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Recent (2014–15) and Forthcoming Journal Articles

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2015

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

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

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


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

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


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

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


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

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


WG Ringe, 'Capital Markets Union for Europe - A Political Message to the UK' (2015) [...]

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.


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

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.


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

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 Edwards, 'Harm Principles' (2015) Legal Theory [...]

Many philosophers and legal theorists have spent time arguing for or against ‘the harm principle’. Their arguments can be evaluated only once we know what that principle is. But the literature in question contains no single harm principle; it contains many harm principles. And many objections pressed against ‘the harm principle’ are objections to only some of these principles. The first half of this paper draws a number of distinctions between harm principles. It then argues that each harm principle is compatible with many other principles that impose limits on the law, including, but not limited to, other harm principles. The second half of the paper applies the lessons of the first to a number of prominent objections to ‘the harm principle’. That principle has been accused of a) being under-inclusive; b) misrepresenting the reasons why many act-types ought to be legally proscribed; c) permitting law-makers to treat people as mere means of achieving their ends, and d) being over-inclusive. The paper argues that at least one harm principle survives all four objections.


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

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

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

J Prassl, 'Les seuils sociaux en Europe: Royaume-Uni' (2015) Revue de Droit du Travail 205

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

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.


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

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


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

DOI: 10.1007/s11572-013-9231-z

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


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

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


ISBN: 1565-3404

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

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

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


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

DOI: 10.1007/s40804-015-0001-3

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

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

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

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


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

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


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

DOI: 10.1177/1748895815572164

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


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

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


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

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


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

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

DOI: 10.1177/1748895814521825

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


2014

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

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

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

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.


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

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.


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


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

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

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

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

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

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.


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

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.


WG Ringe, 'Changing Law and Ownership Patterns in Germany: Corporate Governance and the Erosion of Deutschland AG' (2014) Oxford Legal Studies Research Paper No. 42/2014 [...]

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.


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

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.


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

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

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

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 Köpcke Tinturé, 'Criminalizing psychological forms and causes of harm' (2014) (forthcoming)

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

DOI: http://dx.doi.org/10.5235/204976114814222412

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.


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

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

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.


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

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

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

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.


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

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

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.


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

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.


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

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

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

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.


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.


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

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

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.


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.


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’.


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

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

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

M Köpcke Tinturé, 'Methodology in Marmor's "Philosophy of Law"' (2014) Jerusalem Review of Legal Studies (forthcoming)

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

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

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

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.


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

I Goold and Hannah Maslen, 'Obliging Surgeons to Enhance: Negligence Liability for Uncorrected Fatigue and Problems with Proving Causation' (2014) Medical Law Review

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.


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

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.


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

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

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

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

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

J Gordon and WG Ringe, 'Resolution in the European Banking Union: A Transatlantic Perspective on What it Would Take' (2014) Columbia Law and Economics Working Paper No. 465 [...]

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.


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

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

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

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.


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

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

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.


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

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

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

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

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

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

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


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.


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

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.


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.


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

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

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

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

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.


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

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

G Dinwoodie, 'Third Annual Emmanuel College International Intellectual Property Lecture: Ensuring Consumers "Get What They Want": The Role of Trademark Law ' (2014) Cambridge Law Journal (forthcoming)

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.


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

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

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

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.


I Goold, 'Why Does It Matter How We Regulate the Use of Human Body Parts?' (2014) 40 Journal of Medical Ethics 3

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

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.


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

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

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