has over the past twenty years been an extensive and deep Europeanisation of trade mark law. But this in turn raises ongoing questions about how best to develop harmonised European principles, because harmonisation is a dynamic lawmaking process and not a static legislative instrument. In this Chapter, I consider how the process of harmonisation has affected the development of optimal principles of trade mark law, an analysis that is necessarily informed by substantive preferences. It is only by measuring harmonisation by reference to some form of substantive metric that a full assessment of the harmonisation process can be made. I suggest that it important to recognise the important role of national courts in the development of EU trade mark law (in part because of the nature of the field of law), and that paying attention to national legal traditions would assist the Court of Justice in improving the quality of European trade mark law.
A Braun, 'The Framing of a European Law of Trusts' in L. Smith (ed), The Worlds of the Trust (CUP, Cambridge 2013)
TAO Endicott, 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (eds), Reading The Concept of Law (Oxford University Press 2013) (forthcoming) [...]
Chapter 2 of The Concept of Law is an accidental essay on the generality of law. Hart points out ways in which generality is a necessary feature of law. I point out ways in which his account can be made more complete, and I argue that law necessarily involves particularity as well as generality. Then I ask what ‘necessary’ means in all these claims. It is a popular idea that legal theorists should not try to identify necessary features of law; I argue that the popular idea is a mistake. I conclude by arguing that Hart should have been more willing to pass value judgments about law: the elucidation of the necessary features of law depends on an elucidation of the value of law.
M Hough, J Jackson and B Bradford, 'The governance of criminal justice, legitimacy and trust' in Sophie Body-Gendrot, Mike Hough, Klara Kerezsi, Rene Levy and Sonja Snacken (eds), The Routledge handbook of European criminology (Routledge 2013)
A L Young, 'The Human Rights Act 1998, Horizontality and the Constitutionalisation of Private Law' in Katja Ziegler and Peter Huber (eds), Current Problems in the Protection of Human Rights (Hart Publishing 2013)
Simon Whittaker, 'The Internal Relationships of EU Consumer Contract Laws: Unfair Contract Terms, Unfair Commercial Practices and the CESL' in L. Moccia (ed), The Making of European Private Law: Why, How, What, Who (Sellier 2013)
M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press 2013)
D Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing Oxford 2013)
TAO Endicott, 'The Irony of Law' in John Keown and Robert P George (eds), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press 2013) [...]
John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. I argue that the central case of a concept essential to social theory may excel in some specific good or in some specific ill, or in neither, or in both. As for law, the central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. It secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. I conclude by pointing out a resulting tension over a legal system’s regulation of the validity of its own legal norms.
M Bridge, L Gullifer, S Worthington and G McMeel, The Law of Personal Property (Sweet & Maxwell 2013)
S J Bright and L Whitehouse, 'The Opportunities and Challenges of Empirical Work: Housing Possession in Theory and in Practice' in Bram Akkermans, Eveline Ramaekers and Ernst Marais (eds), Property Law Perspective II (Antwerp: Intersentia 2013) (forthcoming) [...]
This paper explains how empirical enquiry of the kind unburdened by the pursuit of a particular hypothesis or strict adherence to scientific methods, has much to offer in terms of developing our understanding of law and, in particular, the traditionally doctrinal field of property law, providing insights into the operation of law that cannot be learned from books alone. The argument is discussed in the context of an ongoing research project by the authors that investigates whether ‘non-financial’ considerations are taken into account during the process of housing possession, looking at both owner-occupied and rented housing. The project is a broad enquiry exploring the extent to which issues other than property rights and the ability to pay are considered when it comes to losing a home, that is, matters such as the welfare of children, health problems, community networks, attachment and so on. The study is not confined to the ultimate decision making stage, when the judge decides whether or not to order possession, but looks also at how non-financial factors inform decisions made earlier on, such as whether a mortgagee thinks that the time has come to issue possession proceedings. Although the study is of possession proceedings in England, and is based around the English legal system, the purpose of this paper is not to report on the research findings but to make a point of broader significance in relation to the role of empirical research within legal scholarship.
I Loader and A Dockley (eds), The Penal Landscape: The Howard League Guide to Criminal Justice in England and Wales (London: Routledge 2013)
D J Galligan, 'The People, the Constitution, and the Idea of Representation' in D. J. Galligan and E. Versteeg (eds), The Social and Political Foundations of Constitutions (Cambridge University Press 2013)
A Tzanakopoulos, 'The Permanent Court of International Justice and the “International Community”' in M Fitzmaurice, CJ Tams (eds), Legacies of the Permanent Court of International Justice (Martinus Nijhoff Publishers 2013) [...]
The purpose of this brief study is to gauge what the Permanent Court of Internation-al Justice might have had to say about the nebulous concept of the ‘international community’, as the Court administering the law of that community, but also developing it, thereby contributing to the stabilization and further integration of that community. This is done by ‘reverse-engineering’ the jurisprudence of the PCIJ, seeking to canvass how the Court understood the concept of the 'international community' and how it would have wanted it to evolve. The study surveys the Court’s case law for what are commonly accepted as the ‘hallmarks’ of an (international) community, or at least those commonly associated with the idea: the make-up of the community; the concept of obligations and action in the ‘general’ interest; and the existence of institutions providing protection of the community interest.
J J W Herring, 'The Power of Naming: Surnames, Children and Spouses' in M. Freeman and F. Smith (eds), Law and Language (OUP 2013) [...]
This chapter critques the law and practices surrouding the use of surnames in marriage and for children.
J J W Herring, 'The right to protection from domestic abuse' in I. Kucuardi (ed), Violence and Human Rights (Maltepe University 2013)
L Lazarus, 'The Right to Security' in Rowan Cruft, Matthew Liao and Massimo Renzo (eds), The Philosophical Foundations of Human Rights (Oxford University Press 2013) (forthcoming) [...]
This paper surveys and critiques the philosophical theories that engage with and support a moral right to security.
G Lamond, 'The Rule of Recognition and the Foundations of a Legal System' in Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013) (forthcoming)
A Ashworth, 'The Struggle for Supremacy in Sentencing' in A. Ashworth and J.V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (Oxford University Press 2013) [...]
An analysis of the politics of sentencing in the first decade of this century, assessing the positions of the judiciary, the government and the sentencing guideline bodies and their respective influences on sentencing policy.
P P Craig, 'The United Kingdom, the European Union and Sovereignty' in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law, Domestic, European and International Perspectives ( 2013)
R O'Keefe, CJ Tams and A Tzanakopoulos (eds), The United Nations Convention on Jurisdictional Immunities of States and their Property: A Commentary (Oxford University Press 2013) [...]
Article-by-article commentary of the 2004 UN Convention on Jurisdictional Immunities of States and their Property.
D J Galligan and M. Versteeg, 'Theoretical Perspectives on the Social and Political Foundations of Constitutions' in D. J. Galligan and M. Versteeg (eds), The Social and Political Foundations of Constitutions (Cambridge University Press 2013) (forthcoming) [...]
The essay examines several theoretical approaches to the social and political understanding of constitutions
A Mullis and D P Nolan, 'Tort' in All England Law Reports Annual Review 2012 (Butterworths LexisNexis 2013)
J Goudkamp, Tort Law Defences (Hart Publishing 2013)
D P Nolan and J Davies, 'Torts and Equitable Wrongs' in A Burrows (ed), English Private Law (3rd edn) (OUP 2013)
The rules on assignment and transfer of rights and obligations are currently outside the scope of the proposed CESL. In contrast, the original DCFR from 2009 includes a chapter on these issues. Questions outside the scope of CESL are left to be solved by the ‘domestic’ provisions of the national law that is applicable under the relevant conflict-of-laws provisions. This paper is part of the larger CFR Context research project and explores interactions of the system of assignment of receivables under a future European contract instrument with both English and German national laws. This concerns above all other areas of law, for example the rules that apply upon the insolvency of one of the parties (in particular that of the assignor) and the rules on public policy. Key differences between the jurisdictions include, inter alia, the proprietary aspects of the assignor’s insolvency where the assignor is paid by the debtor, the priority rule for competing assignments, and the effects of a non-assignment clause. Here, the choice of the optional instrument rather than either English or German law will lead to diverging results and may therefore prejudice any of the parties involved.
This paper discusses transparency in the working method of the United Nations Security Council. It describes the institutional design of the organ and the evolution of Security Council powers, and seeks to identify whether there is an obligation for the Council to act in a transparent manner in the exercise of its powers. The paper argues that transparency is an 'ancillary' obligation incumbent on the Council, to allow for decentralised control over the exercise of its powers by Member States of the UN. Transparency having no independent normative charge, we do not how much of it is good -- this is determined by a pattern of protest and reaction between the Security Council and the Member States called upon to implement its decisions.
G Loutzenhiser, 'Trompe-l’oeil: The sham doctrine in the Canadian tax courts' in Miranda Stewart and Edwin Simpson (eds), Sham Transactions (OUP 2013) (forthcoming)
I Loader and R Sparks, 'Unfinished Business: Legitimacy, Crime Control and Democratic Politics' in J Tankebe and A Liebling (eds), Legitimacy and Criminal Justice: An International Exploration (Oxford Oxford University Press 2013)
J Vidmar, 'Unilateral Declarations of Independence in International Law' in French (ed), Statehood, Self-Determination and Minorities: Reconciling Tradition and Modernity in International Law (Cambridge University Press 2013)
This paper surveys and analyses the case law of United Kingdom courts on questions of personality and immunity of international organizations, as well as on the question of liability of members for the acts of the organization, focusing in particular on the various cases surrounding the collapse of the International Tin Council in the 1980s.
J J W Herring, 'Victims as Defendants: When victims participate in crimes against themselves.' in A Reed and M Bohlander (eds), Participation in crime (Ashgate 2013) [...]
A chapter analysing the Tyrell principle and generally cases where the victim has contributed to a crime against her/himself
J Pila, 'What Patent Law for the European Union? Lessons from the Patent Jurisprudence of the CJEU / Quel Droit Des Brevets Pour L\'Union Europeenne? Les Enseignements De La Jurisprudence De La CJUE' in C. Geiger (ed), What Patent Law for the European Union? (Litec 2013)
Simon Whittaker, 'Who determines what civil courts decide? Private Rights, Public policy and EU law' in D.Leczykiewicz and S. Weatherill (eds), The Involvement of EU Law in Private Relationships (Richard Hart 2013)
I Loader, 'Why do the Police Matter? Beyond the Myth of Crime Fighting' in J Brown (ed), The Future of Policing (London: Routledge 2013)
R J Smith, 'Williams and Glyn\'s Bank v Boland' in Gravells (ed), Landmark cases in Land Law (Hart 2013) (forthcoming)
N E Stavropoulos, 'Words and Obligations' in Andrea Dolcetti, Luis Duarte d'Almeida, James Edwards (eds), Reading the Concept of Law (Hart Publishing 2013) (forthcoming)
S Vogenauer, 'Zivilprozessuale Folgen subjektiver und objektiver Interpretationslehren: Das Reichsgericht und die Revisibilität der Auslegung von Willenserklärungen' in A Kiehnle, B Mertens and G Schiemann (eds), Festschrift für Jan Schröder zum 70. Geburtstag (Verlag Mohr Siebeck 2013) [...]
pp 221-45. The article traces the case law of the German Imperial Court in the late 19th and the early 20th centuries with regard to one of the procedural issues regarding the interpretation of contracts under German law, i.e. whether this is a question of law (which can be assessed by the court of last resort) or a question of fact (on which the assessment of the lower courts is conclusive). The procedural issue is linked to the meta-theories of contractual interpretation prevailing at a given time: as long as a subjective approach was predominant, interpretation was regarded as determining the 'true' intention of the parties, and thus as a question of fact; when the objective approach gained prominence, interpretation was regarded as attributing the 'correct' meaning to the words, so it was increasingly seen as a question of law.
A Johnston, '‘Spillovers’ from EU Law into National Law: (Un)intended Consequences for Private Law Relationships' in Dorota £eczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing 2013)