Showing papers in "Current Legal Problems in 2015"

More than Just a Different Face? Judicial Diversity and Decision-making

Abstract: This article addresses a key question in debates around judicial diversity: what evidence is there that a more diverse judiciary will make a difference to substantive decision-making? The article begins by outlining the range of arguments for a more diverse judiciary which include, but are not confined to, making a difference to substantive decision-making. It then turns to consider the considerable evidence which now exists both to refute and to support the existence of substantive differences in decision-making following the appointment to the judiciary of women and others from non-traditional backgrounds. On the basis of this evidence, it draws conclusions as to the kinds of differences in decision-making which might be expected, and the circumstances under which different approaches to decision-making are likely to flourish.

‘Heads I Win. Tails you Lose.’ Migration and the Worker Citizen

Abstract: Everyone is talking about immigration. The impacts of migration on the social, the economic and the political are perceived as multifarious and profoundly disruptive. The proportion of people that move internationally, approximately 3 per cent of the world’s population has long been stable but the meaning, significance and constitution of mobility have changed. The story is one of unparalleled movement and huge demographic change. This is analysed as presenting a direct threat to sovereignty and generating costs and benefits that must be traded off, posing a ‘tragedy of commons’, particularly in Europe, for national welfare states.

Constitutionalizing Labour Rights in Canada and Europe: Freedom of Association, Collective Bargaining, and Strikes

Abstract: Why are unions in Canada and the European Union going to court to claim that the rights to bargain collectively and to strike are fundamental human rights and thus constitutionally protected? My approach to this question is socio-legal; I am interested in what this form of claims making reveals about how political power is legitimated in the contemporary global world. I argue that the goal of constitutionalizing labour rights is a specific example of the broader and much more pervasive global constitutionalization that involves a shift in law’s legitimacy from constituent power, the will of the people, and democracy to rights in which courts are the key institutions in a complex transnational constitutionalism. I situate a sociological account of global constitutionalism in relation to the legal literature on multiple constitutions in Canada and Europe. I then turn to examine how international human rights are invoked by trade unions in Canada and the EU to constitutionalize the rights to bargain collectively and to strike, and my specific focus is on how courts deploy these rights in their reasoning and the circulation of international human rights through different adjudicative sites. After recounting how unions’ attempts to constitutionalize labour rights in Canada and at the European level have fared, I discuss the controversy over the right to strike that has engulfed the International Labour Organization’s supervisory bodies. To conclude, I consider whether the use of international human rights by courts to interpret the scope of freedom of association exacerbates or ameliorates the displacement of democracy and constituent power as a basis of political legitimacy in global constitutionalism.

Immigration detention: the grounds beneath our feet

Abstract: Detention as part of migration control is sometimes portrayed as a ‘necessary adjunct’ of the state’s power to control immigration. This characterization is a masking device, obscuring the grounds of detention (or the lack thereof) from proper scrutiny. It has convincingly been argued that human rights law fails to scrutinize the necessity of immigration detention. Many scholars have pointed out the anomalous approach to assessing the legal justifications for immigration detention, compared with other forms of deprivation of liberty, which are more powerfully constrained by human rights law. Yet, cogent as this critique is, it sometimes fails to interrogate the related questions concerning the legal grounds of detention. A ground is a particular form of legal reason, which both explains and justifies the official action in question. By examining the question of grounds, this article aims to elucidate the manner in which immigration law itself produces reasons to detain, and by doing so creates detainable subjects, migrants. Basic liberty-protective principles and practices developed in other areas of law are notably absent. This state of affairs is not inevitable, and legal alternatives are within reach.

Mapping a Developing Governance Space: Managing Drought in the UK

Abstract: Climate change is associated with severe weather events also in the UK, such as alternating periods of flooding and drought. This article discusses how this increasingly important environmental challenge can be regulated. Current key regulatory tools for preventing and managing drought are drought planning, drought orders and permits, as well as the revocation and modification of abstraction licences. The article develops the metaphor of a governance space in order to understand how environmental science and economics knowledge practices inform the mobilization of these key regulatory tools. This builds on literature about the regulatory space metaphor, and further advances it by conceiving of law and information, two key resources for institutional actors in a governance space, as mediated by discourses. The article develops this argument by, first, reviewing in the introductory sections key provisions of European Union (EU) and English law in relation to regulatory tools for preventing water shortages and managing drought. It further develops this analysis in the subsequent section by examining what environmental science and economics knowledges are generated when particular regulatory tools for preventing or managing drought are applied. In the following main section the article then critically reviews literature about the regulatory space metaphor. It identifies a positivist understanding of information and law as a limitation of some of this literature. By building on contributions to this literature that adopt a discourse perspective, it suggests that law and information should be understood as discursively mediated. Building and maintaining reputations for effective drought management is one example of a discourse that mediates linked legal and information resources for drought management.

Comity among Authorities

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

Rethinking the Approach to Economic Justifications under the EU's Free Movement Rules

Abstract: The ECJ has frequently stated that it is a general rule that “economic” aims are precluded as justifications for restrictions on free movement. This on its face suggests that free movement always and automatically trumps national economic interests. However, in reality the Court’s approach to balancing these different interests is much more complex: often, and increasingly, interests of an economic nature are in fact recognised in the Court’s case law. This paper suggests that this rule precluding economic aims as justifications therefore requires reformulating. It is argued that this is necessary not merely to reflect the reality of the case law, but also to improve the transparency and quality of judicial decision-making. The paper then also examines how the current prohibition might be reformulated in light of both the policy considerations underlying the current formulation (embodying a degree of caution in accepting economic interests) and the problems with that formulation. It is suggested that it is appropriate to maintain a kind of rule against economic objectives, but a more nuanced one concerned solely with measures that have a protectionist aim – the original target of the “general” rule prohibiting economic justifications. On the other hand, with measures that do not have protectionist aims, recognition of economic objectives should be determined on a case-by-case basis that is attuned to the wide variety of economic interests that exist. An important group of measures within the latter category comprises those directed at protection of Member States’ budgetary interests. These warrant special attention and the paper also examines how these interests can be suitably addressed within the context of the framework proposed above. According to the Court’s current approach, in theory budgetary justifications are prohibited as a consequence of the rule against economic justifications in general. However, it is explained that, like certain other economic justifications, they are in reality often permitted, being allowed in certain defined and specific circumstances. Further, where they are permitted, the Court limits application of the proportionality test in that it does not examine whether alternative means might be used to recoup the lost revenue. In this way the Court balances national economic interests and free movement but avoids various constitutional and practical difficulties of applying a proportionality test to do so. It is proposed that the Court should continue with this approach. However, it needs to acknowledge that it does accept justifications that are budgetary in nature, and that these constitute exceptions to any general rule against budgetary justifications. It might also be appropriate, further, to accept budgetary justifications as a general rule in addition to existing, specific, budgetary justifications whenever there is a significant impact on a specific programme budget. However, it is acknowledged that this approach is not consistent with the case law.

Beyond the European Convention: Human Rights and the Common Law

Abstract: This is the author accepted manuscript and is under embargo until the 7th of August 2017. The final version is available from OUP via http://dx.doi.org/10.1093/clp/cuv009

Excusing Information-Provision Crimes in the Bureaucratic State

Abstract: A way of conceiving the state in which we live is as the ‘bureaucratic–participatory’ state. The good citizen in this state is the citizen who is honest and truthful, when required to provide information needed by officials charged with furthering the public interest in regulatory contexts. Offences applicable to those who fail to provide the right information to officials form a large proportion of crimes on the statute book. The most disadvantaged members of society are the least well-equipped to meet the information demands of the bureaucratic state, and are the most vulnerable to unjust conviction under such laws. Comparing and contrasting the approach to defences of different forms or ideologies of law, I argue the case for a broad excusing provision to information-provision offences, when those offences target groups especially likely to include disadvantaged members of society. To that end, I focus on information-provision crimes relating to benefit claims.

Corporate Governance, Pay Equity, and the Limitations of Agency Theory

Abstract: It is well known that recent decades have seen an explosion in levels of senior executive remuneration in public companies, both in absolute terms and in relative terms to ordinary worker pay. However, a conspicuous corresponding trend over recent years has been the development of a range of countervailing regulatory tools designed to mitigate this disparity within various national environments. These include regulatory pay ratio caps, bonus bans, and mandatory pay ratio disclosures. Notwithstanding these salient developments, prevailing legal and economic debates on senior executive and worker pay remain rooted in the dominant principal-agent paradigm of corporate governance, which consistently disputes the relevance of equitable or distributive fairness concerns to the essentially functional challenge of determining effective agent incentives. In this article, I take issue with the orthodox principal-agent perspective on pay equity, by demonstrating the centrality of equitable concerns to effective agent-incentive design, both at senior executive and ordinary worker levels.

Habeas Corpus, Imperial Rendition, and the Rule of Law

Abstract: In the decades which followed the publication of AV Dicey’s Law of the Constitution, most English lawyers felt confident that the rights and liberties of Englishmen were protected by a rule of law, which was secured through ancient common law remedies such as the writ of habeas corpus. In their view, this ensured that no political activists would be detained without trial, unless there were particular emergencies which allowed the writ’s suspension, in order to protect the very rule of law. At the same time that these arguments were being made, however, detention without trial became an increasingly routine feature of colonial governance. This article examines the attempts used by political detainees from different parts of the empire to challenge their rendition and detention, and explores what the judicial response tells us about perceptions of the rule of law in the era when Dicey’s work was establishing itself as the classic text of constitutional law. Focusing on a number of key cases, it examines how courts examined two central issues in habeas corpus cases. The first concerns the legality of the detention. In discussing this issue, courts were presented with rival approaches to the rule of law, one which was more ‘formalist’ (asking whether the legislative instrument ordering the detention had a valid pedigree derived from the sovereign legislature), and another which was more ‘substantive’ (invoking a notion of fundamental rights). The second concerns the question of control, and explores the response of the courts to challenges to the writ by defendants who argued that they no longer had control over the detainee.