Recent (2012–13) and Forthcoming Journal Articles
Showing 216 recent journals sorted by year, then title [change this]
A Higgins, 'A defence of qualified one way cost shifting' (2013) 32 Civil Justice Quarterly (forthcoming)
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
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.
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.
Laura Hoyano and Dr Eileen Vizard, 'Child Defendants and Neuroscience' (2013) (forthcoming) [...]
This article will explore recent developments in neuroscience which show that the normal adolescent brain does not fully develop in its capacity to appreciate consequences and assume full responsibility for conduct until many years past the age of criminal responsibility, currently 10 in England and Wales. The article will advocate that England and Wales should move to the Scottish Children's Hearing System, which offers an integrated service to offending children who are deemed to be children in need to address their offending behaviour and its root causes without criminalisation.
M Kurkchiyan, 'Civil Courts in Ukraine: a Window into Society ' (2013) Journal of Law and Society (forthcoming)
E Fisher, 'Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v EPA' (2013) 39 Law and Policy in press
De Wet and J Vidmar, 'Conflicts between International Paradigms: Hierarchy versus Systemic Integration' (2013) Global Constitutionalism (forthcoming)
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) Oxford Legal Studies Research Paper No. 34/2013 [...]
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.
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
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
A Tzanakopoulos and CJ Tams, 'Domestic Courts as Agents of Development of International Law' (2013) 26 Leiden Journal of International Law (forthcoming) [...]
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.
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.
J J W Herring, 'Forging a relational approach: Best interests or human rights?' (2013) Medical Law Internation
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.
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 (forthcoming)
Simon Whittaker, 'Identifying the Legal Costs of Operation of the Common European Sales Law' (2013) 50 Common Market Law Review 85
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 (forthcoming) [...]
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.
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.
J Rowbottom, 'Leveson, press freedom and the watchdogs' (2013) 21 Renewal 57
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 in press
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.
D P Nolan, 'Negligence and Human Rights: The Case for Separate Development' (2013) 76 Modern Law Review 286
S Wallerstein, 'Oblique Intent in English and Jewish Law' (2013) (forthcoming)
J Vidmar, 'Palestine and the Conceptual Problem of Implicit Statehood' (2013) 12 Chinese Journal of International Law 1
M Paparinskis, 'Procedural Aspects of Shared Responsibility in the International Court of Justice' (2013) 4 Journal of International Dispute Settlement (forthcoming) [...]
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.
D Sarooshi, 'Provisional Measures and Investment Treaty Arbitration' (2013) 29 Arbitration International
M Köpcke Tinturé, 'Psychological Harm and the English Criminal Law' (2013) (forthcoming)
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.
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.
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.
R George and O Cominetti, 'Relocation in English Law: Thorpe LJ’s Contribution and the Future'  International Family Law forthcoming
K Bullock and R Condry, 'Responding to denial, minimization and blame in correctional settings: The ‘real world’ implications of offender neutralizations' (2013) European Journal of Criminology (forthcoming)
J Vidmar, 'Rethinking Jus Cogens after Germany v. Italy: Back to Article 53?' (2013) 60 Netherlands International Law Review 1
J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues' (2013) Law and Contemporary Problems
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
J Pila, 'The European Patent: An Old and Vexing Problem' (2013) 62(4) International & Comparative Law Quarterly
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 (forthcoming) [...]
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 repudiatrory 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.
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.
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.
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
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.
J Pila, '"Sewing the Fly Buttons on the Statute:" Employee Inventions and the Employment Context' (2012) 32 Oxford Journal of Legal Studies 1-31 [...]
A preprint of this article is available at http://ssrn.com/abstract=1927628
D Leczykiewicz, ''Where Angels Fear to Tread': The EU Law of Remedies and Codification of European Private Law' (2012) 8 European Review of Contract Law 47-81
EA Stanko, J Jackson, B Bradford and K Hohl, 'A golden thread, a presence amongst uniforms, and a good deal of data: studying public confidence in the London Metropolitan Police' (2012) 22 Policing and Society [...]
This article discusses how four authors came together to create – inside a police service – a specific approach to public ‘trust and confidence’. We have had many theoretical debates – about the nature of public understanding of policing, police culture, procedural justice and public trust in public institutions in a democracy. Also, while we continue to debate, we wade through mounds of data gathered routinely through the Metropolitan Police's own Public Attitude Survey. Reporting internally on a quarterly basis, the survey challenges police colleagues to think about how the police must demonstrate to citizens their trustworthiness to act fairly, effectively and with the best interests of communities at heart. Our experience of moulding the discourse about public confidence inside the largest police service in the UK suggests that police culture itself has been challenged by the accountability that lies at the heart of trust and trustworthiness. We have been asked by the editors of this issue to share with readers how we have come to create a contribution to understanding what drives confidence in policing, which is now a routine part of its performance management.
J Morgan, 'A mare's nest? The Jockey Club and judicial review of sports governing bodies' (2012) 12 Legal Information Management 102
A Bogg and K D Ewing, 'A Muted Voice at Work? Collective Bargaining in the Supreme Court of Canada' (2012) Comparative Labor Law and Policy Journal (forthcoming)
P Eleftheriadis, 'A Right to Health Care' (2012) 40 Journal of Law, Medicine and Ethics 268
N Gur, 'Actions, Attitudes, and the Obligation to Obey the Law' (2012) Journal of Political Philosophy (published online, print forthcoming)
R Condry and C Miles, 'Adolescent to parent violence and youth justice in England and Wales' (2012) Social Policy & Society (forthcoming)
R Condry and C Miles, 'Adolescent to Parent Violence and Youth Justice in England and Wales' (2012) 11 Social Policy and Society 241
S Vogenauer and R Zimmermann, 'Alan Rodger: Gelehrter auf dem Richterstuhl' (2012) 20 Zeitschrift für Europäisches Privatrecht 305-14 [...]
An obituary of Alan Ferguson Rodger, Lord Rodger of Earlsferry, with a focus on his scholarly achievements.
J Gardner, 'Amartya Sen's The Idea of Justice' (2012) 6 Journal of Law, Philosophy, and Culture (forthcoming) [...]
An extended critical notice of Amartya Sen's book The Idea of Justice.
This article will argue that although, historically, religious minorities were the primary trigger for the institutionalization of the international framework of minority rights, they have long since been sidelined from its protections. This sidelining is evident in a variety of international human rights norms and mechanisms, the focus below being on the jurisprudence of the UN Human Rights Committee. The article offers a number of explanations for this diversion of religious minorities away from the international minority rights regime. It also argues for a cautious reintegration of religious minorities within the minority rights regime after having sought understanding with regard to some issues of concern.
ISBN: ISSN 2047-0770
J J W Herring, 'Breaking the chain' (2012) New Law Journal 705 [...]
A discussion of financial orders on dissolution of civil partnerships
S Fredman, 'Breaking the Mold: Equality as a Proactive Duty ' (2012) 60 American Journal of Comparative Law 263 [...]
Despite increasingly sophisticated antidiscrimination laws, dis- crimination and inequality have proved remarkably resilient. This prompts questions about the limits of law’s ability to achieve social change. One way forward is to fashion new legal tools, which impose duties to promote or achieve equality, rather than focusing on individual rights against specific perpetrators. In the past decade in Britain, such fourth generation equality laws have been developed in a distinctive format, requiring the decision-maker to “have due regard” to equality, rather than taking action to achieve such objectives. Thisstandard has triggered a spate of judicial review cases, particularly in response to austerity measures imposing deep budgetary cuts on disadvantaged groups. This Paper’s aims are two-fold. The first is to examine the judicial approach to the due regard standard in the light of recent regulatory theory. Do courts consider the due regard standard as a signal for deference, or can it be understood as an example of “reflexive law,” facilitating deliberative decision-making rather than imposing external standards likely to meet with resistance from the regulated body? The Paper concludes that courts have struggled to deal with the regulatory challenges presented by the “due regard” standard, wavering between appropriate and inappropriate intervention. The second aim is an analysis of whether a deliberative standard is appropriate in the equality context. The record of judicial review cases demonstrates that such a standard risks legitimating or simply reconfiguring existing inequalities.
Brian Simpson's critique of Herbert Hart's The Concept of Law confronts abstract attempts to analyse law using the tools of linguistic philosophy with Simpson's preferred approach of dense historical narrative which strives to reconstruct the mentalities of past legal actors. Simpson's approach can be seen as a species of 'thick description' that ultimately shares much with the intellectual world of linguistic philosophy that he assails. Simpson's quarrel with Hart can thus be redrawn as a quarrel between two variant forms of British empiricism; Simpson's purposes are not so radically different to Hart's as he claims. The main difference is that Simpson relies on a shared (and often parodic) understanding with his audience of the nuances of common-law culture, whilst Hart is more interested in how linguistic usage common to contemporary lawyers can reveal general qualities of law. These are not rival enterprises.
I Loader and S Percy, 'Bringing the ‘Outside’ In and the ‘Inside’ Out: Crossing the Criminology/IR Divide' (2012) 13 Global Crime 213
N.Choolhun and R Bird, 'British and Irish Association of Law Librarians (BIALL) Legal Information Literacy Statement. ' (2012) 6 Journal of Information Literacy 132 [...]
This report on the BIALL legal information literacy (IL) project provides the background on why the project came into being and how it was supported.
C Axon and others, 'Building Communities: Reducing Energy Use in Tenanted Commercial Property' (2012) 40 Building Research and Information 461 [...]
Reducing energy use in tenanted commercial property requires greater understanding of ’buildings as communities’. Tenanted commercial properties represent: (1) the divergent communities that share specific buildings and (2) the organisational communities represented by multi-site landlord and tenant companies. In any particular tenanted space the opportunity for environmental change is mediated (hindered or enabled) through the lease. This discussion draws on theoretical and practical understandings of (i) the socio-legal relationships of landlords, tenants and their advisors; (ii) the real performance of engineering building services strategies to improve energy efficiency; (iii) how organisational cultures affect the ability of the sector to engage with energy efficiency strategies; and (iv) the financial and economic basis of the relationship between owners and occupiers. The transformational complexity stems from: (i) the variety of commercial building stock; (ii) the number of stakeholders (solicitors, investors, developers, agents, owners, tenants and facilities managers); (iii) the fragmentation within the communities of practice; and (iv) leasehold structures and language. An agenda is proposed for truly interdisciplinary research that brings together both the physical and social sciences of energy use in buildings so that technological solutions are made effective by an understanding of the way that buildings are used and communities behave.
A Ezrachi and Koen de Jong, 'Buyer Power, Private Labels and the Welfare Consequences of Quality Erosion' (2012) European Competition Law Review [...]
The paper explores the effects buyer power may have on product quality. It argues that, at times, excessive pressure on input price will trigger direct welfare costs to consumers in the form of disguised inferior products. To illustrate quality erosion, the discussion focuses on the unique area of private labels and the relationship between the powerful buyer and its private-label supplier.
A Ezrachi, 'Buying Alliances and Input Price Fixing – In Search of a European Enforcement Standard ' (2012) Journal of Competition Law & Economics [...]
This paper considers the welfare implications of input price fixing and the enforcement standard to be applied to these arrangements. It explores the way in which European competition law approaches input price fixing, the scope of the object-based approach and the instances in which effects-based analysis may be used in the appraisal. In doing so, the paper sets to clarify the legal approach to price fixing of procured input. It outlines a possible benchmark for the assessment of input price fixing, with the aim of sharpening the dividing line between instances which restrict competition by object, and those which necessitate consideration of effects.
A Myhill and B Bradford, 'Can police enhance public confidence by improving quality of service? Results from two surveys in England and Wales' (2012) 22 Policing and Society [...]
Public opinions of the police have been a fixture at the top of the policy agenda in England and Wales in recent years, with successive governments stating they wish to see improvements in ï¿½trust and confidenceï¿½. But significant doubts remain as to how this might be done, and even if it is possible for police to enhance public confidence in any straightforward way. Indeed, it often seems that it is much easier for police to damage public opinion than to improve it. This paper reports findings from two surveys on contact between the public and the police conducted in England and Wales. First, panel data are used to examine the issue of ï¿½asymmetryï¿½ in the relationship between satisfaction with police contacts and wider public confidence in the police. Negative pre-existing opinions of the police are found to be predictive of negatively received contact, while positive views do not predict well-received contact. Yet, single contacts, both negative and positive, are predictive of subsequent confidence in the police. Second, British Crime Survey data are used to investigate what ï¿½drivesï¿½ satisfaction among crime victims. Personal treatment appears to be valued over criminal justice outcomes, providing support for process-based policing models. It appears that fears about an absolute asymmetry in the effect of contact on confidence may be overstated, and that improving the way officers handle encounters might lead to enhanced trust and confidence.
D Awrey, 'Complexity, Innovation and the Regulation of Modern Financial Markets' (2012) 2:2 Harvard Business Law Review 235
J Vidmar, 'Conceptualizing Declarations of Independence in International Law' (2012) Oxford Journal of Legal Studies 153
D Erdos, 'Constructing the Labyrinth: The impact of data protection on the development of "ethical" regulation in social science' (2012) 15 Information Communications and Society 104 [...]
Through a historical examination of the UK case over the past 40 years, this article argues that, although not drafted with such activities specifically in mind, the growth of legal initiatives protecting personal information have exerted a powerful and under-recognized impact on how social science is ‘ethically’ regulated. This impact has been both direct and indirect. At an indirect level, data protection law has encouraged the development of ‘self-regulation’ by learned societies, research institutions and funding bodies including, most importantly, the recent expansion of the remit of Research Ethics Committees within UK universities. Additionally, interpretations of the 1984 and, even more so, 1998 Data Protection Acts have resulted in the direct imposition by Universities as data controllers of key limitations on research projects. Thus, the infiltration into social science of governance models developed in medical research does not constitute the only important factor in explaining the increase, and shape, of regulation in this area. Legal changes have also been critical. In sum, data protection has helped fuel a radical shift away from a liberal regime based on a high valuation of individual academic autonomy to a much more constrained one where academics are often placed in a formally subordinated position vis-à-vis their institutions and subject to a labyrinth of restrictions and controls.
It is a contentious question whether a profit made by a fiduciary in breach of duty is held by him on trust for his principal from the moment of its receipt, or whether the false fiduciary is only liable to be ordered by a court to pay over to the principal the amount of his gain. The argument made in this article is that the reasons for the finding by some courts of an immediate trust are unconvincing, and that the recent refusal of the English courts to do so is to be applauded.
C. Hodges, I Benöhr and N. Creutzfeldt-Banda, 'Consumer-to-Business Dispute Resolution' (2012) ERA Forum Journal of the Academy of European Law 199–225
J Gardner, 'Corrective Justice, Corrected' (2012) 12 Diritto & Questioni Pubbliche 9
C Costello, 'Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored ' (2012) Human Rights Law Review 287
R Taylor and Laura Hoyano, 'Criminal Child Maltreatment: the Case for Reform' (2012) 2012 Sweet & Maxwell, Criminal Law Review 871 [...]
The current offence of child cruelty in the Children and Young Persons Act 1933 (CYPA) originates in 1868. This article contends that it is not fit for its purpose, particularly given new understanding of the neurological and developmental impairments inflicted by neglect and emotional abuse. It should be replaced by a comprehensive maltreatment offence which is comprehensible to criminal and civil child protection agencies, professionals and the public.
Ramaekers, 'Cross-border Successions - The New Commission Proposal: Contents and Way Forward. A Report on the 2010 Academy of European Law Conference' (2012) 15 Electronic Journal of Comparative Law
A J B Sirks, 'Das Dotalprivileg in den deutschen Gebieten im 19. Jahrhundert' (2012) 129 Zeitschrift der Savigny-Stiftung Rom. Abt. 522 [...]
Abstract: During the preparations for the German Civil Code, the Women's Association petitioned in 1876 for the insertion of the Roman dotal system. The paper analysed the reasons for it and sets out, that this system indeed provided women the best security of their properties in case of marriage, divorce and insolvency.
Die Petition des Allgemeinen Deutschen Frauenvereins, 1876 eingereicht beim Reichstag, das römische Dotalrecht in das zukünftige bürgerliche Gesetzbuch einzuführen, war keine Nostalgie oder pandektistischer Enthusiasmus, sondern eine Wahl für ein den Frauen günstiges Ehegüterrechtssystem. Theoretisch bedeutete es vollständiger Gütertrennung, und insoweit dem Ehemann eine Dos überlassen worden war, konnte die Frau diese schon bei drohender Missverwaltung zurückziehen. Dazu kam ihre privilegierte Dotalhypothek. In der Praxis war die Dos sicherlich nicht nur eine Gepflogenheit des Adels und höheren Bürgerstands, sondern auch ein Mittel für die ärmeren Schichten, im Falle eines wirtschaftlichen Zusammenbruches oder einer Insolvenz, noch etwas für sich zu retten. Das war möglich, weil und solange die Frau ihre privilegierte Dotalhypothek hatte. Dabei half auch, dass die Dosbestellung im 19. Jh. sehr aufgelockert war. Die Rechtsprechung zeigt vielfältige Anwendungsformen, wobei die Kollision mit dem sogenannten Kaufgeldhypothek oder reservatio dominii, über die Frage, welche Vorrang haben sollte, besonders hervortrat.
M Dempsey, C Hoyle and M Bosworth, 'Defining Sex Trafficking in International and Domestic Law: Mind the Gaps' (2012) Emory International Law Review (forthcoming)
Brian Cheffins, J Armour and Bernard Black, 'Delaware Corporate Litigation and the Fragmentation of the Plaintiffs' Bar' (2012) Columbia Business Law Review 427 [...]
Since 2000, a growing proportion of lawsuits against directors of public companies incorporated in Delaware have been filed outside Delaware. There has also been a large increase in the likelihood of litigation challenging M&A transactions involving Delaware targets, and the likelihood that suits involving the same transaction will be filed both in Delaware and elsewhere. In this Article we explore one potential cause for these trends—intensified competition between plaintiffs’ law firms. We trace the development of the plaintiffs’ bar from the 1970s to the present and identify three changes that plausibly contributed to the out-of-Delaware trend and a higher litigation rate: (1) stronger competition among plaintiffs’ lawyers specializing in securities litigation also affected the corporate law side of the plaintiffs’ bar; (2) changes in how the Delaware courts selected lead counsel encouraged non-Delaware filing by firms who were unlikely to win lead counsel status in Delaware; (3) potential obstacles associated with launching a suit in a jurisdiction other than Delaware become less of a concern to the plaintiffs’ bar. This Article draws upon data and insights developed more fully in a related policy-oriented paper: “Delaware’s Balancing Act”, 87 Indiana Law Review 1345 ( 2012), and a related empirical paper (“Is Delaware Losing its Cases”, Journal of Empirical Legal Studies (forthcoming 2012)).
Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. But if plaintiffs’ attorneys find the Delaware courts unwelcoming, they can often file cases in other courts. Delaware could risk losing its status as the de facto national corporate law court, as well as the case flow that lets it provide the rich body of precedent that is part of Delaware’s overall corporate law “brand.” We assess how the Delaware courts and legislature, and Delaware companies, might respond to this threat to Delaware’s pre-eminence as the leading forum for corporate cases, as well as incorporations.
A Ashworth, 'Departures from the Sentencing Guidelines'  Criminal Law Review [...]
A critique of the law and practice relating to departues from the sentencing guidelines in England and Wales
M Bosworth, 'Deportation and Immigration Detention: Globalising the Sociology of Punishment' (2012) 16 Theoretical Criminology (forthcoming)
Abstract: The article explores the legal obligation to cure under German sales law and specifically discusses the place of performance for this obligation. Based on law & economics reasoning, the article proposes to locate the place of performance at the habitual residence of the purchaser.
Eine richtungsweisende Detailfrage schlägt derzeit im deutschen Zivilrecht große Wellen: Wie ist der Erfüllungsort für den Nacherfüllungsanspruch im Rahmen der kaufrechtlichen Gewährleistung zu bestimmen? Darüber herrscht auch zehn Jahre nach Inkrafttreten des Schuldrechtsmodernisierungsgesetzes und trotz eines im letzten Jahr ergangenen BGH-Urteils (NJW 2011, 2278) noch immer Unklarheit. Der vorliegende Beitrag spricht sich dafür aus, den Erfüllungsort des Nacherfüllungsanspruchs grundsätzlich am gewöhnlichen Aufenthalt des Käufers anzusiedeln, davon ungeachtet jedoch privatautonom abweichende Vereinbarungen zuzulassen. Eine derartige Regelung würde die Kosten der Nacherfüllung reduzieren und somit dem hypothetischen Parteiwillen insgesamt am besten entsprechen.
P Eleftheriadis, 'Descriptive Jurisprudence' (2012) 5 Problema 117
A J B Sirks, 'Did poverty lie at the origin of the Colonate?' (2012) 36 Koinonia 133 [...]
The colonate must have been a public law contract which assured poor people that their poll tax would be paid, but for which they tied themselves to an estate. It was essentially already an institution in 293/4 AD.
A J B Sirks, 'Did poverty lie at the origin of the colonate?' (2012) 36 Koinonia 133
J J W Herring, 'Different strokes' (2012) New Law Journal 1018 [...]
Discussion of Re T (Children) on costs orders in family cases
T Khaitan, 'Dignity as an Expressive Norm: Neither Vacuous nor a Panacea' (2012) 32 Oxford Journal of Legal Studies 1 [...]
Proponents of dignity see it as a useful tool which solves the most important (if not all) of the practical and theoretical problems in human rights law. Arguing against this sympathetic position on the other side of the debate are the sceptics, who have raised troubling questions about dignity’s alleged indeterminacy, as well as about the illiberal role that it has allegedly played in certain contexts. In this paper, I argue that designing a defensible and useful conception of dignity which is distinguishable from other values such as equality and autonomy may be possible, but not without addressing some genuine infirmities that the critics have pointed out. If there is indeed such a conception of dignity, it is likely to be "expressive" in character. I therefore argue that the legal ideal of dignity is best understood as an expressive norm: whether an act disrespects someone’s dignity depends on the meaning that such act expresses, rather than its consequences or any other attribute of that act.
M Kettunen and WG Ringe, 'Disclosure Regulation of Cash-Settled Equity Derivatives – an Intentions-Based Approach'  Lloyd's Maritime and Commercial Law Quarterly 227 [...]
In capital markets around the world, calls for greater transparency regarding holdings of cash-settled equity derivatives (in particular Contracts for Difference, CfDs) have arisen due to the increased use of CfDs to gain control or to influence the management of prominent companies on all major European stock exchanges. They have been used in this manner due to an emerging practice that permits a CfD holder to capture the shares to which the CfD arrangement relates (without entering into any further express or implied agreements to do so), thereby acquiring a de facto control position in the target company. The UK was among the first countries to extend its shareholder disclosure regime to cover CfDs. Positions above the trigger threshold of 3 per cent must be disclosed as if they were shares enti-tling the holder to voting rights in the target company. Two alternatives were considered when pre-paring this new regulation: firstly, a general disclosure obligation of all economic long positions and secondly, a safe harbour regulation with exemptions from the requirement to disclose certain CfD transactions. Ultimately, the first option was preferred, yet not on the basis of its own merits but be-cause the safe harbour alternative was considered too complicated and difficult to enforce. This paper evaluates disclosure regulation of cash-settled equity derivatives and assesses the ef-fectiveness and suitability of the disclosure regulation under chapter 5 of Disclosure and Transparency Rules (DTR) in the UK with comparison to the relevant US rules and case law. We argue that the UK made the wrong choice of disclosure regime for CfDs. It fundamentally misunderstood the nature of the underlying problem relating to CfDs. As this article explains, the key problem related to CfDs is not the economic interest which CfDs convey per se, but rather the hedging structures that market participants have developed to facilitate the use of CfDs to acquire control of companies by stealth. This particular mischief would have been better targeted by an intentions-based disclosure regulation requiring disclosure of CfD positions only in cases where the CfD holder intends to launch a takeover or to otherwise influence the target company’s strategy and operations. Instead, the UK market is saddled with a general disclosure obligation with only very limited exceptions. This disclosure obligation is too wide in scope, places an undue burden on market partici-pants and ultimately acts as a deterrent to CfD transactions. This article argues that the UK should move away from the current general disclosure obligation towards intentions-based disclosure to re-move the current fetter on the CfD market, while still tackling the underlying mischief.
V Moreno Lax, 'Dismantling the Dublin System: M.S.S. v Belgium and Greece' (2012) 14(1) European Journal of Migration and Law 1-31.
J J W Herring, 'Double Jeopardy. When is a marriage not a marriage?' (2012) New Law Journal 317
S Vogenauer, 'Elaborare il diritto europeo dei contratti' (2012) Contratto e impresa/Europa 125-56
M R Freedland, 'Employment equality and personal work relations – a critique of Jivraj v Hashwani' (2012) 56 Industrial Law Journal
Borja Garcia and S R Weatherill, 'Engaging with the EU in order to minimize its impact: sport and the negotiation of the Treaty of Lisbon' (2012) 19 Journal of European Public Policy 238
R Ekins, 'Equal Protection and Social Meaning' (2012) 57 American Journal of Jurisprudence (forthcoming)
S Douglas-Scott, 'EU Admission to the ECHR' (2012) 19 Maastricht Journal of European and Comparative Law
A Ezrachi and M Maggiolino, 'European Competition Law, Compulsory Licensing and Innovation' (2012) Journal of Competition Law and Economics [...]
This article explores the interface between competition law and intellectual property rights (IPRs) in the context of compulsory licensing. It considers how European competition law has been applied to limit the protection awarded to IPR holders and reflects on the remedy of compulsory licensing. In doing so, the article considers how current policies may affect innovation and welfare. In our analysis, we consider two questions that are inter-linked. The first relates to the threshold for finding that a refusal to license IPRs amounts to an abuse of a dominant position. We consider whether the current European threshold for intervention is adequate and clear. Our analysis illustrates that the use of competition law as an external balancing tool has gradually eroded the protection conferred by IPR. Furthermore we show that the European Commission’s Guidance Paper on Article 102 of the Treaty on the Functioning of the European Union (TFEU)1 has contributed to this trend. We argue that these processes have blurred the principles which limit the application of competition law to IPR, creating a potentially detrimental effect on competition and innovation. We consider the characteristics of the compulsory license remedy and reflect on its adequacy in resolving competitive and innovative injuries caused by the refusal to license. In doing so, we review the aims of compulsory licensing, as well as its advantages and disadvantages. We then propose an offense-remedy distinction, which allows substantive analysis of abuse, independent of the remedy. This method enables antitrust authorities to evaluate the offense with less risk of reaching a conclusion that is based on a false positive.
J Vidmar, 'Explaining the Legal Effects of Recognition' (2012) International and Comparative Law Quarterly 361
G Loutzenhiser, 'Finance Act 2012, Section 8 and Schedule 1: high income child benefit charge'  British Tax Review 370
A Braun, 'Formal and Informal Testamentary Promises: A Historical and Comparative Perspective' (2012) The Rabel Journal of Comparative and International Private Law 994
R Bird, 'From Oxford to Williamsburg: Part 1 - the University of Oxford, Faculty of Law and Bodleian Law Library' (2012) 12 Legal Information Management 284 [...]
The Bodleian Law Library has only existed as an entity in its own right for less than 50 years.This paper offers a brief history of the University of Oxford, and then looks at the history of law teaching, before moving on to the evolution of the law library itself, and some links with the US, and its oldest law school, the College of William and Mary.
J Freedman, 'GAAR as a process and the process of discussing the GAAR'  British Tax Review
S J Bright, 'Green Commercial Leases: Bringing Together Practice and Theory' (2012) Property Law Review 1 [...]
This is a note about a symposium held in Sydney involving industry leaders and academics in order to explore better (green) leasing practices.
V Moreno Lax, 'Hirsi Jamaa and Others v Italy, or the Strasbourg Court v Extraterritorial Migration Control? ' (2012) 12(3) Human Rights Law Review (forthcoming)
Article on decision-making
C Costello, 'Human Rights & the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law ' (2012) Indiana Journal of Global Legal Studies 257
A C L Davies, 'Identifying ‘Exploitative Compromises’: The Role Of Labour Law In Resolving Disputes Between Workers' (2012) Current Legal Problems [...]
In recent years, labour law has been going through a period of deep introspection. Some commentators have gone so far as to pronounce the subject dead. One reason for the crisis is the realisation that labour law has the potential to exacerbate divisions between different groups in the workforce: between the employed and the unemployed, between those with stable jobs and those with ‘atypical’ jobs, between local workers and migrant workers, and so on. The ‘interests of labour’ are not, in reality, a unified set of interests to be pitted against those of capital. Whilst other writers are beginning to explore this set of issues at the policy level, the aim of this essay is to consider how the law addresses conflicts between workers on particular occasions and in particular workplaces, and to begin the task of mapping out this relatively neglected dimension of the subject on a more practical level.
Craig Roussac and others, 'Improving environmental performance through innovative commercial leasing: An Australian case study' (2012) 4 International Journal of Law in the Built Environment 6 [...]
The paper explains how difficult it is within the structure and content of conventional leases to reduce the environmental impact of the tenanted commercial built environment. It explores the interplay between the content and structure of commercial leases and the behaviour of building owners, managers, tenants and occupants, illustrated through the experiences of a large Australian-based commercial office building owner/operator.
J Gardner, 'In Defence of Offences and Defences' (2012) 4 Jerusalem Review of Legal Studies 110
J Pila, 'Intellectual Property Rights and Detached Human Body Parts' (2012) Journal of Medical Ethics
C Miles, 'Intoxication and Homicide: A Context-Specific Approach' (2012) 52 British Journal of Criminology 870
A. Faulkner, C. Lawless and B Lange, 'Introduction: Material Worlds: Intersections between Socio-Legal Studies and Science and Technology Studies' (2012) 39 Journal of Law and Society 1
A Bogg and T Novitz, 'Investigating \\\\\\\'Voice\\\\\\\' at Work' (2012) Comparative Labor Law and Policy Journal (forthcoming)
M Paparinskis, 'Investment Law of/for/before the 21st Century' (2012) 25 Leiden Journal of International Law 225
J Armour, BS Black and BR Cheffins, 'Is Delaware Losing its Cases?' (2012) 9 Journal of Empirical Legal Studies 605 [...]
Delaware’s expert courts are seen as an integral part of the state’s success in attracting incorporation by public companies. However, the benefit that Delaware companies derive from this expertise depends on whether corporate lawsuits against Delaware companies are brought before the Delaware courts. We report evidence that these suits are increasingly brought outside Delaware. We investigate changes in where suits are brought using four hand-collected data sets capturing different types of suits: class action lawsuits filed in (1) large M&A and (2) leveraged buyout transactions over 1994–2010; (3) derivative suits alleging option backdating; and (4) cases against public company directors that generate one or more publicly available opinions between 1995 and 2009. We find a secular increase in litigation rates for all companies in large M&A transactions and for Delaware companies in LBO transactions. We also see trends toward (1) suits being filed outside Delaware in both large M&A and LBO transactions and in cases generating opinions; and (2) suits being filed both in Delaware and elsewhere in large M&A transactions. Overall, Delaware courts are losing market share in lawsuits, and Delaware companies are gaining lawsuits, often filed elsewhere. We find some evidence that the timing of specific Delaware court decisions that affect plaintiffs’ firms coincides with the movement of cases out of Delaware. Our evidence suggests that serious as well as nuisance cases are leaving Delaware. The trends we report potentially present a challenge to Delaware’s competitiveness in the market for incorporations.
This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a procrustean and monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. It is, of course, a philosophical book; but that is not enough to make it monistic. Some conjectures are offered as to why Simpson so badly misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.
A Higgins, 'Legal lessons from the News of the World phone hacking scandal' (2012) 31 Civil Justice Quarterly 274
P Yowell, 'Legislación, precedente, y virtud de la claridad' (2012) Revista Chilena de Derecho (forthcoming)
J Rowbottom, 'Lies, Manipulation and Elections: Controlling False Campaign Statements' (2012) Oxford Journal of Legal Studies (forthcoming) [...]
Complaints about lies are nothing new to elections. Legislation attempts to prohibit certain types of false statement during campaigns. This article examines the rationales for specific controls on false campaign speech and argues that the primary harms are the manipulation of voters and the distortion of the electoral process. The article also considers the consistency of such laws with rights to freedom of expression. While knowingly false statements attract little protection under Article 10 of the ECHR, there are still free speech concerns about regulating election speech. In particular, there are dangers of chilling speech and the perception of politically motivated adjudications. The article will consider the regulatory alternatives to the current law. None of the options are attractive, especially given the difficult tension between the desire to curtail falsities and the inability of the law to do so – a tension that is strongly felt in the context of an election.
J Dill and Henry Shue, 'Limiting killing in War: Military necessity and the St Petersburg assumption' (2012) Ethics and International Affairs (forthcoming) [...]
This paper suggests that the best available normative framework for guiding conduct in war rests on categories that do not echo the terms of an individual rights-based morality, but acknowledge the impossibility of rendering warfare fully morally justified. Avoiding the undue moralization of conduct in war is an imperative for a normative framework that strives to actually give behavioural guidance to combatants, most of whom will inevitably be ignorant of the moral status of the individuals they encounter on the battlefield and will often be uncertain or mistaken about the justice of their own cause. We identify the requirement of military necessity, applied on the basis of what we refer to as the “St. Petersburg assumption”, as the main principle according to which a combatant should act, regardless of which side or in which battlefield encounter she finds herself. This pragmatic normative framework enjoys moral traction for three reasons: first, in the circumstances of war it protects human life to a certain extent; second, it makes no false claims about the moral justification of individual conduct in combat operations; and, third, it fulfils morally important functions of law. However, the criterion of military necessity interpreted on the basis of the St. Petersburg assumption does not directly replicate fundamental moral prescriptions about the preservation of individual rights.
P S Davies, 'Making mistakes' (2012) 24 NLSIR 97
A Bogg, 'Michael Sandel and Trade Union Rights' (2012) International Union Rights (forthcoming)
N Gur, 'Normative Weighing and Legal Guidance of Conduct' (2012) 25(2) Canadian Journal of Law and Jurisprudence 359
A Higgins, 'Open door disclosure in civil proceedings' (2012) 16 International Journal of Evidence and Proof 298
L Gullifer, 'Personal Property Security Law: Where Next? (Part 1)' (2012) Butterworths Journal of International Banking and Financial Law 465
S Douglas-Scott, 'Pluralism and Justice in the EU' (2012) 65 UCL Current Legal Problems series 83
J Roberts, 'Points of Departure: Reflections on Sentencing Outside the Definitive Guidelines Ranges '  Criminal Law Review
B Bradford, 'Policing and social identity: procedural justice, inclusion and cooperation between police and public' (2012) Policing and Society (forthcoming) [...]
Accounts of the social meaning of policing and of the relationship between police and citizen converge on the idea that police behaviour carries important identity-relevant information. Opinions of and ideas about the police are implicated in the formation of social identities that relate to the social groups it represents – nation, state and community. Procedural justice theory suggests that judgements about the fairness of the police will be the most important factor in such processes. Fairness promotes a sense of inclusion and value, while unfairness communicates denigration and exclusion. Furthermore, positive social identities in relation to the police should on this account promote cooperation with it. This article presents an empirical test of these ideas in the context of the British policing. Data from a survey of young Londoners are used to show that perceptions of police fairness are indeed associated with social identity, and in turn social identity can be linked to cooperation. Yet these relationships were much stronger among those with multiple national identities. Police behaviour appeared more identity relevant for people who felt that they were citizens of a non-UK country, but for those who identified only as British there was a weaker link between procedural fairness and social identity, and here legitimacy judgements were the main ‘drivers’ of cooperation. Theoretical and policy implications are discussed.
N Lacey, 'Political Systems and Criminal Justice: The Prisoners\' Dilemma After the Coalition ' (2012) Current Legal Problems
J M Eekelaar, 'Positivism and Plural Legal Systems' (2012) 25 Ratio Juris 513 [...]
This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre-existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.
D O'Brien and Wheatle, 'Post-Independence Constitutional Reform In The Commonwealth Caribbean And A New Charter Of Fundamental Rights And Freedoms For Jamaica'  Public Law 683 (forthcoming)
A Ashworth and L Zedner, 'Prevention and Criminalization: Justifications and Limits' (2012) 15 New Criminal Law Review 542
J Roberts, M. Hough and J. Jackson, 'Public Attitudes toward the Lay Magistracy and the Sentencing Council Guidelines: The Effects of Information on Opinion ' (2012) British Journal of Criminology
N Lacey, 'Punishment in the Perspective of Comparative Political Economy' (2012) 44 Kriminologische Journal 9-31 9
A C L Davies, 'Recent Developments in Labour Law in the United Kingdom' (2012) Europaische Zeitschrift für Arbeitsrecht
S Vogenauer, 'Rechtsgeschichte und Rechtsvergleichung um 1900 - Die Geschichte einer anderen "Emanzipation durch Auseinanderdenken"' (2012) 76 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1122-54 [...]
The Emancipation of Comparative Law from Legal History Around 1900: For most of the 19th century, the academic discipline of comparative law was perceived to be just a variant of legal history. The idea of a ˜universal jurisprudence' required a multi-dimensional comparison of the laws of all countries at all times in order to infer general laws of legal development. Later, the notion of comparative law also comprised the study of contemporary foreign laws with a view to domestic law reform or legal unification. It was only around the turn of the century that the latter conception of comparative law prevailed and the close link with legal history was broken. The article traces the relationship between the two disciplines throughout the 19th century and sketches the reasons for the emancipation of comparative law.
P S Davies, 'Rectifying the course of rectification' (2012) 75 MLR 412
A Higgins, 'Referral fees: the business of access to justice' (2012) 32 Legal Studies 109
R George, 'Relocation Research: Early Ideas from Ten County Court Cases' (2012) Family Law 700
A S Burrows, 'Restitution of Mistaken Enrichments ' (2012) 92 Boston University Law Review 767
J Freedman and John Vella, 'Revenue Guidance: The Limits of Discretion and Legitimate Expectations' (2012) Sweet and Maxwell Ltd. Law Quarterly Review.This material is reproduced by agreement with the Publishers
R George, 'Reviewing Relocation? Re W (Relocation: Removal Outside Jurisdiction)  EWCA Civ 345 and K v K (Relocation: Shared Care Arrangement)  EWCA Civ 793' (2012) Child and Family Law Quarterly 110
L Zedner, 'Risiko, Sicherheit und Terrorismus: Drei Konzepte auf der Suche nach einer akademishen Disziplin' (2012) 10 Kriminiologisches Journal 30
P S Davies, 'Risk in unjust enrichment'  RLR 27
J M Eekelaar, 'Self-Restraint: Social Norms, Individualism and the Family' (2012) 13 Theoretical Inquiries in Law 75 [...]
The paper argues that claims that individualism has overcome normative behaviour within families are incorrect, but also that state's should be cautious about translating social norms that operate within families into legal norms. Three types of approach to the relationship between legal and social norms within families are sketched, and it is suggested that one, styled "purposive abstention",should normally be preferred.
J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments ' (2012) Punishment and Society. The International Journal of Penology
A Bogg, 'Sham Self-Employment in the Supreme Court' (2012) forthcoming Industrial Law Journal
J Dill, 'Should international law ensure the moral acceptability of war?' (2012) Leiden Journal of International Law (forthcoming) [...]
Jeff McMahan’s challenge to the longstanding orthodoxy about the right way to conduct war has fallen on fertile grounds because it is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations is decreasingly contestable and which regulation by international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war with a view to individuals’ liability. IHL’s failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has led to challenges also by international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterises such situations as presenting an epistemically cloaked forced choice regarding the preservation of individual rights. Commitment to the above moral standard then means that IL should not prejudge the outcome of such quintessential wars and must, somewhat paradoxically, diverge from morality. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just war theories that the failure of IL to track a deep morality of war is merely a function of contingent institutional desiderata. Symmetrical IHL with its current moral limitations has a continuing role to play in international relations.
J Pila, 'Some Reflections on Method and Policy in the Crowded House of European Patent Law and their Implications for India' (2012) 24 National Law School of India Review 54
J Vidmar, 'South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States' (2012) Texas International Law Journal 541
J Dickson, 'State of the Art in Legal Philosophy' (2012) forthcoming Peruvian Journal of Legal Philosophy
J Roberts, 'Structured Sentencing in Canada and England and Wales: A Tale of Two Jurisdictions ' (2012) Criminal Law Forum
P P Craig, 'Subsidiarity: A Political and Legal Analysis' (2012) 50 Journal of Common Market Studies 72
I Goold, 'The concise argument Highlights from this issue ' (2012) 38 Journal of Medical Ethics 133
S R Weatherill, 'The Consumer Rights Directive: how and why a quest for “coherence” has (largely) failed' (2012) 49 Common Market Law Review nya
J Armour, Audrey Hsu and Adrian Walters, 'The Costs and Benefits of Secured Creditor Control in Bankruptcy: Evidence from the UK' (2012) 8 Review of Law and Economics 101 [...]
The theoretical literature debates whether debtors should be permitted to contract with lenders over control rights in bankruptcy. Proponents point to coordination benefits from concentrating control rights; detractors point to inter-creditor agency costs. A recent reform of UK bankruptcy law provides an opportunity to test these theories. Until 2003, UK bankruptcy law permitted firms to give complete ex post control to secured creditors, through a procedure known as “receivership.” A bankruptcy reform then required firms to use a different procedure, “administration,” which confers greater control on unsecured creditors. We present empirical findings from a hand-coded sample of 340 bankruptcies from both before and after the change in the law. Whilst gross realizations have increased following the change in the law, these have tended to be eaten up by increased bankruptcy costs. We infer that dispersed and concentrated creditor governance in bankruptcy may be functionally equivalent.
A Bogg, 'The Death of Statutory Union Recognition in the United Kingdom' (2012) Journal of Industrial Relations (Australia) (forthcoming)
D Akande, 'The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC' (2012) 10 Journal of International Criminal Justice 299 [...]
The article considers whether the obligations of states, which have been referred to the International Criminal Court (ICC) by the United Nations Security Council, are the same as the cooperation obligations of states parties to the ICC Statute. It is argued that despite the lack of clarity in the resolutions referring the situation in Darfur and in Libya to the ICC, the better view is that the obligation imposed on Sudan and Libya to ï¿½cooperate fullyï¿½ with the ICC should be regarded as an obligation to cooperate in accordance with the provisions of the ICC Statute. This means that those states are entitled to benefit from those limited provisions of the ICC Statute that permit a refusal to cooperate with the Court or permit the state to postpone the execution of a request by the Court for assistance. The article also considers the interaction between the obligations of states to cooperate with the ICC and domestic proceedings against those sought for ICC prosecution. It considers the extent to which the obligation of cooperation may be suspended by an admissibility challenge and addresses whether the permission to suspend the obligation of cooperation may extend to a suspension of the obligation to surrender an accused person to the ICC.
Sidney Shapiro, E Fisher and Wendy Wagner, 'The Enlightment of Administrative Law: Looking Inside the Agency for Legitimacy' (2012) Wake Forest Law Review 463
P Eleftheriadis, 'The Euro and the German Courts' (2012) 128 Law Quarterly Review 216 [...]
This note discusses the judgment of the German Constitutional Court of 9 September 2011, according to which the Euro Bailout agreements of 2010-2011 may be unconstitutional, if they encroach on the 'Budgetary Sovereignty' of the German People.
J Vella, 'The Financial Transaction Tax Debate: Some Questionable Claims' (2012) Volume 47 Intereconomics 90
R George, 'The International Relocation Debate' (2012) Journal of Social Welfare and Family Law 141
A Kavanagh, 'The Irish Constitution at 75 Years: Natural Law, Christian Values and the Ideal of Justice' (2012) 48 Irish Jurist 71
Simon Whittaker, 'The Proposed \'Common European Sales Law\': Legal Framework and the Agreement of the Parties' (2012) 75 Modern Law Review 578 [...]
The European Commission’s Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross-border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services.This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author’s view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.
A J B Sirks, 'The purpose of the lex Fufia Caninia' (2012) 129 Zeitschrift der Savigny-Stiftung Rom. Abt. 549
L Gullifer, 'The reform of the English law of secured transactions' (2012) 213 Droit et patrimoine (Kluwer) 72
J Payne, 'The Regulation of Short Selling and its reform in Europe' (2012) European Business Organization Law Review (forthcoming)
A S Burrows, 'The Relationship between Common Law and Statute in the Law of Obligations' (2012) 128 Law Quarterly Review 232
Wheatle, 'The Rights to Equality and Non-Discrimination and the Jamaican Charter of Fundamental Rights and Freedoms ' (2012) (Jubilee Edition) West Indian Law Journal 126
J Armour and B.R. Cheffins, 'The Rise and Fal(?) of Shareholder Activism by Hedge Funds' (2012) Journal of Alternative Investments 17 [...]
Shareholder activism by hedge funds became a major corporate governance phenomenon in the United States in the 2000s. This article puts the trend into context by introducing a heuristic device referred to as “the market for corporate influence” to distinguish the ex ante-oriented “offensive” brand of activism hedge funds engage in from the ex post-oriented “defensive” activism carried out by mutual funds and pension funds. This article traces the rise of hedge fund activism and anticipates future developments, arguing in so doing that despite the blow the 2008 financial crisis dealt to hedge funds, their interventions will remain an important element of U.S. corporate governance going forward.
E Fisher, 'The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers' (2012) 1 Transnational Environmental Law 43 [...]
The concept of transnational environmental law is used descriptively and prescriptively to refer to a multitude of legal processes which are distinct from transnational law in other legal areas. Hence, the rise of transnational environmental law requires environmental lawyers to reflect on their skills and knowledge and to foster both their contributory and interactional expertise in this area. That process of fostering expertise needs to be seen in light of a number of intellectual challenges, including the necessity to engage with comparative environmental law methodology, the need to not privilege one legal system over others, the need to engage with extended legal pluralism, the importance of thinking about the role of language in legal processes, and the significance of understanding the process of co-production.
D Erdos, 'The Rudd Government's Rejection of an Australian Bill of Rights: A Stunted Case of "Aversive" Constitutionalism?' (2012) 65 Parliamentary Affairs 359 [...]
Australia remains the only Western democratic country to lack a national bill of rights. In April 2010, the Labor Government rejected the suggestion of the Brennan Committee—which it itself had set up in 2008—that Australia adopt a statutory bill of rights. This outcome resulted from the limitations of catalysing political trigger coupled with the potent barrier of Australia's fragmented institutional structure. Although the Brennan process was prompted by an ‘aversive’ reaction against the policy outlook of the Howard era, this was much weaker than that which prompted the bill of rights reform in the other ‘Westminster’ cases of New Zealand (1990) or the UK (1998). Additionally, the reform efforts faced the potential opposition of a powerful Senate and even possible separation of powers challenges under the Australian Constitution. These negative factors are consistent with Australia's failed initiatives of the 1970s and 1980s. Despite this, factors favouring the bill of rights genesis remain. Given appropriate circumstances, the possibility of Australia acquiring a bill of rights in the longer term should not be discounted.
A L Young, 'The Rule of Law in the United Kingdom: Formal or Substantive?' (2012) 6 International Constitutional Laww 259
C Costello, 'The Ruling of the Court of Justice in NS/ME on the fundamental rights of asylum seekers under the Dublin Regulation: Finally, an end to blind trust across the EU?' (2012) Asiel- en Migrantenrecht 83
N. W. Barber, 'The Separation of Powers in the British Constitution ' (2012) Law: The Journal of the Higher School of Economics 3
P P Craig, 'The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism' (2012) 37 European Law Review 231
A Briggs, 'The subtle variety of jurisdiction agreements' (2012) informa; Lloyd's Maritime & Commercial Law Quarterly 364 [...]
Analysis of and reflection upon the various functions of jurisdiction agreements at common law and in the regime of the Brussels I Regulation
ISBN: 0306 2945
J Goudkamp, 'The Young Report: An Australian Perspective on the Latest Response to Britain's "Compensation Culture" ' (2012) 28 Journal of Professional Negligence 4
S Green, 'Theft and Conversion' (2012) Law Quarterly Review 564 [...]
An examination of the difference between the criminal and civil law treatment of interferences with personal property, with particular attention paid to intangibles and money. The thesis essentially concludes that the criminal law's approach is both more coherent and appropriate to modern forms of property.
J Rowbottom, 'To Rant, Vent and Converse: Protecting Low Level Digital Speech ' (2012) 71 Cambridge Law Journal (forthcoming) [...]
Several recent cases have highlighted the range of legal controls that can be applied to expression on social networks and other amateur digital content. This article identifies three trends in the regulation of digital communications. First, such communications are subject to a wide range of laws, including those primarily regulating the mass media, public order and targeted communications. Second, the persistence and searchability of digital messages make such communications more likely to come to the attention of litigators and prosecutors. Thirdly, that the established approach to freedom of expression under Article 10 of the ECHR tends to protect speech that is deemed to be of “high value”, and therefore does little to protect much internet content. This article calls for some greater protection to be afforded to communications that are casual and amateur. The freedom to converse outlined in this article does not call for absolute protection, but seeks to ensure that any controls on expression are proportionate. In particular, alternatives to the criminal law are considered.
J Gardner, 'Torts and Other Wrongs' (2012) Florida State University Law Review (forthcoming)
A Braun, 'Towards a Greater Autonomy for Testators and Heirs: Some Reflections on Recent Reforms in France, Belgium and Italy' (2012) Zeitschrift für Europäisches Privatrecht 461
C Greenhalgh and M Rogers, 'Trade marks and performance in services and manufacturing firms: evidence of Schumpeterian competition through innovation' (2012) 45 Australian Economic Review
N Palmer, 'Transfer or Transformation: A Review of the Rule 11 bis Decisions of the International Criminal Tribunal for Rwanda' (2012) 20 The African Journal of International and Comparative Law (forthcoming)
P P Craig, 'Two-Speed, Multi-Speed and Europe\'s Future: A Review of Jean-Claude Piris on the Future of Europe' (2012) 37 European Law Review 800
A Ezrachi and H Qaqaya, 'UNCTAD’s Collaborative Information Platform' (2012) 4-2012 Concurrences Journal [...]
The application of competition law in an international setting has long been a challenging area for competition agencies. Legal and practical obstacles often limit an agency’s ability to obtain information on multinational violations and engage in effective enforcement and prosecution. These limitations have been particularly noticeable in the case of developing countries and economies in transition. These regimes are characterised by limited enforcement capacity and tend to focus their attention on domestic violators and on efforts to foster a ‘competition culture’. The challenge of tackling sophisticated cross-border anticompetitive activity and the imposition of effective sanctions on international violators may be beyond their reach. Unfortunately, the limited enforcement capacity of these regimes often results in an increased and disproportionate exposure to multinational anticompetitive activity. This exposure is particularly harmful given the ever growing level of cross-border trade. Indeed, in many instances, unless the cross-border activity is challenged by other, more powerful jurisdictions, developing economies and economies in transition remain exposed to negative transfer of wealth. This reality serves as a powerful incentive for these regimes to enhance their enforcement capacity in order to effectively tackle cross-border infringements. To facilitate these efforts, UNCTAD has recently launched a new initiative that will foster transparent information flow and collaboration between competition agencies. This initiative – known as the Collaborative Information Platform - forms part of UNCTAD’s on-going work on international cooperation and enforcement.
J Roberts and M. Manikis, 'Victim Impact Statements at Sentencing: Developments in Caselaw. ' (2012) Victims of Crime Research Digest
R Williams, 'Voluntary Intoxication – A lost cause?' (2012) Law Quarterly Review (forthcoming) [...]
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.
J J W Herring and Charles Foster, 'Welfare means relationality, virtue and altruism' (2012) Legal Studies 480 [...]
A discussion of the nature of welfare, best intersts and well being.
Laura Hoyano, 'What Is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial'  Criminal Law Review (forthcoming) [...]
This article contests the notion, prevalent in British jurisprudence regarding ECHR Article 6, and recently adopted by the Grand Chamber in Al-Khawaja v UK, that the right to a fair trial involves the 'balancing' of the rights of the defendant against the rights of the prosecution, the complainant and other witnesses, and the community at large. It argues that the whole notion of balancing is fundamentally misconceived, setting up a conflictual trap whereby defence rights are always seen as being in antithesis to those of the prosecution representing the overarching public interest. Instead, I propose a model embodying a sense of objective fairness predicated upon the right to a verdict with integrity; as such this right is not allocated to any one participant in the trial but is a common good, erasing any perceived antitheses within Article 6. The article goes on to explore the concept of "the essence of the right" in Article 6(3) caselaw, and explains why this has been extinguished by the approach to Article 6 of the Grand Chamber in Al-Khawaja, sacrificing principle to juridical, and possibly political, expediency. The consequence is that Article 6 now only serves to protect the right to a 'fair-ish' trial.
L Gullifer, 'What should we do about Financial Collateral?' (2012) Current Legal Problems
M Kurkchiyan, 'What to expect from institutional transplants? An experience of setting up media self-regulation in Russia and Bosnia' (2012) 8 International Journal of Law in Context 115
J J W Herring, 'What's wrong with kidnapping?'  Criminal Law Review 343 [...]
Consideration of proposed reforms to the law on kidnapping.
D Sarooshi, 'When international financial institutions arbitrate: what law governs international investment arbitration' (2012) 27 Butterworths Journal of International Banking and Financial Law 612
J Jackson and others, 'Why do People Comply with the Law?: Legitimacy and the Influence of Legal Institutions' (2012) 52 British Journal of Criminology [...]
This paper extends Tyler’s procedural justice model of public compliance with the law. Analysing data from a national probability sample of adults in England and Wales, we present a new conceptualization of legitimacy based on not just the recognition of power, but also the justification of power. We find that people accept the police’s right to dictate appropriate behaviour not only when they feel a duty to obey officers, but also when they believe that the institution acts according to a shared moral purpose with citizens. Highlighting a number of different routes by which institutions can influence citizen behaviour, our broader normative model provides a better framework for explaining why people are willing to comply with the law.
I Goold, 'Why Does It Matter How We Regulate the Use of Human Body Parts?' (2012) Journal of Medical Ethics (forthcoming)
J Gardner, 'Wrongdoing by Results: Moore\'s Experiential Argument' (2012) 18 Legal Theory (forthcoming) [...]
Michael Moore and I agree about the moral importance of how our actions turn out. We even agree about some of the arguments that establish that moral importance. In Causation and Responsibility, however, Moore foregrounds one argument that I do not find persuasive, or even helpful. In fact I doubt whether it even qualifies as an argument. He calls it the ‘experiential argument’. In this comment I attempt to analyze Moore’s ‘experiential argument’ in some detail and thereby to bring out why it doesn’t help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means.
T Krebs, 'Yearworth and the Law of Contract' (2012) Journal of Medical Ethics Special Issue - Human Body Parts/Property
L Ferguson, '\'Not Merely Rights for Children but Children\'s Rights: The Theory Gap and the Assumption of the Importance of Children\'s Rights' (2012) International Journal of Children's Rights (forthcoming)
A Ezrachi and Maria Ioannidou, '‘Public Compensation’ in Competition Cases – A Complementary Mechanism to Damages Actions ' (2012) Jnl of Euro Competition Law & Practice [...]
EU competition law enforcement has undergone significant changes in the past decade, aimed at improving its effectiveness by employing more actors (national competition authorities and courts) and more ‘flexible’ procedures (commitments decisions and settlements). Occupying centre stage alongside these developments were efforts to advance private EU competition law enforcement and consumer involvement therein. Yet, while the number of damages actions in competition cases has steadily increased in some Member States, this increase has been modest and uneven across Europe. Procedural difficulties, excessive costs, risks and the multitude of legal systems involved, are only some of the obstacles still curtailing the availability of effective judicial redress in competition law cases. In addition, difficulties in launching group actions and adopting a harmonised Euro-wide collective redress mechanism, further limit access to corrective justice. This paper addresses shortcomings in the private enforcement of competition laws across Europe. It explores the possibility and desirability of deploying public enforcement to promote some of the objectives traditionally linked to damages actions in national courts. More specifically, it advocates in favour of including elements of compensation for injured parties, as part of the public enforcement of competition law (hereafter ‘Public Compensation’). Under the proposed mechanism, at the end of a public investigation, the competition authority would be able to impose not only a fine but also award a certain form of compensation to the injured parties, either individually identified or defined more broadly as the injured class. This mechanism provides an attractive vehicle for supplementing damage claims; narrowing the gaps in corrective justice, while fulfilling the traditional deterrent function of public enforcement. These benefits, we argue, justify consideration of a formal approach toward Public Compensation, which would facilitate its implementation across the European Union. Such mechanism could be implemented alongside possible future changes to the private enforcement landscape. This paper advances a two-fold argument addressing the questions of ‘why’ and ‘how’ Public Compensation is desirable. We begin by identifying the gap in the enforcement system that Public Compensation could fill, and offer further normative justifications for Public Compensation. We then consider the merit in advancing a more formal, fused approach toward competition law enforcement. Subsequently we move on to review cases in which the competition authority imposed or accepted compensation as part of the public inquiry. These cases provide inspiration for the ensuing proposal of a formal, institutional approach.
N Lacey, '‘Reflections on the Philosophy of Law’' (2012) Rivista di filosofia del diritto 91
L Ferguson, '“Families in all their Subversive Variety”: Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity whilst Protecting Children' (2012) Studies in Law, Politics, and Society (forthcoming)