Showing papers in "Cambridge Law Journal in 2011"

Autonomy, liberty, and medical decision-making

Abstract: A central tenet to much ethical argument within medical law is patient autonomy. Although we have seen a welcome move away from a system governed by largely unchecked paternalism, there is not universal agreement on the direction in which medical law should advance. Competing concerns for greater welfare and individual freedom, complicated by an overarching commitment to value-pluralism, make this a tricky area of policy-development. Furthermore, there are distinct understandings of, and justifications for, different conceptions of autonomy. In this paper, we argue that in response to these issues, there has been a failure by the courts properly to distinguish political concepts of liberty and moral concepts of autonomy.

What is it? whose it? re-positioning the fetus in the context of research?

Abstract: The Cambridge Law Journal / Volume 70 / Issue 01 / March 2011, pp 51 82 DOI: 10.1017/S0008197311000171, Published online: 15 March 2011 Link to this article: http://journals.cambridge.org/abstract_S0008197311000171 How to cite this article: Amel Alghrani and Margaret Brazier (2011). WHAT IS IT? WHOSE IT? REPOSITIONING THE FETUS IN THE CONTEXT OF RESEARCH?. The Cambridge Law Journal, 70, pp 51-82 doi:10.1017/S0008197311000171 Request Permissions : Click here

Four functions of mens rea

Abstract: Everyone agrees that mens rea is relevant to fault. The maxim actus non fit reus nisi mens sit rea has been around for centuries.1 According to foundational principles of the criminal law, it is normally not enough to support a conviction that D perpetrates the actus reus. Neither should it be. Causing harm to another person may be unfortunate, but the moral turpitude associated with a criminal conviction requires some element of fault. And to show that, we need mens rea.

The relationship between competition authorities and sector regulators

Abstract: With the advent of privatisation and major regulatory reforms introduced in the 1980s and 1990s in many countries around the world, the issue of sectoral regulation in its entirety has increased in significance. However, sectoral regulation has a particular resonance in respect of competition law and policy because the adoption of nongeneric competition regulatory instruments in some sectors has also become a common feature in many regulatory environments across the globe. The adoption of such measures – which, among other things, primarily necessitated the creation of special regulatory bodies and/or arming the relevant minister with sectoral regulatory powers – has been considered essential for the regulatory framework of these sectors for several reasons: their history of state control and planning; the existence of natural monopolies in these sectors; and the desire to move towards introducing and promoting competition. At the same time, this remarkable development has triggered some highly challenging questions, the most difficult of which perhaps concerns the relationship between competition authorities and sector regulators. This relationship has been the subject of controversy and heated debate in recent years; though this debate has not been settled and it does not look likely that it will in the foreseeable future: if anything, the debate seems only likely to intensify. The relationship carries fundamental

Why do dutch and uk judges cite foreign law

Abstract: In England and in the Netherlands, the national highest courts seem to be developing new practices under the effects of judicial globalisation or internationalisation. This is particularly apparent in the increased interaction of judges of the national highest courts with judges from other legal systems, an interaction which does not only concern the study of international and foreign legal materials, but also the exchange of legal ideas between judges in transnational networks. Judicial globalisation thus has induced the development of an outwardlooking approach of national courts which appeared to be in decline since the rise of the nation state. [...]

The investigation and prosecution of regulatory offences: Is there an economic case for integration?

Abstract: In relation to criminal justice, there is a long-standing assumption, based primarily on the separation of powers doctrine, that law-making, investigation and determination of liability should be undertaken by different institutions. The separation of investigation and prosecution is a more recent phenomenon, although apparently inspired by similar ideas. The approach to institutional design in regulatory law has been significantly different, since in general regulatory agencies exercise not only investigatory and prosecuting powers, but they are also involved, to some extent, in rule-making and adjudication. Indeed, current legislative developments in the UK are taking the process of integration even further, enabling regulatory agencies themselves in many sectors to impose financial sanctions for certain types of contravention (as in the Regulatory Enforcement and Sanctions Act 2008, discussed later). The reasons for different arrangements in the criminal justice and regulatory spheres are not obvious, given in particular that the criminal justice system plays an important part in regulatory enforcement.

Implied terms: the journey of the man on the clapham omnibus

Abstract: This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

The extent of fiduciary accounting and the importance of authorisation mechanisms

Abstract: This article is concerned with the extent of a fiduciary's obligation to account for profits that have been made in breach of fiduciary duty. In particular, it responds to suggestions made recently by some senior judges that the courts ought to have a wide-ranging discretion to alter the degree to which a fiduciary must account for profits. It is well-settled that a fiduciary must account for profits that have been generated from his fiduciary position or in circumstances involving a conflict between the fiduciary's duty and his interest. The fiduciary need not account if the profit or conflict was properly authorised, in which case there was no breach of fiduciary duty. But in the absence of such authorisation, the fiduciary must account for all of the profit that has been made in breach of fiduciary duty, other than insofar as the court grants an equitable allowance to the fiduciary for work done in generating that profit. The question addressed here is whether the court ought to have a wider discretion to award an account of only part of the profits that a fiduciary has made in breach of fiduciary duty, leaving the remainder of the profits in the fiduciary's hands?

Defining the competition torts as intentional wrongs

Abstract: Breaches of EC and UK competition laws (mainly anticompetitive agreements or concerted practices and the abuse of market power) are punishable by the competition authorities. Individuals, who have suffered loss, particularly trade rivals, can claim damages flowing from antitrust practices, inter alia, through the “statutory competition torts”. These torts do not seem to require the claimant to prove that the defendant intended to harm her whereas another potential route for claimants, the common-law economic torts, do. This fact may partly explain why commentators have paid little attention to the mental element in antitrust tort liability. This article argues that the competition torts trigger strict liability for the harm caused to victims but, like the economic torts, presuppose intentional conduct. Competition statutes can only be breached through deliberate acts which, although aimed at indeterminate consumers, often involve the agent’s intention to injure identifiable adversaries. Thus, the competition torts neither entail absolute strict liability (i.e., for merely causing damage) nor are based on negligently occasioned harm. The problem can be stated simply. Business competitors owe no duty not to injure each other negligently or intentionally, but they are at liberty to defeat one another as a foreseeable and inexorable side-effect of legitimate commercial battle. However, trade opponents are constrained by the economic or competition torts. These will ordinarily prohibit wrongful means on the one hand and, on the other, acts accompanied by specific forms of intention, e.g., to cause the breach of the claimant’s contract in inducing breach of contract, or to harm the claimant in her trade interests, a requirement found in the

Trusts in the draft common frame of reference: the “best solution” for europe?

Abstract: In March 2009 two international research groups produced a draft of a Common Frame of Reference (DCFR) which included among others a book, Book X, on trusts. Book X suggests a comprehensive set of model rules aimed at providing Europe with a uniform trust law. This article offers a critical evaluation of Book X of the DCFR in an attempt to ascertain not only whether it provides a desirable device, but also why there is a book on trust law at all, given that the whole purpose of the exercise was to present a draft for the establishment of common principles on contract law. In order to do so, the paper first analyses the provisions of Book X in comparison with English law, the Hague Trusts Convention and the Principles of European Trust Law, so as to establish the nature of the trust proposed. Second, it probes the internal coherence of Book X and its compatibility with existing conflict of law rules and national private laws, both as an optional instrument or a set of mandatory rules.

Austin's methodology? his bequest to jurisprudence

Abstract: This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.

The kosovo advisory opinion: if you don't have anything constructive to say …?

Abstract: ON 17 February 2008, the elected representatives of Kosovo declared it to be a sovereign State independent from Serbia, to mixed responses from the international community. On 8 October 2008, the General Assembly of the United Nations adopted resolution 63/3 (drafted and sponsored by Serbia), requesting an advisory opinion from the International Court of Justice on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”. After inviting and receiving submissions from States and from the authors of the declaration, on 22 July 2010 the Court issued an opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo. While academic response to the opinion has largely focused on its narrowness and lack of engagement with the issue of self-determination, it nevertheless contains a number of notable features. The contentious issues begin with the fact that an opinion was given at all. The ICJ has a well-recognised (although never exercised) discretion to refuse to give an advisory opinion, and Vice-President Tomka and Judges Keith, Bennouna, and Skotnikov argued that it should have done so on this occasion, particularly given the fact that the Security Council was seised of the matter. The Court concluded, however, that this did not preclude the General Assembly discussing or (subject to Article 12 of the UN Charter) making future recommendations on the matter, activities in which an advisory opinion might assist. Curiously, the judgment records that Judge Koroma voted against issuing an opinion, but his Dissenting Opinion actually states that he “voted in favour of the decision to accede to the request”. Cambridge Law Journal, 70(1), March 2011, pp. 1–39

The case of mixt monies: confirming nominalism in the common law of monetary obligations

Abstract: Brett v. Gilbert (1605), commonly known as the Case of Mixt Monies, confirms the principle of monetary nominalism in the common law of obligations. It is fundamental to the modern understanding of the legal nature of obligations to pay money and goes far to define a distinctive conception of what money means in the law. This paper considers the historical origins of the principle of nominalism in English law. The paper demonstrates the use made of civil law monetary theory from the medieval and early modern periods in the development of common law reasoning. It argues that English law applied a principle of monetary nominalism long before it was explicitly adopted in the Case of Mixt Monies. The coinage proclamations of the English sovereigns all assumed a legal theory of nominalism.

Software Patents, Separation of Powers, and Failed Syllogisms: A Cornucopia from the Enlarged Board of Appeal of the European Patent Office

Abstract: The decision of the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) in G_0003/08 regarding the patentability of computer programs under the European Patent Convention (EPC) is considered, and the grounds for the EBA’s rejection of the President’s referral on the computer programs exclusion of Article 52(2)(c) & (3) analysed. An argument is made that the basis for that rejection is an interpretation of the President’s power of referral under Article 112(1)(b) EPC that is inconsistent with Articles 31–33 of the Vienna Convention, and that offends the constitutional principles on which the EBA relied. The EBA’s support for the EPO’s narrow interpretation of Article 52(2)(c) & (3) is also criticized on doctrinal, theoretical, and other grounds.

Poverty: an essential element in charity after all?

Abstract: In 1951, an argument that schools should be charitable only if they offer free or reduced tuition was dismissed by the court as a “startling proposition”.1 Yet, in 2010, an independent school was assured of its charitable status only when it agreed to offer means-tested bursaries.2 So did the law change with the Charities Act 2006 (‘the Act’)?

Margin squeeze: from broken regulation to legal uncertainty

Abstract: lying on inconclusive dicta from another decision in which the subject lacked capacity (Local Authority X v. MM [2007] EWHC 2003, [2009] 1 F.L.R. 443). The situation of the Ls clearly demanded anxious attention from several agencies. But the strategy adopted here is not necessarily the right one. That the injunction issued against DL barred only unlawful behaviour – and so did not to that extent interfere unduly with his liberty (at [31]) – does not lessen the interference in the Ls’ family life inherent in the state bringing civil legal proceedings against the wishes of all the individuals concerned in relation to issues which, on the face of it, are matters for the family members to litigate themselves, or not, as they wish. If it is thought that local authorities and others should have power to intervene in these cases, which may or may not be appropriate, Parliament should reconsider the Family Law Act 1996, s. 60, and create a statutory framework within which the rights and interests of the relevant parties can be balanced. These complex cases raise questions of principle which should ideally be resolved after full consultation with key stakeholders, not by a court at the instance of one local authority in one difficult case. For the time being, we await the inter partes hearing in which these issues will be more fully ventilated than the ex parte proceedings could inevitably allow.

Applicability of the echr to british soldiers in iraq

Abstract: This very brief case note discusses the R. (Smith) v. Oxford Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2010] 3 WLR 223 case, in which the UK Supreme Court decided that the ECHR will apply extraterritorially only to UK soldiers who finds themselves on a UK base; if they died outside an area under the UK's effective control, there would be no requirement for an Article 2 ECHR-compliant investigation into their death. The note argues that the Court's holding in Smith logically flows from the House of Lords judgment in Al-Skeini, but accordingly also rests on the (probably unwarranted) assumption that Al-Skeini was correctly decided.