Recent (2013) and Forthcoming Journal Articles
Showing 119 recent journals sorted by year, then title [change this]
J Prassl, '"All in it Together?" Labour Markets in Crisis' (2013) 1 Hungarian Labour Law Journal (forthcoming)
A Higgins, 'A defence of qualified one way cost shifting' (2013) 32 Civil Justice Quarterly 198
J J W Herring, 'A Lost Cause' (2013) 17 May 2013 New Law Journal [...]
A discussion of whether unmarried cohabitants are discriminated against if treated unlike married couples
J Prassl, 'A Tale of (Un?)Intended Consequences: Das Vereinigte Königreich in der Krise' (2013) 48 Gesellschaft & Politik (forthcoming)
N Gur, 'Actions, Attitudes, and the Obligation to Obey the Law' (2013) 21 Journal of Political Philosophy 326
R Condry and Caroline Miles, 'Adolescent to Parent Violence: Framing and Mapping a Hidden Problem' (2013) Criminology and Criminal Justice (forthcoming) [...]
Adolescent to parent violence is virtually absent from policing, youth justice and domestic violence policy, despite being widely recognized by practitioners in those fields. It is under-researched and rarely appears in criminological discussions of family or youth violence. This article presents the first UK analysis of cases of adolescent to parent violence reported to the police. We analyse victim, offender and incident characteristics from 1892 cases reported to the Metropolitan Police in 2009–2010, most of which involved violence against the person or criminal damage in the home. Our findings reveal that adolescent to parent violence is a gendered phenomenon: 87 per cent of suspects were male and 77 per cent of victims were female. We argue that the absence of adolescent to parent violence from criminological discourse must be addressed if criminology is to have a thorough understanding of family violence in all its forms.
L Ferguson, 'Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)?' (2013) 35 Journal of Social Welfare and Family Law 115 [...]
In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. I consider why family arbitration may not become numerically significant despite its potential benefits, but may be much more important in normative terms. Lawyer-led negotiations remain the most common form of out-of-court resolution and constitute the de facto default form of bargaining in the shadow of the normative regime framed by ss 23-25 Matrimonial Causes Act 1973. Together with the transformation in approach to nuptial agreements, family arbitration may mark a normative shift towards autonomy and private ordering. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.
M Mendelson and M Paparinskis, 'Bail-ins and the International Investment Law of Expropriation: in and beyond Cyprus' (2013) 28 Journal of International Banking and Financial Law (forthcoming)
D Awrey, W Blair and D Kershaw, 'Between Law and Markets: Is there a Role for Culture and Ethics in Financial Regulation?' (2013) 38:1 Delaware Journal of Corporate Law (forthcoming)
P Davies and Klaus J Hopt, 'Boards in Europe - Accountability and Convergence' (2013) 61 American Journal of Comparative Law 301 [...]
Corporate boards play a central role in corporate governance and therefore are regulated in the corporate law and corporate governance codes of all industrialized countries. Yet while there is a common core of rules on the boards, considerable differences remain, not only in detail, but sometimes also as to main issues. These differences depend partly on shareholder structure (dispersed or blockholding), partly on path dependent historical, political and social developments, especially employee representation on the board. More recently, in particular with the rise of the international corporate governance code movement there is a clear tendency towards convergence, at least in terms of the formal provisions of the codes. This article analyses the corporate boards, their regulation in law and codes and their actual functioning in nine European countries (Belgium, France, Germany, Italy, the Netherlands, Poland, Sweden, Switzerland and the United Kingdom) in a functional and comparative method. Issues dealt with are inter alia board structure, composition and functioning (one tier v. two tier, independent directors, expertise and diversity, separating the chair and the CEO functions, information streams, committees, voting and employee representation) and enforcement by liability rules (in particular conflicts of interest), incentive structures (remuneration) and shareholder activism. The article finds convergence in these European countries due to the pressures of competition, a pro-shareholder change supported by government and institutional investors and, to a certain degree, the impact of the EU. This convergence shows more in the codes and the ensuing practice than in the statutes. On the other side considerable differences remain, in particular as a result of the failure to adopt a mandatory "no frustration" rule for takeovers at EU level and diverging systems of labor codetermination. The result is an unstable balance between convergence and divergence, shareholder and stakeholder influence and European v. national rulemaking.
M Kurkchiyan, 'Civil Courts in Ukraine: a Window into Society ' (2013) Journal of Law and Society (forthcoming)
D Akande and Thomas Lieflaender, 'Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense' (2013) 107 American Journal of International Law 563
E Fisher, 'Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v EPA' (2013) 39 Law and Policy 236 [...]
Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co-production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.
M Köpcke Tinturé, 'Concept and Purpose in Legal Theory: How to "Reclaim" Fuller' (2013) 58 American Journal of Jurisprudence 75
E De Wet and J Vidmar, 'Conflicts between International Paradigms: Hierarchy versus Systemic Integration' (2013) Global Constitutionalism 196
I Benöhr, 'Consumer Dispute Resolution after the Lisbon Treaty' (2013) Volume 36 Journal of Consumer Policy 87
WG Ringe, 'Corporate Mobility in the European Union – a Flash in the Pan? An empirical study on the success of lawmaking and regulatory competition ' (2013) European Company and Financial Law Review 230 [...]
This paper discusses new data on regulatory competition in European company law and the impact of national law reforms, using the example of English company law forms being used by German start-ups. Since 1999, entrepreneurs have been allowed to select foreign legal forms to govern their affairs. The data show that English limited companies have been very popular with German entrepreneurs in the first years of the last decade, but also document a sharp decline from early 2006 onwards. This decline casts doubt over the claim that the German company law reform from November 2008 had ‘successfully fought off’ the use of foreign company forms. Moreover, by contrasting the German data with the corresponding developments in Austria, the paper further demonstrates that the latter jurisdiction sees a similar decline without having reformed its company law. Instead of exclusively relying on law reform as the causal reason for declining foreign incorporation numbers, the paper offers a number of alternative or complementary explanations for the striking developments. The findings are important for our understanding of (defensive) regulatory competition and successful lawmaking.
L Lazarus and Ryan Goss, 'Criminal Justice under the UK Human Rights Act: dynamic interaction between domestic and international law' (2013) Singapore Academy of Law Journal [...]
The article demonstrates how, both before and after the HRA, UK courts and legislators have sought to reconcile common law approaches to protecting rights and liberties with the approaches of the Strasbourg Court. It uses the development of the case law as an insight into a dynamic institutional dialogue: how interaction with the ECtHR has shaped the way that UK courts, governments and Parliament have acted on criminal justice issues and vice versa.
S Meredith, 'Critical review of referencing software when used with OSCOLA' (2013) 4 European Journal of Law and Technology [...]
This case study considers the main features of three referencing software programs – Endnote, Refworks and Zotero – and their advantages and disadvantages for legal scholars. It defines the key useful features of referencing software as being a database for storing information about references or citations; an interface for downloading bibliographic data from catalogues and databases; an interface for inserting that information into footnotes and creating bibliographies; and the possibility of having a variety of styles in which citations can be formatted (OSCOLA, Bluebook, AGLC etc). The software is considered in light of responses to a survey of Oxford University Law Faculty academics and research students about how they manage reference information. A skills level rating is provided for each aspect of the three software programs considered. Other issues, such as storage and annotation of PDFs, sharing libraries and cross referencing of footnotes are also briefly considered. Also available on SSRN
J Payne, 'Cross-border schemes of arrangement and forum shopping' (2013) European Business Organization Law Review (forthcoming) [...]
In recent years there has been a growth in the use of English schemes of arrangement by companies registered in other EU Member States. High profile recent examples include TeleColumbas GmbH, Rodenstock GmbH, and Primacom Holdings GmbH. In each case these companies were able to access the English scheme jurisdiction without shifting their seat or COMI to the UK. This paper investigates this phenomenon, considering the use of an English scheme of arrangement and why it might be regarded as valuable to these companies. The paper then tackles two issues. First, it assesses how these companies are able to access the English scheme jurisdiction, and, in particular, analyses the potential application of both the Insolvency Regulation and the Judgments Regulation in this regard. As part of this analysis the recognition and enforcement of English schemes of arrangement in other Member States is discussed. Second, it considers whether this use of English schemes gives rise to issues of forum shopping. This paper rejects the idea that forum shopping should be regarded as a concern in this context.
D P Nolan, 'Damage in the English Law of Negligence' (2013) 4 Journal of European Tort Law 259
E Descheemaeker, 'De la structure de la responsabilité : réflexions comparatistes autour de Torts and Rights' (2013) Revue internationale de droit comparé 51 [...]
This review article examines Robert Stevens’ Torts and Rights, arguably the single most important work on English tort law published over the last decade. Professor Stevens’ thesis is that the English law of torts can be analysed throughout as the body of law that pertains to the violation of primary rights. This argument has far-reaching consequences, in particular when it comes to the transversal tort of negligence, which are of comparative significance. The present author explains the significance of Professor Stevens’ argument against the historical background of English law and proceeds to offer a criticism based on the allegedly defective understanding that the book has of the concept of rights.
D P Nolan, 'Deconstructing the Duty of Care' (2013) 129 Law Quarterly Review 559
S Wallerstein, 'Delegation of Powers and Authority in International Criminal Law' (2013) Criminal Law and Philosophy (forthcoming) [...]
By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990’s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds
J Vidmar, 'Democracy and Regime-Change in the post-Cold War International Law' (2013) New Zealand Journal of Public and International Law (forthcoming)
J Prassl, 'Die Suche nach dem Arbeitgeber im Englischen Recht' (2013) Europäische Zeitschrift für Arbeitsrecht 472
A Tzanakopoulos and CJ Tams, 'Domestic Courts as Agents of Development of International Law' (2013) 26 Leiden Journal of International Law 531 [...]
The introductory paper to a symposium issue of the Leiden Journal of International Law, edited by the authors, dealing with the function of domestic courts as agents for the development of international law. The paper 'sets the scene' for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organisations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic court decisions on the development of international law, and introduces the concept of 'agents' of international law development. This is the analytical perspective that the contributions to the symposium adopt.
J Prassl, 'Employee Shareholder "Status"? Dismantling the Contract of Employment' (2013) 42 ILJ 307
The recent conflict between Canadian telecommunications provider Telus and US-based hedge fund Mason Capital is the most recent illustration of ‘empty voting’ – a strategy whereby activist investors eliminate their risk exposure to shares in target companies to pursue idiosyncratic motives. As courts are struggling to find adequate solutions, regulators worldwide are called upon to provide reliable tools to this threat to shareholder voting.
Henrique Pacini, Maria Montoya Diaz, Valéria Guimarães and I Benöhr, 'Environmental and competitive performances' (2013) 36 (3) September 2013. World Competition, Law and Economics Review
The polycentric, interdisciplinary, normative and scientifically uncertain nature of environmental problems leads to a body of environmental law in which it can be difficult to settle on a single frame for understanding a problem and thus to identify relevant parties, the relationships between them, and the courses of action that can be taken. Using Michel Callon’s terminology this can be understood as ‘hot situations’ leading to ‘hot law’. In this Introduction to the Special Issue celebrating 25 years of the Journal of Environmental Law the nature of ‘hot environmental law’ is considered, as is the role of environmental law scholarship.
P P Craig, 'EU Accession to the ECHR: Competence, Procedure and Substance' (2013) 36 Fordham International Law Journal 1115
S J Bright and H Dixie, 'Evidence of Green Leases in England and Wales' (2013) 6 International Journal of Law in the Built Environment [...]
This paper reports on research that investigates the use of green clauses in leases of office and retail premises in England and Wales. We examined 26 recent leases of green build properties registered at HM Land Registry. The green clauses discovered were classified, and compared with the model form green clauses promoted by the London based Better Building Partnership’s Green Lease Toolkit.
J J W Herring, 'Forging a relational approach: Best interests or human rights?' (2013) Medical Law Internation
E Fisher, 'Framing Risk Regulation: A Critical Reflection' (2013) 4 European Journal of Risk Regulation 125
E Ramaekers and B Akkermans, 'Free Movement of Goods and Property Law' (2013) 19 European Law Journal 237
D Erdos, 'Freedom of Expression Turned On Its Head: Academic Social Research and Journalism in the European Union\\\'s Privacy Framework'  Public Law 52 [...]
This article argues that mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.
S Fredman, 'From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote'  Public Law 292 [...]
The interpretation of human rights inevitably requires value judgements. But if the power of interpretation and limitation of human rights is left to elected legislators on the basis of majority voting, perpetual minorities may be perpetually subordinated. But leaving judges to make the final decision flies in the face of the basic principle that all fundamental decisions in society should be taken by the people themselves. Prisoners’ voting rights throw the dilemma into particularly sharp relief. Should an elected legislature have the final say on removing the fundamental right to vote from a section of the population, particularly one which is deeply unpopular and which politicians have no natural interest in defending? The most promising way out of this dilemma is to move away from a polarisation between courts and legislatures, and instead regard both as contributing to a democratic resolution of human rights disputes. An increasingly influential stream of thought characterises the relationship as one of dialogue. Rather than courts having the final say, judicial decisions provoke a response from the legislature. In this paper, I aim to go beyond a dialogic model and propose one based on deliberative democracy. Drawing on the distinction between interest bargaining and value-based or deliberative decisions, I argue that human rights can only be properly addressed within a democracy through deliberative means. In other words, the power of the principle should constitute the reason for adopting it, rather than the power of those whose interests it serves. Otherwise, those without political power risk perpetual subordination, undermining the raison d’être of human rights protection. It is here that the courts are in a position to make a unique contribution to the democratic resolution of human rights issues. I argue that courts should ensure that human rights decisions are indeed taken deliberatively within the constraints set by the human rights themselves. I call this a ‘bounded deliberative’ approach. The final section applies these principles to prisoners’ voting rights cases in South Africa and the UK.
A J B Sirks, 'Furtum and manus / potestas' (2013) 81 Tijdschrift voor Rechtsgeschiedenis (forthcoming) [...]
The nature of furtum has been subjected to various interpretations, often with the assumption that this changed between the Twelve Tables and end of the 2nd century AD. It is submitted here that the delict was originally an intrusion upon the power of the pater familias and in its most acute form (furtum manifestum) punished with a religious sanction, viz. declaring the fur sacer. The same sanction is found in the Twelve Tables for other delicts, connected with the power of the pater familias. Since manifest furtum always implied that the fur was caught red handed, desacralisation of the delict led to a reduction of this to mere being caught in the act.
ISBN: ISSN 0040-7585
S J Bright, 'Green Leases – Becoming more usual? ' (2013) Estates Gazette
WG Ringe, 'Hedge Funds and Risk-Decoupling – The Empty Voting Problem in the European Union' (2013) 36 Seattle University Law Review 1027 [...]
Negative risk-decoupling, otherwise known as empty voting, is a popular strategy amongst hedge funds and other activist investors. In short, it is the attempt to decouple the economic risk from the share’s ownership position, retaining in particular the voting right without risk. This paper uses three perspectives to analyse the problems created by negative risk-decoupling: an agency costs approach, an analysis of information costs, and a perspective from corporate finance. It shows how risk-decoupling is a type of market behaviour that creates significant costs for market participants, in particular existing shareholders and potential investors. The paper then develops regulatory responses, envisaged particularly for EU level lawmaking, but also raises underlying issues on a more general level. Whilst several proposed regulatory tools are rejected, the paper prefers a solution that uses continuous transparency as the cornerstone. In addition, it suggests that in certain individual cases, national regulators should be empowered to suspend activists’ voting rights. The paper concludes by offering a concrete legislative proposal, amending the European Transparency Directive.
D Leczykiewicz, 'Horizontal Application of the Charter of Fundamental Rights' (2013) 38 European Law Review 479
Simon Whittaker, 'Identifying the Legal Costs of Operation of the Common European Sales Law' (2013) 50 Common Market Law Review 85
E Hudson, 'Implementing Fair Use in Copyright Law: Lessons from Australia' (2013) 25 Intellectual Property Journal 201
J Prassl, 'Implementing the New Employee-Shareholder Status' (2013) SJ 9
M Chen-Wishart, 'In defence of consideration' (2013) 13 Oxford University Commonwealth Law Journal 209
This paper re-evaluates the corporate governance concept of ‘board independence’ against the disappointing experiences during the 2007-08 financial crisis. Independent or outside directors had long been seen as an essential tool to improve the monitoring role of the board. Yet the crisis revealed that they did not prevent firms’ excessive risk-taking; further, these directors sometimes showed serious deficits in understanding the business they were supposed to control, and remained passive in addressing structural problems. A closer look reveals that under the surface of seemingly unanimous consensus about board independence in Western jurisdictions, a surprising disharmony prevails about the justification, extent and purpose of independence requirements. These considerations lead me to question the benefits of the current system. Instead, this paper proposes a new, ‘functional’ concept of board independence. This would redefine independence to include those directors that are independent of the firm’s controller, but at the same time it would require them to be more accountable to (minority) shareholders.
TAO Endicott, 'Interpretation and Indeterminacy' (2013) Jerusalem Review of Legal Studies, forthcoming
N Ghanea, 'Intersectionality and the Spectrum of Racist Hate Speech: Proposals to the UN Committee on the Elimination of Racial Discrimination' (2013) Human Rights Quarterly (forthcoming)
M Paparinskis, 'Investment Treaty Arbitration and the (New) Law of State Responsibility ' (2013) 24 European Journal of International Law 617 [...]
The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions provided by the regimes that formed the background for its creation.
M Kurkchiyan, 'Justice Through Bureaucracy: The Ukrainian Model' (2013) Social Legal Studies
A Tzanakopoulos, 'L'invocation de la théorie des contre-mesures en tant que justification de la désobéissance au Conseil de sécurité' (2013) 46 Revue belge de droit international (forthcoming) [...]
This paper discusses (in French) whether countermeasures can be invoked as a justification for disobeying binding decisions of the Security Council under Chapter VII of the UN Charter. The first part establishes how the Security Council may engage the international responsibility of the UN and who should be allowed to determine that such engagement has in fact taken place. The second part argues that disobedience of illegal sanctions adopted by the Council may be justified under international law as a countermeasure in response to the Council's (the UN's) internationally wrongful act.
J Cartwright, 'La preuve en droit continental et en common law - Le point sur la preuve en matière des contrats en droit anglais.' (2013) La Semaine Juridique Notariale et Immobilière 26 [...]
Abstract: There is no "hierarchy of proof" in English law as there is in French law. English law does not use authentic acts; the deed is a private document. Although there are only a few exceptions to the basic rule that no formalities of writing are required for the creation of a contract, nor for its enforceability, yet where the contract is in writing the written document has great significance, particularly in the light of the principles of (objective) interpretation of the contract.
Discussion of the significance of writing in English law of contract. Article is in French.
M Chen-Wishart, 'Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding' (2013) 62 International and Comparative Law Quarterly (forthcoming) [...]
Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer requires an examination of the relationship between law and society, and between the formal and informal legal orders of the originating and the recipient society.
P Eleftheriadis, 'Legality and Reciprocity' (2013) Jerusalem Review of Legal Studies
J Rowbottom, 'Leveson, press freedom and the watchdogs' (2013) 21 Renewal 57
Liquidity shocks are a core risk of the business model of commercial banks, which is founded on a liquidity mismatch between the banks’ liabilities and assets. A substantial part of the banks’ funding comes from short-term retail and wholesale funding, whilst a substantial part of the assets are long-term and illiquid loans. This is the source of the banks’ profi ts, but also of their claim to fulfi l an important social role. Having argued that leaving the solution to this problem to the banks alone is unsafe, this article turns to examine three regulatory strategies for reducing the incidence of liquidity shocks or making banks more resilient to them. They are: regulating the level of banks’ liquidity reserves, insuring the value of the banks’ long-term assets and guaranteeing the discharge of the banks’ short-term liabilities. The criteria of assessment are the least impact on the banks’ social role of transforming short-term deposits into long-term loans, coupled with the least incentive for banks to take excessive risk, the least subsidy to banking and the least cost to the public purse. It is suggested that insuring the value of the banks’ long-term assets emerges as the most attractive strategy.
P Pascual, W Wagner and E Fisher, 'Making Method Visible: Improving the Quality of Science-Based Regulation' (2013) 2 Michigan Journal of Environmental and Administrative Law 429
J M Eekelaar, 'Marriage - a modest proposal' (2013) 43 Family Law 82 [...]
A critical account of ther law in England and Wales governing entry into marriage and suggestions for reform
J J W Herring, 'Mental disability and capacity to consent to sex' (2013) 34 Journal of Social Welfare and Family Law 471
This paper explores the benefit of using menu structures for regulatory purposes in private law. Menus have been used rarely by regulators and lawmakers in the past. Insofar as they are used, they address situations where market participants have relatively heterogeneous preferences, where the subject matter of regulation itself is heterogeneous, or where a political consensus appears difficult. This paper addresses a number of benefits that reach beyond the traditional perception of menu lawmaking. Benefiting from insights from economics and behavioural science, several benefits can be identified that exploit the full potential of menu lamaking. Central to these benefits is the notion of endowment effect (or status quo bias) involved with traditional default rules: where the law provides just one default rule, market participants will mostly stick to this rule out of pure convenience. This means that simple default rules are frequently inappropriate to identify the preference of market participants. This problem can be overcome by using menus, giving consumers a choice between different options, each of which is endorsed by the authority and impartiality of the parliamentary lawmaker. But menus have many other advantages than traditional black-or-white legal rules.
J Jackson, A Huq, B Bradford and TR Tyler, 'Monopolizing Force? Police Legitimacy and Public Attitudes Toward the Acceptability of Violence' (2013) Psychology, Public Policy, and Law [...]
Why do people believe that violence is acceptable? In this article, the authors study people’s normative beliefs about the acceptability of violence to achieve social control (as a substitute for the police, for self-protection and the resolution of disputes) and social change (through violent protests and acts to achieve political goals). Addressing attitudes toward violence among young men from various ethnic minority communities in London, the authors find that procedural justice is strongly correlated with police legitimacy, and that positive judgments about police legitimacy are associated with more negative views about the use of violence. They conclude with the idea that police legitimacy has an additional, hitherto unrecognized, empirical property—by constituting the belief that the police monopolise rightful force in society, legitimacy has a “crowding out” effect on positive views of private violence.
D P Nolan, 'Negligence and Human Rights: The Case for Separate Development' (2013) 76 Modern Law Review 286
A J B Sirks, 'Noxa caput sequitur' (2013) 81 Tijdschrift voor Rechtsgeschiedenis 81 [...]
Generally it is assumed that caput in the phrase noxa caput sequitur refers to the delinquent slave or filius familias. The liability for the delict is attached to his person. It is argued, however, that caput refers to the pater familias of the deliquent. The Twelve Tables contained a rule on their direct and personal liability (with surrender to the autorities). The introduction of the edicts on furtum and the lex Aquilia, with the direct and exclusive liability of the pater familias for the wrongdoings of those, subjected to his potestas, led to a correction: the pater could now refuse to defend them and surrender them to the authorities, or engage in the process, with afterwards still the possibility to surrender, now to the plaintiff. The phrase as such refers then to the inclusion of the decemviral rule on liability of persons, subjected to patria potestas, into the formulas for the delicts.
ISBN: ISSN 0040-7585
A S Burrows, 'Numbers Sitting in the Supreme Court' (2013) 129 Law Quarterly Review 305
S Wallerstein, 'Oblique Intent in English and Jewish Law' (2013) (forthcoming)
A Myhill and B Bradford, 'Overcoming cop culture? Organizational justice and police officers’ attitudes toward the public' (2013) 36 Policing: An International Journal of Police Strategies & Management 338 [...]
Purpose – The purpose of this paper is to test theories of organizational justice in the context of a police agency. Design/methodology/approach – Structural Equation Modelling (SEM) was used to analyze data from a survey of officers in a police force in England. Findings – The SEM showed that organizational justice was associated with positive attitudes towards serving members of the public. This relationship was mediated by commitment to elements of community policing and, for community police officers, by general satisfaction with the organization. Practical implications – The findings suggest that police managers committed to implementing process-based policing policies may need to ensure their organizations also implement internal policies and practices that are procedurally fair. Originality/value – This study is one of the first to apply the well established literature on organizational justice to the context of policing, and the first to examine the impact of organizational justice on alignment with community policing and the service model.
J Vidmar, 'Palestine and the Conceptual Problem of Implicit Statehood' (2013) 12 Chinese Journal of International Law 19
P P Craig, 'Pringle and Use of EU Institutions Outside the EU Legal Framework: Foundations, Procedure and Substance' (2013) 9 EuConst 263
P P Craig, 'Pringle: Legal Reasoning, Text, Purpose and Teleology ' (2013) 20 Maastricht Journal of European and Comparative Law 1
M Paparinskis, 'Procedural Aspects of Shared Responsibility in the International Court of Justice' (2013) 4 Journal of International Dispute Settlement 295 [...]
In recent years, the International Court of Justice has been increasingly asked to adjudicate upon claims of State responsibility that raise or at least touch upon the possibility of international responsibility of multiple entities. In different substantive contexts, these cases raise similar conceptual questions that might be articulated by reference to the concept of ‘shared responsibility’. The focus of this article is on procedural matters, and in particular on how shared responsibility may be implemented in the ICJ. The argument will be made in three steps, dealing in turn with the manner in which cases concerning shared responsibility could be brought before the Court, the way how such cases could be handled, and the challenges raised in such cases by absent parties. The article argues for a nuanced consideration of the rationale of the procedural challenges: some are unremarkable in conceptual terms and reflect the broader judicial architecture of the Court, while others are of particular importance for shared responsibility, even though the particular legal issue might be mutatis mutandis relevant to other multilateral disputes.
I Goold, 'Property or Not Property? The Spectrum of Approaches to Regulating the Use of Human Bodily Material' (2013) Journal of Law and Medicine (forthcoming)
D Sarooshi, 'Provisional Measures and Investment Treaty Arbitration' (2013) 29 Arbitration International 361
This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.
E Descheemaeker, 'Quasi-contrats et enrichissement injustifié en droit français' (2013) 112 Revue trimestrielle de droit civil 1 [...]
Of Justinian’s four classes of obligations (ex contractu, quasi ex contractu, ex delicto, quasi ex delicto), the quasi-contractual one has resisted rationalisation the longest. This paper makes the claim that quasi-contracts should disappear, as a category, from French law and be replaced with a general action in unjustified enrichment. It also explores the difficulties that such a switch would entail.
John Gardner, 'Reasons and Abilities: Some Preliminaries' (2013) 58 American Journal of Jurisprudence 63 [...]
This paper takes some first steps in a study of the thesis that “ought” implies “can.” Considerable attention is given to the proper interpretation of the thesis, including the interpretation of “ought,” the interpretation of “can,” and the interpretation of “implies.” Having chosen a particular interpretation of the thesis to work on—in some ways its broadest interpretation—the paper tries to bring out some considerations that bear on its truth or falsity. After an excursion into the general theory of value, this paper finds it false. The paper concludes with the suggestion that part of its allure comes of confusion with another thesis, namely the thesis that “ought to try” implies “can succeed.” Suitably qualified, this last thesis is true, and the false thesis that “ought” implies “can” basks in the reflected glory. Left for another day are narrower interpretations of “ought” implies “can” which may protect it against my objections.
A Briggs, 'Recognition of Foreign Judgments: A Matter of Obligation' (2013) 129 (2013) Law Quarterly Review, Sweet & Maxwell 87 [...]
Evaluation of the theory explaining which foreign judgments have an effect (and if any, what effect) in the English legal order.
Imogen Goold, Loane Skene and J J W Herring, 'Regulating the Use of Human Bodily Material' (2013) 245-250 Journal of Law and Medicine
S Vogenauer, 'Regulatory Competition Through Choice of Contract Law and Choice of Forum in Europe: Theory and Evidence' (2013) 21 European Review of Private Law 13-78 [...]
This paper challenges the claim that there is regulatory competition in the areas of contract law and civil litigation. It is frequently assumed that law makers reform their contract laws and dispute resolution mechanisms with the purpose of attracting ‘users’, i.e. parties to cross-border contracts who choose the contract law or the courts of a given legal system. I shall discuss this assumption and its plausibility in the first part of the paper. In the second part I will test the assumption by presenting the available empirical evidence on the choices of contract law and forum that businesses in Europe actually make. For a long time such data has been largely absent from the debate. Moreover, I assemble evidence of law makers competing for the production of the most attractive legal regimes in the areas of contract law and civil litigation. I conclude that meaningful regulatory competition in the areas concerned cannot be predicted with confidence; nor is there evidence of its existence.
J J W Herring and P-L Chau, 'Relational Bodies' (2013) 21 Journal of Law and Medicine 294
P S Davies and Graham Virgo, 'Relieving trustees' mistakes'  RLR (forthcoming)
R George and O Cominetti, 'Relocation in English Law: Thorpe LJ’s Discipline and Its Application'  International Family Law 149
K Bullock and R Condry, 'Responding to denial, minimization and blame in correctional settings: The ‘real world’ implications of offender neutralizations' (2013) 10 European Journal of Criminology 572 [...]
This article examines ‘real-world’ implications of offender neutralizations. Drawing on empirical evidence derived from a study of the operation of community-based cognitive-behavioural programmes for perpetrators of domestic violence, it focuses on the implications, for offenders, of displaying neutralizations in correctional treatment settings. This article draws attention to the complex relationship between neutralization and correctional group work practice. First, it demonstrates that neutralization of offending does not always have the negative implications for offenders that have been assumed by some commentators. Neutralization may not preclude enrolment on to a correctional programme, is not always challenged in a confrontational way by practitioners and does not automatically result in suspension and the application of more punitive criminal sanctions. Second, the article demonstrates the difficulties that practitioners and participants face in tackling neutralizations in this context. Our findings suggest a need to rethink the central role that neutralizations play in aspects of contemporary criminal justice practice.
J Vidmar, 'Rethinking Jus Cogens after Germany v. Italy: Back to Article 53?' (2013) 60 Netherlands International Law Review 1
P P Craig, 'Review, Risk, Legality and Damages' (2013) 4 European Journal of Risk Regulation 399
N. W. Barber, 'Self-Defence for Institutions ' (2013) 72 Cambridge Law Journal 558
J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues' (2013) Law and Contemporary Problems
Lawyers and philosophers have long debated whether law should enforce social morality. This paper explores whether law should improve social morality. It explains how this might be possible, and what sort of obstacles, factual and moral, there are to doing so. It concludes with an example: our law should attempt to improve our social morality of sexual conduct.
G Loutzenhiser, 'Tax Avoidance, Private Companies and the Family' (2013) Cambridge Law Journal (forthcoming)
J Vidmar, 'Territorial Integrity and the Law of Statehood' (2013) 44 George Washington International Law Review 697
I Loader, B Goold and A Thumala, 'The Banality of Security: The Curious Case of Surveillance Cameras' (2013) 53 British Journal of Criminology 977
I Goold, 'The Concise Argument: Withholding Artificial Nutrition and Hydration' (2013) 39 Journal of Medical Ethics 541
J Pila, 'The European Patent: An Old and Vexing Problem' (2013) 62(4) International & Comparative Law Quarterly
J Prassl, 'The European Union and The Montreal Convention: A New Analytical Framework' (2013) 12 Issues in Aviation Law and Policy 381
S Fredman and J. Fudge, 'The Legal Construction of Personal Work Relations and Gender' (2013) 7 Jerusalem Review of Legal Studies 112 [...]
The rigid divide between a standard employment contract and other work relations has always presented particular difficulties for women. There is a fundamental mismatch between the binary divide that is inscribed in law and many women’s experience, in which the boundaries between paid and unpaid work, between public and private, and between the labor market and social security are permeable and shifting. The effects of this mismatch are particularly felt among those women who predominate among “non-standard” workers, who find themselves characterized as “independent” or “quasi-independent” despite the reality of their lack of real autonomy or self-sufficiency in the market. But this mismatch also has serious effects for those women at any one time employed under an employment contract because of the incentives created by the law for employers to cut costs by re-characterizing their relationship as falling on the far side of the binary divide. Freedland and Kountouris’s extraordinarily perceptive book, The Legal Construction of Personal Work Relations, not only allows us to escape from this rigid legal typology, it sheds light on the complex interactions between the many different personal work relations and labor market statuses that women engage in throughout their lives, pointing the way to a system of legal entitlements which better reflects these realities. In this review, we focus on the analytical and normative contributions made by The Legal Construction of Personal Work Relations2 in understanding and addressing how the current process of legal categorization disadvantages women workers. In the first part, we outline the critical analytical and conceptual advances that Freedland and Kountouris make in the legal categorization of work relations. In the second part, we draw out the implications of their analysis in three areas that are shaped by the relationship between women’s paid and unpaid work: precarious work; equal pay and job segregation; and maternity and parental rights.
D P Nolan, 'The Liability of Financial Supervisory Authorities' (2013) 4 Journal of European Tort Law 190
F Pirie, 'The limits of the state: coercion and consent in Chinese Tibet' (2013) 72 Journal of Asian Studies 69 [...]
Although China’s Tibetans profoundly mistrust the ideologies of the party-state, associating them with illegitimate practices of domination, protest and revolt are rare and effectively suppressed. This might be seen as quasi-colonial domination, the state securing subjection through the performance of paramount power, demonstrated by its suppression of the 2008 protests; or, it could be attributed to a form of indirect rule, by which local officials engage with local leaders to generate hegemonic consent. While both dynamics are present on the Tibetan plateau, ethnographic fieldwork among the Tibetan populations of Qinghai and Gansu provinces reveals that consent is primarily generated by local officials who negotiate a form of local order with religious and tribal leaders. Ignoring the ideological demands of their superiors, they engage constructively with the expectations of the Tibetans about how order should be maintained and, in doing so, subvert the state’s ideal of uniform and unitary sovereignty.
P P Craig, 'The Nature of Reasonableness Review' (2013) Current Legal Problems 1
J Prassl, 'The Notion of the Employer' (2013) 129 LQR 380
A J B Sirks, 'The parallel universes of Baker, Joblin and Julian: causation and law' (2013) 17 Edinburgh Law Review 22–36
J J W Herring and Oliver Powell, 'The rise and fall of presumptions surrounding the welfare principle' (2013) 43 Family Law 553
D J Galligan, 'The Sovereignty Deficit of Modern Constitutions' (2013) 33 Oxford Journal of Legal Studies (forthcoming) [...]
A study of the sixty-five constitutions of the nations ranked most democratic shows how the people are presented and the severe sovereignty deficit.
W E Peel, 'The Termination Paradox' (2013) Lloyds Maritime & Commercial Law Quarterly 519 [...]
An article dealing with the circumstances in which termination for breach of contract pursuant to the express provisions of the contract may prevent submission that the contract was terminated for repudiatory breach, analysing the basis for such a finding (which appears to lie in affrmation), its consequences, and potential solutions for parties wishing to retain the right to sue for repudiatory breach
S Vogenauer, 'The UNIDROIT Principles of International Commercial Contracts 2010 - Die UNIDROIT Grundregeln der internationalen Handelsverträge 2010' (2013) Zeitschrift für Europäisches Privatrecht 7-42 [...]
An overview of the evolution of the UNIDROIT Principles of International Commercial Contracts over the past 30 years, the genesis of the 2010 version, the new subject-matters covered and the future of the project.
J M Eekelaar, 'Then and Now: Family Law's Direction of Travel' (2013) 35 Journal of Social Welfare and Family Law 415 [...]
By comparing reported cases from 1959-60 with those in 2011, the article reveals the way family law has changed over this period, becoming much more attuned to people's real problems. This has however thrown up difficulties in its application; some of the responses to these difficulties are considered.
J Prassl, 'Third Time Lucky? The Proposed Employee-Shareholder Status' (2013) SJ 19
A C L Davies, 'This Time, it’s for Real: the Health And Social Care Act 2012' (2013) 76 Modern Law Review 564 [...]
This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act’s policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. I argue that the reforms threaten accountability for three reasons: they make the Secretary of State for Health’s relationship with the NHS more complex, they create opaque networks of non-statutory bodies which may influence NHS decision-making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable - privatisation of the NHS.
D Awrey, 'Toward a Supply-side Theory of Financial Innovation' (2013) 41:2 Journal of Comparative Economics 401
Hugh Beale and WG Ringe, 'Transfer of Rights and Obligations Under DCFR and CESL: Interactions with English and German Law' (2013) Oxford Legal Studies Research Paper No. 17/2013 [...]
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.
J Vidmar, 'Unilateral Secession in a Multipolar World' (2013) 107 Proceedings of the American Society of International Law (forthcoming)
R Ekins, 'Updating the Meaning of Violence' (2013) 129 Law Quarterly Review (forthcoming)
A Ezrachi and J Thanassoulis, 'Upstream Horizontal Mergers and (the Absence of) Retail Price Effects' (2013) Journal of Competition Law and Economics (forthcoming) [...]
The paper explores the retail price effects of upstream and mid stream horizontal mergers. It questions the prevailing assumption in merger review according to which such transactions will have similar effects on retail price as that of downstream horizontal mergers. The analysis illustrates how a sophisticated profit-maximizing merged entity may find it more profitable to enter into efficient contracts which seek to maximise the profit of the distribution channel, and so ensure that retail prices are not raised. The merged entity uses its market power and improved bargaining position to extract as much of that profit as possible from the retailer. We therefore argue that one cannot simply assume a direct link between the creation of market power upstream following a merger transaction, and the subsequent increase in retail prices. An analysis of the effects of upstream mergers on retail prices should call for a more nuanced appraisal which distinguishes the transfer of wealth within the operators in the distribution chain from the possible price impacts on final consumers.
D P Nolan, 'Varying the Standard of Care in Negligence' (2013) 72 Cambridge Law Journal 651
J Roberts and Marie Manikis, 'Victim Personal Statements: Latest (and last) Trends from the Witnesses and Victims Experience Survey in England and Wales' (2013) Criminology and Criminal Justice
R Williams, 'Voluntary intoxication – A lost cause?' (2013) Law Quarterly Review 264 [...]
The article argues that there are two key problems with the current law concerning voluntary intoxication. First, the rules applicable so-called crimes of basic intent, contrary to some of the more recent case law, can in fact only apply coherently to reckless result crimes. Second, given the differences between the threshold for liability for sober defendants and the threshold for liability for voluntarily intoxicated defendants, the current rules amount in cases of basic intent to criminalisation of the intoxication itself. If this is to be the case, the article argues that the law should take this approach openly, so that in any case where the defendant lacks mens rea as a result of voluntary intoxication (s)he should be convicted instead of a new statutory offence of 'committing the actus reus of offence X while intoxicated', which could also apply coherently to all offences.
B Bradford, A Huq, J Jackson and B Roberts, 'What price fairness when security is at stake? Police legitimacy in South Africa' (2013) Regulation and Governance [...]
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' (2013) European Journal of Criminology [...]
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.
There are at least fifteen statutes which use the term 'constitution' or its cognates to refer to the constitution of the United Kingdom (or that of England or Scotland, before the political union of these countries). Of these fifteen pieces of legislation, two date back to the 17th century, one was enacted in the 18th century, another in the 19th century, and one more between 1900 and 1995. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books. In this article, I categorise these statutory references to the British constitution, and point to some important legal and constitutional implications of such references.
P P Craig, '‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence ' (2013) 9 European Public Law 503