All Journal Articles
Charles Foster, Tony Hope, J J W Herring and Karen Melham, 'Intention and Foresight - From Ethics to Law and Back Again' (2103) 22 Cambridge Quarterly of Healthcare Ethics 86 [...]
A discussion of the doctrine of double effect
M Bosworth and G Slade, 'In Search of Recognition: Gender and Staff-Detainee Relations in a British Immigration Removal Centre' (2014) 16 Punishment & Society (forthcoming)
G Dinwoodie, 'Third Annual Emmanuel College International Intellectual Property Lecture: Ensuring Consumers “Get What They Want”: The Role of Trademark Law ' (2014) Cambridge Law Journal (forthcoming)
Dyson and Kramer, 'There is No Breach Date Rule: Mitigation, Difference in Value and Date of Assessment' (2014) Law Quarterly Review (forthcoming)
I Goold and H Maslen, 'Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement' (2014) 77 Modern Law Review 60
I Goold, Loane Skene, Jonathan Herring and Kate Greasley, 'The Human Body as Property? Possession, Control and Commodification (The Concise Argument)' (2014) 40 Journal of Medical Ethics 1
I Goold, 'Why Does It Matter How We Regulate the Use of Human Body Parts?' (2014) 40 Journal of Medical Ethics 3
N Gur, 'Form and Value in Law' (2014) 5 Jurisprudence (forthcoming) [...]
A contribution to a symposium on Kristen Rundle’s book Forms Liberate.
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.
M Köpcke Tinturé, 'Criminalizing psychological forms and causes of harm' (2014) (forthcoming)
M Köpcke Tinturé, 'Methodology in Marmor's "Philosophy of Law"' (2014) Jerusalem Review of Legal Studies (forthcoming)
I Loader, A Thumala and B Goold, 'Tracking Devices: On the Reception of a Novel Security Good' (2014) 14 Criminology & Criminal Justice
J Payne, 'Debt Restructuring in English Law: Lessons from the US and the need for reform' (2014) LQR (forthcoming) [...]
This paper assesses the debt restructuring mechanisms available to companies in English law, compares these mechanisms with the Chapter 11 procedure in the US, and makes some suggestions for reform of the English system in this context. Rehabilitating a company in financial difficulties will almost always be preferable to liquidation for companies and their creditors, at least where the company is merely financially distressed, i.e. it is cash flow insolvent but nevertheless economically viable, so that there is a business worth saving. Five debt restructuring mechanisms are available to companies in English law: workouts, Company Voluntary Arrangements (CVAs), schemes of arrangement, administration and, lastly, a recent innovation of practitioners has been to twin a scheme of arrangement with administration. None of these devices are ideal as debt restructuring tools, as explained in this paper. Lessons can be learned from the US Chapter 11 process, although a simple transplantation of this procedure into English law is not recommended, as there are also disadvantages to the US procedure. Instead it is suggested that the English scheme of arrangement be reformed to allow a cramdown of whole classes to take place, to attach a moratorium to this procedure and to enhance the valuation process where restructuring takes place. Making these changes would provide English law with a stronger and more effective debt restructuring procedure.
J Pila, 'Pluralism, Principles and Proportionality in Intellectual Property' (2014) Oxford Journal of Legal Studies
J Prassl, 'Reforming Air Passenger Rights in Europe' (2014) 38 Air & Space Law (forthcoming)
D Akande and Thomas Lieflaender, 'Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense' (2013) 107 American Journal of International Law 563
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)
D Awrey, 'Toward a Supply-side Theory of Financial Innovation' (2013) 41:2 Journal of Comparative Economics 401
N. W. Barber, 'Self-Defence for Institutions ' (2013) 72 Cambridge Law Journal 558
I Benöhr, 'Consumer Dispute Resolution after the Lisbon Treaty' (2013) Volume 36 Journal of Consumer Policy 87
Henrique Pacini, Maria Montoya Diaz, Valéria Guimarães and I Benöhr, 'Environmental and competitive performances' (2013) 36 (3) September 2013. World Competition, Law and Economics Review
J Jackson, A Huq, B Bradford and TR Tyler, 'Monopolizing Force? Police Legitimacy and Public Attitudes Toward the Acceptability of Violence' (2013) Psychology, Public Policy, and Law [...]
Why do people believe that violence is acceptable? In this article, the authors study people’s normative beliefs about the acceptability of violence to achieve social control (as a substitute for the police, for self-protection and the resolution of disputes) and social change (through violent protests and acts to achieve political goals). Addressing attitudes toward violence among young men from various ethnic minority communities in London, the authors find that procedural justice is strongly correlated with police legitimacy, and that positive judgments about police legitimacy are associated with more negative views about the use of violence. They conclude with the idea that police legitimacy has an additional, hitherto unrecognized, empirical property—by constituting the belief that the police monopolise rightful force in society, legitimacy has a “crowding out” effect on positive views of private violence.
A Myhill and B Bradford, 'Overcoming cop culture? Organizational justice and police officers’ attitudes toward the public' (2013) 36 Policing: An International Journal of Police Strategies & Management 338 [...]
Purpose – The purpose of this paper is to test theories of organizational justice in the context of a police agency. Design/methodology/approach – Structural Equation Modelling (SEM) was used to analyze data from a survey of officers in a police force in England. Findings – The SEM showed that organizational justice was associated with positive attitudes towards serving members of the public. This relationship was mediated by commitment to elements of community policing and, for community police officers, by general satisfaction with the organization. Practical implications – The findings suggest that police managers committed to implementing process-based policing policies may need to ensure their organizations also implement internal policies and practices that are procedurally fair. Originality/value – This study is one of the first to apply the well established literature on organizational justice to the context of policing, and the first to examine the impact of organizational justice on alignment with community policing and the service model.
B Bradford, A Huq, J Jackson and B Roberts, 'What price fairness when security is at stake? Police legitimacy in South Africa' (2013) Regulation and Governance [...]
The legitimacy of legal authorities – particularly the police – is central to the state's ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgments about other aspects of police behavior – notably, about effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society, do people still emphasize procedural fairness or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgments play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). Police legitimacy is, furthermore, associated with citizens' judgments about the wider success and trustworthiness of the state.
B Bradford, P Quinton, A Myhill and G Porter, 'Why do ‘the law’ comply? Procedural justice, group identification and officer motivation in police organizations' (2013) European Journal of Criminology [...]
How can police officers be encouraged to commit to changing organizational and personal practice? In this paper we test organizational justice theories that suggest that fair processes and procedures enhance rule compliance and commitment to the organization and its goals. We pay particular attention to (a) tensions between the role of group identity in organizational justice models and classic concerns about ‘cop culture’; and (b) the danger of over-identification with the organization and the counterproductive types of compliance this may engender. Results suggest that organizational justice enhances identification with the police organization, encourages officers to take on new roles, increases positive views of community policing, and is associated with greater self-reported compliance. Identification with the organization has generally positive implications; however, there is some danger that process fairness may encourage unthinking compliance with orders and instructions.
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 J Bright and H Dixie, 'Evidence of Green Leases in England and Wales' (2013) 6 International Journal of Law in the Built Environment [...]
This paper reports on research that investigates the use of green clauses in leases of office and retail premises in England and Wales. We examined 26 recent leases of green build properties registered at HM Land Registry. The green clauses discovered were classified, and compared with the model form green clauses promoted by the London based Better Building Partnership’s Green Lease Toolkit.
S J Bright, 'Green Leases – Becoming more usual? ' (2013) Estates Gazette
A S Burrows, 'Numbers Sitting in the Supreme Court' (2013) 129 Law Quarterly Review 305
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, 'In defence of consideration' (2013) 13 Oxford University Commonwealth Law Journal 209
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.
R Condry and Caroline Miles, 'Adolescent to Parent Violence: Framing and Mapping a Hidden Problem' (2013) Criminology and Criminal Justice (forthcoming) [...]
Adolescent to parent violence is virtually absent from policing, youth justice and domestic violence policy, despite being widely recognized by practitioners in those fields. It is under-researched and rarely appears in criminological discussions of family or youth violence. This article presents the first UK analysis of cases of adolescent to parent violence reported to the police. We analyse victim, offender and incident characteristics from 1892 cases reported to the Metropolitan Police in 2009–2010, most of which involved violence against the person or criminal damage in the home. Our findings reveal that adolescent to parent violence is a gendered phenomenon: 87 per cent of suspects were male and 77 per cent of victims were female. We argue that the absence of adolescent to parent violence from criminological discourse must be addressed if criminology is to have a thorough understanding of family violence in all its forms.
K Bullock and R Condry, 'Responding to denial, minimization and blame in correctional settings: The ‘real world’ implications of offender neutralizations' (2013) 10 European Journal of Criminology 572 [...]
This article examines ‘real-world’ implications of offender neutralizations. Drawing on empirical evidence derived from a study of the operation of community-based cognitive-behavioural programmes for perpetrators of domestic violence, it focuses on the implications, for offenders, of displaying neutralizations in correctional treatment settings. This article draws attention to the complex relationship between neutralization and correctional group work practice. First, it demonstrates that neutralization of offending does not always have the negative implications for offenders that have been assumed by some commentators. Neutralization may not preclude enrolment on to a correctional programme, is not always challenged in a confrontational way by practitioners and does not automatically result in suspension and the application of more punitive criminal sanctions. Second, the article demonstrates the difficulties that practitioners and participants face in tackling neutralizations in this context. Our findings suggest a need to rethink the central role that neutralizations play in aspects of contemporary criminal justice practice.
P P Craig, 'EU Accession to the ECHR: Competence, Procedure and Substance' (2013) 36 Fordham International Law Journal 1115
P P Craig, 'Pringle and Use of EU Institutions Outside the EU Legal Framework: Foundations, Procedure and Substance' (2013) 9 EuConst 263
P P Craig, 'Pringle: Legal Reasoning, Text, Purpose and Teleology ' (2013) 20 Maastricht Journal of European and Comparative Law 1
P P Craig, 'Review, Risk, Legality and Damages' (2013) 4 European Journal of Risk Regulation 399
P P Craig, 'The Nature of Reasonableness Review' (2013) Current Legal Problems 1
P P Craig, '‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence ' (2013) 9 European Public Law 503
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.
Liquidity shocks are a core risk of the business model of commercial banks, which is founded on a liquidity mismatch between the banks’ liabilities and assets. A substantial part of the banks’ funding comes from short-term retail and wholesale funding, whilst a substantial part of the assets are long-term and illiquid loans. This is the source of the banks’ profi ts, but also of their claim to fulfi l an important social role. Having argued that leaving the solution to this problem to the banks alone is unsafe, this article turns to examine three regulatory strategies for reducing the incidence of liquidity shocks or making banks more resilient to them. They are: regulating the level of banks’ liquidity reserves, insuring the value of the banks’ long-term assets and guaranteeing the discharge of the banks’ short-term liabilities. The criteria of assessment are the least impact on the banks’ social role of transforming short-term deposits into long-term loans, coupled with the least incentive for banks to take excessive risk, the least subsidy to banking and the least cost to the public purse. It is suggested that insuring the value of the banks’ long-term assets emerges as the most attractive strategy.
P S Davies and Graham Virgo, 'Relieving trustees' mistakes'  RLR (forthcoming)
A C L Davies, 'This Time, it’s for Real: the Health And Social Care Act 2012' (2013) 76 Modern Law Review 564 [...]
This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act’s policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. I argue that the reforms threaten accountability for three reasons: they make the Secretary of State for Health’s relationship with the NHS more complex, they create opaque networks of non-statutory bodies which may influence NHS decision-making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable - privatisation of the NHS.
E Descheemaeker, 'De la structure de la responsabilité : réflexions comparatistes autour de Torts and Rights' (2013) Revue internationale de droit comparé 51 [...]
This review article examines Robert Stevens’ Torts and Rights, arguably the single most important work on English tort law published over the last decade. Professor Stevens’ thesis is that the English law of torts can be analysed throughout as the body of law that pertains to the violation of primary rights. This argument has far-reaching consequences, in particular when it comes to the transversal tort of negligence, which are of comparative significance. The present author explains the significance of Professor Stevens’ argument against the historical background of English law and proceeds to offer a criticism based on the allegedly defective understanding that the book has of the concept of rights.
E Descheemaeker, 'Quasi-contrats et enrichissement injustifié en droit français' (2013) 112 Revue trimestrielle de droit civil 1 [...]
Of Justinian’s four classes of obligations (ex contractu, quasi ex contractu, ex delicto, quasi ex delicto), the quasi-contractual one has resisted rationalisation the longest. This paper makes the claim that quasi-contracts should disappear, as a category, from French law and be replaced with a general action in unjustified enrichment. It also explores the difficulties that such a switch would entail.
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 M Eekelaar, 'Then and Now: Family Law's Direction of Travel' (2013) 35 Journal of Social Welfare and Family Law 415 [...]
By comparing reported cases from 1959-60 with those in 2011, the article reveals the way family law has changed over this period, becoming much more attuned to people's real problems. This has however thrown up difficulties in its application; some of the responses to these difficulties are considered.
R Ekins, 'Updating the Meaning of Violence' (2013) 129 Law Quarterly Review (forthcoming)
P Eleftheriadis, 'Legality and Reciprocity' (2013) Jerusalem Review of Legal Studies
TAO Endicott, 'Interpretation and Indeterminacy' (2013) Jerusalem Review of Legal Studies, forthcoming
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.
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.
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.
E Fisher, 'Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v EPA' (2013) 39 Law and Policy 236 [...]
Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co-production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.
The polycentric, interdisciplinary, normative and scientifically uncertain nature of environmental problems leads to a body of environmental law in which it can be difficult to settle on a single frame for understanding a problem and thus to identify relevant parties, the relationships between them, and the courses of action that can be taken. Using Michel Callon’s terminology this can be understood as ‘hot situations’ leading to ‘hot law’. In this Introduction to the Special Issue celebrating 25 years of the Journal of Environmental Law the nature of ‘hot environmental law’ is considered, as is the role of environmental law scholarship.
E Fisher, 'Framing Risk Regulation: A Critical Reflection' (2013) 4 European Journal of Risk Regulation 125
P Pascual, W Wagner and E Fisher, 'Making Method Visible: Improving the Quality of Science-Based Regulation' (2013) 2 Michigan Journal of Environmental and Administrative Law 429
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.
S Fredman and J. Fudge, 'The Legal Construction of Personal Work Relations and Gender' (2013) 7 Jerusalem Review of Legal Studies 112 [...]
The rigid divide between a standard employment contract and other work relations has always presented particular difficulties for women. There is a fundamental mismatch between the binary divide that is inscribed in law and many women’s experience, in which the boundaries between paid and unpaid work, between public and private, and between the labor market and social security are permeable and shifting. The effects of this mismatch are particularly felt among those women who predominate among “non-standard” workers, who find themselves characterized as “independent” or “quasi-independent” despite the reality of their lack of real autonomy or self-sufficiency in the market. But this mismatch also has serious effects for those women at any one time employed under an employment contract because of the incentives created by the law for employers to cut costs by re-characterizing their relationship as falling on the far side of the binary divide. Freedland and Kountouris’s extraordinarily perceptive book, The Legal Construction of Personal Work Relations, not only allows us to escape from this rigid legal typology, it sheds light on the complex interactions between the many different personal work relations and labor market statuses that women engage in throughout their lives, pointing the way to a system of legal entitlements which better reflects these realities. In this review, we focus on the analytical and normative contributions made by The Legal Construction of Personal Work Relations2 in understanding and addressing how the current process of legal categorization disadvantages women workers. In the first part, we outline the critical analytical and conceptual advances that Freedland and Kountouris make in the legal categorization of work relations. In the second part, we draw out the implications of their analysis in three areas that are shaped by the relationship between women’s paid and unpaid work: precarious work; equal pay and job segregation; and maternity and parental rights.
D 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.
John Gardner, 'Reasons and Abilities: Some Preliminaries' (2013) 58 American Journal of Jurisprudence 63 [...]
This paper takes some first steps in a study of the thesis that “ought” implies “can.” Considerable attention is given to the proper interpretation of the thesis, including the interpretation of “ought,” the interpretation of “can,” and the interpretation of “implies.” Having chosen a particular interpretation of the thesis to work on—in some ways its broadest interpretation—the paper tries to bring out some considerations that bear on its truth or falsity. After an excursion into the general theory of value, this paper finds it false. The paper concludes with the suggestion that part of its allure comes of confusion with another thesis, namely the thesis that “ought to try” implies “can succeed.” Suitably qualified, this last thesis is true, and the false thesis that “ought” implies “can” basks in the reflected glory. Left for another day are narrower interpretations of “ought” implies “can” which may protect it against my objections.
R George and O Cominetti, 'Relocation in English Law: Thorpe LJ’s Discipline and Its Application'  International Family Law 149
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)
I Goold, 'Property or Not Property? The Spectrum of Approaches to Regulating the Use of Human Bodily Material' (2013) Journal of Law and Medicine (forthcoming)
I Goold, 'The Concise Argument: Withholding Artificial Nutrition and Hydration' (2013) 39 Journal of Medical Ethics 541
Lawyers and philosophers have long debated whether law should enforce social morality. This paper explores whether law should improve social morality. It explains how this might be possible, and what sort of obstacles, factual and moral, there are to doing so. It concludes with an example: our law should attempt to improve our social morality of sexual conduct.
N Gur, 'Actions, Attitudes, and the Obligation to Obey the Law' (2013) 21 Journal of Political Philosophy 326
J J W Herring, 'A Lost Cause' (2013) 17 May 2013 New Law Journal [...]
A discussion of whether unmarried cohabitants are discriminated against if treated unlike married couples
J J W Herring, 'Forging a relational approach: Best interests or human rights?' (2013) Medical Law Internation
J J W Herring, 'Mental disability and capacity to consent to sex' (2013) 34 Journal of Social Welfare and Family Law 471
Imogen Goold, Loane Skene and J J W Herring, 'Regulating the Use of Human Bodily Material' (2013) 245-250 Journal of Law and Medicine
J J W Herring and P-L Chau, 'Relational Bodies' (2013) 21 Journal of Law and Medicine 294
J J W Herring and Oliver Powell, 'The rise and fall of presumptions surrounding the welfare principle' (2013) 43 Family Law 553
A Higgins, 'A defence of qualified one way cost shifting' (2013) 32 Civil Justice Quarterly 198
E Hudson, 'Implementing Fair Use in Copyright Law: Lessons from Australia' (2013) 25 Intellectual Property Journal 201
There are at least fifteen statutes which use the term 'constitution' or its cognates to refer to the constitution of the United Kingdom (or that of England or Scotland, before the political union of these countries). Of these fifteen pieces of legislation, two date back to the 17th century, one was enacted in the 18th century, another in the 19th century, and one more between 1900 and 1995. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books. In this article, I categorise these statutory references to the British constitution, and point to some important legal and constitutional implications of such references.
M Kurkchiyan, 'Civil Courts in Ukraine: a Window into Society ' (2013) Journal of Law and Society (forthcoming)
M Kurkchiyan, 'Justice Through Bureaucracy: The Ukrainian Model' (2013) Social Legal Studies
M Köpcke Tinturé, 'Concept and Purpose in Legal Theory: How to "Reclaim" Fuller' (2013) 58 American Journal of Jurisprudence 75
L Lazarus and Ryan Goss, 'Criminal Justice under the UK Human Rights Act: dynamic interaction between domestic and international law' (2013) Singapore Academy of Law Journal [...]
The article demonstrates how, both before and after the HRA, UK courts and legislators have sought to reconcile common law approaches to protecting rights and liberties with the approaches of the Strasbourg Court. It uses the development of the case law as an insight into a dynamic institutional dialogue: how interaction with the ECtHR has shaped the way that UK courts, governments and Parliament have acted on criminal justice issues and vice versa.
D Leczykiewicz, 'Horizontal Application of the Charter of Fundamental Rights' (2013) 38 European Law Review 479
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.
I Loader, B Goold and A Thumala, 'The Banality of Security: The Curious Case of Surveillance Cameras' (2013) 53 British Journal of Criminology 977
G Loutzenhiser, 'Tax Avoidance, Private Companies and the Family' (2013) Cambridge Law Journal (forthcoming)
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
D P Nolan, 'Damage in the English Law of Negligence' (2013) 4 Journal of European Tort Law 259
D P Nolan, 'Deconstructing the Duty of Care' (2013) 129 Law Quarterly Review 559
D P Nolan, 'Negligence and Human Rights: The Case for Separate Development' (2013) 76 Modern Law Review 286
D P Nolan, 'The Liability of Financial Supervisory Authorities' (2013) 4 Journal of European Tort Law 190
D P Nolan, 'Varying the Standard of Care in Negligence' (2013) 72 Cambridge Law Journal 651
M Mendelson and M Paparinskis, 'Bail-ins and the International Investment Law of Expropriation: in and beyond Cyprus' (2013) 28 Journal of International Banking and Financial Law (forthcoming)
M Paparinskis, 'Investment Treaty Arbitration and the (New) Law of State Responsibility ' (2013) 24 European Journal of International Law 617 [...]
The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions provided by the regimes that formed the background for its creation.
M Paparinskis, 'Procedural Aspects of Shared Responsibility in the International Court of Justice' (2013) 4 Journal of International Dispute Settlement 295 [...]
In recent years, the International Court of Justice has been increasingly asked to adjudicate upon claims of State responsibility that raise or at least touch upon the possibility of international responsibility of multiple entities. In different substantive contexts, these cases raise similar conceptual questions that might be articulated by reference to the concept of ‘shared responsibility’. The focus of this article is on procedural matters, and in particular on how shared responsibility may be implemented in the ICJ. The argument will be made in three steps, dealing in turn with the manner in which cases concerning shared responsibility could be brought before the Court, the way how such cases could be handled, and the challenges raised in such cases by absent parties. The article argues for a nuanced consideration of the rationale of the procedural challenges: some are unremarkable in conceptual terms and reflect the broader judicial architecture of the Court, while others are of particular importance for shared responsibility, even though the particular legal issue might be mutatis mutandis relevant to other multilateral disputes.
J Payne, 'Cross-border schemes of arrangement and forum shopping' (2013) European Business Organization Law Review (forthcoming) [...]
In recent years there has been a growth in the use of English schemes of arrangement by companies registered in other EU Member States. High profile recent examples include TeleColumbas GmbH, Rodenstock GmbH, and Primacom Holdings GmbH. In each case these companies were able to access the English scheme jurisdiction without shifting their seat or COMI to the UK. This paper investigates this phenomenon, considering the use of an English scheme of arrangement and why it might be regarded as valuable to these companies. The paper then tackles two issues. First, it assesses how these companies are able to access the English scheme jurisdiction, and, in particular, analyses the potential application of both the Insolvency Regulation and the Judgments Regulation in this regard. As part of this analysis the recognition and enforcement of English schemes of arrangement in other Member States is discussed. Second, it considers whether this use of English schemes gives rise to issues of forum shopping. This paper rejects the idea that forum shopping should be regarded as a concern in this context.
W E Peel, 'The Termination Paradox' (2013) Lloyds Maritime & Commercial Law Quarterly 519 [...]
An article dealing with the circumstances in which termination for breach of contract pursuant to the express provisions of the contract may prevent submission that the contract was terminated for repudiatory breach, analysing the basis for such a finding (which appears to lie in affrmation), its consequences, and potential solutions for parties wishing to retain the right to sue for repudiatory breach
J Pila, 'The European Patent: An Old and Vexing Problem' (2013) 62(4) International & Comparative Law Quarterly
F Pirie, 'The limits of the state: coercion and consent in Chinese Tibet' (2013) 72 Journal of Asian Studies 69 [...]
Although China’s Tibetans profoundly mistrust the ideologies of the party-state, associating them with illegitimate practices of domination, protest and revolt are rare and effectively suppressed. This might be seen as quasi-colonial domination, the state securing subjection through the performance of paramount power, demonstrated by its suppression of the 2008 protests; or, it could be attributed to a form of indirect rule, by which local officials engage with local leaders to generate hegemonic consent. While both dynamics are present on the Tibetan plateau, ethnographic fieldwork among the Tibetan populations of Qinghai and Gansu provinces reveals that consent is primarily generated by local officials who negotiate a form of local order with religious and tribal leaders. Ignoring the ideological demands of their superiors, they engage constructively with the expectations of the Tibetans about how order should be maintained and, in doing so, subvert the state’s ideal of uniform and unitary sovereignty.
J Prassl, '"All in it Together?" Labour Markets in Crisis' (2013) 1 Hungarian Labour Law Journal (forthcoming)
J Prassl, 'A Tale of (Un?)Intended Consequences: Das Vereinigte Königreich in der Krise' (2013) 48 Gesellschaft & Politik (forthcoming)
J Prassl, 'Die Suche nach dem Arbeitgeber im Englischen Recht' (2013) Europäische Zeitschrift für Arbeitsrecht 472
J Prassl, 'Employee Shareholder "Status"? Dismantling the Contract of Employment' (2013) 42 ILJ 307
J Prassl, 'Implementing the New Employee-Shareholder Status' (2013) SJ 9
J Prassl, 'The European Union and The Montreal Convention: A New Analytical Framework' (2013) 12 Issues in Aviation Law and Policy 381
J Prassl, 'The Notion of the Employer' (2013) 129 LQR 380
J Prassl, 'Third Time Lucky? The Proposed Employee-Shareholder Status' (2013) SJ 19
E Ramaekers and B Akkermans, 'Free Movement of Goods and Property Law' (2013) 19 European Law Journal 237
WG Ringe, 'Corporate Mobility in the European Union – a Flash in the Pan? An empirical study on the success of lawmaking and regulatory competition ' (2013) European Company and Financial Law Review 230 [...]
This paper discusses new data on regulatory competition in European company law and the impact of national law reforms, using the example of English company law forms being used by German start-ups. Since 1999, entrepreneurs have been allowed to select foreign legal forms to govern their affairs. The data show that English limited companies have been very popular with German entrepreneurs in the first years of the last decade, but also document a sharp decline from early 2006 onwards. This decline casts doubt over the claim that the German company law reform from November 2008 had ‘successfully fought off’ the use of foreign company forms. Moreover, by contrasting the German data with the corresponding developments in Austria, the paper further demonstrates that the latter jurisdiction sees a similar decline without having reformed its company law. Instead of exclusively relying on law reform as the causal reason for declining foreign incorporation numbers, the paper offers a number of alternative or complementary explanations for the striking developments. The findings are important for our understanding of (defensive) regulatory competition and successful lawmaking.
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.
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.
This paper re-evaluates the corporate governance concept of ‘board independence’ against the disappointing experiences during the 2007-08 financial crisis. Independent or outside directors had long been seen as an essential tool to improve the monitoring role of the board. Yet the crisis revealed that they did not prevent firms’ excessive risk-taking; further, these directors sometimes showed serious deficits in understanding the business they were supposed to control, and remained passive in addressing structural problems. A closer look reveals that under the surface of seemingly unanimous consensus about board independence in Western jurisdictions, a surprising disharmony prevails about the justification, extent and purpose of independence requirements. These considerations lead me to question the benefits of the current system. Instead, this paper proposes a new, ‘functional’ concept of board independence. This would redefine independence to include those directors that are independent of the firm’s controller, but at the same time it would require them to be more accountable to (minority) shareholders.
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.
Hugh Beale and WG Ringe, 'Transfer of Rights and Obligations Under DCFR and CESL: Interactions with English and German Law' (2013) Oxford Legal Studies Research Paper No. 17/2013 [...]
The rules on assignment and transfer of rights and obligations are currently outside the scope of the proposed CESL. In contrast, the original DCFR from 2009 includes a chapter on these issues. Questions outside the scope of CESL are left to be solved by the ‘domestic’ provisions of the national law that is applicable under the relevant conflict-of-laws provisions. This paper is part of the larger CFR Context research project and explores interactions of the system of assignment of receivables under a future European contract instrument with both English and German national laws. This concerns above all other areas of law, for example the rules that apply upon the insolvency of one of the parties (in particular that of the assignor) and the rules on public policy. Key differences between the jurisdictions include, inter alia, the proprietary aspects of the assignor’s insolvency where the assignor is paid by the debtor, the priority rule for competing assignments, and the effects of a non-assignment clause. Here, the choice of the optional instrument rather than either English or German law will lead to diverging results and may therefore prejudice any of the parties involved.
J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues' (2013) Law and Contemporary Problems
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
J Rowbottom, 'Leveson, press freedom and the watchdogs' (2013) 21 Renewal 57
D Sarooshi, 'Provisional Measures and Investment Treaty Arbitration' (2013) 29 Arbitration International 361
A J B Sirks, 'Furtum and manus / potestas' (2013) 81 Tijdschrift voor Rechtsgeschiedenis (forthcoming) [...]
The nature of furtum has been subjected to various interpretations, often with the assumption that this changed between the Twelve Tables and end of the 2nd century AD. It is submitted here that the delict was originally an intrusion upon the power of the pater familias and in its most acute form (furtum manifestum) punished with a religious sanction, viz. declaring the fur sacer. The same sanction is found in the Twelve Tables for other delicts, connected with the power of the pater familias. Since manifest furtum always implied that the fur was caught red handed, desacralisation of the delict led to a reduction of this to mere being caught in the act.
ISBN: ISSN 0040-7585
A J B Sirks, 'Noxa caput sequitur' (2013) 81 Tijdschrift voor Rechtsgeschiedenis 81 [...]
Generally it is assumed that caput in the phrase noxa caput sequitur refers to the delinquent slave or filius familias. The liability for the delict is attached to his person. It is argued, however, that caput refers to the pater familias of the deliquent. The Twelve Tables contained a rule on their direct and personal liability (with surrender to the autorities). The introduction of the edicts on furtum and the lex Aquilia, with the direct and exclusive liability of the pater familias for the wrongdoings of those, subjected to his potestas, led to a correction: the pater could now refuse to defend them and surrender them to the authorities, or engage in the process, with afterwards still the possibility to surrender, now to the plaintiff. The phrase as such refers then to the inclusion of the decemviral rule on liability of persons, subjected to patria potestas, into the formulas for the delicts.
ISBN: ISSN 0040-7585
A J B Sirks, 'The parallel universes of Baker, Joblin and Julian: causation and law' (2013) 17 Edinburgh Law Review 22–36
A Tzanakopoulos and CJ Tams, 'Domestic Courts as Agents of Development of International Law' (2013) 26 Leiden Journal of International Law 531 [...]
The introductory paper to a symposium issue of the Leiden Journal of International Law, edited by the authors, dealing with the function of domestic courts as agents for the development of international law. The paper 'sets the scene' for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organisations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic court decisions on the development of international law, and introduces the concept of 'agents' of international law development. This is the analytical perspective that the contributions to the symposium adopt.
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.
E De Wet and J Vidmar, 'Conflicts between International Paradigms: Hierarchy versus Systemic Integration' (2013) Global Constitutionalism 196
J Vidmar, 'Democracy and Regime-Change in the post-Cold War International Law' (2013) New Zealand Journal of Public and International Law (forthcoming)
J Vidmar, 'Palestine and the Conceptual Problem of Implicit Statehood' (2013) 12 Chinese Journal of International Law 19
J Vidmar, 'Rethinking Jus Cogens after Germany v. Italy: Back to Article 53?' (2013) 60 Netherlands International Law Review 1
J Vidmar, 'Territorial Integrity and the Law of Statehood' (2013) 44 George Washington International Law Review 697
J Vidmar, 'Unilateral Secession in a Multipolar World' (2013) 107 Proceedings of the American Society of International Law (forthcoming)
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.
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.
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
S Wallerstein, 'Oblique Intent in English and Jewish Law' (2013) (forthcoming)
Simon Whittaker, 'Identifying the Legal Costs of Operation of the Common European Sales Law' (2013) 50 Common Market Law Review 85
R Williams, 'Voluntary intoxication – A lost cause?' (2013) Law Quarterly Review 264 [...]
The article argues that there are two key problems with the current law concerning voluntary intoxication. First, the rules applicable so-called crimes of basic intent, contrary to some of the more recent case law, can in fact only apply coherently to reckless result crimes. Second, given the differences between the threshold for liability for sober defendants and the threshold for liability for voluntarily intoxicated defendants, the current rules amount in cases of basic intent to criminalisation of the intoxication itself. If this is to be the case, the article argues that the law should take this approach openly, so that in any case where the defendant lacks mens rea as a result of voluntary intoxication (s)he should be convicted instead of a new statutory offence of 'committing the actus reus of offence X while intoxicated', which could also apply coherently to all offences.
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.
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.
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.
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.
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.
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
D Awrey, 'Complexity, Innovation and the Regulation of Modern Financial Markets' (2012) 2:2 Harvard Business Law Review 235
N C Bamforth, 'Sexuality and citizenship in contemporary constitutional argument' (2012) 10 International Journal of Constitutional Law 477
N. W. Barber, 'The Separation of Powers in the British Constitution ' (2012) Law: The Journal of the Higher School of Economics 3
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
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.
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.
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)
A Bogg and T Novitz, 'Investigating "Voice" at Work' (2012) Comparative Labor Law and Policy Journal (forthcoming)
A Bogg, 'Michael Sandel and Trade Union Rights' (2012) International Union Rights (forthcoming)
A Bogg, 'Sham Self-Employment in the Supreme Court' (2012) forthcoming Industrial Law Journal
A Bogg, 'The Death of Statutory Union Recognition in the United Kingdom' (2012) Journal of Industrial Relations (Australia) (forthcoming)
M Dempsey, C Hoyle and M Bosworth, 'Defining Sex Trafficking in International and Domestic Law: Mind the Gaps' (2012) Emory International Law Review (forthcoming)
M Bosworth, 'Deportation and Immigration Detention: Globalising the Sociology of Punishment' (2012) 16 Theoretical Criminology (forthcoming)
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.
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.
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.
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.
A Braun, 'Formal and Informal Testamentary Promises: A Historical and Comparative Perspective' (2012) The Rabel Journal of Comparative and International Private Law 994
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
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
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.
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.
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.
A S Burrows, 'Restitution of Mistaken Enrichments ' (2012) 92 Boston University Law Review 767
A S Burrows, 'The Relationship between Common Law and Statute in the Law of Obligations' (2012) 128 Law Quarterly Review 232
R Condry and C Miles, 'Adolescent to parent violence and youth justice in England and Wales' (2012) 11 Social Policy & Society 241 [...]
Adolescent to parent violence is a problem which remains largely unarticulated within youth justice policy literature and academic discourse in England and Wales. This article presents research evidence suggesting that adolescent to parent violence is a significant problem which needs to be clearly addressed in the youth justice policy agenda. Although it is widely recognised by practitioners and regularly encountered in their work, there is a ‘silence’ at the policy level and a lack of appropriate support services or responses. The article considers reasons for the absence of adolescent to parent violence in youth justice policy and argues for the importance of recognising and defining the problem and for the development of appropriate responses.
C Costello, 'Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored ' (2012) Human Rights Law Review 287
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
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
P P Craig, 'Subsidiarity: A Political and Legal Analysis' (2012) 50 Journal of Common Market Studies 72
P P Craig, 'The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism' (2012) 37 European Law Review 231
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 C L Davies, 'Identifying ‘Exploitative Compromises’: The Role Of Labour Law In Resolving Disputes Between Workers' (2012) Current Legal Problems 269 [...]
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.
P S Davies, 'Making mistakes' (2012) 24 NLSIR 97
A C L Davies, 'Recent Developments in Labour Law in the United Kingdom' (2012) Europaische Zeitschrift für Arbeitsrecht
P S Davies, 'Rectifying the course of rectification' (2012) 75 MLR 412
P S Davies, 'Risk in unjust enrichment'  RLR 27
E Descheemaeker and others, 'Forum Privatrechtsharmonisierung: Eine europäische Öffentlichkeit?' (2012) Zeitschrift für Gemeinschaftsprivatrecht 286
J Dickson, 'State of the Art in Legal Philosophy' (2012) forthcoming Peruvian Journal of Legal Philosophy
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.
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.
S Douglas-Scott, 'EU Admission to the ECHR' (2012) 19 Maastricht Journal of European and Comparative Law
S Douglas-Scott, 'Pluralism and Justice in the EU' (2012) 65 UCL Current Legal Problems series 83
Dyson, 'British Westinghouse Revisited'  LMCLQ 412
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.
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.
R Ekins, 'Equal Protection and Social Meaning' (2012) 57 American Journal of Jurisprudence (forthcoming)
P Eleftheriadis, 'A Right to Health Care' (2012) 40 Journal of Law, Medicine and Ethics 268
P Eleftheriadis, 'Descriptive Jurisprudence' (2012) 5 Problema 117
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.
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.
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 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 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.
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.
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.
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)
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)
Sidney Shapiro, E Fisher and Wendy Wagner, 'The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy' (2012) Wake Forest Law Review 463
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.
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.
M R Freedland, 'Employment equality and personal work relations – a critique of Jivraj v Hashwani' (2012) 56 Industrial Law Journal
J Freedman, 'GAAR as a process and the process of discussing the GAAR'  British Tax Review
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
John Gardner, 'Corrective Justice, Corrected' (2012) 12 Diritto & Questioni Pubbliche 9
John Gardner, 'In Defence of Offences and Defences' (2012) 4 Jerusalem Review of Legal Studies 110
John Gardner, 'Torts and Other Wrongs' (2012) 39 Florida State University Law Review 43
John Gardner, 'Wrongdoing by Results: Moore\'s Experiential Argument' (2012) 18 Legal Theory 459 [...]
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 ï¿½experiential argumentï¿½. In this comment I attempt to analyze Mooreï¿½s ï¿½experiential argumentï¿½ in some detail and thereby to bring out why it doesnï¿½t 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.
R George, 'International Relocation, Care Arrangements and Case Taxonomy' (2012) Family Law 1478
R George, 'Relocation Research: Early Ideas from Ten County Court Cases' (2012) Family Law 700
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
R George, 'The International Relocation Debate' (2012) Journal of Social Welfare and Family Law 141
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.
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.
I Goold, 'The Concise Argument: Highlights from this issue ' (2012) 38 Journal of Medical Ethics 133
J Goudkamp, 'The Young Report: An Australian Perspective on the Latest Response to Britain's "Compensation Culture" ' (2012) 28 Journal of Professional Negligence 4
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.
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.
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
L Gullifer, 'PERSONAL PROPERTY SECURITY LAW: WHERE NEXT? PART 2 ' (2012) Butterworths Journal of International Banking and Financial Law 541
L Gullifer, 'Personal Property Security Law: Where Next? (Part 1)' (2012) Butterworths Journal of International Banking and Financial Law 465
L Gullifer, 'The reform of the English law of secured transactions' (2012) 213 Droit et patrimoine (Kluwer) 72
L Gullifer, 'What should we do about Financial Collateral?' (2012) Current Legal Problems
N Gur, 'Normative Weighing and Legal Guidance of Conduct' (2012) 25(2) Canadian Journal of Law and Jurisprudence 359
J J W Herring, 'Breaking the chain' (2012) New Law Journal 705 [...]
A discussion of financial orders on dissolution of civil partnerships
J J W Herring, 'Different strokes' (2012) New Law Journal 1018 [...]
Discussion of Re T (Children) on costs orders in family cases
J J W Herring, 'Double Jeopardy. When is a marriage not a marriage?' (2012) New Law Journal 317
Article on decision-making
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.
J J W Herring, 'What's wrong with kidnapping?'  Criminal Law Review 343 [...]
Consideration of proposed reforms to the law on kidnapping.
A Higgins, 'Legal lessons from the News of the World phone hacking scandal' (2012) 31 Civil Justice Quarterly 274
A Higgins, 'Open door disclosure in civil proceedings' (2012) 16 International Journal of Evidence and Proof 298
A Higgins, 'Referral fees: the business of access to justice' (2012) 32 Legal Studies 109
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.
M Madden Dempsey, C Hoyle and M Bosworth, 'Defining Sex Trafficking in International and Domestic Law: Mind the Gaps' (2012) 26 Emory International Law Review 101
A Kavanagh, 'The Irish Constitution at 75 Years: Natural Law, Christian Values and the Ideal of Justice' (2012) 48 Irish Jurist 71
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.
T Krebs, 'Yearworth and the Law of Contract' (2012) Journal of Medical Ethics Special Issue - Human Body Parts/Property
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
N Lacey, 'Political Systems and Criminal Justice: The Prisoners\' Dilemma After the Coalition ' (2012) Current Legal Problems
N Lacey, 'Punishment in the Perspective of Comparative Political Economy' (2012) 44 Kriminologische Journal 9-31 9
N Lacey, '‘Reflections on the Philosophy of Law’' (2012) Rivista di filosofia del diritto 91
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
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
I Loader and S Percy, 'Bringing the ‘Outside’ In and the ‘Inside’ Out: Crossing the Criminology/IR Divide' (2012) 13 Global Crime 213
G Loutzenhiser, 'Finance Act 2012, Section 8 and Schedule 1: high income child benefit charge'  British Tax Review 370
R Condry and C Miles, 'Adolescent to Parent Violence and Youth Justice in England and Wales' (2012) 11 Social Policy and Society 241
C Miles, 'Intoxication and Homicide: A Context-Specific Approach' (2012) 52 British Journal of Criminology 870
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.
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)
J Morgan, 'A mare's nest? The Jockey Club and judicial review of sports governing bodies' (2012) 12 Legal Information Management 102
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)
M Paparinskis, 'Investment Law of/for/before the 21st Century' (2012) 25 Leiden Journal of International Law 225
J Payne, 'The Regulation of Short Selling and its reform in Europe' (2012) European Business Organization Law Review 413 [...]
The issue of whether and how to regulate short selling has been an issue that has vexed regulators for some time. While there are a number of potentially damaging consequences that are said to stem from short selling, there is also evidence that it can have beneficial effects on financial markets. In the wake of the collapse of Lehman Brothers in September 2008, and more particularly the falls in the prices of listed financial securities that followed, the regulation of short selling has come back onto the regulatory agenda with a vengeance. Various regulatory techniques, some temporary and some more permanent, have been adopted to deal with short selling. This paper explores those implemented in the US, the UK, Germany and France. The EU has also been developing its regulatory response and in February 2012 the final text of a regulation dealing with short selling was agreed. This paper considers the arguments for and against the regulation of short selling, and considers the EU’s short selling regulation in the light of these arguments. It is suggested that although the provisions of the EU’s regulation introducing disclosure to the regulator are broadly sensible, as are the provisions designed to foster a stricter settlement regime, other provisions are more problematic and have the potential to cause damage to European financial markets.
J Pila, 'Intellectual Property Rights and Detached Human Body Parts' (2012) Journal of Medical Ethics
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
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 54–74
J Prassl, 'Industrial Action at British Airways: A Case Study' (2012) 11 Contemporary Issues in Law 113
E 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
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.
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.
J Roberts, 'Points of Departure: Reflections on Sentencing Outside the Definitive Guidelines Ranges '  Criminal Law Review
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
J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments ' (2012) Punishment and Society. The International Journal of Penology
J Roberts, 'Structured Sentencing in Canada and England and Wales: A Tale of Two Jurisdictions ' (2012) Criminal Law Forum
J Roberts and M. Manikis, 'Victim Impact Statements at Sentencing: Developments in Caselaw. ' (2012) Victims of Crime Research Digest
J Rowbottom, 'Lies, Manipulation and Elections: Controlling False Campaign Statements' (2012) 32 Oxford Journal of Legal Studies 507 [...]
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 Rowbottom, 'To Rant, Vent and Converse: Protecting Low Level Digital Speech ' (2012) 71 Cambridge Law Journal 355 [...]
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.
D Sarooshi, 'When international financial institutions arbitrate: what law governs international investment arbitration' (2012) 27 Butterworths Journal of International Banking and Financial Law 612
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.
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, 'The purpose of the lex Fufia Caninia' (2012) 129 Zeitschrift der Savigny-Stiftung Rom. Abt. 549 [...]
The lex Fufia Caninia set limits to testamentary enfranchisement. It is suggested that this was done to reserve for the heir as manumitter a sizable amount of claims on inheritances of his inherited slaves.
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.
R Taylor and L Hoyano, 'Criminal Child Maltreatment: the Case for Reform' (2012) Criminal Law Review 871
J Vella, 'The Financial Transaction Tax Debate: Some Questionable Claims' (2012) Volume 47 Intereconomics 90
J Vidmar, 'Conceptualizing Declarations of Independence in International Law' (2012) Oxford Journal of Legal Studies 153
J Vidmar, 'Explaining the Legal Effects of Recognition' (2012) International and Comparative Law Quarterly 361
J Vidmar, 'South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States' (2012) Texas International Law Journal 541
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.
S Vogenauer, 'Elaborare il diritto europeo dei contratti' (2012) Contratto e impresa/Europa 125-56
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.
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
S R Weatherill, 'The Consumer Rights Directive: how and why a quest for “coherence” has (largely) failed' (2012) 49 Common Market Law Review nya
D O'Brien and S Wheatle, 'Post-Independence Constitutional Reform In The Commonwealth Caribbean And A New Charter Of Fundamental Rights And Freedoms For Jamaica'  Public Law 683 (forthcoming)
S 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
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 L Young, 'The Rule of Law in the United Kingdom: Formal or Substantive?' (2012) 6 International Constitutional Law 259
P Yowell, 'Legislación, precedente, y virtud de la claridad' (2012) Revista Chilena de Derecho (forthcoming)
A Ashworth and L Zedner, 'Prevention and Criminalization: Justifications and Limits' (2012) 15 New Criminal Law Review 542
L Zedner, 'Risiko, Sicherheit und Terrorismus: Drei Konzepte auf der Suche nach einer akademishen Disziplin' (2012) 10 Kriminiologisches Journal 30
D Akande, C. Jalloh and M. du Plessis, 'Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court' (2011) 4 African Journal of Legal Studies 5 [...]
This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability eﬀorts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider signiﬁcance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world.
D Akande and Sangeeta Shah, 'Immunities of State Officials, International Crimes and Foreign Domestic Courts: A Rejoinder to Alexander Orakhelashvili ' (2011) 22 European Journal of International Law 857
J Armour and W.-G. Ringe, 'European Corporate Law 1999-2010: Renaissance and Crisis' (2011) 48 Common Market Law Review 125 [...]
European corporate law has enjoyed a renaissance in the past decade. Fifteen years ago, this would have seemed most implausible. In the mid–1990s, the early integration strategy of seeking to harmonize substantive company law seemed to have been stalled by the need to reconcile fundamental differences in approaches to corporate governance. Little was happening, and the grand vision of the early pioneers appeared more dream than ambition. Yet since then, a combination of adventurous decisions by the Court of Justice, innovative approaches to legislation by the Commission, and disastrous crises in capital markets has produced a headlong rush of reform activity. The volume and pace of change has been such that few have had time to digest it: not least policymakers, with the consequence that the developments have not always been well coordinated. The recent financial crisis has yet again thrown many – quite fundamental – issues into question. In this article, we offer an overview that puts the most significant developments of this decade into context, alongside each other and the changing patterns of corporate structure in European countries. Such developments cover, for instance, corporate mobility, corporate freedom of establishment, golden shares case law, as well as the Commission’s Company Law Action Plan CLAP and Financial Services Action Plan FSAP. Harmonization of Member States’ company laws on the rules governing listed companies and the facilitation of cross-border restructuring are also examined.
J Armour, J. Jacobs and C. Milhaupt, 'The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework' (2011) 52 Harvard International Law Journal 219 [...]
n each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange. This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries. The framework identifies a range of supply and demand dynamics that drives the evolution of business law in response to new market developments. It emphasizes the common role of subordinate lawmakers in filling the vacuum left by legislative inaction, and it highlights the prevalence of “preemptive lawmaking” to avoid legislation that may be contrary to the interests of important corporate governance players. Extrapolating from the analysis of developed economies, the framework also illuminates the current state and plausible future trajectory of hostile takeover regulation in the important emerging markets of China, India, and Brazil. A noteworthy pattern that the analysis reveals is the ostensible adoption—and adaptation—of “best practices” for hostile takeover regulation derived from Delaware and the United Kingdom in ways that protect important interests within each emerging market’s national corporate governance system.
B.R. Cheffins and J Armour, 'The Past, Present and Future of Shareholder Activism by Hedge Funds' (2011) 37 Journal of Corporation Law 51 [...]
The forthright brand of shareholder activism hedge funds deploy emerged by the mid-2000s as a major corporate governance phenomenon. This Article explains the rise of hedge fund activism and offers predictions about future developments. The Article begins by distinguishing the “offensive” form of activism hedge funds engage in from “defensive” interventions “mainstream” institutional investors (e.g. pension funds or mutual funds) undertake. Variables influencing the prevalence of offensive shareholder activism are then identified using a heuristic device, “the market for corporate influence.” The rise of hedge funds as practitioners of offensive shareholder activism is traced by reference to the “supply” and “demand” sides of this market, with the basic chronology being that, while there were direct antecedents of hedge fund activists as far back as the 1980s, hedge funds did not move to the activism forefront until the 2000s. The Article brings matters up-to-date by discussing the impact of the recent financial crisis on hedge fund activism and draws upon the market for corporate influence heuristic to predict that activism by hedge funds is likely to remain an important element of corporate governance going forward.
A Ashworth, 'Ignorance of the Criminal Law, and Duties to Avoid it' (2011) 74 Modern Law Review 1 [...]
A critique of the doctrine that ignorance of the criminal law is no excuse, showing how preposterous the doctrine is and arguing that, even if it should continue in a muted form, it should be accompanied by positive duties on the State to publicise its criminal laws.
A Ashworth, 'The Unfairness of Risk-Based Possession Offences' (2011) 5 Criminal Law and Philosophy 237 [...]
The article argues that certain criminal offences of possession, i.e. 'risk-based possession offences', cannot be justified within current criminal law doctrines.
D Awrey, 'Regulating Financial Innovation: A More Principles-based Alternative?' (2011) 5:2 Brooklyn Journal of Corporate, Financial and Commercial Law 273
D Awrey, 'The Limits of EU Hedge Fund Regulation' (2011) 5:2 Law and Financial Markets Review 119
N C Bamforth, 'New Natural Law, Religion and Same-Sex Marriage: Current Constitutional Issues' (2011) Wake Forest Journal of Law and Policy 207
N. W. Barber, 'The Afterlife of Parliamentary Sovereignty' (2011) 9 International Journal of Constitutional Law 144
A Bogg, 'Good Faith in the Contract of Employment: A Case of the English Reserve?' (2011) 32 Comparative Labor Law and Policy Journal 729 [...]
A theoretical analysis of the concept of good faith in the personal employment contract (approx 15,000 words)
M Bosworth, 'Deporting Foreign National Prisoners in England and Wales ' (2011) 15 Citizenship Studies 583
M Bosworth and E Kaufman, 'Foreigners in a Carceral Age: Immigration and Imprisonment in the U.S.' (2011) 22 Stanford Law & Policy Review 101
C Hoyle, M Bosworth and M Dempsey, 'Labelling the Victims of Sex Trafficking: Exploring the borderland between rhetoric and reality' (2011) 20 Social & Legal Studies 313
M Bosworth, 'Penal Moderation in the US: Yes We Can?' (2011) 10 Criminology & Public Policy 335
M Bosworth, C Hoyle and M Dempsey, 'Researching Trafficked Women: Some Thoughts on Methodology' (2011) 17 Qualitative Inquiry 769
B Bradford, 'Convergence not divergence? Trends and trajectories in public contact and confidence in the police' (2011) 51 The British Journal of Criminology 179 [...]
Public trust and confidence are vital to the police function. There has been much comment and debate about the apparent decline in confidence in the British police since the 1950s, most frequently evidenced by data from the British Crime Survey (BCS). Yet, there has been relatively little in-depth interrogation of the data at the heart of the discussion. Pooling data from 11 sweeps of the BCS (1984 to 2005/06), this paper shows a homogenization over time in trends in trust and confidence and experiences of encounters with the police. This pattern is found across both age and ethnicity, and can also be identified in other variables. The story that emerges therefore differs from analyses that emphasize the increasingly diffuse and variable nature of public experiences of the police.
J Jackson and others, 'Developing European indicators of trust in justice ' (2011) 8 European Journal of Criminology [...]
Like other modern-day democracies, Belgium has in the last quarter century introduced many changes in its system for justice administration, by undertaking judicial reforms and commissioning empirical research on public confidence. Following long years of fierce criticism of the police and the criminal justice system since the late 1980s, the turn of the century witnessed three quantitative surveys (the Justice Barometers) in 2002, 2007 and 2010. These were complemented by several qualitative studies in specific districts or with specific groups. Although many variables appear to exert some influence on public confidence, the one that emerges time and again is the degree of contact with the justice system and the ensuing negative perceptions that result from it. This contribution describes the most salient findings of this decade of public opinion research on the criminal justice system in Belgium and reflects on the implications for judicial policy-making.
A Myhill and others, 'It Depends What You Mean by Confident: Operationalizing Measures of Public Confidence and the Role of Performance Indicators' (2011) 5 Policing: A Journal of Policy and Practice 114 [...]
Centralized performance frameworks for the police in England and Wales have been the subject of considerable debate. Evidence from both the British Crime Survey and local force surveys shows that setting performance targets for public confidence in the police based on single indicator survey measures can have conceptual and practical difficulties. Specifically, such measures can misrepresent the views of some respondents and might underestimate public support for the police. We argue in favour of local public attitudes surveys reconfigured to measure aspects of procedural fairness, police legitimacy, and public intentions to co-operate.
B Bradford, 'Voice neutrality and respect: Use of Victim Support services procedural fairness and confidence in the Criminal Justice System' (2011) Criminology and Criminal Justice [...]
Public confidence in the criminal justice system (CJS) is a topic of perennial concern across the United Kingdom, particularly in light of the relatively low levels of confidence reported in the British Crime Survey (BCS) and elsewhere. Recent work on policing has stressed that the experience of procedural fairness is an important influence on â€˜user-satisfactionâ€™, trust and legitimacy. Yet it is unclear whether this emphasis on fairness applies to the CJS as a whole, which many might see as primarily there to manage â€” and punish â€” offenders as efficiently as possible. This article reports on analysis of the BCS that suggests contact with Victim Support is linked to more favourable views of the fairness of the CJS and to higher levels of confidence in its effectiveness. By providing victims with voice and a sense that someone is listening to and taking their concerns seriously, contact with VS seems to be linked to more favourable overall assessments of the CJS. A space is therefore opened up for approaches to enhancing public confidence that do not rely on ever more punitive policies, or on the arguably Sisyphean task of convincing the public that extant policies are punitive enough.
A Braun, 'Trusts in the Draft Common Frame of Reference: The ‘Best Solution’ For Europe? ' (2011) 70 Cambridge Law Journal 327
A Briggs, 'Foreign Judgments: The Common Law Flexes its Muscles' (2011) Trusts & Trustees [...]
Note on developments in the law on foreign judgments which may be material in the particular field of trusts and trustees.
A Briggs, 'What shold be done about jurisdiction agreements ?' (2011) 12 Yearbook of Private International Law / Sellier European Law Publishers 311 [...]
Consideration of the approach to be taken to disputed jurisdiction agreements in the particular context of the proposals for the reform of the Brussels I Regulation.
S J Bright and J Bettle, 'Ashby v Kilduff – a modern day morality tale?' (2011) 41 Family Law 168
S J Bright and Nick Hopkins, 'Home, Meaning and Identity: Learning from the English Model of Shared Ownership:' (2011) 28 Housing, Theory and Society 377 [...]
This article explores the problematic nature of the label ‘home ownership’ through a case study of the English model of shared ownership, one of the methods used by the UK government to make home ownership affordable. Adopting a legal and socio-legal analysis, the article considers whether shared ownership is capable of fulfilling the aspirations households have for home ownership. To do so, the article considers the financial and non-financial meanings attached to home ownership and suggests that the core expectation lies in ownership of the value. The article demonstrates that the rights and responsibilities of shared owners are different in many respects from those of traditional home owners, including their rights as regards ownership of the value. By examining home ownership through the lens of shared ownership the article draws out lessons of broader significance to housing studies. In particular, it is argued that shared ownership shows the limitations of two dichotomies commonly used in housing discourse: that between private and social housing; and the classification of tenure between owner-occupiers and renters. The article concludes that a much more nuanced way of referring to home ownership is required, and that there is a need for a change of expectations amongst consumers as to what sharing ownership means.
J Cartwright, '\\\\\\\'Choice is Good.\\\\\\\' Really?' (2011) 7 European Review of Contract Law 335 [...]
Discussion of the option 4 (the 'Optional Instrument') in the Commission's Green Paper on policy options for progress towards a European Contract Law for consumers and businesses (2010). [Paper first presented at SECOLA conference, Leuven, January 2011.]
M Chen-Wishart, 'The Purposes and Methods of English Contract Law' (2011) 12 Peking University Law Review 681
P P Craig, 'Delegated Acts, Implementing Acts and the New Comitology Regulation' (2011) 36 European Law Review 671
P P Craig, 'EU Administrative Law, The Acquis' (2011) Rivista Italiana di Diritto Pubblico Communitario 329
P P Craig, 'Political Constitutionalism and the Judicial Role: A Response' (2011) 9 International Journal of Constitutional Law 112
P P Craig, 'The ECJ and Ultra Vires Action: A Conceptual Analysis' (2011) 48 Common Market Law Review 395
P P Craig, 'The European Union Act 2011: Locks, Limits and Legality' (2011) 48 Common Market Law Review 1881
P S Davies, 'Accessory Liability for Assisting Torts' (2011) CLJ 353
P S Davies, 'Accessory Liability: protecting IP rights'  IPQ 390
P S Davies, 'Claims against third parties: room for the common law'  CIPA Journal 362
P S Davies, 'Correcting mistakes: wither the rule in Hastings-Bass'  Conv 406
E Descheemaeker, ''Veritas non est defamatio'? Truth as a Defence in the Law of Defamation' (2011) Legal Studies 1 [...]
Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.
E Descheemaeker, ''A man of bad character has not so much to lose’: Truth as a Defence in the South African Law of Defamation' (2011) 128 South African Law Journal 452 [...]
This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.
J Dickson, 'Directives in European Union Legal Systems: Whose Norms Are They Anyway?' (2011) 17 European Law Journal 190 [...]
This article is concerned with whether the concept of a legal system - long a centrepiece of state-based legal theories – is a useful conceptual tool in theorising the contemporary European Union and its legal relations with its Member States. The focus lies particularly with EU Directives, and with what the character and operation of this distinctive type of EU norm can tell us a regards the existence of and relations between legal systems in the EU. I argue for the view that the EU is comprised of distinct but interacting legal systems at EU and national level, and claim that the character and operation of directives supports this view. Throughout the discussion I try to bring the conceptual tools of analytical legal philosophy to bear on puzzles generated by EU law and its relations with national law, in order to show that a sound analysis of aspects of the EU can benefit from abstract legal philosophical reflection, and vice versa.
J Dickson, 'On Naturalizing Jurisprudence: Some Comments on Brian Leiter’s View of What Jurisprudence Should Become ' (2011) 30 Law and Philosophy 477
J Donoghue, 'Anti-Social Behaviour, Community Engagement and the Judicial Role in England and Wales' (2011) British Journal of Criminology [...]
A problem-solving approach to anti-social behaviour (ASB) cases has recently been embedded into magistrates’ courts in England and Wales. This approach incorporates core components of the Anti-Social Behaviour Response Court (ASBRC) model and is underpinned by principles of community justice. This article summarizes some of the main findings of an 18-month ESRC-funded study that investigated how far the ASBRC model has been absorbed into mainstream courts in England and Wales. This research suggests that courts have not embedded community justice principles, nor have they altered their focus to incorporate a significant degree of liaison with the community. The article concludes with some observations on the implications of the findings for the development and enhancement of community engagement and community justice principles.
J Donoghue, 'Truancy and the Prosecution of Parents: An Unfair Burden on Mothers?' (2011) 74 Modern Law Review 216 [...]
This article considers the development and use of the law regulating the prosecution of parents under section 444 of the Education Act 1996, in the broader context of legislation and policy initiatives concerned with the governance of parental responsibility. It explores the ways in which the power to prosecute parents has been used by local educational authorities (LEAs) and interpreted by the courts. The article critically analyses the manner in which the powers emphasise punishment and retribution in the context of the social moralisation of flawed parents; pay insufficient regard to the effects of parental responsibility laws on low-income, single parent families; represent an attempt to impose a simple solution on to a complex socio-economic problem; and amplify the scope for mothers to be made the subject of criminal justice interventions. It is argued that the prosecution of parents imposes an unfair burden on mothers and, in particular, single parent mothers.
S J Douglas, 'The Scope of Conversion: Property and Contract' (2011)  MLR 327
S Douglas-Scott, 'The European Union and Human Rights after the Treaty of Lisbon' (2011) Human Rights Law Review 1
This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour. The paper examines such evidence in regard to a number of issues.
J M Eekelaar, 'Naturalism or Pragmatism? Towards an Expansive View of Human Rights' (2011) 10 Journal of Human Rights 230 [...]
This article compares the naturalistic account of human rights in James Griffin's On Human Rights (2009) with the practical account by Charles R. Beitz in The Idea of Human Rights (2009). Taking Griffin's own examples, the analysis suggests that Griffin's account of human rights with regard to children, divorce, or marriage is unconvincing. However, while the practical approach is preferred, this leaves the basis for any universal duty to take state action for human rights violations uncertain. The article concludes by proposing an analysis of human rights that retains the advantages of the practical conception but accounts for the justification of international action through the principle of universalizability of moral obligations
J M Eekelaar, 'Not of the Highest Importance: Family Justice under Threat' (2011) 33 Journal of Social Welfare and Family Law 311 [...]
The articles considers the reasons given by policy-makers for reducing legal aid for family matters and argues that they reflect a diminished sense of the role of justice in family relationships, and blindness to the role of lawyers in resolving family conflicts.
J M Eekelaar, 'The Arbitration and Mediation Services (Equality) Bill' (2011) 41 Family Law 1209 [...]
An analysis of the Arbitration and Mediation Services (Equality) Bill 2011
R Ekins, 'Legislative Intent in Law\\\\\\\'s Empire' (2011) 24 Ratio Juris 435
R Ekins and C Huang, 'Reckless Lawmaking and Regulatory Responsibility' (2011) New Zealand Law Review 407
R Ekins and Mr Justice Sales, 'Rights-Consistent Interpretation and the Human Rights Act 1998' (2011) 127 Law Quarterly Review 217
P Eleftheriadis, 'Austin and the Electors' (2011) 24 Canadian Journal of Law and Jurisprudence 441
P Eleftheriadis, Kalypso Nicolaidis and J. H. H. Weiler, 'Foreword: the changing landscape of European constitutionalism' (2011) 9 International Journal of Constitutional Law 673
P Eleftheriadis, 'Planning Agreements as Public Contracts Under the EU Procurement Rules' (2011) 20 Public Procurement Law Review 43
P Eleftheriadis, 'The Moral Distinctiveness of the European Union' (2011) 9 International Journal of Constitutional Law 695
D Erdos, 'Stuck in the Thicket? Social Research Under the First Data Protection Principle' (2011) 19 International Journal of Law and Information Technology 133 [...]
Through a systematic analysis of the UK's Data Protection Act's first data protection principle, this article demonstrates that the EU data protection regime seriously threatens research into social (including political and historical) affairs. The rules for registering processing with the data protection authority, providing the data subject with information notification and the severe limitations on the processing of sensitive personal data are all in serious tension with certain types of important social research including that which is covert, deceptive, identifiable or critical. Additionally, the complexity of the law inevitably leads ‘risk-averse’ universities to further restrict research activity. This not only curtails academic freedom but also suppresses knowledge production in ways which damage society generally. The article concludes by contrasting the onerous regulation of ‘research’ with the significantly more liberal regime for ‘journalism literature and art’. It argues that data protection authorities and others should consider whether social research might benefit from this more liberal regime. Even if that proves unachievable, these issues should be addressed in the review of the law now underway.
D Erdos, 'Systematically Handicapped? Social Research in the Data Protection Framework' (2011) 20 Information and Communications Technology Law 133 [...]
Through a careful analysis of the UK's Data Protection Act 1998, this article demonstrates that the EU regime for personal data processing seriously threatens research into social (including political and historical) affairs. The core values of data protection - certainty, transparency, notice, informational self-determination, data minimization and secrecy - are in clear tension with the often fluid, norm-challenging, sometimes covert, individual and even identifiable nature of much social research. Three of its key provisions, the 'fair and lawful processing' requirement (principle one), the right of subject access (principle six) and the general ban on extra-EEA data export (principle eight), are in serious conflict with key research methodologies. Moreover, especially given the broad definition of 'personal data' under this regime, the labyrinthine nature of the law as a whole has led to universities implementing research governance policies and procedures that further restrict investigative activity. This curtails academic freedom leaving key forms of knowledge production systematically handicapped, thereby damaging society's long term interests. The article argues that consideration should be given to whether social research could benefit from the more liberal data protection arrangements for 'journalism literature and art'. In addition, the effects of this regime on academia must be fully addressed in the review of the law now underway.
A Ezrachi and Maria Ioannidou, 'Access to Justice in European Competition Law –Public Enforcement as a Supplementary Channel for ‘Corrective Compensation'' (2011) APLR 195
A Ezrachi and J Kindl, 'Criminalisation of Cartel Activity – A Desirable Goal for India’s Competition Regime? ' (2011) 2011- 23(1) NLSIR
Mavis Maclean and others, 'Family Justice in Hard Times: Can We Learn from Other Jurisdictions?' (2011) 33 Journal of Social Welfare and Family Law 319
J M Finnis, 'Equality and Differences' (2011) American Journal of Jurisprudence 17
J M Finnis, 'Invoking the Principle of Legality against the Rule of Law' (2011) New Zealand Law Review  601-616 601 [...]
Critique of Lords' decision in Purdy and of the prosecutorial guidelines issued in conformity with that decision.
S Fredman, 'The Potential and Limits of An Equal Rights Paradigm In Addressing Poverty ' (2011) 22 Stellenbosch Law Review [...]
Poverty is increasingly a human rights issue. The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. It draws on the experience in Britain, Canada, the US and South Africa to develop several ways in which equality could function in relation to poverty. It concludes that while the right to equality can make a valuable contribution to apsects of pvoerty based on misrecognition and oscial exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.
A key advance of the Equality Act 2010 is its introduction of a single equality duty. The new ‘public sector equality duty’ harmonises the earlier duties and extends its coverage to include other protected characteristics. In addition, the statutory aims have been deepened to reflect a substantive conception of equality. However, the core of the duty is unchanged. It is a duty to ‘have due regard’, not to take steps or to achieve equality. Is this an attempt to incorporate a deliberative, reflexive approach to achieving equality, recognising that a straightforward command and control approach might encounter unproductive resistance? Or does it reflect a fundamental ambivalence as to the importance of equality issues? Section 2 below examines the structure of the statutory provisions. Section 3 asks whether the statutory provision is an example of reflexive law. Particular attention is paid to the spate of judicial review cases relying on the equality duty to challenge a range of budget cuts. It is argued that courts have struggled to deal with the regulatory challenges presented by the equality duties. Nor is it clear that a reflexive approach is appropriate to achieve substantive equality.
J Freedman, 'Responsive Regulation, Risk and Rules: Applying the Theory to Tax Practice' (2011) 44 UBC Law Review
John Gardner, 'Amartya Sen's The Idea of Justice' (2011) 6 Journal of Law, Philosophy and Culture 241 [...]
An extended critical notice of Amartya Sen's book The Idea of Justice.
John Gardner, 'Can There Be a Written Constitution?' (2011) 1 Oxford Studies in Philosophy of Law 162
Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise.
John Gardner and Timothy Macklem, 'Disibilità umane: su cosa significhi l\'avere accesso a un valore' (2011) 36 Ragion Pratica 9 [...]
In this essay (published in Italian) we reflect on some general theoretical questions about disability, beginning with some absences of ability that are conventionally classed as disabilities (lack of vision, lack of mobility). We move from there to ask whether those of us who are conventionally classed as non-disabled in fact suffer from disabilities, and in particular whether there are disabilities shared by all humans. We reflect on the idea of the superhero, and also on whether it makes sense to envy the abilities of other species that are not shared by human beings. This leads us into a critique of species-relativism about value. We defend the thesis that all value is value for everything. This draws us into some reflections on the importance of ability and disability, and in particular on the practical importance for rational beings of that which they cannot attain.
John Gardner, 'What is Tort Law For? Part 1: The Place of Corrective Justice' (2011) 30 Law and Philosophy 1 [...]
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.
R George, 'In Defence of Dissent: R (McDonald) v Royal Borough of Kensington and Chelsea' (2011) Family Law 1097
R George, 'Practitioners’ Views on Children’s Welfare in Relocation Disputes: Comparing Approaches in England and New Zealand' (2011) 23 Child and Family Law Quarterly 178
R George, 'Principles Relevant to Child’s Welfare and Best Interests' (2011) 7 The New Zealand Family Law Journal 26
R George, P Harris and J Herring, 'With this Ring I Thee Wed (Terms and Conditions Apply)' (2011) Family Law 367
J S Getzler, '\'As If\'. Accountability and Counterfactual Trust' (2011) 91 Boston University Law Review 931 [...]
Law sustains trust in fiduciaries not primarily by ordering redress of losses caused by a falling below fiduciary standards, but rather by requiring that the fiduciary be induced to act as if those standards were met. Wherever possible, the fiduciary is estopped from acting in reliance on the breach, and instead is asked to cure the breach by positive performance of duty. As a fiduciary, you do not keep the illegal profit and proffer compensation for any ensuing loss; rather, you hold the profit for the beneficiary as you always should have done, with loss measures calculated to level any shortfall. This "as if" trusting, enforced by law, solves the conundrum that complete trust properly requires no enforcement, but is self-enforcing, or better, self-fulfilling. This thesis is explored and justified through an examination of the history of accountability and allied modern doctrines controlling fiduciaries who breach their trust.
A. Bellal, G. Giacca and S. Casey-Maslen, 'International Law and Armed Non-State Actors in Afghanistan' (2011) Vol. 93, No. 881 Cambridge University Pres / International Review of the Red Cross
Roy Goode, 'Perpetual Trustee and Flip Clauses in Swap Transactions' (2011) 127 Law Quarterly Review 1 [...]
A case note on the Court of Appeal decision on the anti-deprivation principle of insolvency law. The case note was referred to at several points in the judgments of the Supreme Court
Roy Goode, 'Proprietary Liability for Secret Profits - A Reply' (2011) 127 Sweet & Maxwell 493 [...]
A reply to a case note by Justice Hayton on Sinclair Investments (UK) Ltd. v. Versailles Trade Finance Ltd
G S Goodwin-Gill, 'The Right to Seek Asylum: Interception at Sea and the Principle of Non-refoulement' (2011) 23 International Journal of Refugee Law 443 [...]
Reviews current interception practices, particularly as conducted by EU Member States and the EU agency, Frontex, and considers the lawfulness of such operations in the light of EU law, the recent jurisprudence of the European Court of Human Rights, and the international law background, including the right to seek asylum and the principle of non-refoulement.
J Goudkamp, 'Insanity as a Tort Defence' (2011) 31 Oxford Journal of Legal Studies 727
J Goudkamp, 'Litigation tourism: Suing in the UK in respect of torts committed in Australia' (2011) 107 Precedent 8
J Goudkamp, 'Recent Developments in the Statutory Illegality Defences' (2011) 7 Australian Civil Liability 121
A different-sex marriage need not be a marriage between heterosexuals, and a same-sex marriage need not be a marriage between homosexuals. This shows how little the law of marriage cares about the sexuality of parties to a marriage; it does not show that sex-restricted marriage laws do not discriminate on grounds of sexual orientation. They do. Neither does the law care much about sex, let alone possibly procreative sex, within marriage. The voidability of a different-sex marriage on grounds of non-consummation does not show otherwise. The formation of a valid marriage was always a matter of consent, not coitus. But what should happen to the doctrine of non-consummation in a sex-neutral marriage regime? It is an anachronism that should be abolished.
N Gur, 'Are Legal Rules Content-Independent Reasons?' (2011) 5 Problema 175
B Havelkova, 'Using Gender Equality Analysis to Improve the Well-being of Prostitutes ' (2011) 18 Cardozo Journal of Law and Gender 53 [...]
Most feminist literature is divided on how to approach prostitution (some writers see it as sex work that should be normalized, some as inherently violent and exploitative practice that should be abolished). Connected to these positions, many normative debates about the response to prostitution concentrate on a legislative overhaul of current systems and either propose legalization (the ‘Dutch model’) or the criminalization of demand (the ‘Swedish model’). Based on the finding that many national responses to prostitution fall in between the two models and the recognition that not all jurisdictions might chose a legislative overhaul in either the Dutch or the Swedish direction, this article tries to construct a framework for gender equality analysis that could be used to improve the position of prostitutes in (existing or proposed) regulatory regimes in which the well-being of prostitutes has not been an important legislative aim. The article submits that the treatment of clients and prostitutes needs to be compared, as they are parties to the same transaction, and that any regime in which the treatment is asymmetric to the detriment of the prostitute is indirectly discriminatory (has a disparate impact) on the basis of sex. It presents three aspects of prostitution relevant for a gender equality analysis: 1) the social meaning of prostitution, 2) the risk of harm to the prostitute, and 3) the de facto inequalities between the client and the prostitute. It argues that these need to be weighed against any justification for asymmetric treatment benefiting the client and that they are also in their own right justifications for symmetric treatment of client and prostitute and even for an asymmetric treatment benefiting the prostitute. In order to put this argument into context, the article presents a typology of regulatory regimes (based on EU member states and common law jurisdictions) and offers a synthesis of the feminist positions on prostitution (sex-work and sexual-domination).
J J W Herring and Charles Foster, '"Please don't tell me": The Right Not to Know' (2011) 21 Cambridge Quarterly of Healthcare Ethics 1 [...]
discussion of the right not to know
J J W Herring, Robert H George and Peter G Harris, '"With this Ring I Thee Wed (Terms and Conditions Apply)"' (2011) 41 Family Law 367 [...]
An article discussing pre-nups
J J W Herring, 'Children first: but which?' (2011) New Law Journal 724 [...]
Article discussing how cases involving chidlren with competing intersts should be dealt with.
J J W Herring and Stephen Gilmore, 'Children's Refusal of Medical Treatment: Could Re W be Distinguished?' (2011) 41 Family Law 715 [...]
Article considering the case law on children's refusal of medical treatment.
J J W Herring, 'Legal Issues Surrounding Dementia' (2011) 1 Elder Law Journal 182
J J W Herring, 'Moving Forward?' (2011) New Law Journal 1011 [...]
Discussion of developments in the law on relocation
J J W Herring, 'Moving Forward?' (2011) New Law Journal 1011 [...]
discussion of recent case on relocation of children.
J J W Herring and Stephen Gilmore, 'No is the hardest word: consent and children\'s autonomy' (2011) Child and Family Law Quarterly 3 [...]
An article considering the interpretation of the Gillick decision
J J W Herring, 'Pain, Human Rights and the Law' (2011) 2 Managing Pain 1 [...]
An examination of the extent to which there is a right to relief from pain.
Mikey Dunn and J J W Herring, 'Safeguarding children and adults: Much of a muchness?' (2011) Child and Family Law Quarterly 528 [...]
A discussion of legal interventions to protect children and vulnearble adults.
Janet Bettle and J J W Herring, 'Shaken Babies and Care Proceedings' (2011) Family Law 1370 [...]
A discussion of evidence in care proceedings with cases involving shaken babies.
J J W Herring, Charles Foster, Tony Hope and Karen Melham, 'The double effect effect' (2011) 20 Cambridge Quarterly of Healthcare Ethics 1 [...]
A discussion of the doctrine of double effect
J J W Herring, 'The meaning of domestic violence' (2011) 33 Journal of Social Welfare and Family Law 297 [...]
A discussion of the meaning of domestic violence
J J W Herring, 'Who's the Daddy' (2011) New Law Journal 1577 [...]
Discussion of LG v DK
J J W Herring, 'Whose Baby is it Anyway?' (2011) New Law Journal 195 [...]
Discussion of surrogacy law
C Hodges, 'A Market-Based Competition Enforcement Policy' (2011) 22 European Business Law Review 261
C Hodges, 'European Competition Enforcement Policy: Integrating Restitution and Behaviour Control' (2011) 34(3) World Competition 383
C Hodges, 'The European Approach to Justice and Redress' (2011) Canadian Supreme Court Law Review 301
C Hoyle and M Walters and C Hoyle, 'Exploring the Everyday World of Hate Victimisation through Community Mediation' (2011) Interntational Review of Victimology
C Hoyle, 'Global Restrictions on the Use of the Death Penalty: The New Dynamic of Human Rights'  28 Criminal Law Review 1
C Hoyle, M Bosworth and M Dempsey, 'Researching Trafficked Women: On Institutional Resistance and the Limits to Feminist Reflexivity' (2011) 17 Qualitative Inquiry
C Hoyle, M Bosworth and M Dempsey, 'Victims of Sex Trafficking: Exploring the borderland between rhetoric and reality' (2011) Social and Legal Studies
E Hudson and R Burrell, 'Copyright, Abandonment and Orphaned Works: What Does it Mean to Take the Proprietary Nature of Intellectual Property Rights Seriously?' (2011) 35 Melbourne University Law Review 971 [...]
For many years there was doubt as to whether personal property could be abandoned. In more recent times, however, the existence of a doctrine of abandonment has been solidifying in relation to chattels. In this article the authors suggest that copyright works can also be abandoned. This conclusion has significant implications for cultural institutions and other users struggling to deal with so-called ‘orphaned works’. More generally, the authors suggest that recognising that abandonment of copyright is possible has repercussions for how we think about intellectual property rights and, in particular, should cause us to look more closely at other doctrines within the law of personal property that might limit intellectual property’s reach.
A Kavanagh, 'Constitutionalism, Counter-Terrorism and the Courts: Changes in the British Constitutional Landscape' (2011) 9 International Journal of Constitutional Law (ICON) 172
T Khaitan, 'Reforming the Pre-Legislative Process' (2011) Economic and Political Weekly 27
M Kurkchiyan, 'Perception of Law and Social Order: a Cross-National Comparison of Collective Legal Consciousness' (2011) 29 Wisconsin International Law Journal 102
M Köpcke Tinturé, ' Positive Law's Moral Purpose(s): Towards a New Consensus?' (2011) 56 American Journal of Jurisprudence 183
M Köpcke Tinturé, 'Law, and the Difference Between What is Claimed and What is Done' (2011) 8 Journal of Catholic Social Thought 255
B Lange, 'Socializing Economic Relationships: A Critique of Business Regulation: Introduction' (2011) 62 Northern Ireland Legal Quarterly 393
B Lange, 'The EU Directive on Industrial Emissions: Squaring the Circle of Integrated, Harmonised and Ambitious Technology Standards?' (2011) 13 Environmental Law Review 169
L Lazarus, Adam Tomkins and Helen Fenwick, 'Terrorist asset-freezing - Continuing flaws in the current scheme' (2011) 25 International Review of Law, Computers and Technology 117 [...]
The Terrorist Asset-Freezing etc Act 2010 came into force on 17 December 2010. The 2010 Act repealed the previous Temporary Provisions Act. This article does not purport to provide comprehensive coverage of the Act; it outlines four main areas of concern that arose in respect of the Draft Terrorist Asset-Freezing Bill and that now arise in respect of the Terrorist Asset-Freezing etc Act 2010. In summary, these are as follows: problems of parliamentary scrutiny relating to the scope of the Act; problems relating to the reasonable suspicion test; problems relating to judicial process; problems relating to ECHR rights.
AYK Lee, 'Co-national and Cosmopolitan Obligations towards Foreigners' (2011) 31 Politics 159 [...]
This article specifically argues against those who think that, by appealing to Thomas Hurka's argument for co-national obligations in his ‘The Justification of National Partiality’, these co-national obligations take priority over certain cosmopolitan obligations towards foreigners, when the shared history of the co-nationals is (a) a history of shared suffering, (b) a shared history of mutual benefit or (c) a shared history of jointly benefiting others. I shall argue that if this is the case, then Hurka's account surprisingly gives us a reason to fulfil our cosmopolitan obligations towards foreigners first before fulfilling our special obligations towards co-nationals.
I Loader, A Thumala and B Goold, 'A Tainted Trade? Moral Ambivalence and Legitimation Work in the Private Security Industry' (2011) 62 British Journal of Sociology 283
I Loader and R Sparks, 'Criminology and Democratic Politics: A Reply to Critics' (2011) 51 British Journal of Criminology 734
G Loutzenhiser, 'Operational integration of income tax and National Insurance Contributions'  British Tax Review 361
The article argues that the 'unlawfulness' of industrial action at common law is the product of judicial bias; and that there are institutional reasons in the structure of the legal system to suggest that such bias is ongoing and will be applied to any legislative framework
OSCOLA, the Oxford Standard for the Citation Of Legal Authorities, was first devised in 2000. The fourth edition, published in November 2010, includes for the first time guidelines for citing Scottish, Irish and Welsh cases and legislation, historical legal sources and new media such as blogs. It also provides more extensive general advice about using quotations, managing and cross-referencing footnotes and organising bibliographies and tables of cases and legislation. OSCOLA can be used in conjunction with bibliographic software such as Endnote and is becoming the UK national standard for legal citation.
V Moreno Lax, 'Beyond Saadi v UK: Why the "Unnecessary" Detention of Asylum Seekers is Inadmissible under EU Law' (2011) 5(2) Human Rights and International Legal Discourse 166-206.
V Moreno Lax, 'Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea' (2011) 23(2) International Journal of Refugee Law 174-220.
W Njoya, 'Employee Ownership in the European Company: Reflexive Law, Reincorporation and Escaping Codetermination' (2011) 11 Journal of Corporate Law Studies (forthcoming) [...]
This article assesses the effects of reincorporation on codetermination, focusing on the scope for escaping codetermination by restructuring under the European Company (SE). This is usually associated with the prospect of corporate flight from codetermined jurisdictions. The article presents an alternative possibility, arguing that because the self-regulatory framework of employee participation in the SE encourages diversity and experimentation it does not inevitably erode the institution of codetermination. Viewed within a framework of reflexive harmonisation the effects on codetermination are better understood as part of an open-ended process of evolution in the ownership and control structures of the firm. This points to the potential for codetermination to become more, rather than less, integrated as part of the ownership landscape of European firms.
D P Nolan, 'The Liability of Public Authorities for Failing to Confer Benefits' (2011) 127 Law Quarterly Review 260
I Papanicolopulu, 'On the interaction between law and science: considerations on the ongoing process of regulating underwater acoustic pollution' (2011) 1 Aegean Review of the Law of the Sea and Maritime Law 247 [...]
Scientific and technological development necessitates often legal regulation, to be achieved through an interaction between science and law during the decision-making process. Taking as an example the case of underwater noise pollution, the examination of which is underway in many international organisations with a view towards its regulation, the article proposes to comment upon some aspects of this interaction. It is finally submitted that law provides sufficient legal principles and institutionalised frameworks for cooperation, which however have not been sufficiently put in use so far.
I Papanicolopulu and E Milano, 'State Responsibility in Disputed Areas on Land and at Sea ' (2011) 71 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht - Heidelberg Journal of International Law 587 [...]
Starting from the observation that traditionally the law of State responsibility has hardly interacted with the law applicable to territorial and boundary disputes, the article examines how these two fields of international law may relate in the case of State action in contested areas, be they terrestrial or marine. Assessing recent international practice, particularly the case law of the International Court of Justice and arbitral tribunals, and differentiating between land and maritime disputes, it identifies the primary obligations incumbent upon States when acting in contested areas – relating to State sovereignty and sovereign rights, ius ad bellum, ius in bello, procedural obligations pending the final settlement of the dispute – and it examines the consequences of the breach of those primary norms, in terms of secondary obligations, as well as third States’ duties and obligations. The legal framework specifically created for disputed maritime areas by Art. 74 para. 3 UNCLOS and Art. 83 para. 3 UNCLOS, including its implications for land disputes, is specifically analysed. The authors submit that, at a time of increasingly pro-active policies and robust actions taken by States in contested areas, more attention should be devoted to the extent to which the law of State responsibility, especially with regard to relevant forms of reparation, has to adapt to the content and scope of primary norms applicable to that specific context
I Papanicolopulu, 'Submission to Arbitration of the Dispute on the Marine Protected Area around the Chagos Archipelago' (2011) 26 The International Journal of Marine and Coastal Law 667–678
I Papanicolopulu and T. Treves, 'The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Italian Perspective ' (2011) 25 Ocean Yearbook
M Paparinskis, 'MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama?' (2011) 26 ICSID Review - Foreign Investment Law Journal 14
J Payne, 'Minority Shareholders Protection in Takeovers: A UK perspective' (2011) 8 European Company and Financial Law Review 145
In the fifteen year period to 2008 the private equity industry grew enormously in Europe, to the point where it began to be seen as a rival to the public markets. This gave rise to concerns, and calls for the private equity industry to be regulated. The financial crisis, and in particular the contraction of the market for debt prompted by the collapse of Lehman Brothers in September 2008, has led to a significant reduction in the number and value of private equity deals. However, if anything the financial crisis has led to increased call for the regulation of the industry. This paper examines the development of private equity transactions in Europe, and analyses the nature of these transactions. It then considers whether the concerns raised in relation to private equity are justified. Broadly, the arguments in favour of the regulation of private equity may be divided into two kinds: the need to increase transparency in the industry by imposing disclosure obligations, and systemic risk concerns. These arguments are considered, and the terms of the Alternative Investment Fund Managers Directive (AIFMD) are examined in the light of these issues. It is suggested that the arguments in favour of regulation of private equity are weaker than has been suggested and that this Directive does not adequately differentiate between hedge funds and private equity when imposing this regulatory regime.
J Payne, 'Schemes of Arrangement, Takeovers and Minority Shareholder Protection' (2011) Journal of Corporate Law Studies 67 [...]
Schemes of arrangement are an extremely valuable tool for manipulating a company’s capital. Nothing in the Companies Act 2006 prescribes the subject matter of a scheme. In theory a scheme could be a compromise or arrangement between a company and its creditors or members about anything which they can properly agree amongst themselves. However, one of the most common uses of a scheme is as an alternative to a takeover offer. Indeed, in recent years schemes of arrangement have become the structure of choice for recommended bids. This paper examines the use of schemes of arrangement as an alternative to takeover offers, and in particular compares the level of protection for minority shareholders available under both structures. It might be expected that the level of protection would be equivalent, but this is not the case in practice. Significantly greater protection is put in place for minority shareholders in the target company by takeover regulation than exists in the context of a scheme. However, the purpose of minority protection is quite different within these two structures. This article suggests that the lower level of protection in schemes is justified within this context.
J Pila, 'Law and the Victorians: Intellectual Property' (2011) Journal of Legal History, forthcoming
J Pila, 'Software Patents, Separation of Powers, and Failed Syllogisms: A Cornucopia from the Enlarged Board of Appeal of the European Patent Office' (2011) 70 Cambridge Law Journal 203-228 [...]
A preprint of this article is available at http://ssrn.com/abstract=1612518
WG Ringe and A Hellgardt, 'An international dimension of issuer liability - Liability and choice of law from a transatlantic perspective' (2011) 31 Oxford Journal of Legal Studies 23 [...]
The integration of the European capital markets makes progress and has led both issuers and investors being active on various markets on both sides of the Atlantic. In times of financial crises, this brings one question into the centre of attention which had not been discussed exhaustively before: In the situation of a securities liability towards investors in an international context, which is the applicable law to the liability claim? The harmonisation of private international law rules in Europe gives rise to new reflections on the problem of international issuer liability. In the United States, on the other hand, the Supreme Court has just granted certiorari in a ‘foreign-cubed’ securi-ties class action case and will thus rule for the first time on matters relating to the inter-national application of the US securities regulation soon. This paper understands the role of issuer liability in a broader context as a ‘corporate governance’ device and, from this starting point, develops a new approach to the legal problem of cross-border securities liability.
J Armour and WG Ringe, 'European Corporate Law 1999-2010: Renaissance and Crisis' (2011) 48 Common Market Law Review 125 [...]
European corporate law has enjoyed a renaissance in the past decade. Fifteen years ago, this would have seemed most implausible. In the mid-1990s, the early integration strategy of seeking to harmonise substantive company law seemed to have been stalled by the need to reconcile fundamental differences in approaches to corporate governance. Little was happening, and the grand vision of the early pioneers appeared more dream than ambition. Yet since then, a combination of adventurous decisions by the Court of Justice, innovative approaches to legislation by the Commission, and disastrous crises in capital markets has produced a headlong rush of reform activity. The volume and pace of change has been such that few have had time to digest it: not least policymakers, with the consequence that the developments have not always been well coordinated. The recent 2007/08 financial crisis has yet again thrown many - quite fundamental - issues into question. In this article, we offer an overview that puts the most significant developments of this decade into context, alongside each other and the changing patterns of corporate structure in European countries.
J Roberts, M. Hough and A. Ashworth, 'Personal Mitigation, Public Opinion and Sentencing Guidelines in England and Wales'  Criminal Law Review
J Roberts and M. Hough, 'Public Attitudes to the Criminal Jury: A Review of International Trends' (2011) The Howard Journal of Criminal Justice
B. Mitchell and J Roberts, 'Public Attitudes Towards the Mandatory Life Sentence for Murder in England and Wales: Putting Received Wisdom to the Empirical Test. '  Criminal Law Review
M. Manikis and J Roberts, 'Recognizing Ancillary Harm at Sentencing: A Proportionate and Balanced Response' (2011) Canadian Criminal Law Review
B. Mitchell and J Roberts, 'Sentencing for Murder: Exploring Public Knowledge and Public Opinion in England and Wales' (2011) British Journal of Criminology
J Roberts, 'Sentencing Guidelines and Judicial Discretion: Evolution of the Duty of Courts to Comply in England and Wales' (2011) British Journal of Criminology
J Roberts and A. Rafferty, 'Sentencing Guidelines in England and Wales: Exploring the New Format'  Criminal Law Review
J Roberts, U. Azmeh and K. Tripathi, 'Structured Sentencing in England and Wales: Lessons for India?' (2011) National Law School of India Review
P. Carrington, J Roberts and S. Davis-Barron, 'The ‘Last Chance’ Sanction in Youth Court: Exploring the Deferred Custody and Supervision Order' (2011) Canadian Criminal Law Review
A Russell, 'Incorporating Social Rights in Development: Transnational Corporations and the Right to Water' (2011) 7 International Journal of Law in Context 1
A J B Sirks, 'Cornelis van Bijnkershoek as author and elegant jurist' (2011) 79 Tijdschrift voor Rechtsgeschiedenis 229 [...]
Bijnkershoek wrote next to his three works on international law a series of books on Roman law and on the private law of Holland and Zeeland. Those on Roman Law deal with various aspects, mostly with textual criticism of the Corpus juris, while a part consists of essays on specific subjects. The book on private law combines analyses of certain legal problems with jurisprudence of courts. Are all these texts obsolete by now? A modest exploration of these essays suggests that is not the case as far as textual criticism is concerned; at least some of the essays in Roman law are still actual for present-day research. The essays on private law are of course of value for historical research.
ISBN: ISSN 0040-7585
A J B Sirks, 'The Slave Who Was Slain Twice: Causality and the lex Aquilia (Iul. 38 dig. D. 9, 2, 51)' (2011) 79 Tijdschrift voor Rechtsgeschiedenis 313–351 [...]
D. 9,2,51, in which a slave is slain twice and dies, and where Julian considers both assailants equally liable for killing, has been interpreted in the context of causa superveniens. In that case Julian’s opinion becomes contradictory. It is argued that the text should be read in the context of the Stoic theories on causality as current among the jurists in the first centuries AD. In these theories there existed no causa superveniens as of the modern causality theory. As such its application is ill at place here. Instead, in applying these Stoic theories Julian’s view can be explained as his attributing a causa antecedens to the first assailant, with full imputation of the effect of the subsequent causa principalis to him, and attributing a causa adiuvans to the second assailant, while valuing at the same time the latter not just as a reinforcing cause but also as a causa mortis and a full effective cause. For other jurists the latter evidently went too far.
ISBN: ISSN 0040-7585
W J Swadling, 'The Fiction of the Constructive Trust' (2011) 64 Current Legal Problems 399
A Tzanakopoulos, 'Domestic Courts in International Law: the International Judicial Function of National Courts' (2011) 34 Loyola of Los Angeles International & Comparative Law Review 133 [...]
As the title suggests, this paper does not deal with 'international law in domestic courts' but rather with 'domestic courts in international law'. It seeks to ascertain whether domestic courts are assigned an international judicial function by international law, and whether and to what extent they are in fact assuming and exercising that function. The paper attempts to define the concept of an ‘international judicial function’ and argues that, because of the peculiar ‘directionality’ of a great many international obligations (which require implementation within the domestic jurisdiction), domestic courts are the first port of call and the last line of defense for the interpretation and application of international law. However, as organs of States, courts may engage the international responsibility of the State if their conduct results in the breach of an international obligation. This is why the exercise of the international judicial function of domestic courts is supervised by States, either through the submission of disputes to international courts, or, more usually, through decentralized reactions.
J Vella, C Fuest and T Schmidt-Eisenlohr, 'The EU Commission’s Proposal for a Financial Transaction Tax' (2011) British Tax Review 607
J Vidmar, 'The Kosovo Advisory Opinion Scrutinized' (2011) Leiden Journal of International Law 355
S Vogenauer, 'Unification of General Contract Law in Africa: The Case of the UNIDROIT Principles of International Commercial Contracts' (2011) 13 European Journal of Law Reform (EJLR) 434
S R Weatherill, 'The limits of legislative harmonisation ten years after Tobacco Advertising: how the Court’s case law has become a “drafting guide”' (2011) 12 German Law Journal 827
Simon Whittaker, 'The Optional Instrument of European Contract law and Freedom of Contract' (2011) European Review of Contract Law 371 – 398 [...]
This article assesses the appropriateness of an 'optional instrument' in contract law foreseen by the European Commission
A L Young, 'Is Dialogue Working under the Human Rights Act 1998?'  Public Law 773
A L Young, 'Sovereignty: Demise, Afterlife or Partial Resurrection?' (2011) 9 International Journal of Constitutional law 163 [...]
This article is a response to the contributions of Nick Barber and Trevor Allan found in this volume. It argues that an analysis of “sovereignty” does serve a useful purpose in U.K. constitutional law. More specifically, it argues that discussions of “sovereignty” should also include an analysis of constitutive rules, particularly aiming to understand which institutions are “sovereign” in the sense of having the power to define and modify these constitutive rules. When analysed in this manner, an argument can be made that Dicey's traditional theory that Parliament cannot bind its successors is still a valid rule of the English legal system. In addition, this rule is desirable. Its presence is necessary, although not sufficient, to ensure that both Parliament and the courts have a rule in defining and modifying constitutive rules. This dual role is desirable as it helps to maintain the legitimacy of the U.K.’s “political” constitution.
D Akande, 'Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities' (2010) 59 International and Comparative Law Quarterly 180
D Akande and Sangeeta Shah, 'Immunities of State Officials, International Crimes and Foreign Domestic Courts' (2010) 21 European Journal of International Law 815 [...]
This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
J Armour, S Deakin, V Mollica and M Siems, 'Law and Financial Development: What We are Learning from Time Series Evidence' (2010) Brigham Young University Law Review 1435 [...]
The legal origins hypothesis is one of the most important and influential ideas to emerge in the social sciences in the past decade. However, the empirical base of the legal origins claim has always been contestable, as it largely consists of cross-sectional datasets, which provide evidence on the state of the law only at limited points in time. There is now a growing body of data derived from techniques for coding crossnational legal variation over time. This time-series evidence is reviewed here and is shown to cast new light on some of the central claims of legal origins theory. Legal origins are shown to be of little help in explaining trends in the law relating to shareholder protection, although the classification of legal systems into English-, French-, and German origin “families” has greater explanatory force in the context of creditor rights. The widely-held view that increases in shareholder rights foster financial development is not supported by time-series analyses. More generally, the new evidence casts doubt on the suggestion that legal origins operate as an “exogenous” force, independently shaping both the content of laws and economic outcomes. It is more plausible to see legal systems as evolving in parallel with changes in economic conditions and political structures at national level.
The so-called rule in Re Hastings-Bass has developed rapidly in the courts in recent years, but the true basis for the rule has not yet been properly explored. This article seeks to demonstrate that whilst the application of the rule in the courts may well have gone too far, it does have a legitimate foundation in some of the core principles of English trust law. Once its doctrinal nature is understood, the worst excesses of the rule can be curbed in a manner which is both pragmatic and principled. This article was cited by Lloyd LJ in the Court of Appeal in Pitt v Holt  EWCA Civ 197 at .
A Ashworth, 'Sentencing Guidelines and the Sentencing Council'  Criminal Law Review 389 [...]
A critical assessment of the provisions of the Coroners and Justice Act 2009 relating to sentencing guidelines and the new Sentencing Council.
A Ashworth, 'Should Strict Liability be Removed from all Imprisonable Offences?' (2010) 45 Irish Jurist 1 [...]
This is a principled attack on the propensity of the English and Irish legislatures to impose strict liability for criminal offences that carry a sentence of imprisonment.
D Awrey, 'The Dynamics of OTC Derivatives Regulation: Bridging the Public-Private Divide' (2010) 11:2 European Business Organization Law Review 155
D Awrey, 'The FSA, Integrated Regulation and the Curious Case of OTC Derivatives' (2010) 13:1 University of Pennsylvania Journal of Business Law 101
K Baker, 'More Harm than Good? The Language of Public Protection' (2010) 49 Howard Journal 42
N. W. Barber, 'Two Meditations on the Thoughts of Many Minds ' (2010) 88 Texas Law Review 807
R Bird, 'Reclassification on a grand scale – Moys at the Bodleian Law Library' (2010) 10 Legal Information Management 213
A Bogg, 'Bournemouth University v Buckland: Re-establishing Orthodoxy at the Expense of Coherence?' (2010) Industrial Law Journal 408
A Bogg, 'Of Holidays, Work, and Humanisation: A Missed Opportunity?' (2010) European Current Law xi
M Bosworth and I Loader, 'Reinventing Penal Parsimony' (2010) 14 Special Issue, Theoretical Criminology
M Bosworth, 'Reinventing Penal Parsimony: An Introduction' (2010) 14 Theoretical Criminology
K Hohl, B Bradford and EA Stanko, 'Influencing trust and confidence in the London Metropolitan Police: results from an experiment testing the effect of leaflet-drops on public opinion' (2010) 50 The British Journal of Criminology 491 [...]
Enhancing trust and confidence has moved to the centre of policing policy in England and Wales. The association between direct encounters with police officers and confidence in the police is well-established. But is it possible for the police to increase confidence among the general population including those people who do not routinely come into direct contact with police officers? This paper presents the findings from a quasi-randomised experiment conducted on population representative samples in seven London wards that assessed the impact of a leaflet drop on public perceptions of policing. The results provide strong evidence of an improvement in overall confidence, and in perceptions of policeâ€“community engagement, specifically. The leaflets also appear to have had a buffering effect against declines in public assessments of police effectiveness. The findings support the idea that public trust and confidence can be enhanced by direct police communication of this type.
J Jackson and others, 'Legitimacy and procedural justice in prisons' (2010) 191 Prison Service Journal 4
J Jackson and B Bradford, 'Measuring public confidence in the police: Is the PSA23 target fit for purpose?' (2010) 4 Policing: A Journal of Policy and Practice 241
M Hough and others, 'Procedural justice trust and institutional legitimacy' (2010) 4 Policing: A Journal of Policy and Practice 203
P A Brand, 'The Date and Authorship of Bracton: A Response' (2010) 31 The Journal of Legal History 217
A Braun, 'Burying the Living? The Citation of Legal Writings in English Courts' (2010) 58 American Journal of Comparative Law 27
A Briggs, 'Decisions of Brtish Courts in 2009: Private International Law' (2010) 80 Oxford 575 [...]
Survey and analysis of decisions of British courts on questions of private international law in 2009
S J Bright, 'Carbon Reduction and Commercial Leases in the UK' (2010) 2 International Journal of Law and the Built Environment 218 [...]
This paper explores the potential impact that the introduction of the UK’s CRC Energy Efficiency Scheme will have on a) energy use in the tenanted commercial built environment and b) the idea of the net lease.
S J Bright and S Highmore, 'Carbon Reduction Commitment and Commercial Leases' (2010) 74 Conveyancer 430 [...]
This article discusses the complexities of accommodating CRC within commercial leaes and explores drafting responses
R Burnett, 'Editorial: The will and the ways to becoming an ex-offender' (2010) 54 International Journal of Offender Therapy and Comparative Criminology 663
Y-K Chin, 'Policy Process, Policy Learning, and the Role of Provincial Media in China' (2010) Media, Culture and Society
P P Craig, 'Perspectives on Process: Common Law, Statutory and Political' (2010) Public Law 275
P P Craig, 'Proportionality, Rationality and Review ' (2010) New Zealand Law Review 265
P S Davies, 'Anticipated contracts: room for agreement' (2010) 69 CLJ 467
P Davies, 'Liability for Misstatements to the Market' (2010) 5 Capital Markets Law Journal 443 [...]
The Liability of Issuers Regulations introduce a revised statutory scheme of liability for issuers in respect of misstatements to the market. This article considers how the revised scheme differs from the stop-gap regime introduced in 2006, notably by extending the range of misstatements and markets to which the regime applies. The new regime also includes liability for delayed statements and increases the range of potential claimants. However, fraud as the basis for issuer liability is retained, as is the exclusion of liability to investors of the directors of issuers.
P S Davies, 'Recent Developments in the Law of Implied Terms'  LMCLQ 140
P S Davies, 'The illegality defence: turning back the clock'  Conv 282
A C L Davies, 'The Implementation of the Directive on Temporary Agency Work in the UK: A Missed Opportunity' (2010) 1 European Labour Law Journal 303 [...]
An analysis of the UK's implementation of the Temporary Agency Work Directive.
A C L Davies, 'Trade Union Recognition and Collective Bargaining in English Law' (2010) Europäische Zeitschrift für Arbeitsrecht 37 [...]
Text of a lecture delivered at the Siebtes Göttinger Forum zum Arbeitsrecht, Georg-August- Universität Göttingen
E Descheemaeker, 'Defamation Outside Reputation: Proposals for the Reform of English Law' (2010) 18 Tort Law Review 133 [...]
The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.
E Descheemaeker, 'La dualité des torts en droit français (délits, quasi-délits, et la notion de faute) [The Twofoldness of Wrongs in French Law: Delicts, Quasi-delicts, and the Notion of Fault]' (2010) 109 Revue trimestrielle de droit civil 435 [...]
Le Code civil contient une faille structurelle : son chapitre 4.3.2 (« des délits et des quasi-délits ») est censé, par construction, se rapporter à la responsabilité fondée sur un délit ou un quasi-délit, c’est-à-dire sur un acte fautif. Pourtant, ce chapitre contient des faits générateurs de responsabilité non-coupables : le contenu ne correspond donc pas au contenant. La cause, c’est que le droit français moderne a réécrit la dichotomie romaine entre obligations ex delicto et quasi ex delicto, lui faisant perdre son caractère exhaustif. Une conséquence en est que la notion de faute a été soumise à une force centrifuge considérable, tendant à la vider de sa condition historique de culpa.
E Descheemaeker, 'Obligations quasi ex delicto and Strict Liability in Roman Law' (2010) 31 Journal of Legal History 1 [...]
The meaning of the Gaian-Justinianic division of obligations arising from unlawful events into obligationes ex delicto and quasi ex delicto has long been a puzzle for Romanists. The strict liability theory, which understands “quasi-delicts” as examples of situational wrongs, defined independently of fault, was first aired in the 1940s but has never gained widespread support. The case of the iudex qui litem suam facit was regarded as a stumbling block for the theory. The present article aims to make a new and systematic case for strict liability as the basis of the quasi-delictal category and argues that, in the light of archaeological discoveries which have overhauled our understanding of the judge’s liability, we can now have a coherent picture of Roman quasi-delictal liability as liability even without fault.
G Dinwoodie, 'Opinion:Trade Mark Harmonisation: National Courts and the European Court of Justice' (2010) 41 International Review of Industrial Property and Copyright Law 1
G Dinwoodie, R. Dreyfuss and A. Kur, 'The Law Applicable to Secondary Liability in Intellectual Property Cases' (2010) 42 New York University Journal of International Law and Politics 201 [...]
In recent years, intellectual property law has paid increasing attention to issues of private international law. The American Law Institute promulgated Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Dispute in 2008. In Europe, the Max Planck Institutes’ Conflict of Laws in Intellectual Property Conflicts of Law effort is expected in 2010. However, neither of these projects has dealt explicitly with choice of law on contributory liability (or any other form of secondary liability that makes one party liable for the harm caused by another). Yet, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement on a worldwide basis. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material without rightholders’ permissions; on internet service providers for subscribers’s infringing postings; and on other intermediaries, such as auction sites. In principle, secondary liability actions can occur in all areas of intellectual property law. However, for purposes of this paper, we concentrate on trademark cases, such as the litigation involving the responsibility of the online auction house, e-Bay, for the sale of counterfeit goods on its website. The problems posed in that area are particularly complex. After offering a stylized fact pattern to illustrate the problems, we consider the different ways in which courts might deal with questions arising in cases where secondary liability claims are asserted. We suggest that the traditional approach to choice of law in trademark cases generates unacceptable uncertainties for intermediaries and that a genuine engagement with conflicts scholarship would help mediate among the diverse interests and policy concerns. In the end, however, we conclude that private international law solutions may not resolve all the complications of multinational secondary liability cases. Thus, we are moved to propose, as an alternative solution, an autonomous (substantive) principle applicable in these cases. We conclude with some thoughts about how the different approaches engage with existing models for the resolution of trans-border intellectual property disputes and with the international intellectual property regime more generally.
This paper centres on the distinction between norms related to family behaviour expressed through state law and practice and such behaviour itself. Such expression requires justification because it prescribes rather than describes social behaviour. It is maintained that a necessary condition for justification should be that the family-related norm enhances the well-being of individuals in the family, and that the application of this condition requires careful evaluation of empirical evidence, in particular, an appreciation of the relative effects of legal events and of social behaviour.
J M Eekelaar, 'Legal Events and Social Behaviour' (2010) 40 Family Law 1094 [...]
A description of empirical evidence about the effects of family law on social behaviour
R Ekins, 'Reckless Lawmaking' (2010) New Zealand Law Journal 127
R Ekins, 'Regulatory Responsibility?' (2010) New Zealand Law Journal 25
R Ekins and W Brookbanks, 'The Case Against the 'Three Strikes' Sentencing Regime' (2010) New Zealand Law Review 689
R Ekins, 'The Intention of Parliament'  Public Law 709
R Ekins, 'The Regulatory Responsibility Bill and the Constitution' (2010) 6 Policy Quarterly 9
P Eleftheriadis, 'Human Rights as Legal Rights' (2010) 1 Transnational Legal Theory 371
P Eleftheriadis, 'Introduction: On Reading Law as a Moral Idea' (2010) 1 Jurisprudence
P Eleftheriadis, 'Law and Sovereignty' (2010) 29 Law and Philosophy 535 [...]
How is it possible that the idea of sovereignty still features in law and legal philosophy? Sovereignty is normally taken to refer to absolute power. Yet modern law assumes that power is exercised by officials constrained by legal rules and the rule of law. This essay argues that a closer look at sovereignty and law shows that the first impression is correct: law and sovereignty are mutually exclusive. Philosophically speaking, sovereignty is and has always been incompatible with the rule of law and with constitutional law itself. Sovereignty and constitutional government are mutually exclusive.
The UK Government’s Green Paper Rights and Responsibilities: Developing our Constitutional Framework, outlines a new proposal for a British Bill of Rights and Responsibilities, which may replace the Human Rights Act as the main constitutional statement of human rights in the United Kingdom. The Green Paper does not address squarely the role that rights play in protecting liberty. It does not deal with the modern literature on justice, liberty and democracy. The failures are surprising, given the significance of what is being proposed. The experience of modern constitutional law teaches us that we need strong and independent judges and clear public laws, if rights are to be effective. The Green Paper fails to do justice to this long tradition. By making our rights conditional on someone’s (and mainly the government’s) view of our own virtue, the government’s proposal, at least as it stands today, threatens to undermine some of the most central safeguards of liberty.
One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This essay argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The coherence of European legal reasoning will be best preserved, if we consider that both the national legal order and the international (or European) such order endorse a sophisticated view of their own limits.
P Eleftheriadis, 'The Law of Laws' (2010) 1 Transnational Legal Theory 597
P Eleftheriadis, 'The Structure of European Union Law' (2010) 12 Cambridge Yearbook of European Legal Studies 121
TAO Endicott, 'Form and substance in the rule of law' (2010) Per Incuriam (the Cambridge University law students’ magazine) 23 [...]
A contribution to a debate with Professor T.R.S.Allan about the rule of law.
TAO Endicott, 'Habeas Corpus and Guantanamo Bay: A View from Abroad' (2010) 50 American Journal of Jurisprudence 1
I respond to Nigel Simmonds’ book Law as a Moral Idea (2008) by asking four questions, and offering tentative answers to them: Is politics a moral idea? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? The theme of this exercise is that Simmonds is right to call law a ‘moral idea’, and that implies a connection between law and a moral ideal; but there is also a necessary connection between law and the morally non-ideal.
TAO Endicott, 'What Human Rights Are There, if Any, and Why?' (2010) 23 Studies in Christian Ethics 172
D Erdos, 'Smoke but No Fire? The Politics of a ‘British’ Bill of Rights' (2010) 81 Political Quarterly 188 [...]
This article systematically explores the political context behind Labour and the Conservatives' new commitment to a British Bill of Rights. This is linked to conflicting incentives to resist the current trajectory towards rights constitutionalism (‘Constitutional Freeze’), to further encourage further rights constitutionalism (‘Constitutional Fire’) and to engage in largely cosmetic change (‘Constitutional Smoke’). Ultimately, the latter has proved dominant for both parties. This demonstrates the difficulty of building political momentum behind significant revision of institutional responsibility for protecting human rights in stable, democratic settings. It specifically illustrates the strong barriers which both a hegemonic policy preserving and an ‘aversive’ constitutionalising dynamic must overcome to succee
A Ezrachi and Gilo, 'Excessive Pricing, Entry, Assessment and Investment – Lessons from the Mittal Litigation' (2010) 76:3 Antitrust Law Journal [...]
The role of antitrust in curtailing excessive prices has long been a contentious area. Consequently, the charging of excessive prices has been subjected to diverse levels of enforcement across the world.1 U.S. antitrust law, for example, does not encompass the charging of high prices as such,2 and was held not to “condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat.”3 By contrast, competition laws in other jurisdictions provide for the condemnation of excessive or unfair pricing. Such is the case under EU competition law,4 the competition provisions in the European Member States,5 and in other jurisdictions across the world.6 But even among those competition regimes which do intervene against the charging of excessive prices as such, one may identify different levels of enthusiasm for doing so. In Europe, for example, recent years have witnessed a restrained approach by the European Commission7 but a more proactive approach by some of the competition authorities of the Member States.8 Varying levels of intervention reflect a controversy as to the merit of prohibiting excessive pricing. Three main grounds are often used to justify non-, or limited-, intervention: (1) intervention is not necessary, as high prices would be competed away by new entry, attracted by the ex-cessive price; (2) there are practical difficulties in speculating what a price would have been had there been competition and in determining the excessiveness of the prices actually charged; and (3) enforcement which targets excessive prices may chill innovation and investment.9 To illustrate the difficulties of assessment and to question some of the justifications that are used to rationalize non-intervention, this article reviews the recent litigation in South Africa related to alleged excessive pricing by Mittal Steel.10 We use the decisions of the South African Competition Tribunal and the South African Competition Appeal Court as a case study to highlight both the complexity of, and possible merit in, antitrust intervention against excessive pricing. Our analysis focuses on the three grounds for non-intervention. First, with respect to the self-correcting nature of excessive prices, we illustrate how excessive prices, in and of themselves, do not attract new entry, when potential entrants are either informed or uninformed about their post-entry profits. Referring to our previous work on this subject,11 we question the South African Competition Tribunal’s holding in the Mittal case with respect to the prerequisite conditions for intervention against excessive pricing. Second, we consider how the difficulties of assessing what is an excessive price affected the outcome in the Mittal litigation. Without underestimating these difficulties, we consider how they may be alleviated in certain cases through reasonable methods for inferring what may constitute an excessive price. Third, while acknowledging the possible validity of concerns about chilling ex ante investment, we outline instances in which these concerns should not serve to support nonintervention. It should be stressed that this article does not advocate across-theboard intervention. It does, however, question the validity of a categorical “hands-off” approach, which deems excessive prices to be outside the realm of competition law. We consider separately the weight that should be assigned to each ground for non-intervention. Subsequently, we argue in favor of a case-by-case approach which explores the factual matrix of each case and considers the benefits, costs, and net effects of intervention.
A Ezrachi, 'Form and Effects Based Approaches - A Challenging Duality in the Application of Article 102 TFEU ' (2010) 2 Concurrences Review [...]
In recent years the debate on the soul of Article 102 TFEU and the effects based approach have dominated the competition law landscape. While many would agree on the clear merit of introducing more carefully balanced analysis when establishing abuse, the practicalities of such an approach have been difficult to agree upon. The recent Guidance Paper on Enforcement Priorities in the Application of Article 102 TFEU, which stemmed from the public consultation, has further sparked the public debate in this area. Concerns were raised as to the scope of the effects based variants in the Guidance Paper and the innovation it heralds - for example in the treatment of fidelity rebates and the use of the new proposed efficiency defence. Beyond the substantive and conceptual complexities that an effects based approach carries, its practical application has given rise to an interesting and somewhat disconcerting duality. On one hand, the European Court has not yet warmed to the effects based approach. In its judgements, the Court, has by large, continued to hold that it is not necessary to demonstrate that the abuse in question had a concrete effect on the markets concerned. It has generally ignored the lively debate on the effects based approach and even at times, the opinion of its own Advocate General . On the other hand, the Commission has pushed toward an effects based analysis, not only in its Guidance Paper but also in its decision making. In the Prokent/Tomra decision the Commission noted that it has completed its analysis by considering the actual effects of the dominant company’s practices and did not satisfy itself with the lower formalistic threshold established by the Court. Similarly, in Intel Corporation , the Commission took the decision in line with the orientations set out in its Guidance Paper and considered the effects of the fidelity rebates. The Commission noted, however, that even with the absence of harmful effect, Intel’s behaviour may be condemned under the formalistic analysis of abuse as applied by the Court, thus using a dual benchmark in its decision making. This Form based approach at the European Court and the Effects based approach as applied by the Commission, trigger apparent legal and business uncertainty.
A Ezrachi, 'Unchallenged Market Power? The Tale of Supermarkets, Private labels and Competition Law ' (2010) World Competition [...]
Recent decades have witnessed a distinct increase in the sales and popularity of private labels. The growing market share of private labels has transformed the landscape of retail competition in developed countries. Major retailers are no longer confined to their traditional roles of purchasers and distributors of branded goods. By selling their own label products within their outlet they compete with their upstream brand suppliers on sales and shelf space. This ‘vertical competition’ is not confined solely to ‘value’ categories of products. These days, retailers offer private label goods catering for the value, specialized and premium markets. These developments, and the increasing confidence that consumers have in private labels, have increased the bargaining position and market power of retailers as their labels compete directly with the leading manufacturers’ brand and its ‘value’ alternatives. This unique relationship and the increased role played by private labels raises fundamental questions as to their pro-, and possible anti-, competitive effects. It further highlights the shifting power balance between the producer and distributor and between the private label and branded good. This paper focuses on the effects of private labels, sold in major supermarkets, on retail competition and consumer welfare. In particular, it considers how supermarkets affect competition due to the fact that they retain control over shelving, in-store promotion and the pricing of branded and own label goods in addition to having superior access to consumer data. Furthermore, it reviews the enforcement of competition law in a private label environment and the difficulty in balancing the beneficial short-term effects of private labels and their possible, harmful, long-term effects. It subsequently questions whether these difficulties imply a lack of competitive harm or reflect a gap in regulation, as traditional analysis fails to encompass the increased market power of retailers and the existence of vertical competition.
J M Finnis, 'Law as Idea, Ideal and Duty: A Comment on Simmonds, Law as a Moral Idea' (2010) 1 Jurisprudence 247
E Fisher, 'Food Safety Crises as Crises of Administrative Constitutionalism' (2010) 20 Health Matrix: Journal of Law-Medicine 55
Wendy Wagner, E Fisher, Elizabeth Fisher and Pasky Pascual, 'Misunderstanding Models in Environmental and Health Regulation' (2010) 18 New York University Environmental Law Journal 293 [...]
Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.
E Fisher, 'Transparency and Administrative Law: A Critical Evaluation' (2010) 63 Current Legal Problems 272
E Fisher, Pasky Pascual and Wendy Wagner, 'Understanding Environmental Models in Their Legal and Regulatory Context ' (2010) 22 Journal of Environmental Law 251 [...]
Environmental models are playing an increasingly important role in most jurisdictions and giving rise to disputes. Despite this fact, lawyers and policy-makers have overlooked models and not engaged critically with them. This is a problematic state of affairs. Modelling is a semi-autonomous, interdisciplinary activity concerned with developing representations of systems and is used to evaluate regulatory behaviour to ensure it is legitimate. Models are thus relevant to lawyers and policy-makers but need to be engaged with critically due to technical, institutional, interdisciplinary and evaluative complexities in their operation. Lawyers and policy-makers must thus think more carefully about models and in doing so reflect on the nature of their own disciplines and fields.
S Fredman, 'New Horizons: Incorporating Socio-Economic Rights in a British Bill of Rights '  Public Law 297
S Fredman, 'Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage onto the Equality Agenda ' (2010) European Human Rights Law Review 290
The current `informal engagement' to explore whether there is a case for the GAAR may very well result in no action and this would be a relief for many in the tax community. But before dismiss ing the idea, it is worth considering what the alternatives might be and whether a carefully crafted GAAR resulting from thorough consultation and with appropriate safeguards might not be preferable.
J Freedman, 'Improving (Not Perfecting) Tax Legislation: Rules and Principles Revisited'  British Tax Review [...]
This article revisits the arguments made by John Avery Jones in 1996 for “less detailed legislation interpreted in accordance with principles.” His plea has been influential but perhaps not completely understood. Recent developments in the UK, particularly in the area of so-called “principles-based drafting” may not have assisted in promoting this cause. It is frequently argued that real improvements in tax law require a coherent underlying policy, not just drafting changes. Obviously, drafting techniques will not cure a poorly structured tax and so ideally the starting point would be improved policy. But we cannot afford to wait for a total policy overhaul. A different approach to the way we legislate could both improve the way we think about policy and result in better implementation, application and legitimacy in decision making. Principles-based drafting is not a solution to all ills. Nevertheless, it could offer one route, in appropriate cases, to improvement as well as, in other cases, highlighting the need for more fundamental reform. We should not give up this experiment simply because it has not yet delivered total success. No new drafting technique can deliver a perfect tax system, but it is worth persevering with principles-based legislation.
In this comment on Nigel Simmonds' book Law as a Moral Ideal, I take issue with Simmonds' interpretation of the work of H.L.A. Hart. I attempt to provide textual support for the view that Hart did find necessary connections - many of them - between law and morality. The bulk of the comment is devoted to exploring just one indirect necessary connection between law and morality that Hart may have noticed in The Concept of Law, viz. the connection from law to legality, from legality to justice, and from justice to morality. I find Hart surprisingly ambivalent about the last link in this chain, but do not find in this ambivalence any solace for Simmonds.
In this paper I discuss and reply to Malcolm Thorburn's important article 'Justifications, Powers, and Authority', Yale Law Journal 117 (2008), 1070. My discussion raises a wide range of conceptual and doctrinal questions about Thorburn's account of justification defences, and about the theory of justfication defences more generally. The paper also trespasses on some broader questions about the nature of law and its relationship to morality.
R George and F Judd QC, 'International Relocation: Do We Stand Alone?' (2010) Family Law 63
P Harris and R George, 'Parental Responsibility and Shared Residence Orders: Parliamentary Intentions and Judicial Interpretations' (2010) 22 Child and Family Law Quarterly 151
J S Getzler, 'Richard Epstein, Strict Liability, and the History of Torts' (2010) 3 Journal of Tort Law #3 [...]
Epstein's strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein's historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.
N Ghanea, 'Minorities and Hatred: Protections and Implications' (2010) 17.3 International Journal of Minority and Group Rights 423 [...]
The international concern with minorities has benefitted from a range of rationales and gone through a number of permutations over recent decades. Within these are included a wide spectrum of objectives from concern with their very obliteration covered under genocide instruments to soft law instruments concerned with their positive flourishing. This article will address just one aspect of those concerns – those protecting minorities from hate speech.
N Ghanea, 'Religious Minorities and human rights: Bridging international and domestic perspectives on the rights of persons belonging to religious minorities under English law' (2010) European Yearbook of Minority Issues [...]
This paper considers minorities in English law through the prism of international standards related to both freedom of religion or belief and minority rights. These two sets of international normative standards are brought together in order to emphasize the fact that persons belonging to religious minorities have access not only to general human rights standards including freedom of religion or belief, but also to minority rights. Combining the implications of these applicable rights, the paper will suggest that ‘religious minorities’ should be (i) taken to include persons belonging to minorities on grounds of both religion or belief; (ii) that their religious practice should not only be considered ‘manifestation’ of religion or belief but also the practice of a minority culture; and that (iii) States have a duty to protect the survival and continued development of the identity of religious minorities and allow such persons to enjoy their culture. The paper will then move to considering a few recent cases in English law, in order to examine the extent to which these three implications are realized within them.
A. Bellal, G. Giacca and S. Casey-Maslen, 'Armed Non-State Actors: Towards Engagement, Compliance and Accountability ' (2010) Issue 37 Oxford, Refugee Studies Centre / Forced Migration Review
J Goudkamp, 'Self-Defence and Illegality Under the Civil Liability Act 2002 (NSW) ' (2010) 18 Torts Law Journal 61
J Goudkamp, 'The Defence of Joint Illegal Enterprise' (2010) 34 Melbourne University Law Review 425
S Green, 'The Subject Matter of Conversion'  Journal of Business Law 218
L Green, 'Two Worries about Respect for Persons' (2010) 120 Ethics 212
S Green, 'Understanding the Wrongful Interference Actions' (2010) 74 Conveyancer and Property Lawyer 15
C Greenhalgh, R Pitkethly and M Rogers, 'Intellectual property enforcement in smaller UK firms: Findings from a survey in 2009-10’' (2010) Vol.2 The WIPO Journal
L Gullifer and V Barns-Graham, 'The Australian PPS reforms: what will the new system look like?' (2010) 4 Law and Financial Markets Review 394
B Havelkova, 'The legal notion of gender equality in the Czech Republic' (2010) 33 Women's Studies International Forum 21 [...]
This article looks at the legal notion of gender equality in the Czech Republic as EU harmonization obligations meet with the socialist past. While the transition from state socialism to capitalism brought positive legal reforms – many incurred in the EU accession process – some of these new mechanisms, especially anti-discrimination and gender equality provisions, are mistrusted and misunderstood by legal actors. The article submits that the current notion of equality is influenced by the socialist past, and that both a continuity of conceptions between past and present about gender and equality, and attempts to distance the new capitalist order from its socialist predecessor impact it.
J J W Herring, '20:10:2010: The death knell of marraige' (2010) New Law Journal 1511 [...]
A discussion of pre-nups
J J W Herring, 'Money, money money' (2010) Counsel 26 [...]
Consideration of recent cases on ancillary relief on divorce.
J J W Herring, 'Money, Money, Money...' (2010) New Law Journal 300 [...]
An article discussing big money divorce cases
J J W Herring, 'Seven ways of getting it wrong' (2010) New Law Journal 718 [...]
An article discussing issues surrounding child protection cases
J J W Herring, 'Sexless Family Law' (2010) 11 Lex Familiae, Revista Portugesa de Direito da Familia 3 [...]
This paper argues that rights and responsibilities in family law should not flow from the sex of the parties or the nature of any sexual relationship between them
J J W Herring, 'The Legal Duties of Carers' (2010) 18 Medical Law Review 248 [...]
A discussion of the legal duties and responsibilities of those caring informally for others.
J J W Herring, 'The right to choose' (2010) New Law Journal 1066 [...]
A discussion of capacity to consent to receive contraception.
A Higgins, 'Legal advice privilege and its relevance to corporations' (2010) Modern Law Review 371
A Higgins, 'The costs of case management: what should be done post Jackson?' (2010) Civil Justice Quarterly 317
C Hodges, 'Collective Redress in Europe: The New Model' (2010) 7 Civil Justice Quarterly 370
Laura Hoyano, 'Coroners And Justice Act 2009 -- (3) Special Measures Directions Take Two: Entrenching Unequal Access to Justice?'   Criminal Law Review 345 [...]
This article maps (through diagrams) and analyses the changes made by the Coroners and Justice Act 2009 to existing Special Measures Directions for child witnesses, child defendants and complainants of sexual assault under the Youth Justice and Criminal Evidence Act 1999. Adult defendants suffering from some form of significant mental impairment are for the first time made eligible to apply for leave to testify using the live link and with the assistance of an intermediary. In addition, the 2009 Act deems witnesses to violent offences against the person involving the use of firearms or knives to be intimidated and hence automatically eligible for Special Measures. The article concludes that the measures for defendants do not go far enough and are susceptible to challenge under ECHR Article 6, and perhaps go too far in introducing anomalies in the treatment of different categories of intimidated witnesses.
Laura Hoyano, 'Ecclesiastical Responsibility for Clerical Wrongdoing' (2010) 18 Tort Law Review 154
A Kavanagh, 'Defending Deference in Public Law and Constitutional Theory' (2010) 126 Law Quarterly Review 222
A Kavanagh, 'Judicial Restraint in the Pursuit of Justice' (2010) 60 University of Toronto Law Journal 23
A Kavanagh, 'Special Advocates, Control Orders and the Right to a Fair Trial' (2010) 63 Modern Law Review 836
D Kimel, 'The Morality of Contract and Moral Culpability in Breach' (2010) 21 King’s Law Journal 213
B Krebs, 'Joint Criminal Enterprise' (2010) 73 Modern Law Review 578
M Kurkchiyan, 'Comparing Legal Cultures:Three Models of Court for Small Civil Cases ' (2010) Vol.5 Journal of Comparative Law 169
M Köpcke Tinturé, 'Law Does Things Differently' (2010) 55 American Journal of Jurisprudence 201
N Lacey, 'Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility' (2010) 4 Criminal Law and Philosophy 110
This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are best understood as theoretical authorities, this raises difficulties for both positivistic and interpretivist theories of law.
Nafsika Alexiadou, Danica Fink-Hafner and B Lange, 'Education policy convergence through the Open Method of Co-ordination: Theoretical Reflections and implementation in 'old' and 'new' national contexts' (2010) European Educational Research Journal 345
B Lange and Nafsika Alexiadou, 'Governing through learning about policy: just all words? An Introduction to policy learning in the context of open methods of co-ordinating education in the European Union' (2010) 25 Journal of Education Policy 443
B Lange, 'Media Regulation and "Celebrity Big Brother': Some Critical Reflections' (2010) 7 Journal of Entertainment and Sports Law
B Lange and Andrew Gouldson, 'Trustbased Environmental Regulation' (2010) 408 Science of the Total Environment 5235
B Lauriat, '‘The Examination of Everything’: Royal Commissions in British Legal History' (2010) 31 Statute Law Rev 24
D Leczykiewicz, '"Effective Judicial Protection" of Human Rights After Lisbon: Should National Courts Be Empowered to Review EU Secondary Law?' (2010) 35 European Law Review 326
I Loader, B Goold and A Thumala, 'Consuming Security?: Tools for a Sociology of Security Consumption' (2010) 14 Theoretical Criminology 3
I Loader, 'For penal moderation: Notes towards a public philosophy of punishment' (2010) 14 Theoretical Criminology 349
I Loader, 'Is it NICE? The Appeal, Limits and Promise of Translating a Health Innovation into Criminal Justice ' (2010) 63 Current Legal Problems 72
I Loader and R Sparks, 'Wacquant and Civic Sociology: Formative Intentions and Formative Experiences' (2010) 10 Criminology & Criminal Justice 405
I Loader and R Sparks, 'What is to be done with Public Criminology?' (2010) 9 Criminology & Public Policy 771
B Loftus, B Goold and S Macgiollabhui, 'Covert Policing and the Regulation of Investigatory Powers Act 2000' (2010) 8 Archbold Review 3
B Loftus, 'Police Occupational Culture: Classic Themes, Altered Times' (2010) 20 Policing and Society 1
V Mayer-Schönberger, 'Beyond Privacy, Beyond Rights - Towards a \"Systems\" Theory of Information Governance' (2010) 98 California Law Review 1853
D Da Cruz and others, 'Emergency Department Contact Prior to Suicide in Mental Health Patients' (2010) Emergency Medicine Journal
C Miles, 'Intoxication-Related Homicide in England and Wales' (2010) 188 Prison Service Journal 22
P Saini and others, 'Suicide Prevention in Primary Care: General Practitioners? Views on Service Availability' (2010) 3 BMC Research Notes
V Moreno Lax, 'The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea' (2010) 25(4) The International Journal of Marine and Coastal Law 621-635.
D P Nolan and S Bailey, 'The Page v Smith Saga: A Tale of Inauspicious Origins and Unintended Consequences' (2010) 69 Cambridge Law Journal 495
I Papanicolopulu, 'Donne sulle onde: libertà di espressione, libertà di navigazione o libertà di circolazione?' (2010) 4 Diritti Umani e Diritto Internazionale 205
I Papanicolopulu, 'Warships and Noise Regulation: The International Legal Framework' (2010) 63 Marine Pollution Bulletin 35 [...]
The use of sonar by military vessels during military exercises may produce acoustic pollution of the marine environment. States have an obligation under international law to reduce and control this form of pollution. Regulation of the use of sonar is rendered more complex by the specific regime applicable to warships, i.e. sovereign immunity. Immunity however does not prevent in all cases action by States other than the flag State, notwithstanding the limitations imposed by Art. 236 of the United Nations Convention on the Law of the Sea. More importantly, immunity does not prevent the flag State from taking measures to reduce pollution caused by its own warships. Under some environmental treaties, flag States not only may, but have the obligation to adopt measures.
M Paparinskis, 'Limits of Depoliticisation in Contemporary Investor-State Arbitration' (2010) 3 Select Proceedings of the European Society of International Law 271
C E Parau, 'East Side Story: How Transnational Networks Contested EU Accession Conditionality' (2010) Europe-Asia Studies
J Pila, 'An Australian Copyright Revolution and its Relevance for UK Jurisprudence: IceTV in the light of Infopaq v Danske' (2010) 9 Oxford University Commonwealth Law Journal 77-93 [...]
This paper was written for delivery at a BLACA meeting on 14 January 2010. The powerpoint slides are available at http://www.blaca.org/meeting.htm and http://users.ox.ac.uk/~lawf0169/pdfs/blacaseminar, pila rev.pdf
A preprint of this article is available at http://ssrn.com/abstract=1160176
J Pila, 'On the European Requirement for an Invention' (2010) 41 IIC: International Review of Intellectual Property and Competition Law 906-926
J Pila, 'Who Owns the Intellectual Property Rights in Academic Work?' (2010) European Intellectual Property Review 609-613
F Pirie, 'Law before Government: Ideology and Aspiration. ' (2010) Oxford Journal of Legal Studies. 207–228 [...]
The extended notion of law evoked by the concept of legal pluralism has been subjected to powerful anthropological critiques. Simon Roberts, among others, has argued that law should be kept analytically distinct from forms of negotiated order. His persuasive argument in favour of a link between law and government, however, shuts the door on examples of law which arise before, or apart from, government, but which are nevertheless not negotiated orders. Law, it is argued here, can be identified neither by reference to the negotiation of order, nor by reference to government. It is, rather, an intellectual system, identified by its expressive and aspirational qualities and its ideological claims to promote order and justice. In order to distinguish law from other ideological systems it is, then, necessary for the legal anthropologist to pay more attention to the significance of the legal form.
E Ramaekers and B Akkermans, 'Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations' (2010) 16 European Law Journal 292
Company law has long been in conflict with European Union law. Whereas the traditional approach of the European Court of Justice was to challenge national company law rules that were applied to foreign companies under the freedom of establishment (Centros and its progeny), recent case-law suggests that the Court might embark on a general assessment of domestic company law rules. This tendency is based on an extended interpretation of the free movement of capital, which became most prominently relevant in the recent Volkswagen case. A systematic analysis of the latter fundamental freedom and its relationship to company law demonstrates that this tendency is not without risk and might well end up in a ‘quality control’ of national company law through the ECJ. However, differentiated outcomes will be found depending on the actor in question (private party or State), and depending on the beneficiary of the measure at stake. It is argued that State measures potentially will always trigger the scope of application of the free movement of capital, irrespective of their nature or objective. Hence, even general statutory company law can be caught by this fundamental freedom. However, the decisive test will be identified as whether the measure has a ‘deterring effect’ on potential investors from other Member States. Special rights for the State are one extreme example which are surely caught by EC law, and purely private arrangements within the articles of association, are the other extreme. This test is recommended to serve the Court as guidance in future cases.
J Roberts and M Hough, 'Custody or Community? Exploring the Boundaries of Public Punitiveness in England and Wales (in press)' (2010) Criminology and Criminal Justice
E. Player, J. Jacobson, J Roberts, M. Hough and J. Rowbottom, 'Remanded in Custody: An Analysis of Recent trends in England and Wales' (2010) The Howard Journal of Criminal Justice
J Roberts, 'The Evolution of Sentencing Guidelines in England and Wales' (2010) Criminal Justice Matters
J Roberts and M Manikis, 'Victim Impact Statements at Sentencing: Exploring the relevance of Ancillary Harm (in press)' (2010) Canadian Criminal Law Review
J Rowbottom, 'Financing Political Parties in the United Kingdom' (2010) 6 Policy Quarterly (New Zealand)
A Russell, 'International Organizations and Human Rights: Resisting, Realizing or Repackaging the Right to Water?' (2010) 9 Journal of Human Rights 1
D Sarooshi, '‘The Recourse to the Use of Force by the United Nations’' (2010) 104 American Society of International Law Proceedings 1
A J B Sirks, 'Die Voraussetzungen und Methode von Seeck in seinen Regesten' (2010) 78 Tijdschrift voor Rechtsgeschiedenis. 395–430 [...]
The suppositions and method of Seeck in his ‘Regesten der Kaiser und Päpste’ (1919). – In his article of 1889, Die Zeitfolge der Gesetze Constantins, on the dating of imperial constitutions, Seeck boldly assumed that the central imperial archives up till ca. 390 had been lost when the Theodosian Code was compiled and that therefore the compilers were forced to resort to provincial archives for the period 311 – ca. 390. This assumption was squarely denied by Bresslau in 1912 in his Handbuch der Urkundenlehre. In the introductory chapter of his Regesten der Kaiser und Päpste of 1919, dealing with his methodology, Seeck suggests that he has corrected the errors he made. However, upon closer analysis it appears that he did not react at all to the substantial criticism of Bresslau, but kept to his original (and still unacceptable) assumption, obscuring his methodology on top of this. As a result his data in the Regesten are less precise than they should have been if a proper and rigorous methodology had been applied. As an example of the advantages of a proper methodology the case of the Gesta Senatus is cited. Here proceeding methodologically generates an interpretation of the events which might have satisfied the contemporaneous requirements for confirmation of the Theodosian Code in the West in 438 and therefore would be an acceptable explanation.
ISBN: ISSN 0040-7585
R Stevens and Ben McFarlane, 'The Nature of Equitable Property' (2010) 4 The Journal of Equity 1
P Tomlin, 'Internal Doubts about Cohen?s Rescue of Justice' (2010) 18 Journal of Political Philosophy 228
CJ Tams and A Tzanakopoulos, 'Barcelona Traction at 40: The ICJ as an Agent of Legal Development' (2010) 23 Leiden Journal of International Law 781 [...]
The article revisits the Barcelona Traction judgment of the International Court of Justice, rendered forty years ago. It evaluates the lasting influence of the Court's pronouncements on the nationality of corporations and on obligations erga omnes, and uses the case to illustrate the Court's role as an influential agent of legal development. In this respect, it identifies a number of factors that can help to explain under which circumstances judicial pronouncements are likely to shape the law.
A Tzanakopoulos, 'United Nations Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v Canada' (2010) 8 Journal of International Criminal Justice 249 [...]
Domestic courts are increasingly being seized by persons subjected to or affected by sanctions imposed by the UN Security Council, particularly through the regime established under Resolution 1267. In Abdelrazik v. Canada, the Canadian Federal Court ‘interprets away’ the obligations of Canada under the 1267 regime, potentially forcing upon the state a breach of its international obligations under the resolution and the UN Charter. But at the same time it offers an important — if implicit — justification for that breach under international law.
J Vidmar, 'Confining International Borders in the Practice of Post-1990 State Creations' (2010) Heidelberg Journal of International Law 319
J Vidmar, 'Multiparty Democracy: International and European Human Rights Law Perspectives' (2010) Leiden Journal of International Law 209
J Vidmar, 'Remedial Secession in International Law: Theory and (Lack of) Practice' (2010) St Antony's International Review 37
J Vidmar, 'The Problem of International Constitutionalism: Can International Law Operate Vertically?' (2010) Proceedings of the Annual Conference of the Australian and New Zealand Society of International Law
J Vidmar, 'The Right of Self-Determination and Multiparty Democracy: Two Sides of the Same Coin?' (2010) Human Rights Law Review 239
S Vogenauer, 'Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law?' (2010) 6 European Review of Contract Law 143-183 [...]
Reprint in J Kleineman (ed), A Common Frame of Reference for European Contract Law, Stockholm: Jure Förlag 2011, 155-199
S Wallerstein, 'Why English law should not incorporate a defence of superior orders' (2010) Crim LR 109 [...]
English law does not recognise the defence of obedience to superior orders. Recent years have seen voices calling for reconsideration of the law and for the adoption of a defence in some form. One of the reasons for this stance is the fact that the defence is recognised in the Rome Statute constituting the International Criminal Court (ICC). This article examines whether the law should be changed and the defence of superior orders introduced into English law. As the title suggests, the article concludes that such a change is not desirable and that the current position of the law is correct. Over the years very little has been written on the defence of superior orders in the domestic context but, not surprisingly, the subject has been widely discussed in international law in the context of the laws of war. Thus, the article starts (Section I) with the debate in international law, presenting the two main approaches regarding the recognition of a defence of obedience to superior orders: the absolute liability approach adopted by the Nuremberg Tribunal and other ad hoc tribunals over the years, and the conditional liability approach adopted by the ICC in the Rome Statute. Section II goes on to examine the possible rationales that underlie each position. It argues that the defence can be justified either as a recognition of the dilemma faced by the soldier who is required to obey the order as per national law, and to disobey it as per international law, or as a claim of mistake of law or of fact. The question then is whether these rationales can be transformed into domestic English law and support a claim for an adoption of a qualified defence of superior orders. Section III argues that two differences between the stance of English law and international law need to be accounted for: the first is that though the soldier’s dilemma is still applicable, it exists in a somewhat different structure which results in a limitation of the dilemma to borderline cases only, and the second is the fact that English law does not recognise the defence of mistake of law. As a consequence, it is submitted that the defence of superior orders should not be recognised in English law. Nevertheless, a claim of obedience to superior orders often obscures the real defence which should be advanced, and while superior orders should not be recognised as an independent defence the facts may constitute a basis for a defence of duress or of a mistaken case of private defence, both of which are recognised in English law.
S R Weatherill, 'Fairness, openness and the specific nature of sport: does the Lisbon Treaty change EU sports law?' (2010) International Sports Law Journal 11
This review article discusses the relationship between deference and the presumption of constitutionality, as discussed in Brian Foley’s book, Deference and the Presumption of Constitutionality. Foley argues for the rejection of the presumption of constitutionality as it operates in the Irish Constitution, proposing instead a ‘due deference’ approach. This approach would require courts to give varying degrees of weight to the legislature’s conclusions that particular legislative provisions are constitutional. The article praises Foley’s book, particularly its stronger justification of due deference which focuses on its ability to foster a culture of justification which, in turn, facilitates popular sovereignty. The review also provides a criticism of the argument made in the book and discusses its application to the UK constitution. First, the review argues that the focus on constitutional as opposed to institutional factors to determine deference may, in practice, undermine Foley’s justification of due deference. Second it argues that Foley’s justification of deference may be best served in the UK constitution by a theory of democratic dialogue as opposed to the application of due deference.
L Zedner, 'Pre-crime and pre-punishment: a health warning' (2010) Criminal Justice Matters
L Zedner, 'Security, the State, and the Citizen: The Changing Architecture of Crime Control' (2010) 13 New Criminal Law Review 379–403
D Akande, 'The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashirs Immunities' (2009) 7 Journal of International Criminal Justice 333 [...]
This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.
J Armour, S Deakin, P Lele and M Siems, 'How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of hareholder, Creditor and Worker Protection' (2009) 57 American Journal of Comparative Law 579 [...]
Much attention has been devoted in recent literature to the claim that a country’s ‘legal origin’ may make a difference to its pattern of financial development and more generally to its economic growth path. Proponents of this view assert that the ‘family’ within which a country’s legal system originated, be it common law, or one of the varieties of civil law, has a significant impact upon the quality of its legal protection of shareholders, which in turn impacts upon economic growth, through the channel of firms’ access to external finance. Complementary studies of creditors’ rights and labour regulation have buttressed the core claim that different legal families have different dynamic properties. Specifically, common law systems are thought to be better able to respond to the changing needs of a market economy than are civilian systems. This literature has, however, largely been based upon cross-sectional studies of the quality of corporate, insolvency and labour law at particular points in the late 1990s. In this paper, we report findings based on newly constructed indices which track legal change over time in the areas of shareholder, creditor and worker protection. The indices cover five systems for the period 1970-2005: three ‘parent’ systems, the UK, France and Germany; the world’s most developed economy, the US; and its largest democracy, India. The results cast doubt on the legal origin hypothesis in so far as they show that civil law systems have seen substantial increases in shareholder protection over the period in question. The pattern of change differs depending on the area which is being examined, with the law on creditor and worker protection demonstrating more divergence and heterogeneity than that relationg to shareholders. The results for worker protection are more consistent with the legal origin claim than in the other two cases, but this overall result conceals significant diversity within the two ‘legal families,' with different countries relying on different institutional mechanisms to regulate labour. Until the late 1980s the law of the five countries was diverging, but in the last 10-15 years there has been some convergence, particularly in relation to shareholder protection.
The process of liberalisation of India's economy since 1991 has brought with it considerable development both of its financial markets and the legal institutions which support these. An influential body of recent economic work asserts that a country's 'legal origin'-as a civilian or common law jurisdiction-plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. There is a complementarity between (i) India's relative success in services and software, (ii) the relative strength of its financial markets for outside equity, as opposed to outside debt, and (iii) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political explanations have more traction in explaining the case of India than do theories based on 'legal origins'.
J Armour, BS Black, BR Cheffins and RC Nolan, 'Private Enforcement of Corporate Law: An Empirical Comparison of the UK and US' (2009) 6 Journal of Empirical Legal Studies 701 [...]
It is often assumed that strong securities markets require good legal protection of minority shareholders. This implies both “good” law—principally, corporate and securities law—and enforcement, yet there has been little empirical analysis of enforcement. We study private enforcement of corporate law in two common-law jurisdictions with highly developed stock markets, the United Kingdom and the United States, examining how often directors of publicly traded companies are sued, and the nature and outcomes of those suits. We find, based a comprehensive search for filings over 2004–2006, that lawsuits against directors of public companies alleging breach of duty are nearly nonexistent in the United Kingdom. The United States is more litigious, but we still find, based on a nationwide search of court decisions between 2000–2007, that only a small percentage of public companies face a lawsuit against directors alleging a breach of duty that is sufficiently contentious to result in a reported judicial opinion, and a substantial fraction of these cases are dismissed. We examine possible substitutes in the United Kingdom for formal private enforcement of corporate law and find some evidence of substitutes, especially for takeover litigation. Nonetheless, our results suggest that formal private enforcement of corporate law is less central to strong securities markets than might be anticipated.
J Armour, S Deakin, P Sarkar, M Siems and A Singh, 'Shareholder Protection and Stock Market Development: An Empirical Test of the Legal Origins Hypothesis' (2009) 6 Journal of Empirical Legal Studies 343 [...]
Using a panel data set covering a range of developed and developing countries, we show that common-law systems were more protective of shareholder interests than civil-law ones in the period 1995–2005. However, civilian systems were catching up, suggesting that legal origin was not much of an obstacle to formal convergence in shareholder protection law. We find no evidence of a positive impact of these legal changes on stock market development. Possible explanations are that laws have been overly protective of shareholders and that transplanted laws have not worked well in contexts for which they were not suited.
D Awrey, 'Macro-Prudential Financial Regulation: Panacea or Placebo?' (2009) 3 Amsterdam Law Forum 17
D Awrey, 'Principles, Prescriptions and Polemics: Regulating Conflicts of Interest in the Canadian Investment Fund Industry' (2009) 32 Dalhousie Law Journal 69
N. W. Barber, 'Laws and Constitutional Conventions' (2009) 125 Law Quarterly Review 294
M Birdling and Z Johnston, 'Delays and Stays' (2009) New Zealand Law Journal 253
A Bogg, 'New Labour, Trade Unions, and the Liberal State' (2009) 20 King's Law Journal 403 [...]
An analysis of liberal theory and its application in the context of trade union legislation, using this as an intepretive framework for analysing post-1997 legislative developments in collective labour law (12,500 words)
A Bogg, 'Of Holidays, Work and Humanisation: A Missed Opportunity?' (2009) European Law Review [...]
An analysis of the humanisation principle in European working time regulation, and its specific regulatory effects (c 8,500 words)
A Bogg, 'The Mouse that Never Roared: Unfair Practices and Union Recognition' (2009) Industrial Law Journal [...]
A critical analysis of the CAC's jurisprudence dealing with the new unfair practice jurisdiction under the Schedule A1 recognition procedure (6,500 words)
EA Stanko and B Bradford, 'Beyond measuring "how good a job" police are doing: the MPS model of confidence in policing' (2009) 3 Policing: A Journal of Policy and Practice 332
B Bradford, J Jackson and EA Stanko, 'Contact and confidence: Revisiting the impact of public encounters with the police' (2009) 19 Policing and Society 20
J Jackson and B Bradford, 'Crime, policing and the moral order: On the expressive nature of public confidence in policing' (2009) 60 The British Journal of Sociology 493
J Jackson, B Bradford, K Hohl and S Farrall, 'Does the fear of crime erode public confidence in policing?' (2009) 3 Policing: A Journal of Policy and Practice 100
B Bradford, EA Stanko and J Jackson, 'Public encounters with the police: On the use of public opinion surveys to improve contact and confidence' (2009) 3 Policing: A Journal of Policy and Practice 139
A Briggs, 'Decisions of British Courts 2008: Private International Law' (2009) 79 OUP 501 [...]
Survey and analysis of decisions of British courts on questions of private international law in 2008
S J Bright, 'Occupation Rents and the Trust of Land and Appointment of Trustees Act 1996: from Property to Welfare? ' (2009) 73 Conveyancer 378
J Cartwright, 'The English Law of Contract: Time for Review?' (2009) 17 European Review of Private Law 155 [...]
Discussion of aspects of the English law of contract which are in need of reform, and the mechanisms by which reform can be achieved. Revised text of Inaugural Lecture delivered on 7 October 2008 in acceptance of the Chair of Anglo-American Private Law at the University of Leiden.
M Chen-Wishart, 'Bank Charges: A Lesson in Interpreting EC Law' (2009) 125 LQR 389 [...]
This discusses the Court of Appeal decision in Office of Fair Trading v Abbey National and 7 Others  EWCA Civ 116 in which Sir Anthony Clarke MR upheld the High Court's rejection of the banks' claim that their penalty charges are exempt from the test for unfairness under regulation 6(2). It examines the purposive interpretation of the Unfair Terms in Consumer Contracts Regulations 1999 as law of EC origin. It argues that while ensuring transparency is insufficient consumer protection under the Regulations, Sir Anthony Clarke goes too far in effectively requiring terms to be negotiated. The focus of regulation 6(2) is a difficult-to-stabilise something in between; namely, only the exemption of terms which are sufficiently important from the consumer's perspective that they can be said to be meaningfully consented to by consumers.
The doctrine of consideration has come under increasing attack. In Gay Choon Ing v. Loh Sze Ti Terence Peter, Andrew Phang Boon Leong J.A. of the Singapore Court of Appeal raises the spectre of its replacement with the doctrines of economic duress, undue influence, unconscionability and promissory estoppel. In response to the reasoning of Phang J.A. and others, I argue that: (i) consideration is not a meaningless doctrine; in particular, the adequacy of consideration is relevant to the enforceability of an agreement and ?practical benefit? can be made a meaningful concept; (ii) contract law does not, and should not, enforce all seriously intended undertakings; and (iii) the vitiating factors do not simply interrogate the presence of contractual intention and cannot replace the functions performed by consideration.
C Costello, 'Metock: Free Movement and “Normal Family Life\\\\\\\" in the Union ' (2009) Common Market Law Review 587
P P Craig, 'Delegation of Legislative Power' (2009) 49 Common Market Law Review 1265
P P Craig, 'The Legal Effect of Directives: Policy, Rules and Exceptions' (2009) 34 European Law Review 349
A C L Davies, 'Implementation of the Agency Work Directive in the UK' (2009) Revue de Droit du Travail 743 [...]
Discussion of the government's initial proposals for the implementation of the Temporary Agency Work Directive.
A C L Davies, 'Judicial Self-Restraint in Labour Law' (2009) 38 Industrial Law Journal 278 [...]
An exploration of the concept of 'deference' in the public law literature as applied to labour law cases.
P Davies, 'Liability for Misstatements to the Market: Some Reflections' (2009) 9 Journal of Corporate Law Studies 295 [...]
This article considers some of the fundamental issues arising out of the Davies Review of Issuer Liability. That Review recommended only a limited role for private enforcement of the continuing disclosure obligations imposed upon issuers. The article considers whether such a limited role can be justified, from both a compensation and a deterrence standpoint. It concludes that it can, provided there is a sound system of public enforcement of those obligations in place. Whether the recent changes in the role of the Financial Services Authority will provide an appropriate level of public enforcement is not yet clear.
A C L Davies, 'Sensible Thinking About Sham Transactions: Protectacoat Firthglow Ltd v Szilagyi' (2009) 38 Industrial Law Journal 318 [...]
Analysis of the development of the definition of 'sham' in the Protectacoat case, comparing it to the lease/licence case-law.
P S Davies, 'The illegality defence ? two steps forward, one step back?'  Conv 182
The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.
This article examines the rationale of the Justinianic division of wrongs into delicts and “quasi-delicts”. Taking as its starting point the assumption that the distinction corresponded to that between fault (culpa)-based and situational liability, it hypothesizes that the quasi-delictal appendix arose after the time of Gaius’ Institutes from a contraction of the Roman concept of a civil wrong (delictum): its scope would have narrowed from an unlawful liability-creating act to a blameworthy such act, thereby rejecting outside of the delictal class proper instances of liability regardless of fault.
J Dill, 'The Definition of a legitimate target of attack: Not more than a moral plea?' (2009) 103 Proceedings of Annual Meeting (American Society of International Law)
G Dinwoodie and R. Dreyfuss, 'Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO and Beyond' (2009) 46 Houston Law Review 1187 [...]
In recent years, it has become clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. In theory, the problems facing WTO members could be resolved through new lawmaking within that institution. For a variety of reasons, however, this has not materialized. The WTO’s adjudicatory system has compensated somewhat for the lack of activity in the Ministerial Conference and the General Council. But for a number of reasons, it is not a substitute for a well-functioning “legislative body.” Indeed, some of the activity in this field has shifted back from the WTO to the World Intellectual Property Organisation (WIPO). Although this regulatory competition might currently be leading to a suboptimal global regime, the move to WIPO is intriguing. It suggests an institutional design that could make the international intellectual property system more responsive to changing needs. Indeed, the TRIPS Agreement contemplates a formal tie between the WTO and WIPO. Unfortunately, however, the nature of the lawmaking relationship between these two organizations has yet to be fully elucidated. TRIPS incorporates provisions of two WIPO instruments (the Paris and Berne Conventions), and references others. Still, it is not evident whether (or how) the WTO should be taking account of WIPO’s view of these commitments. Nor is it clear how (or when) new developments within these conventions should affect WTO obligations. This essay takes up the institutional design question of how to create an intellectual property system responsive to changing circumstances by examining how the WTO can best make use of WIPO’s experience and expertise in intellectual property matters. After considering the intellectual property cases decided to date by the WTO dispute settlement body and determining the ways in which they have relied on the text and negotiating histories of, and other materials relevant to, WIPO conventions to elucidate TRIPS obligations, we suggest some revisions to interpretive approaches pursued thus far by dispute settlement panels. We point out methodologies that would leaven and cabin the trade perspective, and thus allow the WTO to capitalize on WIPO’s experience and on WIPO developments that cope with the dynamic nature of intellectual property and the changing landscape of knowledge production. Our analysis is also meant for broader application, for developing a design that permits productive input from all the international institutions that have interests touching on intellectual property norm development.
G Dinwoodie, 'Developing a Private International Intellectual Property Law: The Demise of Territoriality? ' (2009) 51 Wiiliam & Mary Law Review 711 [...]
Although intellectual property law is a relatively recent legal innovation, it has from an early stage in its development possessed an international dimension. As far back as the late nineteenth century, this resulted in the adoption of a group of multinational treaties that remain the foundation of what can be called the public international law of intellectual property. Efforts to develop a private international law of intellectual property are much more recent, and are ongoing in a number of different institutional settings. Yet, the need for attention to this field remains acute. This Article explores the content of a private international law of intellectual property. It does not seek to articulate a comprehensive scheme. Rather, this exploration is intended to facilitate consideration of the core principle of territoriality that informs so much of the existing regime. The Article sketches the basic principles of private international law that apply in transborder intellectual property disputes, examining treaty provisions and developments at the national and regional level. Some of the leading questions are highlighted by discussion of six recent transborder intellectual property disputes. These disputes help to illustrate aspects of cross-border exploitation of intellectual property that need to be taken into account both in critiquing current approaches and in formulating alternatives. The Article then turns to focus on the concept of territoriality. Territoriality is a principle that has always received excessive doctrinal purchase in intellectual property law. Moreover, the normative force of the principle has declined as units of social and commercial organization have come to correspond less neatly with national borders, and as private ordering has weakened the capacity (and perhaps the claim) of the nation-state exclusively to determine the behavior of its citizenry. Finally, many of the same values (for example, diversity of legal regimes, tailoring of intellectual property to local needs, and protecting rights on an international basis) that the public international intellectual property system sought to further through its promulgation of the principle of territoriality can now best (and perhaps only) be achieved by reconfiguring the principle. This Article approaches the task of reconfiguration in two ways. First, it explores some of the different ways in which the principle of territoriality might conceptually inform a private international law of intellectual property. Contemporary multi-territorial intellectual property disputes are characterized by an excess of shared but weaker prescriptive and adjudicatory authority. The Article suggests a restrained concept of territoriality that reflects that reality, drawing in particular from the treatment of extra-territoriality in trademark law. The Article also approaches the question less conceptually and proposes liberalization of a specific principle of private international intellectual property law: limits on consolidated adjudication of infringement claims under domestic and foreign intellectual property laws.
G Dinwoodie, 'Lewis & Clark College of Law Ninth Distinguished IP Lecture: Developing Defenses in Trademark Law' (2009) 13 Lewis & Clark Law Review 99 [...]
Trademark law contains important limits that place a range of third party conduct beyond the control of the trademark owner. However, I suggest that trademark law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of trademark law and thus support a prima facie cause of action by the trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and trademark law. And I draw lessons both from case law deriving limits from interpretation of the proscription of trademark law as well as from the development of statutory defenses to dilution. Conceiving of limits as defenses would help ensure that the (often unstated) values underlying socially desirable third party uses are not too readily disregarded if they happen to conflict with confusion-avoidance concerns that are historically powerful drivers of trademark protection. Such an approach would also ameliorate the uncertainties caused by the acceptance of extended (and increasingly amorphous) notions of actionable harm in trademark law. And it would facilitate a more transparent debate about the different forms that limits on trademark rights might take. Some defenses will operate as mechanisms by which to balance competing policy concerns on a case-by-case basis, while others (reflecting more fundamental normative commitments, or driven by more proceduralist concerns) might allow certain values categorically to trump the basic policy concerns supporting liability for trademark infringement. Full development of these defenses will involve courts adopting a conscious understanding of the different jurisprudential nature of defenses and will be made easier by acceptance of the Lanham Act as a delegating statute.
J Donoghue, 'The Sociology of law: A rejection of law as socially marginal' (2009) 37 International Journal of Law, Crime and Justice 51 [...]
Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locatc law as a critical matter of social structure - and power - which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the ernpifical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, 'the social', and the operation of law. It concludes that law is not 'socially marginal' but socially, totally central.
S J Douglas, 'The Nature of Conversion' (2009)  CLJ 198
S Douglas-Scott, 'The EU’s Area of Freedom, Security and Justice: a lack of fundamental rights, mutual trust and democracy?' (2009) 11, 2008-2009 Cambridge Yearbook of European Law studies
R Ekins, ''Light Smacking' and Discretion' (2009) New Zealand Law Journal 427
P Eleftheriadis, 'Parliamentary Sovereignty and the Constitution' (2009) Canadian Journal of Law and Jurisprudence
P Eleftheriadis, 'Tender Moments' (2009) 153 Solicitors Journal 12
This essay argues that the universality claim is a claim concerning two different domains: first, the domain of the political and, second, the domain of foreign policy. The domain of the political gives us a theory of political rights as we find them in Rawls' Political Liberalism. The domain of foreign policy gives us a theory of human rights as we find them in Rawls' Law of Peoples. Both are distinct from a third domain, that of the moral relations of persons, where rights also are seen to have a bearing. We have therefore political rights, human rights, and moral rights. Only the first two enjoy universality. The distinction between the moral, the political and the international domains is crucial to the success of the claim to universality.
D Erdos, 'Charter 88 and the Constitutional Reform Movement: A Retrospective' (2009) 64 Parliamentary Affairs 537
D Erdos, 'Charter 88, democratic constitutionalim and Europeanization - ambiguous relationships?' (2009) 64 Parliamentary Affairs 580
D Erdos, 'Ideology, power orientation and policy drag: explaining the elite politics of Britain?s Bill of Rights debate' (2009) 44 Government and Opposition 20
D Erdos, 'Judicial culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand' (2009) 34 Law and Social Inquiry 95
D Erdos, 'Postmaterialist social constituencies and political triggers: explaining the origins of bills of rights in internally stable, advanced democracies' (2009) 64 Political Research Quarterly 798
A Ezrachi and David Gilo, 'Are Excessive Prices Really Self-Correcting?' (2009) Journal of Competition Law & Economics
J M Finnis, 'Does Free Exercise of Religion Deserve Constitutional Mention?' (2009) 54 American Journal of Jurisprudence 41 [...]
Surveys a number of influential constitutional provisions about freedom of religion, and argues that the recent literature (Dworkin; Eisgruber and Sager) contending that there is intrinsically nothing relevantly special about religion is mistaken.
J M Finnis, 'HLA Hart: A Twentieth Century Oxford Political Philosopher' (2009) 54 American Journal of Jurisprudence 161 [...]
Discusses Hart's Life, his contribution to the philosophy of law and social science and descriptive/explanatory political theory, and argues that his theory of the proper functions of law, in Law, Liberty and Morality, is misconceived (like Devlin's) because attending only to positive morality, which is substantially irrelevant to the issue.
E Fisher, Bettina Lange, Eloise Scotford and Cinnamon Carlarne, 'Maturity and Methodology: Starting a Debate about Environmental Law Scholarship' (2009) 21 Journal of Environmental Law 213 [...]
Many environmental law scholars perceive environmental law scholarship as immature. We discuss why this self-perception has arisen and argue that a common theme is methodology. We argue that the subject can only mature when we face its methodological challenges head on, and we identify four particular issues that have given rise to these challenges: the speed and scale of legal/regulatory change, the interdisciplinary nature of the subject, the heavy reliance in environmental law on a diverse range of governance arrangements and the multi-jurisdictional nature of the subject. We argue that there is a need for debate in the face of these challenges and identify some starting points for that debate.
S Fredman, 'Engendering Socio-economic rights ' (2009) 25 South African Journal of Human Rights 410
J Freedman, 'A GANTIP. Was it really such a bad idea?' (2009) The Tax Journal
J Freedman, G Loomer and J Vella, 'Corporate Tax Risk and Tax Avoidance: New Approaches'  British Tax Review 74 [...]
The relationship between tax authorities and large corporate taxpayers is a concern world-wide as can be seen from the 2008 OECD Study into the Role of Tax Intermediaries. In the United Kingdom, HMRC have been developing a risk rating approach to tax risk management as part of their Review of Links with Large Business. The approach is designed to promote an enhanced relationship between HMRC and the taxpayer, based on trust and transparency. The objectives include the improvement of resource allocation and the encouragement of companies to consider their position so as to achieve the benefits of low risk rating, which may involve altering their tax planning strategy. In addition, new approaches to tax avoidance legislation such as targeted anti-avoidance rules and principles-based legislation are being introduced or considered. This article discusses a survey of tax directors in which the authors used detailed tax planning scenarios to investigate the views of tax directors on the impact and success or otherwise of these new approaches. The views of tax directors are only one factor in judging the success of these developments, but given that one aim of current tax policy is an enhanced relationship with corporate taxpayers, directors’ views are significant in assessing the progress being made.
J Freedman, 'Section 93 and Schedule 46 - duties of senior accounting officers of large companies'  British Tax Review 620
Gagliardone, 'The socialization of ICTs in Ethiopia: Reshaping technology for nation building' (2009) 1 Journal of Socio Technology and Knowledge Development
John Gardner, 'The Logic of Excuses and the Rationality of Emotions' (2009) 43 Journal of Value Inquiry 315
R George, P Harris and J Herring, 'Pre-Nuptial Agreements: For Better or For Worse?' (2009) Family Law 934
R George, 'The Shifting Law: Relocation Disputes in New Zealand and England' (2009) 12 The Otago Law Review 107
J S Getzler, 'Fiduciary investment in the shadow of financial crisis: Was Lord Eldon right?' (2009) 3 Journal of Equity 219 [...]
The structure of trust duties yielding a duty to invest with due care derives from the interaction of the power to manage trust assets as a fiduciary owner with a duty to do so with prudence and diligence. In earlier equity mediocre or failed investments were chargeable to trustees only where shown to involve wilful default, which meant choice of investments outside the range or risk profile of those approved by the law or expressly licensed by the settlor or beneficiary. Lord Eldon in the early nineteenth century entrenched the view that only assets with indestructible capital -- for trust funds, gilts and mortgages on a wide safety margin, and in the case of trusts of realty, further land purchase -- were fit targets for trust investment without special authorisation. With more sophisticated capital markets developing in the nineteenth century, parties regularly set up far wider trust powers of investment, and the legal standard shifted towards enforcing prudent investment processes rather than safe results, using a benchmark of common practice to fix the requisite standard of care. American law from the late 1970s shifted to a new default position mandating portfolio investment, once it had become clear that the great majority of professionally managed trusts typically authorised entry into the profitable if volatile stock market; Australian and English law and practice eventually followed. Meanwhile, government policy favouring funded welfare, as opposed to the pre- and post-war fiscal transfer and national insurance systems, led to massive growth of pension capital under trust management. Statutory and curial reforms allowed pension trustees, and then all trustees, to invest unrestrictedly in all asset classes as plenary owners including portfolio stock investment, provided that certain undemanding standards of care and propriety were met. Portfolio investment by trustees was designed to win the 'equity risk premium' for beneficiaries while avoiding the volatility of the capital markets, through bundling into mutual funds permitting index sampling of wide markets and hedging and risk-correlation of equities and bonds. The recent sharp fall in share values allied to the credit crunch and financial banking crisis starting in late 2007 have tested the portfolio theory to destruction. Whether the macroeconomic benefits of market allocation of pension trust capital through unrestricted private choice has delivered sufficient stable welfare to enough individuals is a question the law may be ill equipped to answer. But trust law does have resources to detect individual and collective pathologies in investment conduct and set standards that can direct parties into less destructive paths.
J S Getzler, 'Plural Ownership, Funds, and the Aggregation of Wills' (2009) 10 Theoretical Inquiries in Law 241 [...]
This Article suggests that common ownership, better described as, plural ownership to distinguish the phenomenon from semicommons, may usefully be analysed from a dual perspective. Plural ownership may simultaneously be seen as an aggregation of individualised rights, duties and intentions, and as giving rise to a real entity with a group mind and corporate rights and duties distinct from those of the individual owners. For the purposes of understanding this dualism, the most developed and interesting form of plural ownership is the trust fund with multiple controllers and beneficiaries, an ancient device that now serves as the bedrock of modern capitalism. The fund is here subjected to legal, historical and philosophical scrutiny to uncover how group personality is generated by plural ownership in the absence of formal legal incorporation.
J S Getzler, 'Transplantation and Mutation in Anglo-American Trust Law' (2009) 10 Theoretical Inquiries in Law 355 [...]
In the early nineteenth century, authoritative treatise writers such as Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trusts law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental doctrines of English trusts law, and by such genetic engineering mutated this body of law into a new breed. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trusts law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations flowing from these basic doctrinal choices. The changes made to American trust doctrine leads to a paradox for the legal, social and economic historian, namely that republican America ended up with more a dynastic property law, more wedded to the dead hand and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. This paper explains how the English slowly came to commit to relatively free alienability of beneficial interests and the enhancement of beneficiary's powers over trust assets, and then charts how Americans abandoned these commitments. Some fresh interpretations are offered as to why these divergences occurred, rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market.
N Ghanea, 'Phantom Minorities and Religions Denied: Muslims, Bahá’ís and International Human Rights' (2009) Shia Affairs Journal [...]
The protection of the human rights of all without discrimination on the basis inter alia of religion or belief, the protection of religious minorities, and manifestation of religion or belief in association with others - these are all well-established norms of international human rights law. Yet violations continue world-wide, and new manifestations of these age-old problems continue to multiply. All Muslim states have ratified, and therefore voluntary adopted, legal commitments with regards to these obligations. Nevertheless, these protections remain very much wanting in many instances with respect to both Muslim and non-Muslim minorities in Muslim states. In fact, freedom of religion or belief and religious minority rights have long been recognised as being amongst the most pressing of human rights concerns in these states. Whilst the need to enhance the protection of freedom of religion or belief and religious minority rights (ForbRM rights) within Muslim states has been much written about, few publications have extended their focus to Muslim minorities in Muslim states. This article seeks to establish that enhanced respect for the legal rights of non-Muslim minorities would, by default, also benefit ‘Muslim minorities’ within Muslim states. The contention of this article is that if sufficient progress were made regarding the respect of ForbRM rights for non-Muslims, Muslim religious minorities would see their own situations improved and claims addressed. The article will take one of the most entrenched of such cases – snapshots of the case of the Bahá’ís of Iran over the past 30 years – as its main illustration of this point.
I Goold and Julian Savulescu, 'In Favour of Freezing Eggs for Non-Medical Reasons' (2009) 23 Bioethics 47 [...]
This article explores the social benefits and moral arguments in favour of women and couples freezing eggs and embryos for social reasons. Social IVF promotes equal participation by women in employment; it offers women more time to choose a partner; it provides better opportunities for the child as it allows couples more time to become financially stable; it may reduce the risk of genetic and chromosomal abnormality; it allows women and couples to have another child if circumstances change; it offers an option to women and children at risk of ovarian failure; it may increase the egg and embryo pool. There are strong arguments based on equal concern and respect for women which require that women have access to this new technology. Freezing eggs also avoids some of the moral objections associated with freezing embryos.
L Green, 'Filosofia del derecho general' (2009) 3 Problema: anuario de filosofia y teoria del derecho 289 [...]
Spanish translation of 'General Jurisprudence: a 25th Anniversary Essay'. Translated by Enrique Rodriguez Trujano & Pedro A. Villarreal Lizarraga.
C Harvey and B Kasolowsky, 'Amici Curiae in Investment Treaty Arbitrations: Authority and Procedural Fairness' (2009) (2) Stockholm International Arbitration Review
B Havelkova, 'Competences of the Union and Sex Equality: A Comparative Look at the EU and the US' (2009) 207 Mich. L. Rev. First Impressions 139 [...]
The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers (“competences” in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.
J J W Herring, 'An Age-Old Problem' (2009) New Law Journal 770 [...]
Article on law and older people
J J W Herring and Charles Foster, 'Blaming the patient: contributory negligence in medical malpractice litigation' (2009) 25 Journal of Professional Negligence 76 [...]
A discussion of the role of contributory neglignece in clinical negligence.
J J W Herring, 'Heaven Sent' (2009) New Law Journal 1607 [...]
A discussion of the Law Commission's proposals on intestacy
J J W Herring, 'Losing it ? Losing what? The law and dementia' (2009) Child and Family Law Quarterly 3 [...]
An analysis of the law and dementia
J J W Herring, 'Protecting Vulnerable Adults' (2009) Child and Family Quarterly 498 [...]
This article considers developments in the law protecting vulernable adults.
J J W Herring, 'Revoking adoptions' (2009) New Law Journal 377 [...]
A discussion of when the law allows and should allow the revocation of an adoption.
C Hodges, 'From Class Actions to Collective Redress ' (2009) 28 Civil Justice Quarterly 41
R G Hood, 'Abolition of the Death Penalty: China in World Perspective' (2009) 1 (1) City University of Hong Kong Law Review 1
R Hood and C Hoyle, 'Abolishing the Death Penalty Worldwide: The Impact of a New Dynamic?' (2009) 38 Crime and Justice: A Review of Research 1
C Hoyle, 'Restorative Justice Policing in Thames Valley' (2009) Journal of Police Studies vol 2009-2(11) Special Issue on Restorative Policing by L. G. Moor, T. Peters, P. Ponsaers and J. Shapland (eds) 189
A Johnston and K. Talus, 'Comment on Pielow, Brunekreeft & Ehlers on Ownership Unbundling' (2009) 2 Journal of World Energy Law and Business 149
A Kavanagh, 'Constitutional Review, the Courts and Democratic Scepticism' (2009) 62 Current Legal Problems 102
A Kavanagh, 'Judging the Judges under the Human Rights Act 1998: Deference, Disillusionment and the ?War on Terror?'  Public Law 287
A Kavanagh, 'Strasbourg, the House of Lords or Elected Politicians: Who decides about rights after Re P?' (2009) 72 Modern Law Review 828
B Kellezi, D Reicher and C Cassidy, 'Appraisal, social identity and trauma. The case of Kosovo Albanians' (2009) 58 Applied Psychology; An international Review. Special issue: Social Identity, Health and Well-being 59
T Khaitan, 'Reading Swaraj into Article 15: A New Deal for all Minorities' (2009) 2 NUJS Law Review 419
T Krebs, 'Harmonisation and how not to do it: agency in the UNIDROIT Principles of International Commercial Contracts 2004' (2009) Lloyds Maritime and Commercial Law Quarterly 57
M Kurkchiyan, 'Russian Legal Culture: An Analysis of Adaptive Response to an Institutional Transplant ' (2009) Vol.34 Law and Social Inquiry.
N Lacey, 'Historicising Criminalisation: Conceptual and Empirical Issues' (2009) 72 Modern Law Review 936
Liz Fisher, B Lange and Eloise Scotford, 'Maturity and Methodology: Reflecting on How do Do Environmental Law Scholarship' (2009) Journal of Environmental Law 1
B Lauriat, 'Charles Reade's Roles in the Drama of Victorian Dramatic Copyright ' (2009) 33 Columbia Journal of Law & the Arts 1 [...]
The following article describes the eccentric dramatist, novelist, journalist, and barrister Charles Reade’s direct involvement in shaping the UK law of copyright - particularly copyright in dramatic works. In addition to publishing his writings on the subject, he was active in bringing and supporting suits that led directly to changes in the law protecting dramatic works, as well as the formation of the Royal Commission on Copyright in 1875. His own questionable dealings with the works of others, however, provide a counterpoint to his zealous arguments in favor of protection, as exemplified by the story of his dramatization of Ralph the Heir, a novel written by Royal Commission member Anthony Trollope.
D Leczykiewicz, 'Private Party Liability in EU Law: In Search of the General Regime' (2009) 12 Cambridge Yearbook of European Legal Studies 257
I Loader, 'Ice Cream and Incarceration: On Appetites for Security and Punishment' (2009) 11 Punishment and Society 241
This article offers a schematic outline hypothesis of a Marxist approach to freedom of communication. It argues for an approach in terms of freedom of communication, not freedom of speech, of the press, or of expression. The analysis of the political economy of communication under capitalism has to be placed within the frame of historical materialism, therefore beginning with communicative behaviour as an aspect of the human ‘species-being’. The contradictions of class societies in general generate contradictory relations to control of communication, and the rise and fall of particular class societies (and conversely the fall and rise of state forms) produces temporal variability in state communication controls. Within this general frame what is specific to capitalist society is the operation of processes of concentration of capital on the means and nodes of communication, producing monopolistic ‘market’ control. The problems this regime creates for the proletariat as a class pose the problem of freedom of communication in abstraction from class ordering as an immediate, practical present problem for working class organisation.
V Mayer-Schönberger, 'Virtual Heisenberg - The Limits of Virtual World Regulability' (2009) 66 Washington and Lee Law Review 1245
A Pearson and others, 'Primary Care Contact Prior to Suicide in Individuals with Mental Illness' (2009) 59 British Journal of General Practice 825
J Morgan, 'Policy reasoning in tort law: The courts, the Law Commission and the critics' (2009) 125 LQR 215
M Paparinskis, 'Investment Protection Law and Sources of Law: A Critical Look' (2009) 103 ASIL Proceedings 76
C E Parau, 'Impaling Dracula: How EU Accession Empowered Civil Society in Romania' (2009) 32 West European Politics 119
J Pila, 'Article 53(b) EPC: A Challenge to the Novartis Theory of European Patent History' (2009) 72 Modern Law Review 436-462 [...]
A preprint of this article is available at http://ssrn.com/abstract=1160191
J Pila, 'Authorship and e-Science: Balancing Epistemological Trust and Skepticism in the Digital Environment' (2009) 23 Social Epistemology 1-24 [...]
A preprint of this article is available at http://ssrn.com/abstract=1012914
J Pila, 'Chemical Products and Proportionate Patents Before and After Generics v Lundbeck' (2009) 20 King's Law Journal 489-526 [...]
A preprint of this article is available at http://ssrn.com/abstract=1355524
J Pila, 'Works of Artistic Craftsmanship in the High Court of Australia: The Exception as Paradigm Copyright Work' (2009) 36 Federal Law Review 365-381
F Pirie, 'The horse with two saddles: tamxhwe in modern Golok' (2009) Asian Highland Perspectives 16486
O Radley-Gardner, 'Civilised Squatting' (2009) Oxford Journal of Legal Studies [...]
Historical - comparative examination of the doctrine of adverse possession
WG Ringe and A Hellgardt, 'Internationale Kapitalmarkthaftung als Corporate Governance' (2009) 173 ZHR 802 [...]
Die weltweite Integration der Kapitalmärkte hat dazu geführt, dass sowohl deutsche Unternehmen als auch Anleger heutzutage auf vielen Märkten dies- und jenseits des Atlantiks aktiv sind. Gerade in Zeiten der Finanzmarktkrise stellt sich oftmals die Frage, nach welchem Haftungs-recht sich die Schadensersatzansprüche etwaig geschädigter Anleger richten. Die Vereinheitlichung des internationalen Privatrechts in Europa bietet Anlass, die Frage nach dem internationalen Kapitalmarkthaftungsrecht neu und umfassend zu behandeln. Der vorliegende Beitrag begreift die Kapitalmarkthaftung im größeren Kontext der Unternehmenssteuerung („Corporate Governance“) und entwickelt daraus einen eigenen Ansatz zur Anknüpfung der Haftungsansprüche. Auf dieser Grundlage ist eine Anknüpfung der kapitalmarkthaftungsrechtlichen Vorschriften an die Rechtsordnung des Gesellschaftsstatuts eine rechtsdogmatisch und -politisch vorzugswürdige Einordnung.
J Roberts, '"Faint Hope" in the Firing Line: Repeal of S. 745.6?' (2009) Canadian Journal of Criminology and Criminal Justice 537
J Roberts, M Hough, J Jacobson and N Moon, 'Public Attitudes to Sentencing Purposes and Sentencing Factors: An Empirical Analysis'  Criminal Law Review 771
N. Bala, P. Carrington and J Roberts, 'The Youth Criminal Justice Act: A Qualified Success' (2009) Canadian Journal of Criminology and Criminal Justice
E Scotford, E Fisher, B Lange and C Carlarne, 'Maturity and Methodology: Starting a Debate about Environmental Law Scholarship' (2009) 21 Journal of Environmental Law 213 [...]
Many environmental law scholars perceive environmental law scholarship as immature. We discuss why this self-perception has arisen and argue that a common theme is methodology. We argue that the subject can only mature when we face its methodological challenges head on, and we identify four particular issues that have given rise to these challenges: the speed and scale of legal/regulatory change, the interdisciplinary nature of the subject, the heavy reliance in environmental law on a diverse range of governance arrangements and the multi-jurisdictional nature of the subject. We argue that there is a need for debate in the face of these challenges and identify some starting points for that debate.
E Scotford, 'The New Waste Directive: Trying to Do it All...' (2009) 11 Environmental Law Review 75
A J B Sirks, 'The delictual origin, penal nature and reipersecutory object of the actio damni iniuriae legis Aquiliae' (2009) 77 Tijdschrift voor Rechtsgeschiedenis 303 [...]
It is commonly assumed that the litis aestimatio of the actio legis Aquiliae was a penalty which, in practice, was set at the loss suffered by the victim of the wrong and therefore functioned as compensation. This assumption is based on the nature of the action as founding in a delict and characterised by the Romans as a penal action. It also shares the elements of penal actions. But this is at odds with other texts which treat the action as directed purely at compensation. It is suggested that in order to understand this we have to distinguish between the origin of the penal actions, which is penal and which carries certain common features such as the fundamental impossibility to sue heirs or descendants of the wrongdoer, and their purpose or object. It is possible to distinguish two groups, one aiming at a penalty, the other aiming at compensation. Only in the latter group the action can be exercised against the heir of the wrongdoer and only restrictedly: it is the compensatory aim which allows for this. Further, the lex Aquilia and its chapters are examined whether a compensatory purpose is distinguishable here as well.
ISBN: ISSN 0040-7585
Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.
S Talmon, 'Recognition of States and Governments in International Law' (2009) 1/19 Azerbaijan in the World. ADA Biweekly Newsletter 7
S Talmon, 'Security Council Treaty Action' (2009) 62 Revue Hellénique de Droit International 65 [...]
It is well established that the United Nations can conclude treaties and that the Security Council can instruct the Secretary-General to conclude treaties on the UN’s behalf with States and other international organizations. It is less clear whether and to what extent the Security Council has the power to take other treaty action, i.e. whether it may amend, alter, modify, rewrite or interpret existing treaties, or interfere in any other way in the ordinary treaty-making and treaty-reviewing processes. In recent years, several member States have expressed concern at the Council’s increasing tendency to take treaty action on behalf of the international community. This paper examines the way in which the Security Council has used its powers under the UN Charter to take certain treaty actions. In particular, it asks whether there are any legal limits to the Security Council adapting existing treaties to a particular situation, and whether it can prescribe pre-existing treaty provisions to non-State parties. It also examines the consequences if the Security Council formally endorses a certain treaty, and the role it plays in the enforcement and interpretation of treaties.
S Talmon, 'The Recognition of the Chinese Government and the Convention on International Civil Aviation' (2009) 8 Chinese Journal of International Law 135 [...]
This article traces the membership and representation of China in the International Civil Aviation Organization (ICAO). It examines which Government, the Government of the Republic of China (ROC) or the Government of the People’s Republic of China (PRC), has, at any one time, be regarded as competent to exercise China’s membership rights under the Convention on International Civil Aviation (Chicago Convention). In particular, the article asks which government can today validly designate ‘customs airports’ in China, including Taiwan, and exercise the various other rights in respect of non-scheduled and scheduled flights referred to Articles 5 and 6 of the Chicago Convention. It explains why airlines can operate direct international air services to non-designated airports in Taiwan without the special permission or other authorization of the Government of the PRC, despite the latter being regarded as having complete and exclusive sovereignty over the airspace above Taiwan.
S Talmon, 'The Responsibility of Outside Powers for Acts of Secessionist Entities' (2009) 58 International and Comparative Law Quarterly 493 [...]
In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities […] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.
F Varese, 'The Camorra Closely Observed' (2009) 10 Global Crime 262
J Vella, J Freedman and G Loomer, 'Corporate Tax Risk and Tax Avoidance: New Approaches '  British Tax Review 74
J Vidmar, 'International Legal Responses to Kosovo's Declaration of Independence' (2009) Vanderbilt Journal of Transnational Law 779
S Wallerstein, '\\\\\\\'A drunken consent is still consent\\\\\\\'--Or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree ' (2009) 73 Journal of Criminal Law 582 [...]
Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios allows—and even requires—a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.
Simon Whittaker, 'A Framework of Principle for European Contract Law?' (2009) 125 Law Quarterly Review 616 [...]
This article considers the scope, purposes and use of 'principle' by the contract law provisions of the Draft Common Frame of Reference
ISBN: ISSN 0023-933X
Simon Whittaker, 'Clauses abusives et garanties des consommateurs: la proposition de directive relative aux droit du consommateur et la portée du 'harmonisation complète'' (2009) Recueil Dalloz 1 [...]
Abstract: In October 2008 the EC Commission published a Proposal for a Directive on Consumer Rights. This proposal seeks to put together provisions from four existing directives of the consumer acquis, replacing the traditional ‘minimum’ nature of their protection with ‘complete harmonisation’. This article explains the substantive changes proposed for two of these directives (unfair contract terms and consumer sales) and it identifies a fundamental ambiguity in what is meant by full harmonisation for this purpose. For ‘complete harmonisation’ would either require Member States to disapply all other national legal rules which could overlap with the impact of these two sets of harmonised rules in their respective contexts (all rules affecting the validity of terms in consumer contracts, all remedies in respect of failures in quality, fitness for purpose or contractual conformity of goods in consumer contracts of sale of goods), with costs in terms of national coherence and the development of perverse incentives as well as in terms of the weakening of the substantive legal policies pursued by those rules. Or an attempt would have to be made to restrict the impact of ‘full harmonisation’ to the conceptual schemes actually set out by the Proposal, leaving untouched ‘other grounds’ of control of contract terms or buyer’s rights (as the case may be). This second approach would enable the undesirable effects of the first choice to be avoided, but it would fundamentally undermine the economic purpose of introducing full harmonisation.
La proposition de directive relative aux droits des consommateurs(octobre 2008) rassemble dans un seul texte les quatre directives sur l'acquis communautaire en vue de l'« harmonisation totale » de la protection des consommateurs. Cet article éclaire les changements substantiels par rapport à deux de ces directives (clauses contractuelles abusives et ventes au consommateur), et l'ambiguïté du concept d'« harmonisation totale ». Soit celle-ci écartera l'application des dispositions nationales pouvant empiéter sur le domaine des règles harmonisées, conformément à l'inspiration économique de la Proposition, soit elle n'affectera que les lois nationales de transposition de la Proposition, sans préjudice du contrôle des clauses abusives ou des droits.
Simon Whittaker, 'Unfair Terms and Consumer Guarantees: the Proposal for a Directive on Consumer Rights and the Significance of “Full Harmonisation' (2009) European Review of Contract Law 2
A L Young, 'Human Rights, Horizontality and the Public/Private Divide: Towards a Holistic Approach' (2009) 2 UCL Human Rights Law Review 159
A L Young, 'In Defence of Due Deference' (2009) 72 Modern Law Review 554 [...]
The doctrine of deference permeates human rights review. It plays a role in de¢ning Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justi¢ed for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and ismodest enough to play a role in a range of di¡erent justi¢cations and understandings of judicial review under theHuman Rights Act.The article then provides amore detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to performits constitutional function of protecting individual rights.
K S Ziegler, 'Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights' (2009) 9 Human Rights Law Journal 288
Recent initiatives in a number of countries have sought to promote entrepreneurship through relaxing the legal consequences of personal bankruptcy. Whilst there is an intuitive link, relatively little attention has been paid to the question empirically, particularly in the international context. We investigate the relationship between bankruptcy laws and entrepreneurship using data on self-employment over 16 years (1990–2005) and fifteen countries in Europe and North America. We compile new indices reflecting how "forgiving" personal bankruptcy laws are. These measures vary over time and across the countries studied. We show that bankruptcy law has a statistically and economically significant effect on self-employment rates when controlling for GDP growth, MSCI stock returns, and a variety of other legal and economic factors.
J Armour, A. Hsu and A.J. Walters, 'Corporate Insolvency in the United Kingdom: the Impact of the Enterprise Act 2002' (2008) 5 European Company and Financial Law Review 135 [...]
With effect from September 15, 2003, the Enterprise Act made significant changes to the governance of corporate rescue procedures in the United Kingdom which involved a shift away from a "concentrated creditor" model of governance towards a "dispersed creditor" model of governance which vests greater control rights in unsecured creditors collectively. These changes were motivated by fairness and efficiency concerns, notably the concern that the UK's administrative receivership procedure was not conducive to rescue outcomes and operated to the detriment of unsecured creditors. This article discusses the Enterprise Act reforms in the context of wider theoretical debates about the desirability (or otherwise) of secured creditor control of corporate rescue procedures. It then presents in summary form the findings of an empirical study carried out by the authors that sought to evaluate the impact of the Act by comparing the gross realizations, costs and net returns to creditors in a sample of 284 corporate insolvencies commenced before and after the law changed. Whilst we find that gross realizations have increased under the streamlined administration procedure, we also find that costs have increased. These findings imply that secured creditor control of the insolvency procedure (as in receivership) may be no worse for unsecured creditors than control by dispersed unsecured creditors (as in administrations) at least as regards returns.
Private equity, characterized by firms operating as privately held partnerships organizing the acquisition and "taking private" of public companies, has recently dominated the business news due to deals unprecedented in number and size. If this buyout boom continues unabated, the 1989 prediction by economist Michael Jensen of The Eclipse of the Public Corporation could be proved accurate. This article argues matters will work out much differently, with the current version of private equity being eclipsed. One possibility is that a set of market and legal conditions highly congenial to "public-to-private" transactions could be disrupted. A "credit crunch" commencing in the summer of 2007 stands out as the most immediate threat. The article draws on history to put matters into context, discussing how the spectacular rise of conglomerates in the 1960s was reversed in subsequent decades and how the 1980s buyout boom led by leveraged buyout associations - the private equity firms of the day - collapsed. If legal and market conditions remain favorable for private equity, its eclipse is likely to occur in a different way. Privacy has been a hallmark of private equity, with industry leaders operating as secretive partnerships that negotiate buyouts behind closed doors and restructure portfolio companies outside the public gaze. However, the private equity boom created momentum among market leaders to carry out public offerings and diversify their operations. If this trend proves sustainable, then even if the taking private of publicly quoted companies remains a mainstream pursuit, the exercise will be carried out in the main by broadly based financial groups under the umbrella of public markets.
J Armour, 'The Law and Economics Debate About Secured Lending: Lessons for European Lawmaking?' (2008) 5 European Company and FInancial Law Review 3 [...]
This review paper is a contribution to a symposium on the 'Future of Secured Credit in Europe'. Its theme is the way in which empirical research has shed light on earlier theoretical literature. These findings tend to suggest that the legal institution of secured credit is, on the whole, socially beneficial, and that such benefits are likely to outweigh any associated social costs. Having made this general claim, the paper then turns to consider the effects of four particular dimensions across which systems of secured credit may differ, and which may therefore be of interest to European law-makers. These are: (i) the scope of permissible collateral; (ii) the efficacy of enforcement; (iii) the priority treatment of secured creditors; and (iv) the mechanisms employed to assist third parties in discovering that security has been granted. In each case, consideration is paid first to the theoretical position, and then empirical findings. It is argued that perhaps the most difficult of these issues for European law-makers concerns the appropriate design of publicity mechanisms for third parties.
K Baker, 'Risk, Uncertainty and Public Protection: Assessment of Young People Who Offend' (2008) 38 British Journal of Social Work 1463
N. W. Barber, 'Against a Written Constitution'  Public Law 11
N. W. Barber, 'Review of The Paradox of Constitutionalism ' (2008) 124 Law Quarterly Review 160
N. W. Barber, 'Review of The Sovereignty of Law' (2008) 68 Cambridge Law Journal 426
R Bird, '(Arthur C Clarke, we still need you.) Trying to predict our future at the Bodleian Law Library.' (2008) 8 Legal Information Management 91
R Bird, 'Finding foreign law collections in the UK: the 2007 FLAG update and questions it raises for future collection development policy in the UK' (2008) 8 Legal Information Management 135
M Birdling, 'Self Incrimination comes to Strasbourg' (2008) 12 International Journal of Evidence & Proof 58
M Bosworth, 'Border Control and the Limits of the Sovereign State' (2008) 17 Social and Legal Studies 199
M Bosworth, B Bowling and M Lee, 'Ethnicity, Globalization and Criminal Justice' (2008) 12 Special Issue, Theoretical Criminology
M Bosworth, B Bowling and M Lee, 'Globalisation, ethnicity and racism: An introduction' (2008) 12 Theoretical Criminology 263
M Bosworth and M Guild, 'Governing through migration control: Security and Citizenship in Britain' (2008) 48 The British Journal of Criminology 703
P A Brand, 'Sir John Davies: Law Reporter or Self Publicist' (2008) 43 Irish Jurist 1
A Briggs, 'Decisions of British Courts in 2007: Private International Law' (2008) 78 British Yearbook of International Law 588 [...]
Analysis of decsions of English courts in cases involving questions of private international law in 2007
S J Bright, 'Drafting Green Leases' (2008) 72 Conveyancer 498 [...]
This article looks at how the commercial leasehold relationship can be operated in a manner that reduces the environmental impact of building use. It looks particularly at the role of the leasehold contract and argues that all releases can be drafted and operated in an environmentally sensitive manner.
ISBN: 0010 -- 8200
S J Bright, 'Green leases' (2008) 158 New Law Journal 1135
The paper considers how policy changes may drive changes in leasing practices, in order to reduce environmental impact from the commercial building stock.
S J Bright, 'To the Rescue' (2008) ROOF 40 [...]
This looks at how the law may come to the aid of those caught out by sale and rent back scams.
T LeBel, R Burnett, S Maruna and S Bushway, 'The "chicken and egg" of subjective and social factors in desistance from crime' (2008) 5 European Journal of Criminology 131
A S Burrows, 'Uncertainty about Uncertainty: Damages for Loss of a Chance ' (2008) Journal of Personal Injury Law 31
M Chen-Wishart, 'Unfairness of Bank Charges' (2008) 124 LQR 561 [...]
This discusses the High Court decision in Office of Fair Trading v Abbey National Plc and 7 Others  EWHC 875 (Comm). First, it examines the relevant considerations in determining, and the standard required for language to be, 'plain and intelligible'. Second, it assesses Andrew Smith J's reasoning and conclusion that the relevant bank charges fall outside the exemption for so-called 'core' terms. Third, it criticisesthe banks' argument that contravention of good faith requires procedural unfairness.
P P Craig, 'The Treaty of Lisbon: Process, Architecture and Substance' (2008) 33 137
P P Craig, 'The Treaty of Lisbon: Process, Architecture and Substance' (2008) 33 European Law Review 137
A C L Davies, 'Developments in English Labour/Employment Law 2004-2007' (2008) 2 Europaische Zeitschrift fur Arbeitsrecht 267
A C L Davies, 'One step forward, two steps back? The Viking and Laval cases in the ECJ' (2008) 37 Industrial Law Journal 126
J Donoghue, 'Antisocial Behaviour Orders in Britain: Contextualizing Risk & Reflexive Modernization' (2008) 42 Sociology 337 [...]
This article proposes a (re)consideration of antisocial behaviour control informed by an analysis of the seminal work of sociologists of `reflexive modernity' (Beck, 1992, 1994; Giddens, 1990, 1991; Lash, 1994). It is hoped that the arguments advanced within this article will prompt further consideration of the following questions: What does the relative neglect of the reflexive modernity thesis tell us about the domain conjecture(s) of sociological theory on antisocial behaviour policy and the use of ASBOs? And can a focus upon reflexive modernity theory help to construct a more proportionate account of ASBOs as a form of social control? Hence, it is the purpose of this article to consider critically the implications of Beck's `risk society' to our understandings and explanations of antisocial behaviour, ASBOs and social control, by linking the late modern (re)formatting of antisocial behaviour(s) and the creation of ASBOs to the new parameters of the `risk society'.
S J Douglas, 'The Abolition of Detinue'   Conv 99
D Dwyer, 'Beyond Kelsen and Hart? MacCormick's Institutions of Law' (2008) 71 Modern Law Review 823
D Dwyer, 'Ethical Constraints on the Visualisation of Trial Evidence' (2008) 11 Legal Ethics 85
D Dwyer, 'Legal Remedies for the Negligent Expert' (2008) 12 International Journal of Evidence and Proof 93
D Dwyer, 'Some Philosophical Concerns about the Court's Competence to Assess Expert Reports' (2008) 1 Expertise en Recht 132
D Dwyer, 'Why Are Civil and Criminal Expert Evidence Different?' (2008) 43 Tulsa Law Review 381
D Erdos, 'Elite supply 'blockages' and the failure of national Bill of Rights initiatives in Australia: a comparative Westminster analysis' (2008) 46 Commonwealth & Comparative Politics 341
A Ezrachi, 'Merger Notification Thresholds – Reflections on the degree of exposure to competition law regimes world wide' (2008) 60 ICFAI Reader
A Ezrachi, 'The Interplay between the Economic Approach to Article 82 EC and Private Enforcement' (2008) (3) Global Competition Litigation Review
L Ferguson, 'Rights, Social Inequalities, and the Persuasive Force of Interpersonal Obligation' (2008) 22 International Journal of Family Law and Policy 61
J M Finnis, 'Grounds of Law and Legal Theory: A Response' (2008) 13 Legal Theory 315
J M Finnis, 'Marriage: A Basic and Exigent Good' (2008) 91 The Monist 396
E Fisher, 'The \'perfect storm\' of REACH: charting regulatory controversy in the age of information, sustainable development, and globalization' (2008) 11 Journal of Risk Research 541 [...]
The European Union's new chemicals regulation, REACH, has been one of the most controversial pieces of legislation in EU history. Indeed, the debate over REACH is akin to a 'perfect storm' in that the intense controversy over it has been caused by three regulatory aspects of the regime. First, REACH privatizes information collection, provision and assessment. Second, REACH represents a significant application of sustainable development and in so doing, redefines the conditions on which the EU chemicals market operates. Third, REACH will inevitably have inter-jurisdictional impacts for both supranational and national legal cultures including trade law implications, REACH being a template for international initiatives, it being a policy/legal irritant in other jurisdictions, and it providing information for public and private action in other jurisdictions. A charting of these different aspects of the regime not only provides a more nuanced account of REACH but also provides a clearer understanding of the challenges of regulating environmental and health risks in an era of market globalization
S Fredman, 'Reforming equal pay laws' (2008) 37 Industrial Law Journal 193 [...]
Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation, due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources, carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the serious attention so urgently needed.
J Freedman, 'Small Business Tax- Where do we go from here?' (2008) Tax Adviser
Gagliardone and Nicole Stremlau, 'Public Opinion Research in a Conflict Zone: Grassroots Diplomacy in Darfur' (2008) 2 International Journal of Communication
D J Galligan, 'Constitutional Paradox or the Potential of Constitutional Theory' (2008) 28 Oxford Journal of Legal Studies 343
S Gardner, 'Family Property Today' (2008) 124 Law Quarterly Review 422
John Gardner, 'Moore on Complicity and Causality' (2008) 156 University of Pennsylvania Law Review PENNumbra 432
S Gardner, 'Proprietary Restitution: A Coda to Chapter 8 of Birks? Unjust Enrichment' (2008) Restitution Law Review 107
John Gardner, 'Simply in Virtue of Being Human: the Whos and Whys of Human Rights' (2008) 2 Journal of Ethics and Social Philosophy 1 [...]
In this paper I raise some questions about the familiar claim, recently reiterated by James Griffin, that human rights are rights that humans have 'simply in virtue of being human'. I ask, in particular, how we are to read the words 'simply in virtue of'. Are we speaking of who has the rights (A has them if and only if he or she is human) or why they have the rights (A has them because and only because he or she is human)? Griffin brings the two readings together, as two sides of the same coin. He offers a (more or less) universalistic case for (more or less) universalistic rights. I try to show how the two readings can be driven apart, how the universality of human rights need not be undermined merely by there being no adequate universalistic case for them. On the strength of this discussion I suggest an inversion of the relationship that is often thought to hold between human rights and human dignity. In a way our rights give us our dignity, not vice versa. And in a way this helps to make the case for the universality of human rights.
R George, 'Changing Names, Changing Places: Reconsidering Section 13 of the Children Act 1989' (2008) Family Law 1121
N Ghanea, 'Religious or Minority? Examining the Realization of International Standards in Relation to Religious Minorities in the Middle East' (2008) Religion, State and Society 303 [...]
The Middle East region has had a long, and periodically impressive, record of religious diversity, yet there is much concern regarding the contemporary standing of its religious minorities. Rather than assessing the chequered historical record of religious minorities in the Middle East, the purpose of this article is to provide an assessment of how international human rights standards may best be utilised to advance their rights. The contention of this article is that the human rights of religious minorities in the Middle East have primarily been considered under the lens of freedom of religion or belief. Relevant though this framework is to their concerns, it will be suggested that promoting the rights of the Middle East's religious minorities through the framework of minority rights may provide a more promising avenue for their protection. The purpose of the article is therefore to provide a reassessment of how best to negotiate the rights of religious minorities in the Middle East. The focus will be on formal legal and political obstacles to the enjoyment of their rights entitlements. Though a broader contextual analysis also assessing economic, cultural and sociological factors would be highly informative, it lies beyond the scope of this article. Despite the fact that minority rights provisions apply to members of minorities alongside all other human rights – among them freedom of religion or belief – the two lenses of minority rights and freedom of religion or belief highlight somewhat different provisions and protections. The two are certainly not mutually exclusive or in contradiction with one another, but a state that prioritises one set of legal and policy options over the other will arrive in different places.
ISBN: ISSN 0963-7494
G S Goodwin-Gill, 'The Extraterriorial Processing of Claims to Asylum or Protection: The Legal Responsibilities of States and International Organisations' (2008) 9 UTS Law Review [...]
This article lays out some of the international legal foundations governing the responsibility of States and international organizations when they undertake the processing of asylum seekers outside the country in which they are seeking refuge. It looks at the responsibility of States for conduct outside their territory; at the responsibility of international organizations, with particular reference to the protection of refugee rights; and at the responsibility of States for the conduct, acts and omissions of international organizations and of other States. It aims to show something of what international law does require, whenever a State elects to intercept or interdict asylum seekers, to transfer them to another State’s territory for ‘processing’, and to contract or engage the assistance of an international organization. Like many measures which a State may take in the grey, apparently unregulated areas of international law, off-shore processing is in fact subject to law, and subject to the rule of law; and so far too little recognition has been given to this and to the legal implications for both States and international organizations. The article concludes with a summary of relevant legal principles.
This article looks back to the 1920s, and tries to tease out the politics of refugee protection as it evolved in the practice of States and international organizations in a period of growing ideological divide. The question addressed is whether the politics of protection at any particular moment are humanitarian or whether they serve primarily other purposes, in which the refugee is merely instrumental. It is unrealistic to imagine that the problem of refugees can ever be entirely non-political. What the history of the 1920–55 period confirms is the continued vitality of self-interest as a motivating factor in the responses of States to refugee flows. The international refugee regime that emerged in the late 1940s and early 1950s defined refugees through the politics of denunciation in a persecution-oriented definition that continues to limit and confuse, not only at the international operations level, but also in national asylum procedures. In this context, the article concludes that the art or UNHCR is not to allow solutions or assistance to have priority over protection. For if it cannot provide protection, it will be judged a failure and accountable, and not merely excused because it tried hard in difficult political circumstances.
I Goold and Julian Savulescu, 'Freezing Eggs for Lifestyle Reasons' (2008) 8 American Journal of Bioethics 32 [...]
Only around 50% of women who postpone childbearing until their 30s conceive in the 6 years following. Infertility causes significant harm to those who suffer it, and we argue for promoting access to treatments, such as cryopreservation of eggs, to enable women to pursue their reproductive goals as they choose.
J Goudkamp, 'Bad Character Evidence and Reprehensible Behaviour' (2008) 12 International Journal of Evidence and Proof 116
L Green, 'Positivism and the Inseparability of Law and Morals' (2008) 83 New York University Law Review 1035 [...]
This article seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a “separation of law and morals.” The paper contends that Hart's “separability thesis” should not be confused with the “social thesis,” with the “sources thesis,” or with a methodological thesis about jurisprudence. In contrast to all of these, Hart's separability thesis denies the existence of any necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among them is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible”. Hart’s most important message is that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.
S Green, 'To Have and to Hold? Conversion and Intangible Property' (2008) 71 Modern Law Review 114
L Gullifer, 'The reforms of the Enterprise Act 2002 and the Floating Charge as a security device' (2008) 46 Canadian Business Law Journal 399 [...]
Recently the UK Government passed the Companies Act 2006, which introduced many reforms to English Company Law as well as reproducing existing law in one (very long) statute. There have also been significant changes in the Corporate Insolvency area introduced by the Enterprise Act 2002, and by case law. This paper will focus on the current fate of the floating charge as a security device.
B Havelkova, 'Die Anwendung des Verhältnismäßigkeitsprinzips durch den EuGH bei der Feststellung von Diskriminierungen aufgrund des Geschlechts' (2008) Zeitschrift für Europäische Studien 305 [...]
Der vorliegende Beitrag beschäftigt sich mit zwei Fragen im Hinblick auf die Prüfung, ob eine Ungleichbehandlung aufgrund des Geschlechts eine Diskriminierung darstellt. Erstens, welche Rolle spielt in der Rechtsprechung des EuGH das Prinzip der Verhältnismäßigkeit und zweitens, welche Rolle sollte es spielen? Nach einer Darstellung des Prinzips der Verhältnismäßigkeit und des EG-Gleichheitsrechts wird die Anwendung der Verhältnismäßigkeitsprinzips durch den EuGH anhand von ungefähr 70 repräsentativen Urteilen aus dem Bereich der Geschlechtergleichheit analysiert. Diese Forschung muss sich aus Platzgründen in zweierlei Hinsicht beschränken: Überprüft wird nur der Bereich der Gleichbehandlung in Arbeits- und Beschäftigungsfragen einschließlich des gleichen Entgelts. Zudem wird auf die Darstellung der Schlussanträge der Generalanwälte verzichtet. Zunächst wird die Rechtsprechung zu den geschriebenen Ausnahmen vom Grundsatz der Gleichbehandlung und danach die Rechtsprechung zu den ungeschriebenen Rechtfertigungsgründen durch ein legitimes Ziel geprüft. Im Rahmen dieser Analyse wird insbesondere auf die dogmatische Struktur und Prüfungsdichte geachtet sowie geklärt, ob die Prüfungskompetenz beim EuGH oder dem nationalen Gericht liegt. Die Untersuchung wird sich nicht darauf beschränken, was der Gerichtshof „sagt“, sondern wird ermitteln, was er „macht“. Dabei wird analysiert, ob Muster hinsichtlich der Rechtsgrundlage der „Entlastung“ der Ungleichbehandlung, der Art der Rechtfertigung, des Gesetzesübertreters oder des Verfahrens vor dem EuGH bestehen.
J J W Herring, 'Caregivers in Medical Law and Ethics' (2008) 25 Journal of Contemporary Health Law and Policy 1 [...]
An article discussing the legal and ethical significance of caring
J J W Herring, 'Deal or no deal' (2008) New Law Journal 1621 [...]
Discussion of enforceability of agreements between divorcing couples.
J J W Herring, 'Entering the Fog: On the Borderlines of Mental Capacity' (2008) 83 Indiana Law Journal 1620 [...]
A discussion of the legal position of those of borderline capacity
A Higgins, 'Corporate abuse of legal professional privilege' (2008) 27 Civil Justice Quarterly 377 [...]
Corporate abuse of legal professional privilege is a controversial subject. Cases where abuse is exposed often acquire notoriety for the depth of corporate and professional misconduct they reveal, and act as catalysts for debate on the need to reform the rules of privilege. Those with an interest in maintaining or limiting the privilege take up now familiar sides in the debate. Corporate lawyers and lawyers’ associations usually stress the fundamental importance of the privilege and argue that there is no evidence of widespread abuse. On the other hand regulatory agencies submit that corporate abuse of privilege has a significant cost to the administration of justice, and that the abuse which has been exposed may only be the tip of the iceberg. The article aims to put the debate on corporate abuse of legal professional privilege into perspective by analysing the potential for abuse by corporations; its impact on the administration of justice; examples of abuse that have been exposed from time to time; and the adequacy of existing mechanisms to detect and prevent abuse. The article argues that the costs of corporate abuse are significant, but due to the nature of the privilege its extent is unknown and largely unknowable. Existing mechanisms for controlling abuse have proved unsatisfactory and have inherent limitations. Accordingly, there needs to be serious examination of alternative solutions for controlling abuse, including re-examination of the scope of corporate privilege.
C Hodges, 'Regulating Risk or Advancing Therapies? Regulation and sustainability of medicines in a cash-limited economy' (2008) European Business Law Review 389
R G Hood, 'Capital Punishment: the Commonwealth in World Perspective' (2008) 17 (3) The Commonwealth Lawyer 30
C Hoyle and S Noguera, 'Supporting Young Offenders Through Restorative Justice: Parents as (In)Appropriate Adults' (2008) 6 British Journal of Community Justice 67
C Hoyle, 'Will She Be Safe? A Critical Analysis of Risk Assessment inDomestic Violence Cases' (2008) 30 Children and Youth Services Review 323
A Johnston, 'Focus article – The European Union, the United Kingdom and Terrorist Asset Freezing: Getting into Hot Water?' (2008) European Current Law Monthly Digest
A Johnston and others, 'The Proposed New EU Renewables Directive: Interpretation, Problems and Prospects' (2008) European Energy and Environmental Law Review 126
T Khaitan, 'Beyond Reasonableness: A Rigorous Standard of Review' (2008) 50 Journal of Indian Law Institute 177
T Khaitan, 'Transcending Reservations: A Paradigm Shift in the Debate on Equality' (2008) Economic and Political Weekly 8
D Kimel, 'Elección de un paradigma para la teoría del contrato: reflexiones sobre el modelo relacional' (2008) 10 Revista de responsabilidad civil y seguros: publicación mensual de doctrina, jurisprudencia y legislación
N Lacey, 'Philosophy, Political Morality and History: Explaining the Enduring Resonance of the Hart-Fuller Debate' (2008) 83 New York University Law Review 1059
D Leczykiewicz, 'Constitutional Conflicts and the Third Pillar' (2008) 33 European Law Review 230
D Leczykiewicz, 'Why do the European Court of Justice judges need legal concepts?' (2008) 14 European Law Journal 773-786
B Loftus, 'Dominant Culture Interrupted: Recognition, Resentment and the Politics of Change in an English Police Force' (2008) 48 British Journal of Criminology 778
V Mayer-Schönberger, 'Demystifying Lessig' (2008) Wisconsin Law Review 713
V Moreno Lax, 'Must EU Borders Have Doors for Refugees? On the Compatibility of Schengen Visas and Carrier Sanctions with EU Member States’ Obligations to Provide International Protection to Refugees' (2008) 10(3) European Journal of Migration and Law 315-364.
J Morgan, 'Against judicial review of discretionary contractual powers'  LMCLQ 230
A Orakhelashvili, 'Between Impunity and Accountability for Serious International Crimes: Legal and Policy Approaches' (2008) 55 Netherlands International Law Review 207
A Orakhelashvili, 'Natural Law and Customary Law' (2008) 68(1) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 69
A Orakhelashvili, 'Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo' (2008) 12 Max-Planck Yearbook of United Nations Law, volume 12 1
A Orakhelashvili, 'The Al-Jedda case (House of Lords)' (2008) 102 American Journal of International Law 337
A Orakhelashvili, 'The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism or Convergence? ' (2008) 19(1) European Journal of International Law, OUP 161
A Orakhelashvili, 'The Normative Basis of “Fair and Equitable Treatment”: General International Law on Foreign Investment? ' (2008) No. 1, 2008 Archiv des Völkerrechts 74
I Papanicolopulu, 'Underwater Noise' (2008) 23 The International Journal of Marine and Coastal Law 365
M Paparinskis, 'Barcelona Traction - A Friend of Investment Protection Law' (2008) Baltic Yearbook of International Law 105
M Paparinskis, 'Investment Arbitration and the Law of Countermeasures' (2008) 79 British Yearbook of International Law 264
M Paparinskis and Ieva Miluna, 'Republic of Latvia Materials on International Law 2007' (2008) 8 Baltic Yearbook of International Law 227
C E Parau, 'Environmental NGOs and EU Accession Conditionality' (2008) Newsletter on Development and Transition, LSE-UNDP
J Payne, 'Legal capital and creditor protection in UK private companies' (2008) 5 European Company Law 220
A preprint of this article is available at http://ssrn.com/abstract=982419
J Pila, 'Compilation Copyright: A matter calling for \\\"a certain ... sobriety\\\"' (2008) 19 Australian Intellectual Property Journal 231-266
Cross-border forum shopping for the benefit of a different insolvency law regime has become popular within the European Union in recent years. Yet legislators, courts and legal scholarship react with suspicion when debtors cross the border only to profit from a different insolvency law system. The most prominent legal tool, the European Insolvency Regulation, is based on the assumption that forum shopping is bad for the functioning of the European Internal Market. This paper questions the hostile attitude towards the phenomenon of forum shopping. It is argued that forum shopping can have beneficial effects both for the company and for its creditors, and that strong safeguards for creditors who oppose the migration are in place. Furthermore, the validity of the COMI approach of the Regulation under the fundamental freedoms of the Treaty is questioned; it is suggested that the current regime needs to be amended. The proposed new system would enable more corporate mobility within the European Union and create more legal certainty for all constituencies at the same time.
WG Ringe, 'Keine Berufungszuständigkeit des OLG nach § 119 GVG bei Beteiligung einer Scheinauslandsgesellschaft' (2008) EuZW 44
J Roberts, 'Aggravating and Mitigating Factors at Sentencing: Towards Greater Consistency of Application'  Criminal Law Review 264
J Roberts, M Hough, J Jacobson and J Bredee, 'Public attitudes to sentencing offenders convicted of offences involving death by driving'  Criminal Law Review 525
J Roberts, 'Punishing Persistence: Explaining the Enduring Appeal of the Recidivist Sentencing Premium' (2008) British Journal of Criminology 468
J Roberts, 'Victims of Crime: Successes and Challenges in the Years to Come' (2008) Victims of Crime Research
A Russell and M Langford, 'Global Precedent' or 'Reasonable No More'?: The Mazibuko Case' (2008) 19 Journal of Water Law 73
D Sarooshi, 'The Role of Domestic Public Law Analogies in the Law of International Organizations' (2008) 5 International Organizations Law Review 237
E Scotford, 'Mapping the Article 174(2) EC Case Law: A First Step to Analysing Community Environmental Law Principles' (2008) 8 Yearbook of European Environmental Law 1
H J Scott, 'Regional Digest: South Africa' (2008) 16 Restitution Law Review 220
A J B Sirks, 'Bijnkershoek over de ‘quade conduites’ van Huibert Rosenboom, president van de Hoge Raad (1691–1722). Een bijdrage op grond van tot dusverre onuitgegeven teksten uit de Observationes tumultuariae (als bijlage toegevoegd)' (2008) 76 Tijdschrift voor Rechtsgeschiedenis 49 [...]
In the manuscript of the Observationes tumultuariae of Cornelis van Bijnkershoek there are several leaves with notes by his hand, as well as notes on the end leaves of the volumes. Some leaves and the notes on the end leaves of the volumes IX-XIV have already been published. What is published here in an Appendix, with explanatory notes, are the leaves with Bijnkershoek’s observations on President Rosenboom and his fellow judges (‘Directien’, ‘Quade Conduite’), and the notes on the end leaves of volumes I–VIII, which concern everyday matters of the Supreme Court, next to again observations on Rosenboom. On basis of these latter remarks the opening article reflects on the malpractices of Rosenboom and the way the Court functioned.
A J B Sirks, 'Laesio enormis again' (2008) 54 Revue Internationale des Droits de l’Antiquité 3e s. 461
A J B Sirks, 'The Colonate in Justinian’s Reign ' (2008) 98 Journal of Roman Studies 120–143
R Stevens, 'Choosing the Right Approach for European Law Making' (2008) European Company and Financial Law Review 83
W J Swadling, 'Explaining Resulting Trusts' (2008) 124 Law Quarterly Review 72
W J Swadling, 'Ignorance and Unjust Enrichment: The Problem of Title' (2008) 28 Oxford Journal of Legal Studies 627
W J Swadling, 'Policy Arguments for Proprietary Restitution' (2008) 28 Legal Studies 506
S Talmon, 'Internationales Recht und die Zukunft des Multilateralismus' (2008) 19-20 epd Dokumentation 27
P Tomlin, 'Envy, Facts and Justice: a critique of the treatment of envy in justice as fairness' (2008) 14 Res Publica 101
J Vella, 'Sham Transactions'  LMCLQ 488
V Bogdanor and S Vogenauer, 'Enacting a British Constitution: Some Problems'  Public Law 38
S Vogenauer, 'Law Journals in Nineteenth-Century England' (2008) 12 Edinburgh Law Review 26
A. Menon and S R Weatherill, 'Transnational Legitimacy in a Globalizing World: how the European Union rescues its States' (2008) 31 West European Politics 397
Simon Whittaker, 'Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between' (2008) European Review of Contract Law 411 – 444
Simon Whittaker and C. Banfi del Rio (translator), 'El precedente en el Dercho ingles: una vision desde la ciudadela' (2008) 35 Revista Chilena de Derecho 37 [...]
This translates the author's earlier work 'Precedent in English Law: A View from the Citadel' which explains the rules and some of the working out of the precedent by English judges to a non-common law readership.
R Williams, 'Deception, Mistake and Vitiation of the Victim\\\'s Consent' (2008) 124(Jan) Law Quarterly Review 132
D Wyatt, 'Horizontal Effect of Fundamental Freedoms and the Right to Equality after Viking and Mangold, and the Implications for Community Competence' (2008) 4 Croatian Yearbook of European Law and Policy 1 [...]
The judgments in Viking and Laval confirm the Court's previous case-law on the horizontal effect of Articles 39, 43 and 49 EC, and extend the horizontal effect of Articles 43 and 49 EC to cover collective action of trade unions by way of strikes, boycotts and the like. A significant knock-on effect is an extension of Community regulatory competence to cover this same subject matter, despite the contrary indications in Article 137(5) EC. The judgment in Viking implies that Article 28 EC is also capable of horizontal effect, at least in cases where collective action of individuals produces regulatory effects similar to those resulting from State action. The Court's reasoning leaves room for future incremental increases in the horizontal effect of fundamental freedoms in cases which involve contractual rules, in particular rules regulating employed or self employed activities. The approach to horizontal effect in Viking supports, for example, the argument that provisions of a corporate constitution could amount to a restriction on freedom of establishment, as could action taken by the board of a company to frustrate a takeover bid. Advocate General Maduro in Viking argues that the Treaty rules on freedom of movement apply directly to any private action that is capable of effectively restricting others from exercising their right of freedom of movement. The present writer suggests further considerations as being relevant to determining the extent of the horizontal reach of fundamental freedoms. Normal market behaviour on the part of one market operator should not in principle be held to amount to a restriction on the fundamental freedom of another. But discriminatory conduct by market operators, or other conduct which falls outside the range of normal market behaviour, would seem capable of falling within the horizontal effect of a fundamental freedom, at any rate where it restricts access of other market operators, or consumers, to the market, or places market operators or consumers at a disadvantage because they have exercised a fundamental freedom. Account must be taken of the aims and wording of the freedom in question, along with the policy questions of whether it would be excessively burdensome to make private operators subject to the obligation to comply with the fundamental freedom in question, and whether any consequential extension of Community regulatory competence would unreasonably limit that of the Member States. A related issue to be taken into account is the possible horizontal effect of the fundamental principle of equality, as articulated in the Mangold case. Even a restrained reading of this much criticised case would suggest that the prohibition of discrimination on grounds of nationality in Article 12 EC might have horizontal effect in circumstances falling within the material scope of Community law, such as the supply of goods, services, business accommodation and housing. A similar conclusion could be reached as regards discrimination in the sale of goods, services and real property to non residents. It would not be excessively burdensome to impose on private market operators the obligation not to depart from their normal terms and conditions of sale in the case of non-nationals or non-residents, unless such departure represented normal market behaviour. A possible example of discriminatory service provision contrary to the general principle of equality is that of excessive roaming charges, which have been recently regulated by Regulation (EC) No 717/2007. A key question which arises in this context is the extent to which a market operator can, or should be able to be, justify discrimination against out of state operators, or discrimination against customers solely because they have crossed a national frontier, on grounds of normal market behaviour, when market conditions are not normal, and the market is not fully competitive.
L Zedner and A Ashworth, 'Defending the Criminal Law: Reflections on the changing character of crime, procedure, and sanctions' (2008) 2 Journal of Criminal Law and Philosophy 21
L Zedner, 'Terrorism, the ticking bomb, and criminal justice values ' (2008) 73 Criminal Justice Matters 18
D Akande, 'Are there Limits to the Powers of the Security Council? in Old Questions and New Challenges for the UN Security System' (2007) V Journal of International Law and Policy
Recent work in both the theory of the firm and of corporate law has called into question the appropriateness of analysing corporate law as ‘merely’ a set of standard form contracts. This article develops these ideas by focusing on property law's role in underpinning corporate enterprise. Rights to control assets are a significant mechanism of governance in the firm. However, their use in this way predicates some arrangement for stipulating which parties will have control under which circumstances. It is argued that ‘property rules’—a category whose scope is determined functionally—protect the entitlements of parties to such sharing arrangements against each other's opportunistic attempts to grant conflicting entitlements to third parties. At the same time, the legal system uses a range of strategies to minimize the costs such protection imposes on third parties. The choice of strategy significantly affects co-owners’ freedom to customize their control-sharing arrangements. This theory is applied to give an account of the ‘proprietary foundations’ of corporate law, which has significant implications for the way in which the subject's functions are understood and evaluated.
J Armour and D.A. Skeel, Jr., 'Who Writes the Rules for Hostile Takeovers, and Why? The Peculiar Divergence of US and UK Takeover Regulation' (2007) 95(6) Georgetown Law Journal 1727 [...]
Hostile takeovers are commonly thought to play a key role in rendering managers accountable to dispersed shareholders in the "Anglo-American” system of corporate governance. Yet surprisingly little attention has been paid to the very significant differences in takeover regulation between the two most prominent jurisdictions. In the United Kingdom, defensive tactics by target managers are prohibited, whereas Delaware law gives U.S. managers a good deal of room to maneuver. Existing accounts of this difference focus on alleged pathologies in competitive federalism in the United States. In contrast, we focus on the “supply-side” of rule production by examining the evolution of the two regimes from a public choice perspective. We suggest that the content of the rules has been crucially influenced by differences in the mode of regulation. In the United Kingdom, self-regulation of takeovers has led to a regime largely driven by the interests of institutional investors, whereas the dynamics of judicial law-making in the United States have benefited managers by making it relatively difficult for shareholders to influence the rules. Moreover, it was never possible for Wall Street to “privatize” takeovers in the same way as the City of London, because U.S. federal regulation in the 1930s both pre-empted selfregulation and restricted the ability of institutional investors to coordinate.
A Ashworth, 'Principles, Pragmatism and the Law Commission's Recommendations on Homicide Law Reform'  Criminal Law Review 333 [...]
Appraisal of the structure and detail of recent Law Commission recommendations.
ISBN: 0011 135X
N C Bamforth, 'Same-sex partnerships: Some Comparative Constitutional Lessons' (2007) 2007(1) European Human Rights Law Review 47
N C Bamforth, 'The benefits of marriage in all but name?\' Same-sex couples and the Civil Partnership Act 2004' (2007) 19(2) Child and Family Law Quarterly 133
A Bogg, 'Paid Annual Leave and the Long-Term Sick: Third Time Lucky for the United Kingdom?' (2007) September Industrial Law Journal [...]
6000 words -analysis of the interaction between paid annual leave and contractual sub-employment mode
M Bosworth, 'Creating the Responsible Prisoner: Federal Admission and Orientation Packs' (2007) 9 Punishment and Society 67
A Briggs, 'The cost of suppressing insurrection' (2007) 123 Law Quarterly Review 182 [...]
Analysis of the issues raised by the decision in Mbasogo, President of Equatorial Guinea v Logo
A Briggs, 'The further consequences of choice of law' (2007) 123 Law Quarterly Review 18 [...]
Analysis of basis for and potential consequences of decisions in Trafigura v Kookmin
A Briggs, 'Who is bound by the Brussels Regulation ?' (2007) Lloyd's Maritime & Commercial Law Quarterly 433 [...]
Analysis of the reasoning in and law underpinning the grant of anti-suit injunctions and the Brussels Regulation in the light of Samengo Turner v March & McLennan
G.Robinson and R Burnett, 'Experiencing modernisation: frontline probation perspectives on the transition to a national offender management service' (2007) 54 Probation Journal 318
R Burnett, 'Nipping crime in the bud: developmental research and intervention in infancy' (2007) 69 Criminal Justice Matters 14
R Burnett and A Stevens, 'Not Of Much Significance (yet): NOMS from the perspective of prison staff' (2007) 172 Prison Service Journal 3
R Burnett, 'Review of Vanstone: Supervising Offenders in the Community' (2007) 9 Punishment and Society 211
C Carlarne, 'Climate Change - The New 'Superwhale' in The Room: International Whaling and Climate Change Politics - Too Much in Common?' (2007) 80 Southern California Law Review 753
C Carlarne, 'From the USA with Love: Sharing Home-Grown Hormones, GMOs and Clones with a Reluctant Europe' (2007) Summer 2007 Environmental Law [...]
This article examines the impact of biotechnology on international trade relations between the United States and the European Union, focusing on how the introduction of meat treated with hormones, GMOs, and meat and dairy from cloned animals introduced into the streams of trade has impacted United States – European Union relations. The article begins by providing an overview of the beef hormones deliberations then examines the on-going debate over GMOs – including an overview of the recently released WTO decision, and finally concludes by focusing on how a US Food and Drug Administration decision regarding the regulation of cloned meat and dairy products is likely to impact the current trade disputes. The article reviews the disparate policies the United States and the European Union use and examines how and why consumer preferences in the United States and European Union differ and how these differences impact policy formulation. Finally, the article considers whether the cloned foods debate is likely to shift the nature of the biotechnology food debate and whether such a shift is necessary.
C Carlarne, 'Putting the ‘And’ Back in the Culture-Nature Debate: Integrated Cultural and Natural Heritage Protection' (2007) 1.04236111111111 UCLA Journal of Environmental Law and Policy [...]
This article examines increasing intersections between cultural and natural heritage protection. The goal of the article is to contribute to and encourage the development of innovative, interdisciplinary approaches for the protection, preservation, and enhancement of cultural and natural heritage areas. In significant part, this article examines traditional notions and regulatory regimes for cultural and natural heritage protection and delves into the links between cultural and natural heritage. It then analyzes existing cultural heritage and environmental/natural protection laws and examples of joint cultural and natural heritage preservation. In particular, it considers how current and prospective joint cultural and natural heritage protection efforts in developed and developing countries contribute to the social and economic development of communities and regions and advance the principles of sustainable development by strengthening the historical continuity of a place and its people, and by guiding development in ways consistent with the characteristics of these cultural and natural resources. In particular, the article examines case studies in the United States, Europe, and Canada as well as in Brazil, and China to demonstrate the challenges to, and critical elements necessary to developing innovative and sustainable cultural and natural heritage preservation schemes. Finally, the article proposes ways to improve and expand upon existing cultural-natural heritage preservation techniques and suggests that recognizing the links between cultural heritage and natural heritage is necessary to ensuring sustainable development in both developed and developing countries.
M Chen-Wishart, 'Undue Influence Vindicating Relationships of Influence' (2007) OUP 231
R Condry, 'Families Outside: The Difficulties Faced by Relatives of Serious Offenders' (2007) Prison Service Journal
R Condry, 'My World as I Knew it - Gone: The Impact of Crime on Relatives of Serious Offenders' (2007) 33 Safer Society: The Journal of Crime Reduction and Community Safety
P P Craig, 'Equality, Review and the Crown’s Power to Disburse Funds' (2007) 19 European Review of Public Law 845
S M Cretney, 'Royal Weddings, Legality and the Rule of Law' (2007) Family Law 159 [...]
This is the edited text of a paper read to the annual conference of the Society of Legal Scholars, Keele University, September 2006
S M Cretney, 'Sir John Withers MP: The Solicitor in Private Practice and Public Life in England between the Wars' (2007) 66 Cambridge Law Journal 201
A C L Davies, 'A tangled web? Accountability and the commissioning role in the "new" NHS' (2007) 18 King's Law Journal 387 [...]
Article analysing recent reforms in the primary care sector in the NHS from a public law perspective.
Elaborates on Mark Freedland's work on the contract for intermittent employment in his book, The Personal Employment Contract.
M Dempsey, 'Criminal Responsibility, by Victor Tadros [Book Review]' (2007) 11 Theoretical Criminology 129
M Dempsey, 'Toward a Feminist State: what does ‘Effective’ Prosecution of Domestic Violence mean?' (2007) 70(6) Modern Law Review 908 [...]
This article examines domestic violence criminal prosecutions and addresses what effective prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence Against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that one important sense of what 'effective' prosecution of domestic violence means is prosecution which constitutes the State as less patriarchal ceteris paribus.
M Dempsey and Jonathan Herring, 'Why Sexual Penetration Requires Justification' (2007) 27 (3) OJLS 467 [...]
This article is the first of a series of three in which the authors examine the moral quality of sexual penetration, its justifications, and how it should be regulated by the criminal law. This first article defends the claim that sexual penetration calls for justification in virtue of the use of force, risks of harm, and/or social meanings associated with this conduct.
E Descheemaeker, 'La question de la fusion de la common law et de l'equity en droit anglais. A propos de l'ouvrage Equity de Sarah Worthington' (2007) 41 Thémis 631 [...]
Abstract: English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.
English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.
J Dickson, 'Is the Rule of Recognition Really a Conventional Rule?' (2007) 27(3) Oxford Journal of Legal Studies 373
J. Reichman, G Dinwoodie and P. Samuelson, 'A Reverse Notice and Takedown Regime To Enable Fair Uses of Technically Protected Copyrighted Works' (2007) 22 Berkeley Technology Law Journal 981 [...]
The WIPO Copyright Treaty (WCT) recognized the need to maintain a balance between the rights of authors and the larger public interest in updating copyright law in light of advances in information and communications technologies. But the translation of this balance into the domestic laws of the United States and European Union has not been fully successful. In the DMCA, Congress achieved a reasonable balance of competing interests in its creation of safe harbors for internet service providers. However, contrary to its apparent intention, Congress failed to achieve a similar balance of interests when establishing new rules forbidding circumvention of technical protection measures (TPMs) used by copyright owners to control access to and use of their works. The EU Copyright Directive spoke of a commitment to ensuring that certain public interest uses can be made of technically protected works but contains limits that seemingly undermine this commitment. As a result, national implementations of the Copyright Directive have not adequately facilitated public interest uses of technically protected content.
We believe that practical judicial and administrative measures can and should be devised to implement the spirit of the WCT in both the U.S. and EU without reopening the contentious debates that engulfed the process leading up to enactment of the DMCA and the EU Copyright Directive. To this end, we propose adoption of a ?reverse notice and takedown? procedure to help achieve some of the balance in anti-circumvention rules that the WCT endorsed, but which implementing legislation has thus far failed to deliver. Under this regime, users would be able to give copyright owners notice of their desire to make public interest uses of technically protected copyrighted works, and rights holders would have the responsibility to take down the TPMs or otherwise enable these lawful uses.
A reverse notice and takedown regime would achieve for the anti-circumvention rules a comparable symmetry with the balance embedded in the ISP safe harbor rules. It would also effectuate the nascent, but not fully realized, legislative intent to permit public interest uses of technically protected digital content, while at the same time protecting copyright owners against circumvention of TPMs that would facilitate or lead to massive infringements. In the U.S., the most likely way to achieve this goal is through judicial interpretation of the anti-circumvention rules through case by case adjudication. In the EU, by contrast, member states could implement a reverse notice and takedown regime in the course of fulfilling their obligations under Article 6(4) of the Copyright Directive, which requires them to ensure that users of technically protected works can exercise certain public interest exceptions. Nations that have yet to implement the WCT may find our proposed reverse notice and takedown regime provides a far more balanced way to comply with the treaty than the approach being promoted by U.S. trade negotiators.
G Dinwoodie and M. Janis, 'Confusion Over Use: Contextualism in Trademark Law' (2007) 92 Iowa Law Review 1597 [...]
This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism over contextual analysis in trademark law rulemaking. The theory seeks determinate trademark rules in order to encourage a climate of certainty for innovators, but the concepts on which it is founded are likely to degenerate. We show that trademark use theorists ignores the multivalence of trademark law, and that adopting trademark use doctrines would result in less transparent trademark decisionmaking. Instead, we propose that trademark law retain its traditional preference for contextual analysis. We show in particular how a contextual analysis would offer an approach to trademark disputes involving online advertising that better captures the potential of trademark law to police new information markets. Our analysis contemplates individualized assessments according to common law standards, but opens up policy space for the development of limited statutory safe harbors for intermediaries such as search engines.
G Dinwoodie, 'Copyright Lawmaking Authority: An (Inter)nationalist Perspective on the Treaty Clause (symposium)' (2007) 30 Columbia Journal of Law & the Arts 355 [...]
This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read the Treaty Clause as an expansive autonomous lawmaking power that is largely unconstrained by internal limits and wholly unconstrained by the external limits found in the Copyright Clause. This paper adopts none of the three paradigmatic positions. I argue that those seeking to make the Treaty Clause subservient to the Copyright Clause both overstate the constitutional weight of the Copyright Clause and underestimate the autonomous role of the Treaty Clause in the American governmental structure. By the same token, however, the argument that the Treaty Clause should operate wholly unaffected by the limits in the Copyright Clause rests on a vision of the Treaty Clause that fails to acknowledge the multitude of ways through which international law and policy influences and informs domestic American copyright law. Support for autonomous lawmaking authority under the Treaty Clause must be tempered by the contemporary political reality that international processes may simply be an inappropriate end-run around the limits of Copyright Clause authority rather than occasional operation of an independent and different political process. And because of the entanglement between domestic and international lawmaking that now characterizes the copyright lawmaking process, reliance upon the traditional internal limits of the Treaty Clause will prove largely unavailing. The only way to make the restrictions on the Treaty Clause real is to develop a jurisprudence of judicial policing that reflects both the policy values that support the autonomy of the Treaty Clause and the realities of the contemporary copyright lawmaking process. Thus, I suggest that courts faced with reviewing copyright laws reliant upon the Treaty Clause for their constitutional legitimacy examine a matrix of at least three variables: (1) the strength of the international obligation with which domestic actors seek to comply; (2) the political process by which international norms are adopted and expressed in U.S. law; and (3) the limits in the Copyright Clause that the challenged law allegedly violates.
G Dinwoodie and R. Dreyfuss, 'Diversifying Without Discriminating: Complying with the Mandates of the TRIPS Agreement' (2007) 13 Michigan Telecommunications and Technology Law Review 445 [...]
Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one?size?fits?all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, which is cast in terms of nondiscrimination, should be interpreted to permit ?differential treatment.? First, we argue that in other areas, treating different cases differently is not always invidious discrimination. Second, we note that many of the proposals for tailoring are not aimed at the nominal legal rights created by patent law, but rather at the economic effects of these patents, a distinction of significance in the WTO?s Canada-Pharmaceutical Patents case. Finally, we suggest that member states claiming de facto discrimination should be required to demonstrate some element over and above those required to establish de iure discrimination, and that member states defending an exclusion should be permitted to rebut a showing of disparate treatment by demonstrating a legitimate purpose. While decision makers will need to evaluate the relation between the stated purpose and the means chosen, this analysis would permit members to adopt most of the tailoring initiatives discussed during the Symposium. We give weight to the normative claims of the TRIPS Agreement to facilitate and enhance free trade. But we think that industry?specific patent laws are fully consistent with the language and purpose of the TRIPS Agreement as well as the comparative advantage philosophy that undergirds the modern trade regime.
In their response to our article Confusion Over Use: Contextualism in Trademark Law, Professors Dogan and Lemley discard more all-encompassing versions of the trademark use requirement. Instead, they seek to delineate and defend a ?more surgical form? of trademark use doctrine. In this reply, we demonstrate that the language of the Lanham Act does not impose a trademark use requirement even when that requirement is defined ?surgically? and sections 32 and 43(a) are read ?fluidly,? as Dogan and Lemley suggest. Moreover, their interpretation still renders section 33(b)(4) redundant and unduly limits appropriate common law development of trademark law. We also address Dogan and Lemley?s additional normative arguments for deploying trademark use to shield defendants from even potential liability for various commercial uses of marks, especially in connection with online contextual advertising. We disagree that contributory infringement doctrine necessarily provides sufficient oversight of the presentation of search results or advertising sales practices; that marginalizing trademark law will best encourage intermediaries to structure their business arrangements in ways that promote reliable information flow; and that offline analogies should necessarily direct the outcomes of trademark disputes over online practices. Our disagreements with Dogan and Lemley on these points also highlight broader differences about methodological approaches to trademark law. In particular, our distaste for limiting the potential scope of the Lanham Act reveals our greater willingness to see trademark and unfair competition law as a market regulator. Relatedly, we are more firmly committed to judicial development of both potential liability and potential defenses; Dogan and Lemley want courts to focus only on the latter.
G Dinwoodie, 'The WIPO Copyright Treaties: A Transition to the Future of International Copyright Lawmaking? (symposium)' (2007) 57 Case Western Reserve Law Review 751 [...]
This contribution to a symposium on the tenth anniversary of the WIPO Copyright Treaty (now published with a 2010 postscript) suggests that the WIPO Copyright Treaty represented a watershed moment in international copyright law for two reasons. First, it was in the 1996 Diplomatic Conference that one begins to see the most widespread explicit discussion of the concept of “balance” being integral to international instruments. Second, the WCT was a watershed moment for international copyright law in that the process that led up to the conclusion of the two internet treaties (both the WCT and the WIPO Performances and Phonograms Treaty) and the conduct of the diplomatic conference at which they were considered were quite different in several respects from that which had been seen heretofore. In particular, on some of the issues addressed in the treaty, the contracting states relied much less extensively on prior national experimentation than had been the norm in prior copyright agreements. Moreover, the 1996 Diplomatic Conference was populated by a wide range of non-governmental organizations (NGOs) in numbers never before seen at international copyright events. And (perhaps because of these first two changes in process), the debates that took place nationally and internationally were substantially assimilated. These features of the process that led to the WCT remain with us today. This brief essay addresses both the concept of balance and these changes to the lawmaking process. On the question of balance, I suggest that balance is a much more complicated concept than we assume. Even in the domestic environment, the phrase is used somewhat too glibly. But in the international context, it becomes even more complex. In particular, we need to take into account the multidimensional nature of balance (or what I call the various vectors of balance) before we try to insert internal substantive balance directly into treaty instruments. This is true whether we are talking about new authors’ rights or the development of users’ rights. I am also concerned by some aspects of the changes that occurred to the lawmaking process in 1996. In particular, there is often a failure to appreciate fully the difference between national lawmaking and international lawmaking. To be sure, in a dynamic, integrated lawmaking process, one is a constituent part of the other; that is, national lawmaking contributes to international lawmaking and vice versa. But these processes involve distinct institutions with different functions, and with different democratic and political structures; those urging further reform of international copyright law need to be aware of these differences.
J Donoghue, 'The Judiciary as a Primary Definer on Antisocial Behaviour Orders' (2007) 46 Howard Journal of Criminal Justice 417 [...]
It has been argued that the introduction of anti-social behaviour orders (ASBOs) has created a `new domain of professional power and knowledge' ( Brown 2004, p.203). That is, local authorities have become `the main agency of [social] control' ( Brown 2004, p.205). Alternatively, this article considers the effects of subjective legislative terminology, pivotal jurisprudential decisions, the courts' protection of individual liberties versus the public interest, and the relevance of an overburdened summary criminal justice system, and attempts to locate the position of the judiciary within ASBO cases, not as a supportive or subordinate one, but in fact as a component of elementary importance.
S Douglas-Scott, 'Fundamental Rights in EU Justice and Home Affairs' (2007) EU Current Law
D Dwyer, 'Causes and Manifestations of Bias in Civil Expert Evidence' (2007) 26 Civil Justice Quarterly 425
D Dwyer, 'Expert Evidence in the English Civil Courts, 1550-1800' (2007) 28 Journal of Legal History 93
D Dwyer, 'Knowledge and Justification in Legal Fact Finding' (2007) 1(4) The Reasoner 5
D Dwyer, 'The Effective Management of Bias in Civil Expert Evidence' (2007) 26 Civil Justice Quarterly 57
J M Eekelaar, 'Why People Marry: the Many Faces of an Institution' (2007) 41 Family Law Quarterly [...]
Accepted for the special issue on the Future of Marriage by this US publication in the Fall of 2007, the article draws on the author's research and UK legal developments to contribute to the debate over marriage in the USA.
R Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 Law Quarterly Review 91
P Eleftheriadis, 'Environmental Rights in the EC Legal Order' (2007) 27 Yearbook of European Law
P Eleftheriadis, 'The Idea of a European Constitution' (2007) 27(1) Oxford Journal of Legal Studies 1
TAO Endicott, 'Adjudication and the Law' (2007) 27 Oxford Journal of Legal Studies 311
TAO Endicott, 'Interpretation, Jurisdiction, and the Authority of Law' (2007) 6 American Philosophical Association Newletter 14 [...]
People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz’s compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing (contrary to remarks by Raz) that law does not claim unlimited jurisdiction, and need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives.
D Erdos, 'Aversive Constitutionalism in the Westminster World: the genesis of the New Zealand Bill of Rights Act (1990)' (2007) 5(2) International Journal of Constitutional Law 343
D Erdos, 'Aversive Constitutionalism in the Westminster World: the genesis of the New Zealand Bill of Rights Act (1990)' (2007) 5 International Journal of Constitutional Law 343
A Ezrachi, 'Competition Law and the Regulation of Cross Border Mergers and Acquisitions - A Story of Conflict, Cooperation and Convergence' (2007) (2007) 4 (2) ICFAI Journal of Mergers and Acquisitions 57-73
A Ezrachi, 'European Cartel Enforcement and the Possible Implications for Japanese Companies' (2007) Kanto-gakuin Law Review
L Ferguson, 'Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience' (2007) 23(2) Canadian Journal of Family Law 159
J M Finnis, 'Nationality, Alienage and Constitutional Principle' (2007) 123 Law Quarterly Review 418 [...]
After brief discussion of (1) the nature of constitutional principles and (2) the development and developed state of the law about the rights of aliens, the article argues extensively that A v Home Secretary  UKHL 56,  2 AC 68 was wrongly decided and, indeed, per incuriam since all nine judges in the Lords overlooked their duty to interpet the statutory provision so far as possible as compatible with the Human Rights Act 1998 before declaring it incompatible.Even apart from that duty under HRA s. 3, there was available but unconsidered a reasonable interpretation such that the power to detain alien terrorist suspects had as its ongoing precondition a purpose, manifested in bona fide efforts, to deport them and to secure whatever arrangements with foreign governments might be necessary to make deportation lawful under the Chahal doctrine about real risk of torture or degrading treatment.The judgments all overlook also the constitutional principle that risk to the public good which must be accepted from the presence of a national need not be accepted from the presence of an alien and may be obviated by the alien's exclusion or expulsion.The majority's arguments from irrationality and discrimination are manifestly unsound once the statute is interpreted as it should have been.
J M Finnis, 'Religion and State: Some Main Issues and Sources' (2007) 51 American Journal of Jurisprudence 107 [...]
This philosophical, non-theological article argues that the default position for public reason in a just political community is that some religion may be true and it matters substantially for individual wellbeing and that community's common good that individuals be both (i) free from coercion in their inquiries about what is true about the transcendent source and point of everything, and in putting into practice what they believe they have discovered through such inquiries, and (ii) encouraged in such inquiries and religious practice.Coercion and/or discouragament by government and law or by private individuals or groups, is justifiable only when required for public order, that is, the rights of others, public peace and public morality.Religions which do not accept that there is such a right to religious liberty are a standing threat to public order and can, in principle, be justly discriminated against and their faithful adherents kept at a distance from our territory.Existing UK laws and judgments which discriminate in this way are in principle justified.
S Fredman, 'Recognition or Redistribution: Reconciling Inequalities' (2007) 23 South African Journal of Human Rights 214 [...]
This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. Using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging and ineffective. Conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.
J Freedman, 'Interpreting Tax Statutes: Tax Avoidance and the Intention of Parliament' (2007) 123 (Jan) Law Quarterly Review Sweet & Maxwell and reproduced here with permission 53
J Freedman and C. Crawford, 'Small Companies Again - Section 3 Finance Act 2007' (2007)
D J Galligan, 'A Social Account of Law' (2007) 3 AEGIS (Analyse Economique et Gestionnaire des Institutions et des Strategies) 1
John Gardner, 'Complicity and Causality' (2007) 1 Criminal Law and Philosophy 127
John Gardner, 'Nearly Natural Law' (2007) 52 American Journal of Jurisprudence 1
R George, 'Joint Residence: A Comparison of Practitioners’ Perspectives in England and France' (2007) International Family Law 28
R George, 'Practitioners’ Approaches to Child Welfare After Parental Separation: An Anglo-French Comparison' (2007) 19 Child and Family Law Quarterly 337
J S Getzler, 'ASIC v Citigroup: Bankers' conflict of interest and the contractual exclusion of fiduciary duties' (2007) 2 Journal of Equity 62 [...]
An investment bank advising a client in a takeover bid may simultaneously engage in trading in the target company, and this carries a risk of driving up the target price. If, however, the bank forbears to trade, the market may take this as a confirmation that a takeover is being planned by the advisory wing of the bank, again affecting the target price. In ASIC v Citigroup, the bank had excluded all fiduciary duties towards its client, and so claimed there was no conflict of interest in the bank's proprietary trading in the target company ahead of the takeover operation. ASIC argued that in the run-up to execution of the retainer the bank had a preliminary fiduciary duty to seek fully informed consent to the broad exclusion of fiduciary duties, such that the client understood the risk that the bank might trade or otherwise act against the client's interests. The Federal Court ruled that formal consent sufficed where the parties were well-advised business actors, or alternatively that commercial actors implicitly consent to such risks. The decision identifies - but does not solve - the pervasive problem of conflicts of interest generated by the integrated investment banking model.
J Goudkamp, 'A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort' (2007) 29 Sydney Law Review 445
J Goudkamp, 'Judicial Bias and the Doctrine of Waiver ' (2007) 26 Civil Justice Quarterly 310
D Green, 'Comparing Penal Cultures: Child-on-Child Homicide in England and Norway' (2007) 36 Crime and Justice 591
S Green and Djakhongir Saidov, 'Software as Goods'  Journal of Business Law 161
L Green, 'The Duty to Govern' (2007) 13 Legal Theory 165
C Greenhalgh and M Rogers, 'The value of intellectual property to firms and society’' (2007) Intellectual Property Oxford Review of Economic Policy,
N Gur, 'Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-emption Thesis' (2007) 52 American Journal of Jurisprudence 159
B Havelkova, 'Burden of proof and positive action in decisions of the Czech and the Slovak Constitutional Courts - milestones or mill-stones for implementation of EC equality law?' (2007) 32 European Law Review 686 – 704 [...]
Considers the implementation of EC equality law, including Council Directive 2000/43, in the Czech Republic and Slovakia. Discusses: (1) the Slovak Constitutional Court decision in Government of Slovakia v Parliament of Slovakia on whether s.8(8) of Act 365/2004 on Anti-Discrimination, which purported to transpose Council Directive 2000/43 Art.5 on positive action, conformed to the Constitution of Slovakia; and (2) the Czech Constitutional Court decision on whether the Civil Code of Procedure s.133a(2), which purported to transpose Council Directive 2000/43 Art.8 on the burden of proof, was consistent with the Constitution of the Czech Republic. Comments on the distinguishing features and different outcomes in each case.
J J W Herring, 'Familial Homicide, Failure to Protect and Domestic Violence: Who's the Victim?'  Criminal Law Review 923 [...]
Discussion of familial homicide in cases where the defendant has been the victim of domestic violence.
J J W Herring and E. Palser, 'Gross Negligence Manslaughter and the Duty of Care'  Criminal Law Review 17
Discussion of the law of rape.
J J W Herring and Elaine Palser, 'The Duty of Care in Cross Negligence Manslaughter'  Criminal Law Review 24 [...]
Article on gross negligence manslaughter
J J W Herring, 'Where are the carers in healthcare law and ethics' (2007) 27(1) Legal Studies 51
J J W Herring and Michelle Madden Dempsey, 'Why Sexual Penetration Requires Justification' (2007) Oxford Journal of Legal Studies 467 [...]
Discussion of sexual penetration
J J W Herring and P-L Chau, 'Your body, My body, Our bodies' (2007) 15 Medical Law Review 34
Laura Hoyano, 'The Child Witness Review: Much Ado about too Little'  November Criminal Law Review 849 [...]
In December 2004 the Government announced a review of child evidence with a remit to consider whether section 28 of the Youth Justice and Criminal Evidence Act 1999, providing for video taped pre-trial cross-examination, should be retained in some form, to review the performance of Special Measures for child witnesses, and to consider measures for vulnerable defendants. The Review Group's Consultation Paper, Improving the Criminal Trial Process of Young Witnesses, was published only in June 2007. This article critically evaluates the most significant recommendations. As of October 2008, the Government had yet to publish its position regarding the responses to the Consultation Paper, notwithstanding that the consultation period had closed in October 2007.
ISBN: 0011 135X
E Hudson and AT Kenyon, 'Digital Access: The Impact of Copyright on Digitisation Practices in Australian Museums, Galleries, Libraries and Archives' (2007) 30 University of New South Wales Law Journal 12 [...]
Empirical research into the digitisation of collections in Australian museums, galleries, libraries and archives suggests that copyright law affects what material is digitised and how it is made accessible. This article analyses digitisation within cultural institutions in light of the Digital Agenda reforms of 2000 and the Copyright Amendment Act 2006 (Cth). Copyright law can have a significant impact on digitisation practices, particularly with regard to digitising audiovisual material and orphan works, and in relation to digital access: that is, the public availability of digital content. Research suggests that, for the Copyright Act 1968 (Cth) ('Copyright Act') to work on its own terms, some small-scale reforms are required. However, the research also underscores larger questions about the sustainability of existing copyright law and practice. Provisions in the Copyright Amendment Act 2006 (Cth) may improve the situation, depending on the operation of the new 'flexible dealing' exception for the sector in s 200AB. This suggests the need for continued attention and debate on copyright exceptions and the possibility of new collective licensing models.
E Hudson and AT Kenyon, 'Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions' (2007) 4 SCRIPTed 197
Jackson, 'The Customary International Law Duty to Prosecute Crimes against Humanity: A New Framework' (2007) 16 Tulane Journal of International and Comparative Law 117
A Johnston, 'European Community Law and National Private Law: ‘Never the Twain Shall Meet’?' (2007) 3 Cambridge Student Law Review 56
A Johnston, A. Kavali and K. Neuhoff, 'Take-or-Pay Contracts for Renewables Deployment' (2007) 36 Energy Policy 2481 [...]
Renewables require support policies to deliver the European 20% target. We discuss the requirements for least-cost development and efficient operation and quantify how different schemes (i) allow for the development of a renewable energy technology portfolio; (ii) reduce rent transfers to infra-marginal technologies or better than marginal resource bases and (iii) minimise regulatory risk and thus capital costs for new projects. Long-term take-or-pay contracts minimise regulatory uncertainty, create appropriate incentives for location and operation, allow for efficient system operation and seem compatible with European state aid. We discuss how property rights legislation protects existing renewables investors, and thus can ensure ongoing investment during a transition towards the new scheme.
A Johnston and H. Unberath, 'The Double-Headed Approach of the ECJ concerning Consumer Protection' (2007) 44 Common Market Law Review 1237
J Kaye, N Hawkins and J Taylor, 'Patents and Translational Research in Genomics' (2007) 25(7) Nature Biotechnology 739
V Bogdanor, S Vogenauer and T Khaitan, 'Should Britain Have a Written Constitution?' (2007) 78 Political Quarterly 499
D Kimel, 'The Choice of Paradigm for a Theory ofContract: Reflections on the Relational Model' (2007) 27(2) Oxford Journal of Legal Studies 233
M Klatt, 'Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion' (2007) 20(4) Ratio Juris 506
M Kurkchiyan, 'The Impact of the Transition on the Role of Law in Russia' (2007) 28(3) Recht der Werkelijkheid, Special Issue on ‘Explorations in Legal Cultures' 81
Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice.
This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged.
B Lange, 'How Law Works in the Real World - A Critical Commentary on the Nuffield Inquiry into Empirical Legal Research' (2007) 28 Zeitschrift fuer Rechtssoziologie 139
B Lange and N Alexiadou, 'New Forms of European Union Governance in the Education Sector? - A Preliminary Analysis of the Open Method of Co-Ordination' (2007) 6 European Educational Research Journal 321
G Loutzenhiser, 'Income Splitting and Settlements: Further Observations on Jones v Garnett'  British Tax Review 693 [...]
The author contributes to the discussion on the family business income-splitting case Jones v Garnett. The article begins with an examination of the settlements legislation, focusing on the key definitions, namely “arrangement”, “settlor” and “outright gift”, as well as the common law “bounty” requirement and considers how these definitions apply in the context of family businesses. In the 2007 Pre-Budget Report the Government announced it will be launching a consultation on new legislation to prevent tax-motivated income splitting involving dividends and partnership profits. The article concludes with a discussion of various alternatives available to the Government for addressing the income-splitting issue raised by the case, as well as the more favourable tax and national insurance contribution treatment generally accorded unearned income as compared to earned income
J C McCrudden, 'Equality Legislation and Reflexive Regulation: A Response to the Discrimination Law Review\'s Consultative Paper' (2007) 36(3) Industrial Law Journal 255 [...]
Reviews the regulatory theory underpinning the recently published Discrimination Law Review's Consultative Paper
K Moller, 'Abwägungsverbote im Verfassungsrecht (Prohibitions of Balancing in Constitutional Law)' (2007) Der Staat 115
K Moller, 'Balancing and the Structure of Constitutional Rights' (2007) International Journal of Constitutional Law 453
P Nebbia, 'Reforming the law on unfair terms in the UK: the draft Unfair Contract Terms Bill' (2007) 23 Journal of Contract Law
D P Nolan, 'New Forms of Damage in Negligence' (2007) 70 Modern Law Review 59
A Orakhelashvili, 'Interpretation of Jurisdictional Instruments in International Dispute Settlement' (2007) 6 (2007) Law and Practice of International Courts and Tribunals 159
A Orakhelashvili, 'Overlap and Convergence: the relationship between jus ad bellum and jus in bello, 20 000 words' (2007) Journal of Conflict and Security Law, issue 2 2007, 157-196
A Orakhelashvili, 'State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong' (2007) 18(5), 2007, 955-970 European Journal of International Law, OUP, www.ejil.org
A Orakhelashvili, 'State Immunity and International Public Order Revisited' (2007) Vol. 49, German Yearbook of International Law, 2006 327
A Orakhelashvili, 'The International Court and Its Freedom to Select the Ground upon which It Will Base its Judgment' (2007) International and Comparative Law Quarterly 171
I Papanicolopulu, 'A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean' (2007) 38 Ocean Development & International Law 381 [...]
This article points out some of the issues that may arise during the delimitation of maritime boundary in a sea area where coastal states have proclaimed various maritime zones. Issues considered include delimitation in the presence of overlapping or coincident zones, the role of existing boundaries, use of all-purpose maritime boundaries, and the delimitation of future zones. Special reference is made to the Mediterranean Sea where coastal states have advanced various claims consisting of zones sometimes different from the ones provided for in the 1982 United Nations Convention on the Law of the Sea.
M Paparinskis, 'Republic of Latvia Materials on International Law 2006' (2007) 7 Baltic Yearbook of International Law 367
J Payne, 'Recipient Liability for Unlawful Dividends'  LMCLQ 7
J Prassl, 'Quistclose Trusts: In Search of Coherent Answers' (2007) 3 CSLR 51
WG Ringe, 'The European Company Statute in the context of Freedom of Establishment' (2007) 7 Journal of Corporate Law Studies 185 [...]
One of the key features of the new Europe-wide legal form "European Company" ("Societas Europaea" or "SE") is the possibility of transferring the company’s seat from one Member State to another without having to be wound up or to re-register. As this possibility does not exist for companies formed under national law, the formation of an SE will often present the only possibility for companies to transfer their incorporation and corporate headquarters between Member States. This is a big advantage and a milestone towards the European Internal Market. However, some doubts remain as to the practicability of the system. The mandatory linkage of the head office to the registered office within the same Member State according to Article 7 of the SE Regulation is very problematic and, in light of recent ECJ decisions such as Centros, Überseering and Inspire Art, may violate EC primary legislation. Why should companies that are formed under national law be allowed to have the head office in a Member State different from their registration state, while an SE—as an instrument of Community law and a symbol of the Internal Market—is not? Furthermore, the detailed procedural rules laid down in the Regulation are sometimes overprotective and may significantly reduce the attractiveness of the SE’s mobility. It is argued that Article 7 of the SE Regulation is secondary law that itself is inconsistent with the (primary) EC Treaty. Furthermore, the Member States also tend to be overprotective when enacting safeguard measures for the benefit of creditors, minority shareholders and employees. Here again, freedom of establishment does not allow protectionist measures that contravene the gist of the SE’s mobility.
article on the Überseering case and international jurisdiction issues
J Roberts, N. Crutcher and P. Verbrugge, 'Public Attitudes to Sentencing in Canada: Exploring Recent Findings' (2007) Canadian Journal of Criminology and Criminal Justice
J Roberts, 'Public Confidence in Criminal Justice in Canada: A Comparative and Contextual Analysis' (2007) Canadian Journal of Criminology and Criminal Justice
J Roberts and R. Hastings, 'Public Opinion and Crime Prevention: A Review of International Findings' (2007) Revue de l’Institut pour la Prevention de la Criminalite,
E Scotford, 'Trash or Treasure: Policy Tensions in EC Waste Regulation' (2007) 19(3) Journal of Environmental Law 367
H J Scott, 'Liability for the mass publication of private information in South African law: NM v Smith (Freedom of Expression Institute as Amicus Curiae)' (2007) 3 Stellenbosch Law Review 387
H J Scott, 'Review of LITIGATION IN ROMAN LAW by Ernest Metzger' (2007) 66 Cambridge Law Journal 234
H J Scott, 'The requirement of excusable mistake in the context of the condictio indebiti: Scottish and South African law compared' (2007) 124(4) South African Law Journal 827
R Taylor, 'Reversing the Retreat from Gillick' (2007) Child and Family Law Quarterly 81
M Tulibacka, 'Recent judgements of the European Court of Justice and the elusive goal of harmonisation of product liability law in Europe' (2007) Yearbook of Consumer Law
D Vaver, 'L’image publique des éditeurs et du droit d’auteur' (2007) 0.792361111111111 Les Cahiers de Propriété Intellectuelle 303 [...]
Translation into French by Prof. Ejan Mackaay of "Publishers & copyright: rights without duties?"
J Vella, 'Departing from the legal substance of transactions in the corporate field: the Ramsay Approach beyond the tax sphere' (2007) 7(2) Journal of Corporate Law Studies 243
J Vidmar, 'Montenegro's Path to Independence: A Study of Self-Determination, Statehood and Recognition' (2007) Hanse Law Review 73
V Bogdanor, S Vogenauer and T Khaitan, 'Should Britain Have a Written Constitution?' (2007) 78 The Political Quarterly 499
S Wallerstein, 'Criminalising Remote Harm and the case of Anti-democratic Activity' (2007) 28(6) Cardozo Law Review (volume of symposium in Honour of George Fletcher) 2697
Simon Whittaker, 'Form and Substance in the Harmonisation of Product Liability in Europe' (2007) (2007) Zeitschrift für Europäisches Privatrecht 858-71 [...]
This is a case-note criticising a decision of the ECJ in Case C-402/03 drawing (as the title suggests)a distinction between the Court's concern with the form of harmonsition while the substance is left to one side.
Simon Whittaker, 'Form and Substance in the Reception of EC Directives into English Contract Law' (2007) 3 European Review of Contract Law 381 [...]
The author explores some of the difficulties facing English lawyers in implementing EC directives in the area of 'contract law' and compares them with those facing lawyers in systems with codified laws.
Simon Whittaker, 'La responsabilité pour le fait personnel dans l’avant-projet de réforme du droit de la responsabilité: donner voix aux silences du Code civil?' (2007) 2007(1) Revue des contrats 89 [...]
This article criticises the suggested reforms to French extra-contractual liability for fault contained in the L’avant-projet de réforme du droit de la responsabilité (2005) (the 'Avant-projet Catala').
R Williams, 'When is an Error not an Error? Reform of Jurisdictional Review of Error of Law and Fact'  2007(Winter) Public Law 793
P Yowell, 'A Critical Examination of Dworkin\\\'s Theory of Rights' (2007) 52 American Journal of Jurisprudence 93
L Zedner and I Loader, 'Police beyond Law' (2007) vol.10, no.1 New Criminal Law Review 142 [...]
Critical review essay of Markus Dubber The Police Power: Patriarchy and the Foundations of American Government.
L Zedner, 'Preventive justice or pre-punishment? The case of control orders ' (2007) 60 Current Legal Problems 174
J Armour, 'European Corporate Insolvencies: the Race goes to the Swiftest?' (2006) 65 Cambridge Law Journal 504
J Armour and A. J. Walters, 'Funding Liquidation: a Functional View' (2006) 122 Law Quaterly Review 303
This paper reviews the case for and against mandatory legal capital rules. It is argued that legal capital is no longer an appropriate means of safeguarding creditors' interests. This is most clearly the case as regards mandatory rules. Moreover, it is suggested that even an ‘opt in’ (or default) legal capital regime is unlikely to be a useful mechanism. However, the advent of regulatory arbitrage in European corporate law will provide a way of gathering information regarding investors' preferences in relation to such rules. Those creditor protection rules that do not further the interests of adjusting creditors will become subject to competitive pressures. Legislatures will be faced with the task of designing mandatory rules to deal with the issues raised by ‘non-adjusting’ creditors in a proportionate and effective manner, consistent with the Gebhard formula.
Must policymakers seeking to replicate the success of Silicon Valley's venture capital market first copy other US institutions, such as deep and liquid stock markets? Or can legislative reforms alone make a significant difference? In this paper, we compare the economic and legal determinants of venture capital investment, fundraising, and exits. We introduce a cross-sectional and time series empirical analysis across 15 countries and 14 years of data spanning an entire business cycle. We show that liberal bankruptcy laws stimulate entrepreneurial demand for venture capital; that government programmes more often hinder than help the development of private equity, and that the legal environment matters as much as the strength of stock markets. Our results imply generalizable lessons for legal reform.
J Armour and A.J. Walters, 'The Proceeds of Office-holder Actions under the Insolvency Act: Charged Assets or Free Estate?' (2006) Lloyds’ Maritime and Commercial Law Quarterly 27
A Ashworth, 'Four Threats to the Presumption of Innocence' (2006) 10 International Journal of Evidence and Proof 241 [...]
A revised and improved version of my SALJ article, written for a British readership and dealing with attacks on the presumption of innocence.
A Ashworth, 'Four Threats to the Presumption of Innocence' (2006) 123 South African Law Journal 62 [...]
An exploration of the justifications for the presumption of innocence, and the various arguments for curtailing it by reversing the burden of proof in certain types of case.
R M Bagshaw, 'Monetary Remedies in Public Law - Misdiagnosis and Misprescription' (2006) 26(1) Legal Studies 4
N. W. Barber, 'Legal Pluralism and the European Union' (2006) 12(3) European Law Journal 306
R Bird, 'A moveable feast – law librarianship in the noughties' (2006) 14 Australian Law Librarian 7
R Bird, 'Legislative resources for the United States ' (2006) 6 Legal Information Management 172
A Bogg, 'Politics, Community, Democracy: Appraising CAC Decision-Making in the First Five Years' (2006) 35(3) Industrial Law Journal 245
A Bogg, 'The right to paid annual leave in the Court of Justice: the eclipse of functionalism' (2006) 31 European LR 892 [...]
Analysis of ECJ decision in Robinson-Steele, incorporating broader analytical perspective on the ECJ's interpretive approach under Working Time Directive (approx 8000 words)
A Bogg, 'Worker Representation in Collective Bargaining: Voluntarism in the UK' (2006) December Electronic Journal of Comparative Law [...]
Substantial critique of the persistence of the historical ideology of voluntarism in contemporary patterns of worker representation in the United Kingdom, placed in comparative perspective (approx 13000 words).
M Bosworth, 'Self-harm in women's prisons' (2006) 5 Criminology and Public Policy 157 [...]
Abstract: This is a brief overview of the literature and issues associated with self-harm in women's prisons. It served as an introduction to a longer paper by someone else and a response both of which I commissioned and edited for the journal. The journal is one of the official publications of the American Society of Criminology.
A Braun, 'Professors and Judges in Italy: it Takes Two to Tango' (2006) 26(4) Oxford Journal of Legal Studies 665
A Braun, 'Quando un trust è sham: Brevi riflessioni su recenti sviluppi giurisprudenziali in Inghilterra e sull’isola di Jersey' (2006) Trusts e attività fiduciarie 346
A Briggs, 'Jurisdiction over defences and connected claims' (2006) Lloyd's Maritime & Commercial Law Quarterly 447 [...]
Analysis of three decisions of European court on special jurisdiction under the Brussels Convention and Regulation
A Briggs and T C Neoupokoeva (trs), 'Recognition and enforcement of Russian Judgments in England' (2006) 2006-3 Vyestnik: Journal of International Legal Institute of the Ministry of Justice of the Russian Federation 77 [...]
Analysis of the rules of English private international law as they apply to the recognition and enforcement of Russian judgments in England
A Briggs, 'The meaning and proof of foreign law' (2006) Lloyd's Maritime & Commercial Law Quarterly '1 [...]
Analysis of renvoi and the proof of foreign law in local litigation in the light of Nielson v OPC.
S J Bright, 'Protecting the Small Business Tenant' (2006) 70 Conveyancer 137 [...]
article arguing that small business tenants needed the same kind of protection as is available to other consumers
R Burnett and S Maruna, 'The kindness of prisoners: strengths-based resettlement in theory and in action' (2006) 6 Criminology and Criminal Justice 83
N Calamita, 'Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings' (2006) 27 University of Pennsylvania Journal of International Economic Law 601
C Carlarne, 'Climate Change Policies an Ocean Apart: United States and European Union Climate Change Policies Compared' (2006) 14(3) Penn State Environmental Law Review 435 [...]
Global climate change threatens the integrity of the natural environment as well as the physical and social stability of the human environment. Since the Kyoto Protocol to the UNFCCC came into force in February 2005, countries all over the world have intensified their efforts to develop comprehensive national climate change systems. Regional climate change programs are growing in a seemingly haphazard manner within diverse and highly localized political and legal environments. There is, however, a dearth of research comparing the diverse tactics that key States are using to combat climate change. Accordingly, this article analyzes and compares the substantive and theoretical differences between the US and the EU’s climate change policies. Only by understanding the legal and political forces driving these regional approaches and by examining the root causes of the successes and failures of these policies will we be able to formulate effective long-term climate change policies. The goal of this article is to begin the process of assessing highly disparate political and legal approaches to managing climate change. One of the key rationales for this line of research is to provide policymakers with cogent and reliable data to use in formulating effective climate change policies. To this end, this article analyzes the basic principles of the climate change policies in practice in the US, EU, as well as in US state and localities and the UK as examples of sub-regional policies.
C Carlarne, 'Climate Change Policies an Ocean Apart: United States and European Union Climate Change Policies Compared,' (2006) 435 (May) 14 Penn St. Envtl. L. Rev.
C Carlarne and others, 'In-Credible Government: Legitimacy, Democracy, and Nongovernmental' (2006) 6 Public Organization Review 347 [...]
This article analyses emerging trans-global networks of governance that are coming to light within a post-democratic form of governance that relies upon specific technologies of credibility building, as opposed to universalistic mechanisms of representation. Using the NGO sector as a model, and using examples from fieldwork conducted in the unraveled contexts of Bosnia and Croatia, and the unraveling context of Ecuador over the past decade, we show how intervention within the global south and post conflict realms, although often couched using such master terms as democracy, development and freedom, are in fact geared towards the generation of political legitimacy and influence through relationships based upon the exchange of credibility.
C Carlarne, 'The Kyoto Protocol and the World Trade Organization: Reconciling Tensions Between Free Trade and Environmental Objectives' (2006) 17(1) Colorado Journal of International Environmental Law and Policy 45 [...]
This article analyses the intersection between international trade and environmental regimes. Increasingly, MEAs rely on trade measures to implement and enforce environmental obligations. Trade related environmental measures accentuate the existence of tensions and the necessity of clarifying the relationship between free trade and environmental objectives, as embodied by the WTO and MEAs such as the Kyoto Protocol.The Kyoto Protocol to the UNFCCC exemplifies the inevitable intersection of environmental and trade objectives. The UNFCCC and the Kyoto Protocol address the causes and consequences of global climate change. Kyoto, more than any existing MEA, is likely to impact state economies and international trade relations. The Kyoto Protocol promotes the UNFCCC goal of ‘stabilizing atmospheric concentrations of greenhouse gases at a level that would prevent dangerous anthropogenic interference in the climate system’. Limiting greenhouse gas emissions under Kyoto requires developed countries to modify primary economic structures, including transformations within energy, transportation, manufacturing, agriculture and investment sectors. Therefore, although Kyoto does not directly implicate trade provisions or contravene WTO rules, it has the potential to impact key sectors of the economy and international trade. Accordingly, the Kyoto Protocol provides an appropriate context for analyzing fundamental tensions between international trade and environmental regimes. Ultimately, this article suggests that it is essential that the WTO develop a conceptually sound framework for managing such issues. To this end, the article suggests that the WTO should modify its “constitution” through the adoption of an interpretative clause that provides clear principles for defining the relationship between the WTO and MEAs.
C Carlarne, 'The Kyoto Protocol and the WTO: Reconciling Tensions Between Free Trade and Environmental Objectives' (2006) 17 Colorado Journal of International Environmental Law & Policy 45
C Costello, 'The Bosphorus Ruling of the ECHR: Fundamental Rights and Blurry Boundaries in Europe' (2006) 6(1) Human Rights Law Review 87
C Costello and G Davies, 'The Case Law of the Court of Justice in the Field of Sex Equality Since 2000' (2006) Common Market Law Review 1567 [...]
Thematic review and evaluation of ECJ caselaw on sex equality from 2000 to 2006, including the general principle of equal treatment / non-discrimination.
S M Cretney, 'The Literature of Family Law' (2006) 40 Irish Jurist (NS) 17
A C L Davies, 'Le droit anglais face aux contrats administratifs: en l'absence de principes generaux garantissant l'interet public, une maison sans fondation?' (2006) 22(5) Revue Francaise de Droit Administratif 1039 [...]
Discussion of some of the problems with the English law of government contracts, for a French audience.
A C L Davies, 'Regno Unito - Lavori Occasionali e Continuita dell'Impiego: Riflessioni sul Caso Cornwall CC v Prater' (2006) Diritto delle Relazioni Industriali 1264 [...]
Casenote on Cornwall CC v Prater, in Italian!
A C L Davies, 'The Right to Strike Versus Freedom of Establishment in EC Law: The Battle Commences' (2006) 35 Industrial Law Journal 75 [...]
Commentary/extended casenote on Viking Line v ITF.
ISBN: 0305 9332
A C L Davies, 'Ultra Vires Problems in Government Contracts' (2006) 122(Jan) Law Quarterly Review 98
M Dempsey, 'What Counts as Domestic Violence? A Conceptual Analysis' (2006) 12 (2) (2006) William and Mary Journal of Women and the Law 301 [...]
This article analyses the conceptual structure of domestic violence and critiques various influential accounts of domestic violence operating in the criminal justice system, legal and sociological academia, and the domestic violence advocacy community.Section A presents a preliminary philosophical analysis of domestic violence, with the goal of furthering our understanding of the correct use of this concept.This analysis centers around three key elements of domestic violence: violence, domesticity, and structural inequality.Section B develops an explanatory model of domestic violence based upon these key elements.Section C examines and critiques four principal accounts of domestic violence, each of which reflects the conflicting ways in which the concept of domestic violence is used in the language and methodology of the criminal justice, academic, and advocacy communities. Finally, this essay endorses an account of domestic violence which roughly corresponds to that employed in the recent work of U.S. sociologist, Michael Johnson.
E Descheemaeker, 'Les héritiers de Lenel : la chaire royale de droit romain à Oxford (1948-2004) [Lenel's Heirs: the Regius Chair of Civil Law at Oxford, 1948-2004]' (2006) 84 Revue historique de droit français et étranger 613 [...]
The four incumbents of the Oxford Regius Chair of Civil Law in the second half of the 20th century share one remarkable feature, namely, that they all are related to Otto Lenel, the German initiator of modern Roman law studies. The connection is twofold, both personal (through teacher-pupil relationships) and intellectual, in that they have received and developed Lenel’s project. This project can be described as the restoration of the primacy of procedure in Roman law, as well as the putting back in order of the Roman law library. Professors Beatson and Zimmermann’s recent Jurists Uprooted helped to unveil this connection. The present shorter article aims at expounding it in a more systematic way by exploring the background to this relationship, as well as the link between each of the incumbents (H. F. Jolowicz, David Daube, Tony Honoré, Peter Birks) and Otto Lenel.
G Dinwoodie, 'Dilution's (Still) Uncertain Future' (2006) 105 Mich. L. Rev. First Impressions 98
G Dinwoodie, 'The International Intellectual Property Law System: New Actors, New Institutions, New Sources' (2006) 10 Marquette Intellectual Property Law Review 205 [...]
International intellectual property norms are now being developed by a wide range of institutions - some national, some international, and some that do not fit neatly into either category; by bodies designed to address intellectual property; by trade and other bodies; and by actors public, private, and indeterminate. This new wave of international norm creation not only augments a growing body of substantive norms but also raises difficult structural questions about the future development of the international intellectual property system. This essay, a lecture delivered to the Annual Meeting of the American Society of International Law in 2004, is being reprinted as part of a symposium on ?TRIPS after ten years.?
J Donoghue, 'Antisocial Behaviour Orders & Civil Liberties: Striking a Balance?' (2006) 163 The Prison Service Journal [...]
Antisocial behaviour orders (ASBOs) are increasingly being used to proscribe non-illegal behaviour that is disapproved of, or which does not conform to accepted social norms. In some circumstances, the use of ASBOs appears to over-ride legal convention for reasons of political pragmatism. This article looks at the questions raised about the value and status of civil liberties and human rights within anti social behaviour legislation, and also within the wider 'tough on crime' agenda.
S Douglas-Scott, ''Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland' case comment ' (2006) Common Market Law Review
S Douglas-Scott, 'A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis ' (2006) Common Market Law Review 619
D Dwyer, 'The Future of Assessors Under the CPR' (2006) 25 Civil Justice Quarterly 219
D Dwyer, 'The Rules of Evidence as an Expression of Political Morality: Stein, Foundations of Evidence Law' (2006) 5 Law Probability and Risk 75
D Dwyer, 'The Three Lives of Herbert Hart' (2006) 26 Oxford Journal of Legal Studies 411
D Dwyer, 'What does it Mean to be Free? The Concept of Free Proof in the Western European Legal Tradition' (2006) 3(1) International Commentary on Evidence 6
R Ekins, 'The Relevance of the Rule of Recognition' (2006) 31 Australian Journal of Legal Philosophy 95
P Eleftheriadis, 'After Aarhus' (2006) European Advocate 10
A Ezrachi, 'Behavioural Remedies in EC Merger Control – Scope and Limitations' (2006) 29(3) World Competition 459
A Ezrachi and D Gilo, 'EC Competition Law and the Regulation of Passive Investments Among Competitors' (2006) 26(2) Oxford Journal of Legal Studies 327
J M Finnis, 'Foundations of Practical Reason Revisited' (2006) 50 American Journal of Jurisprudence 109
S Fredman, 'From Deference to Democracy: the Role of Equality under the Human Rights Act 1998' (2006) 122(Jan) Law Quarterly Review 53
S Fredman, 'Human Rights Transformed: Positive Duties and Positive Rights'  2006(Autumn) Public Law 498
S Fredman, 'Transformation or Dilution: Fundamental Rights in the EU Social Space' (2006) 12(1) European Law Journal 41
M R Freedland, 'From the Contract of Employment to the Personal Work Nexus' (2006) 35(1) Industrial Law Journal 1
J Freedman, 'Why Taxing the Micro-business is not simple - A Cautionary Tale from the 'Old World' (2006) 2 Journal of the Australasian Tax Teachers Association 58
S Gardner, 'The Remedial Discretion in Proprietary Estoppel - Again' (2006) 122 Law Quarterly Review 492 [...]
Cited in Powell v Benney  EWCA Civ 1238, - (Lord Justice Peter Gibson)
John Gardner and T Macklem, 'Value, Interest, and Well-Being' (2006) 18 Utilitas 362
N Ghanea, 'From UN Commission on Human Rights to UN Human Rights Council: One step forwards or two steps sideways' (2006) 55(3) International and Comparative Law Quarterly 695
B Goold, 'Open to All? Regulating Open Street CCTV and the Case for 'Symmetrical Surveillance'' (2006) (Winter/Spring 2006) Criminal Justice Ethics 25(1) 3
B Goold, 'Open to All? Regulating Open Street CCTV and the Case for 'Symmetrical Surveillance'' (2006) 25(1) (Winter/Spring 2006) Criminal Justice Ethics 3
I Goold, Angela Ballantyne, Amy Pearn and Silvana Bettiol, 'Quality and safety of genetic testing in Australia and New Zealand: A review of the current regulatory framework' (2006) 3 Australia and New Zealand Health Policy
I Goold, 'Sounds Suspiciously like Property Treatment: Does Human Tissue Fit within the Common Law Concept of Property?' (2006) 7 UTS Law Review/Santa Clara Journal of International Law, Special joint issue
J Goudkamp, 'Can Tort Law be Used to Deflect the Impact of Criminal Sanctions? The Role of the Illegality Defence' (2006) 14 Tort Law Journal 20
S Green, 'A Game of Doctors and Purses' (2006) Medical Law Review 1
S Green, 'Can a Digitized Product be the Subject of Conversion?'  LMCLQ 568
L Green, 'Men in the Place of Women, from Butler to Little Sisters' (2006) 44 Osgoode Hall Law Journal 1
C Greenhalgh and M Rogers, 'The value of innovation: The interaction of competition, R&D and IP’' (2006) Vol. 35 Research Policy,
J J W Herring and Shazia Choudhry, 'Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention'  Public Law 722 [...]
Article discussing relevance of HRA to domestic violence cases.
J J W Herring and Rachel Taylor, 'Relocating Relocation' (2006) Child and Family Law Quarterly 517 [...]
Article on relocation of children
J J W Herring and others, 'Righting Domestic Violence' (2006) 16 International Journal of Law Policy and the Family 1 [...]
Article considering the potential impact of the Human Rights Act on domestic violence cases.
C Hodges, 'Nordic Compensation Schemes for Drug Injuries' (2006) Journal of Consumer Policy [...]
This is due out any day and has it's been proof-read some weeks ago - possibly the June edition, although might just be September.Does this count?There are various other articles, but this is the most prestigious.
A Johnston, 'Free Allocation of allowances under the EU Emissions Trading System – legal issues' (2006) 6 Climate Policy 115
A Kavanagh, 'Parliamentary Intent, Statutory Interpretation and the Human Rights Act 1998' (2006) 26 Oxford Journal of Legal Studies 179
J Kaye, 'Police collection and access to DNA samples' (2006) 2(1) Genomics, Society and Policy 16
M Kurkchiyan, 'The Armenian Media in Context: Soviet Heritage, the Politics of Transition, and the Rule of Law' (2006) 14(2) Demokratizatsiya: The Journal of Post-Soviet Democratization 266
M Kurkchiyan, 'The Armenian Media in Context: Soviet Heritage, the Politics of Transition, and the Rule of Law, , vol. 13, no. 2, 2006.' (2006) 13 Democratizatsiya: The Journal of Post-Societ Democratization, Heldref Publications 266
B Lange, 'Searching for the Best Available Techniques - Open and Closed Norms in the Implementation of the EU Directive on Integrated Pollution Prevention and Control' (2006) 2 International Journal of Law in Context 67
L Lazarus, 'Conceptions of Liberty Deprivation' (2006) 69 Modern Law Review 738
I Loader, 'Fall of the 'Platonic Guardians': Liberalism, Criminology and Political Responses to Crime in England and Wales' (2006) 46 (4) British Journal of Criminology 561
I Loader, 'Policing, Recognition and Belonging' (2006) 605 The Annals of the American Academy of Political and Social Science 201
M R Macnair, 'Law and State as Holes in Marxist Theory' (2006) 34(3) Critique 211
D J McBarnet, 'After Enron: will whiter than white collar crime still wash ?' (2006) 46 (6) British Journal of Criminology 1091
J C McCrudden, 'Legal Research and the Social Sciences' (2006) 122(Oct) Law Quarterly Review 632
J C McCrudden and Stuart Gross, 'WTO Government Procurement Rules and the Local Dynamics of Procurement Policies: A Malaysian Case Study' (2006) 17 European Journal of International Law 151 [...]
Part of a symposium issue on "global administrative law", this chapter considers the relationship between Malaysian public procurement law and emerging trends in international law regulating public procurement
S Meredith, 'First Year Law Students, Legal Research Skills and Electronic Resources' (2006) Oxford Legal Studies Research Paper [...]
Abstract: This paper reports on a case study of a stand-alone legal research skills programme in the Oxford University Law Faculty. The research methodology involved interviews, surveys and observation of students at two points in 2004 and 2006. The study finds that students increasingly use networked computers as their primary information source, with most students using legal databases to find cases, statutes and articles on their reading lists. Students' skills are better developed in citation searching than in subject searching and in using the more complex features of databases. Formative assessment, represented in 'getting through the reading list' for weekly tutorials and essays, is the crucial factor in providing opportunities for students to develop citation searching skills. The study also found that students handle different resources differently, being more likely to read law reports on the computer screen than articles, and using electronic law reports as part of a computer-based study strategy. The report describes how students use the internet to search for materials when writing essays, and considers the question of plagiarism. It recommends that students should be given successive opportunities to do research as part of their everyday study to enable them to develop better research skills and practices.
K Moller, 'On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the Federal Constitutional Court'  Public Law 457
K Moller, 'Verfassungsgerichtlicher Grundrechtsschutz gegen Gemeinschaftsrecht (Constitutional Protection from European Community Law)' (2006) Jura 91
J Morgan, 'The rise and fall of the general duty of care' (2006) 22 Professional Negligence 206
P Nebbia, 'Standard form contract between unfair terms control and competition law' (2006) 31 European Law Review 102
A Orakhelashvili, 'Armed Activities on the Territory of the Congo (DRC v Rwanda)' (2006) International and Comparative Law Quarterly 753
A Orakhelashvili, 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction' (2006) 11 (2006) Journal of Conflict and Security Law 119
A Orakhelashvili, 'Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello' (2006) 75 (2006) Nordic Journal of International Law 371 [...]
This article examines the treatment of the law of armed conflicts in the period coinciding with the "war on terror." Considering the relevant evidence, the article demosntrates that the way in which the law of armed conflicts operates is that of consistency, stability and transparency, and that therefore the claims that this body of law has undergone changes in view of the recent activities related to "war on terror," ensuing wars, or "humanitarian" intervention are unsustainable.
A Orakhelashvili, 'The Idea of European International Law' (2006) 17 (2006) European Journal of International Law 316
A Orakhelashvili, 'The Legal Framework of Peace Operations by Regional Organisations' (2006) 11 (2006) International Peacekeeping: Yearbook of International Peace Operations 111
E Palser, 'Bankruptcy Petitions (Difficulties of bringing bankruptcy proceedings based on unassessed solicitors' fees)' (2006) 150(5)  Solicitors Journal 152 [...]
Difficulties of bringing bankruptcy proceedings based on unassessed solicitors' fees
E Palser, 'Owusu v Jackson – the End for Forum Non Conveniens?' (2006)  15(1) Nottingham Law Journal 32 [...]
jurisdiction and forum non conveniens
E Palser, 'Rectification for unilateral mistakes: how heavy is the burden of proof? (Rectification in the light of Wimpey v VI Construction)' (2006)  Lloyd's Maritime and Commercial Law Quarterly 139 [...]
Rectification in the light of Wimpey v VI Construction
M Paparinskis, 'Republic of Latvia Materials on International Law 2005' (2006) 6 Baltic Yearbook of International Law 383
F Pirie, 'Legal autonomy as political engagement: the Ladakhi village in the wider world' (2006) 40 Law and Society Review 77
F Pirie, 'Secular morality, village law and Buddhism in Tibetan societies' (2006) 12 Journal of the Royal Anthropological Institute 173
J Raz, 'The Problem of Authority: Revisiting the Service Conception' (2006) 90 Minnesota Law Review 1003
J Raz, 'The Trouble with Particularism (Dancy's Version)' (2006) 115 Mind 99
J Roberts, 'Reducing the Use of Custody as a Sanction: A Review of Recent Strategies' (2006) Judicial Studies Institute Journal, 2006
J Roberts, 'Reforming Conditional Sentencing: Evaluating Recent Legislative Proposals' (2006) Criminal Law Quarterly
J Rowbottom, 'Media Freedom and Political Debate in the Digital Era' (2006) Modern Law Review 489
J Rowbottom, 'Obscenity Laws and the Internet: Targeting the Supply and Demand'  Criminal Law Review 97
D Sarooshi, 'The Move from Institutions: the case of the WTO' (2006) 100 American Society of International Law Proceedings 298
H J Scott, 'Omnes unius aestimemus assis: A note on Liability for Defamation in Catullus V' (2006) 3 Roman Legal Tradition 95 [...]
This article investigates the significance of Catullus V for the debate regarding the evolution of liability for defamation in Roman law.
H J Scott, 'Restitution of Extra-Contractual Transfers: Limits of the Absence of Legal Ground Analysis' (2006) 14 Restitution Law Review 93
S Talmon, 'Chypre : écueil pour la Turquie sur la voie de l`Europe' (2006) 51 (2005) Annuaire français de droit international 85
S Talmon, 'Diplomacy under Occupation. The Status of Diplomatic Missions in Occupied Iraq' (2006) 6 Anuario Mexicano de Derecho Internacional 461
S Talmon, 'The EU-Turkey Controversy over Cyprus or a Tale of Two Declarations' (2006) 5 Chinese Journal of International Law 579
R Taylor, 'Children's Privacy and Press Freedom in Criminal Cases' (2006) Child and Family Law Quarterly 269
J Herring and R Taylor, 'Relocating Relocation' (2006) Child and Family Law Quarterly 517
A Tzanakopoulos, 'Floating Storage Units as Ships under the 1992 CLC/Fund Regime: The View from the Hellenic Supreme Court' (2006) 59 Revue hellénique de droit international 701
F Varese, 'How Mafias Migrate: the case of the `Ndrangheta in Northern Italy' (2006) 40(2) Law and Society Review 411
F Varese, 'The Economics of the Camorra' (2006) Global Crime 268 [...]
F Varese, 'The Secret History of Japanese Cinema: The Yakuza Movies' (2006) 7(1) Global Crime 105
D Vaver, 'Advertising Using an Individual's Image: a Comparative Note' (2006) 122 (July 2006) Law Quarterly Review 362 [...]
Examines the development of privacy law in Europe, the US and elsewhere to disallow advertising using a person's image, and compares & criticizes English developments.
D Vaver and S Basheer, 'Popping Patented Pills: Europe and a Decade's Dose of TRIPs' (2006) 28 (5) European Intellectual Property Review 282
The paper argues that publishers historically owed duties of fair access, price & contract in return for the rights they were granted, and that such duties continue to be morally owed to the public. Bibliotheksdienst is the journal of the German Library and Information Association (Bundesvereingung Deutscher Bibliotheks und Informationsberbände).
S Vogenauer, 'An Empire of Light? II: Learning and Lawmaking in Germany Today' (2006) 26(4) Oxford Journal of Legal Studies 627
S Vogenauer, 'Zur Geschichte des Präjudizienrechts in England' (2006) Zeitschrift für Neuere Rechtsgeschichte 48 [...]
History of the doctrine of precedent in English law.
S R Weatherill, 'Anti-doping revisited - the demise of the rule of 'purely sporting interest'?' (2006) 27 European Competition Law Review 645
S R Weatherill, 'Recent developments in the law governing the free movement of goods in the EC’s internal market' (2006) 2 European Review of Contract Law 90
S R Weatherill, 'The constitutional competence of the EU to deliver social justice' (2006) 2 European Review of Contract Law 136
Simon Whittaker, 'On the Development of European Standard Contract Terms' (2006) 2 European Review of Contract Law 51 [...]
This article considers the desirability of the development of sector-specific European standard contract terms and puts forward four main reasons why such a development should be given a cool reception.
Simon Whittaker, 'Precedent in English Law: A View from the Citadel' (2006) 14 European Review of Private Law 705 [...]
This article attempts to explain the doctrine and practice of judicial use of precedent in English law to lawyers from other and especially non common law systems.
D Wyatt, 'Could a \'Yellow card\' for national parliaments strengthen judicial as well as political policing of subsidiarity?' (2006) 2006 (2) Croatian Yearbook of European Law & Policy 1 [...]
It is argued that subsidiarity should be interpreted, in accordance with the principle of effectiveness, as requiring that the Community should only act where the objectives of the proposed action can only be achieved at Community level. Subsidiarity has not so far been an effective brake on action by the European institutions, and the Court's scrutiny of Community acts for compliance with subsidiarity has been undemanding. The Constitution Treaty seeks to confirm and strengthen application of subsidiarity. Monitoring by national parliaments, and in particular the possibility for one third to object to a proposal on subsidiarity grounds, thus "showing a yellow card," could lead to improved compliance with subsidiarity by the lawmaking institutions; and the "yellow card" procedure could change the dynamics of judicial enforcement of subsidiarity. Where national parliaments "raised a yellow card," but the Commission maintained its draft, one possibility (which the present writer would advocate) would be that in any subsequent judicial proceedings the Court of Justice would require the Commission to demonstrate that the national parliaments had made a manifest error of appraisal in objecting to the draft act on subsidiarity grounds. Giving teeth to subsidiarity by entrusting national parliaments with responsibility for monitoring its application, and reinforcing that responsibility with an appropriate judicial response from the Court of Justice, could enhance the sense of "ownership" of the European project at national level. Although it appears unlikely that the Constitution Treaty will come into force, that fact need not prevent the introduction by other means of subsidiarity monitoring by national parliaments, and the adoption by the Court of Justice of the approach indicated.
A L Young, 'Hunting Sovereignty: Jackson v Attorney General'  2006(Summer) Public Law 187
L Zedner, 'Liquid Security: Managing the market for crime control' (2006) 6 (2) Criminology and Criminal Justice 267 [...]
This article examines attempts to regulate the growing private security market drawing on the literatures of economic analysis of law and regulation.
L Zedner, 'Neither safe nor sound? The perils and possibilities of risk' (2006) 48/3 Canadian Journal of Criminology and Criminal Justice 423 [...]
Examines the implications of risk reduction as a basis for penal policy and explores how adjacent social scientific disciplines conceive, deploy, and respond to risk.
L Zedner, 'Policing before and after the Police: the historical antecedents of contemporary crime control' (2006) 46 British Journal of Criminology 78 [...]
Pre-published since early 2005 on Oxford University Website. Print version should appear early 2006.Compares current developments in the privatisation of security with 18thC markets in policing and prosecution.
L Zedner, 'Pre-crime and post-criminology?' (2006) 11 (2) Theoretical Criminology 261
A A S Zuckerman, 'A Collossal Wreck – the BCCI Three Rivers litigation' (2006) 25 Civil Justice Quarterly 287
A A S Zuckerman, 'Tariffe Forensi e Libera Prestazione di Servizi Professionali; Fixed Minimum Legal Fees' (2006) 39(1) Rassegna Forense 191 [...]
pp. 191-203 are in English, pp. 205-221 are in Italian and include additional notes on the translation.
J Armour and Conaglen, M. D. J., 'Directorial Disclosure' (2005) 64 Cambridge Law Journal 48
J Armour, 'La Reforma de los Procedimientos de Recuperación de Empresas en Crisis en el Reino' (2005) 3 Revista de Derecho Concursal y Paraconcursal 403
J Armour and R.J. Mokal, 'Reforming the Governance of Corporate Rescue: The Enterprise Act 2002' (2005) Lloyds’ Maritime and Commercial Law Quarterly 28 [...]
English corporate insolvency law has been reshaped by the Enterprise Act 2002. The Act was intended to 'to facilitate company rescue and to produce better returns for creditors as a whole'. Administrative receivership, which placed control of insolvency proceedings in the hands of banks, is for most purposes being abolished. It is being replaced by a 'streamlined' administration procedure. Whilst it will still be possible for banks to control the appointment process, the administrator once in office owes duties to all creditors and must act in accordance with a statutory hierarchy of objectives. In this article, we seek to describe, and to evaluate, this new world of corporate rescue.
A Ashworth and Elaine Player, 'Criminal Justice Act 2003: the Sentencing Principles' (2005) 68 Modern Law Review 822 [...]
A critical review of the major sentencing provisions introduced by the Criminal Justice Act 2003.
K Baker, 'Assessment in youth justice: professional discretion and the use of Asset' (2005) 5 Youth Justice 106
N C Bamforth, 'Political Accountability in Play: The Budd Inquiry and David Blunkett’s Resignation'  Public Law 229 [...]
Note on ministerial responsibility and inquiry procedures.
N C Bamforth, 'The role of philosophical and constitutional arguments in the same-sex marriage debate: a response to John Murphy' (2005) 17 Child & Family Law Quarterly 165 [...]
A response to another author's critique of my earlier work. Argues that the case for legal recognition of same-sex partenrship rights requires use of philosophical and constitutional arguments, not just case law analogies.
N. W. Barber, 'Professor Loughlin’s Idea of Public Law' (2005) 25 Oxford Journal of Legal Studies 157
N. W. Barber, 'Subsidiarity in the Draft Constitution' (2005) 11 European Public Law/ Kluwer 197
N. W. Barber, 'The Limited Modesty of Subsidiarity' (2005) 11(3) European Law Journal 308
A Bogg, 'Employment Relations Act 2004: Another False Dawn for Collectivism?' (2005) 34(1) Industrial Law Journal 72
M Bosworth and others, 'Doing Prison Research: Views from Inside' (2005) 11 Qualitative Inquiry 1
M Bosworth, 'Gender, Risk and Recidivism' (2005) 3 Criminology and Public Policy 181
A Briggs, 'A Note on the Application of the Statute Law of Singapore within its Private International Law' (2005) Singapore Journal of Legal Studies 189 [...]
Analysis of the problems of interpreting legislation which is silent as to its international reach.
A Briggs, 'Distinctive aspects of the conflict of laws in common law systems: Autonomy and agreement in the conflict of laws' (2005) 308 The Doshisha Hogaku (The Doshisha Law Review) 21 [...]
Examination, for the benefit of a civilian audience, of the extent to which the rules of the common law conflict of laws may be seen as dependent on private law notions of agreement and consent.
A Briggs, 'Forum non conveniens and Ideal Europeans'  Lloyd's Maritime and Commercial Law Quarterly 378 [...]
Analysis of the principle of reflexive effect in the interpretation of the Judgments Regulation
A Briggs, 'The Death of Harrods: Forum non Conveniens and the European Court' (2005) 121 Law Quarterly Review 535 [...]
The scope of the doctrine of forum non conveniens in cases where jurisdiction is founded on the Judgments Regulation (44/2001/EC)
A Briggs, 'Thre Impact of Recent Judgments of the European Court on English Procedural Law and Practice' (2005) 124 (2005) II Zeitschrift fur Schweizerisches Recht 231 [...]
Examination of recent developments and assessment of their weaknesses.
S J Bright and others, 'Personal Liability in Proprietary Estoppel' (2005) 69 The Conveyancer 14 [...]
Argues that in cases of estoppel relating to land the "representor" (A) is liable to the "representee" (B), and that this personal liability survives a transfer of the land to C.
S J Bright, 'Procuring the Notice to Quit: A Public Law Challenge' (2005) 8 Journal of Housing Law 6 [...]
Discusses the Court of Appeal case in McCann v Birmingham and asks whether the local authority's encouragement to serve a notice to quit can be challenged in public law.
S J Bright and B McFarlane, 'Proprietary Estoppel and Property Rights' (2005) 64(2) Cambridge Law Journal 449
S J Bright, 'Tolerated Trespass and Stock Transfer' (2005) 2005 (8) Journal of Housing Law 15
R Burnett, 'More than accommodation, less than prison: raising the profile of approved premises' (2005) 10 Vista: Perspectives on Probation 2
R Burnett, S Bachelor and F McNeill, 'Reducing reoffending: lessons from psychotherapy and counselling' (2005) 61 Criminal Justice Matters 32
R Burnett and F McNeill, 'The place of the officer-offender relationship in assisting offenders to desist from crime' (2005) 52 Probation Journal 221
A S Burrows, 'Unravelling Proprietary Restitution: a Response to Professor Lionel Smith' (2005) Canadian Business Law Journal 424
C Carlarne, 'Saving the Whales in the New Millennium: International Institutions, Recent Developments & the Future of International Whaling Policies' (2005) Virginia Environmental Law Journal 1 [...]
This article analyzes recent developments in international whaling law, focusing on the institutional structures and the relationship between the International Whaling Commission (IWC) and the Convention on the International Trade in Endangered Species (CITES) and on the probability of Japan and Norway successfully leading an effort to derail preservationist policies. The article briefly discusses the history of whaling, provides a brief overview of the relevant international institutions, focusing on the IWC and CITES, examines the cultural and ethical perspectives of the main parties to this debate, considers the future of the IWC and CITES, and suggests how the international community must modify its approach in order to maintain the existence and integrity of central standard setting bodies and meaningful international whaling policies.
C Costello, 'Ireland's Nice Referenda' (2005) 1(3) European Constitutional Law Review 357
C Costello, 'The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?' (2005) 7(1) European Journal of Migration Law 35
P P Craig, 'European Governance: Executive and Administrative Power under the New Constitutional Settlement' (2005) 3(2-3) International Journal of Constitutional Law 407
P P Craig, 'European Governance: Executive and Administrative Powers under the New Constitutional Settlement' (2005) 3 International Journal of Constitutional Law 407 [...]
Analysis of the distribution of executive power under the Constitutional Treaty
P P Craig, 'Theory, ‘Pure Theory’ and Values in Public Law' (2005) Public Law 440 [...]
Relationship between theory and value in public law
S M Cretney, 'The Literature of Family Law' (2005) 40 Irish Jurist 17
M Dempsey, 'Rethinking Wolfenden: Prostitute-Use, Criminal Law and Remote Harm'  Criminal Law Review 444 [...]
This article critiques the Wolfenden Committee’s conclusion that criminalising prostitute-use is inconsistent with the liberal harm principle. Section 1 evaluates recent empirical evidence challenging Wolfenden’s assumptions regarding prostitution. Section 2 analyses the use of forced-prostitutes as a direct harm offence of rape. Section 3 presents a new approach to criminalising the conduct of prostitute-users, and sketches a prima facie case in favour of criminalising solicitation for prostitute-use as an abstract endangerment offence.
C Donnelly, 'EUROPE\'S AREA OF FREEDOM, SECURITY AND JUSTICE'   Public Law 889 [...]
C Donnelly, 'Leonard Cheshire Again and Beyond: Private Contractors, Contract and s.6(3)(b) of the Human Rights Act'   Public Law 785 [...]
Reflects on the Court of Appeal ruling in R. (on the application of Heather) v Leonard Cheshire Foundation, which held that a charitable organisation that contracted with a local council to provide residential accommodation was not a "public authority" under the Human Rights Act 1998 s.6(3)(b). Discusses the justifications for holding private contractors accountable for human rights violations, the arguments against such a policy and the shortcomings of contractual human rights remedies compared to those available under s.6(3)(b). Considers the circumstances under which s.6(3)(b) might be extended to private contractors following the House of Lords ruling in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank.
J M Eekelaar, 'Deciding for children' (2005) 7 Australian Journal of Professional and Applied Ethics 66 [...]
Discussion of the relationship between deciding issues about children on the basis ofrights and on the basis of welfare
J M Eekelaar, 'Miller v Miller: the Descent into Chaos' (2005) 35 Jordans/Family Law 870 [...]
Criticism of Court of Appeal decision on allocation of assets on divorce
J M Eekelaar and Mavis Maclean, 'The Significance of Mariage: Contrasts between White British and Ethnic Minority Groups in England' (2005) 27 Law & Policy 379 [...]
Report of data from empirical study on the understanding of the purpose of marriage and obligations arising in domestic relationships, demonstrating differences between white British and ethnic minority respondents.
R Ekins, 'Secular Fundamentalism and Democracy' (2005) 8 Markets & Morality 81
R Ekins, 'The Authority of Parliament — A Reply to Professor Joseph' (2005) 16 King?s College Law Journal 51
P Eleftheriadis, 'Constitutional Reform and the Rule of Law in Greece' (2005) 28 West European Politics 317 [...]
A critical analysis of the last ten years of constitutional developments in Greece
TAO Endicott, 'The Subsidiarity of Law and the Obligation to Obey' (2005) 50 American Journal of Jurisprudence 233 [...]
Law is a morally valuable institution, because every community with a legal system has valuable institutional facilities to coordinate the life of the community in a way that is general and systematic. In every legal system, the value of those facilities yields a moral obligation to obey some laws. But the law’s role in guiding conduct is subsidiary to the responsibility to act with a principled attention to the good of persons, and human law by nature is arbitrary in its application in some cases. The combination of its arbitrariness and its subsidiary role mean that there is no general obligation to obey the law.
TAO Endicott and others, 'Vagueness in the Scope of Copyright' (2005) 121 Law Quarterly Review 657 [...]
The extravagant vagueness in the scope of copyright protection is not itself a defect in the law. But it gives appellate courts a responsibility to articulate principles to guide decision-makers in resolving copyright disputes. And it gives rise to a special need for an adjudicative process that will serve the purposes of copyright protection.
L Ferguson, 'Trial by Proxy: How s.15 Removes Age from Adolescence' (2005) Journal of Law and Equality 84
J M Finnis and Patrick H. Martin, 'Benedicam Dominum: Ben Jonson\\\'s Strange 1605 Inscription' (2005) Times Literary Supplement, 4 November 2005 12 [...]
Examination of the evidence relating to Ben Jonson's search and summons warrant from the Privy Council in the aftermath of the Gunpowder Treason, in the light of other contemporary manuscripts and records.
J M Finnis, 'Helping Enact Unjust Laws Without Complicity in Injustice' (2005) 49 American Journal of Jurisprudence 15646 [...]
Deploys an analysis of the relation between legal materials such as statutes and the propositions of law that those materials make true in order to show what are and are not the implications of moral teaching against supporting legislative proposals to permit acts that a state cannot justly permit.
J M Finnis, 'Self-referential (or Peformative) Inconsistency: its significance for truth' (2005) 78 Proceedings of the American Catholic Philosophical Association 13 [...]
Performatively inconsistent, self-refuting propositions are not logically incoherent, or meaningless in themselves, or semantically paradoxical (such as “This sentence is false.”). Rather, because they have a definite reference, they are false because they are inconsistent with the facts that are given in and by any assertionof them. Thus they are not in themselves self-refuting, but to try to assert any of them is self-refuting. To show why this is so, one must show that performative inconsistency depends on the “implicit commitments” of the interlocutor. For example, what is entailed by “someone asserts that p” depends on what is meant by “assert.” As the concept of “implicit commitment” suggests, an assertion can beperformatively inconsistent only if it is located in a universe of rational discourse and is treated as an authentic contribution to such discourse. Thus sceptical arguments that aim to deny that knowledge is not a good are performatively self-refuting,for in asserting that p, one also asserts that one accepts (believes) that p is true. Itis absurd and self-contradictory to assert “p” if the assertion could imply “p, butin asserting this, I don’t care whether p is true or not.”
J M Finnis, 'The Thing I am': Personal Identity in Aquinas and Shakespeare' (2005) 22 Social Philosophy & Policy 250 [...]
Analyses, with illustrative reference to Aquinas and Shakespeare, the four irreducibly distinct kinds of explanation of personal identity, which yield four basic senses of "personal identity" and kinds of way in which one is or can be the same though partly different. Special topics include marriage, humiliation, repentance, and decay.
E Fisher, 'Law, Precaution and Principles of Good Administration' (2005) 52(6) Water Science and Technology 19 [...]
3,500 word article for a non-lawyer audience on the interface between public administration and the precautionary principle in the EU
S Fredman, 'Changing the Norm: Positive Duties in Equal Treatment Legislation' (2005) 12 Maastricht Journal of European and Comparative Law 369 [...]
This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model ains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland,Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a ecognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how wemight achieve a fundamental and non-derogable core of rights within a proactive model
S Fredman, 'Providing Equality: Substantive Equality and the Positive Duty to Provide' (2005) 21 South African Journal on Human Rights 163 [...]
Substantive equality and positive duties to redress disadvantage in society, a critical comparison of South African, Canadian and ECHR approaches to the relationship between substantive equality and socio-economic rights
J Freedman, 'Converging Tracks? Recent Developments in Canadian and UK Approaches to Tax Avoidance' (2005) 53 Canadian Tax Journal 1038 [...]
Analysis of the Canadian and UK courts' approaches to general principles of tax avoidance
Gagliardone, 'Virtual Enclaves or Global Networks? The Role of Information and Communication Technologies in Development Cooperation' (2005) Psychnology 3
S Gardner, 'Direct Action and the Defence of Necessity'  May Criminal Law Review 371
Is an attack on property capable of being analogized as an assault, on the personality of the owner instead of on the body? The laws of burglary and property defence suggest that the historical answer is complicated; both theory of justification and excuse and property theory can lend insights.An expanded version of 'Property, Personality and Violence', appearing in "Properties of Law".
N Ghanea and L Rahmani, 'A review of the 60th session of the commission on human rights' (2005) International Journal of Human Rights 125
N Ghanea and A Melchiorre, 'A Review of the 61st Session of the Commission on Human Rights' (2005) International Journal of Human Rights 507 [...]
This report seeks to analyse the main highlights of this year's session of the United Nations Commission on Human Rights. The Commission was set up in 1947 and is the UN's principal human rights body. It is currently the subject of major reform proposals stemming primarily from the UN Secretary-General and agreed upon, in general terms by member states at the 14–16 September 2005 World Summit. The review below, focusing on the main country and thematic issues discussed at the March–April 2005 session, will be indicative of how badly and in what ways reform of the Commission on Human Rights is required.
ISBN: ISSN 1364-2987
I Goold, 'Should Older and Postmenopausal Women Have Access to Assisted Reproductive Technology?' (2005) 24(1) Monash Bioethics Review 27
L Green, 'General Jurisprudence: a 25th Anniversary Essay' (2005) 25(4) Oxford Journal of Legal Studies 565
S Green, 'The Risk Pricing Principle: A Pragmatic Approach to Causation and Apportionment of Damages' (2005) Law, Probability and Risk 159
L Green, 'Three Themes from Raz' (2005) 25 Oxford Journal of Legal Studies 503
C Greenhalgh and M Longland, 'Running to stand still? – The value of R&D, patents and trade marks in innovating manufacturing firms’' (2005) Vol. 12 International Journal of the Economics of Business
C Greenhalgh, 'Why does market capitalism fail to deliver a sustainable environment and greater equality of incomes?' (2005) Volume 29 Cambridge Journal of Economics
J J W Herring, 'Farewell Welfare?' (2005) Journal of Social Welfare and Family Law 159 [...]
Article on the welfare principle
Article on mistaken consent in sexual reltions.
J J W Herring, 'Why Financial Orders on Divorce Should Be Unfair' (2005) 2005 19 International Journal of Law Policy and the Family '1 [...]
Article on financial orders on divorce
Laura Hoyano, 'Youth Justice and Criminal Evidence Act 1999: Special Measures Directions—Compliance with Article 6' (2005) 69 Journal of Criminal Law 488 [...]
evaluates the decision of the House of Lords in Camberwell Green Youth Court ex parte D  UKHL 4,  1 WLR 393, which held that mandatory Special Measures Directions for child witnessesunder the Youth Justice and Criminal Evidence Act 1999 in principle comply with ECHR Article 6.
A Wilcox, C Hoyle and R Young, 'Are Randomised Controlled Trials Really the "Gold Standard" in Restorative Justice Research?' (2005) 3 British Journal of Community Justice 39
R Young, C Hoyle, K Cooper and R Hill, 'Informal Resolution of Complaints Against the Police: A quasi-experimental test of restorative justice' (2005) 5 Criminal Justice 279
E Hudson and S Waller, 'Droit de suite down under: should Australia introduce a resale royalties scheme for visual artists' (2005) 10 Media & Arts Law Review 1
A Kavanagh, 'Pepper v Hart and Matters of Constitutional Principle' (2005) 120 Law Quarterly Review 98
A Kavanagh, 'Unlocking the Human Rights Act: The Radical" Approach to Section 3(1) Revisited"' (2005) European Human Rights Law Review 259
This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are required to decide cases on the basis that the earlier decision was correctly decided.
D Leczykiewicz, 'Common Commercial Policy: the Expanding Competence of the European Union in the Area of International Trade' (2005) 6 German Law Journal 1673-1686
A V Lowe, 'Clear and Present Danger: Responses to Terrorism' (2005) Vol 54, Part 1, January 2005 International & Comparative Law Quarterly 185
A V Lowe, 'The ITLOS Opinions of Judge Ivan Shearer' (2005) Vol 24, 2005 Australian Year Book of International Law 145
J C McCrudden, 'Thinking About the Discrimination Directives' (2005) 1 European Anti-Discrimination Law Review [...]
Brief discussion of ways of thinking about recent EU anti-discrimination directives, exploring some of their theoretical implications.
ISBN: 2 930399 14 7
K Moller, 'Der Ehebegriff des Grundgesetzes und die gleichgeschlechtliche Ehe (The Concept of Marriage under the Basic Law, and Same-Sex Marriage)' (2005) Die Öffentliche Verwaltung 64
K Moller, 'Selbstmordverhinderung im freiheitlichen Staat (The Prevention of Suicide, and the Liberal State)' (2005) Kritische Vierteljahresschrift 230
P Nebbia, 'law as tradition and the europeanization of contract law: a case study' (2005) yearbook of european law 363 [...]
Examines certain aspects of the implementation of Directive 93/13 on unfair terms in consumer contracts in italy and in the UK and investigates the extent to which judicual interpretation of the Directive has been affected by the legal tradition on which it is superimposed
W Njoya and R. Hobbs, 'Regulating the European Labour Market: Prospects and Limitations of a Reflexive Governance Approach' (2005) 43 British Journal of Industrial Relations 297 [...]
This article reviews developments in European Union employment policy from the perspective of reflexive governance. Reflexive governance instruments have a procedural orientation and provide a structural framework or steering mechanism to facilitate a process of self-regulation. Recent developments in relation to the Employment Framework Directive, the European Employment Strategy and the Working Time Directive highlight some of the prospects and limitations of this reflexive approach to regulating employment relations and the potential impact on the UK labour market. These developments indicate that the hopes invested in the reflexive approach remain to be fulfilled.
D P Nolan, 'Reforming Liability for Psychiatric Injury in Scotland: a Recipe for Uncertainty?' (2005) 68 Modern Law Review 983 [...]
A paper in the Reports section of the MLR on the Scottish Law Commission's Report on Liability for Psychiatric Injury. In the paper, I summarise the Report and subject it to a detailed critique.
D P Nolan, 'The Distinctiveness of Rylands v Fletcher' (2005) 121 Law Quarterly Review 421
A Orakhelashvili, 'International Public Order and the International Court’s Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory' (2005) Archiv des Völkerrechts 240
A Orakhelashvili, 'Judicial Competence and Judicial Remedies in the Avena case' (2005) 18 (2005) Leiden Journal of International Law 31
A Orakhelashvili, 'The Assanidze case (ECtHR)' (2005) 99 (2005) American Journal of International Law 222
A Orakhelashvili, 'The Impact of Peremptory Norms on Interpretation and Application of the UN Security Council Resolutions' (2005) 16 (2005) European Journal of International Law 59
A Orakhelashvili, 'The World Bank Inspection Panel in Context: Institutional Aspects of the Accountability of International Organizations' (2005) 2 (2005) International Organizations Law Review 57 [...]
This article examines the legal nature of the World Bank Inspection Panel as part of the international legal system in which it functions, and thus differs from most other contributions that look at this structure from "inside", that is from the viewpoint of its being part of the World Bank.
E Palser, 'Owusu v Jackson: Analysis and Comment (Jurisdiction and forum non conveniens)' (2005)  11 Journal of International Maritime Law 182 [...]
Jurisdiction and forum non conveniens in the light of Owusu v Jackson
E Palser, 'Turning Back the Clock (The setting aside of trustees' decisions in the light of Sieff v Fox)' (2005)  New Law Journal 1592 [...]
The setting aside of trustees' decisions in the light of Sieff v Fox
M Paparinskis, 'Republic of Latvia Materials on International Law 2004' (2005) 5 Baltic Yearbook of International Law 235
J Payne and Dan Prentice, 'Company contracts and vitiating factors: developments in the law on directors' authority'  LMCLQ 447
J Payne, 'Sections 459-461 Companies Act 1985: The Future of Shareholder Protection' (2005) 64(3) Cambridge law Journal 647
W E Peel, 'Forum Non Conveniens and European Ideals' (2005) Lloyds Maritime and Commercial Law Quarterly 363 [...]
An article assessing the scope for a discretionary stay of proceedings commenced pursuant to Council Regulation (EC) 44/2001 in the aftermath of the decision of the ECJ in Owusu v Jackson
ISBN: 0306 2945
J Pila, 'Article 52(2) of the Convention on the Grant of European Patents: What Did the Framers Intend? A Study of the Travaux Preparatoires' (2005) 36 IIC: International Review of Intellectual Property and Competition Law 755-87 [...]
In a paper recently published in the IIC, I argued against the prevailing construction of article 52(2) of the Convention on the Grant of European Patents as resolving to a single requirement for technical character. That argument was based in part on a challenge to contemporary assumptions surrounding the historical provenance of the 'technical character' theory of inventions, and article 52(2) itself, that drew heavily on an analysis of the EPC's travaux preparatoires. Hence the article's subtext, that the travaux preparatoires can be of value in contemporary debates regarding European patent law, not only for the insights they offer on substantive matters of patentability, but equally for the insights they offer on regional lawmaking processes themselves. In the light of that value it is surprising that so little academic attention has been paid to the EPC's travaux preparatoires to date. There is an important series of early IIC articles documenting the progress of each stage in the EPC lawmaking process, but no detailed study of the travaux preparatoires in relation to the central EPC provisions themselves. The purpose of the current paper is to make a modest start on filling this gap in the literature of European patent law by offering a 'pre-history' of the most contested of those provisions, article 52(2), and its counterpart in the United Kingdom, sub-section 1(2) of the Patents Act 1977. It is hoped in doing so to create a study of interest and use to the range of people engaged in the current national and international debates concerning the reach of the contemporary European patent system, and the most appropriate mechanisms for that system's reform. Public access preprint at http://ssrn.com/abstract=736064
J Pila, 'Dispute Over the Meaning of Invention in Article 52(2) EPC: The Patentability of computer-implemented Inventions in Europe' (2005) 36 IIC: International Review of Intellectual Property and Competition Law 173-91 [...]
In 2002, the European Economic and Social Committee ("ESC") described the doctrinal premise of the European Patent Office's interpretation of article 52(2) of the European Patent Convention as "the product of legal casuistry". The purpose of the current article is to consider that description, and ask whether it's fair, or whether the EPO's approach to article 52 is better ascribed to problems inherent in the EPC itself. Three issues are addressed to that end. The first is the object of the ESC's criticism: article 52(2) and its interpretation by the EPO's Boards of Appeal. The second is the context and substance of the criticism itself: the European Commission's Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, and the scathing response it attracted from the ESC. And the third is the question of the criticism's validity: can the EPO's approach to article 52(2) be defended against the charge of casuistic reasoning, and if it can, does it follow that the approach is satisfactory? Public access preprint at http://ssrn.com/abstract=593881
F Pirie, 'Segmentation Within the State: The Reconfiguration of Tibetan Tribes In China's Reform Period' (2005) 9 (1-2) Nomadic Peoples 83
F Pirie, 'Segmentation within the state: the reconfiguration of Tibetan tribes in China's reform period' (2005) 9 Nomadic Peoples, special issue on Pastoralism in Post-Socialist Asia 83
D D Prentice and J Payne, 'Company Contracts and Vitiating Factors: Developments in the Law of Directors’ Authority' (2005) 2005(4) Lloyd’s Maritime and Commercial Law Quarterly 447
J Raz, 'Instrumental Rationality - A Reprise' (2005) 1 Journal for Ethics and Social Philosophy
J Raz, 'Interview: Legal Theory, Liberalism, Value Incommensurability, Equality and Authority.' (2005) 8 Imprints: egalitarian theory and practice 195
J Raz, 'The Myth of Instrumental Rationality' (2005) 1 Journal for Ethics and Social Philosophy
WG Ringe, 'No freedom of emigration for companies?' (2005) 16 EBLR 621
J Roberts and Kent Roach, 'Community sentencing and the perspective of crime victims: a socio-legal analysis.' (2005) Queen's Law Journal, 2005.
J Roberts, J. Unnever and F. Cullen, 'Not everyone strongly supports the death penalty: assessing weakly-held attitudes about capital punishment.' (2005) American Journal of Criminal Justice, 2005.
J Roberts, 'Pre-trial Custody, Terms of imprisonment and theConditional Sentence: Crediting 'Dead Time' to effect 'Regime Change' in sentencing' (2005) 9 Canadian Criminal Law Review 191
J Roberts and J. Sprott, 'Punitive and moderate penal policies: explaining divergent approaches to reform in Canada and the United States.' (2005) International Journal of Comparative Criminology, 2005.
J Roberts, 'Reducing Prison Populations: Exploring Alternative Strategies' (2005) Reform: A Journal of National and International Law Reform
J Roberts, Mike Hough and L.Stalans, 'Restorative Justice and the Views of the Public.' (2005) Tijdschrift voor Herstelrecht, 2005.
J Roberts and S. Terblanche, 'Sentencing in South Africa: lacking in principle but delivering justice?' (2005) South African Journal of Criminal Justice, 2005.
J Roberts and Mike Hough, 'Sentencing young offenders: public opinion in England and Wales.' (2005) Criminal Justice, 2005.
J Roberts, C. Hutchison and R. Jesseman, 'Supervising conditional sentence orders: the perceptions of probation officers in Ontario.' (2005) Criminal Reports, 2005.
J Roberts, 'The fall and rise of the recidivist premium: recent developments in England and Wales.' (2005) Federal Sentencing Reporter, 2005.
J Roberts and Mike Hough, 'The state of the prisons: exploring public knowledge and opinion.' (2005) The Howard Journal of Criminal Justice, 2005.
J Rowbottom, 'Property and Participation: A Right of Access for Expressive Activities' (2005) European Human Rights Law Review
J Rowbottom, 'The Electoral Commission's proposals on the funding of political parties'  Public Law 468
A Russell, 'Towards an International Right to Water' (2005) 14 Human Rights Defender 10
D Sarooshi, 'The Future of the WTO and its Dispute Settlement System' (2005) 2(1) International Organizations Law Review 129
D Sarooshi, '‘The Future of the WTO and its Dispute Settlement System’' (2005) 2(1) International Organizations Law Review 129
M J Spence, 'The Mark as Expression/The Mark as Property' (2005) 58 Current Legal Problems 491 [...]
An article based on a lecture about the justification of trade mark protection. This article takes a very new line on the issue.
M J Spence and Timothy Endicott, 'Vagueness and the Scope of Copyright' (2005) 121 Law Quarterly Review 657 [...]
Journal article on copyright infringement and appellate process.
M J Spence and T Endicott, 'Vagueness in the Scope of Copyright' (2005) 121(Oct) Law Quarterly Review 657
R Stevens, 'Why Do Agents 'Drop Out'?'  Lloyd's Maritime and Commercial Law Quarterly 101 [...]
Long article on contract, tort and unjust enrichment. Not bedtime reading.
W J Swadling, 'Rescission, Property, and the Common Law' (2005) 121(Jan) Law Quarterly Review 123
S Talmon, 'Changing Views on the Use of Force: The German Position' (2005) 5 Baltic Yearbook of International Law 41
S Talmon, 'Luftverkehr mit nicht anerkannten Staaten: Der Fall Nordzypern [Air Traffic with Non-Recognized States: The Case of Northern Cyprus]' (2005) 43 Archiv des Völkerrechts [Public International Law Archive] 1
S Talmon, 'The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur?' (2005) 75 British Year Book of International Law 101
S Talmon, 'The Security Council as World Legislature' (2005) 99 American Journal of International Law 175
D Gunton, M Livermore and A Tzanakopoulos, 'A Global Administrative Law Bibliography' (2005) 68 Law & Contemporary Problems 357
F Varese, 'Has Fascism returned to Italy?' (2005) 60 Italian Politics & Society 87
F Varese, 'La mafia russa in Italia' (2005) Limes. Rivista Italiana di Geopolitica 229
F Varese and M. Yaish, 'Resolute Heroes: the Rescue of Jews during the Nazi Occupation of Europe' (2005) 1.91736111111111 Archives Européenes de Sociologie 153
D Vaver, 'Recent Trends in European Trademark Law: Senses, Shapes and Sensation' (2005) (2005) 95 Trademark Reporter 895 [...]
Examines recent trends in European trade mark law (shapes, sounds, smell marks) and in misappropriation of personality
An analysis of trends in protection of sound, shape and smell trade marks, and problems of protection of famous marks, comparing mainly EU and Singapore law.
S Vogenauer, 'A Retreat from Pepper v Hart? A Reply to Lord Steyn' (2005) 25(4) Oxford Journal of Legal Studies 629
S Vogenauer, 'An Empire of Light? Learning and Lawmaking in the History of German Law' (2005) 64 Cambridge Law Journal 481 [...]
Influence of legal scholarship on the law-making process, both legislative and judicial, in Germany up to the second half of the nineteenth century.
S Vogenauer and S Weatherill, 'Die Kompetenz der Europäischen Gemeinschaft zu einer umfassenden Angleichung des Vertragsrechts - eine empirische Untersuchung' (2005) Juristenzeitung 870 [...]
Results of a survey.
S Vogenauer, 'Eine gemeineuropäische Methodenlehre des Rechts - Plädoyer und Programm' (2005) Zeitschrift für Europäisches Privatrecht 234 [...]
Towards a European Legal Method.
S Vogenauer and S Weatherill, 'La compétence de la Communauté européenne pour harmoniser le droit des contrats - une analyse empirique' (2005) Revue des contrats 1215 [...]
Results of a survey.
S Vogenauer and S Weatherill, 'The European Community\'s Competence for a Comprehensive Harmonisation of Contract Law - An Empirical Analysis' (2005) 30 European Law Review 821 [...]
Results of a survey.
S Wallerstein, 'Justifying Self-Defence: A Theory of Forced Consequences' (2005) 91 Virginia Law Review 999
S R Weatherill, 'Anti-doping rules and EC law' (2005) 1.08819444444444 Thomson/ Sweet and Maxwell: European Competition Law Review 416
S R Weatherill, 'Better Competence Monitoring' (2005) 30 Thomson/ Sweet and Maxwell: European Law Journal 23
S R Weatherill, 'Better Competence Monitoring' (2005) 30(1) European Law Review 23
Simon Whittaker, 'Contractual Control and Contractual Review in England and France' (2005) 13 European Review of Private Law 757 [...]
This article compares the use in English and French law of two techniques for the control of the content of contracts: (i) the insertion of standard terms into contracts by law and (ii) the control of the fairness of agreed contract terms. It examines the relationship between these two and considers the different mixtures of public and private law which are revealed.
Simon Whittaker, 'Un droit à la prestation plûtot qu’un droit à l’exécution? Réflexions sur l’exécution en nature et réparation en droit anglais' (2005) Revue des contrats 49 [...]
Explains the strategy of English law in relation to breach of contract in terms of a right to the subject-matter of the debtor's obligation rather than to performance of the contract by the debtor.
R Williams, 'Policy and Principle in Drugs Manslaughter Cases' (2005) 64(1) Cambridge Law Journal 66
R Williams, 'The Beginnings of a Public Law of Unjust Enrichment?' (2005) 16(1) King's College Law Journal 194
A L Young, 'A Peculiarly British Protection of Human Rights' (2005) 65 Modern Law Review 858 [...]
Review article of Gearty, "Principles of Human Rights Adjudication".
A L Young, 'Ghaidan v Godin-Mendoza: Avoiding the Deference Trap'  2005(Spring) Public Law 23
A L Young, 'The Charter, Constitution and Human Rights: is this the Beginning or the End for Human Rights Protections by Community law?' (2005) 11 European Public Law 219 [...]
Assessment of the impact of the Charter and the Constitutional Treaty on the protection of human rights by European Community law. It challenges the prevalent criticisms of the protection of human rights by Community law and argues that the protection provided is that required by the European Union. Moreover, it warns of the dangers of adopting a stronger protection of human rights by Community law.
L Zedner, 'Securing Liberty in the face of Terror: Reflections from Criminal Justice' (2005) 32 Journal of Law and Society 507
K S Ziegler, 'Criminal Victims/Witnesses of Crimes: The Criminal Offences of Smuggling and Trafficking of Human Beings in Germany, Discretionary Residence Rights, and Other Ways of Protecting Victims' (2005) 6 German Law Journal 605
K S Ziegler and others, 'Integrating Integration?' (2005) 7 European Journal of Migration and Law 119
D Akande, 'International Law Immunities and the International Criminal Court' (2004) 98 (3) The American Journal of International Law 407
J Armour, 'Corporate Opportunities: If in Doubt, Disclose (But How?)' (2004) Cambridge Law Journal 33
J Armour, 'Floating Charges: All Adrift?' (2004) 63 Cambridge Law Journal 560
J Armour, 'Personal Insolvency Law and the Demand for Venture Capital' (2004) 5 European Business Organization Law Review 87 [...]
Scholars working in the ‘law and finance’ field have investigated empirically the links between various types of law and the incidence of venture capital finance. However, no study to date has systematically investigated the relationship between insolvency law – both personal and corporate – and venture capital finance. This paper argues that a nation’s personal insolvency law may have an important impact on the demand for venture capital finance, with more severe treatment of insolvents tending to reduce demand. This hypothesis is subjected to a preliminary test by comparing data on venture capital investment activity with an index of ‘severity’ of insolvency laws, and is not falsified. This finding will be of interest to policymakers, as a number of recent national and EU initiatives have sought explicitly to encourage innovative firms and venture capital finance.
J Armour, 'The Chequered History of the Floating Charge' (2004) 13 Griffith Law Review 27
J Armour and R.J. Mokal, 'The New UK Corporate Rescue Procedure—The Administrator’s Duty to Act Rationally' (2004) International Corporate Rescue 136
A Ashworth, 'Criminal Justice Reform: Principles, Human Rights and Public Protection'  Criminal Law Review 516 [...]
Critique of foundations for recent criminal justice legislation
A Ashworth and Michelle Strange, 'Criminal Law and Human Rights' (2004) European Human Rights Law Review 121 [...]
Review of recent developments on human rights and criminal law
ISBN: 1361 1526
A Ashworth and Dirk van Zyl Smit, 'Disproportionate Sentences as Human Rights Violations' (2004) 67 Modern Law Review 541 [...]
A study of the application of human rights law to disproportionate sentences
A Ashworth, 'Social Control and 'Anti-Social Behaviour': the subversion of human rights?' (2004) 120 Law Quarterly Review 263
A Ashworth and others, 'The Sexual Offences Act 2003: Rape, Sexual Assaults and the Problem of Consent'   Criminal Law Review 328 [...]
Analysis and critique of new legislation
ISBN: 0011 135X
D Awrey and Henry Dinsdale, 'Secondary Picketing in Canada: Thoughts for the Pepsi Generation' (2004) 29 Queen's Law Journal 789
R M Bagshaw, 'Children as Actionable Damage' (2004) 15 King's College Law Journal 117
Review article of Sandra Fredman's monograph Discrimination Law. Tries to explore the nature of anti-discrmination law and the flaws in equality arguments.
N. W. Barber, 'Must Legalistic Conceptions of the Rule of Law Have a Social Dimension?' (2004) 17(4) Ratio Juris 474
M Birdling, 'Healing the Past or Harming the Future? Large Natural Groupings and the Waitangi Settlement Process' (2004) 2 New Zealand Journal of Public and International Law 259
A Bogg, 'Review of' (2004) British Journal of Industrial Relations [...]
M Bosworth, 'Theorizing Race and Imprisonment: Towards a New Penality' (2004) 12 Critical Criminology 221 [...]
Abstract: This is a comparison of historical and contemporary issues to do with race and prisons in the UK, France and the USA.
P A Brand, 'Petitions and Parliament in the Reign of Edward I' (2004) Parchment and People: Parliament in the Middle Ages 14 [...]
Examines the beginning of petitions to parliament in the reign of Edward I; their formal analyis; who the petitions were; and the evidence for how they were dealt with in early parliaments
A Braun, 'Caught in the crossfire: is the Liechtenstein Treuhänderschaft a trust or a treuhand' (2004) 18 Trust Law International 26
A Briggs, 'Anti-suit injunctions and Utopian ideals' (2004) 120 LQR 529 [...]
Analysis of the law on anti-suit injunctions in the light of the decision in Turner v Grovit.
A Briggs, 'Crossing the River by Feeling the Stones: Rethinking the Law on Foreign Judgments' (2004) 2004(8) Singapore Yearbook of International Law 1
A Briggs, 'Public-private law protective schemes and the conflict of laws'  LMCLQ 313 [...]
Analysis of rules of enforcement of foreign judgments in the area of consumer-protection legislation, prompted by Rebb Evans v European Bank Ltd
S J Bright, 'Unfair Contract Terms and Local Authority Tenancies' (2004) Journal of Housing Law '2 [...]
Casenote on Khatun v Newham LBC
R Burnett and C Appleton, 'Joined-up services to tackle youth crime: a case-study in England' (2004) 44 British Journal of Criminology 34
R Burnett and S Maruna, 'So 'prison works', does it? The criminal careers of 130 men released from prison under Home Secretary Michael Howard' (2004) 43 Howard Journal of Criminal Justice 390
A S Burrows, 'Some Reflections on Law Reform in England and Canada' (2004) 39 Canadian Business Law Journal 320
Y-K Chin, 'Integration into Global Capitalism or Modernisation with Chinese Characteristics?: The shifting patterns of China?s television sector and ideological debates amid the WTO entry' (2004) Journalism and Communication Studies Review
P P Craig, 'Competence: Clarity, Conferral, Containment and Consideration' (2004) 29 European Law Review 323 [...]
Analysis of the provisions concerning competence in the EU Constitutional Treaty
P P Craig, 'Constitutional Process and Reform in the EU: Nice, Laeken, the Convention and the IGC' (2004) 10 European Public Law 653 [...]
Analysis of the negotiation and framing of the EU Constitutional Treaty
P P Craig, 'Judicial Review, Appeal and Factual Error' (2004) Public Law 788 [...]
Scope of Judicial Review for Factual Error
P P Craig, 'Judicial Review, Appeal and Factual Error'  2004(Winter) Public Law 788
P P Craig, 'Legislative Intent and Legislative Supremacy: A Reply to Professor Allan' (2004) 24 Oxford Journal of Legal Studies 585 [...]
Debate about foundations of judicial review
P P Craig, 'The Common Law, Shared Power and Judicial Review' (2004) 24 Oxford Journal of Legal Studies 237 [...]
Foundations of Judicial Review
S M Cretney, 'The Divorce Law and the 1936 Abdication Crisis' (2004) 120 Law Quarterly Review 160
A C L Davies, 'Foundation Hospitals: A New Approach to Accountability and Autonomy in the Delivery of Public Services?'  Public Law 808 [...]
Questions whether the government's proposals to create NHS Foundation Trusts will succeed in their aim of giving hospitals greater autonomy from Department of Health control.
J Dickson, 'Methodology in Jurisprudence: a critical survey' (2004) 10(3) Legal Theory 117
G Dinwoodie and R. Dreyfuss, 'International Intellectual Property Law and the Public Domain of Science' (2004) 7 Journal of International Economic Law 431 [...]
The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address wither - and how - the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for 'upstream' inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is to identify interpretive approaches that allow member states to keep their laws attuned to the development and needs of science. But in so doing, we also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, and between international and national laws.
G Dinwoodie, 'Private Ordering and the Creation of International Copyright Norms: The Role of Public Structuring' (2004) 160 Journal of Institutional and Theoretical Economics 161 [...]
International copyright law must be based on an assessment of what types and levels of protection best further the purposes of copyright law. But constructing the international copyright regime is difficult as the international system must wrestle with copyright dilemmas that exist at the national level as well as broader challenges facing international law. This paper delineates the connection between international copyright law and the generation and distribution of knowledge by discussing two recent examples of (possible) unconventional international copyright rulemaking, namely, norms generated by Internet Service Providers in responding to infringement claims, and norms arising out of digital rights management systems (JEL: K 29).
G Dinwoodie, 'The Seventh Annual Honorable Helen Wilson Nies Memorial Lecture on Intellectual Property Law: The Trademark Jurisprudence of the Rehnquist Court' (2004) 8 Marquette Intellectual Property Law Review 187
G Dinwoodie, 'Trademarks and Territory: Detaching Trademark Law from the Nation-State' (2004) 41 Houston Law Review 885 [...]
It is an axiomatic principle of domestic and international trademark law that trademarks and trademark law are territorial. This paper critiques the principle of territoriality in four ways. First, I suggest that statements about trademark territoriality mask a variety of related propositions. In disaggregating the "principle of territoriality" into its component parts, it becomes apparent that different rules of trademark law possess a territorial character for different reasons. For example, common law trademark rights are territorial because the intrinsic purpose of trademark law suggests extending (and limiting) rights to the geographic reach of goodwill. In contrast, registration systems designed to promote economic expansion derive their territorial character from their grounding in economic policymaking, effected by institutions that focus on the regulation or development of discrete economic regions. And rules regarding the enforcement of trademark rights assume their territorial quality because of their connection to political institutions with territorially defined sovereignty. Thus, some aspects of territoriality are rooted in social and commercial practices that dictate the reach of a brand, while other aspects are a function of political or policymaking authority. In an era of global trade and digital communication, social and commercial practices are less territorially confined and less commensurate with the nation-state. But economic policymaking and political institutions may prove more resistant to change than social or commercial behavior.
Second, I argue that although the principle of trademark territoriality has nominally remained constant since the conclusion of the Paris Convention, recent developments at both the national and international level suggest that the principle may have a different intensity today. Third, the paper begins an investigation of the ways in which the principle of territoriality should be revisited in light of the globalization of markets and concomitant changes in modern marketing practices. Although the multidimensional nature of the territoriality principle suggests that an overarching reconfiguration would be unwise and perhaps impossible, some shared dilemmas can be derived from analysis of discrete rules. If the territorial character of a rule reflects the intrinsic purpose of trademark law and is thus rooted in social practices that are already in flux, the character of these doctrines will almost inevitably mutate as the notion of territoriality evolves in line with social change. Such revisions will swim with the current of socially constructed territoriality. If, however, the territoriality of a doctrine instead mirrors the national nature of economic and political institutions, then efforts to revise the doctrines will first require altering the underlying institutional and policymaking apparatus. Moreover, in deciding whether particular territorial aspects of trademark law warrant reassessment, it is important to consider whether trademark law should be structured reactively to protect whatever consumer understandings or producer goodwill develops, or should it instead proactively seek to shape the ways in which consumers shop and producers sell or seek to acquire rights, thus shaping how the economy functions?
Finally, the paper briefly highlights the extent to which there is, or should be, an assimilation of the "territorial" and the "national." Analysis of the choices facing trademark law might be better achieved by consciously separating nationality and territoriality. Recognition of the territoriality of goodwill is linked to the basic purposes of trademark law, while nationality-grounded doctrines are more likely driven by economic policy and by institutional issues such as the practical demands of current political structures. Recognizing this distinction would assist in highlighting where reform is likely to be evolutionary and where modification of political structures - whether judicial or administrative - must first occur.
G Dinwoodie and R. Dreyfuss, 'TRIPs and the Dynamics of Intellectual Property Lawmaking' (2004) 36 Case Western Reserve Journal of International Law 95 [...]
In prior work, we took up the question of the TRIPs Agreement's resilience to changes in domestic law. We argued that such resilience is necessary because information production is a dynamic enterprise. As new industries emerge and mature, nations must have the flexibility to modify their intellectual property rules to readjust the balance between public and private rights. In the course of that study, we examined approaches to TRIPs dispute resolution that could cabin the choices of legislation available to deal with emergent substantive problems, and which could distort the legal environment in which creative enterprises are conducted. In this piece, we continue our consideration of the resilience of the Agreement and its commitment to neo-federalism. Here, however, we move from a focus on outcomes to the dynamics of the legislative process, examining the extent to which TRIPs dispute resolution adequately accommodates the operation of each member's political economy as it relates to intellectual property lawmaking.
Frequently, as intellectual property lawmaking becomes fiercely contested, reforms can only occur when a balanced package of rules can be reached. We ask whether such deals (or perhaps which of such deals, depending upon the connection between the reforms) should be taken into account by WTO panels. We argue that when legislation represents offsetting benefits and detriments, respect for domestic political dynamics requires panels to consider constituent pieces of such legislation in the context of the package in which they were enacted.
In previous work, we questioned whether the jurisprudence that has developed with regard to the GATT's trade provisions should apply equally to intellectual property, noting that differences between trade and intellectual property policy mandated different approaches. Here we reiterate that position, but make something of a converse argument as well: there are commonalities between the problems that nations experience in executing their trade commitments and their intellectual property commitments. Thus, it is significant that in its early years, the GATT incorporated strategies that created flexibility and permitted nations to deal autonomously with matters of domestic trade; we argue that similar mechanisms are required in TRIPs jurisprudence, especially in the Agreement?s formative stage.
We also focus on the effect that TRIPs, as currently understood, has on domestic lawmaking. If WTO panel decisions intrude more into national law, might lawmakers begin to enact legislation in reliance on international invalidation of whole or parts of the enactment? Should formulation of domestic policy take this into account? Further, would the formalistic approach that has been taken to TRIPs jurisprudence benefit domestic lawmaking by reducing the effect of lobbying? Or would it simply induce more nuanced log-rolling, or the enactment of laws aimed at influencing intellectual property production but under a different legislative rubric (such as food and drug regulation or consumer law)? Indeed, answers to these questions might affect not only lawmaking at the national level but, in turn, the form of WTO dispute settlement. We go so far as to suggest that there may be a role for the (much-feared) nonviolation complaints in navigating these complexities.
S Douglas-Scott, '*The Rule of Law in the European Union - putting the security into the EU’s Area of Freedom Security and Justice ' (2004) European Law Review
J M Eekelaar, 'Children between Cultures' (2004) 18 International Journal of Law, Policy & the Family 178 [...]
Discussion oflaw and policy when children are subjected to competing claims from cultural groups
J M Eekelaar and M Maclean, 'Marriage and the Moral Bases of Personal Relationships' (2004) 31(4) Journal of Law and Society 510
A Ezrachi, 'The Role of Voluntary Frameworks in Multinational Cooperation' (2004) 36 George Washington International Law Review 433
E Fisher, 'The European Union in the Age of Accountability' (2004) 24(3) Oxford Journal of Legal Studies 495
This article argues that it is no accident that the flexible workforce is largely made up of women in precarious jobs. The change in women's role, as both breadwinners and home-makers, has not been matched by changes in the legal structure of employyment law, and particularly the contract, with its assumption of bilateral, mutual, transactional exchange. Rights should be afforded to all who participate in the paid workshop, however marginally.
ISBN: 0305 9332
Draws on an earlier article, Aligning Taxable Profits and Accounting Profits: Accounting standards, legislators and judges, and refers to a paper delivered by Professor Wolfgang Shoen.
J Freedman, 'Defining Taxpayer Responsibility: In Support of a General Anti-Avoidance Principle'  British Tax Review 332
John Gardner, 'Fletcher on Offences and Defences' (2004) 39 University of Tulsa Law Review 817
John Gardner and T Macklem, 'No Provocation without Responsibility: A Reply to Mackay and Mitchell'  Criminal Law Review 213
John Gardner, 'The Legality of Law' (2004) 17 Ratio Juris 168
John Gardner, 'The Wrongdoing that Gets Results' (2004) 18 Philosophical Perspectives 53
Criticises Lobban's procedural vision of early 19th centiry law-equity fusion, and places the process within a context of substantive doctrine and wider law reform in England's commercialising economy.
N Ghanea, 'Convergences and disparities between the human rights of religious minorities and of women in the Middle East' (2004) 26(3) Human Rights Quarterly 705
B Goold, 'Idealizing the Other? Orientalism and the Study of Japanese Criminal Justice' (2004) 23(1) (Winter/Spring 2004) Criminal Justice Ethics
I Goold, 'Protestant Female Martyrdom' (2004) 10(2) Magistra: A Journal of Women's Spirituality in History 60
I Goold, 'Surrogacy: Is There a Case for Legal Prohibition?' (2004) 12(2) Journal of Law and Medicine 205
I Goold, 'Tissue Donation: Ethical Guidance and Legal Enforceability' (2004) 11(3) Journal of Law and Medicine 331–40
J Goudkamp, 'Negligence and Especially Capable Defendants: Does the Objective Standard of Care Cut Both Ways?' (2004) 12 Tort Law Review 111
J Goudkamp, 'Securing Access to Sunlight: The Role of Planning Law in New South Wales' (2004) 9 Australasian Journal of Natural Resources Law and Policy 59
J Goudkamp, 'The Spurious Relationship between Moral Blameworthiness and Liability for Negligence' (2004) 28 Melbourne University Law Review 342
L Gullifer, 'The Law Commission’s Proposals: a critique' (2004) 15 European Business Law Review 811 [...]
Considers the proposals by the Law Commission for the reform of the law of personal property security interests
J J W Herring, 'Breach of Contact?' (2004) 33 Family Law Journal 16 [...]
Discussion of human rights issues in enforcement of contact orders
R G Hood, 'Hermann Mannheim and Max Grünhut' (2004) 44(4) British Journal of Criminology [...]
Also published as book chapter in Jurists Uprooted. German Speaking Émigré Lawyers in Twentieth Century Britain
AT Kenyon and E Hudson, 'Copyright, Digitisation and Cultural Institutions' (2004) 31 Australian Journal of Communication 89
A Johnston and A.A. Dashwood, 'The Institutions of the Enlarged EU under the regime of the Constitutional Treaty' (2004) 41 Common Market Law Review 1481
A Kavanagh, 'Comparative perspectives on Constitutional Law: Implications for the Human Rights Act 1998 (Review Essay)' (2004) European Public Law 161
A Kavanagh, 'Statutory Interpretation under the Human Rights Act 1998 after Anderson: a more contextual approach'  Public Law 537
A Kavanagh, 'The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998' (2004) 24 Oxford Journal of Legal Studies 259
A Kavanagh, 'The Role of a Bill of Rights in Reconstructing Northern Ireland' (2004) 26 Human Rights Quarterly 956
J Kaye and C Johnson, 'Does the UK Biobank have a legal obligation to feedback individual findings to participants?' (2004) 12(3) Medical Law Review 239
I Loader and R Sparks, 'For an Historical Sociology of Crime Policy in England and Wales since 1968' (2004) 7 Critical Review of International Social and Political Philosophy 5
A V Lowe, 'Corporations as International Actors and International Law Makers' (2004) XIV, 2004 The Italian Yearbook of International Law 23
A V Lowe, M. Fitzmaurice and O. Elias, 'Northern European Co-operation regarding Watercourses' (2004) Watercourse Co-operation in Northern Europe/TMC Asser Press 95
A V Lowe, 'The Place of Dr Thomas Baty in the International Law Studies of the 20th Century' (2004) The Commemorative Seminar for Dr Thomas Baty: Contributions of Dr Thomas Baty and Their Reappraisal/University of Tokyo
J C McCrudden, A Heath and R Ford, 'Legal Regulation of Affirmative Action in Northern Ireland: An Empirical Assessment.' (2004) 24(3) Oxford Journal of Legal Studies 363
J C McCrudden, 'Using Public Procurement to Achieve Social Outcomes' (2004) 28 Natural Resources Forum 257
J Morgan, 'Tort, insurance and incoherence' (2004) 67 MLR 384
W Njoya, 'Employee Ownership and Efficiency: An Evolutionary Perspective' (2004) 33 Industrial Law Journal 211 [...]
When employees invest firm-specific human capital in the firm, their contribution is just as important as, or even more important than, the shareholders' investment of finance capital. Despite this, the argument that employees' firm-specific investments give rise to a form of ownership equivalent to that of shareholders has not taken root in Anglo-American law. This, it is suggested, is largely because the concept of ownership in the firm is linked uncritically to simplistic notions of efficiency and the idea that the shareholder-ownership model is presumptively efficient. This article looks at the corporate governance debate from an evolutionary perspective, concluding that efficiency concerns do not preclude the recognition of employee property rights in the firm.
An overview of the law governing psychiatric injury and an assessment of the options for reform. Commissioned by the journal, which is practitioner-oriented.
ISBN: 1352 7533
D P Nolan, 'Suing the State: Governmental Liability in Comparative Perspective' (2004) 67 Modern Law Review 843 [...]
A review article of Duncan Fairgrieve, State Liability in Tort: A Comparative Law Study. The article considers the current state of governmental liability in English law from three different perspectives (public law, private law, and legal politics), and focuses in particular on the lessons that can be learned from the French law of state liability.
ISBN: 0026 7961
A Orakhelashvili, 'Peremptory Norms of International Law and Reparation for Internationally Wrongful Acts' (2004) 3 (2003) Baltic Yearbook of International Law 19
A Orakhelashvili, 'The Concept of International Judicial Jurisdiction: A Reappraisal' (2004) 3 (2003) The Law and Practice of International Courts and Tribunals 501
A Orakhelashvili, 'The Oil Platforms case (Iran v. USA)' (2004) International and Comparative Law Quarterly 753
A Orakhelashvili, 'The Post-War Settlement in Iraq: The UN Security Council Resolution 1483(2003) and General International Law' (2004) 8 (2003) Journal of Conflict and Security Law 307
M Paparinskis, 'Republic of Latvia Materials on International Law 2003' (2004) 4 Baltic Yearbook of International Law 209
J Payne, 'Company contracts and conundrums' (2004) European Company and Financial Law Review 235
J Pila, 'The Highs and Lows of 2004 for European Intellectual Property Law (English)' (2004) JETRO
J Pila, 'The Highs and Lows of 2004 for European Intellectual Property Law (Japanese)' (2004) JETRO
J Raz, 'Incorporation by Law' (2004) 10 Legal Thoery 1
J Raz, 'The Role of Well-Being' (2004) 18 Philosophical Perspectives
J Roberts and E. Erez, 'Communication in sentencing: exploring the expressive and the impact model of victim impact statements.' (2004) International Review of Victimology
J Roberts, 'Harmonizing the sentencing of young and adult offenders: a comparison of the Youth Criminal Justice Act and Part XXIII of the Criminal Code.' (2004) Canadian Journal of Criminology and Criminal Justice
J Roberts and A. von Hirsch, 'Legislating sentencing principles: the provisions of the Criminal Justice Act 2003 relating to sentencing purposes and the role of previous convictions.'  Criminal Law Review
J Roberts and T. Gabor, 'Living in the shadow of prison: lessons from the Canadian experience in decarceration.' (2004) British Journal of Criminology
J Roberts, 'Public Opinion and Youth Justice' (2004) 2004 (31) Crime and Justice 495
J Roberts and L. Stalans, 'Restorative justice and the sentencing process; exploring the views of the public.' (2004) Social Justice Research
D Sarooshi, 'Conferrals by States of Powers on International Organizations: The Case of Agency' (2004) 74 The British Year Book of International Law 291
D Sarooshi, 'The Essentially Contested Nature of the Concept of Sovereignty: Implications for the Exercise by International Organizations of Delegated Powers of Government' (2004) 25 Michigan Journal of International Law 1107
D Sarooshi, 'The Landmark WTO US v. Mexico case' (2004) 36 Commonwealth Secretariat Trade Topics 1
D Sarooshi and R. Volterra, 'The WTO and the Importance of International Law for Business' (2004) March Special Feature – WTO, European Lawyer 27
D Sarooshi, '‘Prosecutorial Policy and the ICC: Prosecutor’s Proprio Motu Action or Self-Denial?’' (2004) 2(4) Journal of International Criminal Justice 940
D Sarooshi, '‘Sovereignty, Economic Autonomy, the United States, and the International Trading System: Representations of a Relationship’' (2004) 15(4) European Journal of International Law 651
D Sarooshi, '‘The Nature of the Concept of Sovereignty: Implications for the Exercise by International Organizations of Powers of Government’' (2004) 25 Michigan Journal of International Law 1107
H J Scott and others, 'State Liability Under Francovich for Decisions of National Courts' (2004) 120 Law Quarterly Review 403
E J F Simpson, 'The Ramsay Principle: a Curious Incident of Judicial Reticence?'  British Tax Review 358 [...]
An examination of the constitutional constraints upon the judiciary in the development of tax law; and an argument (i) that they have been misunderstood, and (ii) that, if properly understood, a legislated GAAR (general anti-avoidance rule) would be unnecesary.
R Stevens, 'The Contracts (Rights of Third Parties) Act 1999' (2004) 120 Law Quarterly Review 292 [...]
A long article on a crazy piece of meddling by the Law Commission.
S Talmon, 'The Statements by the President of the Security Council' (2004) 2 Chinese Journal of International Law 419
M Tulibacka, 'Central European Product Liability - the Next Exciting Chapter in the Evolution of Product Liability Law' (2004) 17 European Product Liability Review 39417
A Tzanakopoulos, 'Provisional Measures Indicated by International Courts: Emergence of a General Principle of International Law' (2004) 57 Revue hellénique de droit international 53
F Varese, 'Struktura mafioznykh gruppirovok’' (2004) 2 Panorama Issledovanij Politiki Prikam’ya 157 – 167 [...]
D Vaver, 'Canada's Intellectual Property Framework: A Comparative Overview' (2004) 17 (2) Intellectual Property Journal 125
D Vaver, 'The Problems of Biotechnologies for Intellectual Property Law' (2004) Hors série (2004) Les Cahiers de Propriété Intellectuelle: Mélanges Victor Nabhan 375 [...]
Moral, legal definitional and institutional issues involving the patenting of biotechnologies
S Vogenauer, 'Paths to the Chair - The French Experience' (2004) Zeitschrift für Europäisches Privatrecht 218 [...]
A sociological account of the recruitment of French law professors.
S R Weatherill, 'Competence creep and competence control' (2004) 23 Yearbook of European Law 1
S R Weatherill, Norbert Reich and Hans Micklitz, 'EU Treaty Revision and Consumer Protection' (2004) (2004) 27 Journal of Consumer Policy 367
S R Weatherill, 'Why object to the harmonisation of private law by the EC?' (2004) (2004) 12/5 European Review of Private Law 633
Simon Whittaker, 'Assessing the fairness of contract terms: the parties’ essential bargain, its regulatory context and the significance of the requirement of good faith' (2004) 37987 Zeitschrift fur Europaisches Privatrecht 75 [...]
The article looks at issues relating to the harmonisation of contract law in the context of the decision of the HL in DGFT v First National Bank
K S Ziegler, 'Grundfreiheiten und soziale Dimensionen des Binnenmarktes – die Verfassung als Impuls?' (2004) 2004 (3) Europarecht (special Issue 3) 13 [...]
Abstract: This article looks at the impact of human rights on other areas of law and the possible impact of a human rights codification in the EC in the context of the Draft Constitution. It examines how non-economic considerations, such as the social dimension, filtered into the body of EC law. First, they are rarely primary aims or competences of regulating the Common Market. Secondly, the article looks at the ‘social flanking’ of economic rules, especially in the context of the free movement of workers. Thirdly, it points out that market freedoms may have social implications in specific areas, such as health care. Fourthly, it describes how social dimensions can be invoked when interpreting the scope and in order to justify restrictions of market freedoms. Fifthly, it notes that in recent case-law the European Court of Justice has given Union citizenship a social connotation by enforcing equal access of Union citizens to social benefits. The article then looks at social dimensions in EC competition law which safeguard the ‘level playing field’ upon which the market freedoms operate. Against this backdrop, the final section of the article analyses the expected influence of a binding EU Charter of Fundamental Rights on the EU legal order. It discusses possible changes in the substance of human rights, with special regard to social rights, as well as in the application and interpretation of EC law in general and its normative hierarchies in particular. It also considers enforcement procedures by individuals and by the EU against Member States. The article goes on to weigh the danger that codification could encroach upon the competencies of Member States against the potential benefits of a more coherent legal system. It concludes by asking whether codification of human rights is likely to encourage more public engagement with the EU.
D Akande and S Williams, 'International Adjudication and National Security Issues: What Role for the WTO' (2003) 43 Virginia Journal of International Law 365 [...]
60% contribution by this author
D Akande, 'The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits' (2003) (2003)1 Journal of International Criminal Justice 618 [...]
This article examines the jurisdiction of the International Criminal Court (ICC) over nationals of states not party to the ICC Statute. The article first addresses the US argument that the exercise of ICC jurisdiction over nationals of non-parties without the consent of that non-party would be contrary to international law. The author considers the principles which support the delegation of criminal jurisdiction by states to international tribunals and discusses the precedents for such delegations. It is further argued that the exercise of ICC jurisdiction over acts done pursuant to the official policy of a non-party state would not be contrary to the principle requiring consent for the exercise of jurisdiction by international tribunals. Finally, the article explores the limits to the jurisdiction of the ICC over non-party nationals. In particular, the article addresses the circumstances in which ICC parties are precluded from surrendering nationals of non-parties to the ICC.
J Armour and N. R. Campbell, 'Demystifying Corporate Civil Liability' (2003) 62 Cambridge Law Journal 290
J Armour, 'Financial Assistance: A Restatement' (2003) 62 Cambridge Law Journal 266
J Armour and J.A. McCahery, 'Improving Corporate Law and the Modernization of Securities Regulation in Europe' (2003) 24 Journal of Corporate Law Studies 211
J Armour and S. Deakin, 'Insolvency and Employment Protection: the Mixed Effects of the Acquired Rights Directive' (2003) 22 International Review of Law & Economics 443 [...]
The statutory protection provided by European Community law to employees during transfers of undertakings and other restructurings has been criticised on the grounds that it undermines insolvency procedures and interferes with the ‘rescue’ process. We present an analysis which suggests that granting employees rights of this kind may be an efficient means of recognising their firm-specific human capital. Case-study evidence is then presented to show that while in some situations employment rights may obstruct reorganisations, in others they allow employee interests to be factored into the bargaining process in such a way as to enhance the survival chances of enterprises undergoing restructuring. The law functions best when effective mechanisms of employee representation are in place and when the conditions under which employees’ acquired rights can be waived in the interests of preserving employment are clearly specified.
J Armour, S. Deakin and S. Konzelmann, 'Shareholder Primacy and the Trajectory of UK Corporate Governance' (2003) 41 British Journal of Industrial Relations 531 [...]
Core institutions of UK corporate governance, in particular those relating to takeovers, board structure and directors' duties, are strongly orientated towards a norm of shareholder primacy. Beyond the core, in particular at the inter-section of insolvency and employment law, stakeholder interests are better represented, thanks largely to European Community influence. Moreover, institutional shareholders are redirecting their investment strategies away from a focus on short-term returns, in such a way as to favour stakeholder-inclusive practices. We therefore suggest that the UK system is currently in a state of flux and that the debate over shareholder primacy has not been concluded.
ISBN: 0 19 928703 1
J Armour, 'The Uncertain Flight of British Eagle' (2003) 62 Cambridge Law Journal 39
A Ashworth and Michelle Strange, 'Criminal Law and Human Rights in 2002' (2003) European Human Rights Law Review 139 [...]
Review of judicial decisions on human rights and crime in 2002
N C Bamforth, 'A Constitutional Basis for Anti-Discrimination Protection?' (2003) 119 LQR 215 [...]
Case note on CA case.
Summary of multi-layered constitution theory.
N. W. Barber, 'A Right to Privacy?'  Public Law 602
N. W. Barber, 'The Rechtsstaat and the Rule of Law' (2003) University of Toronto Law Journal
N. W. Barber and Alison Young, 'The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty'  Public Law 113
A Bogg and J Stanton-Ife, 'Protecting the Vulnerable: legality, harm and theft' (2003) 23(3) Legal Studies 402
A Briggs, 'Choice of Choice of Law'  2003(1) Lloyd's Maritime and Commercial Law Quarterly 12
A Briggs, 'On drafting agreements on choice of law' (2003) Lloyd's Maritime & Commercial Law Quarterly 389 [...]
Analysis of drafting of agreements on choice of law in commercial contracts; consideration of scope and relationship with agreements on choice of law; examined in principle and in relation to recent and forthcoming legislation.
ISBN: 0306 2945
A Briggs, 'Owing, owning, and the garnishing of foreign debts' (2003) Lloyd's Maritime & Commercial Law Quarterly 418 [...]
Analysis of two decisions of the House of Lords on the garnishing of debts by way of the enforcement of foreign judgments, and of the legal issues more generally arising.
ISBN: 0306 2945
A Briggs, 'The real scope of European rules for choice of law' (2003) 119 Law Quarterly Review 352 [...]
A look at the real scope and impact of choice of law rules developed by the European institutions and their relationship with the rules of the conflict of laws.
S J Bright and others, 'Anti-Social Behaviour: Local authority responsibility and the voice of the victim' (2003) CLJ 305 [...]
Considers whether victim of ASB can compel LA to take action to stop the behaviour
S J Bright, 'The Concept of the Tolerated Trespasser' (2003) 119(Jul) Law Quarterly Review 509
A S Burrows, 'Change of Position: the View from England' (2003) Loyola of Los Angeles Law Review 803 [...]
An examination of the developing defence to restitution of change of position
Y-K Chin, 'China's Regulatory Policies on Transnational Drama Flow' (2003) Media Development 17
Y-K Chin, 'The Nation-state in A Globalizing Media Environment: China?s regulatory policies on transborder TV drama flow' (2003) 10 Javnost/The Public 75
P P Craig, 'Constitutional Foundations, the Rule of Law and Supremacy' (2003) Public Law 92 [...]
The relationship between the constitutional foundations of judicial review, the rule of law and supremacy
P P Craig, 'Standing, Rights and the Structure of Legal Argument' (2003) 9 European Public Law 493 [...]
Analysis of standing to seek judicial review in the EC in light of recent decisions by the ECJ
P P Craig, 'The Community Political Order' (2003) 10 Indiana Journal of Global Legal studies 79 [...]
Descriptive and normative analysis of the development of the political order of the European Community
P P Craig, 'The Constitutionalisation of Community Administration' (2003) 28 European Law Review 840 [...]
Analysis of impact of important new Community legislation which has a major impact on EC administration
P P Craig, 'The Human Rights Act, Article 6 and Procedural Rights' (2003) Public Law 753 [...]
The impact of Article 6 of the ECHR on process rights in the UK
E Descheemaeker, 'Mapping the Common Law: On a Recent English Attempt and its Links with Scottish Jurisprudence' (2003) 115 Juridical Review 295 [...]
One principal difference between the legal traditions of Scotland and England is that, while Scots lawyers have always been committed to a rational structure of the law, English lawyers have generally shown themselves indifferent to legal taxonomy. Nevertheless, Oxford’s Professor Birks has recently edited a treatise on English private law which in effect revives the long-standing Roman institutional scheme, thus ‘civilianising’ the common law and bringing it a step closer to Scots law, which has been relying on this map for centuries. This article sets out to evaluate the merits of his enterprise. To that effect, it primarily examines the triangular relationship between the taxonomies of Roman, English and Scots law.
J Dickson, 'The Central Questions of Legal Philosophy' (2003) 56 Current Legal Problems 63
S Douglas-Scott, 'Affirmative Action at the University of Michigan' (2003) King's College Law Journal
S Douglas-Scott, 'The EU Charter of Fundamental Rights as a constitutional document ' (2003) European Human Rights Review
D Dwyer, 'Beyond Autonomy: the Role of Dignity in Biolaw' (2003) 23 Oxford Journal of Legal Studies 319
D Dwyer, 'Changing Approaches to Expert Evidence in England and Italy' (2003) 1(2) International Commentary on Evidence 4
D Dwyer, 'The Duties of Expert Witnesses of Fact and Opinion' (2003) 7 International Journal of Evidence and Proof 264
J M Eekelaar, 'Asset Distribution on Divorce - Time and Property' (2003) 33 Family Law 828
J M Eekelaar, 'The End of an Era?' (2003) 28 Journal of Family History 108 [...]
Describing historical trends in family law
R Ekins, 'A Critique of Radical Approaches to Rights-Consistent Statutory Interpretation' (2003) European Human Rights Law Review 641
R Ekins, 'Judicial Supremacy and the Rule of Law' (2003) 119 Law Quarterly Review 127
R Ekins and J Ip, 'Legislative Confirmation and the Supreme Court' (2003) New Zealand Law Journal 151
P Eleftheriadis, 'Cosmopolitan Law' (2003) 9(2) European Law Journal 241
A contribution to a symposium on the topic, "Law's Moral Foundations: Has it any?" I argue that it is only possible to identify the content of the ideal of the rule of law by making evaluative judgments as to which aspects of a community's life (and in particular, which aspects of official conduct) ought to be ruled by law. Because all legal systems attain the ideal of the rule of law to some extent, that need for evaluative judgment constitutes a necessary connection between law and morality.
J M Finnis and Patrick Martin, 'An Oxford Play Festival in February 1582' (2003) 50 Notes and Queries 391 [...]
A University Sermon preached by the President of Magdalen on 28 February 1582 discloses that eight plays were staged in the university during the last two weeks of February, and identifies something of the theme of each of them. Central themes of three of these eight, as well as of a ninth play staged at Trinity College Oxford in January, were later employed by Shakespeare, who also echoed elements in another of the February eight.
J M Finnis and Patrick Martin, 'Another Turn for the Turtle: Shakespeare's Intercession for Love's Martyr' (2003) 5220 Times Literary Supplement, 18 April 2003 12 [...]
Entirely new reading of Shakespeare's most enigmatic poem, showing the presence in it of Sir John Popham CJ and other persons living and lately dead in 1601.
J M Finnis and Patrick Martin, 'Caesar, Succession, and the Chastisement of Rulers' (2003) 78 Notre Dame Law Review 101 [...]
Study of the convergence between the political theory of succession of governments and chastisement of rulers in A Conference about the Next Succession (1593-5) and in Shakespeare's Rape of Lucrece (The Argument), Titus Andronicus, and Julius Caesar.
J M Finnis, 'Law and What I Truly Should Decide' (2003) 48 The American Journal of Jurisprudence 107
J M Finnis, 'Secularism, Morality and Politics' (2003) 37650 L'Osservatore Romano, English edition 9 [...]
Commentary on CDF Doctrinal Note dated 24 November 2002 and John Rawls (deceased 24 November 2002)
J M Finnis and Patrick Martin, 'Thomas Thorpe, 'W.S', and the Catholic Intelligencers' (2003) 38 English Literary Renaissance 3 [...]
First publication of and extended commentary on letters patent of an entry in the Court of Exchequer memorandum roll for Easter Term 1597, showing hitherto unsuspected connections between the publisher of Shakespeare's Sonnets and Catholic traitors overseas and at court.
E Fisher, 'The Rise of the Risk Commonwealth and the Challenge for Administrative Law'  2003(Autumn) Public Law 455
J Freedman, 'One Size Fits All - Small Business and Competitive Legal Forms' (2003) Vol 3 part I The Journal of Corporate Law Studies 123 [...]
Analysis of proposals of Company Law Review on small business law reform: based on paper presented to conference on corporate law reform at Cambridge Centre for Corporate and Commercial Law July 2002.
Brief summary of inaugural lecture delivered May 2003 analysing the need for a general anti-avoidance principle in tax law and discussing the significance of certainty in tax law.
John Gardner, 'The Mark of Responsibility' (2003) 23 Oxford Journal of Legal Studies 157
N Ghanea and L Rahmani, 'The 58th session of the UN Commission on Human Rights' (2003) International Journal of Human Rights
Roy Goode, 'Are Intangibles Fungible?' (2003) LLP TBA [...]
A slightly revised and expanded version of a contribution to the essays in honour of Bernard Rudden (see other entry)
G S Goodwin-Gill, 'Refugees and Responsibility in the Twenty-First Century: More Lessons Learned from the South Pacific' (2003) 12 Pacific Rim Law & Policy Journal 23 [...]
Reviews international law relating to the rescue and subsequent treatment of asylum seekers in distress at sea; considers the legality of the Australian practice in relation to the MV Tampa, in light of earlier precedent and practice.
B Goold, 'Public Area Surveillance and Policing: The Impact of CCTV on Police Behaviour and Autonomy' (2003) 2(1) January 2003 Journal of Surveillance and Society .
B Goold, 'Restorative Cautioning, Theories of Reintegration, and the Influence of Japanese Notions of Shame' (2003) 36(2) December 2003 Hosei Riron (The Journal of Law and Politics, Japan)
J Goudkamp, 'Proportionate Liability in Building and Subdivision Cases' (2003) 8 Australasian Journal of Natural Resources Law and Policy 179
L Green, 'Civil Disobedience and Academic Freedom' (2003) 41 Osgoode Hall Law Journal 380
L Green, 'Strategy and Fundamental Legal Rules' (2003) American Philosophical Association Newsletter on Law and Philosophy 69
L Gullifer, 'Will the Law Commission Sink the Floating Charge?' (2003) Lloyds Maritime and Commercial Law Quarterly 125 [...]
Critique of Law Commission's proposals to reform the law on personal property security
J J W Herring and P-L Chau, 'Cloning in the House of Lords' (2003) Family Law (Jordans) 781 [...]
Article discussing cloning.
C Hoyle, Roderick Hill, Karen Cooper and Richard Young, 'Introducing Restorative Justice to the Police Complaints System: Close Encounters of the Rare Kind.' (2003) Occasional Paper No. 20. Centre for Criminological Research 35 [...]
Abstract: This report presents a discussion of data on the introduction of restorative processes in the police complaints system.
ISBN: 0 947811 19 2
A Johnston and others, 'Draft Constitutional Treaty of the European Union and related documents' (2003) 28 European Law Review 3
A Kavanagh, 'Participation and Judicial Review: A Reply to Jeremy Waldron' (2003) 22 Law and Philosophy 1
A Kavanagh, 'The Idea of a Living Constitution' (2003) 16 Canadian Journal of Law and Jurisprudence 55
M Kurkchiyan, 'The Non-Regulated Transformation of Health Care in Post-Soviet Countries and its Consequences (in Russian).' (2003) 7 Health Management 7
B Lange, 'Regulatory Spaces and Interactions: An Introduction' (2003) Social and Legal Studies 411
B Lauriat, 'Trump Card or Trouble: The Diversity Rationale in Law and Education' (2003) 83 Boston University Law Review 1171
A V Lowe and others, 'The International Tribunal for the Law of the Sea: Survey for 2002' (2003) Vol 18, No. 4, 2003 International Journal of Marine and Coastal Law 447
A V Lowe, 'The Iraq Crisis: What Now?' (2003) 52(4) International and Comparative Law Quarterly 859
A V Lowe, 'The Rule of Law: Thinking of an Order in the International Society' (2003) 177(2003) Gaiko Forum 24
D J McBarnet, 'Transacciones transnacionales: trabajo legal, internacional y regulacion global' (2003) 1(1) Forum of Commercial Law: International Journal, LEGIS
J C McCrudden, 'The New Concept of Equality' (2003) 3 ERA-Forum 9
E McKendrick, 'The Common Law at Work: The Saga of Alfred McAlpine Construction Ltd v Panatown Ltd' (2003) 3 Hart: Oxford University Commonwealth Law Journal 145 [...]
An analysis of the decision of the House of Lords in Alfred McAlpine Construction Ltd v Panatown Ltd from 3 principal perspectives, namely procedural, transactional and that of legal principle
ISBN: 1472 9342
E McKendrick, 'The Common Law at Work: The Saga of Alfred McAlpine Construction Ltd v Panatown Ltd' (2003) 3(2) Oxford University Commonwealth Law Journal 145
J Morgan, 'Privacy, confidence and horizontal effect: "Hello" trouble' (2003) CLJ 444
A Orakhelashvili, 'Legal Basis of the United Nations Peace-Keeping Operations' (2003) Virginia Journal of International Law 484
A Orakhelashvili, 'Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights' (2003) 14 (2003) European Journal of International Law 529
A Orakhelashvili, 'State Immunity and International Public Order' (2003) 42 (2002) German Yearbook of International Law 227
A Orakhelashvili, 'The European Convention on Human Rights and International Public Order' (2003) 5 (2002-03) Cambridge Yearbook of European Legal Studies 237
A Orakhelashvili, 'Treaties and Title to Territory' (2003) Cambridge Law Journal 39425
J Payne, 'Unjust enrichment, trusts and recipient liability for unlawful dividends' (2003) 119(Oct) Law Quarterly Review 583
W E Peel, 'Loss of a chance revisited' (2003) 63 Modern Law Review 623 [...]
A short article based around the Court of Appeal's decisionin Gregg v Scott which discusses claims for loss of a chance inmedical negligence.
J Pila, 'Bound Futures: Patent Law and Modern Biotechnology' (2003) 9 Boston University Journal of Science and Technology Law 326-378
J Pila, 'Inherent Patentability in Anglo-Australian Law: A History' (2003) 14 Australian Intellectual Property Journal 109
D D Prentice, 'The Incorporation Theory - the United Kingdom' (2003) 14 European Business Law Review 631
J Raz, 'About Morality and the Nature of Law' (2003) 48 The Anerican Journal of Jurisprudence 1
J Raz, 'Legal Principles and the Limits of the Law' (2003) Insonomia Doxa
J Raz, 'Liberalism in an Age of Conflict' (2003) Oblicza Liberalizmu 87 [...]
Interview with Beata Polanowska
J Raz, 'Numbers, With and Without Contractualism' (2003) 16 Ratio 346
J Roberts, 'An analysis of the statutory statement of the purposes and principles of sentencing in New Zealand.' (2003) Australia and New Zealand Journal of Criminology
J Roberts, 'Public opinion and mandatory sentences of imprisonment: a review of international findings.' (2003) Criminal Justice and Behaviour, 2003.
J Roberts and T. Gabor, 'The Impact of Conditional Sentencing: Decarceration and Widening of the Net.' (2003) Canadian Criminal Law Review, 2003.
J Roberts and R. Melchers, 'The Incarceration of Aboriginal Offenders: an analysis of trends, 1978-2001.' (2003) Canadian Journal of Criminology and Criminal Justice, 2003.
J Roberts, 'The pluses and minuses of custody: sentencing reform in England and Wales.' (2003) The Howard Journal of Criminal Justice
J Roberts, 'The sentencing of Juveniles in Canada: An analysis of recent reform legislation.' (2003) Journal of Contemporary Criminal Justice
J Roberts, H. Johnson and M. Grossman, 'Trends in crimes of sexual aggression in Canada: an analysis of police-reported and victimizations statistics.' (2003) International Journal of Comparative Criminology, 2003.
J Roberts and N. Bala, 'Understanding sentencing under the Youth Criminal Justice Act.' (2003) Alberta Law Review
J Roberts, 'Victim impact statements and the sentencing process: enhancing communication in the courtroom.' (2003) Criminal Law Quarterly, 2003.
J Roberts and A. Edgar, 'Victim impact statements at sentencing: perceptions of the judiciary in Canada.' (2003) International Journal of Victimology
J Rowbottom, 'Shielding Children: The European Way' (2003) 79 Chicago-Kent L. Rev. 175
D Sarooshi, 'Some Preliminary Remarks on the Conferral by States of Powers on International Organizations' (2003) 4 New York University Jean Monnet Working Paper 1
M J Spence, 'La Tutela dei format scoperti negli archivi televisi' (2003) 8 Quaderni di AIDA 35 [...]
Paper on the protection of TV formats
Guenter Treitel, 'The Legal Status of Straight Bills of Lading' (2003) 119 Law Quarterly Review 608 [...]
Discusses, in light of the decision of the Court of Appeal in The Rafaela S (2003), the questioning whether "straight" bills of lading (1) have to be presented to the carrier by the person claiming delivery of the goods; and (2) -- documents of title to goods.
R H S Tur, 'Legislative Technique and Human Rights: The Sad Case of Assisted Suicide' (2003) 5 Criminal Law Reviews 12
R H S Tur, 'Legislative Technique and Human Rights: The Sad Case of Assisted Suicide'  January Criminal Law Review 3
R H S Tur, 'Two Theories of Criminal Law' (2003) SMU Law Review 101
D Vaver, 'Invention in Patent Law: A Review and A Modest Proposal' (2003) 11 (3) International Journal of Law & Information Technology 286
S Wallerstein and others, 'Thou Shall Not Resspect the person of the poor, not honour the person of the Mighty: On the Dinitz Case' (2003) 33 Mishpatim 13 [...]
S R Weatherill, 'Fair Play Please! Recent developments in the application of EC law to sport' (2003) 40 Common Market Law Review 51
A L Young and NW Barber, 'The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty'  2003(Spring) Public Law 112
L Zedner, 'The Concept of Security: an agenda for comparative analysis' (2003) 23 Legal Studies 153 [...]
Substantially revised and expanded version of the article that earlier appeared in Jahrbuch fuer Rechts- und Kriminalsoziologie(2003).
L Zedner, 'Too Much Security?' (2003) 31 International Journal of the Sociology of Law 155
J Armour, B.R. Cheffins and D.A. Skeel, 'Corporate ownership structure and the evolution of bankruptcy Law: Lessons from the UK' (2002) 55 Vanderbilt Law Review 1699
A Ashworth, 'Re-Drawing the Boundaries of Entrapment'  Criminal Law Review 161 [...]
Evaluation of impact of HL decision in LOOSELEY
Critical assessment of principles and practices of restorative justice
A Ashworth, 'Robbery Re-Assessed'  Criminal Law Review 851 [...]
Critical analysis of law and sentencing on robbery
N C Bamforth, 'Human Rights and Consumer Credit' (2002) 118 LQR 203 [...]
Case note on CA case.
N C Bamforth and Michael Beloff, 'The University Visitor, Academic Judgment, and the European Convention on Human Rights' (2002) Judicial Review 221 [...]
Examination of role of the University visitor and legal obligations of universities (in terms of procedural fairness) towards students and employees.
N. W. Barber, 'Citizenship, Nationalism and the European Union' (2002) 27 European Law Review 241
R Bird, 'Information management step by step - a law firm case study ' (2002) 2 Professional review
A Bogg, 'In Defence of Correlativity' (2002) Ratio Juris [...]
Analysis of Raz's theory of authority in the context of mistaken legal directives
A Briggs, 'Public Policy in the Conflict of Laws: a Sword and a Shield ?' (2002) (2002) 6 Singapore Journal of International and Comparative Law 953 [...]
Analysis of the rule of public policy which withholds recognition from a rule of foreign law otherwise applicable by reason of rules of choice of law.
A Briggs, 'The Legal Significance of the place of a tort' (2002) 2 OU Commonwealth Law Journal 7 [...]
Analysis of choice of law applicable to overseas torts, and of principles of long-arm jurisdiction of Australian courts.
S J Bright, 'Avoiding Tenancy Legislation: Sham and Contracting Out Revisited' (2002) CLJ 146 [...]
This article reviews the case law on whether attempts to avoid tenancy regulation work. It sets out the approaches that can be seen being used in the cases to determine if agreements are geniune or not, and argues that the approach taken by the Court of Appeal in Bankway Properties went beyond the traditional use of the doctrine.
S J Bright, 'Estate Rent charges and Reasonableness' (2002) 66 Conveyancer 507 [...]
Considers case of Orchard Trading
R Burnett, 'The case for counselling as a method for working with offenders' (2002) 7 Vista: Perspectives on Probation 216
A S Burrows, 'We do this at Common Law but that in Equity' (2002) 22(1) Oxford Journal of Legal Studies 1
P P Craig, 'Contracting Out, the Human Rights Act and the Scope of Judicial Review' (2002) 118 Law Quarterly Review 551 [...]
Application of HRA where activities are contracted out
A C L Davies, 'Mixed Signals: Using Educational and Punitive Approaches to Regulate the Medical Profession'  2002(Winter) Public Law 703
Ruth Deech, 'Progress with Confidence in Assisted Reproductive Techniques' (2002) 12 Journal of Japan Association for Bioethics 193 [...]
A survey of regulation of reproductive medicine
Legislation on stem cells and cloning
E Descheemaeker, 'Faut-il codifier le droit privé européen des contrats ? [Sense and Non-sense of Codifying European Contract Law ]' (2002) 47 McGill Law Journal 791 [...]
Abstract: Is it necessary to codify the private law of contracts in Europe? The question, the author argues, breaks down into three sub-questions. First, is such a codification conceivable, that is, does it make sense to claim to envision it? Next, is it desirable? And finally, is it realizable? The demand for codification would imply that one should answer these three questions affirmatively. According to the author this is not the case, however, because even if it is conceivable to create a legal instrument common to countries with distinct legal traditions and epistemologies (notably the civil and the common law), the arguments in favour of such a project are outweighed by those against it, notably issues of costs and uselessness. Above all, the idea of "Europeanizing" the law of contracts betrays a certain lack of understanding of the nature of law. In effect, not only is it impossible to set out in a uniform manner the same norm in several different systems, especially if they use different languages, but also the interior dependence of each of these systems of contract law on other branches of law and on national legal science makes the creation of a uniform contract law in Europe radically impossible.
G Dinwoodie, 'The Architecture of the International Intellectual Property System' (2002) 77 Chicago-Kent Law Review 993
J M Eekelaar, 'Beyond the Welfare Principle' (2002) 12 Child and Family Law Quarterly 237 [...]
Critique of the welfare principle
J M Eekelaar, 'Contact - Over the limit' (2002) 32 Family Law 271 [...]
Assessment of policy initiative on contact
J M Eekelaar, 'Judges and Citizens: Two Conceptions of Law' (2002) 22(3) Oxford Journal of Legal Studies 497
J M Eekelaar, 'Personal Rights and Human Rights' (2002) 2 Human Rights Law Review 181 [...]
Theorising human rights, especially in the personal domain
R Ekins and J Ip, 'Opening Pandora's Box?' (2002) 124 New Zealand Law Journal 117
R Ekins and Justice Judith Potter, 'The New Zealand Bill of Rights Act 1990: A Judicial Perspective' (2002) 12 Journal of Judicial Administration 85
P Eleftheriadis and Nicos Alivizatos, 'The Greek Constitutional Amendment of 2001' (2002) 7 South European Society and Poiltics 63
TAO Endicott, 'Significado internacional\': la cortesia en la adjudicacion de derechos fundamentales' (2002) Anuario de Derechos Humanos 81 [...]
Spanish translation of '"International Meaning": Comity in Fundamental Rights Adjudication'.
A Ezrachi, 'Globalization of Merger Control – A Look at Bilateral Cooperation Through the GE/Honeywell Case' (2002) 14 Florida Journal of International Law 397
A Ezrachi, 'The Long Arm of European Competition Enforcement' (2002) 143 Michkari Mishpat Law Review
J M Finnis, 'Aquinas on jus and Hart on Rights: A Response to Tierney' (2002) 64 The Review of Politics 407 [...]
E Fisher, 'Precaution, Precaution Everywhere: Developing a 'Common Understanding' of the Precautionary Principle in the European Community' (2002) 9 Maastricht Journal of European and Comparative Law 21 [...]
Criticism of "precaution spotting" because it ignores legal nature of the precautionary principle and role of legal culture.Principle gives rise to concerns of administrative constitutionalism and constitutional sovereignty.
J Freedman and others, 'The Limited Liability Partnership: Pick and Mix or Mix up?'  37500 Journal of Business Law 475 [...]
Comment on new Limited Liability Partnership Legislation- policy and technical content. An update and development of article written for Journal of Corporation Law in 2001.
John Gardner, 'Reasons for Teamwork' (2002) 8 Legal Theory 495
J S Getzler, 'Legislative incursions into modern trusts doctrine in England: The Trustee Act 2000 and the Contracts (Rights of Third Parties) Act 1999' (2002) 2:1:#2 Global Jurist Topics 1 [...]
English trust law is increasingly emulating contract. The relationship of trustee to beneficiaries is now modelled as a consensual relationship created by agreement rather than custody; and governed by standards and duties of care with tort-like features as opposed to traditional fiduciary controls. This movement, which has considerable support in the appellate judiciary, is accelerated by the recasting of trustee powers and duties in the Trustee Act 2000. Further contractualization might provoke a shift into third-party-beneficiary contract and agency models, a process that may be helped by the Contracts (Rights of Third Parties) Act 1999. The shift to contract-tort models may have gone too far in empowering trustees at the expense of entrustors, and on a broader level, in deregulating capital investment markets.
Roy Goode, 'Arbitration - Should Courts Get Involved?' (2002) 2002, No. 2 Judicial Studies Institute Journal (Ireland) 33 [...]
A slightly revised version of a paper presented at the 2002 Irish Annual Circuit Conference, it discusses to what extent arbitral awards should be subject to judicial review and compares the legislation in England and Ireland
Roy Goode, 'Assignment Clauses in International Contracts' (2002) 2002 No. 3/4 Forum Europeen de law Communication, International Business Law 389 [...]
Discusses typical assignment clauses in contracts and their legal significance
Roy Goode, 'The Cape Town Convention on international interests in Mobile Equipment: A Driving Force for International Asset-Based Financing' (2002) VII 2002-1 UNIDROIT, Uniform Law Review 3 [...]
Examines the significance of the Cape Town Convention on international interests in mobile equipment in providing a secure international legal regime for interests in aircraft objects, railway rolling stock and space assets, thereby reducing legal risk and borrowing costs and facilitating asset-based financing in developing countries
B Goold, 'CCTV and Public Area Surveillance in Japan: Balancing Privacy Rights and Police Powers' (2002) 34(6) December 2002 Hosei Riron (The Journal of Law and Politics, Japan)
B Goold, 'Privacy Rights and Public Spaces: CCTV and the Problem of the ‘Unobservable Observer' (2002) 21(1) Winter/Spring 2002 Criminal Justice Ethics
B Goold, 'Privacy Rights and Public Spaces: CCTV and the Problem of the ‘Unobservable Observer'' (2002) 21(1) Criminal Justice Ethics 21
I Goold, 'Property and Human Tissue – Case Examples' (2002) Centre for Law and Genetics Occasional Paper Series
J Goudkamp, 'Is there a Future for Advocates' Immunity?' (2002) 10 Tort Law Review 188
L Gullifer, 'The Cosslett Saga: Implications for the law of security over personal property' (2002) 20 Companies and Securities Law Journal 177 [...]
Discussion of the Cosslett saga of cases with implications for the law of security over personal property
C Harvey, 'The Prosecution of Crimes of War Committed in the former Yugoslavia: A Critical Analysis of the Role of the National Courts of Selected European States' (2002) 41 Military Law and the Law of War Review 169
J J W Herring and P-L Chau, 'Are Cloned embryos embryos?' (2002) 14 Child and Family Law Quarterly 315 [...]
Discussion of the legal status of cloned embryos.
J J W Herring and P-L Chau, 'Defining, Assigning and Designing Sex' (2002) 16 International Journal of Law Policy and the Family 327 [...]
Discussion of legal and medical definition of sex, with particular emphasis on the position of intersexual people
J J W Herring, 'Does yes mean yes? The criminal law and mistaken consent to sexual activity' (2002) 22 International Journal of Law Policy and Family 183 [...]
Article on criminal law and mistaken consent to sexual activity
J J W Herring, 'Gay rights come quietly' (2002) Law Quarterly Review 31 [...]
Casenote on Da Silva Mouta
J J W Herring, 'The Human Rights of Children in Care' (2002) Law Quarterly Review [...]
Casenote on Re S Re W
R G Hood, Martina Feilzer, Stephen Shute and Aidan Wilcox, 'Sex offenders emerging from long-term imprisonment. A study of their long-term reconviction rates and Parole Board members judgements of their risk' (2002) 42 British Journal of Criminology 371 [...]
An empirical study which challenges a number of preconceptions about the risks posed by sex offenders who have been sentenced to long terms of imprisonment, as well as the ability of parole board members to identify those who pose the highest risk of being reconvicted.
J C N Horder, 'Criminal Law and Legal Positivism' (2002) 8 Legal Theory 221 [...]
A defence of a positivist account of criminal law.
J C N Horder, 'Strict Liability, Statutory Construction and the Spirit of Liberty' (2002) 118 Law Quarterly Review 458 [...]
A critique of the use of strict liability in crimes impinging on the pursuit of hobbies and the conduct of small business.
A critical analysis of the British cases considering the recoverability in tort of the cost of maintaining a child born following a failed sterilisation procedure, beginning with McFarlane v Tayside Health Authority  2 AC 59, and culminating in the Court of Appeal decision in Rees v. Darlington Memorial Hospital NHS Trust  2 All ER 177.
A Kavanagh, 'Original Intention, Enacted Text and Constitutional Interpretation' (2002) 47 The American Journal of Jurisprudence 255
D Kimel, 'Remedial Rights and Substantive Rights in Contract Law' (2002) 8 Legal Theory 313 [...]
The article examines the relationship between law and morality through the prism of the comparison between contract and promise, and seeks to expose as an over-simplification the notion that the law can systematically replicate or enforce moral practices without altering them in the process. It focuses on the apparent discord between the reluctance of courts to enforce contracts, and the view that the core contractual obligation is performance. Having argued that, by contrast to promise, the intrinsic function of contract is not to foster personal relationships but to facilitate personal detachment, the article explains the abovementioned discord as an implication of Mill’s harm principle.
B Lange, 'From Boundary Drawing to Transitions: the Creation of Normativity under the EU Directive on Integrated Pollution Prevention and Control' (2002) 8 European Law Journal 246
B Lange, 'The Emotional Dimension in Legal Regulation' (2002) 29 Journal of Law and Society (Special Issue) 197
B Lange, 'What does Law Know? Prescribing and Describing the Social World in the Enforcement of Legal Rules' (2002) 30 International Journal of the Sociology of Law 131
I Loader, 'Governing European Policing: Some Problems and Prospects' (2002) 12 Policing & Society 291
I Loader and W de Haan, 'On the Emotions of Crime, Punishment and Social Control' (2002) 6 Theoretical Criminology 243
I Loader, 'Policing, Securitization and Democratization in Europe' (2002) 2 Criminology and Criminal Justice 125
G Loutzenhiser, 'Prescribed Share Concerns When Employee Stock Options Are Exercised During a Takeover Bid' (2002) 13(9) Taxation of Executive Compensation and Retirement 131
A V Lowe, 'The International Tribunal for the Law of the Sea: Survey for 2001' (2002) Vol 17, 2001 International Journal of Marine and Coastal Law 463
E McKendrick and James Edelman, 'Employee's Liability for Statements' (2002) 118 Law Quarterly Review '4 [...]
An analysis of cases concerned with the liability of an employee for statements made either negligently or fraudulently - principal cases discussed are Standard Chartered Bank v Pakistan National Shipping Corporation (No 2) (CA decision) and Merrett v Babb
E McKendrick and Martin Graham, 'The Sky's The Limit: Contractual Damages for Non-Pecuniary Loss' (2002) Lloyds' Maritime and Commercial Law Quarterly 161 [...]
An analysis of the decision of the House of Lords in Farley v Skinner in which an award of damages for non-pecuniary loss suffered as a result of a breach of contract was upheld.
ISBN: 0306 2945
E McKendrick, 'Traditional Concepts and Contemporary Values' (2002) 10 European Review of Private Law 95 [...]
Articles takes two case-studies (one involving the right to terminate further performance of the contract and the other concerning home-school partnership agreements) and examines the move towards the creation of a uniform contract law and the values which may underpin this move.
P N Mirfield, 'Bad Character and the Law Commission' (2002) 6(3) Evidence and Proof 141
P N Mirfield, 'Human Wrongs' (2002) 118 Law Quarterly Review 20
J Morgan, 'Law's British Empire' (2002) 22 OJLS 729
J Morgan, 'Questioning the True Effect of the Human Rights Act' (2002) Legal Studies 259
A Orakhelashvili, 'State Immunity in National and International Law' (2002) 15 (2002) Leiden Journal of International Law 703
A Orakhelashvili, 'The Arrest Warrant Case (Congo v. Belgium)' (2002) 96 (2002) American Journal of International Law 687
I Papanicolopulu, 'The 2001 ICJ Decision in the Qatar v. Bahrain Case (Merits) and its Bearing upon the 1982 United Nations Convention on the Law of the Sea' (2002) 55 Revue Hellenique de Droit International 385
J Payne, 'Clean Hands in Derivative Actions' (2002) 61 (1) Cambridge Law Journal 76
J Raz, 'Filosofia e pratica della liberta' (2002) 15 (37) Iride 475
J Roberts, 'Alchemy in sentencing: an analysis of reform proposals in England and Wales.' (2002) Punishment and Society. The International Journal of Penology, 2002.
J Roberts, B. Fischer and M. Kirst, 'Compulsory drug treatment in Canada: a socio-legal history and examination of contemporary legal tools.' (2002) European Addiction Research, 2002.
J Roberts, 'Determining parole eligibility dates for life prisoners: lessons from jury hearings in Canada.' (2002) Punishment and Society. The International Journal of Penology, 2002.
J Roberts and S. Verdun-Jones, 'Directing traffic at the crossroads of criminal justice and mental health: implications of the Supreme Court judgment in R. v. Knoblauch.' (2002) Alberta Law Review, 2002.
J Roberts and J. Tufts, 'Sentencing Juvenile Offenders: Public Preferences and Judicial Practice.' (2002) Criminal Justice Policy Review, 2002.
J Roberts, 'The Evolution of Conditional Sentencing in Canada.' (2002) Criminal Reports, 2002.
J Roberts and P. Stenning, 'The Sentencing of Aboriginal Offenders.' (2002) Saskatchewan Law Review, 2002.
J Roberts and others, 'Unintentional firearms deaths:Can they be reduced by lowering gun ownership levels?' (2002) Canadian Journal of Public Health, 2002.
J Rowbottom, 'Political Donations and the Democratic Process: Rationales for Reform'  Public Law 758
A Russell, 'Why Canada Should be Hesitant to Follow the United States and European Approach to Implementing the 1996 WIPO Copyright Treaty' (2002) 20 CPR 315
M J Spence, 'I brevetti di metodi per attivita' (2002) 114 Studi Senesi 583 [...]
Article on business method patents
R Stevens and Ben McFarlane, 'In Defence of Sumpter v Hedges' (2002) 118 Law Quarterly Review 569 [...]
A long article on a hoary old case.
S Talmon, 'Das deutsche Kolonialverfassungsrecht vor dem Internationalen Gerichtshof [The Constitutional Law of the German Colonies Before the International Court of Justice]' (2002) 40 Archiv des Völkerrechts [Public International Law Archive] 17
S Talmon, 'Ende des Föderalismus. Gleichschaltung und Entstaatlichung der deutschen Länder von der nationalsozialistischen Machtergreifung bis zur Auflösung des Reichsrats [End of Federalism. The Bringing Into Line and Liquidation of the German Federal States]' (2002) 24 Zeitschrift für Neuere Rechtsgeschichte [Journal of Contemporary Legal History] 112
Guenter Treitel, 'Some Comparative Notes on English and American Contract Law' (2002) SMU Law Review 9 [...]
The title is largely self-explanatory. Topics covered include third party beneficiaries, unexpected supervening events, Restatements and Codes, and Civil Law influences.
M Tulibacka, 'Consumer Sales Law in Poland - Changing the Law, Changing Attitudes' (2002) 25 Journal of Consumer Policy 403
R H S Tur, 'Just How Unlawful Is Euthanasia' (2002) Journal of Applied Philosophy 219
R H S Tur, 'The Doctor's Defence and Professional Ethics' (2002) 75 Kings College Law Journal 96
R H S Tur, 'The Doctor's Defense' (2002) The Mount Sinai Journal of Medicine 317
R H S Tur, 'Time and Law' (2002) 463 Oxford Journal of Legal Studies 488
D Vaver, 'Need Intellectual Property Be Everywhere? Against Ubiquity and Uniformity' (2002) 25:1 (2002) Dalhousie Law Journal 1 [...]
Argues that legal standardization of defective intellectual property laws is good for neither the developed nor the developing world. Retrenchment and diversity are better strategies. Cited favourably in the Constitutional Court of South Africa in Laugh It Off Promotions v. South African Breweries Int'l, 2005.
D Vaver, 'Recreating a Fair Intellectual Property System for the 21st Century' (2002) 15(2001) Intellectual Property Journal 123
D Vaver, 'The Copyright Mixture in a Mixed Legal System: Fit for Human Consumption?' (2002) 2002:2/3 Juridical Review 101
S Vogenauer, 'Die rechtliche Einordnung von Inline-Skates im Straßenverkehr - ein Rechtsvergleich' (2002) Neue Zeitschrift für Verkehrsrecht 537 [...]
Comparative analysis of the legal status of roller-bladers in road traffic law
S Vogenauer, 'Die zivilrechtliche Haftung von Inlineskatern im Straßenverkehr' (2002) Versicherungsrecht 1345 [...]
Civil liability of roller-bladers
U Amelung and S Vogenauer, 'Schutz der Privatheit vor Presseveröffentlichungen' (2002) Zeitschrift für Europäisches Privatrecht 341 [...]
Privacy in English law before and after Douglas v Hello! Ltd  2 All ER 289
S R Weatherill, 'Can there be common interpretation of European private law?' (2002) 31 Georgia Journal of International and Comparative Law 139
S R Weatherill, 'El Libro Verde de la Comision sobre Derecho Contractual Europeo: Contexto, Contenido y Fundamento constitucional' (2002) 244 Revista de Derecho Mercantil 755
S R Weatherill, 'The Commission's Options for Developing EC Consumer Protection and Contract Law: Assessing the Constitutional Basis' (2002) 13 European Business Law Review 497
R Williams and Professor Christopher F. Forsyth, 'Closing Chapter in the Immigrant Children Saga: Substantive Legitimate Expectations and Administrative Justice in Hong Kong' (2002) 10 Asia Pacific Law Review 29 [...]
Article discussing the closing stages of a series of judgments given by the Court of Final Appeal in Hong Kong concerning the interpretation of Article 24 of the Basic Law on the right of residence in Hong Kong. The piece argues that the Hong Kong executive, Legal Aid Board and Court system all found the technique of informal communication useful in managing claims for residence, but that the usefulness of this technique on future occasions is dependent on full protection being given to the expectations it creates so that trust in the administration can be maintained. The article also discusses some of the general background theory and doctrine concerning legitimate expectations in administrative law more generally and argues that although the courts are often concerned with the numbers of people claiming legitimate expectations, in fact t