ABSTRACT: This essay on judicial review approaches its subject obliquely. It focuses on a particular site of constitutional abnormality: prerogative power. An analysis of the various iterations, historical and contemporary, between law and prerogative in its specific, rooted setting provides the basis for a more general account of the contemporary nature and role of judicial review, at a time when we appear to be entering a new ‘age of prerogative’ based on the politics of security and fear.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: In the wake of the financial crisis, the natural impetus of many is to assume that the markets can be 'fixed' by changing the rules governing their structure and the conduct of those participating in them. The implicit assumption, thus, is that law can and does shape markets. This assumption accords well with the arguments which are perhaps the natural inclination of policy makers and legal academics, which is that 'law matters'. On this view, the reformists’ task in the wake of the crisis is relatively straightforward: find the right rules, ensure they are properly enforced, and the markets will alter accordingly. However, the alternative view is that regulation and law, rather than leading markets, follows them and more often than not serves to recognize and authorise activities which already exist. Markets matter; law is simply an instrument, a gift (or irritation) of the state which market actors lobby for, deploy, avoid, or simply ignore in the pursuit of their own interests. This paper considers the current state of empirical research into the interaction of law, regulation and financial markets and asks what can we take from this research that can help us going forward?
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: The terms 'liberty' and 'security' are analysed against a background of contemporary concerns about terrorism and the decline of freedom. The influence of Hobbes’s approach to liberty has been pervasive, and the effect of this has been to promote an approach to freedom which has been too willing to sacrifice individual liberty to the needs of the state. Republican attitudes to freedom have been likewise disinclined to allow the individual to get in the way of what the exigencies of the moment demand. The result of these two large-scale and important sets of historical ideas has been a democratic polity (in Britain and the US, but across the world, as well), which has been too consumed with (national) security and not sufficiently alive to the demands either of a broader kind of human security rooted in human flourishing or to the political liberty necessary to its achievement. The essay argues for a new reconciliation between liberty and security based on the language of human rights and manifested in, firstly, a wider approach to security (encompassing social and economic rights) and, secondly, a renewed commitment to the criminal law as the best means available for squaring security from harm with an unequivocal respect for the person, which must always be at the core of any human rights framework.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
02-2010
Arbitration in Three Dimensions by Jan Paulsson. WPS 02-2010 February 2010
[Subjects: ARBITRATION, CIVIL PROCEDURE & DISPUTE RESOLUTION; COMMERCIAL AND COMPETITION LAW; CONTRACT, RESTITUTION AND COMMERCIAL LAW]
ABSTRACT: The law applicable to arbitration is different from the law applicable in arbitration. The latter leads arbitrators to decide as they do. The former refers to the source of their authority and the effect of their decision – the legal order that governs arbitration. According to the territorialist thesis, an arbitration can have no foundation other than that of the legal order of the particular state where the arbitration takes place. This outdated conception is disproved by the simple factual observation that a plurality of legal orders may give effect to arbitration. Some French scholars promote the notion of an autonomous arbitral order. Inasmuch as they ultimately seek to establish this order by positing its recognition by the very state orders from which they claim autonomy, their idea is circular and in effect no more than a dressed-up variant of ordinary horizontal pluralism. But the model of horizontal pluralism fails to account for important orderings of arbitral activity. Arbitration in modern society is accurately perceived as a complex, three-dimensional form of pluralism, in which legal orders (i) are not exclusively those of states and (ii) frequently overlap.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
01-2010
A.L. Goodhart by William Goodhart, QC. WPS 01-2010 February 2010
[Subjects: LEGAL & SOCIAL THEORY; PUBLIC INTERNATIONAL LAW]
ABSTRACT: This is the text of a lecture delivered by Lord Goodhart to the Law Department of the London School of Economics, under the auspices of the Department’s Legal Biography Project, on 1 December 2009, providing a biography of his father Arthur Lehman Goodhart.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: This article examines the impact that internationally mandatory rules of the forum state may have on the effectiveness of arbitration agreements. This question arises when claims are based on such internationally mandatory rules, but the parties submitted their contract to a foreign law. The specific problems of conflicts of economic regulation are illustrated and discussed on the basis of Belgian and German court decisions relating to commercial distribution and agency agreements. European courts have adopted a restrictive practice of denying the efficacy of such tandems of choice-of-law and arbitration clauses if there is a strong probability that their internationally mandatory rules will not be applied in foreign procedures. This article shows that neither this approach nor the much more pro-arbitration-biased solutions proposed by critics are convincing. It elaborates a third solution, which allows national courts to reconcile their legislator's intention to enforce a given public policy with the parties' original intention to arbitrate and to optimize the effectiveness of both public interests and arbitration.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: In England and Canada there is a 'professional' nuance to teachers' employment. Jurisprudence in both countries suggests a deliberate expansion of what reasonable expectations education employers have of their teacher employees. Teachers' claim to professional status forms the basis for this expansion of teachers' duties. The function of this long-held interpretation constitutes a further step in the contractualisation of teachers' work. A hallmark of reforms dating back to the 1970s has been the increasing prescription of teachers work, a point which remains at odds with the claimed professional status. The age of the relevant cases hints that contractual flexibility has been a tool during times of reform. The result is that teachers' employment contracts are understood as professional-level contracts, which means (to the courts) that not all duties must be spelled out in the contract. In fact, professional-level contracts cannot possibly include such an itemisation. Teachers are left with a series of lost decisions which reinforce not only their professional status (though in an unintended manner), but also unequivocally identify them as employees who are expected to follow all reasonable expectations of their education employers.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: This article reviews the case law on the offence of breach of an ASBO and offers a theory of the public wrong identified by the courts as the reason for punishing people who commit the offence. It argues that the wrong that unifies all breaches of an ASBO is the insecurity caused by defendants’ failure to address their disposition to cause insecurity in others. The greater is the insecurity that they are thought to have caused as a consequence of their failure, the more serious is the wrong and the more severe is the sentence to which they are liable. It is argued that this public protection theory gives a better account of the positive law than two competing accounts, namely the theory that the offence is simple defiance of the court’s authority and the theory that breach of an ASBO is a ‘composite offence’ intended to aggregate many minor wrongs for the purposes of sentencing. Some of the problems and questions raised by the public protection rationale for punishment are briefly considered.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary, and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalisation. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution and – incidentally – helps to explain what is wrong with the influential argument that, by the end of the 19th Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late 19th Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process even - or perhaps especially - in cases dealing with defects of consciousness. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence. The argument proceeds as follows: I first juxtapose a contemporary case at the Old Bailey with the ‘case’ of Jekyll and Hyde, drawing out and analyzing the narratives of responsibility-attribution to be found in both texts. I then locate this analysis within a broader set of hypotheses about the historical trajectory of ideas and practices of criminal responsibility-attribution. In conclusion, I draw out some implications of this analysis for contemporary criminal law.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: Debates about the construction of postnational law and global governance are usually dominated by a constitutionalist prism, by the hope to establish order through principled hierarchies on a domestic model. Yet what we see emerging is quite different: it is a pluralist order in which the different parts (of domestic, regional, and global origin) are not linked by overarching legal rules, but interact in a largely political fashion. This paper traces the structure of pluralism in a central area of global governance, the regime complex around trade, food safety and the environment, using the example of the dispute over trade with genetically modified organisms (GMOs). It analyses the different institutions and their modes of interaction in this area, and it shows how their competing authority claims relate to broader claims by various collectives striving for control in the construction of global governance. The paper also seeks to shed light on the common charge that pluralist orders create instability. The analysis of the GMO dispute does not confirm this view; it reveals limits to what global risk regulation can achieve in the face of highly politicised conflict, but it also shows significant cooperation successes. Moreover, it suggests that the limits of cooperation are due less to institutional than to societal structures and that a pluralist order, by leaving issues of principle open, may provide a safety valve for issues of high salience, thus avoiding frictions a constitutionalist order might produce.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] | [LSE COPY]
ABSTRACT: The European Court of
Justice’s new approach to posting of workers is explored in light of recent UK
industrial action. Four doctrinal positions are identified and probed: the
host-state standards posted workers can enjoy, the role of collective standards
and action to set and enforce host-state standards for posted workers, the
liability of unions and employers under Article 49 EC, and demarcation of the
boundaries between free movement of services and other Treaty personal freedoms.
While the inspiration informing the new approach, adapting to enlargement and
encouraging cross-border trade, is appropriate, the UK disputes help powerfully
to illustrate how the doctrinal positions thus inspired create, especially in
certain combinations, outcomes which are doctrinally dubious, socially and
politically undesirable, and potentially highly socially inflammable. In many
respects, the new approach is the wrong approach.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: The starting point of this
paper is that if we want to understand the way in which international law
structures and mediates the deployment of power in international life, then we
need to attend to the relationship between law and knowledge - the relationship
between international legal processes and the processes by which we collectively
come to know, describe, and imagine the world in which we live. My aim is to
explore this relationship empirically by looking in detail at one case study,
namely the international legal regime governing international trade in services,
and specifically, the World Trade Organisation's General Agreement on Trade in
Services. Over the last fifteen years, this new body of international law has
developed and evolved alongside a corresponding body of social scientific
expertise on the nature and dynamics of the global services economy. I tell a
story of the co-evolution of these two systems - the legal regime on the one
hand, and the body of knowledge on the other - and try to trace in detail the
ways in which law and legal processes have been present in processes of
knowledge production, shaping the way the global services economy is
collectively imagined and its dynamics understood. I offer four axes along which
to think about this relationship, corresponding to the concepts of constitution,
transmission, objectification and empowerment.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: Legitimacy is not just a
normative challenge for regulators; it is also a functional one. Without
legitimacy, regulators will not be able to motivate others to accept and support
their regulatory strategies. Regulators, therefore, have to attempt to create
and manage their own legitimacy. Legitimacy management is a key issue in
particular for non-state regulators that lack a legally given monopoly or
mandate to regulate, for they have to persuade others to comply with their
norms. Moreover, they may have to compete for ‘regulatory share’; in other
words, they may have to compete against other regulators in an attempt to ensure
that others ‘buy’ their regulations rather than those of their competitor. This
paper argues that legitimacy is a key element in this competition for regulatory
share. The paper distinguishes between export-based and import-based strategies
of regulatory competition, and identifies different strategies for managing
legitimacy in an attempt to gain regulatory share. It goes on to suggest that in
order to understand the role of legitimacy in this dynamic, we need a particular
conception of legitimacy. Legitimacy should be conceptualized not as an
attribute or a resource, but as an endowment. Regulators can try to gain
legitimacy and can do so in the context of a competition for regulatory share,
but whether they get it and from whom depend on the assessments of their various
legitimacy communities. Despite the organisation’s best efforts, legitimacy may
not be forthcoming at all from those legitimacy communities from whom it is
sought, thus limiting the regulator’s ability to expand its regulatory share.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: In recent months, a number
of female celebrities have been awarded court orders under the Protection from
Harassment Act 1997 to constrain the excessive behaviour of the paparazzi. This
is a novel, but unsurprising, use of the statute. Indeed, what has been most
startling in this development is the fact that the statutory cause of action has
never formerly been deployed in this way. The aim of this paper is to assess why
this has been the case. In doing so, it reflects upon opposing perspectives on
the interaction between celebrities and the media; details the origins of the
1997 Act, its requirements, and their application to the newsgathering context;
reviews the jurisprudential forebears to the recent actions that suggested that
the Act could be deployed in a newsgathering context come the appropriate case,
and considers the operation, strengths, and putative weaknesses of alternative
regulatory options (in particular, that offered in this respect by the Press
Complaints Commission). The paper concludes by highlighting a combination of
factors that may explain why the Act has been used only now, by musing on the
ramifications for celebrities and the paparazzi, and by reflecting on the likely
future interplay between the legal and regulatory avenues oriented towards
combating the problem of harassment by photographers and other journalists.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: As the divide between
domestic and international law becomes blurred, paradigms for the structure of
the new, postnational legal order remain elusive, on both the analytical and the
normative plane. In this paper, I inquire into the normative status of two main
candidates, constitutionalism and pluralism. The constitutionalist ideal of a
coherent, hierarchically structured order in a framework defined by law is often
seen as an attractive goal also for postnational politics, but on closer look it
turns out to face similar problems as in domestic divided societies, especially
with respect to power, integration and the rule of law. Pluralism, on the other
hand, is often regarded as better suited to conditions of radical diversity as
they prevail in the postnational realm. The openness of legal relations between
different parts of a political order is seen to foster greater adaptability,
responsiveness to contestation and an ability to steer a path between competing
(and equally deficient) supremacy claims. Yet while these are important virtues,
I argue that a defence of a pluralist postnational law has to find its starting
point elsewhere: in the public autonomy of citizens in the definition of their
legal and political framework. Such an approach shifts the focus to social
attitudes and identities, to the multiplicity of loyalties and allegiances
characteristic of the global polity. These do indeed appear to be better
reflected in a pluralist than in a constitutionalist order.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This study presents the
mid-twentieth century English lord of appeal, Lord Wright, as an innovative
traditionalist judge. Judges have a duty to be creative, Wright believed, but
only within the framework of existing legal authority. Wright explained his
innovative traditionalist perspective in relation to precedent, public policy
and legislation, and he illustrated his perspective particularly by way of
contributions to decisions on worker compensation, commercial contracts,
restitution and international criminal law. He was not always a bold judge, as
is especially evident from his contribution to Liversidge v. Anderson. But his
efforts to develop the law without undermining established precedents and
statutory authority could be subtly effective. In contract and tort decisions he
consistently argued that personal liability should attach only to outcomes which
could reasonably have been expected to come about. He was realistic, and
believed courts must be realistic, about the tendency of the business world to
be guided primarily by its own norms. He incisively criticized implied contract
theory and advanced a conception of unjust enrichment which, in England, was
considerably ahead of its time. In employment law, he added a twist to
freedom-of-contract reasoning, arguing that if it is permissible for individuals
to use their economic advantage to impose contractual terms on weaker parties
then it should also be permissible for those parties to combine and gain the
upper hand. After World War II, he argued that the positive laws necessary for
punishing war criminals already existed. This study draws these arguments
together in an effort to capture Wright’s judicial style and to show that some
of his contributions to legal thought and doctrine run deep and are historically
significant.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: The emergence of global
governance has called into question many of the tools and concepts by which the
traditionally dichotomous spaces of national and international politics and law
were ordered, and various structuring proposals are competing to take their
place. In this paper I examine two such proposals – global constitutionalism and
global administrative law. Both represent distinct visions of how to approach
the challenge, their key difference lying in their respective ambitions:
constitutionalist visions set out to describe and develop a fully justified
global order, while global administrative law is more limited in scope, focusing
on particular elements of global governance and confining itself to the analysis
and realisation of narrower political ideals, especially accountability. Such a
limited approach raises serious problems, most prominently difficulties in
separating ‘administrative’ from ‘constitutional’ issues and the risk of
legitimising illegitimate institutions. But it also bears significant promise as
it allows to focus on, and begin to answer, crucial questions of global
governance without leaping to grand designs borrowed from dissimilar contexts
and likely at odds with the fluid and diverse character of the postnational
polity.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: A modern, statutory
competition regime emerged in Britain only after the Second World War,
developing somewhat haphazardly thereafter. From today’s vantage, this policy
was tentative, partial, and under-enforced. Only by the passing of the
Competition Act 1998 and the Enterprise Act 2002 did the United Kingdom achieve
a regulatory scheme that evinces a coherent design and an orthodox underpinning
rationale. The relative tardiness of this development is a perplexing fact. For
decades, the UK had been a primary exponent of the neoliberal philosophy that
places faith in markets as the most efficient means of allocating societal
resources. Yet the introduction of the necessary corollary - an effective policy
designed to police newly competitive markets - did not emerge until recent
years. This paper, first, notes the pertinent common law in this regard and
outlines chronologically the main statutory competition measures introduced in
the UK in the fifty years following the Second World War. Secondly, it considers
the curious period of inaction in the face of an evident need to revisit
competition policy at the end of the C20th. Thirdly, it offers a brief overview
of the design of the systems introduced under the Competition Act 1998 and the
Enterprise Act 2002, and interrogates the motivations behind such reforms.
Finally, it reviews the underpinning purposes and the design of the more minor
developments that have occurred since 2003. Ultimately, the intention is to
allow some insight into factors which explain how and why UK competition law
developed – or conversely, failed to do so – over recent legal history.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This article examines the
impact of the Human Rights Act on the House of Lords. The HRA came into force on
2 October 2000 and has received much attention from academics, lawyers,
politicians and members of the public. But there has been little sustained
empirical analysis of its impact. This article, the first of a projected series,
aims to start redressing this gap. It presents the findings of a quantitative
analysis of the judicial caseload of the House of Lords for the period
1994-2007. It also seeks to contribute to the growing literature on the identity
and function of the House of Lords (soon to become the Supreme Court).
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This paper critically
analyses the impact of the institutional set up of UK and US patent systems on
the optimality of patent law. Based on recent work on institutionalism, the
author argues that the patent system is subject to increasing returns processes
or positive feedback, where the probability of further steps along a given legal
sequence increases with each move down that path. In an analysis that puts
temporality at the heart of the argument, this paper shows how the interactions
between key institutions in the patent system can result in doctrinal
incoherence. Prominent sources of increasing returns in the patent system are
inter-institutional linkages, legal authority exercised by prominent
institutions and the intrinsic and extrinsic uncertainty associated with
patents. The inadequacy of corrective mechanisms intensifies
increasing returns. In such circumstances even early or tentative commitments
made to policies and legal standards become tenacious while the costs of policy
reversal grow and grow and become prohibitive. The result is a legal system
plagued by the possibility of bizarre and unpredictable outcomes.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: The paper analyses the
emergence of legal provisions in international law that can neither be
categorised as hard law or soft law, but contain elements of both. It identifies
such provisions as 'hybrid norms.' The paper examines common but differentiated
responsibilities (CBDRs) for financial and technical assistance under the
Stockholm Convention on Persistent Organic Pollutants, and argues that the
implementation of State responsbilities for assistance through a heterarchical
implementation network, involving the cooperation between State and
transnational actors, hybridises the international legal framework. While
hybridisation is a productive response to the challenge of regulating global
risks, it also puts pressure on the adoption of enforcement mechanisms and
problematises the communicative role of international law. The paper
preliminarily maps out three responses to the challenges of hybridisation: a
conservative response, a contractual one, and an administrative response.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: Brudner argues that liberal
constitutionalism, or the rule of Law, requires the adoption of a written
constitution, regulating the respective powers of court and legislature. In his
analysis, the common law constitution is associated with a libertarian paradigm
that gives way, in part, to an egalitarian one embodied in a sovereign
constitutional text. I argue, to the contrary, that the preservation of the rule
of Law, including the protection of liberal rights, does not require a codified
constitution, but demands only the consistent application of the correct legal
principles to particular cases. Statutes must always be interpreted consistently
with such principles: their meaning and validity are alike dependent on their
compatibility with fundamental constitutional rights. Demands that cannot be
acknowledged as legitimate requirements by an independent moral agent cannot
qualify as law.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: In Constitutional Goods
Brudner argues that the justification of the ideal liberal constitutional must
be based on an alternative conception of public reason from that that presented
by Rawls in Political Liberalism. This paper sets out the disagreement between
the two notions of justification, and argues that Brudner's proposed account is
problematic on two accounts. Firstly, it seems internally inconsistent.
Brudner's alternative to Rawls's overlapping consensus, a convergent consensus
on an inclusive conception of liberalism, will be impossible given the plural
and often contradictory nature of differing liberal doctrines. Secondly, even if
such a consensus is possible it will be characterized by modus vivendi rather
than a reasonable agreement based on the value of fairness. Consequently,
Brudner's notion of public justification will lack both fairness and consensus,
and should therefore be rejected as the basis for the ideal liberal
constitution.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This paper criticizes
Brudner's purported dialectical deduction and hence "justification" of a
communitarian form of liberalism. Brudner's argument begins from an atomistic
and libertarian conception of liberalism as the idea of individuals having
independent worth as self-sufficient agents. It attempts to show that the
contradictions in such a view require resolution, first, through a move to the
notion of the equal worth of individuals as autonomous beings and, finally,
through the contradictions within egalitarianism to the subsumption of liberty
and equality in a liberal community. The point of the deduction is to show that
the only conceptually stable and hence viable form of liberalism is
communitarian. The paper argues that Brudner's starting-point in independent
worth does not express a genuine independence. Equality and community are
present implicitly within his initial formulation. Hence, there are no
contradictions and no demonstration through their resolution that liberalism,
however initially conceived, must end up as communitarian in form. This is not
to say that a genuine initial independent individualism cannot be clearly
formulated. However, such a position would not generate any supposed
contradictions and could lead to a "justification" of a liberal community only
on the basis of utilitarian and rational contractarian claims, more in the
manner of Hobbes than Hegel.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This paper starts by
discussing Alan Brudner's overall project: the project of inclusivity. It argues
that the idea of inclusivity is problematic both conceptually and normatively,
for three reasons. First, it is not clear that Brudner's aim to provide a
unified theory of the liberal constitution is either possible or desirable.
Second, Brudner assumes but does not adequately demonstrate the need for public
justification of the liberal constitution. Third, Brudner does not sufficiently
explain who should have a veto over his final theory. The paper then turns to
Brudner's analysis of sex and family, and argues that his position on these
matters is one that liberals would reject. In the case of marriage, Brudner's
conclusions may be compatible with liberalism but the arguments supporting them
are not. In the case of abortion, neither argument nor policy is compatible with
liberalism. Either his position requires that we attribute differential status
to human persons, in direct contravention of the fundamental equality of moral
worth that liberalism accords to all individuals. Or it requires that we
override the rights of individuals by asserting that their own self-authorship
is less important to them than a symbol of their personal relationship, a
judgment that profoundly undermines individual autonomy.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: Alan Brudner's
constitutional theory offers us an ideal constitution or 'heaven of laws'. His
theory maps a constitution heavy with law. Law permeates and supports a host of
dense networks and relationships between individuals, communities and the state.
It also specifies a very comprehensive set of rights. These detailed
prescriptions are designed to take constitutional form, with the result that
they are removed largely from the remit of normal political and ideological
debate. This paper probes this vision of constitutional order. It focuses on two
particularly revealing aspects of the theory - its Aristotelian perfectionism
and the educative role it affords the state. Drawing on an older tradition of
liberal thought exemplified by Hume, the paper concludes that the extremely
'thick' legal constitution of the type Brudner presents is not one to which
liberals should subscribe. His 'heaven of laws', since it envisages a state of
political changelessness, amounts ultimately to a particular sort of tyranny in
which the individual is trapped once more by the bonds of fate.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: The UK's Department for
Culture Media and Sport (DCMS) has introduced legislation to provide immunity
from seizure for cultural objects on temporary loan from other countries to
approved museums and galleries in the UK. The legislation is aimed at
facilitating the cross-border lending of objects and bringing the UK into line
with other countries such as the United States, France and Germany, that already
afford such legal immunity. In the absence of immunity legislation in the UK,
many museums and private lenders had been reluctant to loan their objects
because of the risk that they might be seized by creditors seeking to settle
financial disputes or by claimants contesting ownership of the works. This
article examines whether the new law will be effective to provide museums and
lenders with the protection they have been hoping for and asks whether it goes
too far in depriving claimants of legal rights and remedies.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: This paper examines legal
practice, legal scholarship, ethics and politics from the viewpoint of an
academic who in his lifetime has, besides having been a professor, been a
vice-rector, a civil servant, an advocate general and an anti-corruption
officer.. As a vice-rector he acknowledged the essence of decision making: based
on intuition kept in check by deliberation. As a civil servant he learned to
involve considerations of general interest in the decision making process. As an
advocate general he tried to combine assistance to the Court with assistance to
the legal community in a multicultural and pluralist European environment. As an
“anti-corruption” officer he used his judicial experience to advance reform in
the EC Commission. As an academic he sought to promote the “bottom up” approach
of comparative law: from judicial (and legislative) solutions to general
principles which the EU member states have in common.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: Just over half a century
ago, Harvard Law School provided the setting for a debate between the two most
influential British and American legal theorists. H.L.A. Hart, Professor of
Jurisprudence at Oxford, was invited to give the Law School’s annual Holmes
Lecture. Hart took this opportunity to enunciate the kernel of his emerging
theory of legal positivism, staking out his claim to be the 20th Century
successor to Jeremy Bentham and John Austin. Lon L. Fuller, Carter Professor of
General Jurisprudence at Harvard, and a man who had long ploughed a rather
lonely jurisprudential furrow as a scholar and teacher committed to exploring
the morality of law, demanded a right to reply. The rest, as they say, is
history. In this paper, I revisit that history, and give it a somewhat different
interpretation from the one which it has generally received. My argument is that
Fuller was at an inevitable disadvantage in the debate. Because of Hart’s
agenda-setting position, the terms of the debate are those of analytic legal
philosophy: and the reception of the debate has, understandably, both
interpreted and evaluated Fuller’s argument largely in terms of criteria
internal to that discipline. But while Hart’s Holmes lecture can justly be seen
as exemplary of his broader contribution, Fuller’s most original interventions
in legal scholarship originated not so much in a philosophical view but rather
in a broader socio-legal and interdisciplinary interpretation of legal
institutions and processes. Though Fuller might have drawn on this broader work
to raise questions about Hart’s approach, he did not do so as effectively as he
might have done. Hence the salience to Fuller’s reputation of his role as Hart’s
natural law opponent marginalises some important strengths of his scholarship. I
preface this argument with a historical and biographical sketch: introducing the
protagonists and their intellectual and personal preoccupations; setting the
scene for the debate in terms of contemporary legal scholarship and legal
education; and providing a richer context in which to assess the debate’s
overall significance for legal scholarship today.
CLICK HERE TO
DOWNLOAD FULL TEXT [SSRN] | [LSE
COPY]
ABSTRACT: The dominant
explanatory/justificatory framework informing scholarly commentary on copyright
law, policy and theory today – certainly in the US – is law and economics. From
this perspective, copyright law exists to underpin markets in certain categories
of ‘information good’ (copyright works). These markets in turn function to
ensure that the private costs and benefits of information production and
consumption line up (more or less) with the social costs and benefits of these
activities, ie that ‘free-riding’ on the efforts of information producers is
(more or less) curtailed. A widely held view is that this tradition of what
might be called ‘copyright-law-and-economics’ is now deeply divided – between
adherents to what Glynn Lunney has called ‘copyright’s incentives-access
paradigm’ on the one hand, and proponents of what Mark Lemley has called the
‘full value’ or ‘absolute protection’ paradigm on the other. Absolute protection
theorists tend towards the view that all uses of copyright works should be
capable of being controlled (and so priced) by the right-owner;
incentives-access theorists distinguish between uses the control of which would
affect the information producer’s incentives ex ante, and those that would not,
and recommend that copyright protection should extend to the former category
only. This paper examines the features that are said to distinguish the two
paradigms from each other, focusing especially on the approach each recommends
to copyright’s scope (ie the issue of what uses of copyright works properly
constitute copyright infringements). Particular attention is paid to the efforts
of critical economists of intellectual property law such as Lemley and Brett
Frischmann to retrieve and advance versions of the incentives-access paradigm
with a view to counteracting the disadvantages for society they believe are
associated with the absolute protection paradigm. Ultimately, however, I
conclude that too much has been made of the distinction, and that the debate
over which paradigm should have priority in determining the contours of
copyright policy distracts attention from a more fundamental issue – the
hegemony of economic analysis generally in organising the conceptual and
normative universe of legal scholars working in this area. Thus while
sympathetic to the impulse underlying the efforts of Lemley and Frischmann – a
concern to resist the seemingly relentless expansion of copyright towards the
horizon of absolute right-holder control of all uses of copyright material – I
argue that their lingering adherence to the presuppositions of economic analysis
has stymied their well-meaning efforts to account for the social value of
‘information’ in terms distinct from the merely economic measure of price. My
overall aim here is to suggest that, because of its presuppositions, economic
analysis – in whatever paradigm it may be packaged – offers at best a blinkered
perspective on both copyright law and the field of social life that copyright
law affects. I conclude by proposing Jürgen Habermas’s social theory as an
alternative framework in relation to which critics of copyright expansionism
might fruitfully orient themselves in the future.
CLICK HERE TO DOWNLOAD ORIGINAL WORKING PAPER |
CLICK HERE TO
DOWNLOAD REVISED VERSION, 2009
ABSTRACT: This essay unpacks the
normative potential of the right to development in addressing contemporary
disparities of the international political economy. Among the significant
elements provided for in the UN Declaration on the Right to Development (1986)
is its ‘responsibilities approach’: rather than establishing a new substantive
right its provisions advance a system of international duties that might give
better effect to existing socio-economic rights. It challenges the classical
reading of international human rights law that assigns merely secondary
responsibility to developed states in fulfilling human rights elsewhere, in its
place affirming a principle of complementary or shared human rights
responsibility with developing states. While the Declaration articulates some
unconventional demands for a human rights instrument the ways in which it frames
the nature and scope of human rights duties is fitting under current conditions
of economic globalisation. It is concerned with structural disadvantage that
engenders the poverty afflicting half the global population today, and is
preoccupied not with a state’s duties to its own nationals, but with its duties
to people in far off places. As is argued herein, this legal cosmopolitanism is
critical to the realisation of human rights in the 21st century.
CLICK HERE TO
DOWNLOAD FULL TEXT
ABSTRACT: The controversy surrounding
the judicial use of comparative constitutional law is not new. However, the
debate has recently been reignited by a number of US Supreme Court justices who
have spoken out on the use of non-US law in the Court. Scalia opposes, and
Breyer favours, references to ‘foreign law’. Their comments, made both within
and outside of the Court, have led to a reaction by scholars. Arguably the
debate is US-specific as it resembles the different views regarding
constitutional interpretation, namely whether the Constitution’s original, or
rather its current, meaning is determinative. Yet the debate also raises broader
issues of constitutional theory and politics: formal vs substantive legitimacy,
globalisation of the courts, judicial sleight of hand, the cultural foundations
of constitutional law, and the citation of non-primary sources of law in
litigation. The present article explores these issues. It rejects radical
approaches (either against or in favour of comparative constitutional law) and
instead argues for a more modest process which both identifies the national
specificity of law and grasps the mediating potential of law as a self-reflexive
discourse.
CLICK HERE TO
DOWNLOAD FULL TEXT
ABSTRACT: This paper examines the
notion of exceptionalism, currently pervasive within constitutional discourse.
The term ‘exceptionalist’ is used in this context to indicate a measure which
deviates from normal constitutional standards and is, by virtue of that
deviation, seen as inappropriate or regrettable. The paper avoids a direct focus
on the debate about terrorism, concentrating instead on more conceptual matters
– and particularly the ‘fit’ between this discourse and the ‘common law
constitution’. Part I turns to John Locke and uses his theory of the prerogative
as a means of highlighting the difficulty of determining what counts as
‘exceptional’ in this, our ‘age of statutes’. Part II raises concerns about the
common law constitutionalists’ theory of emergency powers, articulated most
skilfully by Dyzenhaus, and argues that this theory rests on a mistaken
understanding of the nature of common law. Part III addresses the issue of
extra-constitutionality and common law more generally, taking as its focus the
‘extra-legal measures model’ of emergencies advocated by Gross and Tushnet. On
the back of this critical, the paper ends by raising questions about the ‘public
role’ of constitutional scholars: have we been too ready, it asks, to deny the
complexity of our discipline in order to make political points?
CLICK HERE TO
DOWNLOAD FULL TEXT
ABSTRACT: Principles-based regulation
is high on the regulatory agenda in a number of regulatory domains, most
particularly financial regulation. Its supporters argue that it provides a
flexible regulatory regime which can facilitate innovation; its detractors argue
that it is simply lax regulation. This article explores the political rhetoric
surrounding principles-based regulation. It identifies four forms of
principles-based regulation: formal, substantive, full and polycentric
principles-based regulation. It also identifies and explores seven paradoxes
which principles-based regulation may encounter in its various forms. These
relate to interpretation, communication, compliance, enforcement, internal
management, ethics, and above all trust. PBR, in its full form, can provide an
effective, durable, resilient and goal based regulatory regime; but at the same
time its paradoxical nature means that it is vulnerable in many respects.
Unfortunately for the detractors of principles-based regulation, many of these
paradoxes are not necessarily avoided by using detailed rules instead of
principles. Rather their resolution lies in trust. Yet, it is argued, trust is
the ultimate paradox. Principles-based regulation can help to create trust, but
the core elements of that trust have to already exist if principles-based
regulation is ever to operate effectively, if indeed at all.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: Arbitration and amicable
settlement (sulh) have a long history within Arab and Islamic societies
and have their roots in pre-Islamic Arabia. Sulh is the preferred result
and process in any form of dispute resolution. Further, arbitration is favoured
to adjudication in Islamic jurisprudence. In tribal and Islamic cultures, the
overarching objective in conflict settlement is collectivity. Group solidarity
is explored in this paper and its effect on dispute resolution is examined. The
paper looks at the differences between East and West and shows that the Eastern
party has an intrinsic community and a collective attitude to conflict whereas
the Western party is individually minded and procedurally orientated, thus
causing friction between the two sides. The distinctions between them relate to
the perceptions of conflict, the formation of procedure and the status and
function of the third party intervener. International commercial arbitration is
sufficiently equipped to accommodate those two norms if it is used effectively.
DOWNLOAD FROM SSRN
ABSTRACT: The purpose of this article
is to identify two potential difficulties in the application of Article 5.7
which appear to follow from certain statements made by Panels and the Appellate
Body in the jurisprudence under that Article so far. The first relates to the
situation in which a WTO Member legitimately takes provisional measures under
Article 5.7, but refuses to conduct further research as required by that
Article. In such circumstances, it is argued, the relevant violation is the
failure to conduct further research, not the taking of provisional measures -
and the solution must therefore be to require such further research, rather than
to invalidate the provisional measures themselves. The second relates to
questions of evolving science, and the extent to which Article 5.7 can and ought
to remain available as a safe harbour to Members even once a risk assessment has
been carried out. It is argued that in some circumstances it should: where
substantive inadequacies and limitations of the earlier risk assessment become
apparent to policy-makers, where new evidence comes to light, and where a
previously unconsidered risk is identified. Under the current jurisprudence, it
is not clear that Article 5.7 remains appropriately available in all such
circumstances.
DOWNLOAD FROM SSRN
ABSTRACT: The 2004 EC Merger
Regulation (ECMR) adopted the substantial impediment of effective competition
test, and abandoned the earlier standard that required proof of dominance as a
necessary element to intervene in a merger. It is said that this reform was
necessary because the dominance test failed to catch unilateral effects absent
dominance, so there was a 'gap' in the ECMR. This paper argues that the decision
to amend the ECMR was unnecessary. From an economic perspective because the
dominance standard was sufficiently flexible to address all anticompetitive
mergers. Economists' concerns about merger control (in both the US and EC) was
that authorities focused on a structural assessment premised upon market
definition and market concentration and failed to give sufficient attention to
other means to test for anticompetitive effects in a more direct manner.
Economists' support for the new test is that it would place a focus on these
other methods for identifying anticompetitive effects. From a legal perspective,
it seems that the major motivation for reform was to divorce merger control from
the abuse of dominance doctrine in Article 82, so that the two legal provisions
would develop independently, the latter only applicable to manifestations of
significant market power. Accordingly the view that there was a 'gap' in the
dominance test is inaccurate, and lawyers and economists supported the reform
for different reasons. This misunderstanding might explain why the Horizontal
Merger Guidelines designed to indicate how the new standard applies are
insufficiently precise. In an endeavour to offer some precision, the paper
reviews a number of decisions and suggests that the Commission applies four
distinct theories of harm, but the first major decision applying the new
standard is worrying because the Commission appears to regulate the market
rather than remove an impediment of competition caused by the merger, with the
risk that the new standard is so loose that it allows the Commission to address
questions of industrial policy through the ECMR.
DOWNLOAD FROM SSRN
ABSTRACT: This paper reflects on the
impact of the new jurisprudence of rights on administrative law. It does so by
examining two approaches: that adopted by the English courts since 1998, and
that followed by Australian courts over roughly the same period. The Australian
response has been to sideline human rights and foreign developments relating to
them. Rules are preferred to principles, and strict textual exegesis is prized
above context-sensitive adjudication. The analysis of English developments
presents a contrasting picture of courts almost awash on a sea of principles.
Pre-existing rules have been partially abandoned or downgraded. Principles have
sprung up in their place and courts have opened themselves up to international
law and the decisions of foreign courts. The paper argues that we are far from
seeing the realisation of a normatively unified 'common law of judicial review'
anticipated by some. Normative heterogeneity within a shared but relatively
loose juridical framework in part produced by trasnational dialogues is a more
likely future for common law jurisdictions.
DOWNLOAD FROM SSRN
ABSTRACT: Utilities regulation in the
Member States is always subject to the application of EC competition law.
However, this undermines the effectiveness of utilities regulation and a more
flexible standard should be devised by the European Courts. The Court of First
Instance has an opportunity to do so in two pending appeals where the Commission
found an infringement of Article 82 EC after the actions of the dominant firm
had been endorsed by the national telecommunications regulator. The grounds for
affording greater latitude to regulators are threefold: first the regulator
should be free to make decisions on economic grounds that support dynamic over
allocative efficiency ; second it should also be free to make decisions on
non-economic grounds to prioritise other objectives at the expense of
competition; and third the present scope of EC competition law is so wide that
in several instances the Commission acts in a regulatory manner, stepping over
tasks best left to the regulator. No general principle is recommended to
demarcate the borderline between competition law and sector regulation but a
case-by-case assessment should be carried out to determine whether the
application of competition law would cut across the policy choices reached by
the utilities regulator, and competition law should not apply when it would harm
the regulatory goals.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: This paper investigates to
what extent contemporary EU risk regulation responds to demands for inclusive
governance. To this end, the paper examines the new EU regulatory framework for
the control of chemicals, better known as the REACH Regulation. It identifies
and evaluates opportunities for public participation during the negotiation of
the REACH proposal (the 'input' stage), in decision-making processes under the
REACH Regulation ('throughput'), and at the stage of reviewing decisions taken
in compliance with REACH ('output'). The paper argues that formal opportunities
for public participation exist and are reasonably satisfactory, but that their
significance is eroded by the institutional and functional context in which
participation must take place.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This paper focuses on the
transplantation of the ‘utility standard’ from the US legal system into the
industrial applicability criterion of patentability as seen in EPO and UKIPO
case law. The Specific, Substantial and Credible standard (SSCS) of utility is
growing in prominence as a new gatekeeping criterion in European patent law.
This legal transplant lacks explicit statutory basis, is largely driven by a
process of mimesis following collaboration between patent offices, and carries
the potential to generate collateral damage to a number of neighbouring legal
standards in European patent law. The SSCS potentially undermines the
‘technical’ requirement in Europe and highlights a growing conflation between
industrial applicability and disclosure requirements. Additionally the SSCS may
increase research tool patentability in Europe, a development that exposes
potential inadequacies in the institutional arrangements of the receiving legal
system. The legal transplant is aided by institutional dynamics that
incrementally entrench a policy choice or legal standard, accompanied by little
or no discussion on its viability and legitimacy. The significant normative
impact of the process of transplantation of the SSCS places the patent office at
the centre of legal and policy change – an entity that is arguably not fit for
this purpose.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This article addresses the
issue of termination of employment because of the conduct of the employee in her
leisure time, in the light of the human right to private life. It explores the
impact on the retention of employment of activities taking place outside the
workplace and outside working hours, and argues that the approach of domestic
courts and tribunals on the matter, which is based on a spatial
conceptualisation of privacy, is flawed. Having analysed the reasons why the
current interpretation of privacy is wanting, the paper suggest a fresh
approach, which rests on the idea of domination that the employer can exercise
on the employee. The paper's proposition is based on an interpretation of the
right to privacy as a right to control information, rather than a right to act
in spatial isolation. It argues that life after work may lead to lawful
dismissal only if there is a clear and present impact or a high likelihood of
such impact on employment, whilst a speculative and marginal danger does not
suffice.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This paper provides a
philosophical critique of the principles that currently govern extraterritorial
criminal jurisdiction under public international law. I start by outlining an
interest-based justification for the right to punish offenders which, I suggest,
is sensitive to the territorial dimension of the criminal law. On its basis, I
argue that the nationality and passive personality principles have hollow
foundations; by contrast, this justification fully explains what makes the
territoriality and protective principles morally sound. Finally, this paper
takes issue with the two most influential justifications for legal punishment
available in the literature, i.e., retribution and deterrence. It argues that
when pressed against the issue of extraterritoriality, they are committed to
conferring upon states universal criminal jurisdiction for municipal offences.
Although this does not prove them wrong, it is an implication that few of their
supporters would be happy to endorse.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: Emissions trading is the
governmentally - promoted hope for a sustainable world. In different contexts,
trading regimes display varying potential – both in absolute terms and in
comparison with other regulatory instruments. Emissions trading, however, is a
device that raises urgent issues regarding its objectives, cost-effectiveness,
fairness, transparency, and legitimacy. Its use places emphasis on its
‘acceptability’ and the virtues of regulation that is ‘lite’ because it is
non-threatening to the most powerful interests. Emissions trading is resonant
with assumptions that are highly contentious - notably that it is acceptable
because it involves no losers, or because, in desperate global circumstances, we
have no choice but to use it. There is a need to confront the difficult issues
presented by emissions trading; to face the challenges of combining ‘market’ and
‘democratic’ systems of legitimation; and to avoid taking refuge in all too
comfortable beliefs in cumulative checks and balances.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: The legitimacy and
accountability of polycentric regulatory regimes, particularly at the
transnational level, has been severely criticised, and the search is on to find
ways in which they can be enhanced. This paper argues that before developing
even more proposals, we need to pay far greater attention to the dynamics of
accountability and legitimacy relationships, and to how regulators respond to
them. The article thus seeks to develop first, a closer analysis of the
significance of the institutional environment in the construction of legitimacy,
the dialectical nature of accountability relationships, and the communicative
structures through which accountability occurs and legitimacy is constructed.
Secondly, it explores how regulators respond, or are likely to respond, to
multiple legitimacy and accountability claims, and of how they themselves seek
to build legitimacy in complex and dynamic situations. This analysis, as well as
being of intrinsic interest, could be of use to those trying to design
accountability relationships or seeking to build them on the ground. For until
we understand the implications of the pressures for accountability and
legitimacy, the ‘how to’ proposals which are proliferating risk being simply
pipe dreams: diverting, but in the end making little difference.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: Criminologists and criminal
law theorists have explained the ASBO and the terrorism Control Order as purely
instrumental measures in the service of crime control. The political consent
enjoyed by these new Civil Preventative Orders has for the most part been
regarded in the expert literature as an example of penal populism which has
thrown aside sound legal principles. This paper, by contrast, investigates a
possible normative basis for these orders. It first analyses and reconstructs
their substantive law, arguing that they impose a liability for manifesting a
disposition which fails to reassure others. It then investigates the basis for
this liability in official anti-social behaviour and counter-terrorism policy,
both of which emphasise the vulnerability of normal citizens. The paper then
proposes that the ‘vulnerable autonomy’ which these policies and legal
instruments seek to protect is an axiomatic feature of the political theories of
‘advanced liberalism’. Finally, the claim made by normative criminal law
theorists that Civil Preventative Orders are illegitimate is reconsidered in the
light of the theory of vulnerable autonomy.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: This paper highlights the
unforeseen or unintended effects of the European Union’s refugee law on the
world’s most vulnerable refugees, those forgotten by the law. The paper focuses
on those refugees automatically denied protection in Europe by being impliedly
defined out of the EU’s refugee definition. Not only must refugees seeking
protection in Europe meet the legal definition, but they are also assumed to
have the means to reach Europe. Due to the limitations on legal access routes,
often only those who can afford to pay a smuggler have the chance to reach
Europe. The great majority of the world’s refugees remain outside Europe.
Therefore, an exploration of the external policies of the EU institutions which
are designed to counter the limiting affects of its restrictive migration policy
is required. The paper examines the move towards the establishment of Regional
Protection Programmes, Protected Entry Procedures and Resettlement Schemes as
providing possible hope for enduring protection for those refugees trapped
outside Europe.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This paper examines aspects
of the European Union’s approach to the accession of new member states and the
integration of immigrants to show how the Union has viewed religion as a
potential threat to the autonomy of the public sphere and to individual autonomy
in the private sphere and has required acceptance of limitations on religious
influence over law and law-making from both applicant states and individual
migrants. It notes how, in common with the jurisprudence of the European Court
of Human Rights, the EU has been willing to interfere with privacy and
individual autonomy in order to protect such principles from the consequences of
unlimited religious influence on law and society. Finally the paper considers
how the Union’s attempts to uphold limitations on religion in the public sphere
have been complicated by the partial and contested nature of the secularity of
its existing members. It shows how an Islamic presence in the public sphere has
been identified by the Union as particularly threatening to the liberal
democracy in contrast to its ready acceptance of the public roles of culturally
and historically entrenched Christian denominations in many member states.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: Near the end of his life,
Hans Kelsen did away with the conception of the Basic Norm which he had defended
so vigorously throughout his career and formulated a new version which was less
well suited to his objective of demonstrating that law is genuinely scientific.
Why did he do this? This short essay suggests an answer: that his final version
of the Basic Norm followed logically from his understanding of how legal norms
connect with human volition.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: This article argues that
accounting-based distribution regulation provides variable and at times
significant protection to both existing involuntary creditors - by increasing
the probability that they will be paid – and the constituency of involuntary
creditors - by decreasing the probability that companies’ actions will produce
involuntary creditors. These benefits become visible when close attention is
paid to the interaction of applicable accounting standards on the recognition of
provisions with the UK’s existing distribution regime. Whilst the current debate
and reform consensus correctly analyses the relationship between the current
regime and adjusting creditors, the article argues that the organising category
of the ‘capital maintenance doctrine’ has obstructed inquiry into the ways in
which the existing rules’ dependence on accounting standards results in benefits
for involuntary creditors.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: Really responsive
regulation seeks to add to current theories of enforcement by stressing the case
for regulators to be responsive not only to the attitude of the regulated firm
but also to the operating and cognitive frameworks of firms; the institutional
environment and performance of the regulatory regime; the different logics of
regulatory tools and strategies; and to changes in each of these elements. The
approach pervades all the different tasks of enforcement activity:
detecting undesirable or non-compliant behaviour; developing tools and
strategies for responding to that behaviour; enforcing those tools and
strategies; assessing their success or failure; and modifying them accordingly.
The value of the approach is shown by outlining its potential application to UK
environmental and fisheries controls. We recognise that putting the system into
effect is itself challenging but argue that failing to regulate really
responsively can constitute an expensive process of shooting in the dark.
CLICK HERE TO DOWNLOAD
FULL TEXT
ABSTRACT: Although now forgotten,
organized markets in commodities like grain, cotton, sugar, coffee and spices
became firmly established in London and Liverpool in the nineteenth century.
These markets were stimulated by the rising volume of international trade, as
Britain became the first industrial nation, a major importer of these
commodities and a centre for organising their distribution elsewhere, especially
in Europe. The story of these markets, and the role of law in their operation,
is fascinating in itself. However, it also enables us to test some ideas about
markets against the reality of what were, for a time, some of the leading
physical and futures markets in commodities in the world. The first part of this
article outlines key features in the organisation and operation of these
markets; the second part concentrates on the central, if uncelebrated, functions
of clearing and settling transactions in these markets; and finally there is a
discussion of market integrity and the role of law in curbing abuse.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This paper addresses the
relationship between legitimacy and international organisations via a
consideration of the supranational principle that lies at the heart of the
European Union. It is built on two arguments. First, that using State paradigms
as the starting-point in measuring the legitimacy of the EU (or of any
international organisations) is falsely to assume that the EU aspires to become
a State. Second, that even in so far as there may be virtue in drawing on State
practice to interrogate the legitimacy of the EU system, one must do so with
full recognition of the failures of states in practice to live up to the worthy
ideals which represent their own claims to legitimacy. The core of our analysis
holds that the nature and impact of supranationalism can only be grasped in the
context of an understanding of the nature of European politics as an
interlocking system of European governance. To argue that the EU should become a
nation state recreated at European level is, in our view, the road to (the EU’s)
ruin. It would not work because of the enduring absence of adequate popular
support for such a project. But nor should it work. Stripping out the
supranational elements of the EU as part of a quest for accountability of the
type found in States makes deeply implausible assumptions about the ability of
Member states deprived of the ‘Community method’ to solve many of the
(transnational) economic, political and social problems that confront them and
their citizens, while also opening up the opportunities for
‘beggar-my-neighbour’ economic policies of the type controlled by EC trade law.
Thus, we argue for an appreciation of the functions of both national and
European institutions in meeting the challenge of securing legitimacy, an
approach which connects to the normative reading of supranationalism that treats
it as directed at ‘taming’, but neither eliminating, nor replacing, the Member
states.
CLICK HERE TO
DOWNLOAD FULL TEXT
ABSTRACT: This article examines the
process of constitutionalisation that is ongoing in English administrative law.
It does so by focussing on two key questions which, although hitherto largely
overlooked by commentators, are beginning to receive attention in the courts.
The first question – the ‘sin’ of omission – relates to the question of how the
courts should respond when an agency has not consciously approached a decision
through a rights-based framework. The second question – the ‘sin’ of commission
– asks how courts should respond when an agency explicitly reaches a decision on
the basis of rights and proportionality. The answers we give to these questions
will help to define the nature of the emerging ‘culture of rights’. Staking out
a position against ‘hardline’ proponents of rights-based judicial review, I
suggest, first, that agencies should not be placed under a duty to articulate
decisions through a rights-based framework and, second, that some provisional
weight should be accorded to an agency’s own assessment of the rights issues at
stake.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: The evolution of the
European human rights regime is often described in constitutionalist terms: as
the move towards an integrated order with the European Convention of Human
Rights as its “constitutional instrument” at the top. In this article, I seek to
show that this description is misguided and that the regime is better regarded
as pluralist – as characterised by a heterarchical relationship between its
constituent parts that is ultimately defined politically and not legally. The
emergence and workings of this pluralist order are traced through the
interaction of the European Court of Human Rights with domestic courts in Spain,
France, the European Union and the United Kingdom. All these cases not only show
conflicts over questions of ultimate supremacy but also significant convergence
and harmony in day-to-day practice. I begin to identify factors that have led to
this convergence and conclude that central characteristics of pluralism –
incrementalism and the openness of ultimate authority – seem to have contributed
to the generally smooth evolution of the European human rights regime in a
significant way. This finding suggests a broader appeal of pluralist models as
alternatives to constitutionalism in the construction of postnational authority
and law.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: What can the concept of
‘the commons’ lend to cultural property and heritage analysis? How can it be
applied to these areas, if one looks beyond the protection of solely ‘natural’
resources such as land (although ‘land’, as a highly regulated substrate bearing
a plethora of significations and values may itself no longer be considered a
‘natural’ resource)? The debates around property and culture are more usually
understood by reference to ‘cultural nationalism,’ ‘cultural internationalism’
and the web of disciplines and resources that grow between these two traditional
approaches, and yet, these resources leave many problems and issues in this
field unresolved. The discourses that make up commons scholarship might serve to
expand the tool box of cultural property discourse, in particular where the
issues span the most personal and the most communal problems of all: human
skeletons and repatriation claims. This essay argues that the very discourse of
the commons itself is a strategy, a means of establishing and policing
thresholds that in turn move according to strategies and desires of acquisition.
In short, designating an object as located within ‘the commons’ is another way
of justifying the appropriation of contested cultural property.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: The focus on development
and poverty reduction by the World Bank and the International Monetary Fund has
increased the scope, and opportunity, for these influential international
financial institutions to consider the human rights implications of their
policy-based operations. Some notable advances have been made, such as greater
attention by the Bank to the links between securing human rights and economic
growth. Still, the negative impact these institutions themselves may have on the
exercise of basic socio-economic rights by people in borrowing countries, due to
the particular policies they pursue, has not been acknowledged. Given the
functioning of international economic governance today it is necessary to
consider the human rights accountability, not just of the developing states, but
of international actors that influence the direction of their social and
economic policies.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: This paper examines the
protection of labour rights in the context of civil and political rights
documents and explores the compatibility of closed shop arrangements with human
rights law. It contributes to the relevant debates in two ways. First, it seeks
to examine how the “integrated approach” to interpretation, a method
increasingly preferred by the European Court of Human Rights when examining
work-related complaints, affects the regulation of closed shops. Second, it
attempts to resolve the apparent tension between individual rights and the
collective interests of labour that is commonly articulated in both the case law
and the academic literature. The paper suggests that, contrary to a widely held
understanding, civil and labour rights share common values. Through the example
of closed shops it is argued that the rights of workers and their unions can be
enhanced rather than harmed by an effective and principled human rights regime.
CLICK HERE TO DOWNLOAD FULL
TEXT
ABSTRACT: This paper examines recent
decisions of the British courts in terrorism cases. Two general approaches are
identified: the first seeks to accommodate government crisis-related claims; the
second starts from the need to reassert ‘normal’ public law principles. The
paper then explores the judicial response to a particularly important plane of
argument – namely, questions of risk and uncertainty. While a number of
different ways of responding to government arguments about risk are isolated, it
is argued that it is ultimately better for the courts to confront these
arguments directly in their judgments.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: In the evolution of private
law, legal reasoning has always confronted the fundamental problem of
reconciling private interests with collective goods. Philosophers analyse this
problem of justice in terms of protecting individual rights whilst at the same
time maximizing utility or general welfare. The private law of tort, contract,
and property rights that emerged in the nineteenth century provided a fortress
of protections for individual rights, but the consequences for collective
welfare were quickly found wanting. These consequences were addressed by the
welfare state, regulation, and the separation of new spheres of private law such
as consumer law and labour law from mainstream doctrine. By the second half of
the twentieth century, however, these regulatory measures had triggered a marked
shift in private law reasoning as a whole, which became more instrumental or
policy oriented. It evolved into a hybrid of the old private interest reasoning
and modern policy oriented regulatory reasoning. At extreme moments, common law
reasoning was almost reduced to a variant of economic reasoning concerned with
maximizing wealth. In reaction, what is happening now is the search for ways to
rebalance the underlying values of utility and rights. The task is to construct
a legal language through which private law can be reoriented in ways which both
give full weight to a wide range of individual rights and at the same time serve
collective interests. The increasingly popular method for achieving this task
involves the constitutionalization of private law. By grounding the principles
of private law in the general principles and abstract rights found in
constitutions, it is hoped to restore the balance between utility and rights.
Yet this approach requires new techniques for transforming the content of
constitutional principles and civil liberties. These public law principles need
to be reinterpreted so that they make sense in the context of the relations
between private citizens. Furthermore, these public law rights need to be
extended into the social, economic, and cultural sphere, so that they can
address the questions of distributive justice that the discourses of civil
liberties leave unanswered.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: In the early 18th Century,
Daniel Defoe found it natural to write a novel whose heroine was a sexually
adventurous, socially marginal property offender. Only half a century later,
this would have been next to unthinkable. In this paper, the disappearance of
Moll Flanders, and her supercession in the annals of literary female offenders
by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental
changes in ideas of selfhood, gender and social order in 18th and 19th Century
England. Drawing on law, literature, philosophy and social history, I argue that
these broad changes underpinned a radical shift in mechanisms of
responsibility-attribution, with decisive implications for the criminalisation
of women. I focus in particular on the question of how the treatment and
understanding of female criminality was changing during the era which saw the
construction of the main building blocks of the criminal process, and of how
these understandings related in turn to broader ideas about gender, social order
and individual agency.
CLICK HERE TO DOWNLOAD FULL TEXT
04-2007
Patents as Credence Goods by Sivaramjani Thambisetty. WPS 04-2007 July
2007
[Subjects: ENVIRONMENTAL & BIOTECHNOLOGY LAW; INTELLECTUAL PROPERTY]
ABSTRACT: The view of patents as well
defined property rights is as simplistic as it is ubiquitous. This paper argues
that in newly arising or immature technologies, patents are subject to intrinsic
and extrinsic uncertainty that make them very opaque representations of the
underlying inventions. The opacity is a result of unsettled legal doctrine and
scientific terminology, uncertain commercial and technological prognosis, and
leads to considerable ambiguity in property parameters. Patents in immature
technologies do not solve Arrow’s information paradox of non-rivalrous goods
because they do not represent the sharp exclusive right that is central to his
thesis. In such cases patents ought to be reclassified in terms of their
perceived and actual function as credence goods. The difficulty in discovering
the value of these patents necessitates credence verifiers, further increasing
the transaction costs of encouraging innovation. The theoretical and empirical
implications of credence explored in this paper are based primarily on the
Anglo-American legal protection of biotechnological inventions, but may equally
be relevant to patents in other newly arising technologies.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: Theories of distributive
justice have great difficulties in conceptualizing immigration as a political
rather than a moral problem. Exploring the reasons for this reductive move, and
explaining why it is self-defeating, this paper argues that immigration poses a
thoroughly political problem because spatial boundaries are posited from the
first-person plural perspective of a ‘we.’ Yet the politics of boundaries
deployed in immigration policy are also necessarily problematic: while polities
claim a right to include and exclude aliens because a territory is held to be
the own place of their citizens, an act of inclusion and exclusion gives rise to
a ‘we.’ This circularity disrupts—without effacing—the inside/outside and
right/fact distinctions that underpin the right to closure polities claim for
themselves. The stake of this disruption is temporal no less than spatial: as
polities close themselves into a legal space through a mutual promise to which
there is no direct access, distributive justice requires that authorities decide
what promises had been made in the light of boundary crossings that determine
what promises can be kept.
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: The article asks whether
the Human Rights Act can be described as a bill of rights. Concluding that the
Act is effectively a Bill of Rights, it examines why there are calls to
introduce a ‘home-grown’ Bill of Rights and why these proposals have surfaced
now. Finally, it asks whether we can assume that such proposals would lead to
better human rights protection, or whether it is possible to end up with less
than we have now?
CLICK HERE TO DOWNLOAD FULL TEXT
ABSTRACT: A Union of twenty-seven, or more, members
at vastly different levels of socioeconomic development must be considered a
mutant of the old EU-15, not to mention the original EEC. The mutation pressures
to which the EU is exposed today are to a large extent the unanticipated
consequences of the application of the old integration methods under radically
new conditions. Thus EMU, instead of making the integration process
irreversible, has split the Union into two, possibly three, camps. On the other
hand, the heterogeneity of EU-27 impedes the establishment of a Single Market
for services. Many of the same people who opposed the original (Bolkestein)
General Services Directive also maintain that the EU should be much more than a
free-trade area. With the services sector – more than two-thirds of the economy
– still largely regulated at the national level, however, it can no longer be
excluded that the enlarged EU may regress, if not to the stage of a free-trade
area, then to a customs union, with some elements of a common market for goods.
It seems likely that the EU will no longer follow a straight-line evolution,
rather a kind of evolution with many side branches. It is suggested that the
economic theory of clubs provides a better theoretical framework for
understanding such developments than the received conceptualizations.
CLICK HERE TO DOWNLOAD FULL TEXT
