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Recent (2014) and Forthcoming Journal Articles

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2014

J J W Herring, 'Alarm bells' (2014) New Law Journal 9 [...]

Discussion of Re W (A Child) [2014] EWCA 772 and litigants in person in family law cases


G Lamond, 'Analogical Reasoning in the Common Law' (2014) 34 Oxford Journal of Legal Studies 567 [...]

DOI: 10.1093/ojls/gqu014

Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This paper argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies, and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given.


ISBN: 1464-3820

TAO Endicott, 'Arbitrariness' (2014) Canadian Journal of Law and Jurisprudence [...]

In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between the two. In the decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.


ISBN: 0841-8209

I Loader and R Sparks, 'Beyond Mass Incarceration?' (2014) 23 The Good Society 114

A Ezrachi and Maria Ioannidou, 'Buyer power in european union merger control ' (2014) European Competition Journal p69 [...]

The examination of buyer power in merger control may relate to one of two forms of power. It may relate to the merging parties’ ability to exercise buyer power to the detriment of consumers. Alternatively, it may relate to the presence of countervailing buyer power that can relax some of the effects generated by an upstream transaction. This paper examines the economic and policy implications of buyer power and reviews the European Commission’s decisions in cases in which buyer power considerations were present. The analysis reviews the weight attributed to buyer power considerations in finding a significant impediment to effective competition or, conversely, the role of countervailing buyer power as a mitigating factor in the analysis of upstream mergers. The discussion highlights a certain gap between the limited emphasis given to buyer power in merger analysis, in contrast to the extensive and heated discussion it triggers outside legal analysis – at policy, social and economic levels.


WG Ringe, 'Changing Law and Ownership Patterns in Germany: Corporate Governance and the Erosion of Deutschland AG' (2014) Oxford Legal Studies Research Paper No. XX/2014 [...]

German corporate governance and corporate law are currently undergoing a major change. The old “Deutschland AG”, a nationwide network of firms, banks, and directors, is eroding, ownership is diffusing and the shareholder body is becoming more international than ever. This paper presents new data to support this development and explores the consequences in governance and in law that have been taken or that need to be drawn from this finding. Consistent with market-based theoretical accounts on corporate law, it finds that the changes currently underway are mainly a response to global market pressure: German banks divested their equity stakes mainly as a consequence of increased international competition. The paper extends the model of market-led change by two important observations: first, market pressure is not the only driver of legal change, but the law itself in this case contributed to facilitating competition. Notably, a taxation law reform enabled and accelerated the competition process already underway. Legal rules and market competition may thus be understood as not operating in isolation, but as forces that can be working in dialog. Secondly, the paper highlights the importance of ownership structure as an important intermediate condition in the logical order between market competition and legal change.


E Fisher, 'Chemicials as Regulatory Objects' (2014) 23 Review of European, Comparative & International Environmental Law 163

K Laird, 'Confronting religion: veiled witnesses, the right to a fair trial and the Supreme Court of Canada’s judgment in R v N.S' (2014) 77(1) MLR 123

P P Craig, 'Constitutionalizing Constitutional Law: HS2' (2014) Public Law 373

M Köpcke Tinturé, 'Criminalizing psychological forms and causes of harm' (2014) (forthcoming)

J Payne, 'Debt Restructuring in English Law: Lessons from the US and the need for reform' (2014) LQR 282 [...]

This paper assesses the debt restructuring mechanisms available to companies in English law, compares these mechanisms with the Chapter 11 procedure in the US, and makes some suggestions for reform of the English system in this context. Rehabilitating a company in financial difficulties will almost always be preferable to liquidation for companies and their creditors, at least where the company is merely financially distressed, i.e. it is cash flow insolvent but nevertheless economically viable, so that there is a business worth saving. Five debt restructuring mechanisms are available to companies in English law: workouts, Company Voluntary Arrangements (CVAs), schemes of arrangement, administration and, lastly, a recent innovation of practitioners has been to twin a scheme of arrangement with administration. None of these devices are ideal as debt restructuring tools, as explained in this paper. Lessons can be learned from the US Chapter 11 process, although a simple transplantation of this procedure into English law is not recommended, as there are also disadvantages to the US procedure. Instead it is suggested that the English scheme of arrangement be reformed to allow a cramdown of whole classes to take place, to attach a moratorium to this procedure and to enhance the valuation process where restructuring takes place. Making these changes would provide English law with a stronger and more effective debt restructuring procedure.


ISBN: 0023-933X

J Freedman, 'Designing a General Anti-Abuse Rule: Striking a Balance ' (2014) IBFD Asia- Pacific Tax Bulletin 165

J Dickson, 'Estado del arte de la filosofía del derecho' (2014) 36 Doxa: Cuadernos de Filosofía del Derecho (forthcoming)

C Hoyle and N Palmer, 'Family justice centres: A model for empowerment?' (2014) 20 International Review of Victimology 1 [...]

The London Borough of Croydon, in the south of England, established, in December 2005, a Family Justice Centre (FJC) to respond in a flexible way to meet the varied needs of those abused in intimate relationships. The FJC brings together some 33 agencies under one roof. This article draws on a small, grounded pilot study of the Croydon FJC – the first study of a FJC in the UK  to consider if the co-location and cooperation of services to victims of domestic abuse has the potential to empower victims to make informed choices about their futures.


ISBN: 0269-7580

J M Eekelaar, 'Family Justice on Trial - re A' (2014) 44 Family Law [...]

The article analyses the decision of the Court of Appeal which describes the process of a contact case as one of system failure, and suggests an alternative reading of the reported facts.


V Mayer-Schönberger and Lena Wong, 'Fan or Foe? Fan Fiction, Authorship, and the Fight for Control' (2014) 54 IDEA: The IP Law Review 1

I Loader, 'In Search of Civic Policing: Recasting the 'Peelian' Principles' (2014) 8 Criminal Law and Philosophy [...]

For over a century the so-called ‘Peelian’ principles have been central to the self-understanding of Anglo-American policing. But these principles are the product of modern state-building and speak only partially to the challenges of urban policing today. In fact, they stand in the way of clear thinking and better practice. In this paper, I argue that these principles ought to be radically recast and put to work in new ways. The argument proceeds as follows. First, I recover and outline the current ‘Peelian’ principles and argue that they lack the specificity, sufficiency and status required in order to do real work in the governance of policing. Secondly, I make the case for principles both as a regulative ideal guiding our aspirations for what policing can become and as a means of regulating police work in the here-and-now. I then develop a revised set of principles and indicate, in conclusion, how they can guide the formation of trust-producing and democracy-enhancing practices of civic policing.


M Bosworth and G Slade, 'In Search of Recognition: Gender and Staff-Detainee Relations in a British Immigration Removal Centre' (2014) 16 Punishment & Society (forthcoming)

J Rowbottom, 'In the Shadow of Big Media: Freedom of Expression, Participation and the Production of Knowledge Online ' [2014] Public Law (forthcoming)

J J W Herring and P-L Chau, 'Interconnected, inhabited and insecure: why bodies should not be property' (2014) 40 Journal of Medical Ethics 39

J Vidmar, 'International Community and Abuses of Sovereign Powers' (2014) 35 Liverpool Law Review 193

A Ezrachi and Maria Ioannidou, 'Internationalization of competition law and policy: domestic perspective ' (2014) Journal of International and Comparative Law [...]

Recent decades have witnessed a marked internationalization of competition law enforcement and dialogue. Multinational, regional and bilateral efforts, have contributed to the approximation of competition law regimes worldwide and to collaborative enforcement. However, notwithstanding these valuable developments, domestic social, political, industrial and market considerations still affect the scope and application of national competition laws. This paper explores the meeting points between the domestic perspective of competition law enforcement and growing international collaboration and enforcement efforts. In doing so, it highlights the intrinsic national nature which is embedded in the DNA of competition law and the natural limits of international convergence and collaboration in this area.


TAO Endicott, 'Interpretation and Indeterminacy' (2014) Jerusalem Review of Legal Studies 1 [...]

DOI: 10.1093/jrls/jlu005

Legal interpretation is a reasoning process. It is needed whenever reasoning is needed in order to decide what a legal instrument means. I defend this approach through a critical discussion of the view that Andrei Marmor defends, in Philosophy of Law (2011), that legal interpretation is needed when the law is indeterminate. I also offer reasons for disagreeing with Marmor’s argument that H.P.Grice’s ‘cooperative principle’ does not generally apply in legal discourse. The content of the law made by legislation includes what the legislation asserts, and also those implicatures that courts have conclusive reason to act upon, in light of the cooperative principle.


R Ekins, 'Interpretive Choice in Statutory Interpretation' (2014) 59 American Journal of Jurisprudence (forthcoming)

D Sarooshi, 'Investment treaty arbitration and the World Trade Organization: what role for systemic values in the resolution of international disputes?' (2014) 49(3) Texas International Law Journal 445

J Vidmar, 'Judicial Interpretations of Democracy in Human Rights Treaties' (2014) Cambridge Journal of International and Comparative Law 532

K. Steininger and others, 'Justice and cost effectiveness of consumption-based versus production-based approaches in the case of unilateral climate policies' (2014) 24 Global Environmental Change 75 [...]

In recent years, climate policy under the United Nations system has been characterized by bottom-up, national approaches to climate mitigation. This raises concerns about the overall effectiveness of these mitigation policies, for example due to carbon leakage. In response to these concerns, authors have repeatedly suggested that policy makers consider a consumption-based climate policy approach. We analyze the potential merits of a switch to a consumption-based policy approach using the criteria of justice and economic efficiency. We argue that emissions must be understood as being contributed by both, consumers and producers, but that this fact does not by itself settle the question whether consumption or production ought to serve as the climate policy base. Rather, the perspective of justice necessitates an analysis of the distributive consequences of switching from a production- to a consumption-based policy. We find that both (global) cost-effectiveness and justice can be improved if the unilateral climate policies of industrialized countries are based on emissions from consumption. There are preconditions, however, the switch in the policy base must be accompanied by clean technology transfer, and if implemented by border carbon adjustments, import tax revenues need to be channeled to developing and emerging economies. We further show that in such a setting, export rebates are of minor importance for efficiency and justice.


G Lamond, 'Legal Sources, the Rule of Recognition, and Customary Law' (2014) 59 American Journal of Jurisprudence 25 [...]

DOI: 10.1093/ajj/auu005

A perennial puzzle about source-based law such as precedent is what makes sources legally binding. One of the most influential answers to this puzzle is provided by Hart’s rule of recognition. According to Hart, the sources of law are accepted as binding by the officials of a legal system, and this collective social practice of officials provides the foundations for a legal system. According to Hart, the rule of recognition differs fundamentally from other legal rules in three ways: (1) the grounds on which it is accepted; (2) the basis for its system-membership; and (3) its mode of existence. This paper argues that (1) is mistaken, and that (2) and (3) do not in fact make the rule of recognition fundamentally different to other legal rules in the way that Hart supposed. Instead, the rule of recognition is a form of customary law in foro whose existence is practice-dependent, but which is nonetheless legally binding and legally valid as other laws are. The foundations of a legal system do not lie in the acceptance of the ultimate sources of law, but in the acceptance of the system as a whole.


ISBN: 2049-6494

G Lamond, 'Legal Systems and the Rule of Recognition' (2014) Jerusalem Review of Legal Studies (forthcoming)

P Eleftheriadis, 'Legality and Reciprocity: A Discussion of Lon Fuller’s The Morality of Law' (2014) 9 Jerusalem Review of Legal Studies 1

J J W Herring, 'Life after death' (2014) New Law Journal 10 [...]

A discussion of posthumous parenting


M Köpcke Tinturé, 'Methodology in Marmor's "Philosophy of Law"' (2014) Jerusalem Review of Legal Studies (forthcoming)

I Goold and H Maslen, 'Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement' (2014) 77 Modern Law Review 60

A Tzanakopoulos, 'National Treatment and MFN in the (Invisible) EU Model BIT' (2014) 15 Journal of World Investment & Trade 484 [...]

DOI: 10.1163/22119000-01504007

This article discusses the potential provisions on national treatment and MFN to be included in a future EU Model BIT against the background of the leaked draft text of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) investment chapter. It concludes that the EU treaty practice seems to be closer to investment protection models influenced by NAFTA, such as those prevalent in the Canada and US Model BITs, and that a future EU Model BIT along these lines will depart significantly from the investment treaty practice of EU Member States.


ISBN: 1660-7112

C Hoyle and Leila Ullrich, 'New Court, New Justice? The Evolution of Justice for Victims at Domestic Courts and the International Criminal Court' (2014) Journal of International Criminal Justice [...]

The International Criminal Court (ICC) is the first international criminal justice institution that explicitly promises to deliver justice for victims by providing for the rights of victims to participation and reparation in criminal proceedings. More than a decade after its establishment, the time is right to consider how this new idea of justice for victims has developed at the ICC. While analysis of the ICC’s framework has benefited from international law and other academic disciplines, such as international relations and politics, there has been too little attention paid to international criminal justice by mainstream criminologists and victimologists. To fill this gap, this article will systematically reflect on the similarities and differences in the evolution of the idea of justice for victims at domestic criminal courts and the ICC from a criminological and victimological perspective. Overall, the comparison suggests that while the concept of justice for victims has been mainly understood in terms of the benefits and problems of incorporating victims’ rights into criminal law procedure in the domestic context, at the ICC, it has led to broader contestations and redefinitions of the very meaning of justice. These contestations on justice have to be understood in the institutional context of a still young and sui generis court that is unsure of the kind of justice it can and should deliver.


E Descheemaeker, 'New Directions in Unjustified Enrichment: Learning from South Africa?' (2014) 18 Edinburgh Law Review (forthcoming)

J M Eekelaar, 'Perceptions of Equality: the Road to Same-Sex Marriage in England' (2014) 28 International Journal of Law, Policy and the Family 1 [...]

DOI: 10.1093/lawfam/ebt013

The article examines the backgroubnd to the treatment of same-sex relationships in English law and the progression to the enactment of the Marriage (Same Sex Couples) Act 2013, analysing the positions advanced by participants in the debate.


J Pila, 'Pluralism, Principles and Proportionality in Intellectual Property' (2014) Oxford Journal of Legal Studies

B Bradford, 'Policing and social identity: procedural justice, inclusion and cooperation between police and public' (2014) 24 Policing and Society 22 [...]

DOI: 10.1080/10439463.2012.724068

Accounts of the social meaning of policing and of the relationship between police and citizen converge on the idea that police behaviour carries important identity-relevant information. Opinions of and ideas about the police are implicated in the formation of social identities that relate to the social groups it represents – nation, state and community. Procedural justice theory suggests that judgements about the fairness of the police will be the most important factor in such processes. Fairness promotes a sense of inclusion and value, while unfairness communicates denigration and exclusion. Furthermore, positive social identities in relation to the police should on this account promote cooperation with it. This article presents an empirical test of these ideas in the context of the British policing. Data from a survey of young Londoners are used to show that perceptions of police fairness are indeed associated with social identity, and in turn social identity can be linked to cooperation. Yet these relationships were much stronger among those with multiple national identities. Police behaviour appeared more identity relevant for people who felt that they were citizens of a non-UK country, but for those who identified only as British there was a weaker link between procedural fairness and social identity, and here legitimacy judgements were the main ‘drivers’ of cooperation. Theoretical and policy implications are discussed.


B Bradford, K Murphy and J Jackson, 'Policing, Procedural Justice and the (Re)production of Social Identity' (2014) 54 British Journal of Criminology 527 [...]

DOI: 10.1093/bjc/azu021

Encounters with the criminal justice system shape people’s perceptions of the legitimacy of legal authorities, and the dominant explanatory framework for this relationship revolves around the idea that procedurally just practice increases people’s positive connections to justice institutions. But there have been few assessments of the idea – central to procedural justice theory – that social identity acts as an important social-psychological bridge in this process. Our contribution in this paper is to examine the empirical links between procedural justice, social identity and legitimacy in the context of policing in Australia. A representative two-wave panel survey of Australians suggests that social identity does mediate the association between procedural justice and perceptions of legitimacy. It seems that when people feel fairly treated by police, their sense of identification with the superordinate group the police represent is enhanced, strengthening police legitimacy as a result. By contrast, unfair treatment signals to people that they do not belong, undermining both identification and police legitimacy.


P P Craig, 'Pringle and the Nature of Legal Reasoning ' (2014) Maastricht Journal of European and Comparative Law 205

K Laird, 'Rapist or rogue? Deception, Consent and the Sexual Offences Act 2003' (2014) Crim LR 491

J Prassl, 'Reforming Air Passenger Rights in Europe' (2014) 38 Air & Space Law (forthcoming)

J Gordon and WG Ringe, 'Resolution in the European Banking Union: A Transatlantic Perspective on What it Would Take' (2014) Columbia Law and Economics Working Paper No. 465 [...]

The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further, Member States’ disagreements appear to rule out a federalized deposit insurance scheme, commonly regarded as the necessary third pillar of a successful Banking Union. This paper argues for an organizational and capital structure substitute for these two shortcomings that can minimize the systemic distress costs of the failure of a large financial institution. We borrow from the approach the Federal Deposit Insurance Corporation (FDIC) has devised in the implementation of the “Orderly Liquidation Authority” under the Dodd Frank Act. The FDIC’s experience teaches us three important lessons: first, systemically important institutions need to have in their liability structure sufficient unsecured (or otherwise subordinated) term debt so that in the event of bank failure, the conversion of debt into equity will be sufficient to absorb asset losses without impairing deposits and other short term credit; second, the organizational structure of the financial institution needs to permit such a debt conversion without putting core financial constituents through a bankruptcy, and third, a federal funding mechanism deployable at the discretion of the resolution authority must be available to supply liquidity to a reorganizing bank. On these conditions, a viable and realistic Banking Union would be within reach—and the resolution of global financial institutions would be greatly facilitated, not least in a transatlantic perspective.


K van Zwieten, 'Restructuring law: recommendations from the European Commission' (2014) Law in Transition (forthcoming)

L Gullifer, 'Should clauses prohibiting assignment be overridden by statute?' (2014) Penn State Journal of Law and International Affairs (forthcoming) [...]

Many contracts for the supply of goods or services include a clause prohibiting assignment by the supplier of its rights under the contract. The existence of such clauses, both in particular contracts and more generally, can have a chilling effect on the use of receivables as collateral to obtain financing. Thus, in many jurisdictions, there is a legislative override for such clauses, so that they are not enforceable against third parties. There is an ongoing debate as to whether English law should follow suit and, if so, what form the override should take, which has now led to . This paper examines the arguments for and against an override in English law, informed by two small scale surveys undertaken by the author and others over the last four years.


J Vidmar, 'States, Governments, and Collective Recognition' (2014) Chinese (Taiwan) Yearbook of International Law and Affairs (forthcoming)

A Tzanakopoulos, 'Strengthening Security Council Accountability for Sanctions: The Role of International Responsibility' (2014) 19 Journal of Conflict and Security Law (forthcoming) [...]

DOI: 10.1093/jcsl/kru017

The UN Security Council wields immense power under Article 41 of the Charter, a power that it has not shied away from employing regularly over the past two and a half decades. As the use of the sanctioning power of the Security Council increased, so did the calls for holding the exercise of that power to account. This article argues that legal accountability, that is, international responsibility is the form of accountability best suited for controlling the sanctioning power of the Security Coun-cil. It demonstrates how the UN can be held responsible by the UN Membership for Security Council excesses in the exercise of its powers, and argues that the ancillary obligation of transparency operationalises decentralised control of the Council by the UN Member States. It concludes that decentralised legal accountability, though risky, is effective and has even induced the Security Council to establish or improve internal mechanisms enhancing accountability for sanctions.


ISBN: 1467-7954

L Zedner, 'Terrorizing Criminal Law' (2014) 8 Criminal Law and Philosophy 99

J J W Herring, C. Foster and M. Boyd, 'Testing the limits of the 'joint account' model of genetic information: a legal thought experiment ' (2014) Journal of Medical Ethics

S J Douglas, 'The Argument for Property Rights in Body Parts: Scarcity of Resources' (2014) 40 Journal of Medical Ethics 23

P Eleftheriadis, 'The Content of European Citizenship' (2014) 15 German Law Journal 777 [...]

Many European Union law scholars, commentators and politicians consider the creation of European citizenship by the Treaty of Maastricht an important landmark in the process towards “ever closer union.” By marking a special relationship with the Union itself, citizenship epitomizes the growing maturity of the Union as a political community and not merely an economic project of a single market. Citizenship introduces the first elements of a political, social, and emotional bond between the peoples of Europe and their new Union. Nonetheless, the content of European citizenship remains a puzzle. The rights it grants are very different to those promised by states. When looked at in detail, it fails to match many of the most central elements of citizenship.


ISBN: ISSN: 2071-8322

J J W Herring, 'The disability critique of care' (2014) 8 Elder Law Review 1 [...]

A consideration of the disaiblity rights critique of an ethic of care.


I Goold, Loane Skene, Jonathan Herring and Kate Greasley, 'The Human Body as Property? Possession, Control and Commodification (The Concise Argument)' (2014) 40 Journal of Medical Ethics 1

L Gullifer, 'The interpretation of retention of title clauses: Wilson v Holt generates some difficulties. ' (2014) Lloyds Maritime and Commercial Law Quarterly (forthcoming) [...]

In the recent Court of Appeal decision in Wilson v Holt the majority interpreted a retention of title clause in a sale of goods contract as creating an agency relationship between the buyer and seller, so that the buyer sub-sold the goods as agent of the seller. This meant that property in the goods never passed to the buyer, and the seller could not bring an action for the price. This paper argues that the agency construction is wrong as it gives rise to many uncommercial consequences, leads to uncertainty and potentially upsets the balance of interests between financiers of small and medium sized enterprises. It contends that the case of Aluminium Industrie Vaassen B.V. v. Romalpa Aluminium Ltd, used to support many uncommercial interpretations of retention of title clauses, is fundamentally flawed and should be put to rest. Finally, it is argued that the view of the Court of Appeal in Wilson v Holt that section 49 of the Sale of Goods Act 1979 includes the only two circumstances in which a seller can sue for the price is unsatisfactory, and that the section should be reinterpreted or, ideally, reformed.


I Loader, B Goold and A Thumala, 'The Moral Economy of Security' (2014) 18 Theoretical Criminology [...]

In this paper we draw upon our recent research into security consumption to answer two questions: First, under what conditions do people experience the buying and selling of security goods and services as morally troubling? Second, what are the theoretical implications of understanding private security as, in certain respects, tainted trade? We begin by drawing on two bodies of work on morality and markets (one found in political theory, the other in cultural sociology) in order to develop what we call a moral economy of security. We then use this theoretical resource to conduct an anatomy of the modes of ambivalence and unease that the trade in security generates. Three categories organize the analysis: blocked exchange, corrosive exchange, and intangible exchange. In conclusion, we briefly spell out the wider significance of our claim that the buying and selling of security is a morally charged and contested practice of governance.


R Ekins and J Goldsworthy, 'The Reality and Indispensability of Legislative Intentions' (2014) 36 Sydney Law Review (forthcoming)

C Hoyle, 'The Role of the Victim in Criminal Justice in England' [2014] 37 Criminal Law Review 490

J Vidmar, 'The Scottish Independence Referendum in an International Context' (2014) 51 Canadian Yearbook of International Law (forthcoming)

A Dyson and Kramer, 'There is No Breach Date Rule: Mitigation, Difference in Value and Date of Assessment' (2014) Law Quarterly Review (forthcoming)

C Hoyle and Michelle Miao, 'Thinking Beyond Death Penalty Abolitionist Reform: Lessons from Abroad and the Options for China' (2014) 2 China Legal Science 121

G Dinwoodie, 'Third Annual Emmanuel College International Intellectual Property Lecture: Ensuring Consumers "Get What They Want": The Role of Trademark Law ' (2014) Cambridge Law Journal (forthcoming)

E Descheemaeker, 'Tort Law Defences: A Defence of Conventionalism' (2014) 77 Modern Law Review 493 [...]

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.


I Loader, A Thumala and B Goold, 'Tracking Devices: On the Reception of a Novel Security Good' (2014) 14 Criminology & Criminal Justice [...]

In this paper, we describe and make sense of the reception of a novel security good: namely, the personal GPS tracking device. There is nothing new about tracking. Electronic monitoring is an established technology with many taken-for-granted uses. Against this backdrop, we focus on a particular juncture in the ‘social life’ of tracking, the moment at which personal trackers were novel goods in the early stages of being brought to market and promoted as protective devices. Using data generated in a wider study of security consumption, our concern is to understand how this extension of tracking technology into everyday routines and social relations was received by its intended consumers and users. How do potential buyers or users of these novel protective devices respond to this novel security object? What is seductive or repulsive about keeping track of those for whom one has a duty or relationship of care? How do new tracking technologies intersect with – challenge, reshape or get pushed back by – existing social practices and norms, most obviously around questions of risk, responsibility, trust, autonomy and privacy? This paper sets out to answer these questions and to consider what the reception of this novel commodity can tell us about the meaning and future of security.


D Roser and L. Tomlinson, 'Trade Policies and Climate Change: Border Carbon Adjustments as a Tool for a Just Global Climate Regime' (2014) Ancilla Iuris (forthcoming) [...]

There is an urgent need to mitigate global greenhouse gas emissions. Because climate change is caused by actions regardless of where they take place on earth, it is generally considered that effective action must take place on a global scale. So far, multilateral attempts to coordinate action on a global level have failed to implement measures that are expected to prevent dangerous climate change, and unilat‐ eral measures are now being considered as an alternative way of achieving emissions reductions out‐ side of this context. In light of this, some advocate the use of Border Carbon Adjustments to address the various problems that arise when carbon mitigation policies are implemented on a unilateral basis. There are several arguments for or against the use of Border Carbon Adjustments, and most of these are addressed in the economic, legal, and policy literature. Little has been said on the implications of Border Carbon Adjustments for justice. The aim of this paper is to evaluate Border Carbon Adjust‐ ments as a policy tool for the mitigation of climate change. This paper argues that, whilst Border Car‐ bon Adjustments may be an effective way of achieving unilateral emission reductions, they face problems as far as global distributive justice is concerned and they can easily be perceived as an unac‐ ceptable shift towards a hostile and aggressive form of multilateral diplomacy. For this reason, Border Carbon Adjustments should be viewed with great caution and, if used at all, careful attention should be paid to designing their implementation in accordance with principles of justice.


B Bradford and Andy Myhill, 'Triggers of change to public confidence in the police and criminal justice system: Findings from the Crime Survey for England and Wales panel experiment' (2014) Criminology and Criminal Justice (forthcoming) [...]

DOI: 10.1177/1748895814521825

Accounts of public ‘trust and confidence’ in criminal justice agencies often fall into one of two camps. Instrumental accounts suggest that people trust police and the criminal justice system (CJS) when they believe them to be effective in fighting crime and reducing offending. Expressive or affective accounts, by contrast, suggest people place as much or more emphasis on the social meaning of justice institutions as on their instrumental activities. In this article we add to recent studies that have sought to weigh up the balance between instrumental and expressive factors. Using data from the Crime Survey for England and Wales panel experiment, we present evidence that trust in police and the wider CJS is implicated in public concerns about the nature of local order and cohesion. The expressive account appears to offer a better understanding of why people may grant trust to, or withdraw trust from, the police and the CJS.


J J W Herring and Jesse Wall, 'Understanding capacity: 'the heart may easily overrule the head'' (2014) 4 Elder Law Journal 190

Laura Hoyano, 'What Is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial' [2014] Criminal Law Review (forthcoming) [...]

This article contests the notion, prevalent in British jurisprudence regarding ECHR Article 6, and recently adopted by the Grand Chamber in Al-Khawaja v UK, that the right to a fair trial involves the 'balancing' of the rights of the defendant against the rights of the prosecution, the complainant and other witnesses, and the community at large. It argues that the whole notion of balancing is fundamentally misconceived, setting up a conflictual trap whereby defence rights are always seen as being in antithesis to those of the prosecution representing the overarching public interest. Instead, I propose a model embodying a sense of objective fairness predicated upon the right to a verdict with integrity; as such this right is not allocated to any one participant in the trial but is a common good, erasing any perceived antitheses within Article 6. The article goes on to explore the concept of "the essence of the right" in Article 6(3) caselaw, and explains why this has been extinguished by the approach to Article 6 of the Grand Chamber in Al-Khawaja, sacrificing principle to juridical, and possibly political, expediency. The consequence is that Article 6 now only serves to protect the right to a 'fair-ish' trial.


ISBN: 0011-135X

B Bradford, A Huq, J Jackson and B Roberts, 'What price fairness when security is at stake? Police legitimacy in South Africa' (2014) 8 Regulation and Governance 246 [...]

DOI: 10.1111/rego.12012

The legitimacy of legal authorities – particularly the police – is central to the state's ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgments about other aspects of police behavior – notably, about effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society, do people still emphasize procedural fairness or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgments play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). Police legitimacy is, furthermore, associated with citizens' judgments about the wider success and trustworthiness of the state.


B Bradford, P Quinton, A Myhill and G Porter, 'Why do ‘the law’ comply? Procedural justice, group identification and officer motivation in police organizations' (2014) 11 European Journal of Criminology 110 [...]

DOI: 10.1177/1477370813491898

How can police officers be encouraged to commit to changing organizational and personal practice? In this paper we test organizational justice theories that suggest that fair processes and procedures enhance rule compliance and commitment to the organization and its goals. We pay particular attention to (a) tensions between the role of group identity in organizational justice models and classic concerns about ‘cop culture’; and (b) the danger of over-identification with the organization and the counterproductive types of compliance this may engender. Results suggest that organizational justice enhances identification with the police organization, encourages officers to take on new roles, increases positive views of community policing, and is associated with greater self-reported compliance. Identification with the organization has generally positive implications; however, there is some danger that process fairness may encourage unthinking compliance with orders and instructions.


I Goold, 'Why Does It Matter How We Regulate the Use of Human Body Parts?' (2014) 40 Journal of Medical Ethics 3

A L Young, 'Will you, Won't you, Will you join the Deference Dance?' (2014) Oxford Journal of Legal Studies

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