Around Oxford Around Oxford Law image

All Journal Articles

Showing all[*] journals sorted by type, then year, author, title  [change this]

Showing all 2353 relevant journals currently held in our database
Change to sort them by year | title | name OR
Show only Recent journals

Journal Articles


N. W. Barber, 'The Significance of the Common Understanding In Legal Theory' (2016) 36 Oxford Journal of Legal Studies (forthcoming)

N. W. Barber, 'Why Entrench? ' (2016) 14 International Journal of Constitutional Law (forthcoming)

M Bosworth and M. Vannier, 'Human Rights and Immigration Detention in France and the UK' (2016) European Journal of Migration and Law (forthcoming)

J Goudkamp and L Klar, 'Apportionment for Contributory Negligence: The Causal Potency Criterion' (2016) Alberta Law Review


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

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

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

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

ISBN: 0011-135X

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

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

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

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

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

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

DOI: 10.1177/1043986214568840

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

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

DOI: 10.1007/s11292-015-9240-0

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

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

DOI: 10.1177/1043986214568833

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

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

DOI: 10.1111/jels.12069

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

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

DOI: 10.1177/1748895815572164

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

B Bradford and A Myhill, 'Triggers of change to public confidence in the police and criminal justice system: Findings from the Crime Survey for England and Wales panel experiment' (2015) 15 Criminology and Criminal Justice 23 [...]

DOI: 10.1177/1748895814521825

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

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

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

ISBN: 0306 2945

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOI: 10.1093/clp/cuv004

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

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

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

ISBN: 1565-3404

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

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

ISBN: 1566-7529

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

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

ISBN: 0040-4411

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

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

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

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

ISBN: 978 148510 877 1

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


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

ISBN: 0020-5893

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

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

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

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

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

ISBN: 0041-9907

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

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

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

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

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

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

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

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

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

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

Discussion of contact cases where children refuse to see parents

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

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

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

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

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

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

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

DOI: 10.1007/s11572-013-9231-z

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISBN: 0002-919x

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

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

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

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

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

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

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

ISBN: 2050-1706

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

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

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

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

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

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


T Adams, 'Is there a Naturalistic Alternative? Realism, Replacement, and the Theory of Adjudication' (2014) Canadian Journal of Law and Jurisprudence [...]

This essay considers Brian Leiter’s arguments for ‘replacement naturalism’ in the domain of adjudication, his thesis being that we should reject as plausible the ‘normative theory of adjudication’ and replace it with a posteriori theory which best explains the causes of judicial decisions. My central claim is that his ‘naturalizing’ argument is incomplete in the following way: it is against a bad kind of philosophical theory and leaves scope for a better, non-naturalistic, account. Both Leiter’s original arguments for the position and his more recent suggestions in response to critics are considered.

J Armour and JN Gordon, 'Systemic Harms and Shareholder Value' (2014) 6 Journal of Legal Analysis 37 [...]

The financial crisis has demonstrated serious flaws in the corporate governance of systemically important financial firms. In particular, the norm that managers should seek to maximize shareholder value, as measured by the stock price, proves to be a faulty guide for managerial action in systemically important firms. This is not only because the failure of such firms will have spillovers that defy the cost-internalization of the tort system, but also because these spillovers will harm their own majoritarian shareholders. The interests of diversified shareholders fundamentally diverge from the interests of managers and other controllers because the failure of a systemically important financial firm will produce losses throughout a diversified portfolio, not just own-firm losses. Among the consequences: the business judgment rule protection that makes sense for officers and directors of a non-financial firm leads to excessive risk-taking in a systemically important financial firm. To encourage appropriate modification of incentives, we propose officer and director liability rules as a complement to (and substitute for) the prescriptive rules that have emerged from the financial crisis.

ISBN: 21617201

J Armour and BR Cheffins, 'The Origins of the Market for Corporate Control' (2014) University of Illinois Law Review 1835 [...]

This Article examines the origins of the market for corporate control in the United States. The standard historical narrative is that the market for corporate control took on its modern form in the mid-1950s with the emergence of the cash tender offer. Using handcollected data from newspaper reports, we show that there in fact were numerous instances during the opening decade of the twentieth century where a bidder sought to obtain voting control by purchasing shares on the stock market. Moreover, share-for-share exchange tender offers likely were used to make takeover bids as early as 1901 and cash tender offers can be traced back to at least the mid-1940s. We argue that the way in which cash tender offers came to dominate the market for control after World War II can be explained primarily by changes in the pattern of share ownership and reduced opportunities bidders had for “managing” the stock price of intended targets.

ISBN: 02769948

A Ashworth, 'A Decade of Human Rights in Criminal Justice' [2014] Criminal Law Review 325 [...]

A review of the impact of European human rights law on criminal law and criminal justice between 2003 and 2014.

ISBN: 0011-135X

R Bird, Prof. Penny Hazelton and Kyle Brown, 'CTC and International Research and Information Systems' (2014) Cape Town Convention Journal Hart 69 [...]


There is a long history of creating digital libraries of legal materials in general and of international legal materials in particular. This article highlights the history of several noteworthy examples of earlier digital libraries. It then describes the creation of the Cape Town Convention Academic Project digital library. Finally, the article applies lessons learned from the histories of the earlier libraries to analyse issues the Cape Town Convention library may face in the future.

R Bird, 'Free European Sources' (2014) Internet Newsletter for Lawyers 11 [...]

Reviews the new version of Eur-Lex, which offers a set of legislative and case law resources that are core for many lawyers in the EU and beyond.

M Bosworth and G Slade, 'In Search of Recognition: Gender and Staff-Detainee Relations in a British Immigration Removal Centre' (2014) 16 Punishment & Society 169 – 186

J Jackson, M Asif, B Bradford and M Zakar, 'Corruption and Police Legitimacy in Lahore, Pakistan' (2014) 54 British Journal of Criminology 1067 [...]

DOI: 10.1093/bjc/azu069

Police legitimacy is an important topic of criminological research, yet it has received only sporadic study in societies where there is widespread police corruption, where the position of the police is less secure, and where social order is more tenuous. Analysing data from a probability sample survey of adults in Lahore, Pakistan, we examine the empirical links between people’s experience of police corruption, their perceptions of the fairness and effectiveness of the police, and their beliefs about the legitimacy of the police. Our findings suggest that in a context in which minimal effectiveness and integrity is yet to be established, police legitimacy may rest not just on the procedural fairness of officers, but also on their demonstrated ability to control crime and avoid corruption.

M Hough, J Jackson and B Bradford, 'La légitimité de la police: conclusions de l’Enquête sociale européenne' (2014) 27/28 Cahiers de la sécurité 154 [...]

Cet article résume certaines des réflexions et des conclusions empiriques qui sous-tendent un programme d’enquête sur la théorie de la justice procédurale en Europe. Il place la théorie de la justice procédurale au sein d’un ensemble de théories du respect de la loi et en présente les principales caractéristiques, en définissant le concept central de légitimité. Il présente ensuite des conclusions du cinquième volet de l’Enquête sociale européenne d’où il ressort que différents types de confiance de l’opinion publique en la police sont liés à la perception par le grand public de la légitimité de la police, qui est à son tour liée au respect de la loi et à la disposition à collaborer avec la police. This article summarises some of the thinking and empirical findings behind a programme of survey work on procedural justice theory in Europe. It locates procedural justice theory in a framework of compliance theories and sketches out the main features of it, defining the central concept of legitimacy. It then presents findings from the fifth European Social Survey. This provides good support for the procedural justice hypotheses that we set out to test – that different types of public trust in the police are related to public perceptions of police legitimacy, which in turn are related to self-report compliance with the law and preparedness to cooperate with the police.

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

DOI: 10.1080/10439463.2012.724068

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

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

DOI: 10.1093/bjc/azu021

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

B Bradford and P Quinton, 'Self-legitimacy, police culture and support for democratic policing in an English Constabulary' (2014) 54 British Journal of Criminology 1023 [...]

DOI: 10.1093/bjc/azu053

When do police officers feel confident in their own authority? What factors influence their sense of their own legitimacy? What is the effect of such ‘self-legitimacy’ on the way they think about policing? This article addresses these questions using a survey of police officers working in an English Constabulary. We find that the most powerful predictor of officers’ confidence in their own authority is identification with their organization, itself something strongly associated with perceptions of the procedural justice of senior management. A greater sense of self-legitimacy is in turn linked to greater commitment to democratic modes of policing. Finally, we find that this sense of legitimacy is embedded in a matrix of identities and cultural adaptations within the police organization.

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

DOI: 10.1111/rego.12012

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

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

DOI: 10.1177/1477370813491898

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

S Blandy and S J Bright, 'Editors' Introduction and Survey Findings, Research Methods in Property Law' (2014) 3 Property Law Review 139 [...]

Guest Editors Sarah Blandy and Susan Bright explain the background and inspiration for this Special Issue of the Property Law Review journal. They present the results of their 2013 cross-jurisdictional survey on property law scholarship, which sought to discover which methods of research are most common and to explore whether dominant approaches vary between jurisdictions, revealing a diversity of property law research approaches.

L Whitehouse and S J Bright, 'The empirical approach to research in property law' (2014) 3 Property Law Review 176 [...]

This article offers an account of the unique characteristics, challenges and benefits of empirical legal research. The authors explain that empirical legal research involves the collection and observation of data through a variety of research techniques, such as interviews, observation and surveys, and how it differs from some of its close neighbours, in particular socio-legal research. While the challenges posed by empirical legal research are acknowledged, this article argues that it enriches property law scholarship by enabling researchers to weave together the law learned in books with the law understood and applied in practice.

H Collins, 'Conformity of Goods, the Network Society, and the Ethical Consumer' (2014) European Review of Private Law 619 [...]

European contract law requires goods marketed to consumers to satisfy various standards such as to be fit for the purposes for which such goods are ordinarily used and to ‘possess such qualities and performance capabilities as the buyer may expect’ (Art. 100(g) Common European Sales Law (CESL)). Although the law tends to focus on the qualities of the goods in themselves, my question is whether the reasonable expectations of consumers include reference to the means of production up the supply chain and an expectation that the goods will not be produced through the use of labour that is employed under conditions that violate European Union (EU) labour laws, international labour standards, and human rights law. For instance,should consumers have the expectation that the clothes we purchase are not produced through child labour, or that the mobile phones we buy are not produced under working conditions that breach basic standards such as the International Labour Organization (ILO) and EU rules on working time, or that the tomatoes we eat are not picked by labourers working under conditions of servitude contrary to Article 4 of the European Convention of Human Rights? If consumers have such expectations and EU contract law can protect them, the law may provide a vehicle for addressing some of the worst instances of labour exploitation worldwide.

H Collins, 'Implied Terms: The Foundation in Good Faith and Fair dealing' (2014) 67 Current Legal Problems 297 [...]

DOI: 10.1093/clp/cuu002

With the aim of clarifying English law of implied terms in contracts and explaining their basis in the idea of good faith in performance, it is argued first that two, but no more, types of implied terms can be distinguished(terms implied in fact and terms implied by law), though it is explained why these types are frequently confused. Second, the technique of implication of terms is distinguished in most instances from the task of interpretation of contracts. Third, it is argued that ideas of good faith and fair dealing should be acknowledged as central to the implication of terms,though different notions of good faith apply to terms implied in fact and terms implied by law. Finally, it is possible to identify a group of contracts(networks) that share an intensified economic logic of both competition and co-operation arising from their structure as a quasi-integrated production regime which require intensified duties of loyalty and co-operation implied by law.

R Condry and Caroline Miles, 'Adolescent to Parent Violence: Framing and Mapping a Hidden Problem' (2014) 14 Criminology and Criminal Justice [...]

DOI: 10.1177/1748895813500155

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.

C Costello and Minos Mouzarakis, 'Reflections on Reading Tarakhel' (2014) Asiel en Migrantenrecht 404

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

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

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

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

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

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

G Dinwoodie, 'Secondary Liability for Online Trademark Infringement: The International Landscape' (2014) 36 Columbia Journal of Law and the Arts 463 [...]

In U.S. law, the term “secondary liability” is an umbrella term encompassing a number of different types of trademark infringement claim. Its essence is that liability does not turn on the defendant itself using the plaintiff’s mark, but rather on the defendant being held responsible for the infringements occasioned by the use of the plaintiff’s mark by a third party infringer. Secondary liability claims might be strategically preferable to trade mark owners over bringing actions against the primary infringer. The advent of the Internet has only enhanced some of these strategic benefits. However, secondary liability also creates the spectre of highly intrusive regulation of the business of intermediaries operating in the online environment. In these cases, we must balance the rights of the mark owner with enabling legitimate development of innovative technologies that allow new ways of trading in goods. The online context of many contemporary uses of marks has also, as in other areas of intellectual property law, prompted a demand for international solutions to the potential liability of online intermediaries for secondary trademark infringement. And indeed most countries have long recognised a cause of action for engaging in conduct that U.S. law would call secondary trade mark infringement. This Article assesses the international treatment of these causes of action, first by looking at international law principles conventionally understood, namely, state to state obligations regarding the content of domestic law. There is little of relevance to the secondary liability question if the international landscape is understood in those terms. Thus, the Article proceeds also to analyse commercial practices that are contributing to soft transnational law and to compare the regimes adopted by the United States and the European Union as leading examples of approaches to the secondary liability question. The Article focuses on parallel fact patterns that have been litigated to appellate level in a number of countries. Thus, the paradigmatic cases considered are (1) claims brought against online auction sites, each essentially alleging that the auction site could have done more to stop the sale of counterfeit and other allegedly infringing items by third parties on its web site; (2) claims brought against search engines alleging that the sale of keyword advertising consisting of the trademarks of parties other than the mark owner resulted in infringement (normally, by causing actionable confusion).

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

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

J Edwards, 'Harm Principles' (2014) 20 Legal Theory 253

L Duarte d'Almeida and J Edwards, 'Some Claims About Law's Claims' (2014) 33 Law and Philosophy 725

J Edwards and AP Simester, 'Wrongfulness and Prohibitions' (2014) 8 Criminal Law and Philosophy 171

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

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

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

DOI: 10.1093/lawfam/ebt013

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

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

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

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

P Eleftheriadis, 'Misrule of the Few' (2014) Foreign Affairs

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

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

ISBN: ISSN: 2071-8322

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

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

ISBN: 0841-8209

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

DOI: 10.1093/jrls/jlu005

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

L Enriques, R.J. Gilson and A.M. Pacces, 'The Case for an Unbiased Takeover Law (with an Application to the European Union)' (2014) 4 Harvard Business Law Review 85

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

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

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

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

L Ferguson, '“Families in all their Subversive Variety”: Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity whilst Protecting Children' (2014) 63 Studies in Law, Politics, and Society 43

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

This reflective article explores how different regulatory regimes concerned with the industrial use of chemicals conceptualize chemicals as regulatory objects in different ways. The United States Toxic Substances Control Act characterizes chemicals as risky objects, the European Union's REACH regime characterizes chemicals as market objects and the Californian Green Chemistry Initiative characterizes chemicals as scientific objects. The malleability of chemicals as regulatory objects has implications for debates about international chemicals regulation, including the need for a more nuanced debate and greater regulatory imagination.

ISBN: 2050-0394

S Fredman, 'Addressing Disparate Impact: Indirect Discrimination and the Public Sector Equality Duty ' (2014) 43 Industrial law Journal 349 [...]

DOI: 10.1093/indlaw/dwu016

This commentary draws out the implications of recent cases on indirect discrimination and its relationship to the Public Sector Equality Duty. It argues that both indirect discrimination and the public sector equality duty include a duty to take pre-emptive action once a pattern of disparate impact has been made out. Drawing on dicta in recent cases, and comparing them with recent US jurisprudence, it argues that courts have sown the seeds of such a duty but this has not been appropriately recognised in the remedy.

ISBN: 0305-9332

S Fredman, 'Reversing roles: bringing men into the frame' (2014) 10 International Journal of Law in Context 442 [...]

DOI: 10.1017/S1744552314000214

The attempt to secure maternity rights has been a major focus of decades of campaigning for women’s equality. However, it is of concern that maternity rights might reinforce women’s responsibility for childcare. This paper considers how we bring men back into the frame, through a critical assessment of the contrasting approaches in Europe and the US to claims by fathers for parenting rights. It is argued that the goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. This is only possible if the conception of equality is shaped by a conscious and explicit commitment to the social value of parenthood. Substantive equality can only be genuinely furthered if pregnancy and parenthood are appropriately distinguished. Whereas pregnancy is unique and should be treated as such, a true application of substantive equality requires a ‘levelling up’ option, extending women’s parenting rights to fathers.

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

I Gagliardone, 'Media Development with Chinese Characteristics' (2014) Global Media Journal, vol. 4, no.2

I Gagliardone, 'New Media and the Developmental State in Ethiopia' (2014) African Affairs, vol. 113, no. 451

I Gagliardone, '“A Country in Order”: Technopolitics, Nation Building and the Development of ICTs in Ethiopia' (2014) Information Technologies & International Development, vol. 9, no. 4

Roy Goode, 'Security interests in Mobile Equipment: Lawmaking Lessons from the Cape Town Convention' (2014) Adelaide Law Review 59 [...]

An analysis of the Cape Town Convention on International Interests in Mobile Equipment, with its associated Protocols, and its relationship with national law and with reference to the recent ratification by Australia

ISBN: 0065-1915

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

K Greasley, 'A Legal Market in Organs: The Problem of Exploitation' (2014) 40 Journal of Medical Ethics 51

K Greasley, 'The Pearl of the Pro-Life Movement: Reflections on the Kermit Gosnell Controversy' (2014) 40 Journal of Medical Ethics 419

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

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

L Gullifer, 'The interpretation of retention of title clauses: Wilson v Holt generates some difficulties. ' (2014) Lloyds Maritime and Commercial Law Quarterly 564 [...]

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

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

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

J J W Herring, 'Assisted Suicide: The Liberal, Humanist Case Against Liberalization: Book Review' (2014) 10 International Journal of Law in Context 273

J J W Herring and Jesse Wall, 'Capacity to consent to sex' (2014) 22 Medical Law Review 620

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

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

A discussion of posthumous parenting

J J W Herring and Stephen Gilmore, 'Listening to children...whatever' (2014) 130 Law Quarterly Review 531

J J W Herring, 'Rape and the definition of consent' (2014) 26 National Law School of India Review 62

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

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

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

J J W Herring, 'The divorce debacle' (2014) New Law Journal 12 [...]

A discussion of Rapisarda v Colladon

J J W Herring, 'The welfare principle and the Children Act: presumably it's about welfare?' (2014) 36 Journal of Social Welfare and Family Law 14 [...]

A discussion of the use of presumptions in interpreting the welfare principle in the Children Act 1989.

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

A Higgins, 'CPR3.9: the Mitchell guidance, the Denton revision and why coded messages don’t make for good case management' (2014) 33 Civil Justice Quarterly 379

A Higgins, 'Legal aid and access to justice in England and India' (2014) 26 National Law School of India Review 13

Laura Hoyano, 'Straining the Quality of Justice for Children and Their Families in Public Law Cases' (2014) [2014] Family Law 598 [...]

This is the text of an invited lecture to the Family Justice Council in February 2014. It comments on the hostile approach of the Norgrove Commission to parental rights under ECHR articles 6 and 8 to investigative and procedural fairness in care proceedings, and demonstrates that these rights are consonant with the child's rights, not in opposition to them. Discusses the 26-week rule in the Family Procedure Rules 2010 and use of a single expert, arguing that delay must be permitted in complex cases which require access to expertise. Gives examples of miscarriages of justice in the family justice system.

Laura Hoyano, 'What Is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial' [2014] [2014] Criminal Law Review 4 [...]

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

ISBN: 0011-135X

Laura Hoyano, 'Withholding Potentially Life-Sustaining Treatment and the Mental Capacity Act 2005' (2014) 36 Journal of Social Welfare and Family Law 1 [...]

Considers the interpretation of the Mental Capacity Act 2005 in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, and regrets the last opportunity to consider the human rights dimensions offered by the ECHR.

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

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

ISBN: 0269-7580

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

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

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

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

A Kavanagh, 'Outcome Reasons and the Ambiguity of Process: Assessing Proportionality under the UK HRA' (2014) Law Quarterly Review 235

A Kavanagh, 'Proportionality and Parliamentary Debate: Exploring Some Forbidden Territory' (2014) Oxford Journal of Legal Studies 1

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)

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

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

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

DOI: 10.1093/ojls/gqu014

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

ISBN: 1464-3820

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

DOI: 10.1093/ajj/auu005

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

ISBN: 2049-6494

G Lamond, 'Legal Systems and the Rule of Recognition' (2014) 10 Jerusalem Review of Legal Studies 68

AYK Lee, 'Legal Coercion, Respect & Reason-responsive Agency' (2014) 17 Ethical Theory and Moral Practice 847 [...]

DOI: 10.1007/s10677-013-9486-4

Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that (a) legal coercion fails to respect individuals as reason-responsive agents; and (b) individuals ought to be respected as such in virtue of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’.

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

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

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

I Loader, B Goold and A Thumala, 'The Moral Economy of Security' (2014) 18 Theoretical Criminology 469 [...]

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

G Loutzenhiser, 'Finance Act 2014 notes: section 58: relief on disposal of private residence' [2014] 4 British Tax Review 406

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

R Momberg Uribe, 'Harmonization of contract law in Latin America: past and present initiatives' (2014) Vol 19 Uniform Law Review 411

Tamsyn Clark and D P Nolan, 'A Critique of Chester v Afshar' (2014) 34 Oxford Journal of Legal Studies 659 [...]

DOI: 10.1093/ojls/gqu019

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.

ISBN: 0143-6503

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

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

ISBN: 0023-933X

J Pila, 'Pluralism, Principles and Proportionality in Intellectual Property 181-200' (2014) Oxford Journal of Legal Studies

F Pirie, 'Comparison in the Anthropology and History of Law' (2014) 9 Journal of Comparative Law 88

J Prassl, '"All in it Together?" Labour Markets in Crisis' (2014) 1 Hungarian Labour Law E-Journal 23

J Prassl, '"Mindannyiunkat egyformán érint?” Az Egyesült Királyság koalíciós kormányának munkaerő-piaci reformjai' (2014) 1 Magyar Munkajog E-Folyóirat 26

J Prassl, 'Contingent Crises, Permanent Reforms: Rationalising Labour Market Reforms in the European Union' (2014) 5 ELLJ 211

J Prassl, 'EU Aviation Law before the English Courts: Dawson, Huzar, and Regulation 261/2004' (2014) 39 Air & Space Law 365

J Prassl, 'L’emploi multilatéral en droit anglais' (2014) 4 Revue de Droit du Travail 236

J Prassl, 'Reforming Air Passenger Rights in Europe' (2014) 39 Air & Space Law 59

E Ramaekers, 'Classification of Objects by the European Court of Justice: Movable Immovables and Tangible Intangibles' (2014) 39 European Law Review 447 [...]

EU property law as a field of law is still very much in its infancy, but it is developing steadily. In past research I have focused on the influence of the internal market rules on national property law and on the extent to which the European legislature has enacted legislation dealing with matters of property law. EU property law is, however, not merely shaped by the European legislature, but also by the Court of Justice of the European Union. CJEU judgments on property law matters are predominantly found in the context of the Value Added Tax Directive. This Directive contains key property law terms such as “immovable” and “tangible”, but does not provide definitions of these terms. This article discusses the criteria developed by the CJEU to classify objects as either movable or immovable, tangible or intangible, and the importance of these judgments for national and European property law.

J Roberts and Jan de Keijser, 'Democratizing Punishment: Sentencing, Community Views and Values' (2014) Punishment and Society. The International Journal of Penology

J Roberts and J. Pina-Sanchez, 'Previous Convictions at Sentencing: Exploring Empirical Trends in the Crown Court ' [2014] Criminal Law Review 575

J Roberts and O. Yalinchak, 'Risk, Retribution, and Prior Record Enhancement Provisions in State Sentencing Guidelines' (2014) 26 Federal Sentencing Reporter 177

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

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

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

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

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

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

A J B Sirks, 'A note on the methodology in Seeck’s Regesten' (2014) 82 Tijdschrift voor Rechtsgeschiedenis 47 [...]

When reconstructing the sources of the Theodosian Code, it is useful to put the thesis, that local archives were used, to the test and reconstruct such a local archive on the basis of the addressee. It appears in the provided example that the letters must have been taken from the imperial copybook of outgoing letters. Further, Seeck reconstructed sometimes the place where a text was issued on basis of the itinerary of the emperor. In the example taken, it appears that Seeck was rather casual in his assumptions on the speed the emperor traveled or could have traveled and that another route, which would necessitate less emendations, is also possible. His Regesten show in this respect a critical weakness.

A J B Sirks, 'Causae adquirendi eius quod nostrum non sit (D. 41, 2,3,21): rechtmäßiger Eigenbesitz?' (2014) 82 Tijdschrift voor Rechtsgeschiedenis 209 [...]

The thesis that the causae adquirendi in D. 41,2,3,21 lead first of all to a ‘rechtmäßiger Eigenbesitz’ (justified possession) and not to ownership or acquisitive possession, as formulated by Pool, does appear not to hold upon examination of this text. The key text D. 41,4,2,1 on which his thesis that the title pro emptore implies such possession relies,does not imply more than factual possession. The causae of D. 41,2,3,21 refer, as the causa in D. 41,4,2,1 and other places, to the causa antecedens, the reason for the taking of possession.

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

DOI: 10.1163/22119000-01504007

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

ISBN: 1660-7112

A Tzanakopoulos, 'Strengthening Security Council Accountability for Sanctions: The Role of International Responsibility' (2014) 19 Journal of Conflict and Security Law 409 [...]

DOI: 10.1093/jcsl/kru017

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

ISBN: 1467-7954

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

F Varese, 'The Protector’s Choice An Application of Protection Theory to Somali Piracy' (2014) British Journal of Criminology

J Vella and Michael Devereux, 'Are we heading towards a corporate tax system fit for the 21st century?' (2014) 35 Fiscal Studies 449

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

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

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

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

S Vogenauer, 'The UNIDROIT Principles of International Commercial Contracts at Twenty: Experiences to Date, the 2010 Edition, and Future Prospects' (2014) Uniform Law Review 481-518 [...]

The UNIDROIT Principles of International Commercial Contracts (PICC), a set of non-binding contract law rules and principles designed for cross-border trade on a global scale, were first published in 1994. As a ‘soft law’ instrument, they deliberately avoid the traditional public international law approach to harmonization of private law by way of conventions concluded by contracting states. At the same time, they do not sit comfortably with the current national regimes of private international law and their choice of law rules. This article traces the development of the PICC over the past two decades and attempts some predictions about their future relevance, not the least in the light of a recent initiative by the Hague Conference on Private International Law. The focus, however, is on a critical assessment of the new provisions in the most recent version of the PICC, the 2010 edition, which deal with illegal contracts, contractual conditions, the plurality of obligors and obligees, and the unwinding of failed contracts.

S R Weatherill, 'Use and Abuse of the EU’s Charter of Fundamental Rights: on the improper veneration of “freedom contract”’ - Comment on Case C-426/11 Mark Alemo-Herron v Parkwood Leisure' (2014) 10 European Review of Contract Law 167

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

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


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 191

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

N Choolhun and R Bird, 'British and Irish Association of Law Librarians (BIALL) Legal Information Literacy Statement.' (2013) 6 (2) 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.

ISBN: 1750-5968

R Bird, 'How LawSauce came to be' (2013) Internet Newsletter for Lawyers 9 [...]

The reasons for developing an app, the work involved, and the legal resources included are outlined in this article on the creation of Lawsauce

ISBN: 2046-9284

R Bird, 'Trends in legal education and the legal profession: comparative perspectives' (2013) 13 Legal Information Management 162 [...]

DOI: 10.1017/S1472669613000406

Legal education in each jurisdiction varies in the requirements of lawyers. It uses tables to outline requirements for local and foreign law graduates to study law, and the bodies which regulate legal education. Covers Australia, Canada, England, Scotland, Nthern Ireland,New Zealand and US.

ISBN: 1472-6696

E Bjorge, 'The Courts and the ECHR: A Principled Approach to the Strasbourg Jurisprudence' (2013)

A Bogg, A Forsyth and T Novitz, 'Worker Voice in Australia and New Zealand: the role of the State reconfigured?' (2013) 34 Adelaide Law Review 1

J Jackson, A Huq, B Bradford and TR Tyler, 'Monopolizing Force? Police Legitimacy and Public Attitudes Toward the Acceptability of Violence' (2013) 19 Psychology, Public Policy, and Law 479 [...]

DOI: 10.1037/a0033852

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 [...]

DOI: 10.1108/13639511311329732

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.

M Hough, J Jackson and B Bradford, 'The drivers of police legitimacy: some European research' (2013) 8 Journal of Policing, Intelligence and Counter Terrorism 144 [...]

DOI: 10.1080/18335330.2013.821735

This article summarises some of the thinking and empirical findings behind a programme of survey work on procedural justice theory in Europe. The paper locates procedural justice theory in a framework of compliance theories and sketches out the main features of it, defining the central concept of legitimacy. It then presents the findings from the fifth European Social Survey, drawing on a ‘trust in justice’ module that was designed by the authors and colleagues. This provides a good support for the procedural justice hypotheses that we set out to test—that different types of public trust in the police (trust that they are effective, procedurally fair and distributively fair) are related to public perceptions of police legitimacy, which in turn are related to self-reported compliance with the law and preparedness to cooperate with the police.

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.

ISBN: 0023-933X

S J Bright and H Dixie, 'Evidence of Green Leases in England and Wales' (2013) 6 International Journal of Law in the Built Environment 6 [...]

DOI: 10.1108/IJLBE-07-2013-0027

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

Lord Rodger of Earlsferry and A S Burrows, 'Peter Birks' (2013) Restitution Law Review 54

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.

ISBN: 0242-5785

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.

ISBN: 0020-5893

H Collins, 'Entretiens sur le droit du licenciement pour motif économique: Royaume Uni ' (2013) 6 Revue de Droit du Travail 430

H Collins, 'Why Europe Needs a Civil Code' (2013) 21 European Review of Private Law 907 [...]

Arguments in favour of the creation of a civil code for the European Union are usually framed in terms of the internal market agenda, which seeks to remove real or supposed obstructions to trade, such as the diversity of national laws. Although those arguments for a European civil code are found inadequate and to some extent misconceived, a different reason for the creation of a civil code consisting of principles rather than detailed rules is advanced, based on the idea that Europe needs to construct a transnational civil society that will provide the foundations for greater political solidarity between the peoples of Europe and thereby legitimate more effective transnational institutions of governance.

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 [...]

DOI: 10.1177/1477370813475391

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.

ISBN: 0002-919X

P Davies, 'Federal Deposit Insurance Corporation and Bank of England memorandum on resolving globally active systemically important financial institutions' (2013) 7 Law and Financial Markets Review 304 [...]

DOI: 10.5235/17521440.7.6.304

The cross-border co-ordination necessary for the successful resolution of global systemically important financial institutions (G-SIFIs) has emerged as a major issue in the post-crisis reforms. In particular, the Financial Stability Board addressed this issue in its “Key Attributes of Effective Resolution for Financial Institutions”, adopted in 2011. However, little exists by way of operational machinery to give effect to the Key Attributes. The memorandum of December 2012 setting out the understandings of the resolution authorities in the US and the UK as to how they will effect a “single point of entry” resolution of a G-SIFI is thus an important first step. This article analyses the agreement, identifying the conditions necessary for it to operate successfully. It is noted that, for understandable reasons, both countries have also put in place resolution mechanisms which do not depend upon appropriate action by the home-state regulator.

ISBN: ISSN 1752-1440

P Davies, 'Liquidity Safety Nets for Banks' (2013) 13 Journal of Corporate Law Studies 285 [...]

DOI: 10.5235/14735970.13.2.287

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.

ISBN: 1473-5970

P S Davies and Graham Virgo, 'Relieving trustees' mistakes' [2013] RLR 74

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.

ISBN: 0026-7961

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.

E Descheemaeker, 'Three Keys to Defamation: Media 24 in a Comparative Perspective' (2013) 130 South African Law Journal 435 [...]

A note on the case of Media 24 v SA Taxi Securitisation (437/2010) [2011] ZASCA 117 in the South African Supreme Court of Appeal. Are considered the following issues that pertain to actions on defamation or iniuria: the nature of the injury suffered by the claimant, the problem of consequential loss, a juridical person’s title to sue, and ‘declaration of falsity’ as a possible remedy. The law of South Africa in relation to these issues is examined against the background of Roman and English law.

A Dickinson, 'A principled approach to choice of law in contract?' (2013) 28 Butterworths Journal of International Banking and Finance Law 151

A Dickinson, 'Germany v. Italy and the Territorial Tort Exception: Walking the Tightrope' (2013) 11 Journal of International Criminal Justice 147

A Dickinson, 'Territory in the Rome I and Rome II Regulations' [2013] Lloyd's Maritime and Commercial Law Quarterly 86

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

ISBN: 0014-728

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.

ISBN: 0964-9069

R Ekins, 'How to be a Free People' (2013) 58 American Journal of Jurisprudence 163

R Ekins, 'Updating the Meaning of Violence' (2013) 129 Law Quarterly Review 17

L Enriques and D.A. Zetzsche, 'The Risky Business of Regulating Risk Management' (2013) 10 European Company and Financial Law Review 271

D Erdos, 'Freedom of Expression Turned On Its Head: Academic Social Research and Journalism in the European Union\\\'s Privacy Framework' [2013] 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.

ISBN: 0033-3565

A Ezrachi and Mark Williams , 'Competition Law and the Regulation of Buyer Power and Buyer Cartels in China and Hong Kong' (2013) Asian Journal of Comparative Law

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.

ISBN: 1744-6414

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 [...]

DOI: 10.1080/09649069.2013.774757

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.

L Ferguson, 'Not Merely Rights for Children but Children's Rights: The Theory Gap and the Assumption of the Importance of Children's Rights' (2013) 21 International Journal of Children's Rights 177

Sidney Shapiro and E Fisher, 'Chevron and the Legitmacy of Public Administration' (2013) 22 William and Mary Bill of Rights Law Journal 465

E Fisher, 'Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v EPA' (2013) 39 Law and Policy 236 [...]

DOI: 10.1111/lapo.12006

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.

E Fisher, 'Environmental Law as 'Hot' Law' (2013) 25 Journal of Environmental Law 347 [...]

DOI: 10.1093/jel/eqt025

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' [2013] 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.

ISBN: 0033-3565

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.

S Fredman and J. Fudge, 'The Legal Construction of Personal Work Relations and Gender ' (2013) 7 Jerusalem Review of Legal Studies (2013) 112 [...]

DOI: 10.1093/jrls/jlt019

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 socialsecurity are permeable and shifting. Freedland and Kountouris’s extraordinarily perceptive book, The Legal Construction of PersonalWork 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 labour market statuses that women engage in throughout their lives, pointing the way to a system of legal entitlements which better reflects these realities.

ISBN: 2219-7117

J Freedman, 'Creating new UK institutions for tax governance and policy making: progress or confusion?' [2013] British Tax Review 373

I Gagliardone, 'China and the African Internet: Perspectives from Kenya and Ethiopia' (2013) Index Communication, Special Issue on “New African Communication”, vol. 3, no. 2

I Gagliardone, 'China as a Persuader: CCTV Africa’s First Steps in the African Mediasphere' (2013) Ecquid Novi: African Journalism Studies, vol. 34, no. 2

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.

ISBN: 0143-6503

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' [2013] International Family Law 149

R George, 'Relocation: Key Findings from the 2012 Study' (2013) Family Law 1430 and 1573

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)

Roy Goode, 'The treatment of intangible assets under the Cape Town Convention and Protocols ' (2013) 2 The Cape Town Convention Journal 41

G S Goodwin-Gill, 'The Dynamic of International Refugee Law' (2013) 25 Oxford University Press / International Journal of Refugee Law 651 [...]

Reviews the first 25 years of the IJRL, examines current problems and developments, and looks ahead.

ISBN: ISSN 0953-8186

Loane Skene, I Goold and Jonathan Herring, 'Guest editorial: Regulating the use of human bodily material' (2013) 21 Journal of Law and Medicine 245 [...]

The articles in this Special Issue consider recent developments in the law regulating the use of human bodily material and the wider implications of those developments. For some time, the law has accepted that a person who has undertaken "work and skill" on excised bodily material may obtain at least a possessory right; but the person from whom the material came did not have such a right. Now, however, the law has recognised that people may have some legal rights regarding their own bodily material. What is the nature and source of those rights? Should they be expanded? If so, what legal principles are best to do that? The most frequent suggestion is the law of property but many other areas of law are also relevant: the law of contract; tort (bailment and consent); criminal law (eg forensic testing); gifts; custodianship and others. These regulatory options are outlined in this Editorial and discussed by lawyers and other contributors in their articles in this Special Issue. There are also stimulating philosophical reflections on the nature of human bodily material.

I Goold, 'Property or Not Property? The Spectrum of Approaches to Regulating the Use of Human Bodily Material' (2013) 21 Journal of Law and Medicine 299 [...]

This article presents the case for taking a property approach in regulating the use of human bodily material. It examines the current debates on the issue and outlines the various perspectives, ranging from the anti-property stance, through the spectrum of positions on modified and semi-proprietary approaches, through to the "full-blooded" property approach advocated by some commentators. It elucidates why those approaches that allow some proprietary aspects into regulation are to be preferred.

I Goold, 'The Concise Argument: Withholding Artificial Nutrition and Hydration' (2013) 39 Journal of Medical Ethics 541

L Green, 'Should Law Improve Morality?' (2013) 7 Criminal Law and Philosophy 473 [...]

DOI: 10.1007/s11572-013-9248-3

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.

ISBN: 1871-9791

L Gullifer and Sophia Hurst, 'Bills of Sale: Ripe for Reform?' (2013) 11 Butterworths Journal of International Banking and Financial Law 685

K O Hawkins, 'Enforcing regulation: Robert Kagan’s contribution – and some questions' (2013) 38 Law & Social Inquiry 950–972 [...]

Robert Kagan has been at the forefront of socio-legal research into regulation for more than thirty years. His work addresses in general the extent to which law fosters or impedes economic activity, and the conditions under which people and organizations both comply with the law, and sometimes fail to comply with it. This paper analyzes his contribution, and suggests some questions for further inquiry prompted by Kagan’s work. The survey takes as its starting point Kagan’s books Regulatory Encounters (ed. with Axelrad 2000) and Shades of Green (with Gunningham and Thornton, 2003), before going on to consider his more recent research which probes in some detail into the impact of enforcement and the ideas of compliance and deterrence.

ISBN: 0897-6546

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, 'All's fair in in law and' (2013) New Law Journal 10

J J W Herring, 'An injection of sense' (2013) 163 New Law Journal 9 [...]

Discussion of legal issues around immunization and children

J J W Herring and Jesse Wall, 'Capacity to cohabit: Hoping ‘everything turns out well in the end' ' (2013) Child and Family Law Quarterly 471

J J W Herring, 'Escaping the shackles of law at the end of life' (2013) 21 Medical Law Review 487 [...]

Discussion of Nicklinson and legal issues around end of life

J J W Herring, 'Forging a relational approach: Best interests or human rights?' (2013) Medical Law Internation

Charles Foster, Tony Hope, J J W Herring and Karen Melham, 'Intention and Foresight - From Ethics to Law and Back Again' (2013) 22 Cambridge Quarterly of Healthcare Ethics 86 [...]

A discussion of the doctrine of double effect

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

A Higgins, J Walker, D Rowe and C Crifo, 'A Higgins, J Walker, D Rowe and C Crifo, ‘Thoughtful practitioners and an engaged legal community: the impact of the teaching of procedure on the legal profession and on civil justice reform’ (2013) Osgoode Hall Law Journal 155 - 198. ' (2013) 51 Osgoode Hall Law Journal 155

C Hodges, 'Collective Redress: A Breakthrough or a Damp Sqibb?' (2013) Journal of Consumer Policy

E Hudson, 'Implementing Fair Use in Copyright Law: Lessons from Australia' (2013) 25 Intellectual Property Journal 201

T Khaitan, ''Constitution' as a Statutory Term' (2013) 129 Law Quarterly Review 589 [...]

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.

ISBN: 0023-933X

M Köpcke Tinturé, 'Concept and Purpose in Legal Theory: How to "Reclaim" Fuller' (2013) 58 American Journal of Jurisprudence 75

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

K Laird, 'Conceptualising the interpretation of ‘dwelling’ in section 9 of the Theft Act 1968' (2013) Crim LR 656

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

I Loader, B Goold and A Thumala, 'The Banality of Security: The Curious Case of Surveillance Cameras' (2013) 53 British Journal of Criminology 977 [...]

Why do certain security goods become banal (while others do not)? Under what conditions does banality occur and with what effects? In this paper we answer these questions by examining the story of closed circuit television cameras (CCTV) in Britain. We consider the lessons to be learned from CCTV’s rapid – but puzzling - transformation from novelty to ubiquity, and what the banal properties of CCTV tell us about the social meanings of surveillance and security. We begin by revisiting and reinterpreting the historical process through which camera surveillance has diffused across the British landscape, focussing on the key developments that encoded CCTV in certain dominant meanings (around its effectiveness, for example) and pulled the cultural rug out from under alternative or oppositional discourses. Drawing upon interviews with those who produce and consume CCTV, we tease out and discuss the family of meanings that can lead one justifiably to describe CCTV as a banal good. We then examine some frontiers of this process and consider whether novel forms of camera surveillance (such as domestic CCTV systems) may press up against the limits of banality in ways that risk unsettling security practices whose social value and utility have come to be taken for granted. In conclusion, we reflect on some wider implications of banal security and its limits.

ISBN: 0007-0955

G Loutzenhiser, 'Finance Act notes: section 22: arrangements made by intermediaries - IR35 and office-holders' [2013] British Tax Review 405

G Loutzenhiser, 'Tax Avoidance, Private Companies and the Family' (2013) 72 Cambridge Law Journal 35

P Mahy, 'The Evolution of Company Law in Indonesia: An Exploration of Legal Innovation and Stagnation' (2013) 61 American Journal of Comparative Law 377

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

ISBN: 2042-115X

M Miao, 'The Politics of Chinas Death Penalty Reform in the Context of Global Abolitionism' (2013) 53 The British Journal of Criminology 500

R Momberg Uribe, 'Change of circumstances under the CESL' (2013) Internationales Handelsrecht 1

R Momberg Uribe, 'Change of Circumstances under the CESL' (2013) 1 Internationales Handelsrecht 1

R Momberg Uribe, 'El control de las cláusulas abusivas como instrumento de intervención judicial en el contrato' (2013) 26 Revista de Derecho, Universidad Austral

D P Nolan, 'Damage in the English Law of Negligence' (2013) 4 Journal of European Tort Law 259 [...]

DOI: 10.1515/jetl-2013-0018

Although foundational to the tort law of both common law and civil law countries, the concept of damage has been the object of surprisingly little analysis by academics in the common law world. The aim of this article is to redress the balance somewhat by looking more closely at the meaning of damage in the English law of negligence. The first part of the article consists of general observations on the damage concept. It is argued that it is impossible to devise a meaningful general definition of damage, that damage is not the same thing as loss, and that the damage concept is compatible with rights-based analysis of negligence law. The remainder of the article is devoted to consideration of the two most common forms of damage, personal injury and physical damage to property. It is argued that a central idea underpinning both these routine forms of damage is that of ‘impairment’, and that both forms of damage are subject to de minimis principles. As regards personal injury, particular attention is paid to the forms of psychiatric injury which ground a negligence claim. Finally, it is argued that for property to be damaged there must be a physical change in the property which impairs its utility or value, and that merely to incapacitate property is not to damage it. Although the primary focus is on English law (and the common law more generally), some comparative observations are made.

ISBN: 1868-9620

D P Nolan, 'Deconstructing the Duty of Care' (2013) 129 Law Quarterly Review 559

D P Nolan, 'Negligence and Human Rights Law: The Case for Separate Development' (2013) 76 Modern Law Review 286 [...]

DOI: 10.1111/1468-2230.12013

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.

ISBN: 0026-7961

D P Nolan, 'The Liability of Financial Supervisory Authorities' (2013) 4 Journal of European Tort Law 190 [...]

DOI: 10.1515/jetl-2013-0014

In the wake of the global financial crisis, this article considers the tort liability of financial supervisory authorities to depositors and other investors following the failure of a bank or other financial institution. The analysis is comparative, with the primary focus being on the member states of the European Union. Consideration is given to the five liability categories or standards which are employed by EU member states in such cases. These are (1) a public law illegality standard; (2) a standard of ordinary fault/negligence; (3) a standard of gross fault/negligence; (4) a requirement of bad faith; and (5) complete immunity from liability. It is also shown that on the application of general tort principles claims by depositors against financial supervisors face a range of obstacles, including difficulties in establishing fault and causation, and conceptual difficulties based on the nature of the damage (the pure economic loss issue), liability for omissions and for the deliberate acts of third parties, liability for the exercise of judicial or ‘quasi-judicial’ functions, and the ‘protective purpose of the norm’ principle. Finally, consideration is given to alternative means of redress which may be available to depositors in such cases.

ISBN: 1868-9612

D P Nolan, 'Varying the Standard of Care in Negligence' (2013) 72 Cambridge Law Journal 651 [...]

DOI: 10.1017/S0008197313000731

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?

ISBN: 0008-1973

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) 14 European Business Organization Law Review 563 [...]

DOI: 10.1017/S1566752912001309

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.

ISBN: 1566-7529

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

ISBN: 0306-2945

J Pila, 'The European Patent: An Old and Vexing Problem' (2013) 62(4) International & Comparative Law Quarterly 917–940

F Pirie, 'The Limits of the State: Coercion and Consent in Chinese Tibet' (2013) 72 Journal of Asian Studies 69

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, 'Tale of (Un?)Intended Consequences: Das Vereinigte Königreich in der Krise' (2013) 49 Gesellschaft & Politik 97

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

S Rayner, C Heyward, T Kruger and others, 'The Oxford Principles ' (2013) Volume 121, Issue 3 Climatic Change 499 [...]

Scientific momentum is increasing behind efforts to develop geoengineering options, but it is widely acknowledged that the challenges of geoengineering are as much political and social as they are technical. Legislators are looking for guidance on the governance of geoengineering research and possible deployment. The Oxford Principles are five high-level principles for geoengineering governance. This article explains their intended function and the core societal values which they attempt to capture. Finally, it proposes a framework for their implementation in a flexible governance architecture through the formulation of technology-specific research protocols. • This article is part of a special issue on “Geoengineering Research and its Limitations” edited by Robert Wood, Stephen Gardiner, and Lauren Hartzell-Nichols.

M Lee, C Armeni, J de Cendra, S Chaytor, S Lock, M Maslin, Y and others, '‘Public Participation and Climate Change Infrastructure ' (2013) 25 (1) Oxford Journals 33 [...]

This article explores the space for public participation during the consenting process for a nationally significant wind energy or carbon capture and storage infrastructure project. Legal obligations to provide opportunities for public involvement in these processes can be found in national, EU and international law. However, an examination of strategic planning policy suggests that in practice, very little will be up for discussion at this stage. This is consistent with a certain mistrust of the public in high-level policy discourse on the technological change thought necessary for climate change mitigation. Legally entrenched rights to participate, coupled with limited opportunities to influence, create the danger that participation becomes a simple bureaucratic hurdle, frustrating for all concerned.

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.

WG Ringe, 'Empty Voting Revisited: The Telus Saga' (2013) 28 Journal of International Banking and Financial Law 154 [...]

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.

ISBN: 1078-1927

WG Ringe, 'Independent Directors: After the Crisis' (2013) 14 European Business Organization Law Review 401 [...]

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.

WG Ringe, 'Menügesetzgebung im Privatrecht' (2013) 213 Archiv für die civilistische Praxis (AcP) 98 [...]

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.

ISBN: 0003-8997

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.

Barry Mitchell and J Roberts, 'Bringing Principles and Fairness Sentencing for Murder' (2013) 24 Criminal Law Forum 501

J Roberts, 'Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues' (2013) Law and Contemporary Problems

J Roberts and H. Bebbington, 'Sentencing Reform in Canada: Promoting a Return to Principles and Evidence-based Policy ' (2013) 17 Canadian Criminal Law Review 327

J Roberts and O. Gazal-Ayal, 'Sentencing Reform in Israel: An Analysis of the Statutory Reforms of 2012 ' (2013) 46 Israel Law Review 455

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, 'Deliberation and Mass Media Communication in Election Campaigns' (2013) 12 Election Law Journal 435

J Rowbottom, 'Leveson, press freedom and the watchdogs' (2013) 21 Renewal 57

J Rowbottom, 'Politicians, the Press and Lobbying' (2013) 5 Journal of Media Law

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 465 [...]

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, 'Reform and Legislation in the Roman Empire' (2013) 125 Mélanges École française de Rome (MEFRA) 2

A J B Sirks, 'The parallel universes of Baker, Joblin and Julian: causation and law' (2013) 17 Edinburgh Law Review 22–36

S Steel, 'Private Law and Justice' (2013) 33 OJLS 607

A Tzanakopoulos and CJ Tams, 'Domestic Courts as Agents of Development of International Law' (2013) 26 Leiden Journal of International Law 531 [...]

DOI: 10.1017/S0922156513000228

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.

ISBN: 0922-1565

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 78 [...]

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.

ISBN: 0035-0788

J Vella, J Englisch and A Yevgenyeva, 'The Financial Transaction Tax Proposal Under the Enhanced Cooperation Procedure: Legal and Practical Considerations' (2013) 2 British Tax Review 223

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 349

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 215

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.

K Von Papp, 'Clash of "Autonomous Legal Orders": Can EU Member State Courts Bridge the Jurisdictional Divide between Investment Tribunals and the ECJ? A Plea for Direct Referral from Investment Tribunals to the ECJ' (2013) 50 Common Market Law Review 1039

S Wallerstein, 'Delegation of Powers and Authority in International Criminal Law' (2013) Criminal Law and Philosophy (forthcoming) [...]

DOI: 10.1007/s11572-013-9203-3

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.

Englisch, Vella and A Yevgenyeva, 'The Financial Transaction Tax Proposal under the Enhanced Cooperation Procedure: Legal and Practical Considerations' [2013] British Tax Review [...]

This article examines the European Commission’s Proposal for a Council Directive implementing a financial transaction tax through the enhanced cooperation procedure published on February 14, 2013. It starts by providing a brief description and analysis of the Proposal and the accompanying Impact Assessment, focusing on the newly added features of the proposed tax and its potential impact on both participating and non-participating Member States. Next, the article examines the Proposal from the perspective of public international law, discussing the controversial extraterritorial reach of the proposed tax. It is argued that doubts exist with respect to the compatibility of the “contagion effect” and the issuance principle with internationally recognised legal principles. The article then turns to EU law and considers the legal requirements imposed by the EU Treaties on the use of enhanced cooperation. Whilst raising some concerns in relation to the Proposal’s compliance with these requirements, the article concludes that the political and judicial controlling mechanisms in place appear weak and therefore the outcome of any potential political or judicial challenge remains uncertain. The importance of this debate is not limited to the financial transaction tax, but also extends to the use of enhanced cooperation in other areas of taxation and beyond.

ISBN: 0007-1870

Englisch and A Yevgenyeva, 'The Upgraded Strategy against Harmful Tax Practices under the BEPS Action Plan' [2013] British Tax Review [...]

The Action Plan on Base Erosion and Profit Shifting (Action Plan) intends to "revamp" the work on harmful tax practices that has been undertaken by the Organisation for Economic Co-operation and Development (OECD) since the late 1990s. Further enhancement of the OECD’s transparency standards, the reinforcement of the requirement of a "substantial activity" for any "acceptable" preferential tax regime and an ambition to ensure a closer engagement of non-OECD economies re-open the debate on "harmful tax competition" that sparked in the academic literature and political arenas following the first attempt of international co-ordination. This article discusses the priority measures that are envisaged by Action 5 of the Action Plan and their foreseeable prospects. It demonstrates that the OECD is merely seeking to upgrade its existing mandate and exploit the political momentum that has been created by the BEPS campaign. The proposed strategy aims to adjust the current methods and structures rather than offer a conceptual rethinking.

ISBN: 0007-1870


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 'cooperate fully' 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.

ISBN: 1478-1387

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)).

ISBN: 08980721

J Armour, Bernard Black and Brian Cheffins, 'Delaware's Balancing Act' (2012) 87 Indiana Law Journal 1345 [...]

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.

ISBN: 00196665

J Armour, BS Black and BR Cheffins, 'Is Delaware Losing its Cases?' (2012) 9 Journal of Empirical Legal Studies 605 [...]

DOI: 10.1111/j.1740-1461.2012.01268.x

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.

ISBN: 1740-1461

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 [...]

DOI: 10.1515/1555-5879.1507

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.

ISBN: 1555-5879

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.

ISBN: 1520-3255

A Ashworth, 'Departures from the Sentencing Guidelines' [2012] Criminal Law Review [...]

A critique of the law and practice relating to departues from the sentencing guidelines in England and Wales

ISBN: 0011-135X

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.

ISBN: 1472-6696

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

A Bogg and T Novitz, 'Investigating "Voice" at Work' (2012) Comparative Labor Law and Policy Journal

A Bogg, 'Michael Sandel and Trade Union Rights' (2012) International Union Rights

A Bogg, 'Sham Self-Employment in the Supreme Court' (2012) Industrial Law Journal

A Bogg, 'The Death of Statutory Union Recognition in the United Kingdom' (2012) Journal of Industrial Relations (Australia)

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 [...]

DOI: 10.1080/10439463.2012.671825

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 [...]

DOI: 10.1080/10439463.2011.641551

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 �trust and confidence�. 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 �asymmetry� 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 �drives� 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.

J Jackson and others, 'Why do People Comply with the Law?: Legitimacy and the Influence of Legal Institutions' (2012) 52 British Journal of Criminology [...]

DOI: 10.1093/bjc/azs032

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.

ISBN: 0007-0955

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 [...]

DOI: 10.1080/09613218.2012.680701

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.

ISBN: 0182-3329

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 [...]

DOI: 10.1108/17561451211211714

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

H Collins, 'Compensation for Dismissal: In Search of Principle ' (2012) 41 Industrial Law Journal 208

H Collins, 'Cosmopolitanism and Transnational Private Law ' (2012) 8 European Review of Contract Law 311 [...]

As a legal mechanism for doing justice between individuals under conditions of scarce resources, private law derives its legitimacy from both national governmental institutions that pursue a particular scheme of social justice and to a lesser and often overlooked extent from cosmopolitan principles of civil law. The cosmopolitan view of private law suggests that it is in an important sense found, not made, discovered by the exercise of reason, moral argument, and logical thought. It is not tied to any particular political structure, whether state, village or empire. European Union private law relies for its legitimacy almost entirely on its pursuit of a thin theory of justice concerning the enhancement of individual choice, which inevitably brings it into conflict with national private law systems that pursue broader schemes of social justice. Transnational commercial law (or the new lex mercatoria) also relies upon the narrow justification of the enhancement of cross-border trade, but its creation by private actors increases its efficacy and efficiency. Both European Union private law and transnational commercial law lack, however, adequate links to cosmopolitan principles of law and broad conceptions of social justice, with the effect that their legitimacy is weaker than that of national private law systems. The principal conclusion of this analysis is the contention is that the cosmopolitan strand of legitimacy, if it is to provide adequate support for transnational law, must realign itself with concerns about social justice.

ISBN: 1614-9920

H Collins, 'The Vanishing Freedom to Choose a Contractual Partner ' (2012) 76 Law and Contemporary Problems 71 [...]

An individual?s right to choose a contractual partner marks an intersection between fundamental rights and basic contract law. As a fundamental right, the freedom to choose is emblematic of individual liberty and personal autonomy, values that lie at the core of a liberal society.

ISBN: 0023-9186

R Condry and C Miles, 'Adolescent to parent violence and youth justice in England and Wales' (2012) 11 Social Policy & Society 241 [...]

DOI: 10.1017/S1474746411000601

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.

ISBN: 1474-7464

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.

ISBN: 0070-1998

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' [2012] RLR 27

E Descheemaeker and others, 'Forum Privatrechtsharmonisierung: Eine europäische Öffentlichkeit?' (2012) Zeitschrift für Gemeinschaftsprivatrecht 286

A Dickinson, 'Sculpture and Mind Tricks in the Conflict of Laws: Lucasfilm v Ainsworth' [2012] 1 Lloyd's Maritime and Commercial Law Quarterly 21

A Dickinson, 'Service Out of the Jurisdiction in Contract Cases: Straightening Out the Deck Chairs? Global 5000 v Wadhawan' [2012] 2 Lloyd's Maritime and Commercial Law Quarterly 181

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

E Cooke and E Drummond, 'The Law Commission’s report on intestacy and family provision: three layers of trust law reform' (2012) OUP/Trusts & Trustees 199 [...]

DOI: 10.1093/tandt/tts005

Considers recommendations for trust law reform in the Law Commission’s 2011 Report “Intestacy and Family Provision Claims on Death”.

A Dyson, 'British Westinghouse Revisited' [2012] 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 21

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.

S Enchelmaier, ''Mandatory Requirements' under Article 101(3)TFEU? The Complementary Relationship between EU Competition and Free Movement Law' (2012) 11 Competition Law Journal 182

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 [...]

DOI: 10.1080/1369118X.2011.630403

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.

ISBN: 1369-118X

D Erdos, 'The Rudd Government's Rejection of an Australian Bill of Rights: A Stunted Case of "Aversive" Constitutionalism?' (2012) 65 Parliamentary Affairs 359 [...]

DOI: 10.1093/pa/gsr040

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.

ISBN: 1744-6414

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.

ISBN: 1744-6414

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.

ISBN: 2041-7764

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 [...]

DOI: 10.1017/S2047102511000021

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.

ISBN: 0002-919x

M R Freedland, 'Employment equality and personal work relations – a critique of Jivraj v Hashwani' (2012) 56 Industrial Law Journal

M R Freedland, 'Employment equality and personal work relations: a critique of Jivraj v Hashwani' (2012) 41 Industrial Law Journal 56

J Freedman, 'GAAR as a process and the process of discussing the GAAR' [2012] 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

I Gagliardone, Stremlau, N. and Nkrumah, D., 'Partner, Prototype or Persuader? China’s new media engagement with Ghana' (2012) Communication, Politics & Culture, vol. 45, no. 2

D Gangjee, 'Cultural Heritage and Geographical Indications ' (2012) 4 WIPO Journal 92

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 �experiential argument�. In this comment I attempt to analyze Moore�s �experiential argument� in some detail and thereby to bring out why it doesn�t help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means.

ISBN: 1352-3252

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) [2011] EWCA Civ 345 and K v K (Relocation: Shared Care Arrangement) [2011] 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

J S Getzler, 'Brian Simpson's Empiricism' (2012) 3 Transnational Legal Theory 127 [...]

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.

N Ghanea, 'Are Religious Minorities Really Minorities?' (2012) Oxford Journal of Law and Religion 1 [...]

DOI: 10.1093/ojlr/rwr029

This article will argue that although, historically, religious minorities were the primary trigger for the institutionalization of the international framework of minority rights, they have long since been sidelined from its protections. This sidelining is evident in a variety of international human rights norms and mechanisms, the focus below being on the jurisprudence of the UN Human Rights Committee. The article offers a number of explanations for this diversion of religious minorities away from the international minority rights regime. It also argues for a cautious reintegration of religious minorities within the minority rights regime after having sought understanding with regard to some issues of concern.

ISBN: 2047-0770

Roy Goode, 'Flip Clauses - The End of the Affair?' (2012) Law Quarterly Review Sweet & Maxwell 171 [...]

A comment on the decision of the Supreme Court in Belmont Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] 3 WLR 521

ISBN: 0023-933X

Roy Goode, 'The priority rules under the Cape Town Convention and Protocols' (2012) 1 Cape Town Convention Journal 95

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

K Greasley, 'Abortion and Regret' (2012) 38 Journal of Medical Ethics 705

L Green, 'Jurisprudence for Foxes' (2012) 3 Transnational Legal Theory 150 [...]

DOI: 10.5235/TLT.3.2.150

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.

ISBN: 0023-933X

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

C Hare, 'The Duties of Bank Customers: W(h)ither Tai Hing?' (2012) 23 Journal of Banking and Finance Law and Practice 1 [...]

Won the Banking and Financial Services Law Association Research Prize Sept 2012 (AU$10,000)

ISBN: 1034-3040

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 and Stephen Gilmore, 'Children's refusal of treatment: the debate continues' (2012) 42 Family Law 973

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

J J W Herring, 'How to conquer indecision' (2012) Management Today [...]

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, 'Welfare warfare' (2012) 162 New Law Journal 1 [...]

Article on Re W and welfare

J J W Herring, 'What's wrong with kidnapping?' [2012] 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

C Hodges, 'Consumer ADR in Europe' (2012) Zeitschrift für Konfliktmanagement 6/2012, 195-197

C Hodges, I Benoehr and N Creutzfeldt-Banda, 'Consumer-to-Business Dispute Resolution: The Power of CADR' (2012) ERA Forum 13:199–225

C Hodges, 'Current discussions on consumer redress: collective redress and ADR' (2012) ERA Forum

C Hodges, 'New Modes of Redress for Consumers and Competition Law' (2012) 11/12 Revista de Concorrência e Regulação 227-250

C Hodges and R Money-Kyrle, 'Safeguards in Collective Action' (2012) 19.4 Maastricht Journal of International and Comparative Law, 477-504

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 [...]

DOI: 10.1093/ojls/gqr024

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.

ISBN: 0143-6503

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' [2012] 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 [...]

DOI: 10.1017/S1566752912000298

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.

ISBN: 1566-7529

J Pila, 'Intellectual Property Rights and Detached Human Body Parts 27–32' (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

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

C Redgwell, 'UNCLOS and Climate Change, ' (2012) ASIL Proceedings, American Society of International Law 406

WG Ringe, 'Der Nacherfüllungsanspruch im Kaufrecht' (2012) 65 Neue Juristische Wochenschrift 3393 [...]

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' [2012] 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.

ISBN: 1859789781

J Roberts, 'Points of Departure: Reflections on Sentencing Outside the Definitive Guidelines Ranges ' [2012] 6 Criminal Law Review 439

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 [...]

DOI: 10.1093/ojls/gqs016

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.

ISBN: 0143-6503

J Rowbottom, 'To Rant, Vent and Converse: Protecting Low Level Digital Speech ' (2012) 71 Cambridge Law Journal 355 [...]

DOI: 10.1017/S0008197312000529

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.

ISBN: 0008-1973

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.

ISBN: 0393-2230

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.

S Steel, 'Causation in English Tort Law: Still Wrong After All These Years' (2012) 31 University of Queensland Law Journal 243

NJ McBride and S Steel, 'Why Wright is Wrong: Suing for the Loss of the Right to Sue' (2012) 28 Professional Negligence 27

W J Swadling, 'Constructive Trusts and Breach of Fiduciary Duty' (2012) 18 OUP/Trusts and Trustees 985 [...]

DOI: 10.1093/tandt/tts125

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.

ISBN: 1752-2110

R Taylor and L Hoyano, 'Criminal Child Maltreatment: the Case for Reform' (2012) Criminal Law Review 871

K van Zwieten, 'The Insolvency Provisions of the Cape Town Convention and Protocols: Historical and Economic Perspectives' (2012) 1 Cape Town Convention Journal 53 [...]

Abstract: The insolvency provisions of the Cape Town Convention and associated Protocols are considered integral to the achievement of the economic objectives of the Convention project. This article begins with the history of the insolvency provisions, tracing their evolution from a modest rule for the recognition of Convention interests in insolvency to a robust package of substantive rules on the effectiveness, priority, avoidance, and enforcement of Convention interests in insolvency proceedings. It then turns to consider the provisions in detail, illustrating their likely application with some hypothetical scenarios featuring airline and railroad debtors. The concluding section discusses the perceived significance of the insolvency provisions to the Convention project as a whole, and their predicted economic impact.

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' [2012] 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 [...]

DOI: 10.1163/170873811X563947

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.

ISBN: 2210-9730

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.

ISBN: 0165-0750

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.

ISBN: 0017-8063

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.

ISBN: 0360-795X

A Ashworth, 'Ignorance of the Criminal Law, and Duties to Avoid it' (2011) 74 Modern Law Review 1

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.

ISBN: 1871-9791

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) 1 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)

ISBN: 1095-6654

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 [...]

DOI: 10.1093/bjc/azq078

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.

ISBN: 0007-0955

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 [...]

DOI: 10.1093/police/par027

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 [...]

DOI: 10.1177/1748895811408832

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 ‘user-satisfaction’, 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 — and punish — 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.

ISBN: 1748-8958

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 [...]

DOI: 10.1093/tandt/ttr030

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.

ISBN: 9783866531895

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 [...]

DOI: 10.1080/14036096.2010.527119

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.

ISBN: 1403-6096

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.]

ISBN: 1614-9920

M Chen-Wishart, 'The Purposes and Methods of English Contract Law' (2011) 12 Peking University Law Review 681

H Collins, 'The Impact of Human Rights on Contract Law in Europe' (2011) 22 European Business Law Review 425 [...]

This article examines the impact of human rights law on the implementation of contract law. While human rights law has focused on the relationship between citizen and state, the private law of contract has been viewed as governing the economic relations among citizens and business entities. The article examines the thesis that in Europe, this division is being broken down, as a result of two intellectual movements within legal thought.

ISBN: 0959-6941

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' [2011] IPQ 390

P S Davies, 'Claims against third parties: room for the common law' [2011] CIPA Journal 362

P S Davies, 'Correcting mistakes: wither the rule in Hastings-Bass' [2011] Conv 406

E Descheemaeker, ''Veritas non est defamatio'? Truth as a Defence in the Law of Defamation' (2011) Legal Studies 1 [...]

DOI: 10.1111/j.1748-121X.2010.00191.x

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.

ISBN: 1748121X

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.

A Dickinson, 'In the EU, we trust? A new European framework for jurisdiction and judgments' (2011) 17 Trusts and Trustees 280

A Dickinson, 'State immunity and foreign judgments in the United Kingdom â?? the vulture swoops' [2011] 4 Lloyd's Maritime and Commercial Law Quarterly 581

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.

ISBN: 1468-0386

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 [...]

DOI: 10.1093/bjc/azr079

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 [...]

DOI: 10.1111/j.1468-2230.2011.00844.x

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) [2011] MLR 327

S Douglas-Scott, 'The European Union and Human Rights after the Treaty of Lisbon' (2011) Human Rights Law Review 1

J Edwards, 'Coming Clean About the Criminal Law' (2011) 5 Criminal Law and Philosophy 315

J M Eekelaar, 'Evaluating Legal Regulation of Family Behaviour' (2011) 1 17 [...]

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 [...]

DOI: 10.1080/14754835.2011.569300

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

ISBN: 0014-7281

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

S Enchelmaier, 'Always at your Service (Within Limits): The ECJs Case Law on Article 56 TFEU (2006-2011)' (2011) European Law Review 615

L Enriques, 'European Takeover Law: The Case for a Neutral Approach' (2011) 22 European Business Law Review 623

L Enriques and G. Hertig, 'Improving the Governance of Financial Supervisors' (2011) 12 European Business Organization Law Review 357

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.

ISBN: 0967-0769

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 [2010] 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.

ISBN: 1016-4359

S Fredman, 'The Public Sector Equality Duty' (2011) 40 Industrial Law Journal 405 [...]

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.

ISBN: 1464-366

J Freedman, 'Responsive Regulation, Risk and Rules: Applying the Theory to Tax Practice' (2011) 44 UBC Law Review

D Gangjee, 'Demerara Sugar: A Bitter Pill to Swallow? ' (2011) 24 Intellectual Property Journal 1

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.

ISBN: 1939-7917

John Gardner, 'Can There Be a Written Constitution?' (2011) 1 Oxford Studies in Philosophy of Law 162

John Gardner and François Tanguay-Renaud, 'Desert and Avoidability in Self-Defense' (2011) 122 Ethics 111 [...]

DOI: 10.1086/662294

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.

ISBN: 0014-1704

John Gardner and Timothy Macklem, 'Disibilità umane: su cosa significhi l\'avere accesso a un valore' (2011) 36 Ragion Pratica 9 [...]

DOI: 10.1415/34411

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.

ISBN: 1720-2396

John Gardner, 'What is Tort Law For? Part 1: The Place of Corrective Justice' (2011) 30 Law and Philosophy 1 [...]

DOI: 10.1007/s10982-010-9086-6

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.

ISBN: 0167-5249

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.

ISBN: 0006-8047

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

ISBN: 0023-933X

Roy Goode, 'Proprietary Liability for Secret Profits - A Reply' (2011) 127 Law Quarterly Review 493 [...]

A reply to a case note by Justice Hayton on Sinclair Investments (UK) Ltd. v. Versailles Trade Finance Ltd

ISBN: 0023-933X

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.

ISBN: 0953-8186

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

L Green, 'Sex-Neutral Marriage' (2011) 64 Current Legal Problems 1 [...]

DOI: 10.1093/clp/cur014

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.

ISBN: 0070-1998

C Hare, 'Banking Law' (2011) New Zealand Law Review 121

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).

G Helleringer, 'Medical Malpractice and Compensation in France' (2011) 86 Chicago-Kent Law Review 1125

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.

J J W Herring, 'Review of The Beauty Bias' (2011) 31 Legal Studies 326

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. An Integrated Enforcement Policy, Involving Public and Private Enforcement with ADR' (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' [2011] 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.

ISBN: 0025-8938

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 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

M Kurkchiyan, 'Perception of Law and Social Order: a Cross-National Comparison of Collective Legal Consciousness' (2011) 29 Wisconsin International Law Journal 102

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

D Langlet, 'CCS in the Skagerrak/Kattegat-region - Assessment of an intraregional CCS infrastructure and legal framework' (2011) 1 Energy Procedia 2793

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 [...]

DOI: 10.1111/j.1467-9256.2011.01415.x

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 [...]

The private security industry is often represented – and typically represents itself – as an expanding business, confident of its place in the world and sure of its ability to meet a rising demand for security. But closer inspection of the ways in which industry players talk about its past, present and future suggests that this self-promotion is accompanied by unease about the industry’s condition and legitimacy. In this paper, we analyse the self-understandings of those who sell security – as revealed in interviews conducted with key industry players and in a range of trade materials – in order to highlight and dissect the constitutive elements of this ambivalence. This analysis begins by describing the reputational problems that are currently thought to beset the industry and the underlying fears about its status and worth that these difficulties disclose. We then examine how security players seek to legitimate the industry using various narratives of professionalization. Four such narratives are identified – regulation, education, association and borrowing – each of which seeks to justify private security and enhance the industry’s social worth. What is striking about these legitimation claims is that they tend not to justify the selling of security in market terms. In conclusion we ask why this is the case and suggest that market justifications are ‘closed-off’ by a moral ambivalence that attaches to an industry trading in products which cannot guarantee to deliver the condition that its consumers crave.

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' [2011] British Tax Review 361

M R Macnair, 'Free Association versus Juridification' (2011) 39 Critique 53 [...]

DOI: 10.1080/03017605.2011.537453

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

ISBN: 0301-7605

S Meredith, 'Oscola, a UK Standard for Legal Citation' (2011) 11 Legal Information Management 111 [...]

DOI: 10.1017/S1472669611000387

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.

R Momberg Uribe, 'Change of circumstances in international instruments of contract law. The approach of the CISG, the PICC, the PECL and the DCFR' (2011) 15 Vindobona Journal of International Commercial Law and Arbitration

R Momberg Uribe, 'Change of Circumstances in International Instruments of Contract Law: The Approach of the CISG, the PICC, the PECL and the DCFR' (2011) 15 Vindobona Journal of International Commercial Law and Arbitration 233 [...]

Winner of the Clive M. Schmitthoff Essay Competition, awarded by the Centre for Commercial Law Studies, Queen Mary, University of London and the Institute of International Commercial Law, Pace University School of Law

ISBN: 1439-9741

R Momberg Uribe, 'The Duty to Renegotiate an International Sales Contract in Case of Hardship' (2011) 19 European Review of Private Law

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 [...]

DOI: 10.1007/s12180-011-0018-6

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

J Payne, 'Private Equity and its Regulation in Europe' (2011) European Business Organization Law Review 559 [...]

DOI: 10.1017/S1566752911400021

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.

ISBN: 1566-7529

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.

ISBN: 1473-5970

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

C Redgwell, 'Geoengineering the Climate: Technological Solutions to Mitigation Failure or Continuing Carbon Addiction?' (2011) Vol. 5 Issue 2 Carbon and Climate Law Review 178 [...]

This article considers the complex and controversial issue of climate geoengineering, examining the international legal framework for regulating large-scale interventions in the Earth's natural climate system to offset emissions and to avoid catastrophic climate change. It uses the injection of sulphate aerosols into the stratosphere and ocean iron fertilization as examples. It sets out the fragmented nature of the international legal framework which might regulate geoengineering, and the contours of any possible future legal response. The article concludes that the emergence at the international level of a single treaty dedicated to the regulation of all geoengineering methods is both unlikely and undesirable, favouring instead an approach based on a number of guiding principles for the governance of geoengineering research which are briefly elaborated. It suggests these could be applied against the backdrop of a general prohibition on deployment pending the fuller development of appropriate governance frameworks for specific geoengineering methods.

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.

ISBN: 0143-6503

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.

ISBN: 0165-0750

J Roberts, M. Hough and A. Ashworth, 'Personal Mitigation, Public Opinion and Sentencing Guidelines in England and Wales' [2011] 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. ' [2011] 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' [2011] 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

D Roser and S. Hohl, 'Stepping in for the Polluters? Climate Justice under Partial Compliance' (2011) 33 Analyse und Kritik 477–500 [...]

Not all countries do their fair share in the effort of preventing dangerous climate change. This presents those who are willing to do their part with the question whether they should ‘take up the slack’ and try to compensate for the non-compliers’ failure to reduce emissions. There is a pro tanto reason for doing so given the human rights violations associated with dangerous climate change. The article focuses on fending off two objections against a duty to take up the slack: that it is unfair and ineffective. We grant that it is unfair if some have to step in for others but argue that this does not amount to a decisive objection under conditions of partial compliance. With regard to the charge of emission reductions being ineffective, we argue that the empirical case for this claim is missing and that even if it were not, there still remains the option of taking up the slack in other forms.

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

S Steel, 'Exceptional Doctrines of Natural Causation: Sienkiewicz v Greif ' (2011) 2 Journal of European Tort Law 294

S Steel and DJ Ibbetson, 'More Grief on Uncertain Causation in Tort' (2011) 70 CLJ 451

R Stevens, 'When and Why does Unjustified Enrichment Justify the Recognition of Proprietary Rights?' (2011) 92 Boston University Law Review 919

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.

ISBN: 1533-5860

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

J Wall, 'The Legal Status of Body Parts: A Framework' (2011) 31 Oxford Journal of Legal Studies 783

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?' [2011] Public Law 773

A L Young, 'Sovereignty: Demise, Afterlife or Partial Resurrection?' (2011) 9 International Journal of Constitutional law 163 [...]

DOI: 10.1093/icon/mor028

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 [...]

DOI: 10.1093/ejil/chq080

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.

ISBN: 0938-5428

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.

M Ashdown, 'In defence of the rule in Re Hastings-Bass' (2010) 10 Trusts & Trustees 826 [...]

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 [2011] EWCA Civ 197 at [27].

A Ashworth, 'Sentencing Guidelines and the Sentencing Council' [2010] 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.

ISBN: 0021-1273

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 [...]

DOI: 10.1093/bjc/azq005

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 police–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.

ISBN: 0007-0955

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

ISBN: 9780199597024

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.

ISBN: 1756-1450

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 

H Collins, 'Harmonisation by Example: European Laws against Unfair Commercial Practices ' (2010) 73 Modern Law Review 89 [...]

DOI: 10.1111/j.1468-2230.2009.00785.x

This examination of the implementation of the European Union's Directive on Unfair Commercial Practices in the United Kingdom by the Consumer Protection from Unfair Trading Regulations 2008 assesses the likely impact on the national law governing the marketing practices of rogue traders, including its ambition to simplify and extend legal protection, and the likely success of the Directive in achieving the harmonisation of the laws and practices regulating marketing in Europe. In particular, the discussion evaluates the regulatory strategy of the Directive in its attempt to secure uniform laws through the combination of principles, rules, and concrete examples of prohibited practices. The paper also investigates the likely impact of the Regulations on the private law of contract and tort and the possibilities for improvements in a consumer's personal right of redress.

ISBN: 0026-7961

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.

ISBN: 1750-7219

P S Davies, 'Recent Developments in the Law of Implied Terms' [2010] LMCLQ 140

P S Davies, 'The illegality defence: turning back the clock' [2010] 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.

ISBN: 2013-9525

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.

ISBN: 10393285

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.

ISBN: 0397-9873

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.

ISBN: 0144-0365

A Dickinson, 'Provisional Measures in the "Brussels I" Review: Disturbing the Status Quo?' (2010) 6 Journal of Private International Law 519

A Dickinson, 'Provisional Measures in the Brussels I Review - Disturbing the Status Quo?' (2010) 3 IP Rax - Praxis des Internationalen Privat- und Verfahrensrechts 203

A Dickinson, 'Rebuttable Assumptions' [2010] 1 Lloyd's Maritime and Commercial Law Quarterly 27

A Dickinson, 'Restrained No More? Service Out of the Jurisdiction in the 21st Century' Greene, Wood & McClean v Templeton Insurance' [2010] 1 Lloyd's Maritime and Commercial Law Quarterly 1

A Dickinson, 'The Force be with EU? Infringements of US Copyright in the English Courts' [2010] 2 Lloyd's Maritime and Commercial Law Quarterly 181

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.

ISBN: 0028-7873

J Edwards, 'Justice Denied: The Criminal Law and the Ouster of the Courts' (2010) 30 Oxford Journal of Legal Studies 725

J M Eekelaar, 'Evaluating Legal Regulation of Family Behaviour' (2010) 1 International Journal of the Jurisprudence of the Family 17 [...]

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' [2010] 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, '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.

ISBN: 0167-5249

P Eleftheriadis, 'On Rights and Responsibilities' [2010] Public Law 31 [...]

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.

P Eleftheriadis, 'Pluralism and Integrity' (2010) Ratio Juris 365 [...]

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.

ISBN: 0952-1917

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

S Enchelmaier, 'Moped Trailers, Mickelsson and Roos, Gysbrechts: The ECJs Case Law on Goods Keeps Moving' (2010) 29 Yearbook of European Law 190

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

TAO Endicott, 'Morality and the Making of Law' (2010) 1 Jurisprudence 267 [...]

DOI: 10.5235/204033210793524203

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.

ISBN: 2040-3313

TAO Endicott, 'What Human Rights Are There, if Any, and Why?' (2010) 23 Studies in Christian Ethics 172

L Enriques, M. Gargantini and V. Novembre, 'Mandatory and Contract-based Shareholding Disclosure' (2010) 15 Uniform Law Review 713

D Erdos, 'Smoke but No Fire? The Politics of a ‘British’ Bill of Rights' (2010) 81 Political Quarterly 188 [...]

DOI: 10.1111/j.1467-923X.2010.02091.x

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.

ISBN: 0003-6056

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.

ISBN: 1011-4548

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.

ISBN: 1061-8651

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 [...]

DOI: 10.1093/jel/eqq012

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.

ISBN: 0952-8873

S Fredman, 'New Horizons: Incorporating Socio-Economic Rights in a British Bill of Rights ' [2010] Public Law 297

S Fredman, 'Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage onto the Equality Agenda ' (2010) European Human Rights Law Review 290

J Freedman, 'GAAR: challenging assumptions' (2010) Tax Journal [...]

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' [2010] 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.

ISBN: 0007-1870

I Gagliardone, 'La Cina in Africa: Media e Telecomunicazioni' (2010) Inchiesta, no. 168

D Gangjee and Robert Burrell, 'Because Youre Worth It: LOreal and the Prohibition on Free Riding ' (2010) 71 Modern Law Review 282

D Gangjee, 'Non-Conventional Trade Marks in India' (2010) 22 National Law School of India Review 67

D Gangjee and Robert Burrell, 'Trade Marks and Freedom of Expression: A Call for Caution ' (2010) 41 International Review of Intellectual Property and Competition Law 544

D Gangjee and David Higgins, 'Trick or Treat? The Misrepresentation of American Beef Exports to Britain in the Late Nineteenth Century ' (2010) 11 Enterprise and Society 203

John Gardner, 'Hart on Legality, Justice, and Morality' (2010) 1 Jurisprudence 253 [...]

DOI: 10.5235/204033210793524276

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.

ISBN: 2040-3313

John Gardner, 'Justification under Authority' (2010) 23 Canadian Journal of Law and Jurisprudence 71 [...]

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.

ISBN: 0841-8209

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.

ISBN: 1932-9148

N Ghanea, 'Minorities and Hatred: Protections and Implications' (2010) 17.3 International Journal of Minority and Group Rights 423 [...]

DOI: 10.1163/157181110X512151

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.

ISBN: 1385-4879

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.

ISBN: 978-90-04-19521

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 [...]

The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned. Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law. Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.

ISBN: 0025-8938

K Greasley, 'R (Purdy) v DPP and the Case for Wilful Blindess' (2010) 30 Oxford Journal of Legal Studies 301

S Green, 'The Subject Matter of Conversion' [2010] 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 [...]

DOI: 10.1016/j.wsif.2009.11.009

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?' [2010] [2010] 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.

ISBN: 0011-135X

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

M Köpcke Tinturé, 'Law Does Things Differently' (2010) 55 American Journal of Jurisprudence 201

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

N Lacey, 'Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility' (2010) 4 Criminal Law and Philosophy 110

G Lamond, 'Persuasive Authority in the Law' (2010) 17 The Harvard Review of Philosophy 16 [...]

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.

ISBN: 1062-6239

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

D Langlet, 'Resting in Peace? Regulating the Geological Storage of Radioactive Waste and Carbon Dioxide: Swedish and European Perspectives' (2010) 1 Risk, Hazards & Crisis in Public Policy 111

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 [...]

How does our understanding of private security alter if we treat security consumption as consumption? In this paper, we set out the parameters of a project which strives – theoretically and empirically – to do just this. We begin with a reminder that private security necessarily entails acts of buying and selling, and by indicating how the sociology of consumption may illuminate this central – but overlooked – fact about the phenomenon. We then develop a framework for investigating security consumption. This focuses attention on individual acts of shopping; practices of organizational security that individuals indirectly consume; and social and political arrangements that may prompt the consumption of, or themselves be consumed by, security. This way of seeing, we contend, calls for greater comparative enquiry into the conditions under which markets for security commodities flourish or founder, and close analysis of the social meanings and trajectories of different security goods. By way of illustration we focus on four such categories of good – those we term commonplace, failed, novel and securitized. The overarching claim of the paper is that the study of private security currently stands in need of greater conceptual and empirical scrutiny of what is going on when ‘security’ is consumed.

ISBN: 1362-4806

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

R Momberg Uribe, 'Teoría de la imprevisión: la necesidad de su regulación legal en Chile' (2010) Revista Chilena de Derecho Privado

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 [...]

DOI: 10.1016/j.marpolbul.2010.05.002

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

J Pila, 'Copyright and its Categories of Original Works' (2010) 30 Oxford Journal of Legal Studies 229–254

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) 30 Oxford Journal of Legal Studies 207

E Ramaekers and B Akkermans, 'Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations' (2010) 16 European Law Journal 292

WG Ringe, 'Company Law and Free Movement of Capital' (2010) 69 Cambridge Law Journal 378 [...]

DOI: 10.1017/S0008197310000516

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.

ISBN: 0008-1973

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 [...]

DOI: 10.1017/S0922156510000361

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.

ISBN: 0922-1565

A Tzanakopoulos, 'United Nations Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v Canada' (2010) 8 Journal of International Criminal Justice 249 [...]

DOI: 10.1093/jicj/mqq006

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.

ISBN: 1478-1387

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

Buckley-Zistel, S. , Mieth, F. and J Viebach, 'Transitional Justice und Entwicklung in Afrika' (2010) Vol 85 Die Friedenswarte. The International Journal of Peace and Organization

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

A L Young, 'Deference, Dialogue and the Search for Legitimacy' (2010) Oxford Journal of Legal Studies 815 [...]

DOI: 10.1093/ojls/gqq028

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 [...]

DOI: 10.1093/jicj/mqp034

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.

ISBN: 1478-1387

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.

J Armour and P Lele, 'Law, Finance and Politics: The Case of India' (2009) 43 Law and Society Review 491 [...]

DOI: 10.1111/j.1540-5893.2009.00380.x

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'.

ISBN: 0023-9216

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 [...]

DOI: 10.1111/j.1740-1461.2009.01157.x

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 [...]

DOI: 10.1111/j.1740-1461.2009.01146.x

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.

ISBN: 1740-1453

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)

ISBN: 0961-5768

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

ISBN: 9780199580392

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.

ISBN: 0928-9801

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 [2009] 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. 

M Chen-Wishart, 'Consideration and Serious Intention' (2009) SJLS 434 [...]

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.

H Collins, 'Does \'Fragmented Europeanisation\' Require a European Civil Code? ' (2009) 3-4 Tidskrift Utgiven Av Juridiska FöReningen 213

H Collins, 'Lord Hoffmann and the Common Law of Contract ' (2009) 5 Juridiska Foreningen I 474

H Collins, 'The European Economic Constitution and the Constitutional Dimension of Private Law ' (2009) 5 European Review of Contract Law 71 [...]

DOI: 10.1515/ERCL.2009.71

Intervening in the debate about the future of the European Union and the need for a balanced economic constitution that will consolidate a distinctive European social model, the essay argues that private law shares constitutional qualities with other public law sources such as abstract declarations of social and political rights, and that the construction of European private law is a necessary ingredient of the project for establishing a European economic constitution. In making this argument, the essay examines the concept of an economic constitution, its relation to the idea of a private law society, and the criticisms that have been made of the existing European economic constitution that it is unbalanced.

ISBN: 1614-9920

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.

ISBN: 0305-9332

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.

ISBN: 1473-5970

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?' [2009] Conv 182

E Descheemaeker, 'Protecting Reputation: Defamation and Negligence' (2009) 29 Oxford Journal of Legal Studies 603 [...]

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.

ISBN: 0143-6503

E Descheemaeker, 'The Roman Division of Wrongs: A New Hypothesis' (2009) 5 Roman Legal Tradition 1 [...]

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.

ISBN: 1943-6483

A Dickinson, 'State Immunity and State Owned Enterprises' (2009) 10 Business Law International 97

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.

ISBN: 0043-5589

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.

ISBN: 1557-6582

J Donoghue, 'The Sociology of law: A rejection of law as socially marginal' (2009) 37 International Journal of Law, Crime and Justice 51 [...]

DOI: 10.1016/j.ijlcj.2009.03.001

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) [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, 'The Universality of Rights' (2009) Indian Journal of Constitutional Law [...]

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.

M. Becht, L Enriques and V. Korom, 'Centros and the Cost of Branching' (2009) 9 Journal of Corporate Law Studies 171

L Enriques, 'Corporate Governance Reforms in Italy: What Has Been Done and What Is Left to Do' (2009) 10 European Business Organization Law Review 477

L Enriques, 'Regulators' Response to the Current Crisis and the Upcoming Reregulation of Financial Markets: One Reluctant Regulator's View' (2009) 30 University of Pennsylvania Journal of International Law 1147

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 [...]

DOI: 10.1093/jel/eqp012

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.

ISBN: 0952-8873

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' [2009] 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.

ISBN: 0007-1870

J Freedman, 'Section 93 and Schedule 46 - duties of senior accounting officers of large companies' [2009] British Tax Review 620

I 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.

ISBN: 1833-1237

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.

ISBN: 1565-1509

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.

ISBN: 1565-1509

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.[1] 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.

ISBN: 02699702

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, 'Ensuring a High Level of Business Conduct in the EU' (2009) Regulatory Affairs Journal Devices 17:1, 13-16

C Hodges, 'From Class Actions to Collective Redress ' (2009) 28 Civil Justice Quarterly 41

D Hensler and C Hodges, 'What are people trying to do in resolving mass issues, how is it going, and where are we headed?' (2009) Annals of the American Academy of Political and Social Science, Vol 66, 330

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?' [2009] 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

D Langlet, 'Safe Return to the Underground? The Role of International Law in Subsurface Storage of Carbon Dioxide' (2009) 18 Review of European Community and International Environmental Law 286

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 [...]

In this paper, I set out a framework for investigating the relationship between contemporary consumer desires and practices and public demands for security and punishment. In so doing, I argue that punishment-centred public responses to crime, social disorder and terrorist threats (what has been termed penal excess) are today bound up with other, widespread social practices of excess. The paper takes the form of a reconstruction and critique of contemporary securitarian obsessions and proceeds as follows: I begin with a discussion of how the concept of excess (and its close cousins) has been and might potentially be applied to the social analysis of crime and crime control. I then make a case for understanding demands for security and punishment as an appetite and examine how the coupling of such appetites with identity, the market and the state can give rise to excessive, punitive, insecurity-reproducing penal practices. I conclude with some brief reflections on the ‘end’ of excess – both in terms of its corrosive, self-defeating effects and how one may seek to moderate or counteract them.

M R Macnair, 'Marxism and Freedom of Communication' (2009) 37 Critique 565 [...]

DOI: 10.1080/03017600903205724

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.

ISBN: 0301-7605

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

J Pila, 'Authorship and e-Science: Balancing Epistemological Trust and Skepticism in the Digital Environment' (2009) 23 Social Epistemology 1-24

J Pila, 'Chemical Products and Proportionate Patents Before and After Generics v Lundbeck' (2009) 20 King's Law Journal 489-526

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) 1 Asian Highland Perspectives 164

J Prassl and B Gardner, 'Constitutional Resettlement and Popular Sovereignty: A Caribbean Experience' (2009) 4 Justicia - Tijdschrift voor Antilliaans Recht 259

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.

ISBN: 0044-2437

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' [2009] 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 [...]

DOI: 10.1093/jel/eqp012

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

N E Stavropoulos, 'The Relevance of Coercion: Some Preliminaries' (2009) 22 Ratio Juris 339 [...]

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.

ISBN: 1467-9337

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 ' [2009] 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, 'The Elaboration of the Common Frame of Reference : Translating the “Tool-box"' (2009) Revue des contrats 807

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


J Armour and D.J. Cumming, 'Bankruptcy Law and Entrepreneurship' (2008) 10 American Law and Economics Review 303 [...]

DOI: 10.1093/aler/ahn008

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.

ISBN: 1465-7252

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.

J Armour and B.R. Cheffins, 'The Eclipse of Private Equity' (2008) 33 Delaware Journal of Corporate Law [...]

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.

A Ashworth, 'A Change of Normative Position: Determining the Contours of Culpability in Criminal Law' (2008) 11 New Criminal Law Review 232

A Ashworth, 'Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions' (2008) 2 Criminal Law and Philosophy 21

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' [2008] 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

ISBN: 9780199547401

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

S J Bright and others, 'The Greening of Commercial Leases' (2008) 26 Journal of Property Investment and Finance 541 [...]

DOI: 10.1108/14635780810908389

The paper considers how policy changes may drive changes in leasing practices, in order to reduce environmental impact from the commercial building stock.

ISBN: 1463-578X

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 [2008] 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

A Dickinson, 'Resurgence of the Anti-Suit Injunction: The Brussels I Regulation as a Source of Civil Obligations' (2008) 57(2) International and Comparative Law Quarterly 465

J Dickson, 'How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations Between, Legal Systems in the European Union' (2008) 2 Problema 9

J Donoghue, 'Antisocial Behaviour Orders in Britain: Contextualizing Risk & Reflexive Modernization' (2008) 42 Sociology 337 [...]

DOI: 10.1177/0038038507087357

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' [2008] [2008] 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

L Enriques and M. Gatti, 'Is There a Uniform EU Securities Law After the Financial Services Action Plan?' (2008) 14 Stanford Journal of Law, Business & Finance 43

L Enriques and T. Tröger, 'Issuer Choice in Europe' (2008) 67 Cambridge Law Journal 521

L Enriques and T. Tröger, 'Issuer Choice in the EU and its Impact on the Market for Corporate Law' (2008) 3 Revue Trimestrielle de Droit Financier 4

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 [...]

DOI: 10.1080/13669870802086547

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

ISBN: 1366-9877

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.

ISBN: 0305-9332

J Freedman, 'Small Business Tax- Where do we go from here?' (2008) Tax Adviser

I 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

D Gangjee, 'The Polymorphism of Trade Mark Dilution in India ' (2008) 17 Journal of Transnational Law and Contemporary Problems 611

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.

ISBN: 1559-3061

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 [...]

DOI: 10.1080/09637490802260385

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.

ISBN: 26-40

G S Goodwin-Gill, 'The Politics of Refugee Protection' (2008) 27 Refugee Survey Quarterly 8 [...]

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.

ISBN: 1020-4067

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.

ISBN: 15265161

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.

ISBN: 0028-7881

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.

ISBN: 0319-3322

C Hare, 'Credit Cards and Connected Lender Liability: Office of Fair Trading v Lloyds TSB Bank' [2008] Lloyd's Maritime and Commercial Law Quarterly 333

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

ISBN: 0882-1046

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

ISBN: 0019-6665

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

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' [2008] 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

J Pila, 'An Intentional View of the Copyright Work' (2008) 71 Modern Law Review 535-558 [...]

A preprint of this article is available at

ISBN: 0026-7961

J Pila, 'Compilation Copyright: A matter calling for a certain ... sobriety' (2008) 19 Australian Intellectual Property Journal 231-266

WG Ringe, 'Forum Shopping under the EU Insolvency Regulation' (2008) 9 European Business Organization Law Review 579 [...]

DOI: 10.1017/S156675290800579X

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.

ISBN: 1566-7529

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' [2008] 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' [2008] 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' [2008] LMCLQ 488

V Bogdanor and S Vogenauer, 'Enacting a British Constitution: Some Problems' [2008] 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.

ISBN: 0726-0747

R Williams, 'Deception, Mistake and Vitiation of the Victim\\\'s Consent' (2008) 124(Jan) Law Quarterly Review 132

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

J Armour and M. J. Whincop, 'The Proprietary Foundations of Corporate Law' (2007) 27 Oxford Journal of Legal Studies [...]

DOI: 10.1093/ojls/gqm009

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.

ISBN: 0143-6503

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.

ISBN: 0016-8092

A Ashworth, 'Principles, Pragmatism and the Law Commission's Recommendations on Homicide Law Reform' [2007] Criminal Law Review 333 [...]

Appraisal of the structure and detail of recent Law Commission recommendations.

ISBN: 0011 135X

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

ISBN: 03059332

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

ISBN: 0023933X

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

ISBN: 0023933X

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

ISBN: 0306-2945

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

H Collins, 'European Social Policy and Contract Law ' (2007) 3 European Review of Contract Law 77 [...]

DOI: 10.1515/ercl.2005.1.1.115,

European social policy has increasingly sought to regulate the terms of contracts of employment. The methods of this regulation have often been distinctive with respect to the democratic processes leading to regulation, the procedures specified for permitting derogations from mandatory standards, and the wide application of a non-discrimination principle of fairness. It is argued that these regulatory techniques could be usefully employed to regulate some problems in contract law more generally in Europe.

ISBN: 1614-9920

H Collins, 'Legal Responses to the Standard Form Contract of Employment' (2007) 36 Industrial Law Journal 2 [...]

DOI: 10.1093/indlaw/dwl037

Having suggested that the advent of standard form contracts of employment is a neglected aspect of employment law, an assessment is made of two of the main legal responses to the potential unfairness of terms, namely implied terms and the application of section 3 the Unfair Contract Terms Act 1977. The Law Commission's proposed legislative reform is also examined. It is concluded that only by combining terms implied by the law with the statutory protection of reasonable expectations of employees will the law succeed in devising an adequate technique for rebalancing contracts of employment.

ISBN: 0305-9332

H Collins, 'Les contrats de travail types en Angleterre ' (2007) 5 Revue de Droit du Travail 342

H Collins, 'Utility and Rights in Common Law Reasoning: Rebalancing Private Law Through Constitutionalization ' (2007) 30 Dalhousie Law Journal 1

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.

ISBN: 0961-5768

A C L Davies, 'The contract for intermittent employment' (2007) 36 Industrial Law Journal 102 [...]

DOI: 10.1093/indlaw/dwl043

Elaborates on Mark Freedland's work on the contract for intermittent employment in his book, The Personal Employment Contract.

ISBN: 0305-9332

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 [...]

DOI: 10.1111/j.1468-2230.2007.00670.x

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.

ISBN: 1468-2230

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.

ISBN: 0556-7963

A Dickinson, 'Dicey, Morris & Collins: The Conflict of Laws, Book Review' (2007) 123 Law Quarterly Review 314

A Dickinson, 'Third Country Mandatory Rules in the Law Applicable to Contractual Obligations - 'So Long, Farewell, Auf Wiedersehen, Adieu?'' (2007) 3 Journal of Private International Law 53

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.

G Dinwoodie and M. Janis, 'Lessons From the Trademark Use Debate' (2007) 92 Iowa Law Review 1703 [...]

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 [...]

DOI: 10.1111/j.1468-2311.2007.00486.x

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.

ISBN: 0014-729X

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.

ISBN: 1067-9464

P-H. Conac, L Enriques and M. Gelter, 'Constraining Dominant Shareholders? Self-Dealing: The Legal Framework in France, Germany, and Italy' (2007) 4 European Company and Financial Law Review 491

L Enriques and P. Volpin, 'Corporate Governance Reforms in Continental Europe' (2007) 21 Journal of Economic Perspectives 117

L Enriques and M. Gatti, 'EC Reforms of Corporate Governance and Capital Markets Law: Do They Tackle Insiders? Opportunism?' (2007) 28 Northwestern Journal of International Law and Business 1

L Enriques and M. Gelter, 'How the Old World Encountered the New One: Regulatory Competition and Cooperation in European Corporate and Bankruptcy Law' (2007) 81 Tulane Law Review 577

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 [2004] UKHL 56, [2005] 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.

ISBN: 0658995

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

D Gangjee, 'Quibbling Siblings: Conflicts between Trade Marks and GIs ' (2007) 82 Chicago-Kent Law Review 1253

D Gangjee, 'Say Cheese: A Sharper Image of Generic Use through the Lens of Feta' (2007) European Intellectual Property Review 172

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.

ISBN: 1833-1237

J Goudkamp, 'A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort' (2007) 29 Sydney Law Review 445 [...]

Although the defence of illegality to liability in tort has a chequered history throughout the common law world and has been trenchantly criticised by judges and academic commentators alike, the legislatures of New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have seen fit to enact, as part of their tort ‘reform’ packages, far more potent statutory analogues of this de fence. This article offers an analysis of these statutory defences and their relationship with the common law defence. It will be argued that the statutory defences blight an already highly unsatisfactory body of law.

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' [2007] 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,

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?' [2007] Criminal Law Review 923 [...]

Discussion of familial homicide in cases where the defendant has been the victim of domestic violence.

ISBN: 0011135X

J J W Herring and E. Palser, 'Gross Negligence Manslaughter and the Duty of Care' [2007] Criminal Law Review 17

J J W Herring, 'Human Rights and Rape' [2007] Criminal Law Review 228 [...]

Discussion of the law of rape.

J J W Herring and Elaine Palser, 'The Duty of Care in Cross Negligence Manslaughter' [2007] 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

C Hodges, 'Encouraging Enterprise and Rebalancing Risk: Implications of Economic Policy for Regulation, Enforcement and Compensation' (2007) European Business Law Review 1231

Laura Hoyano, 'The Child Witness Review: Much Ado about too Little' [2007] 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

M 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

G Lamond, 'Precedent' (2007) 2 Philosophy Compass 699 [...]

DOI: 10.1111/j.1747-9991.2007

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.

G Lamond, 'What is a Crime?' (2007) 27 Oxford Journal of Legal Studies 609 [...]

DOI: 10.1093/ojls/gqm018

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.

ISBN: 0143-6503

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' [2007] 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 [...]

DOI: 10.1093/indlaw/dwm015

Reviews the regulatory theory underpinning the recently published Discrimination Law Review's Consultative Paper

ISBN: 0305-9332

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 [...]

DOI: 10.1111/j.1468-2230.2006.00626.x

Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgement of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents' autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right.

ISBN: 1468-2230

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,

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 [...]

DOI: 10.1080/00908320701641636

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' [2007] 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.

ISBN: 1473-5970

WG Ringe, 'Überseering im Verfahrensrecht' - Zu den Auswirkungen der EuGH-Rechtsprechung zur Niederlassungsfreiheit von Gesellschaften auf das Internationale Zivilprozessrecht' (2007) IPRax 388 [...]

article on the Überseering case and international jurisdiction issues

ISBN: 072-06585

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

K van Zwieten and RP Austin, 'Termination and Setting Aside of Winding Up Orders' (2007) 81 Australian Law Journal 932

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?"

ISBN: 0840-7266

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.

ISBN: 1614-9920

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').

ISBN: 978-2-275-02775-3

R Williams, 'When is an Error not an Error? Reform of Jurisdictional Review of Error of Law and Fact' [2007] 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.

ISBN: 1933-4192

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

J Armour, 'Legal Capital: an Outdated Concept?' (2006) 7 European Business Organization Law Review 5 [...]

DOI: 10.1017/S156675290600005X

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.

ISBN: 1566-7529

J Armour and D. J. Cumming, 'The Legislative Road to Silicon Valley' (2006) 58 Oxford Economic Papers 596 [...]

DOI: 10.1093/oep/gpl007

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.

ISBN: 00307653

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)

ISBN: 03075400

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).

ISBN: 13873091

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

ISBN: 03062945

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.

ISBN: 0306-2945

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

ISBN: 0010-8200

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

H Collins, 'Harmonisation of European Contract Law: Citizenship, Diversity and Effectiveness' (2006) Cambridge Yearbook of European Law 80

H Collins, 'The Alchemy of Deriving General Priciples of Contract Law from European Legislation' (2006) European Review of Contract Law 213

H Collins, 'The Protection of Civil Liberties in the Workplace ' (2006) 69 Modern Law Review 619

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.

ISBN: 0763-1219

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 [...]

DOI: 10.1093/indlaw/dwj004

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.

ISBN: 0035-3280

A Dickinson, ''Renvoi - The Comeback Kid?' Neilson v OPC' (2006) 122 Law Quarterly Review 183

A Dickinson, ''Revolutionary Claims' Equatorial Guinea v. Royal Bank of Scotland' (2006) 122 Law Quarterly Review 569

A Dickinson, 'Status of Forces under the UN Convention on State Immunity' (2006) 55 International and Comparative Law Quarterly 427

A Dickinson, 'The Law Applicable to Contracts - Uncertainty on the Horizon?' (2006) 21 Butterworths Journal of International Banking and Financial Law 171

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, 'A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis ' (2006) Common Market Law Review 619

S Douglas-Scott, '\\\'Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland\\\' case comment ' (2006) Common Market Law Review

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

L Enriques, 'Conflicts of interest in Investment Services: the Price and Uncertain Impact of MiFID?s Regulatory Framework' (2006) 2 Revue Trimestrielle de Droit Financier 49

L Enriques, 'EC Company Law Directives and Regulations: How Trivial Are They?' (2006) 27 University of Pennsylvania Journal of International Economic Law 1

L Enriques and M. Gelter, 'Regulatory Competition in European Company Law and Creditor Protection' (2006) 7 European Business Organization Law Review 417

L Enriques and M. Gatti, 'The Uneasy Case for Top-Down Corporate Law Harmonization in the European Union' (2006) 27 University of Pennsylvania Journal of International Economic Law 939

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] 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

D Gangjee, 'Melton Mowbray and the GI Pie in the Sky: Exploring Cartographies of Protection' (2006) Intellectual Property Quarterly 291

S Gardner, 'The Remedial Discretion in Proprietary Estoppel - Again' (2006) 122 Law Quarterly Review 492 [...]

Cited in Powell v Benney [2007] EWCA Civ 1238, [20]-[21] (Lord Justice Peter Gibson)

ISBN: 0023-933X

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?' [2006] 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' [2006] 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, 'Competition enforcement, regulation and civil justice: what is the case?' (2006) CMLR 43: 1-27

C Hodges, 'Europeanisation of civil justice: trends and issues' (2006) 1 Civil Justice Quarterly 96-123

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.

E Hudson, 'Copyright and Publicly Located Artistic Works: the End of an Exception?' (2006) 19 Intellectual Property Law Bulletin 106

E Hudson, 'The Copyright Amendment Act 2006: The Scope and Likely Impact of New Library Exceptions' (2006) 14 Australian Law Librarian 25

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 [...]

DOI: 10.1093/ejil/chi162

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

ISBN: 0938-5428

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' [2006] 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) [2006] 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) [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) [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