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Recent (2015) and Forthcoming Journal Articles

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2015

S Douglas-Scott, 'A UK exit from the EU: the end of the United Kingdom or a new constitutional dawn?' (2015) Cambridge Journal of International and Comparative Law

Caroline Miles and R Condry, 'Adolescent to parent violence: the police response to parents reporting violence from their children' (2015) Policing and Society (forthcoming) [...]

Adolescent to parent violence is a form of family violence that is currently unrecognised in official discourse and statistics, despite increasing evidence that it is a significant problem. The data underpinning this article derive from the first large-scale study in the UK specifically exploring adolescent to parent violence, which examined the extent and nature of this problem; families’ experiences; and how reports of adolescent to parent violence are responded to within and outside of the criminal justice system. The article draws upon analysis of 100 police case files and interviews with 20 police officers to critically examine current police policy and practice in this emerging area of criminal justice. The findings highlight a high level of police discretion leading to inconsistency in how reported incidents are managed and the challenges encountered by police in responding to this complex form of family violence. The findings are considered within a broader domestic violence policy framework and we conclude by considering how police policy and practice might be developed in this area to meet the complex needs of families experiencing adolescent to parent violence.


J Edwards, 'An Instrumental Legal Moralism' (2015) 3 Oxford Studies in Philosophy of Law (forthcoming)

J Goudkamp, 'Apportionment of Damages for Contributory Negligence: A Fixed or Discretionary Approach?' (2015) Legal Studies (forthcoming) [...]

In most of the common law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This article draws attention to the fact that, although most common law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This article classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation, and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.


R Bird and Natasha Choolhun, 'Are you (digitally) competent?' (2015) Internet Newsletter for Lawyers [...]

The Solicitors Regulation Authority is undergoing a programme of education and training reform, “Training for Tomorrow”, following the Legal and Education Training Review (LETR). As part of the reforms the SRA are developing a competence statement for solicitors to inform consumers, assist legal education providers in developing courses and allow solicitors to reflect on their own professional development throughout the course of their careers.


Jeffrey N. Gordon and WG Ringe, 'Bank Resolution in Europe: The Unfinished Agenda of Structural Reform' (2015) ECGI Working Paper 282/2015 [...]

This paper argues that the work of the European Banking Union remains incomplete in one important respect, the structural re-organization of large European financial firms that would make “resolution” of a systemically important financial firm a credible alternative to bail-out or some other sort of taxpayer assistance. A holding company structure in which the public parent holds unsecured term debt sufficient to cover losses at an operating financial subsidiary would facilitate a “Single Point of Entry” resolution procedure that would minimize knock-on effects from the failure of a systemically important financial institution. Resolution through such a structure would minimize run risk from short term creditors and minimize destructive ring-fencing by national regulators. Although structural reform in the EU could be achieved by supervisory implementation of the “living wills” requirement for effective resolution or irresistible incentives through capital charges, it would be best obtained through addition to the EU’s Proposed Structural Measures Regulation now under consideration.


J Gordon and WG Ringe, 'Bank Resolution in the European Banking Union: A Transatlantic Perspective on What it Would Take' (2015) 115 Columbia Law Review 1297 [...]

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.


WG Ringe, 'Capital Markets Union for Europe - A Political Message to the UK' (2015) 9 Law & Financial Markets Review 5 [...]

The economic case for the recent proposal on a European ‘Capital Markets Union’ is obvious. However, the name is more symbolic than real, and the substance falls short of proposing a fully unified capital market across the EU. This short paper identifies several shortcomings of the project. In particular, the unclear methodological approach of the CMU project, and the lack of a clear commitment to a European enforcement or institutional mechanism weaken the benefits of the overall concept. Instead, the merits of the proposal lie in its political importance: above all, the CMU project is an attempt to repair the relationship with the UK and to win back support from the City of London for the European Single Market. As such, the project as a whole is certainly laudable, and it might turn out to be the right step at the right time.


WG Ringe, 'Changing Law and Ownership Patterns in Germany: Corporate Governance and the Erosion of Deutschland AG' (2015) 63 American Journal of Comparative Law 493 [...]

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.


ISBN: 0002-919x

TAO Endicott, 'Comity among Authorities' (2015) Current Legal Problems 1 [...]

DOI: 10.1093/clp/cuv004

An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the principle of comity: that the authority passing judgment (I will call it the 'second authority') ought to act in a way that respects the capacity of the other (the 'first authority') to carry out its own role. A duty of comity is not a duty to trust the first authority. It does not require the second authority to approve of the decisions of the first. It arises not from the rights of the first authority, nor even from the first authority's success in carrying out its duties, but from the second authority's duties to those whom the second authority serves, and to those whom the first authority serves. The reasons for the principle of comity support two more principles: that the second authority has limited responsibility for justice, and that the second authority has no general duty to agree with the judgment of the first authority.


E Antrobus, B Bradford, K Murphy and E Sergeant, 'Community norms, procedural justice and the public’s perceptions of police legitimacy' (2015) 31 Journal of Contemporary Criminal Justice 151 [...]

DOI: 10.1177/1043986214568840

A significant body of research has demonstrated the importance of procedurally fair policing in fostering citizens’ feelings of obligation to obey the police. A handful of recent studies have begun to explore the role of community processes within this relationship. They show perceptions of police use of procedural justice, and their consequences can vary according to community context. The present study utilizes data collected within a randomized controlled trial of procedural justice in policing, the Queensland Community Engagement Trial (QCET). We find perceived community norms about obeying the police are strongly associated with individuals’ own feelings of obligation to obey police. Moreover, this relationship holds net of individual assessments of police. Second, procedurally just policing appears to have a greater effect on the obligation to obey police for those who believe others in their community feel less obligated to obey the police. Results demonstrate that one’s ties to the community can therefore moderate the associations between procedural justice and the obligation to obey police. The findings are interpreted within a social-psychological framework.


N. W. Barber, 'Constitutionalism: Negative and Positive' (2015) 38 Dublin University Law Journal (forthcoming)

J J W Herring, 'Contact Sport: Family Courts' Treatment of Wilful Teenagers' (2015) New Law Journal 11 [...]

Discussion of contact cases where children refuse to see parents


J Edelman , J Goudkamp and S Degeling, 'Contemporary Problems in the Law of Contract' (2015) 40 Australian Bar Review 1

K van Zwieten, 'Corporate Rescue in India: The Influence of the Courts' (2015) Journal of Corporate Law Studies (forthcoming) [...]

Abstract: India is poised for significant reform to its corporate insolvency laws, including the introduction of a new rescue procedure. The reforms follow two decades of sustained criticism of the law, critics complaining of lengthy delays and a range of related costs in the disposal of proceedings. This article focuses on the most notorious of India’s existing insolvency procedures, a corporate rescue procedure established under the Sick Industrial Companies (Special Provisions) Act 1985. On the eve of its repeal, the article presents the results of an investigation into how this Act operated over time, and why. Its central contribution is to report new evidence of the influence of the courts on the operation of the Act. The article reveals how key provisions of the Act were interpreted and reinterpreted by judges in attempts to rescue companies destined for liquidation, and to protect some of their stakeholders (especially employees) in the interim. The evidence of these innovations offers a new and compelling explanation for why the rescue procedure became slow and costly. Acknowledging and understanding the influence of the courts on the operation of this procedure may help to guard against India’s new corporate rescue procedure suffering a similar fate.


WG Ringe, 'Dead Man or Dead Hand? New Poison Pills in Debt' (2015) Oxford Legal Studies Research Paper 45/2015 [...]

“Poison puts” are contractual clauses in debt arrangements that work similar to poison pills – they are triggered on a certain pre-defined moment and allow the debtholder to claim repayment of the debt, much to the disadvantage of the company. This provides a chilling effect on shareholder activism and potential takeover bids. Recent Delaware case-law suggests that the most extreme, ‘dead hand’ version of such clauses might violate directors’ fiduciary duties. This short article develops some initial thoughts on the phenomenon and evaluates how the new poison pills would be handled under European takeover and corporate law.


Nicola Palmer, Briony Jones and J Viebach, 'Editorial Note: Ways of Knowing Atrocity: A methodological enquiry into the formulation, implementation and assessment of transitional justice' (2015) Canadian Jounral of Law and Society (forthcoming)

S MacQueen and B Bradford, 'Enhancing public trust and police legitimacy during road traffic encounters: results from a randomized controlled trial in Scotland' (2015) Journal of Experimental Criminology [...]

DOI: 10.1007/s11292-015-9240-0

Objectives This paper reports results from the Scottish Community Engagement Trial (ScotCET), devised to replicate the Queensland Community Trial (QCET). ScotCET was an RCT that tested the effects of ‘procedurally just’ policing on public trust and police legitimacy Methods A block-randomised (matched pairs) design, with pretest and posttest measures, was implemented in the context of road policing in Scotland. Participants were drivers stopped by police in December and January 2013/14 as part of Police Scotland’s ‘Festive Road Safety Campaign’. The experimental intervention comprised a checklist of key messages to include in routine roadside vehicle stops, and a leaflet for officers to give to drivers. Analysis proceeds via random effects regression models predicting latent variable measures of trust, satisfaction and legitimacy Results Contrary to expectations, the intervention did not improve trust and legitimacy; rather, trust in the officers who made the stop, and satisfaction with their conduct, fell in the test sites, relative to the controls, after implementation of the intervention. The intervention had no significant effect on general trust in the police, nor on police legitimacy Conclusions Results demonstrate the difficulty in translating experimental interventions across policing contexts, and challenge the notion that public perceptions may be improved through a simple, additive approach to the delivery and communication of procedural justice.


C. Albertyn and S Fredman, 'Equality beyond dignity: Multi-dimensional equality and Justice Langa’s judgments' [2015] Acta Juridica 430 [...]

The early jurisprudence of the South African Constitutional Court effectively placed dignity at the centre of the equality right. This elevation of a largely undefined, and abstract notion of dignity as human worth, and the apparent displacement of other purposes, especially that of remedying systemic disadvantage, generated significant debate about the definition and application of the right. In this article we argue for a multi-dimensional idea of equality which enables a fuller exploration of the complexity of the harms and injuries that underlie equality claims, and greater elucidation of the multiple principles and purposes of equality. In particular, we argue that substantive equality should be understood in terms of a four dimensional framework, which aims at addressing stigma, stereotyping, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. We suggest that this approach enables a better exploration of the different principles that underlie equality and, crucially, an open discussion of complementarities and tensions between them. We explore the benefits of this multi-dimensional approach through an evaluation of three equality cases in which Justice Langa delivered the leading judgment: City Council of Pretoria v Walker, Bhe v Magistrate Khayalitsha and Pillay v MEC for Education, Kwazulu-Natal. We engage Justice Langa’s philosophy on equality as it emerges from these judgments, and evaluate the extent to which we can develop from this a more fully-fledged understanding of equality and its underlying values in the South African Constitution.


ISBN: 978 148510 877 1

K Laird, 'Filling a lacuna: the care worker and care provider offences in the Criminal Justice and Courts Act 2015 ' (2015) Statute Law Review (forthcoming)

S Fredman, 'Foreign fads or fashions: the role of comparativism in human rights law' (2015) 64 International and Comparative Law Quarterly 631 [...]

DOI: http://dx.doi.org/10.1017/S0020589315000275

Although there is a broadly similar core of human rights law and courts in different jurisdictions face strikingly similar questions, the use of comparative law in the human rights context remains controversial. Reference to foreign human rights materials is regarded as undemocratic, selective and misleading. Rather than searching for a single ‘right answer’, or expecting convergence, this article addresses these challenges from a deliberative perspective. A deliberative approach requires decisions to be taken on the basis of reasons which are thorough and persuasive. Even where outcomes diverge, there need to be good reasons, whether textual, institutional, or cultural. Comparative materials constitute an important contribution to this process. Part I critically assesses various alternative potential functions of comparative law. Part II develops the deliberative model while Part III addresses the main critiques of comparative law. Part IV tests the deliberative approach against a selection of cases dealing with two particularly challenging issues confronted by courts in different jurisdictions, namely the use of substantive principles such as dignity, and the application of justification or limitation clauses in the context of prisoners' right to vote. Case law is drawn from countries which already cite each other and which have broadly similar institutional frameworks: the USA, Canada, South Africa, India, Australia, the UK, New Zealand and the European Court of Human Rights to the extent that it too considers comparative law.


ISBN: 0020-5893

I Loader, B Goold and A Thumala, 'Grudge Spending: The Interplay between Markets and Culture in the Purchase of Security' (2015) 65 The Sociological Review [...]

In the paper, we use data from an English study of security consumption, and recent work in the cultural sociology of markets, to illustrate the way in which moral and social commitments shape and often constrain decisions about how, or indeed whether, individuals and organizations enter markets for protection. Three main claims are proffered. We suggest, firstly, that the purchase of security commodities is a mundane, non-conspicuous mode of consumption that typically exists outside of the paraphernalia of consumer culture – a form of grudge spending. Secondly, we demonstrate that security consumption is weighed against other commitments that individuals and organizations have and is often kept in check by these competing considerations. We find, thirdly, that the prospect of consuming security prompts people to consider the relations that obtain between security objects and other things that they morally or aesthetically value, and to reflect on what the buying and selling of security signals about the condition and likely futures of their society. These points are illustrated using the examples of organisational consumption and gated communities. In respect of each case, we tease out the evaluative judgments that condition and constrain the purchase of security amongst organisations and individuals and argue that they open up some important but neglected questions to do with the moral economy of security.


S J Douglas, 'How to Reform Section 62 of the Law of Property Act 1925' [2015] 79 Conv 13

A Briggs, 'Judicial assistance still in need of judicial assistance' (2015) May 2015 (informa) Lloyd's Maritime and Commercial Law Quarterly 179 [...]

Analysis of the private international law (common law rules) of cross-border assistance in insolvency cases, with particular reference to two recent cases in the Privy Council.


ISBN: 0306 2945

S Steel, 'Justifying Exceptions to Proof of Causation in Tort Law' (2015) Modern Law Review (forthcoming)

D Awrey, 'Law and Finance in the Chinese Shadow Banking System' (2015) 48 Cornell International Law Journal [forthcoming]

S Douglas-Scott, 'Law, Justice and the pervasive power of the image' (2015) No 2 Journal of Law and Social Research

F Pirie, 'Legalism and the Anthropology of Law' (2015) 36 Recht der Werklijkeid 99

J Prassl, 'Les seuils sociaux en Europe: Royaume-Uni' (2015) Revue de Droit du Travail 215

A Ashworth, 'Manslaughter by Omission and the Rule of Law' [2015] Criminal Law Review 563 [...]

A critique of the law of manslaughter in cases of omission, demonstrating its incompatibility with rule-of-law ideals.


ISBN: 0011-135X

B Bradford, K Hohl, J Jackson and S MacQueen, 'Obeying the rules of the road' (2015) 31 Journal of Contemporary Criminal Justice 171 [...]

DOI: 10.1177/1043986214568833

Why do people comply with traffic laws and regulations? Road traffic policing tends to be premised on the idea that people comply when they are presented with a credible risk of sanction in the event of non-compliance. Such an instrumental model of compliance contrasts with the normative account offered by procedural justice theory, in which compliance is encouraged by legitimate legal authorities. Comparing these two accounts, we find evidence that both instrumental and normative factors explain variance in motorists’ self-reported propensity to offend. Extending the standard procedural justice account, we also find that it is social identity—not legitimacy—that forms the “bridge” linking procedural fairness and compliance, at least according to a definition of legitimacy that combines felt obligation and moral endorsement. Fair treatment at the hands of police officers seems to enhance identification with the social group the police represent, and in turn, identification seems to motivate adherence to rules (laws) governing social behavior. These findings have implications not only for understandings of legal compliance but also for our understanding of why procedural justice motivates compliance and the role of procedural justice in promoting social cohesion.


I Goold and Hannah Maslen, 'Obliging Surgeons to Enhance: Negligence Liability for Uncorrected Fatigue and Problems with Proving Causation' (2015) 23 Medical Law Review 427

J Dickson, 'Ours is a Broad Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry' (2015) 6 Jurisprudence 207 [...]

Questions concerning the aims and aspirations, criteria of success and even proper delineation of the subject matter of theories of law, have given rise to some of the most intractable and contentious debates in contemporary legal philosophy. In this article, I outline my vision of the remit and character of legal philosophy, with particular emphasis on the methodological approach with which I am most concerned in my own work, and which I refer to here as ‘indirectly evaluative legal philosophy’ (IELP). I do so partly in response to some vehement criticisms of, and, in my view, significant mischaracterisations of, IELP and cognate approaches to theorising about law, which feature in some recent jurisprudential debates. My position, which I am in the process of developing in depth in a new monograph, supports a pluralistic methodological outlook which emphasises disciplinary and sub-disciplinary complementarity as an alternative to the febrile adversarialism sometimes afflicting our discipline. For, in my view, ours is a broad church, and all theoretical accounts able to illuminate and help us understand any aspect of law’s variegated and complex character are (to invoke a Scottish saying) welcome in the main body o’ the kirk.


K Laird, 'Parts 5 and 6 of the Serious Crime Act 2015 – more than mere miscellany' (2015) Crim LR (forthcoming)

R Hood and C Hoyle, 'Progress Made for Worldwide Abolition of Death Penalty' (2015) 6 International Affairs Forum 8

D Gangjee, 'Proving Provenance and Authenticating Authenticity? Geographical Indications Certification and its Ambiguities' (2015) World Development (forthcoming) [...]

With their historic links to a specific region, GIs are increasingly valued for their endogenous development potential. But precisely what does legal recognition as a GI guarantee? Drawing on the EU's registration system as a model, this paper investigates the certification of provenance and authenticity by public authorities. Recent empirical findings reveal that considerable flexibility exists within the certification process, which permits the loosening of linkages to a region and dilutes the certification guarantee. The present over-reliance on the system’s ability to certify could be usefully remedied if greater attention is paid to the individual product specification design.


AYK Lee, 'Public Wrongs and the Criminal Law' (2015) 9 Criminal Law and Philosophy 155 [...]

DOI: 10.1007/s11572-013-9231-z

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.


L Enriques and D Zetzsche, 'Quack Corporate Governance, Round III? Bank Board Regulation Under the New European Capital Requirement Directive ' (2015) Theoretical Inquiries in Law 211 [...]

After a crisis, broad and sweeping reforms are enacted to restore trust. Following the 2007-2008 Great Financial Crisis, the European Union has engaged in an ambitious overhaul of banking regulation. One of its centrepieces, the 2013 Fourth Capital Requirements Directive (CRD IV), tackles, amongst other things, the perceived pre-crisis failings in the governance of banks. We focus on the provisions that are aimed at reshaping bank boards’ composition, functioning, and their members’ liabilities, and argue that they are unlikely to improve bank boards’ effectiveness or prevent excessive risk-taking. We criticize some of them for mandating solutions, like board diversity and the separation of chairman and CEO, that may be good for some banks but are bad for others, in the absence of any convincing argument that their overall effect is positive. We also criticize enhanced board liability by showing that it may increase the risk of herd behaviour and lead to more serious harm in the event of managerial mistakes. We also highlight that the push towards unfriendly boards may negatively affect board dynamics and make boards as dysfunctional as when the CEO dominates them. We further argue that limits on directorships and diversity requirements will worsen the shortage of bank directors, while requirements for induction and training and board evaluation exercises will more likely lead to tick-the-box exercises than under the current situation in which they are just best practices. We conclude that European policymakers and supervisors should avoid using a heavy hand, respectively, when issuing rules implementing CRD IV provisions with regard to bank boards and when enforcing them.


ISBN: 1565-3404

S J Douglas, 'Reforming Implied Easements' (2015) 131 LQR 251

Laura Hoyano, 'Reforming the Adversarial Trial for Vulnerable Witnesses and Defendants' (2015) Criminal Law Review Sweet & Maxwell 105 [...]

It has become fashionable to decry the adversarial trial as being incapable of achieving justice in trials involving vulnerable witnesses. Such critics usually ignore the plight of vulnerable defendants, and the very significant advances since 2009 in the courts’ management of child witnesses. This article evaluates the radical proposals which these critics have recently advanced as solutions: excluding counsel from cross-examination; concurrent cross-examination with ABE investigatory interviews; requiring prior approval for every question in cross-examination; and allowing independent legal representation for the complainant with full participation in the trial. It contends that these proposals would bring with them serious difficulties, especially for equality of arms and effective participation in the trial by the defendant. It sets out an alternative package of more modest proposals which would both preserve the adversarial mode of trial and protect witnesses: ‘ticketing’ of all advocates; safeguarders for child witnesses and defendants; the establishment of Young Witness Advocacy Centres providing wraparound support; meaningful preparation of witnesses for cross-examination; treating vulnerable witnesses and defendants as individuals, not checklists; the use of admissions to reduce or eliminate cross-examination on ancillary topics; legal representation for witnesses in pre-trial applications for third party disclosure and cross-examination on previous sexual experience, and giving vulnerable defendants access to the full panoply of special measures, including Registered Intermediaries, if necessary throughout the trial.


L Enriques, 'Related Party Transactions: Policy Options and Real-World Challenges (with a Critique of the European Commission Proposal) ' (2015) 16 European Business Organization Law Review 1 [...]

This paper provides a legal and policy analysis of transactions between a corporation and one of its ‘related parties’. It first highlights the reasons why related party transactions (RPTs) are so common around the world. Next, it better identifies the phenomenon as a specific form of potentially abusive behaviour by dominant shareholders and managers, i.e., as an instrument for tunneling, asking why many jurisdictions provide for specific regulations on RPTs in addition to general rules or standards on tunneling. Then, it describes the main legal tools available to prevent corporate agents from diverting value from the corporation via RPTs. Further, it provides a (partially) critical assessment of the measures put forth by the European Commission to harmonise rules on RPTs within the EU, based on the previous analysis of individual legal tools. Finally, it shows that no regulation of RPTs (or tunneling) can succeed in preventing minority shareholder expropriation in the absence of sophisticated enforcement actors (specialised courts and/or active and committed securities regulators) and non-legal supporting institutions, like independent financial media and anti-tunneling social norms.


ISBN: 1566-7529

P S Davies, 'Remedies for Breach of Trust' (2015) 78 MLR 681

E Fisher, Pasky Pascual and Wendy Wagner, 'Rethinking Judicial Review of Expert Agencies' (2015) 93 Texas Law Review 1681 [...]

The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora's Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts' review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency's (EPA's) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts' review of scientific challenges to the EPA's NAAQS over time that tracked the Agency's own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts' own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.


ISBN: 0040-4411

S Green and A Bogg, 'Rights are not just for the virtuous: what Hounga means for the illegality defence in the discrimination torts.' (2015) Industrial Law Journal (forthcoming)

P S Davies, 'Section 61 of the Trustee Act 1925: deus ex machina?' [2015] Conv (forthcoming)

J Roberts and B Bradford, 'Sentence Reductions for a Guilty Plea in England and Wales: New Empirical Evidence' (2015) 12 Journal of Empirical Legal Studies 187 [...]

DOI: 10.1111/jels.12069

Although most jurisdictions award sentence discounts to defendants who plead guilty, the exact magnitude of reductions awarded, and the factors determining the levels of reduction, remain underresearched. In addition, the limited research conducted to date in England and Wales has drawn on data sources that prevent the researcher from excluding the effect of factors correlated with the plea. This article reports original findings from a new sentencing database that draws its data directly from the sentencing judge. This jurisdiction is interesting also because courts must follow a sentencing guideline that contains specific recommendations regarding the appropriate discount. Analyses reveal that the plea-based discounts are more modest than reported by previous researchers. In addition, the data reveal a significant degree of judicial compliance with the guideline, although some departures from the guideline are identified and discussed.


J Roberts and Ben Bradford, 'Sentence Reductions for a Guilty Plea: New Empirical Evidence from England and Wales ' (2015) Journal of Empirical Legal Studies (forthcoming)

A Tzanakopoulos, 'Sharing Responsibility for UN Targeted Sanctions' (2015) 12 International Organisations Law Review (forthcoming)

J Vidmar, 'The Annexation of Crimea and the Boundaries of the Will of the People ' (2015) German Law Journal (forthcoming)

J Vidmar, 'The Concept of the State and its Right of Existence' (2015) Cambridge Journal of International and Comparative Law (forthcoming)

J Goudkamp, 'The Doctrine of Illegality in English Private Law' (2015) 6 Supreme Court Yearbook

P P Craig, 'The Financial Crisis, the European Union Institutional Order and Constitutional Responsibility' (2015) 22 Indiana Journal of Global Legal Studies 243

J Goudkamp, 'The Insurance Law Legacy of Fairchild' (2015) Lloyd's Maritime and Commercial Law Quarterly

D Akande and L. Hill-Cawthorne, 'The Lieber Code and the Regulation of Civil War in International Law' (2015) 53 Columbia Journal of Transnational Law 638 [...]

In this paper, we consider one particularly interesting feature of the Lieber Code, which is the fact that it was drawn up by the U.S. Government to regulate the conduct of its armed forces in a civil war. In so doing, we hope to explore the extent to which there maybe links between the Lieber Code and the contemporary regulation of non-international armed conflicts. In particular, we explore some similarities and contrasts between the views on the regulation of civil war that existed at the time of the drafting of the Lieber Code and the position that exists today.


D Awrey, 'The Limits of Private Ordering Within Modern Financial Markets' (2015) 34:1 Review of Banking and Financial Law 183

A Tzanakopoulos, 'The Right to Be Free from Economic Coercion' (2015) 4 Cambridge Journal of International and Comparative Law (forthcoming) [...]

This paper seeks to determine if there is a fundamental right of States to be free from economic coercion, against the background of international law permitting economic coercion as a means for its own implementation. After defining coercion and other cognate terms, it surveys the limits to (economic) countermeasures and (economic) sanctions, and determines that any 'sphere of economic freedom' of States is essentially a relative concept, without an irreducible core. Public International Law does not currently establish a fundamental right to be free from economic coercion--though one should probably be established.


ISBN: 2050-1706

J M Eekelaar, 'The role of the best interests principle in decisions affecting children and decisions about children ' (2015) 23 International Journal of Children’s Rights 3 [...]

In this paper I examine how courts, and some other decision-makers, go about deciding what the best interests of children (BIC) (or ‘welfare’) principle actually are. In making this examination, I draw mainly on English legal decisions, supplemented by those of Scottish courts, the European Court of Human Rights and some other jurisdictions. I also put forward an hypothesis proposing a structure for applying the principle that seems best to reflect its purpose.The hypothesis argues that the answer is that where decisions are not about specific children, but affect children indirectly, the focus of the decision-maker should be on reaching the ‘best’ solution to the issue to be decided. It is not to determine what is in the best interests of the children affected. Those interests are part of the agenda, so must be taken into account, alongside other relevant matters, and must be given ‘primary’ attention among those other matters (though certain other matters may be given similar ‘primary’ attention). However, they will only be considered in order to ascertain the effect any proposed solution to the issue has on such interests, not as part of the process of deciding what is best for the child in its current circumstances. In contrast, in the case of direct measures concerning a child or children, the hypothesis argues that the focus of the decision-maker should be on discovering a solution that has the best outcome for the child, or children. But while it is common for certain assumptions to be held about what such an outcome looks like, this process goes beyond routine applications of such assumptions by examining a range of possible outcomes. In doing this, the decision-maker demonstrates acceptance of the possibility that conformity to accepted social arrangements may not be best for this child in these circumstances, and therefore that a child’s best interests are to be assessed by criteria other than mere social conformity. Indeed, the effect of such conformity is itself subject to evaluation.


J Vidmar, 'The Use of Force and Defences under the Law of State Responsibility' (2015) New York University School of Law - Jean Monnet Working Paper Series (forthcoming)

Shona Minson and R Condry, 'The visibility of children whose mothers are being sentenced for criminal offences in the courts of England and Wales' (2015) Law in Context (forthcoming) [...]

Set within a general understanding of the judicial interpretation of mitigation, and the development of sentencing guidelines, this article presents a study exploring the visibility of children within the sentencing process, and the way in which judges in the courts of England and Wales regard dependent children as a mitigating factor in sentencing. The findings, taken from the results of an analysis of sentencing transcripts from court cases in England and Wales, indicate that the visibility of children of defendants is increased at the initial sentencing hearing if the judge requests a pre-sentence report. In appellate decisions, the children have enhanced visibility as their limited impact on mitigation at first instance usually forms part of the grounds of appeal. There is, however, divergence on a case by case basis as to their impact on mitigation. In offences where a deterrent theory of punishment underpins the sentencing guidelines, the sentences have higher starting points and judges are less able to take the personal mitigation of the defendant’s dependent children into consideration. The discussion then considers the impact of these findings on the broader debates about the punitive impact of maternal imprisonment on children, issues of secondary victimisation, vulnerable populations and Human Rights.


H Annison, B Bradford and E Grant, 'Theorizing the role of ‘the brand’ in criminal justice: The case of Integrated Offender Management' (2015) Criminology and Criminal Justice (forthcoming) [...]

DOI: 10.1177/1748895815572164

The rise of branded programmes and interventions is an important, but largely under-explored, development in criminal justice. This article draws on findings from a study of a British Integrated Offender Management (IOM) scheme to ground a broader theoretical discussion of the meaning and implications of the increasing centrality of such ‘brands’. This article focuses primarily upon the ways in which criminal justice practitioners might draw upon brands in order to (re-)construct their professional identities. Ongoing fundamental reforms of criminal justice organizations, which have tended to blur the traditionally clear distinctions between professional roles, have made this need to reinforce (and indeed reconstruct) practitioner identities ever more pressing. The article closes by considering the prospects and limitations of criminal justice brands. It is argued that while brands may play an important role in ‘ethically orienting’ relevant practitioners, there is a danger that the absence of appropriate structural underpinnings may prove to be highly counter-productive.


J Goudkamp and J Murphy, 'Tort Statutes and Tort Theories' (2015) 131 Law Quarterly Review 133 [...]

Although the legislature has made significant inroads into tort law, tort theorists have focused their attention overwhelmingly on the common law. Serious consideration has never been given to the challenges that statutory tort law poses for theories of tort law. In this article we begin to redress this omission by examining the implications of statutes for corrective justice and rights-based theories of tort law. Our central task is to determine whether these leading theories accurately explain tort law once statutory tort law is taken into account. As a precursor to this analysis, we consider whether statutes form part of tort law (some influential theorists believe or arguably believe that they do not). We contend that statutes are part of tort law and that the theories under examination fail to explain important aspects of statutory tort law. Partly because of this failure, they are not satisfactory accounts of the whole of tort law, which is often how they are presented by their proponents.


I Loader, A Thumala and B Goold, 'Tracking Devices: On the Reception of a Novel Security Good' (2015) 15 Criminology & Criminal Justice 3 [...]

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.


G Loutzenhiser, 'Transferable Personal Allowances: A Small Step in the Wrong Direction' [2015] 1 British Tax Review 110

B Bradford and A 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' (2015) 15 Criminology and Criminal Justice 23 [...]

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 S Getzler, 'Two Timing the Law' (2015) 163 University of Pennsylvania Law Review Online 355 [...]

A response to Edward B. Rock, Corporate Law Doctrine and the Legacy of American Legal Realism, 163 U. Pa. L. Rev. ___ (2015). In this paper I suggest how English lawyers evade the realist embrace of policy by projecting law "inter-temporally" — that is, allowing the law to inhabit two successive times and allowing one time state to affect the other — in order to yield legal results and ultimately effect change in the legal system itself. I assess Edward Rock’s juxtaposition of the Delaware courts’ realist approach and the formalist techniques of leading English commercial judges when dealing with some of the more difficult areas of corporate doctrine.


ISBN: 0041-9907

J Prassl and B Jones, 'Verpflichtende Außergerichtliche Vermittlungsverfahren im Englischen Arbeitsrecht: ein erster Erfahrungsbericht' (2015) 28 Zeitschrift für Konflikt-Management 36

A Kavanagh, 'What's so Weak about 'Weak-Form Review'? The Case of the UK Human Rights Act 1998' (2015) International Journal of Constitutional Law (ICON) (forthcoming)

J Dickson, 'Who’s Afraid of Transnational Legal Theory?: Dangers and Desiderata ' (2015) Transnational Legal Theory (forthcoming)

E Fisher, '‘Jurisdictional’ Facts and ‘Hot’ Facts: Legal Formalism, Legal Pluralism, and the Nature of Australian Administrative Law' (2015) 38 Melbourne University Law Review 968 [...]

This article is a study of the interrelationship between two intellectual impulses in Australian administrative law — legal formalism and legal pluralism. It concerns the operation of jurisdictional fact review in planning and environmental cases, focusing on the line of case law that led to the High Court decision in Corporation of the City of Enfield v Development Assessment Commission (2000). The analysis shows that these two intellectual impulses are closely entwined in doctrine, but each operates on a different basis of what a ‘fact’ is. Facts from a legal formalist perspective are understood as objective and hard-edged while from a legal pluralist perspective they are more likely to be conceptualised as contested and uncertain.


I Gagliardone, '“Can you hear me?” Mobile-Radio Interactions and Governance in Africa' (2015) New Media and Society (forthcoming)

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