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ABSTRACT:
This article examines some of the ethical dilemmas associated with research on procedural justice. Most of this research has involved surveys of the public, involving attitude measurement amongst random samples of adults. These tend not to give rise to the more common ethical dilemmas that criminological researchers encounter, to do with coerced consent and the preservation of anonymity and confidentiality. However, there are significant ethical issues in the application of this research to policy and practice. They relate largely to the risks in providing utilitarian justifications for the adoption of values, and in the use of low-visibility behavioural techniques to nudge people into compliance with the law. These ethical dilemmas offer ‘knowledge tools’ that could be misused in the pursuit of consent to authority – even if individual research subjects are not exposed to any harm in the research process. These – resolvable – dilemmas need to be surfaced and discussed.
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ABSTRACT:
US law is often cast as a notable outlier in two prominent fields of comparative studies. Among comparative constitutional lawyers, the US Supreme Court is famous for its apparent reluctance to embrace the kind of proportionality reasoning seemingly so familiar in Western Europe and in other liberal jurisdictions. And for scholars of comparative criminal justice, the United States stands out, as it has for the past 40 years or so, in terms of the numbers of individuals sent to prison, and in the harshness of the treatment meted out to offenders. Could these two phenomena be connected? By way of an indirect - and incomplete - answer to this question, this paper develops three lines of argument on the punitiveness-proportionality relationship. First, at least some of the factors that help explain cross-country variations in punitiveness, seem relevant also to an understanding of similarities and differences in relation to proportionality reasoning in constitutional jurisprudence. The paper discusses what comparative constitutional lawyers might take from leading work in this area by David Garland, Nicola Lacey, Michael Tonry, James Q. Whitman and others. Second, the comparative punitiveness literature shows how a more substantive understanding of ‘proportionateness’ could be developed, to move beyond the more formal, doctrinal preoccupations of much comparative constitutional law scholarship on proportionality. And third, the paper suggests that penal moderation and proportionality reasoning appear connected in terms of a deeper, underlying sensibility framed here as an ‘intolerance for wrong outcomes’. The paper proposes that future comparative work should aim to engage more directly with this underlying intolerance and its opposites.
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ABSTRACT:
It is tempting to see the defensive reaction of the finance industry in Britain to the recent financial crisis as something new; a sign of an industry which has developed a rotten culture of self-interestedness and a devil-may-care attitude to the consequences of its actions. This paper argues that in fact the reaction is a familiar one in the historical record, continuing a long-run debate between the industry and the British authorities on responsibility for liquidity and capital crises. Whilst the details of the debate have changed as the market has changed over time, the contours of the general debate are clearly visible from the end of the nineteenth century to the present day. The paper suggests that what is new is the difficulty of mediating the debate in a more meritocratic age, when the soft controls of patronage, class and deference have largely fallen away. It argues that more law and more regulation will not achieve real reform, if it does not reflect the values of those it seeks to control. Instead, it suggests that we must develop ways to encourage collaboration between market participants and the authorities within modern, merit-based systems.
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ABSTRACT:
What is the relationship between absolute rights and the principle of proportionality? Proponents of proportionality in human rights law adopt one of two answers to this question: proportionality is inapplicable to absolute rights or absolute rights are no more than generalised predictive conclusions of proportionality analysis. Both answers share the following in common: proportionality is incompatible with absolute rights. That incompatibility is a function of the dominant conception of rights in proportionality analysis, a conception that divorces rights from the relationships between persons constitutive of rights and right relations. My argument begins by reviewing how absolute rights earn their claim to being absolute in part because they identify duties held by persons not to perform certain acts (sec. I). The relationship between absolute rights and the specification of rights is explored next by reviewing the ways in which the doctrine of proportionality struggles with absolute rights (sec. II). This review highlights how rights are imperfectly constituted by proportionality proponents (sec. III) and in need of proper specification so as to align their normative force and scope (sec. IV). This account of specified rights as candidates for absolute status is then defended against criticism by Aharon Barak and Kai Möller (sec. V), before exploring how the specification of rights is secured both by morality and by law (sec. VI).
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ABSTRACT:
The interpretation of Article 102 TFEU by the EU courts has given rise to considerable controversy in the past decade. However, it is not always well understood. The purpose of this contribution is to uncover the rationale underpinning the case law on exclusionary practices and to provide a legal perspective on ongoing debates. An analysis of the case law reveals that some practices are deemed prima facie abusive while others are only subject to Article 102 TFEU insofar as they are likely to have an anticompetitive effect. This difference mirrors the object/effect dichotomy that is observed in the context of Article 101 TFEU. The criteria used to draw the line between abuses 'by object' and 'by effect' is also the same. Against this background, it appears that the 'frictions' observed in the case law can be understood and addressed following the principles sketched by the ECJ in Cartes Bancaires.
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ABSTRACT:
This piece considers the interface between EU competition law and the regulation of network industries. The two have been transformed as a result of their interactions. It is difficult to make sense of contemporary EU competition law without taking into account the consequences that the liberalisation process has had on it. Similarly, regulation sees EU competition law as a model and an aspiration. In this sense, the two disciplines can be said to be mutually compatible. In spite of the compatibility between EU competition law and sector-specific regulation, there is tension between them. The objectives of the two are not identical. Regulation is conceived to undermine the position of the incumbent and to introduce fragmentation. EU competition law, on the other hand, seeks to preserve the competitive constraints to which firms are subject. As a consequence of this tension, the substantive standards in EU competition law may vary to accommodate the features and demands of network industries. Finally, it appears that EU competition law and sector-specific regulation have a complementary relationship. Sectoral regimes often lack the tools to achieve their objectives. The substantive scope of regulation may be limited, or the range of measures insufficient to address all concerns. EU competition law is a versatile instrument that can remedy some of these gaps. It has proved to be an effective tool to preserve fragmentation in liberalised markets and to manage technological change.
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ABSTRACT:
Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU. An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).
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ABSTRACT:
Following the global success of the principle of proportionality in human and constitutional rights adjudication, there is now an emerging debate among academics and judges in the United States as to whether proportionality ought to be introduced into U.S. constitutional law. My goal in this paper is to correct what I see as a misleading simplification in this discussion, namely the view that the United States could introduce proportionality while leaving the other features and characteristics of its constitutional rights jurisprudence intact. I argue that if proportionality is adopted, coherence requires that the other features of what in previous work I have labelled “the global model of constitutional rights” be embraced as well: rights inflation, positive obligations, socio-economic rights, and horizontal effect. Thus, proportionality is not just an isolated standard of review but part and parcel of a conception of rights that must be adopted or rejected as a whole.
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ABSTRACT:
The historical conjuncture reached in the European Union recalls the spectre of authoritarian liberalism, with politically authoritarian forms of government emerging in defence of practices and ideas associated with economic liberalism. Offering a long view of this formation, the paper traces its relation to the project of European integration from the interwar breakdown of liberal democracy to the ongoing Euro-crisis, by way of its postwar and post-Maastricht reconstitution. Postwar Europe was constituted to restore liberalism and protect it not only from sovereign violence and political nationalism, but also from the perceived threat of democracy. Contributing to the taming of sovereign authority, the erosion of constituent power, and the de-politicisation of the economy, this geopolitical constitutionalism functioned during the early years of the common market to produce a relatively stable settlement, through a mixture of supranationalism, ordoliberalism, corporatism and social democracy. But after Maastricht, and in the shadow of geopolitical transformations inaugurated by the fall of the Berlin Wall and the unleashing of global capitalism, Europe was reconstituted on a neo-liberal basis which left the European Union and its Member States unable to respond to financial crisis other than through circumvention of the rules and principles of integration, technocratic discretion and political and economic coercion. This response now prompts concerns of regional imperialism and German hegemony as well as the return of anti-systemic political parties, leading to a conjuncture reminiscent of interwar authoritarianism, as any democratic or constitutional alternative to economic liberalism and its ideology of austerity is obstructed. It might therefore be worthwhile to recall that the authoritarian liberal repression of democratic socialism in the interwar period was followed by an authoritarian illiberal counter-movement of dramatic, and devastating, proportions.
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ABSTRACT:
This working paper argues that the rise of transnational regulation has a transformative impact on law. It examines the field of transnational environmental regulation to show that its proliferation challenges the continued appropriateness of representations of law as: (i) territorial, (ii) emanating from the state, (iii) composed of a public and private sphere, (iv) constitutive and regulatory in function, and (v) cohesive and regimented. Instead, law is increasingly perceived as (i) delocalised, (ii) flowing from a plurality of sources, (iii) organisationally inchoate, (iv) reflexive and coordinating in function, and (v) polycentric. Together, these shifts in perception amount to a transformation that the paper identifies as the transnationalisation of law. The paper then explores three responses to the transnationalisation of law. It distinguishes responses motivated by a desire to reclaim the traditional conception of law from those that seek to reconstruct law at the transnational level and, thirdly, responses that advocate a context-responsive reconceptualisation of law. Each response, it will be shown, creates a different set of opportunities for and challenges to the relevance of law for transnational regulation.
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ABSTRACT:
This paper examines the range of very different conceptions of money and its legal and social significance in the novels of Anthony Trollope, considering what they can tell us about the rapidly changing economic, political and social world of mid Victorian England. It concentrates in particular on Orley Farm (1862) — the novel most directly concerned with law among Trollope's formidable output — and The Way We Live Now (1875) — the novel most directly concerned with the use and abuse of money in the early world of financial capitalism. The paper sets the scene by sketching the main critiques of money in the history of the novel. Drawing on a range of literary examples, it notes that these critiques significantly predate the development of industrial let alone financial capitalism. Probably the deepest source of ambivalence about money in the novel has to do with 'commodification'. As this concern unfolds in Trollope, it tells us a great deal about changing conceptions of property in a world in which industrial capitalism sat alongside practices of speculative investment geared simply to the multiplication of money. Trollope's nostalgia for the world of land sits alongside an increasingly sharp critique of the power of money, and these novels illuminate the rapidly changing economic, political and social world of mid Victorian England. They also speak, as it were, volumes on the relative effectiveness of the different regulatory resources which can be brought to bear upon each form of wealth. And they open some fascinating windows on the gendering of both money and law as concepts in the later Victorian imagination.
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ABSTRACT:
The legitimacy of the United Nations is essential to its effectiveness in carrying out its mandate. As UN organs exercise an increasing array of 'governmental' powers, it should come as no surprise that repeated failures by the UN to provide adequate due process to those affected by its decision-making has had a detrimental effect on the Organization and its activities. Yet UN organs continue to resist procedural reform, seemingly unpersuaded by reform proposals insisting that due process is unquestionably 'a good thing'. The aim of this article is to develop procedural principles for the UN context using a normatively rich rather than formalistic approach. The problem in relying on traditional international law source methodology – drawing on 'universally-recognized' procedural standards from customary international human rights law or 'general principles' of domestic public law – is that it ignores the contextual nature of due process. The article lays the foundations of a 'value-based' approach to the development of due process principles for the UN context, with a focus on two sites in which the choice of procedural framework is both problematic and unresolved: the targeted sanctions context and the Haiti cholera controversy.
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ABSTRACT:
We propose a management insulation measure based on charter, bylaw, and corporate law provisions that make it difficult for shareholders to oust a firm’s management. Unlike the existing alternatives, our measure considers the interactions between different provisions. We illustrate the usefulness of our measure with an application to the banking industry. We find that banks in which managers were more insulated from shareholders in 2003 were significantly less likely to be bailed out in 2008/09. These banks were also less likely to be targeted by activist shareholders, as proxied by 13D SEC filings. By contrast, popular alternative measures of insulation — such as staggered boards and the Entrenchment Index — fail to predict both bailouts and shareholder activism
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ABSTRACT:
Personal data has both an economic and a dignitary value. This begs the question of whether competition law should respect the dual nature of personal data, given that the regulation of competition is chiefly dictated by economic concerns. This article addresses that question by mapping the potential intersections between EU data protection law and competition law. In particular, it argues that data protection law exercises an internal and an external constraint on competition law. On the one hand, competition law involves judgments about 'normal competition' and consumer welfare which may require a normative contribution by data protection law. Using data protection as a normative benchmark in this way does not depart from the logic of competition law as data protection still requires a competitive concern hook on which to hang. Data protection would thus act as an 'internal constraint' on competition law. On the other hand, regardless of such logic, competition authorities are bound to respect the fundamental right to data protection. This requires them to restrict the scope of competition law and to guarantee the effectiveness of that fundamental right. In this way, data protection acts as an 'external constraint' on competition law. Recognising these constraints would pave the way for a more coherent EU law approach to consumer concerns in a digital society.
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ABSTRACT:
This paper forms part of the Northern/Ireland Feminist Judgments Project. It comes in two parts: a feminist judgment and an accompanying commentary. The purpose of a Feminist Judgments Project is to rewrite the “missing” feminist judgments in significant legal cases. A driver of the methodology is to put feminist theory and critique into action, and to show how cases could have been reasoned and/or decided differently. The case in this chapter is a clinical negligence claim against a fertility clinic, which carelessly used the wrong donor sperm in a woman's IVF treatment (A and B (by C, their mother and next friend) v A (Health and Social Services Trust) [2011] NICA 28). The consequences of this mistake were that the children born from the fertility treatment had different skin colour to the woman and her husband, as well as each other. The claim was from the children, as the clinic settled out-of-court with the parents. Julie McCandless' feminist judgment deploys very different reasoning to the original court decisions, and in part reaches a different conclusion. Marian Duggan's commentary explains and problematizes the approach of the feminist judgment, as well as putting the broader identity issues signalled by the case in context.
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ABSTRACT:
In this paper we consider some of the ethical challenges inherent in the regulation of discretionary police power. Discretion is central to police policy and practice, but it also provides a level of freedom that opens up the space for injustice and inequity, and this is seen most vividly in recent debates about unfairness and racial profiling in the distribution and experience of police stops in the US and UK. How to regulate discretionary power is a challenging question, and this is especially so in the context of practices like stop-and-search/stop-and-frisk. The ability to stop people in the street and question them is central to policing as it is understood in many liberal democracies, but under conditions of unfairness and questionable efficacy – when the application of this particular police power appears unethical as well as ineffective – one can reasonably ask whether the power should be dropped or curtailed, and if curtailed, how this would work in practice.
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ABSTRACT:
This paper discusses, in light of the practice of the European Commission, the different ways in which innovation considerations can be introduced in EU competition law. In some cases, such considerations have played an indirect role in the analysis. These are instances in which harm to innovation has been presumed or inferred by proxy from the effects of a practice on the competitive process (for instance, the foreclosure of a rival or the creation of a near monopoly). It is difficult to see anything controversial, or parameter-specific, in these cases. They reflect the approach to contemporary enforcement, which revolves essentially around the analysis of markets and does not require direct evidence of the impact of a practice on, inter alia, prices, output or product quality. Innovation-related arguments may also be introduced as an alternative to the orthodox approach to enforcement. For instance, they may be introduced in lieu of foreclosure analysis in a case where intervention requires evidence of an exclusionary effect. Instead of showing that the practice would lead to foreclosure, the authority or claimant would claim that the practice reduces the rate of innovation. It is submitted that there is no room in EU competition law for the direct introduction of innovation considerations.
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ABSTRACT:
A repurchase agreement (repo) is the sale of financial assets coupled with a promise to repurchase the same assets at a later date. With similar economic characteristics to secured loans and bank deposits, the repo market is one of the main sources of liquidity for financial markets and a vital segment of the US financial system. During the financial crisis of 2007-2009, when the markets crashed and the value of many assets dropped, repo lenders lost confidence in the repo market and massively withdrew their financing. Panic then ensued, drying up the liquidity in the markets. The over-reliance on short-term repo financing magnified the liquidity crunch, and financial institutions such as Lehman Brothers and Bear Stearns were brought to the brink of ruin. The crisis unveiled the deep opacity of the repo market, its proneness to runs, its structural weaknesses, the interconnectedness of its participants, the absence of stability buffers, and the lack of any comprehensive regulatory or supervisory framework. Astonishingly, however, the post-crisis regulatory agenda almost completely ignored the repo market. Though depicted as a reform intended to create a safer financial system, the Dodd-Frank Act essentially left untouched this important source of systemic risk.
After outlining the repo market and shedding new light on its structural instability, this paper presents an alternative narrative of the crisis by arguing that the structurally weak repo market triggered a liquidity crunch that halted the engine of the financial system. In doing so, the paper challenges the assumption that the crisis was caused merely by over-the-counter derivatives, securitization, and too-big-to-fail institutions.
This paper shows how the repo market has developed within the financial markets – free from the watchful eyes of regulators and capitalizing on regulatory arbitrage – and challenges the regulatory void of the Dodd-Frank Act vis-à-vis the repo market. Specifically, this paper presents an original two-step policy option for assessing the repo market, based on the lesson of the post-crisis reforms of over-the-counter derivatives market as well as the incremental role envisioned by lawmakers for "financial market infrastructure" and central clearing counterparties as stability mechanisms. This paper calls for the assessment of the necessity of a structural intervention in the repo market to fix the failures that currently characterize it, and suggests that more transparency, coupled with a strong financial market infrastructure, would make the repo market more transparent, stable, and resilient.
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ABSTRACT:
Since the launch of the Capital Markets Union, the European Commission is again contemplating a reform of securities law, i.e. those substantive and conflict-of-laws rules that underpin transfer of securities and securities collateral. The plan aims at increasing liquidity in the securities lending market, thereby facilitating the financing of SMEs. The Commission may draw on experience from 150 years of law making in the Member States and other jurisdictions around the globe. Courts and statutes over the time have supported three subsequent developments in the mercantile practice, all of which aim at increased efficiency and liquidity: first, the concept of easy and safe transfer on the basis of negotiability or register entries; second, the centralisation of settlement through account structures involving multiple layers of intermediaries, and, last, the globalisation of finance and capital flows, allowing for assets being traded and collateralised in much wider and deeper markets. However, the development of the law became heavily path dependent and idiosyncratic, as legislators in many countries tried to uphold the idea of chattel-like rights even though there were no paper certificates any more. This paper analyses the legal landscape resulting from the tension between the drift towards ever-increasing liquidity and conceptual approaches to securities law. It concludes that the current state of the law does not leave much room for manoeuvre to improve the situation. The legislator can only overcome the current conundrum by returning to basic legal principles and combining them with technical solutions that only emerged recently as a result of modern computing power.
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ABSTRACT:
In May 2015, the European Commission launched an ambitious Digital Single Market Strategy. One of the objectives of this agenda is to ensure that copyright-protected content is accessible across borders by end-users. The achievement of this goal requires the review of national copyright regimes to ease the cross-border transmission of content and the enforcement of EU competition rules. This piece explains the principles applying to the territorial licensing of copyright-protected content against the background of the Strategy and the proposals for legislative reform. As a matter of principle, it is lawful under EU competition law to grant an exclusive territorial licence to a single operator in a given Member State, and thus to prohibit the transmission of the same content by others in the territory subject to the licence. In certain circumstances, however, these agreements may be found to be contrary to Article 101(1) TFEU. The piece places an emphasis on the analysis of the Murphy case and provides the context to understand the ongoing proceedings against the 'Big Six' Hollywood major studios and Sky UK.
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ABSTRACT:
The article develops an understanding of the disgorgement remedy in private law by moving between the proprietary context, where the remedy has long been awarded, and the contractual context, where the remedy is relatively new and still controversial. The resulting account can explain the emerging common law on disgorgement for breach of contract, which has so far eluded explanation. The account also has broader implications for private law theory. First, it suggests that asking whether the plaintiff has a right 'to a thing' (the paradigmatic sort of property right) may obscure the remedial analysis. Instead, the analysis should attend to another, hitherto overlooked aspect of the plaintiff's rights: their logical scope. Second, the account suggests that a purely 'rights-based' understanding of private law remedies cannot adequately explain disgorgement, because it elides the crucial role that the defendant's wrongful action plays in the explanation for the remedy.
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ABSTRACT:
The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unraveling of Europe's constitutional project, even threatening the gains of past generations of European idealists. In today's Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This article traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in 'viruses' that have been present from the start of the European movement but which have now spiralled out of control. The essay ends by asking what can be done to prevent the full decline of the region into a state of neo-democratic/post-democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people.
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ABSTRACT:
This paper defends reason of state as an explanatory category. It begins with an analysis of the law relating to the prerogative, before observing that prerogative cases are much less typical today than an expanding suite of cases involving related matters but where the power in question is sourced in statute or the constitution. The long-term historical narrative towards the constitutionalization of reserve powers can thus be expressed as a move from a princely model of reason of state, epitomized by prerogative, to a polity or law-based model of reason of state, whose characteristic form is statute. Locke's analysis of prerogative is seen as a classic early-modern account of the princely model. Hobbes's state theory provides the basic script of the polity model, but it is in the republican theorists of the same period, notably Harrington, that we see a recognizably modern concern to normalize reason of state through constitutional and institutional design. The paper then takes issue with modern liberals who follow Hayek in wanting to remove the concept of reason of state from constitutional politics altogether. Such an approach can only work if the state is itself made to vanish, or if a liberal state disengages from interaction with other states. Neither option is plausible. The paper ends with a reflection on the value of the category of reason of state for constitutional theory.
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ABSTRACT:
The legal status of quantity rebates under Article 102 TFEU is unclear. In Post Danmark II, the ECJ has been asked to provide a substantive test to establish whether this practice amounts to an abuse of a dominant position. As the case law stands, two possible approaches can be followed. Quantity rebates can be assessed in accordance with the framework sketched by the Court in Michelin I, or they can be subject to the principles applying to other price-based strategies such as 'margin squeeze' abuses and selective price cuts. There are compelling reasons to follow the latter approach. The criteria set out in Michelin I were conceived for target rebates, which – unlike quantity-based schemes – are not presumptively legal under Article 102 TFEU. In addition, the said criteria are not administrable, in the sense that they do not make it possible to define in advance whether a given rebate scheme is lawful or unlawful. In practice, and in contradiction with the logic underlying Michelin I, it is sufficient for a competition authority or a claimant to identify some 'loyalty-inducing' features to establish an abuse. As such, they are not suitable for their application in disputes before national courts, or by national competition authorities.
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ABSTRACT:
The post-crisis global regulatory regime for the over-the-counter ('OTC') derivatives markets mandates the use of central counterparties ('CCPs'). CCPs serve markets by becoming buyer to every seller and seller to every buyer. Two techniques, selective membership and collecting margin, are central to CCPs working safely. The objective of this article is to use a legal perspective to consider how G20-led reforms to the OTC markets interact with, and complicate, these two techniques. The article starts by establishing that arrangements allowing CCP members to access clearing service for their clients ('client clearing') will become increasingly important as a result of regulatory reform, because parties unwilling or unable to become members will now require access. The article then demonstrates how client clearing complicates the legal underpinnings of CCPs, in particular as they relate to the provision of margin. The problematic interaction between the new clearing regime and the UK rules on client assets is considered as an example. The article concludes that these legal complexities need to be addressed at EU level in order to safeguard the functions that attracted regulators to clearing in the first place.
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ABSTRACT:
This paper traces the evolution of the nature of the EU's internal market, from its origin in the 1950s to its current redesign in the aftermath of the Euro-crisis. It suggests that the relationship between 'the market' and 'the social' has shifted multiple times throughout the Union's history. In the first stage, social policy was meant to complement the functioning of the internal market, and tease out potential economic asymmetries in the market. In the second stage, social policy became geared not towards levelling out conditions of competition in the market, but to explicitly protect the capacity of Member States to impose their understanding of 'the social' on the market. Finally, in the last decade, social policy on the Union level has started to move in the exact opposite direction. The EU's institutions now understand social policy diversity throughout the EU no longer as a necessary complement for, but rather as inimical to, a functioning market in the EU. In doing so, however, they overlook a number of institutional asymmetries, normative biases and legal implications, which mean that any attempt to create a 'social market economy' – as Article 3 (3) TEU commits the EU to do – is bound to be distinctively light on 'social' and heavy on 'market'.
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ABSTRACT:
The commission of criminal wrongs is occasionally revealed after the (suspected) wrongdoer's death. In such cases, there seems to be a widely-shared intuition, which also frequently motivates many people's actions, that the dead should still be blamed and that some response, not only stemming from civil society but also the state, to the criminal wrong is necessary. This article explores the possibility of posthumous blame and punishment by the state. After highlighting the deficiencies of two pure versions of punishment theory, retributivism and general deterrence theory but also the potential in the latter, it argues for a political theory of the criminal law (mainly from a normative perspective, although the modest claim is made in passing that current institutional arrangements are best understood in this light), which views institutions of punishment as the business not only of defendants and victims but also the political community as a whole. Within this normative scheme posthumous responses to wrongs are possible and in some cases necessary for the maintenance of the stability of the political community. Accountability-holding processes may also be necessary for the protection of the reputation of the deceased suspected wrongdoer.
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ABSTRACT:
Much of the anxiety concerning 'privacy' in contemporary conditions of data immersion — which I here characterise as 'life in the datasphere' — may be better understood by reference to the neglected notion of conscience. This article undertakes an historical inquiry into this rich concept to reframe the debate on privacy, law and technology. To simplify, 'conscience' has historically articulated an impulse either to hide from an omniscient moral authority ('bad conscience') or to act righteously according to informed reason ('good conscience'). Originating as a powerful premodern governing principle combining personal with public morality — notably in the medieval notion of synderesis — the personal and political content of conscience were each effectively critiqued by, respectively (in the examples I investigate here), Freud and Hobbes. The concept itself became ultimately marginal to public life. In this article I suggest that conscience in both guises returns forcefully under conditions of data ubiquity, pointing to broader shift in political settlements.
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ABSTRACT: :
Why does codetermination exist in Germany? Law and economics theories have contended that if there were no legal compulsion, worker participation in corporate governance would be ‘virtually nonexistent’. This positive analysis, which flows from the ‘nexus of contracts’ conception of the corporation, supports a normative argument that codetermination is inefficient because it is supposed it will seldom happen voluntarily. After discussing competing conceptions of the corporation, as a ‘thing in itself’, and as an ‘institution’, this article explores the development of German codetermination from the mid-19th century to the present. It finds the inefficiency argument sits at odds with the historical evidence. In its very inception, the right of workers to vote for a company board of directors, or in work councils with a voice in dismissals, came from collective agreements. It was not compelled by law, but was collectively bargained between business and labour representatives. These ‘codetermination bargains’ were widespread. Laws then codified these models. This was true at the foundation of the Weimar Republic from 1918 to 1922 and, after abolition in 1933, again from 1945 to 1951. The foundational codetermination bargains were made because of two ‘Goldilocks’ conditions (conditions that were ‘just right’) which were not always seen in countries like the UK or US. First, inequality of bargaining power between workers and employers was temporarily less pronounced. Second, the trade union movement became united in the objective of seeking worker voice in corporate governance. As the practice of codetermination has been embraced by a majority of EU countries, and continues to spread, it is important to have an accurate positive narrative of codetermination’s economic and political foundations.
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ABSTRACT: 'Safe harbour' is shorthand for a bundle of privileges in insolvency which are typically afforded to financial institutions. They are remotely comparable to security interests as they provide a financial institution with a considerably better position as compared to other creditors should one of its counterparties fail or become insolvent. Safe harbours have been introduced widely and continue to be introduced in financial markets. The common rationale for such safe harbours is that the protection against the fallout of the counterparty’s insolvency contributes to systemic stability, as the feared ‘domino effect’ of insolvencies is not triggered from the outset. However, safe harbours are also criticised for accelerating contagion in the financial market in times of crisis and making the market more risky. This paper submits that the more important argument for the existence of safe harbours is liquidity in the financial market. Safe harbour rules do away with a number of legal concepts, notably those attached to traditional security, and thereby allow for an exponentiation of liquidity. Normative decisions of the legislator sanction safe harbours as modern markets could not exist without these high levels of liquidity. To the extent that safe harbours accelerate contagion in terms of crisis, which in principle is a valid argument, specific regulation is well suited to correct this situation, whereas a repeal or significant restriction of the safe harbours would be counterproductive.
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ABSTRACT: In this paper I outline the logical relations between political equality and the practice of imprisonment by the state. I identify the very limited conditions in which the citizen-rulers of a democratic state give it the authority to imprison them, and the still more limited conditions in which a democratic state has good reason to imprison its citizen-rulers. I further argue that this reason to imprison becomes less significant the more that formal political equality leads to substantive equality of political influence among citizens. The more democratic is the state, the more it will substitute restorative justice methods for imprisonment. I demonstrate that this democratic theory of punishment can explain recent huge rises in imprisonment rates in the US and the UK as one consequence of the retreat of political equality in those countries over the same period. I conclude by considering in turn the position of non-citizens in a penal regime of political equality; the persistent social injustice of democratic state punishment; and the inherent abolitionism of a penal theory based on a serious commitment to political
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ABSTRACT: Patent law is rife with apparently inexplicable outcomes that only make sense within hyper-contextualised domains. The scale and degree of such outcomes warrants a closer look at the text of patent law – in this paper, the text of patent Examination Guidelines. These guidelines – an intermediary product of legal, judicial and quasi-judicial decision-making – convert contested legal standards into acceptable claim language that is arguably the very nub of patent law. Using the examples of diagnostic methods, Swiss-type patent claims and industrial application of gene patents, I demonstrate how language is compacted and abstracted in a process that ‘textualises’ substantive meaning. Textualisation in patent law is a system of persuasion that does not use semantic meaning to communicate and influence, relying instead on rhetorical modalities to frame contested legal positions and prevail. The ensuing difficulty in comprehending the law is a potential threat to legitimacy, while conversely facilitating agency and power in patent systems.
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ABSTRACT: In early 2012, the Spanish state came under strong market pressure due to its engagement in round after round of large-scale bank bailouts. The country’s joint sovereign-bank crisis shed new light on the nature of the euro area’s crisis. European decision-makers were forced to openly recognize the non-fiscal – that is, the banking and monetary – causes of sovereign distress and to accept the need for drastic policy solutions. The policy shift soon took concrete form with the launch of the Banking Union project in June 2012. The principal intention was to break the bank-sovereign link and to relieve the euro area’s weaker economies from the almost impossible burden of having to finance bank bailouts out of national fiscal resources. The mutualization of bailout costs through a common ‘fiscal backstop’ was, in other words, the key objective of the Banking Union as originally conceived. Subsequent policy choices, however, have marked a relaxation, if not partial abandonment, of this objective. The policy approach eventually adopted with regard to resolution financing in the context of the Banking Union’s Single Resolution Mechanism (SRM) is based on the burden-sharing norms of the Bank Recovery and Resolution Directive (BRRD), the instrument harmonizing bank resolution regimes across the EU. This guarantees the legal consistency of resolution frameworks within and outside the euro area. It is less certain, whether the chosen approach can insulate national state finances from the costs of bank bailouts and/or ensure the full equalization of the financial conditions for bank resolution everywhere in the euro area. The sufficiency of the planned common financial instruments is a particular concern.
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ABSTRACT: This paper explores the different ways in which market actors are 'co-opted' as corporate law regulators. It considers the preconditions for generating 'endogenous self-regulation' through the lens of the formation and operation of the UK Takeover Code and Panel. The paper argues that its incontrovertible success as a command, control and surveillance regulator is in large part attributable to merchant (investment) banking control over the production of the original Code and the ways in which the Code generates direct and indirect income opportunities for investment bankers in takeover activity, referred to in the paper as 'bribing the quarterback'. The paper also uses the Takeover Panel example to explore the unexpected regulatory biases that are generated by the survival and legitimacy concerns of the self-regulator itself. From endogenous self-regulation, the paper moves onto consider 'market-controlled' regulation where the state directly co-opts market actors as regulators. Using the example of 'comply or explain' corporate governance codes, the paper explores the powerful market-based enforcement drivers and argues that these drivers interact with a 'comply or explain' regulatory outlook that is likely to, and does, lead to sub-optimal regulation that overweighs accountability concerns. Setting these regulatory effects alongside the regulatory biases identified in the analysis of the Takeover Code, the paper shows that the regulatory biases generated by self-regulation are more multi-faceted than, and often inconsistent with, the standard account that self-regulation is likely to generate rules that favour the regulated.
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ABSTRACT: In this paper I consider two ways by which the legitimacy of legal authorities might motivate people to abide by the law. Following recent criminological research I define legitimacy along two different dimensions: the first is the public recognition of the rightful authority of an institution, and the second is a sense among citizens that the institution is just, moral and appropriate. Data from a randomized controlled trial of procedurally just policing provide further support for the idea that justice systems can secure compliance by (a) instilling in citizens a sense of deference and obligation, and (b) showing to citizens that they represent a requisite sense of moral appropriateness. While prior work has tended to focus on the idea that legitimacy shape compliance through felt obligation, the current analysis shows that compliance is predicted by both duty to obey and moral endorsement. Consistent with a good deal of existing evidence, the findings also indicate the importance of procedural justice and group identification in the production of institutional legitimacy. I conclude with the idea that legitimacy may be able to shape compliance through shape content-free obligation and shared moral appropriateness
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ABSTRACT: In Case C-131/12 Google Spain v. AEPD and Mario Costeja Gonzalez, issued on 13 May 2014, the Court of Justice of the European Union recognized a right under the EU Data Protection Directive 95/46 for individuals to suppress links generated by Internet search engines (popularly referred to as the 'right to be forgotten'). The Court’s holdings leave many important questions open, both in regard to technical legal issues and more high-level issues of general jurisprudential and societal importance. The judgment suffers from the Court’s traditionally minimalist style of argument and reluctance to adopt a more open and discursive style, and its failure to take the significance of the case for the Internet into account. The material and territorial scope of the right to suppression must be defined in a way that is proportionate to the ability to implement it, if the judgment is to effectively protect fundamental rights in practice.
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ABSTRACT: Austerity measures in many European countries have led to the violation of social rights and widespread socio-economic malaise. In the case of countries subjected to conditionality imposed by external institutions for the receipt of loans, the resultant harms have highlighted responsibility gaps across a range of international institutions. Two recent legal developments come together to expose these gaps: Greece’s argument in a series of cases under the European Social Charter that it was not responsible for the impact on the right to social security brought about by austerity measures since it was only giving effect to its other international obligations as agreed with the European Commission, the European Central Bank and the International Monetary Fund (the Troika), and the concern to emerge from the Pringle case before the European Court of Justice that European Union institutions could do outside of the EU that which they could not do within the EU – disregard the Charter of Fundamental Rights in the exercise of their tasks. That the Commission and ECB were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study and drawing on EU law, international human rights law, and the law on the international responsibility of states and of international organisations, this article looks to what we can expect in legal terms and as a matter of contemporary societal expectation when it comes to having international institutions respect human rights.
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ABSTRACT: This paper examines the sentencing of mentally disordered offenders using an analysis of s.45A orders under the Mental Health Act 1983. The paper reviews the legislative context of the orders and the relevant tranche of Court of Appeal decisions, and looks at their use since 1998. It then touches on the literature on the role of heuristics and cognitive errors in decision-making as a vehicle for demonstrating why the courts may find sentencing in these cases peculiarly problematic. The paper concludes that partial culpability may be being used as a mechanism for justifying the imposition of these orders which facilitate the application of more risk-averse thresholds of release and recall; but that partial culpability is such a fluid concept as to introduce elements of incoherence into the disposal of mentally disordered offenders.
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ABSTRACT: : In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a 'friction' in the case law.
If rulings like Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as 'margin squeeze' abuses and selective price cuts already are.
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ABSTRACT: This essay responds to Virgílio Afonso da Silva, Alon Harel, and Iddo Porat, who offered critical comments on my book The Global Model of Constitutional Rights at a symposium at the Hebrew University of Jerusalem in December 2013. Their comments, together with this response, will be published in the Jerusalem Review of Legal Studies.
The paper deals with, first, questions relating to the methodology of my book (in particular the nature of my theory as morally reconstructive, and its global character), second, the role of autonomy (in particular its relation to equality, and my defence of a general right to autonomy), and third, the problem of justification (outcome-based versus excluded reasons-based ways of reasoning about questions of rights).
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ABSTRACT: Thomas Jackson famously described the role of all bankruptcy law as reducing the incentive for individual enforcement against the assets of a distressed company. Although scholars have debated other aspects of Jackson's thesis, most have continued to identify with this as the central tenet of bankruptcy law. This paper proposes a new taxonomy: the law of corporate distress comprised of insolvency law and restructuring law. It argues that Thomas Jackson's description remains apt for part of that taxonomy but draws a distinction between the constituent parts. It reframes the unifying aim of the law of corporate distress as the facilitation of the reallocation of resource in the economy to best use and draws a distinction between insolvency law's role in reducing the incentive for individual enforcement and restructuring law's role in providing a deadlock resolution procedure. Adopting a comparative Anglo-American approach it examines the implications of this distinction for insolvency law and restructuring law in the twenty-first century.
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ABSTRACT: Since the financial crisis there have been extraordinary efforts by the European Central Bank to protect the single currency, alongside pronouncements by European political elites that the Euro determines Europe's fate and must be rescued at any cost. In its OMT reference, the German constitutional court challenges this emerging 'Economic Messianism' on the basis of a constitutional logic of the democratic Rechtsstaat. And yet, the German Court is also promoting an ordo-liberal logic of avoidance of moral hazard, fiscal competitiveness and austerity that undermines the project of European integration and erodes constitutional democracy in the debtor states. These tensions – between supranational economic integration, state sovereignty and domestic constitutionalism – reveal the depth of the constitutional disequilibrium in the EU, and also reflect broader contradictions in the development of late democratic capitalism.
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ABSTRACT: One of the key issues in the on-going overhaul of the global financial system is the structural reform of banking systems. Legislatures in different states, e.g. the United States, France, Germany, and the United Kingdom, have all taken measures to protect individual depositors' assets against losses from risky bank activities. On 29 January 2014, the European Commission joined the transnational effort by publishing its own proposal on the subject. This contribution shows how the same economic goal is implemented through different approaches by legislatures across the globe. It also analyses how this legal diversity will affect the level playing field in the competition for banking services and the consistency of global financial regulation.
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ABSTRACT: Regulatory disasters are catastrophic events or series of events which have significantly harmful impacts on the life, health or financial wellbeing of individuals or the environment. They are caused, at least in part, by failures in, or unforeseen consequences of, the design and /or operation of the regulatory system put in place to prevent those harmful effects from occurring. Regulatory disasters are horrendous for those affected by them. Because of that we have an obligation to learn as much from them as we can, notwithstanding all the well-known challenges related to policy and organisational learning. The article focuses on five distinct and unrelated regulatory disasters which, although they occurred in apparently unrelated domains or countries, contain insights for all regulators as the regulatory regimes share a common set of elements which through their differential configuration and interaction create the unique dynamics of that regime. In the regulatory disasters analysed here, these manifest themselves as six contributory causes, operating alone or together: the incentives on individuals or groups; the organisational dynamics of regulators, regulated operators and the complexity of the regulatory system in which they are situated; weaknesses, ambiguities and contradictions in the regulatory strategies adopted; misunderstandings of the problem and the potential solutions; problems with communication about the conduct expected, or conflicting messages; and trust and accountability structures.
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ABSTRACT: In this paper I argue against national constitutional courts' welcoming approach to EU fundamental rights. This more recent development is inextricably linked to the broader phenomenon of the displacement of these courts from law and politics in Europe. The paper builds on previous work concerning the place of constitutional courts in the EU, which sought to provide a theoretical basis for what is argued here with regard to the more specific issue concerning EU fundamental rights. In the first part, I will briefly present the background argument, based on a Habermasian idea of the European constitutional democracy. Then I sketch the understanding of fundamental rights, which builds on it. On that basis I finally discuss national constitutional courts' engagement with EU fundamental rights.
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ABSTRACT: American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an expansive standard. This article proposes a novel interpretation of the doctrine that accommodates both the rhetoric of good faith and fair dealing and the reality of judicial enforcement. Good faith and fair dealing, the article contends, is an underenforced legal norm. The duty is valid as a legal norm to the fullest extent, even though courts engage only in partial enforcement of that norm. This article is the first to bring the idea of underenforced legal norms into private law, drawing on the extensive literature on underenforced legal norms in constitutional law, and on analogous ideas in corporate law. The article explores the reasons why legislatures and courts might want to announce a duty whose scope extends beyond what the courts enforce. In private law, as elsewhere, the underenforcement idea allows courts to lend their expressive support to the broader norm while avoiding the negative side effects that attempted full enforcement would entail.
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ABSTRACT: In a recent article, I argued that the regressiveness of current public attitudes towards rape has been overstated, suggesting that, to a troubling extent, we are in the process of creating myths about myths. The article itself and the arguments contained within it have provoked various responses from feminists. While these responses proceed at times on the basis of misunderstandings or misinterpretations of my argument, they are helpful both in clarifying areas of disagreement and in underscoring some important points of agreement - at times explicitly by accepting, and at other times implicitly by leaving unchallenged, some of my core claims. In what follows, I aim to point out the misunderstandings or misinterpretations, and to clarify both the areas of assent and the areas of dissent in an attempt to move us towards the productive public conversation we believe we want.
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ABSTRACT: Can behavioural economics
help to make better labour law? This article traces the relationship between
empirical work and legal thought, and focuses on new studies in behavioural
economics and their potential implications for labour policy. Work by
behavioural economists, and its implications, is discussed in four main fields
of labour law policy: the effect of fair pay on the motivation to work; the
effect of security in pay, and potentially job security, on productivity; the
relevance of participation rights and job satisfaction in the workplace; and the
differences between opting in and opting out of workplace schemes such as
occupational pensions. Studies on these questions provide evidence that labour
rights which correct inequality of bargaining power, protect security in pay and
conditions and promote workplace participation redress significant market
failures. If the thinking is careful and slow, behavioural economics seems
indispensable to make better labour law.
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ABSTRACT: Although the
rules/discretion distinction has been visited by legal scholars many times, what
remains less well-developed is enquiry into the effects of attempts to constrain
discretion by imposing rule-based structures in regimes founded on high levels
of discretionary activity. In the land-use planning domain, for reasons of
technical complexity and informational asymmetry, discretion is given to local
authorities to devise solutions allocating appropriate uses of land. The legal
framework contains an array of discretionary powers (ranging from the high-level
allocation of land uses, to how planning applications are decided), which
include in the latter case peripheral (indeed penumbral) forms of bargaining and
negotiation that are integral to the statutory scheme. The Planning Act 2008
includes, however, a shift in the form of the Community Infrastructure Levy
(CIL), which attempts to limit an exercise of discretion locally through law.
The CIL is a scheme obliging local authorities to impose a 'tax' on new planning
development to recoup the cost of infrastructure provision rather than
negotiating solutions with individual developers on an ad hoc basis. Not only
does this represent a departure from a use of discretion to secure equivalent
benefits (which have historically been obtained through negotiation), it
provides also an illustration of the effects of attempting to constrain one of
the many forms of discretionary activity in the context. The provisions, while
ostensibly limiting local discretion, point to a temporal shift in its locus.
This paper critiques the provisions of the Act as they relate to the CIL and, by
referencing previous strategies adopted for a similar purpose, suggests that an
imposition of fixed charging structures may have the effect of displacing rather
than eliminating discretionary activity in particular negotiation and
bargaining.
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ABSTRACT: This paper explores the
impact of the Ruggie 'Protect, Respect and Remedy' framework and UN Guiding
Principles on Business and Human Rights on transnational human rights
litigation. It considers the impact to date, and the possible impact the Ruggie
Framework and UN Guiding Principles could have on a widely predicted increase in
the number of state law negligence claims against transnational corporations in
the US after the decision of the Supreme Court in Kiobel v. Royal Dutch
Petroleum limiting the jurisdictional reach of the US Alien Tort Statute
1789.
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ABSTRACT: Challenging the predominant
scholarly focus on international parliamentary institutions as the sole and
sufficient object of inquiry into the global role of parliaments, this article
argues that international interparliamentary relations do not occur merely
within isolated forums, but may and do de facto evolve in layers of
overlapping forums whenever circumstances allow it. This article conceptualises
multilayered international parliamentarism as developing in webs of formal and
informal linkages between the same parliamentary institutions in a variety of
bilateral and multilateral frameworks regarding the same region. To this end, I
conduct an in-depth case study of bilateral and multilateral relations between
the parliaments of the EU and Brazil through the lens of institutional
arrangements as well as by examining the reaction of the Brazilian and certain
other Latin American parliaments to the EU's Returns Directive. The analysis
shows that intensified international contacts among parliamentarians accentuate
the deliberative function of parliaments and foster their 'diplomatic' actorship
in foreign affairs in a concerted attempt to counterbalance
globalisation-propelled 'negotiated democracy' nurtured by intergovernmental and
transgovernmental ways of doing politics and making law.
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ABSTRACT: Comparative analysis of
violent crime is hampered by a lack of reliable statistics, even between
relatively similar countries, with doubts about existing studies suggesting that
further comparative data is needed. Violent crime presents particular problems
of variation in offence definition and recording practices. We can, however,
derive reasonably valid comparative data for the US and England and Wales for
the narrower category of serious violent crime. We show broadly that the
incidence of serious violent crime per capita is between three and seven times
as high in the US as in England and Wales. This parallels the comparative data
on homicide; existing comparisons with Canada and New Zealand lend further
weight to the claim that levels of serious violence in the US are distinctively
high.
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ABSTRACT: Recently, a private cause
of action against rating agencies has been introduced into EU law. This paper
analyses the need and justification for such liability. Features of the new
cause of action are compared to those existing in other major economies; in
particular, those of the U.S. and Australia. The paper criticizes the fact that
the EU leaves open to Member States to define the essential terms of rating
agency liability and, thereby, fails to secure a uniform regime. The problems of
the new rule are compounded further by difficulties in determining the
applicable national law that fills in its gaps. Finally, it remains unclear
whether the scope of the liability also covers U.S. rating agencies. It is
concluded that the new regime is merely a cover-up to mask continuing
differences between EU Member States concerning the appropriateness of rating
agencies' civil liability.
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ABSTRACT: Close-out netting is a risk
mitigation tool used by financial institutions. It is comparable to set-off and
in insolvency situations any solvent counter-party that is able to use it
obtains a very strong position as compared to other creditors. Therefore, it
might conflict with the pari passu principle. Many jurisdictions have
solved that conflict and adapted their laws so that close-out netting is
enforceable even in the event of insolvency. However, as the financial market is
global, the parties, their branches and assets might be located in different
jurisdictions. Still, countries failed to agree on a harmonised conflict-of laws
rule, despite the obvious need, when they decided not to include a
conflict-of-laws principle in the 2013 Unidroit Principles on the Operation
of Close-out Netting Provisions. The relevant EU law, though patchy, already
addresses this concern. This Article identifies the underlying conceptual
difficulties and proposes a solution for an improved framework for both the EU
and other financial marketplaces.
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ABSTRACT: Proportionality has been
received into the constitutional doctrine of courts in Continental Europe, the
United Kingdom, Canada, New Zealand, Israel, South Africa, and the United
States, as well as the jurisprudence of treaty-based legal systems such as the
European Convention on Human Rights. Proportionality provides a common
analytical framework for resolving the great moral and political questions
confronting political communities. But behind the singular appeal to
proportionality lurks a range of different understandings. This volume brings
together many of the world's leading constitutional theorists – proponents and
critics of proportionality – to debate the merits of proportionality, the nature
of rights, the practice of judicial review, and moral and legal reasoning. Their
essays provide important new perspectives on this leading doctrine in human
rights law. This is the Introduction to Proportionality and the Rule of Law:
Rights, Justification, Reasoning, published by Cambridge University Press in
April, 2014. In addition to the Introduction, this paper includes a list of
contributors and a table of contents.
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ABSTRACT: How have practices of
governance-through-knowledge modified themselves in response to a century of
critiques of the objectivity of modern science? This article takes inspiration
from the work of Jasanoff, Riles, Latour and others to identify a mode of
'governing as if': a pragmatic mode of governance which works not through the
production of objective knowledge as the shared epistemic foundation for
political settlements, but rather by generating knowledge claims that stabilize
social orderings precisely through their self-conscious partiality, contingency,
and context-dependence. This argument is developed using the illustration of
global subsidies regulation in World Trade Organization law, focussing in
particular on the knowledge practices by which particular conceptions of 'the
market' are produced and deployed in the course of its operation. The article
argues that the standard criticisms of naturalized economic conceptions of the
'free market', developed in various scholarly traditions throughout the 20th
century, do not provide an adequate account of economic governance working in an
'as if' mode, either positively or normatively. It further argues, following
Riles, that such regimes of governance derive their effectiveness fundamentally
from their 'hollow core', and that it is in the constant and active work of
'hollowing out' that we are likely to find their characteristic modalities of
power and underlying structural dynamics.
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11-2014
'Law after Lehmans'
by
Jo Braithwaite
WPS 11-2014 February 2014
[Subject: CORPORATE, INSOLVENCY & FINANCIAL LAW]
ABSTRACT:
The September 2008 collapse of the Lehman Brothers group marked the nadir of the global financial crisis. While the regulatory aftermath has been extensively debated, the effects of the case law that arose from the insolvency have not. This paper explains the need to redress the balance. It starts by considering the quantity and qualities of the Lehmans case law, examining why the 30 plus decisions handed down by the English courts enjoy an unusually high precedent-setting potential. The paper proceeds by analysing the precedential effects of these decisions, and it reports on a recent workshop held at the London School of Economics that met to consider this question. Subject to the event's terms of engagement, the paper draws out several themes from the discussion, including the impact of the Lehmans cases on the principles of contractual interpretation, the law of trusts and insolvency law. By way of conclusion, it is submitted that the impact of Lehmans case law reaches far beyond that particular insolvency, to worldwide users of standard form documents, the global financial markets and the common law itself. Seen in this light, the Lehmans case law is a significant, but under-appreciated, side-effect of the global financial crisis.
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ABSTRACT:
The working paper contains an extended review essay of Zdenĕk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (2011). The central thesis of the book is that 'there is a deep continuity in the methods of legal reasoning employed by lawyers in the region, starting in the era of Stalinist Communism, continuing through the era of late Communism of the 1970s and 1980s and up to the current post-communist period'. In this respect the book's analysis is retrospective, starting in the late nineteenth century, when the Central European legal culture emerged within the 'Austrian legal tradition'. It provides a rich analysis of legal thinking, institutional practices, and expert as well as public discourse concerning judges, courts and judicial process over the course of the whole of the twentieth century in the region. The book's central argument concerns our time, however. The continuity of Central European legal thinking is, according to Kühn, 'manifested in the problems of the first two decades after the collapse of Communism'. In this regard the book turns to the present and future of Central Europe and becomes missionary, offering a diagnosis together with a prescription. The cure lies, essentially, in catching up with the West and adopting its 'new European legal culture'. More concretely, Kühn argues empathically for the empowerment of the judiciary, which would in his view correspond to the development in the West throughout the second half of the last century.
The result is rather ambiguous. On the one hand, the book is engaging and worth reading for anyone interested in post-communist Europe and its past. The book however serves as an interesting exhibit in the gallery of post-communist legal culture, rather than an accomplished study thereof. In what follows I will firstly introduce the book and then turn to its problematic features, which relate to the (still) prevailing discourse concerning post-communism in Europe.
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ABSTRACT:
This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law.
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law's reach is strikingly circumscribed. Little of the governance of natural resources, for example, is 'environmental'. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and 'ecosystems', and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
In this paper, we suggest that international environmental law's dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the 'natural world' as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.
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ABSTRACT:
Normative political theory is divided on whether questions of distributive justice properly extend beyond the state. From a functionalist perspective, however, justice reflects a balance of material forces, subject to the logics of 'market' and 'social' justice, or 'capitalism' and 'democracy'. The justice 'deficit' is the imbalance or disequilibrium in these logics, an imbalance which the constitution of the post-war European state stabilises through their constraint. European integration, initially an important feature of this post-war settlement, now increasingly comes to be viewed as a significant threat to it. Whereas market logic and capital have been rapidly supra-nationalised, social-democratic logic has struggled to transcend the state, the EU, in particular, lacking the channels of contestation to legitimise redistribution. This leads to an imbalance in the forces of capitalism and democracy, a justice 'deficit', which destabilizes national as well as supranational institutions, but also leads to questions being asked of what Germans owe Greeks, or vice versa. The justice deficit and reaction to it now appear to be threatening core features of state sovereignty. But it also suggests that the logic of the state - and the question: to whom are obligations owed? - must itself be subject to contestation; the dilemma of market and social justice, or capitalism and democracy, must be replaced with a trilemma, of market, social and democratic justice.
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ABSTRACT:
The paper considers the nature and extent of mental disorder, amongst those who have been justly convicted, within prisons in England and Wales. These levels of disorder, and of serious disorder, are broadly consistent with the international literature. The implications of the presence of so many mentally disordered offenders for the established purposes of imprisonment are explored. Issues of accessing appropriate treatment are reviewed. A number of remedies are discussed, including those of interventions which would significantly reduce the prison population per se. The paper concludes that whilst for many mentally disordered offenders imprisonment is the right and proper disposal, for others it is an injustice that they are detained in conditions that may exacerbate their disorders, and for some others their presence in the prison population is a manifest injustice. The paper calls for a fundamental review of the purposes of imprisonment for all offenders, in the light of these observations about mentally disordered offenders.
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ABSTRACT:
Corporate mobility and choice of law within the EU has dominated much of the academic writing in European company law over the last decades. What has not yet received much attention is the way in which national company law interacts with and depends on features of the national legal system outside of company law. In this article we explore this interaction and its relevance for coherent national regulatory systems.
Using the regulatory framework for companies in the 'vicinity of insolvency' as an example, we show how choice of company law can create both regulatory gaps and multiplication of legal requirements, as private international law rules are applied inconsistently across Europe. More importantly, however, we show that even consistent application of conflicts rules would fail to resolve these problems due to cross-doctrinal interdependence within any national legal system.
We conclude that this is a design flaw in the way EU law deals with the increasingly international reach of corporations, and discuss possible paths for resolving or mitigating this issue.
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ABSTRACT:
Corporate governance codes are an increasingly prominent feature of the regulatory landscape in many countries, yet remarkably little is known about the determinants of corporate governance reform. Potential determinants include: (1) the diffusion of an international benchmark model of good governance; (2) a country's legal system; (3) the desire to attract foreign investors; and (4) the influence of interest groups. I construct a proxy for the investor-friendliness of 52 corporate governance codes of different jurisdictions and collect data on the code issuers. I find strong evidence that the drafters of codes emulate international benchmark models and that jurisdictions belonging to different legal traditions use different regulatory strategies, some evidence that portfolio equity inflows are associated with the investor-friendliness of codes, and no evidence that interest groups succeed in affecting rules. The article suggests a method for the modeling of legal evolution, convergence, and the political economy of corporate governance codes.
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ABSTRACT:
Private international law doctrines are often portrayed as natural, largely immutable, boundaries on local public agency in a transnational private world. Challenging this problematic conception requires a reimagining of the field, not only as a species of public law or an instrument of governance, but as a constitutional phenomenon. This paper investigates what such a 'constitution of the conflict of laws' could look like. Two features are given special emphasis. First: the idea of the conflict of laws as an independent source of constitutionalist normativity, rather than as a mere passive receptacle for constraints imposed by classical, liberal, constitutional law. And second: the possibility of a local, 'outward-looking' form of conflicts constitutionalism to complement more familiar, inwardly focused, federalist conceptions.
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ABSTRACT:
This contribution shows that holding securities through chains of intermediaries compromises the ability of investors to exercise their rights. This problem is not remedied by Geneva Securities Convention ('the Convention' or 'GSC'). It will be argued in the paper that research should be carried out to determine if a mechanism can be created that enables ultimate investors to hold securities directly. Further work on creating a harmonized set of rules at a functional level will not improve legal certainty, reduce systemic risk or enhance market efficiency. The problems associated with the current framework are a function of the process of intermediation itself. Legal and systemic risk and market efficiency are adversely affected by the number of intermediaries operating in this context. Law cannot help here. Structural reform can. It is worth investigating if a framework can be created that allows for securities to be held directly by ultimate investors.
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ABSTRACT:
The Indian Supreme Court's (SC) decision in Novartis v Union of India (UOI), decided earlier this year, formalizes a concerted and focused attempt by Indian law-makers to reject trivial secondary pharmaceutical inventions. The SC concluded that S 3(d) of the Indian Patents Act made new forms of known substances ineligible for patents in the absence of 'enhanced efficacy', which in this case was defined as 'therapeutic efficacy'.
This paper argues that the SC wrongly ignored the context of S 3 and Chapter II of the
Act, which is a medley of exclusions, exceptions and ineligible subject matter, each of which can be differentiated by the need to involve the person skilled in the art standard. In this case a greater appreciation of the flexibility afforded by this notional standard as part of a broader non-obviousness enquiry would have led the SC to a more conventional and legitimate legal option. Instead the SC's adoption of the patent eligibility route has paradoxically left it much less room to manoeuver the law around secondary pharmaceutical inventions.
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ABSTRACT:
My main aim is to argue for the legitimacy of 'regulatory' criminal law. Historically more significant as a feature of statecraft than its critics have been prepared to admit, I defend a number of the controversial characteristics of such law. Such features include its tendency to come in the form of numerous discrete offences (where the common law was satisfied with one or two general offences), its preoccupation with less 'serious' forms of wrongdoing, and its reliance on omission-based liability. The plausibility of these claims comes through shifting the focus away from the favoured moral high ground of traditional critics of bureaucratic criminal law: the interests and concerns of the individual, as the object of criminalisation. A very large proportion of bureaucratic criminal law is aimed at companies, as objects of criminalisation. Whilst companies must be dealt with in a fair and proportionate manner by the criminal law, as entities they lack the capacity for emotional suffering, dignity and autonomy that would otherwise place greater constraints on the scope for the criminalisation of their activities. In developing my views, I try to maintain a healthy scepticism about the viability of identifying a set of laws that are uniquely and distinctively 'criminal'.
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ABSTRACT:
In the wake of the financial crisis, significant questions have been raised as to the appropriateness of the economic conception of markets and of behaviour that has for the last few decades dominated policy makers in financial regulation. In response, some regulators are starting to revise their understandings of behaviour of actors within financial markets. However, the conception of the dynamics of markets themselves remains largely intact. This article argues that in order to regulate financial markets, we need a more sophisticated and realistic cognitive framework through which to analyse their dynamics and on which to base their regulation. To that end, the article develops a social conception of financial markets, drawing on institutionalist theories, social network theories, and the sociology of science and technology, including technical systems. Whilst there are no easy answers, the move to this social conception of markets provides an alternative cognitive framework for how regulators see and know financial markets: how they understand the behaviour of actors within markets, the function of markets, their structure and organisation, the role of calculative devices in price formation and governance processes, the power relations and interconnections between actors within markets, the role of trust and confidence in markets, the relevance of internal organisational dynamics to understanding behaviour of organisations within markets, and the role that regulators and supervisors themselves have in constituting markets and shaping decisions that market actors make.
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ABSTRACT:
This paper sets out some elements of a historical theory of the contemporary securitization of criminal law and expansion of state surveillance. I begin by demonstrating that recent criminal legislation permits the state to punish those identified as dangerous. Following Jonathan Simon, I argue that this legislative policy of public protection arises from the idea that the victim of crime is the representative subject of law, and that the vulnerability of potential victims provides the normative justification for coercing and punishing persons for their dangerousness. I then investigate why Evgeny Pashukanis, in the final chapter of his General Theory of Law and Marxism, explicitly excluded the possibility that penal law might be used to punish the dangerous. I argue that his account of the legal relation between the subjects of commodity exchange is one-sided. Correcting this one-sidedness demonstrates that the vulnerability of the subject is an inherent aspect of commodity exchange relations. On this basis I sketch a historical account of how the legal ideology has been inverted, displacing the abstractly free individual subject of classical legal ideology with the abstractly vulnerable individual subject of public protection. I consider the implications of this ideological reversal for abolitionist criminal law theory, and conclude by identifying the methodological error that led Pashukanis to his one-sided account of legal relations.
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ABSTRACT:
This Working Paper presents the Introduction to my new book 'Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse' (Cambridge University Press, November 2013, ISBN 978-1107044418). The language of balancing is pervasive in constitutional rights jurisprudence around the world. This book offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. I argue instead that 'balancing' has always meant radically different things in different settings. The book makes use of detailed case studies of early Postwar US and German constitutional jurisprudence to show that the same unique language expresses both biting skepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
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ABSTRACT:
In the present environment of weak banks and shaky state finances, the introduction of so-called Special Resolution Regimes (SRRs) for failed banking institutions has developed into a global and European policy priority. This paper responds to certain claims made in relation to the proper objectives and mode of operation of SRRs, with particular reference to a recent paper by Gustav Sjöberg. SRRs are supposed to set out effective tools for handling the failure of systemically important banks in a manner that preserves systemic stability and secures the continuous provision of the key functions of the financial system; at the same time, they incorporate elements of strict enforcement, in order to preserve market discipline and curtail moral hazard. Many policy-makers and scholars assume that an SRR with appropriate legislative objectives and strong intervention tools can of itself reconcile the aforementioned purposes. However, any SRR which enables the continuation and restructuring of insolvent banks&' operations with outside financial support, if this appears justified for systemic reasons, and/or provides protection to certain stakeholders (typically, depositors), entails by definition a relaxation of market discipline. Due to the inclusion in the statutory framework of strong elements of discretion, such a system will always be amenable ex post to negotiated enforcement and strategic behaviour on the part of bank stakeholders, who demand forbearance. Thus, a well-designed SRR can at most establish a structured and robust decisional framework, reducing the ability of the latter to game the system. But it cannot act as an effective ex ante governance tool.
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ABSTRACT:
Calls for patent law to take on a more explicit innovation policy agenda have recently increased in urgency. There is however a considerable difference between incentive to invent and incentive to innovate in terms of outcome. Institutional dynamics in patent systems based on the incentive to invent premise constrict rationality and decision-making capability to the extent that an injection of externally devised 'innovation policy' seems impossible unless also accompanied by far reaching institutional changes. In both US and Europe technology-specific legal standards in patent law and market specific economic analysis in competition law are a natural point of congruence when considering existing institutional dynamics that support innovation. This short essay looks primarily at European law to analyse the different ways in which patent law is inured to resist the imposition of economic analysis common to competition policy. There are however spaces within current legal rules that lend themselves well to anexamination of the sector specific commercial contexts of inventions. These can and ought to be used robustly to better reflect elements of market specific innovation policies.
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ABSTRACT:
This Working Paper explores how the entanglement between Law and European polity-building was initially established. To this aim, it follows the short historical sequence in which EC institutions and policies set up by the Rome Treaties were first invented and formalized. It considers the early emergence of transnational microcosms of practitioners of European politics, judiciary, bureaucracy and market in Brussels, Strasbourg and Luxembourg. Often endowed with legal credentials and well-connected to legal scholarship and judiciaries, these first office holders shaped the foundational concepts and theories through which EC- specific institutions and policies soon established themselves. The paper therefore contends that lawyers and their ad hoc legal theories were integral to the transformation of the institutional and policy complex set up by the Paris and the Rome Treaties (three separate Communities, a complex set of institutions, a variety of policies) into one 'constitutional settlement' providing a unitary understanding of this emerging transnational institutional terrain.
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ABSTRACT:
This paper transposes dominant normative critiques with an institutionalist view of patent law by analysing how the multi-institutional setup of the patent system may determine the quality and coherence of change and decision-making. The institutional environment of the patent system makes it opaque, sticky and complex. These significant features are examined for the first time in this paper. Critical opportunities for statutorily determined decision-making are best described as learning needs, expressed through heuristics such as the person skilled in the art, inventive step determinations and prior art. These learning needs, set against the broader institutional environment, severely constrain current goals and limit future decision-making possibilities. In the case of an emerging technology such as synthetic biology, the management of learning needs is likely to lead to decisional outcomes marked by a desire for short-term gains in certainty and homogeneity, rather than substantive goals.
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ABSTRACT:
Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, that is, the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights that endorses proportionality, there is no coherent way to avoid the conclusion that all autonomy interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. Although this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.
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16-2013
'On the Loss of Rights'
by
Gregoire Webber
WPS 16-2013 June 2013
[Subject: LEGAL & SOCIAL THEORY; PUBLIC LAW]
ABSTRACT:
This chapter defends a simple proposition: rights matter. It is a troubling reflection of the current state of juridical thought that it is in relation to human rights law that the proposition is defended. In an effort to reclaim rights from the position of inconsequence to which they have been relegated by the received approach to human rights law, the chapter draws attention to the equivocation in the use of the term 'right' in the catch-phrases 'Everyone has a right to ...'. In reasoning towards the states of affairs and sets of interpersonal actions, forbearances, and omissions that realise rights in community, one merely begs the question by affirming as conclusive that one has a right to life, liberty, etc. The practical question is what, specifically, is to be established and brought into being in order to realise one's rights. The chapter's main contention is that rights are conceptually interrelated to justice and acknowledge the foundational equality of persons by delimiting what is due to each member of a political community. This frame of analysis is deployed to criticise proponents of the received approach and to re-order the relationship of rights to law.
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ABSTRACT:
Financial responsibility of the EU resulting from investor-state arbitration is a politically sensitive topic that is currently shaping the emerging European international investment policy. What degree of protection can be granted to foreign investors in negotiations of future EU investment treaties without compromising EU policy space, and how much review of its regulatory powers not by the CJEU but by arbitral tribunals is the EU willing to accept? Taking the Commission's recent draft Regulation on managing financial responsibility as the starting point, this paper analyses the implications that future EU investment agreements would have for the existing safeguards for balancing private and public interests in EU law. It discusses the latest reactions of the European Parliament to these issues (triggered by a previous version of this paper) and suggests a more scientific and sustainable approach towards ensuring that future EU agreements provide a maximum of legal certainty for both investors and host states.
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14-2013
'The Ends of the Museum'
by
Tatiana Flessas
WPS 14-2013 June 2013
[Subject: PROPERTY LAW, CULTURAL PROPERTY AND HERITAGE]
ABSTRACT:
In recent years, there have been a plethora of cases in which museums have had to release treasured pieces. New legal initiatives and developments increasingly make repatriation claims by source nations and other single or group 'original owners' possible, most recently in the area of illicitly-trafficked antiquities. Recent scholarship radically questions the genealogy and functions of the museum, and its relationship with the concepts of space, culture, and identity. In terms of space, there have been analyses that place the museum at the centre of disciplinary projects, 'civilizing rituals', architectural expressions of the diremptions in the genealogies and cultural histories of modernity. In terms of culture and identity, there have been similar deconstructions of the links between nation-building and housing art and artefacts. Museums are now searching for strategies to protect their collections from the loss of authority and status that attend repatriation claims in this climate of criticism. Yet, do museums collude in this loss of authority by joining in the 'propertization' of their collections? Embedded in the notion of modern museology is the primacy of the object. This, arguably, aids the legal and political initiatives that permit deaccessioning of objects, imposing external requirements on the retention or return of certain types of collections, and regulating the relationship between the collector and the museum.
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ABSTRACT:
This article examines the extent to which the imperfect nature of the EU system of judicial remedies can explain the peculiar evolution of the EU law on abuses of dominance. A comprehensive analysis of competition law judgments since the 1960s suggests that the procedural avenue through which a case reaches the General Court and the European Court of Justice has a significant impact on the outcome of individual cases and, over time, on the very substance of Treaty provisions. It is submitted that some of the distinct features of the case law on Article 102 TFEU – lack of consistency, legal uncertainty, judicial restraint – are the consequence of the fact that the scope of the notion of abuse has been defined in the context of annulment actions against Commission decisions, as opposed to preliminary references submitted by national courts in accordance with Article 267 TFEU. This conclusion is tested against the evolution of Article 101 TFEU and Article 2 of the successive Merger Regulations.
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ABSTRACT:
In recent decades the term 'legitimacy' has featured heavily in debates about international law and international institutions. Yet the concept of legitimacy, mercurial as it is, has remained under-scrutinised, leading to confusion and misuse. Rather than seeking to advance a particular conception of what may make international law legitimate, this paper seeks to clarify and complicate how international lawyers understand and use legitimacy as a concept. To begin, the paper distinguishes between legal, moral and social legitimacy. It highlights the different ways in which these three approaches to legitimacy have been used in international law scholarship, while drawing attention to some of their more problematic tendencies. From there, it breaks the concept of legitimacy down into three major components: its object, subject and basis. It argues that the tendency to blur these elements has led to much of the uncertainty and obfuscation in legitimacy debates. Finally, the paper considers how legitimacy may be distinguished from coercion, self-interest and habit. Ultimately, it argues that if treated with sufficient rigour, legitimacy provides a useful analytical concept for international lawyers. In doing so, it aims to encourage and facilitate the participation of international lawyers in broader inter-disciplinary debates about legitimacy.
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ABSTRACT:
In terms of key criminal justice indices such as the rate of the most serious violent crime and the imprisonment rate, the United States not only performs worse than other advanced democracies, but does so to a startling degree. Moreover these differences have become more extreme over the last half century. For example, the imprisonment rate, which was double that in England and Wales in 1970, is today five times higher, notwithstanding the fact that the rate in England and Wales has itself more than doubled during that period. And while, at between four and five times the English level, the American homicide rate is broadly comparable today with that in 1950 (when it was nearly six times the English level), it reached ten times that level in the late 1970s. These differences are widely recognised. What is less often recognised in comparative criminal justice scholarship is that these differences in criminal justice variables sit alongside stark differences in other key social indicators, notably in inequality of educational outcomes and in residential socio-economic and racial segregation, where the United States also does worse than other liberal market countries with similar economic and welfare systems. The comparison with other Liberal Market Economies such as the UK and New Zealand is even more striking in the light of their own poor performance on all these variables as compared to the Co-ordinated Market Economies of Northern Europe and Japan. In this paper, we present a thesis about what explains each of these distinctive American outcomes, and about how they relate to one another. Our core argument is that the decentralised American political system, which accords a distinctive degree of autonomy to localities, and which governs a distinctively wide range of decisions about education, zoning and criminal justice through local electoral politics, produces a polarising dynamic in which it is impossible to garner stable political support for integrative, let alone redistributive policies. The key 'median' voters in local elections are, disproportionately, home-owners who vote for policies which will maximise their own property values and the quality of services and the environment in their immediate area, and who are reluctant to vote for costly public goods whose benefits are not so restricted. In this light, it is rational for local governments to form policies based on zoning: whether of good schools, of community policing, of public housing, or – the most extreme example – of offender populations into the prison system. These dynamics, moreover, have become particularly strong since the collapse of Fordism and disappearance of many manual jobs which formerly provided a bridge from education to employment for the low-skilled. It follows from the dynamics of American democracy that it is virtually impossible to construct political coalitions at the local level in order to construct alternative bridges in a post-Fordist world. Our argument leads to the sobering conclusion that, within the American political system as currently structured, the opportunities for reversing the trend towards ever greater punitiveness, or combating continuing high levels of violence and inequality, are limited. In particular, our argument implies that a diagnosis of the 'collapse of American criminal justice' in terms of the federalisation of criminal policy by an activist state is, at best, a very partial one, while recent arguments in favour of a revival of local democracy as a solution to the ills of American criminal justice are seriously misconceived. Notwithstanding their relatively poor performance in comparison with the co-ordinated countries, the relatively strong framework for national policy development and implementation in other Anglo-Saxon countries has provided mechanisms countering some of the polarising and inegalitarian dynamics of a Liberal Market system.
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ABSTRACT:
European Union debates have led to a change in how sovereignty is deployed. Its presence now has to be justified through its relationship to the claims of EU law: be it as a rival to the latter's authority or as something that infuses it. This need to justify has led to sovereignty being understood in terms of the wider value it brings to political systems and their citizens. To find this value, recourse has been had to older traditions which see sovereignty as a counterpart to government, with EU law being understood as a government order. This has cast sovereignty in three ways. The first sees sovereignty as a series of activities which go to making up a domestic human order, be this order called a people, nation, public or society. This order transcends and constrains government as it goes to the identity and mission of the domestic political system. These activities are to be protected from EU law insofar as it is a governmental order. The second sees sovereignty as something which ordains EU law, granting it authority, and, consequently, retaining the prerogative to patrol the democratic quality of EU law. The third argues that if EU government involves these bodies seen as most capable of expressing the will of this sovereign human order in its decision-making, it can enjoy sovereignty. The value of sovereignty has, however, always lain in the distinction between it and government. This allows limits to be placed on the reach of government and external controls placed on its activities. This union of sovereignty and government reaches into the darker traditions of sovereignty. It grants the Union governmental machinery a largely unfettered power of rule to realise the governmental objectives it sets itself. As a sovereign, it can free itself not merely from external constraints but even those instituted by EU law. Its powers can be intrusive, unaccountable and extensive. And, indeed, this is what is happening as Union measures unfold during the Euro area crisis.
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ABSTRACT:
Risk-based regulation tends to direct concerns towards higher risks but low risks present a number of challenges for regulators. The latter have to justify the level of attention they pay to such risks; they have to deal with different kinds of low risks and they have to decide which tools to use to control lower risks. What regulators cannot do is ignore lower risks. This article describes how a strategic framework for regulating low risks was devised and it examines how academic research into strategies for low risks was translated into practical strategies for application in the field. A number of messages are to be drawn: the distinction between high and low risks is by no means unproblematic; traditional theories of risk-based regulation do not come fully to grips with lower risks; but it is possible to devise an organised method for choosing the intervention tools for lower risks and such a method can be implemented on the ground if used with judgement by experienced regulators.
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ABSTRACT:
This paper traces the emergence of a new res or object of protection within European trade mark law. Proprietary rights in trade marks have conventionally been premised upon the mark's ability to communicate useful information; namely, indicating the commercial source of goods or services, also referred to as the essential function of a trade mark. Granting exclusive rights to control the use of a mark preserves its ability to reliably signal origin. Contemporary EU trade mark law goes further and protects the more expansive brand dimension associated with a successful trade mark. The Court of Justice of the European Union (ECJ) has enabled this by recognising not only the origin indication function of marks, but also their advertising, investment and communication functions. The brand is a remarkably elusive and protean, yet undeniably valuable, intangible. So what are the doctrinal tools and techniques available to courts, registrars and legal practitioners, enabling them to work with such elusive subject matter? What are the corresponding assumptions about brand creation and sustenance that reinforce these techniques? And can they be reconciled with recent conceptualisations of branding emerging from marketing and consumer studies research? Since brand protection is a controversial development within European trade mark law, this paper unpacks the manner in which the brand is conceived of within European legal doctrine. The ECJ situates branding within a one-way broadcast model, while contemporary marketing research emphasises that brand formation is dialogic and iterative. The ECJ's approach to brand propertisation is therefore not only inaccurate in presuming single author brand creation, but also deeply troubling since it marginalises consumer agency and reinforces the exploitation of their immaterial labour through the instrumentality of trade mark law.
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ABSTRACT:
In the dispute between Strasbourg and Westminster over prisoners' voting rights, the arguments of both sides help to consolidate the emerging 'post-democratic' political regime in Europe. The UK government's position in >Hirst v UK, and the judgments of the Strasbourg courts in Hirst, Frodl v Austria and Scoppola v Italy, all assume that democracy is no more than a matter of voter-consumers choosing between competing alternatives in the political market place. This minimalist conception of democracy also underlies the argument that enfranchising convicted prisoners will contribute to their rehabilitation. If, by contrast, democracy is thought of as a regime that seeks to achieve the collective self-government of the people, then one of its principles is that only those who enjoy civil liberties and formal independence of the executive can be self-governing citizens. Enfranchising prisoners subverts that democratic principle.
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ABSTRACT:
The requirement of disclosure in the patent specification is commonly presented as an essential arm of the patent bargain. This paper tests the assumption that disclosure requirements in a number of common law jurisdictions continue to reflect this and other shared origins of this doctrine. Instead we see forces such as Europeanisation and sector-specificity produce divergence and confusion over the purpose of sufficiency, particularly in the context of adjacent patentability criteria such as utility and nonobviousness. The result is a complex expression of this requirement that has eroded the normative strength of this doctrine as originally expressed in Liardet v Johnson.
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ABSTRACT:
The proper plaintiff rule reflects the elemental legal principle that only the right-holder is entitled to enforce the right. At common law, as a corollary of this principle, only when the general meeting was incapable of acting in the corporate interest could a derivative action be brought. It followed from this principle that wrongdoer control of the shareholder meeting was a pre-requisite to derivative litigation. The Companies Act 2006 introduced what is considered to be a 'new' derivative action mechanism. Although the Act is silent about the wrongdoer control requirement, it is widely understood to have abolished it. Central to this understanding is the view that this is what Parliament intended, as supported by a view of the mischief of the Act and by several ministerial statements. However, careful attention to the extra-legislative record as well as to the rules on statutory interpretation render this view of the mischief of the Act inaccurate and these statements of ministerial intent inadmissible. Detaching our interpretation of the Act from reliance upon this record opens up unexpected possibilities when combined with observations from recent authority which suggest that the Act's reforms were not intended to abolish the proper plaintiff principle. A compelling case can be made that wrongdoer control remains as a threshold condition to derivative litigation.
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ABSTRACT:
Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterized by an extremely broad approach to the scope of rights (sometimes referred to as 'rights inflation'), the acceptance of horizontal effect of rights, positive obligations, and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the UK, the European Court of Human Rights, Germany, Canada, the US, and South Africa, the book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers.
The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy: a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book proposes a theory of the structure of this justification which offers original and useful accounts of the important doctrines of balancing and proportionality.
The introductory chapter gives an overview of the project of the book and identifies the existence of the global model of constitutional rights. It then explains the terminology – in particular the use of the terms 'constitutional' and 'global' –, the reconstructive methodology, and addresses the question of whether the US tradition of constitutional rights law forms part of the global model. It concludes by providing a summary of the book's main claims.
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ABSTRACT:
If there was one area in which the two coalition parties needed to produce a workable agreement as a matter of priority after the May 2010 election, it was the European Union. The European Union Act (EUA) 2011 builds on a political guarantee in the coalition agreement that there will be no transfers of sovereign powers until the next election (in 2015). That undertaking was intended to pacify the Europhobic wing of the Conservative party that had demanded but failed to get a national referendum on the hated Lisbon Treaty. As a result, the EUA contains all sorts of compromises: it delivers a referendum requirement, but not on the Lisbon Treaty; it affirms that the source of the validity of EU law is a domestic statute, but without mentioning the sovereignty of Parliament; it introduces constitutional safeguards, but without entrenching them against repeal by a future Parliament. Unfortunately, the EUA does not reflect the politics of compromise in a consensus democracy: it reflects dissent between the governing parties and within the Conservative party and, in most respects, is a compromised and failed statute.
[LSE COPY]
ABSTRACT:
In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, the recent judgment of the Czech Constitutional Court, which declared the decision of the Court of Justice in the Landtová case ultra vires, would seem to deal a terrible blow to the authority of European Union law. As doomsayers will be quick to point out, the Czech decision could set a dangerous precedent that may well one day bring down the entire edifice of EU law. However, borrowing insights from game theory and international relations, the present article argues that this judgment is more likely to remain an isolated episode than to be remembered as the tipping point when tensions between the CJEU and domestic courts escalated into the judicial equivalent of nuclear Armageddon. The author shows that many aspects of the jurisprudence of constitutional conflict can be represented as a simple Hawk-Dove game. A modified, slightly more sophisticated model then helps cast a wider light on the use of non-compliance threats by domestic high courts, notably the German Federal Constitutional Court.
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ABSTRACT:
Since we tend to think of the state as a construct of law, how is it possible for a category of state action to exist somehow outside or beyond the law? Using the term 'reason of state' to specify this special category, the paper asks two more specific questions. When someone talks about reason of state, whose reason and which reason do they mean? Two attempts are made to answer the first question. One attempt seeks inspiration from early-modern state theory. The second looks to 18th century 'jealousy of trade' politics, particularly the sovereign claims of the East India Company. The second question is addressed tentatively, the paper suggesting (i) that reason of state may be seen as the mirror-image of Coke's defence of the common law as artificial reason and (ii) that the basic structure of reason of state may be identified as semi-secret, based in reason allied to experience, offering guiding intelligence, and sovereign in a 'soft' sense.
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ABSTRACT:
Since their inception, public lawyers and political scientists have fulminated at the lack of accountability of regulatory agencies. But, though it may surprise their critics, regulatory agencies do not go out of their way to be unaccountable. The difficulties of accountability, this article argues, lie in large part elsewhere: with the institutional position and accountability capacity of the accountors, and with the particular nature of the challenges that face them. The article focuses on developments in the roles of the four main accountors in the political domain in turn: the core executive, Parliament, the National Audit Office and consumer bodies, exploring their relationships both with the accountees (the regulators) and with other bodies which are calling those regulators to account. It examines their capacity to call regulators to account, and to meet the five core accountability challenges that face them: viz the scale and scope of the regulatory landscape; the number of organisations involved in any one regulatory domain, the complexity of their relationships and their propensity to blame-shift; the technical complexity and contestability of the regulatory task; the opacity of regulatory processes; and the willingness of the accountee to be called to account. These challenges produce deep-rooted tensions which are not easy to resolve, and create opportunities for blame-shifting which both accountors and accountees can, and do, seek to exploit. Moreover, the roles of accountors themselves are fluid, moving from accountor to participant to controller, bringing further complexity to the accountability relationship. However, it is the nature both of the relationship and the task of accountability that these tensions will exist, and it is right that they do, at least up to a point. For without those tensions both regulators and their accountors will become complacent, which will be to their detriment, as well as ours.
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ABSTRACT:
The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings. To many, this analysis may portend the end of the story. From our perspective, however, it represents a useful point of departure. While neither law nor markets may be particularly well suited to serving as “the conscience of the Square Mile”, it may nevertheless be possible to harness the power of these institutions to carve out a space within which culture and ethics – or, combining the two, a more ethical culture – can play a meaningful role in constraining socially undesirable behavior within the financial services industry. The objective of this article is to explore some of the ways which, in our view, this might be achieved. This exploration takes place across two dimensions. In the first dimension, we hold constant the core internal governance arrangements – corporate objectives, directors' duties, board composition, committee structures and remuneration policies – within financial institutions. We then examine how the law and markets might be leveraged to engender a more ethical culture in two important areas: bilateral counterparty arrangements and socially excessive risk-taking. More specifically, we examine how 'process-oriented' regulation – backed by a credible threat of both public enforcement and reputational sanctions – might be employed with a view to reframing personal ethical choices and fostering a more ethical organizational culture within financial services firms. Intuitively, we would expect the success of this strategy to be a function of the incentives generated by existing internal governance arrangements. Lamentably, however, many of these arrangements give primacy to the financial interests of shareholders and managers over those of other stakeholders including, perhaps most importantly, society. In the second dimension, therefore, we examine how we might cultivate a more ethical culture through reforms of the core governance arrangements of financial institutions.
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13-2012
Trolls at the High Court? by
Christian Helmers and Luke McDonagh. WPS 13-2012
October 2012
[Subject: COMMERCIAL & COMPETITION LAW; INTELLECTUAL PROPERTY LAW]
ABSTRACT:
This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as 'patent trolls', within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare – they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court.
[paper under revision]
12-2012
Patent Litigation in the UK by
Christian Helmers and Luke McDonagh. WPS 12-2012
October 2012
[Subject: COMMERCIAL & COMPETITION LAW; INTELLECTUAL PROPERTY LAW]
ABSTRACT:
We construct a dataset that contains the complete set of patent cases filed at the courts in England and Wales during the period 2000-2008. The data cover all types of patent-related cases brought before the Patents County Court, the Patents Court at the High Court, the Court of Appeal, as well as the House of Lords/Supreme Court. We combine the detailed information on court cases with information on the patents in dispute as well as firm-level data for the litigating parties. We employ the dataset to analyse characteristics of the (a) court cases, (b) litigating parties, as well as (c) the contested patents. We also provide detailed discussion of the cases that were heard by the House of Lords/Supreme Court as well as of the costs involved in patent litigation before the courts in England and Wales.
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ABSTRACT:
Modern patterns for holding investment securities face three basic legal challenges: first, negotiability and the possibility of good faith acquisition must be ensured as they are the basis of today's anonymous trading and settlement of securities. In the past, securities have been incorporated in paper certificates to achieve this result, allowing for the application of principles of property law to what in substance is a set of mutual rights and obligations. Second, account holders need to be protected against intermediary risk. Traditionally, concepts like safekeeping or trust were applied to achieve this result. Since there is a need to adjust to modern, basically electronic holding of securities, these concepts are now stretched to a considerable extent. Third, 40% of holdings entail cross-jurisdictional questions. Therefore, the issues of both negotiability/good faith acquisition and protection against intermediary risk need to be addressed from an international perspective. Modern conflict-of-laws concepts, in particular PRIMA, lead to the application of different laws to the 'same' securities, with potentially differing legal analyses in respect of these securities. The EU legislator was so far unable to address these problems. The Geneva Securities Convention and the Hague Securities Convention provide for answers but face criticism and are not yet implemented.
[LSE COPY]
10-2012
Four Human Rights Myths by
Susan Marks. WPS 10-2012
October 2012
[Subject: HUMAN RIGHTs; LEGAL & SOCIAL THEORY]
ABSTRACT:
This paper examines work by three scholars who have recently subjected the intellectual framework of human rights to critical scrutiny. For one, the central problem is that the universality of human rights is too readily presumed. For another, it is that the relative novelty of human rights is not properly appreciated. For yet another, it is that human rights are treated as somehow beyond politics, as opposed to being a politics in themselves. What are we to make of these claims? Where do they lead us in policy terms? How does each stand with respect to the core practical objective of putting abuses of human rights to an end?
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ABSTRACT:
While religious pluralism, liberty and equality are now general cultural and legal expectations in the UK, the history of interplay between religious identities is one of intellectually - and sometimes physically - violent discord. Today, religious frictions persist as an inevitable facet of a plural society. Both low-level antipathies and serious religious disputes are driven by such factors as long-standing and incipient factionalism within religious groupings, more or less aggressive secularist critique, and resentment among some faiths of the proselytising zeal of others. From time to time, the law of libel is invoked to resolve disputes engendered by religious difference, notwithstanding that it is inherently difficult for any purportedly neutral, secular law properly to adjudicate between competing conceptions of the righteous and the good. This paper proceeds in four parts. First, we outline the basic features of English libel law to underpin the subsequent discussion. Secondly, we suggest a typology of criticism of religious faiths and their adherents, and indicate how each type of allegation would be countenanced by the law. Thirdly, we criticise the approach adopted by the English courts to one type of allegation: those that involve specific allegations of fact but which rest on questions of religious doctrine. We find that by abjuring any role on grounds of non-justiciability and deference to religious modes of dispute resolution, the courts may systematise the disadvantage of already marginalised groups. Finally, we suggest a conceptually and jurisprudentially preferable manner for the resolution of such cases that would properly ensure the neutrality of libel law as between disparate views on questions of religious faith.
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ABSTRACT:
'[A] relative absence of skills in case analysis' is said to be 'the Achilles heel of civil-law methods'. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. These techniques can appear different from the common law 'case law method', but are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists lies in the dominance of the common law paradigm of precedent and the accompanying 'case law method'. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond precedent to a wider notion, which would embrace practices and theories existing in legal systems outside the Common law tradition. This article presents the concept of 'reasoning with previous decisions' as such an alternative and develops its basic models.
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ABSTRACT:
In this survey and critical analysis of European debates and judicial practices regarding the application of fundamental or constitutional rights to private law disputes involving contracts, proprietary rights, and other private interests, it is argued that the discomfort of some private lawyers with the spectre of the (direct or indirect) horizontal effect of fundamental rights, though differing in its emphasis between jurisdictions, can be explained in part by reference to novel theories of the place of fundamental rights in the legal order and in part by exaggerated concerns for the integrity of private law. Nevertheless, the insertion of fundamental rights into private law engenders problems of transplantation and translation, especially with respect to the derogability of rights. In the context of private law, fundamental rights take on new meanings and must be balanced against each other by a double test of proportionality. This transformation in the interpretation and the legal operation of rights is explained by a shift in the moral foundation of fundamental rights as they should be understood in relations between individuals from negative liberty to positive freedom (or autonomy).
[LSE COPY]
ABSTRACT:
Democracy, for John Dewey, is emphatically not just a form of government; it is an ethical way of life. And yet, historically, it is in a state of fragility, due to the ascendancy of classical liberalism with its ideological individualism and market holism, and practical inability to meet the social needs of the day. Exposing the politics of individualistic liberalism, Dewey suggests replacing its social forms with those of the scientific community of enquiry and in particular its ethos of experimentation and openness. Dewey thus separates the pathologies of modernity (the social forms associated with individualism and liberal capitalism) from its qualities (the scientific progress achieved through intelligent interaction and mutual learning), by recommending in the public sphere the same innovation responsible for such huge technological advances. But in doing so, Dewey, and, less excusably, his contemporary admirers, neglect the politics of democratic experimentalism - failing to explain its manner of concrete resistance (or, in hindsight, its capitulation) to the pathologies of liberal capitalism, and to consider, in a more general sense, the phenomena of political power and political action – which, it is suggested here, undermines the contemporary revival of Deweyan pragmatism as a public philosophy committed to democracy as an ethical way of life.
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ABSTRACT: The New Scholarship has emerged as an influential style of scholarly writing. Its proponents rely, in the main, on three devices to add impact to their messages. These are self-reference, authority, and celebration. Self-references link discussions to the lives of the involved authors, authority lends force to contentions by emphasising the status of the writer, and celebration enhances the relevant message by emphasising the excitement involved in producing an important publication. The New Scholars may be seen by some as prone to excessive discursiveness and self-promotion, but the upside of the style is that it can reveal useful information about an author, and it contextualises the arguments being presented. What is clear is that the New Scholars enjoy considerable market success, political influence, and, increasingly, recognition in the academic world.
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ABSTRACT: Universities are facing increasing pressure to be relevant for students entering the job market. Many see the idea of a liberal arts education as doomed to disappear. Yet law faculties are under increasing pressure to become less professional and to broaden their curriculum with interdisciplinary courses in the liberal arts. Might it be that the study of law will reclaim the central role that it played in the University a millennium ago?
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ABSTRACT: Globalisation is a phenomenon that is said to have radically changed the international economy. It is said to have radically limited the power of national governments, particular in the field of taxation, in a world of highly mobile capital and flexible transnational corporations. To explore the extent of the effects of globalisation on taxation, this article discusses some ideas about how we should look at international tax policy in the face of the realities of globalisation, particularly in a world that includes developing countries, by considering the differences between different discourses on taxation, such as the economic, the legal, and the policy discourses. The policy discourse can offer new perspectives on the old question of the choice between source and residence taxation, makes it possible to understand them in terms of tax fairness criteria, and gives rise to a new criterion: the participation principle. Not only does the participation principle provide interesting approaches to some cases of concern to developing countries that have traditionally been viewed as source taxes, but the rise of digital goods do not simply shift the location of taxed activities. They can also offer creative opportunities for the developing world.
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ABSTRACT: Written in the light of the Law Commission's Consultation Paper on Unfitness to Plead, this paper examines some of the core competencies that should underpin a test of unfitness to plead. It comprises three broad sections: (i) an examination of the current problems with unfitness and the foundational principles for a revised test, (ii) a description of the prevailing test of unfitness and of those that might be used to reformulate it, and (iii) an examination of the core competencies that would be required in an accused person to facilitate proper engagement with a criminal trial. An Appendix details some of the working criteria which emerged during the formulation of the psychiatric test currently under development by the Nuffield Foundation-funded research team.
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ABSTRACT: The article traces the 25-year history of PACE from its origins in the Report of the Philips Royal Commission on Criminal Procedure, through its Parliamentary stages and the two major governmental Reviews of PACE in 2002 and 2007, and considers whether the Act provides the balance envisaged by the Philips Commission.
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ABSTRACT: This paper provides a comprehensive analysis of the legal regime governing counterclaims in investor-State disputes. It challenges the frequent presumption that the right to assert counterclaims is hindered by the fact that investment treaties impose no obligations on foreign investors and only protect their rights. The paper demonstrates that the right to assert counterclaims is a procedural right, and subject matter jurisdiction over counterclaims depends on whether the investor has breached obligations found in applicable law. The paper shows that foreign investors' substantive obligations can be found in sources of international law other than investment treaties. The paper also highlights the difficulties of asserting counterclaims in non-commercial areas such as human rights and environmental protection. Finally, it also shows that tribunals may pierce the corporate veil of foreign investors in the context of counterclaims.
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ABSTRACT: The interaction of investment treaty law with European law is a growing concern not only for policy makers but also for investors and arbitral tribunals, especially in the energy sector. This paper sketches the existing and potential legal problems between the regimes with the aim of drawing conclusions on the impact of those tensions on the future of the Energy Charter Treaty (ECT). In a first part, the paper discusses the problem of the compatibility of investment treaty law with European law in general that may require European member states to renegotiate their existing agreements. A second part is dedicated to the more controversial issues of the continuing applicability of intra-EU investment treaties, discussing their farreaching overlap with the protection afforded by European law and the resulting complications. Most of the previously discussed problems also arise under the Energy Charter Treaty, in addition to the specific complications that are analysed in a third part. The paper also outlines the consequences of the entry into force of the Lisbon Treaty and finishes with a summary and outlook of the general importance of these European developments for the future of the Energy Charter Treaty.
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06-2011
The Path of Fiduciary Law by David Kershaw. WPS 06-2011
August 2011
[Subjects: CORPORATE, INSOLVENCY AND FINANCIAL LAW; COMPARATIVE LAW]
ABSTRACT: Contemporary accounts of corporate legal evolution view lawmakers as highly responsive to the economic interests of both pressure groups and markets. Through this lens law is understood to be the product of pressures exerted by managers, investors, institutional shareholders and the Federal Government, and the incentives of state lawmakers to accommodate the interests of these pressure groups. This lens dominates our current understanding of corporate legal evolution in the United States and is becoming highly influential in comparative accounts of corporate legal variation. This article sounds a note of objection. The article argues that the disciplinary pendulum has swung too far toward external accounts of legal evolution and too far away from internal accounts of legal change which view the path of law, at least in part, as the product of the internally generated constraints of the legal system – the relative autonomy of the law. To make this argument, the article considers the internal constraint of the conception of the corporation in 19th century US and UK corporate law and the evolution of self-dealing law in these two jurisdictions. It shows how two jurisdictions that started from the same legal proposition about self-dealing diverged rapidly as a result of the interaction of this proposition with profoundly different conceptions of the corporation. Contrary to the dominant account of the evolution of self-dealing law in the United States, the contemporary self-dealing rule is not the legally unexplained product of external market pressures but the logical and consistent product of the path of fiduciary law trodden through the corporate conception. The article shows that for contemporary corporate law a significant dose of inevitability was administered at the inception of general incorporation.
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ABSTRACT: What are the juridical implications of Hannah Arendt's conception of freedom as political
rather than personal, based on action in the circumstances of plurality rather than an absence of interference in the context of isolated contemplation? This is not a question of mere philosophical speculation. According to Arendt, the experience of modern revolution, beginning in America and France at the end of the 18th century, marks the appearance of freedom as a worldly, political phenomenon with the potential to change our understanding of the constitutional foundations of authority. And yet this potential is betrayed due to the inability of our juridical imagination to escape two conceptual dead-ends: the image of law as command and the model of constitutionalism as a process of fabrication, both of which, in different ways, suppress our sense of political freedom by expressing constitutional foundations in terms of sovereign 'absolutes'. In so doing the modern juridical imagination neglects the significance of two older conceptions of law, the Greek nomos and the Roman lex, neither of which depend upon such absolutist foundations. The Roman lex might suggest a way out of this conceptual impasse, by conceiving law as relational, dynamic, and intertwined with the political at its root, but in a manner captured by the metaphor of constitutionalism as 'political grammar' or 'syntax'.
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ABSTRACT: What does it mean for a supreme court to 'make law?' When is it possible to say that its decisions are 'precedents?' To what extent should a supreme court's pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice's case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for an account of the Court's lawmaking and precedent. The conclusion indicates directions of possible further research relevant for all courts examined.
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ABSTRACT: Whether the European Union's Takeover Directive should have adopted a mandatory neutrality rule has been the subject of much debate. As the European Commission commences its review of the Directive this debate is being reignited. A view is crystallising that the success and failure of the Directive can, in large part, be measured by the number of Member States that have opted-in, or out of the neutrality principle, or have opted-in subject to the reciprocity option. The contestability of European corporations is viewed through this lens as a function of the extent to which EU Member States have adopted an unqualified neutrality rule. This article takes issue with this viewpoint. It argues that the pre-Directive debate and the post-Directive assessment have failed to consider the core lesson of takeover defences in the United States, namely that the construction of defences and their potency are a function of basic corporate law rules. If corporate law rules do not enable the construction of takeover defences, or undermine the extent to which they can be potently deployed, then the adoption or rejection of the neutrality principle in Member States is of trivial significance. This article explores the triviality hypothesis in three central EU jurisdictions: the United Kingdom, Germany, and Italy. It concludes that, although there is variable scope to construct and deploy takeover defences in these jurisdictions, the triviality thesis is well founded.
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ABSTRACT: In the wake of the financial crisis considerable momentum has built-up behind
proposals to extend central counterparty (CCP) clearing in the over-the-counter derivatives
markets. However, the implementation of new rules is proving complex. This paper argues
that one cause of this complexity is that the public sector is seeking to incorporate into
legislation (and require the wider use of) a privately owned and operated risk management
mechanism. As a matter of law, the paper argues that CCP clearing can be understood as a
market-generated 'legal device'; in other words, one designed to support the markets by means
of the interaction of various private law techniques. Following this analysis through, the paper
highlights the benefits and drawbacks which derive from the legal techniques underlying CCP
clearing (standardisation of contracts, asset-backing, netting, and so on) and argues that these
qualities are inherent to the device. It concludes that the inherent capacity of CCP clearing
gives rise to a qualitatively different set of challenges for policymakers than those arising from
technical implementation, and it explains that both types of problem need to be addressed if
the CCP prescription is to be effective.
CLICK HERE TO DOWNLOAD FULL TEXT [SSRN] triviality thesis is well founded.
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ABSTRACT: In the wake of the financial crisis considerable momentum has built-up behind
proposals to extend central counterparty (CCP) clearing in the over-the-counter derivatives
markets. However, the implementation of new rules is proving complex. This paper argues
that one cause of this complexity is that the public sector is seeking to incorporate into
legislation (and require the wider use of) a privately owned and operated risk management
mechanism. As a matter of law, the paper argues that CCP clearing can be understood as a
market-generated 'legal device'; in other words, one designed to support the markets by means
of the interaction of various private law techniques. Following this analysis through, the paper
highlights the benefits and drawbacks which derive from the legal techniques underlying CCP
clearing (standardisation of contracts, asset-backing, netting, and so on) and argues that these
qualities are inherent to the device. It concludes that the inherent capacity of CCP clearing
gives rise to a qualitatively different set of challenges for policymakers than those arising from
technical implementation, and it explains that both types of problem need to be addressed if
the CCP prescription is to be effective.
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ABSTRACT: The ideal of the rule of law speaks differently to law-makers and law-appliers. The
judge, being the legal official tasked with the application of law by the court, is not in the lawmaker's
position of choosing what, legally, ought to obtain, but rather is tasked with furthering,
by administering, what, legally, already obtains. This demarcation of responsibilities rests on
the ability of the law-maker to settle authoritatively moral-political questions in such a way as
to render possible the artificial techne of legal reasoning. Bills of rights are unusual law-making
acts insofar as they deliberately fail to settle moral-political questions under law by declining to
specify the general right 'P has the right to x'. How, then, have judges sought to satisfy their
law-applying role in relation to disputed claims of rights? The approach shared by judges in
Europe and much of the Commonwealth is to interpret the open-ended rights of bills of rights
to include nearly all possible instances of conduct that could be related to the right, with the
consequence that nearly all legislation, including legislative specifications of open-ended rights,
could be held to infringe the bill of rights. In turn, the legality of legislation turns on judiciallycreated
standards of proportionality and balancing, which lack the discipline afforded by
technical legal reasoning. As a consequence, judges have assumed the function of law-makers,
with all of the associated challenges to the rule of law when law-applying institutions make law
in the very moment the legal subject is before them.
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ABSTRACT: The present article examines the implications of Ofcom's pay-TV consultation for the future of communications regulation. It is submitted, first, that the authority's approach departs from what appeared to be well-established principles in the relevant sector-specific instruments. While ex ante intervention only seemed justified in presence of structural obstacles to effective competition, the logic underpinning the pay-TV consultation suggests that intervention may be justified whenever the regulator expects it to benefit consumers and competition. Similarly, Ofcom does not feel bound by the limits that would derive from competition law. More generally, the article examines the extent to which the broader technological and regulatory context surrounding the pay-TV consultation is relevant to explain the position taken by the authority.
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ABSTRACT: The attempt to develop international cap and trade markets for anthropogenic greenhouse gas emissions, ultimately aiming to determine a global price for carbon, is the most extensive attempt ever made to use market-mimicking mechanisms to deal with an environmental externality. Addressed to the problem of climate change, it is an exercise in the adjustment of the social welfare function on a global scale, and it envisages expenditures which will run into trillions of dollars. Focusing on the operation of the Clean Development Mechanism, the most important of the three flexible mechanisms for carbon trade established under the Kyoto Protocol, it will be argued that carbon trading which will reduce emissions in line with any of the targets set for avoiding dangerous anthropological interference is impossible. Climate change negotiations have completely failed to place a cap on global emissions; indeed, they have given a legal permission to increase them. Reflecting the fatal shortcomings of the Kyoto Protocol, the operation of the CDM so far has not merely failed to secure reductions, but in all likelihood has actually increased the absolute level of emissions.
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ABSTRACT: Part of the difficulty in public sector labour relations is the apparently inevitable confrontation between government and civil service unions. This idea is sketched out here with particular attention to the inherently political nature of public sector education in England and Canada. Of the many characteristics of public sector labour relations, governments' dual role as employer and legislator remains the most distinctive. It provides an advantage which governing parties in both jurisdictions have used to their singular benefit. This power is also the source of limitations within the public sector labour relations framework. With little recourse via the law (grievances, legislation), teachers' unions have taken their message to the public in an attempt to improve their leverage in negotiations with government. Developing in the late 20th century, public campaigns have been a favoured means for highlighting issues which fit under the broad catchphrase of protecting quality in public education. Conversely, government may also implement its own rebuttal campaign based on the need for financial restraint. As part of this contest, both sides invoke the threat of public outcry as a force which each claims it may muster, for the purpose of maximising its bargaining position. This is the framework of contemporary public sector education collective negotiations. In effect, modern day public sector education bargaining has become the means of retrenchment: government, in a centralised funding arrangement such as that in England and Ontario, allocates money and dictates the terms of employment.
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ABSTRACT: In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. By doing this, we are able to ground some of the proposals for reform made previously by Index on Censorship, English PEN, Lord Lester, and others. We do so, however, not through the prism of an over-weaned emphasis on freedom of expression, but rather by triangulating the rights and interests of claimants, defendants, and the wider public. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice and reduce costs for all but the most serious and/or most damaging libels. This involves the recommendation of the introduction of a two-track libel regime.
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ABSTRACT: In the context of rule-making by transnational bodies, this paper explores the concept of legitimacy in the literature of law and political science. The European Union, the most institutionally developed form of transnational governance, with lawmaking structures in place that can be characterised as 'legislative', is throughout taken as paradigm. Section 2 discusses the view that legitimacy is largely a 'new' concept in public law and that lawyers tend to bypass questions of legitimacy with resort to better-known doctrines of sovereignty, primacy, human rights and the rule of law. Section 3 deals with consent, delegation and the 'output legitimacy' of efficiency and expertise, as the basis for legitimating the activities of transnational institutions. Section 4 turns to democracy, representative and popular, arguably the most potent legitimating device in modern times. Section 5 treats the case of the judiciary, responsible for formulating general principle and human rights standards but increasingly facing a multiplicity of national and transnational with complex and overlapping jurisdictions. The paper concludes that the many challenges for legal theorists and practitioners stemming from the rapid growth of norm-producing international bodies are more likely to be resolved by the application of ideas of legal pluralism than through the concept of legitimacy, central to political science but likely to remain peripheral to law.
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ABSTRACT: It is said that 'generals fight the last war'. Regulators can do the same. The question is whether in the plethora of reforms that are being developed, the financial regulators are building the regulatory equivalent of the Maginot Line or whether they are devising strategies that will enable them to counter, or at the very least anticipate, the next crisis. The paper focuses on regulators' capacities for anticipation rather than resilience per se. It argues that for these capacities to be developed, the current mechanisms by which the financial regulators learn of their own and each others' performance need to be quite fundamentally reoriented and regulators need to build in stronger mechanisms for cognitive challenge. The paper analyses the cognitive shifts prompted by the crisis, and associated policy developments. It then considers the changes in organisational structures of financial regulation at the global and EU levels, linking those to the cognitive shifts identified, and focusing on current mechanisms of observation, communication, enforcement and coordination. In particular it examines how key actors are positioning themselves within the regulatory system as a whole and the modes of coordination they are developing. It then considers how the system's existing and potential capacities for reflexive learning and dynamic responsiveness can be strengthened. It focuses on two elements of that challenge: building capacity through enhancing information and knowledge, both about what is happening outside the system in the markets and the performance of the regulatory system itself, and developing mechanisms of challenge.
This article is now published in: Rethinking Financial Regulation and Supervision in Times of Crisis G.Ferrarini, K.J.Hopt and E.Wymeersch (eds) (OUP 2012)
ABSTRACT: The financial crisis has prompted a number of fundamental questions, not least of which is the relationship between financial institutions and regulators. In particular, the reputation of principles based regulation (PBR), lauded as a key example of 'new governance' techniques of regulation prior to the crisis, has taken a severe battering. Detailed rules did not fare much better, but advocates of 'new governance' techniques would not have expected them to: their failure was to be expected. It is the fate of PBR that should therefore cause us to look long and hard at what has become increasingly accepted wisdom amongst regulatory scholars and 'better regulation' practitioners over the last decade or so. This paper asks what lessons can be learned from the crisis as to the effectiveness and appropriate role of principles based regulation, and what future it may have. It sets out four 'ideal types' of PBR in the Weberian sense: analytical constructs that are rationalised abstractions of particular practices: formal, substantive, dyadic and polycentric PBR. It then charts the rise and fall of PBR in financial regulation over the last few years and offers some tentative predictions for its future.
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ABSTRACT: This paper questions the received genealogy of proportionality, which traces its origins to continental European sources, especially German administrative law. The paper goes back to Plato and Cicero, two defining writers on law and politics in the classical world. Analysis of their work reveals a richer role for proportionality in visions of public law, and how deeply that idea is embedded in classical conceptions of justice. We see in Plato and Cicero two dimensions particularly worth noting. Proportionality is 'rounded off' in relation to an overarching scale of values – it has a metaphysical or celestial quality. Proportionality also 'reaches out' to identify the relevant political community to which proportionate justice is to apply – which, in Cicero, has a universal or universalising tendency. Returning to the present, the paper argues that the proportionality principle, while certainly attenuated when set against its classical forebears, shares some of the same features. In particular, modern conceptions of proportionality involve, whether explicitly or not, the phenomena of 'rounding off' and 'reaching out', a point that is illustrated by referring to two different attempts to make sense of proportionality in common law judging. One, like Plato, turns inward to the (perceived) structure and values of the state. The other, following Cicero, turns outward in a search for more global standards of justice.
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ABSTRACT: A concern with ensuring minimum standards of dignity for all and a doctrine based on the need to secure for everyone basic levels of rights have traditionally shaped the way in which international human rights law addresses poverty. Whether this minimalist, non-relational approach befits international law objectives in the area of world poverty begs consideration. This paper offers three justifications as to why global material inequality – and not just poverty – should matter to international human rights law. The paper then situates requirements regarding the improvement of living conditions, a system of equitable distribution in the case of hunger, and in particular obligations of international cooperation within the post-1945 international effort at people-centred development. The contextual consideration of relevant tenets serves to demonstrate that positive international human rights law can be applied beyond efforts at poverty alleviation to accommodate a doctrine of fair global distribution.
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ABSTRACT: The work of French philosopher Alain Badiou has been described as the most powerful alternative yet conceived in France to the various forms of postmodernism that arose after the collapse of the Marxist project. Art interests Badiou in its own right but also as both that which, in the twentieth century, eclipsed philosophy and as that which today philosophy, increasingly de-sutured from art, must imitate in order to make clear that there are truths after all. Badiou conceives of law, on the other hand, as part and parcel of a specific political machine that must continuously perform certain problematic exclusions if it is to keep the fiction of parliamentary democracy together. So how is the relationship between art and law, between the poet and the city, in Badiou's oeuvre?
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ABSTRACT: One of the puzzles of human and constitutional rights law is whether there are any rights which are absolute. The question is important not only for practical purposes but also for the theory of human and constitutional rights: an absolute right presents a departure from what is now the 'default' in constitutional and human rights law around the world, namely the proportionality approach according to which an interference with a right is justified if it serves a legitimate goal and is proportionate to that goal. This paper tries to shed some light on the issue by focussing on the right to life. It proceeds by first presenting an account of the leading case in this area, namely the judgment of the German Federal Constitutional Court in the Aviation Security Act case, where the Court held that shooting down an airplane which was likely to be used as a terrorist weapon was a violation of the right to life in conjunction with the human dignity of the innocent passengers aboard. It then offers a few thoughts on the Court's reasoning, specifically with regard to what it has to say about the idea of absolute rights. Having concluded that the judgment offers little help in illuminating this problem, it presents some approaches to absolute rights from moral philosophy and applies them to human and constitutional rights law. The conclusion is that the right to life will under certain circumstances be absolute or near-absolute, but that these circumstances occur less frequently than is sometimes assumed.
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ABSTRACT: The financial crisis has required the state, not just in the UK, to intervene in the financial markets to an extent that is unprecedented. This paper focuses on the management of the crisis and its aftermath in the UK, focusing on the constitutional dimension. The financial crisis did not cause a constitutional crisis, but it did reveal the practical operation of the constitution at times of crisis, demonstrating that we do indeed have a 'flexible constitution'. In contrast to the US, where Congress was deeply involved in the terms of the bail-outs, in the UK executive decision-making most often took the form of 'decide now, act immediately, explain quickly, and validate later'. However the crisis demonstrated that legal constraints on government action can come from a number of unexpected sources. The EU rules on state aid gave the EU Commission a far greater role in determining how UK taxpayers' money was spent than the Westminster Parliament. The government is constrained in its ongoing management of its investments in the banks by corporate and financial regulation. The crisis has led to the creation of novel and challenging roles for the state, and the creation of a bespoke administrative apparatus to manage them. In many respects, formalisation, juridification, and greater transparency are replacing informality and opacity in some aspects of the management of financial stability and any future financial crisis. However the bodies managing the bail-out investments sit in an uneasy position in the structures of accountability and their experience to date demonstrates that trying to reconcile the pursuit of public interest objectives in the face of conflicting political and regulatory demands and within the twin confines of corporate law and constitutional structures is a difficult task. Finally, whatever the constitutional situation, the crisis has made it clear that the state ultimately underwrites the financial system. The markets may fear 'big government' but governments are now beginning to fear 'big markets'. For as the current turmoil in the sovereign debt markets illustrates, financial markets can pose a greater risk to the state and its taxpayers than the state can ever pose to the markets.
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ABSTRACT: The allocation rules for phase one EU ETS emissions permits demonstrates that energy generators were lobbying winners because they successfully blocked differential treatment from energy intensive industries, who cannot pass-on real or nominal costs of permits to consumers. The application of public choice theory predicted free allocations to industry, but failed to anticipate windfall profits for energy generators. In phase three, the reverse is true; energy intensive industries successfully established differential rules. These rules provide them with free allocations while most energy generators will be subject to 100 per cent auctioning. Public choice theory also failed to predict these changes. This paper presents the argument that a shift in Wilson's Typology from client to interest group politics explains this change in allocation rules. This dynamism in Wilson's Typology is demonstrated by comparing the positions of industry associations representing energy generators and energy intensive industries with the two directives before and after consultations, which facilitates the identification of lobbying winners and losers. The EU ETS case study is fertile ground for testing regulatory theories that explain shifts away from clientelist policies and towards more optimal policy equilibriums. This paper provides both a theoretical framework and empirical evidence for how emissions trading policy can be improved, despite rent-seeking, once it clears the legislative hurdle.
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10-2010
Confronting Confrontation by Mike Redmayne. WPS 10-2010 February 2010
[Subjects: ARBITRATION, CIVIL PROCEDURE & DISPUTE RESOLUTION; CRIME; EU LAW; HUMAN RIGHTS; PUBLIC LAW;]
ABSTRACT: The right to confront adverse witnesses has brought the English courts into conflict with the European Court of Human Rights. Drawing on confrontation doctrine in Europe and the United States, this paper argues that there is no convincing rationale for the sort of strong confrontation right found under the ECHR and the US constitution. A more pragmatic approach to confrontation, based on the best evidence principle, is advocated.
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ABSTRACT: In a recent edition of the Journal of Media Law, Professor Gavin Phillipson considered whether the United Kingdom must impose a prior notification obligation on the media in respect of stories that concern the private conduct of individuals. Such a notification requirement would allow time for the subjects of such stories to seek interim relief to prevent publication. Max Mosley has asked the European Court of Human Rights to oblige the UK to introduce such a rule. Professor Phillipson concluded that Mosley should win his case. This paper proceeds, first, by questioning the fundamental premise of the Phillipson / Mosley argument: that damages are inadequate to compensate harms done through publication of private information. Secondly, it considers the practical ramifications of the imposition of a prior notification requirement, both in terms of the 'workability' of a legal obligation and the impact it would have on media freedom. Thirdly, it airs the question of whether – in light of the margin of appreciation afforded to contracting states – it would be legitimate for the Strasbourg court to compel the introduction of a specific measure to assist the protection of privacy. The paper concludes that the European Court should not find the United Kingdom in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other means to encourage the practice.
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ABSTRACT: The EU Temporary and Agency Work Directive created a right of equal treatment on working time and pay for agency workers compared to direct workers. This article asks, what justifications are there for any different treatment? Using job security rights as an example, this article explores the framework for regulation of employment agencies and the common law position of agency workers. It highlights, first, that profit-making agencies were frowned on historically by international law, and that principled regulation is required to prevent abuse. It shows, secondly, that the common law test of 'mutuality of obligation', that removes employment rights for agency workers, is legally and logically unsound. It then illustrates, third, that a recently developed test for implied contracts, which leads agency workers to have no employer at all, pays incomplete regard to the full authority on contractual and statutory construction. These loopholes are unfair and inefficient and amount to an unjustified subsidy for agency work. Simple recognition is needed that agency workers should not be treated differently, because work through an agency is work like any other.
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ABSTRACT: This paper explores the suitability of risk regulation, and particularly the EU approach to risk regulation, as a conceptual and organisational framework for the EU's battle against climate change. It argues that such exploration, in the first place, requires a thorough understanding of the discourses, agenda, and strategies that constitute, respectively, the risk regulation paradigm, the EU risk regulation paradigm, and the climate risk paradigm. The analysis of the three paradigms reveals not only points of overlap, but also substantial divergences between the three paradigms, with the most pronounced tensions occurring between the EU risk regulation and climate risk paradigms. The paper therefore reinforces concerns over a possible colonisation of climate change policy by EU risk regulation and argues that climate change regulation has a better chance of effectiveness if it develops alongside but separately from EU risk regulation ('co-existence'). The latter scenario also offers prospects for comparison and exchange between regulatory regimes ('cross-regime learning'), which could help both regimes to face, and possibly overcome, their specific weaknesses.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
now available in Criminal Law and Philosophy 2010 4 (2) pp.109-133
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
A significantly revised and expanded version of this paper has been published in P. Kane (ed),The Hart-Fuller Debate in the Twenty-First Century (Oxford: Hart Publishing, 2010), ch 1.
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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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