Showing papers in "Modern Law Review in 2002"

The Idea of Constitutional Pluralism

Abstract: Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.

International Law: A Discipline of Crisis

Abstract: This article examines the way that international lawyers tend to focus on crises for the development of international law. It uses the reactions of international lawyers to NATO’s intervention in Kosovo in 1999 as a case study of this tendency and argues that the crisis focus impoverishes the discipline of international law. The article proposes the idea of an international law of everyday life as an alternative.

Controlling the New Media: Hybrid Responses to New Forms of Power

Abstract: The development of new media industries, stimulated by the technology of digitalisation, has thrown up an important literature on mechanisms for regulation and control. In this article we elaborate on and develop Lawrence Lessig's 'modalities of regulation' analysis. As we reconceive them the four basic control forms are premised upon hierarchy, competition, community and design and can be deployed in fifteen pure and hybrid forms. This analysis is enriched through elaborating on the essential elements of control systems (standard–setting, monitoring and behaviour modification) to demonstrate the importance and variety of hybrid forms that real–world control systems take in the new media domains. Although the article does not provide any universal prescriptions as to which control forms are likely to be most appropriate in particular domains, it does provide a richer analytical base both for understanding existing control mechanisms and the potential for using greater variety. The development of regulatory regimes which are both legitimate and effective in any given domain is likely to require sensitivity to the particular context and culture of both the domain and the jurisdiction within which it is located.

Liability for the Escape of GM Seeds: Pursuing the ‘Victim’?

Abstract: The widespread commercial cultivation of GM crops in the EU and the UK is getting closer. Intense concerns about the uncertain health and environmental effects of GM farming have been the subject of high profile debate. The effects of GM farming on existing forms of agriculture, raised by the prospect of cross–pollination by GM seed, provoke similarly polarised views. However, whilst regulatory developments have been strongly influenced by environmental and health concerns, the socio–economic impact of GM agriculture is relatively neglected in current regulatory approaches. The authors examine various possible legal responses to unwanted cross–pollination by GM seed, and contend that the law is likely to struggle to cope with the conflicts that may arise.

Judicial Deference under the Human Rights Act

Abstract: Judicial deference to the other branches of government has become a common judicial technique in cases arising under the Human Rights Act. The author outlines the current approach of British courts in deciding when to defer, arguing that it is flawed and unprincipled. The author goes on to argue that a principled approach to deference is necessary, and offers examples of when and how courts should defer to the other branches of government when considering constitutional claims.

Prosecuting Domestic Violence without Victim Participation

Abstract: This article explores the evidential challenges victim withdrawal presents in domestic violence cases. More specifically it examines innovative measures taken in the United States to overcome problems of proof typically associated with domestic violence prosecutions. These evidentiary initiatives have facilitated a shift towards so-called 'victimless' prosecution in the context of domestic violence which dispenses with victim participation. Drawing upon a 'freedom model' of criminal justice, this article examines whether recent developments in the United States might be emulated as a means of addressing the high rate of attrition in domestic violence cases in England and Wales. Language: en

Autonomy, guardianship and mental disorder: one problem, two solutions.

Abstract: The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.

Stem cells, Superman, and the report of the Select Committee.

Abstract: In 1998, the Wisconsin-based biologist James Thomson announced that his research group had made a major breakthrough by successfully isolating human embryonic stem cells (hES cells). On this side of the Atlantic, too, there have been important developments, both scientific and regulatory. Most recently, in February 2002, the Human Fertilisation and Embryology Authority announced that, pursuant to the Human Fertilisation and Embryology (Research Purposes) Regulations 2001,1 it had issued the first licences in the United Kingdom for basic hES cell research to be undertaken. Why have these, and similar, announcements prompted a sense of great excitement and anticipation but also, and in just about equal measure, a sense of tremendous anxiety and deep concern? Attempting to answer such questions, a House of Lords Select Committee has recently published the most detailed review yet in the United Kingdom of the science and ethics of stem cell research and the regulatory issues to which it gives rise.2 First, why the excitement? Stem cells are special because they are a potential source of new cells for example, blood stem cells will replenish blood cells, neural stem cells will replenish brain cells, skin stem cells will replace skin, and so on. ES cells, however, are special because they are still in a so-called pluripotent state. As pluripotent stem cells, hES cells have the potential to develop into any one of the 200 or so human cell types and, in natural development, they will duly differentiate in this way. Those stem cells that have already developed to perform one or more specialised functions are called 'adult' stem cells (regardless of whether they are located in an adult person); and, whilst adult stem cells might have a number of possible differentiated functions and, thus, are multipotent the othodox view is that their function in the human body is relatively stable. In other words, whilst say blood stem cells might be able to regenerate blood cells, they are not thought to have the capacity to regenerate brain cells; and, similarly, neural stem cells are not thought to have the capacity to regenerate blood cells. Having isolated, purified and cultured hES cells, the next step is to seek to understand and simulate the mechanisms by which they differentiate to become specialised adult stem cells. The importance of such an advance in our knowledge

Public Law and Popular Justice

Abstract: Group litigation is becoming commonplace. Rules of standing have been relaxed to allow groups to bring representative actions on behalf of their members or to act ‘in the public interest’. Groups increasingly intervene in actions between third parties, presenting amicus briefs. This article traces the origins of group action in courts and speculates on the possible effects of changes which blur traditional distinctions between legal and political process, concluding that the legal process must be kept broadly within traditional boundaries, if the qualities of independence, rationality and finality for which it is valued are to be maintained.

History, Critical Legal Studies and the Mysterious Disappearance of Capitalism

Abstract: Not long ago the work of E.P. Thompson was widely regarded as having made an important contribution not only to the then fledgling critical legal studies movement but to legal scholarship in general. Whigs and Hunters, for example, probably his most famous work directly to address legal issues, was published as recently as 1975 and in the following decade provoked considerable comment and discussion.l Since then, however, so rapid and comprehensive have been the changes in intellectual fashion that Thompson is now, one suspects, little read, let alone understood or valued, by the current generation of legal scholars claiming radical credentials. In short, Thompson and the historical materialist tradition of which he was part have fallen from grace and are no longer considered central to critical legal studies or critical legal theory: 'not [so much] heretics but barbarians, who desecrate with [their] presence the altars of the liberal Gods', as Thompson himself put it in a slightly different context.2 Thompson's brand of materialism was, to be sure, never one that people found easy to categorise. For some, it was too 'humanist', underestimating the historical importance of structure and overemphasising that of human agency; for others it was precisely its focus on ideology, culture and lived experience that made it attractive. Arguably, however, Thompson, more perhaps than any other historian, met Marx' s challenge, identifying within history the formative role of modes of production while at the same time encompassing historical particularity and human agency. This essay seeks to remind us of the contours of Thompson's historical materialism and to explore how its abandonment has weakened critical legal studies, both intellectually and politically.

United Kingdom Military Law: Autonomy, Civilianisation, Juridification

Abstract: This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.

Misconceptions about Wrongful Conception

Abstract: 'Public policy' has acquired a bad name in English tort law, but the reasons for its tumble from grace remain obscure. Lord Morns in Dorset Yacht gave us the Delphic admonition that the court should not shrink from being arbiter of whether it is fair and reasonable that a duty of care arise, and that 'policy need not be invoked where reasons and good sense will at once point the way'l but did not explain why sense and logic must be distinguished from policy factors, and why the latter do not encompass fairness and reasonableness. When the 'policy considerations' step of Lord Wilberforce's two-stage test in Anns2 was supplanted by 'fairness, justice and reasonableness' in Caparo's three-stage test for duty of care,3 it was unclear how, if at all, this was intended to change the substance of what the court must consider in novel cases, or whether the revolution was confined to shifting the persuasive burden respecting policy considerations from the defendant to the claimant, by inference converting the court from an expansive to a conservative way of thinking about negligence law. While the factors selected for consideration under the third stage of the Caparo test have tended to weigh heavily against creating a duty of care, recently the countervailing policy that wrongs should be remedied corrective justice has regained prominence4 (which begs the question as to what constitutes a wrong). Perhaps aware of the flaccidity of 'fairness, justice and reasonableness' in explaining to parties why a duty of care has been withheld or imposed in their cases, the Law Lords have continued to cast about for more satisfactory labels. 'Assumption of responsibility', once subjected to scathing judicial cnticism as being 'neither helpful nor realistic' as a test of liability,5 is now regarded as a virtually indispensable phrase in novel negligence decisions, at least where the harm is charactensed as economic.6 The latest label in vogue is Aristotle's 'distnbutive justice',7 usually deployed in counterpoint to 'corrective justice' which is generally assumed to be the default rationale underpinning tort law.

Appeals to reason

Abstract: This article considers how statistical reasoning changes conceptions of evidence and proof. Beginning with three Court of Appeal judgments in which proof is quantified, it traces the implications of statistical ways of thinking about proof through the law of criminal evidence. This leads to the bizarre conclusion that proof is, by and large, impossible. The argument then takes a more constructive turn. The way in which the presumption of innocence is conceptualised in statistical argument is criticised and it is suggested that proof depends on a precondition of trust in the way suspects are selected by the police. For that trust to be deserved, police suspects must be chosen in a legitimate manner.

Undue Influence in the House of Lords: Principles and Proof

Abstract: that his subsequent difficulties in finding another job are attributable to his having worked for BCCI is however, extremely speculative. ... Four of the [unsuccessful] cases tried by Lightman J appear to have concerned employees who were dismissed by the liquidators when the bank collapsed in 1991. By contrast, Mr Naeem and the others [were] made redundant in 1990. ... The present position is that this vastly expensive litigation, which has been twice to the House of Lords and given rise to two lengthy trials ... has produced benefits for no one except the lawyers involved and has been at the expense, not of the fraudulent villains but of the public and the unfortunate creditors of BCCI.59

The Right to Appeal and Workable Systems of Justice

Abstract: This article explores the practicalities of a right to appeal. Appeals and appeal systems are usually conceived of in terms of a top–down hierarchy, with appeals functioning as an instrument for superior bodies to correct the decisions of and otherwise to control inferior ones. A fuller appreciation of systems of appeal places at least equal weight on the need for appeal bodies to establish stable, workable relationships with the bodies which they supervise. The need for any appeal system to sustain a workable system of justice refocuses attention from hierarchical control to problems of deference by the superior bodies towards the inferior ones. This way of looking at appeals has the potential to illuminate many recent developments, and can be illustrated by describing recent reforms and reform proposals to both civil and criminal justice.

Predators and the Public Interest — the ‘Big Four’ and Multi–Disciplinary Practices

Abstract: This article explores the growing body of professional and academic support for Multi–disciplinary Practices (MDPs) which combine the provision of legal, accounting, financial, and other ‘professional’ services. In doing so, it traces the development of MDPs in the UK and assesses the leading claims which have been advanced in favour of these ‘one stop’ providers. It is suggested that support for MDPs is located within the emergence of a new professional paradigm which places a high premium on quality of service and the resolution of complex problems and is based on a narrow conception of the public interest which is closely if not solely associated with promoting consumer welfare. This, itself, is rooted in a deregulatory vision of the world – that is, the view that the breaking down of barriers (professional, legal, and cultural), which restrict competition and impede consumer choice, is in the ‘public interest’. The article challenges these views, arguing that many of the alleged consumer benefits which are said to flow from the formation of MDPs are at best speculative and that, in any case, a proper conception of the public interest is one which extends beyond a narrow concern for consumer interests.

Regulating Government by Contract: Towards a Public Law Framework?

Abstract: Government contracting in the United Kingdom has traditionally been equated with public procurement, contract being 'the instrument by which the goods and services required by government departments are procured from the private sector' . Despite concerns about the lack of effective accountability,2 the development of a separate body of government contract law has been widely regarded as unnecessary.3 Over the past twenty years 'government by contract' has assumed new forms. Contractual mechanisms were deployed by the Conservatives in the drive for efficiency within government and to reform the public sector and local government. A fresh impetus was thereby given to public law debates. Doubts were raised about the absence of a framework of legal principles governing the growing role of contract in public administration.4 A 'public law contract', with its own principles regarding formation and dispute resolution, was argued to be necessary to enhance government accountability.5 In the mid-1990s, Treasury pressure for the private financing of major public infrastructure projects gave a new twist to traditional procurement, leading to renewed calls for government policy and practice to be placed in a public law frame.6 Far from diminishing following Labour's victory in the 1997 general election,7 government by contract has been vigorously extended across a wide range of economic and social relations in new private-public partnership initiatives and in a variety of legislative schemes.8

Defining Unfair Terms in Consumer Contracts – Crystal Ball Gazing? Director General of Fair Trading v First National Bank plc

Abstract: The clear indications by the House of Lords of a generally restrictive approach to the 'core' is to be noted and applauded. Its full working out, to avoid the \"frustration' of the the main purpose of the scheme ... by endless formalistic arguments as to whether a provision is a definitional or an exclusionary provision'63 or other categorisational difElculties, is still to be fully explored, but a way forward can be suggested. In relation to unfairness, First National Bank has provided some useful general clariElcation of the meaning to be given to 'good faith'. It leaves open questions as to the effectiveness of the Regulations to address informational defects which involve the interaction of the term in question and external factors, particularly other legislation.

Dogmatic Liberalism? T.R.S. Allan and the Common Law Constitution

Abstract: Book reviewed in this article: T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law

Watson v British Boxing Board of Control: Negligent Rule‐Making in the Court of Appeal

Abstract: In the US this balancing process has been worked out down to very product specific case law. In Europe where there is less case law it is arguable that the concept of defectiveness and the role of the development risks defence needs to be spelt out in more detail in legislation. Since the Directive was adopted the issues surrounding their interpretation have become clearer. The problem is that there seems little evidence that the Commission has the energy to tackle these complex questions.56 This means slowly the Courts of Europe will have to undertake this task. As Burton J's judgment illustrates this will require courts to make increasing use of comparative law. This comparative approach is to be commended as it encourages the national courts to share in the task of the Court of Justice of creating an even development of law within Europe. We have previously argued that the development risks defence can best removed and the issue addressed under the defectiveness standard.57 In the instant case the court was concerned with a danger known to the industry but not to the public. If there was a danger that not even the industry knew about, the product might be held not to be defective, although much would depend on the overall circumstances: to make the producer liable for every unforeseen danger (even if a sensible policy) would exceed the regime intended to be provided by the Directive.

The Protection of Freedom of Expression in the Public Service Media in Southern Africa: a Botswana Perspective

Abstract: This paper critically examines the public service media (PSM) in Southern Africa with particular emphasis on Botswana. The PSM, which is considered to be one of the key institutions that needs to be strengthened if the current transition to democracy and the building of an open and accountable system in Africa is to take root, faces many challenges due to its vulnerability to state control and manipulation. After an analysis of the PSM concept and an examination of how the public service media was introduced into and has evolved in the region, particularly in Botswana, it concludes that this medium of communication, on account of its reach, remains the most important means of disseminating information, education and entertainment for the foreseeable future. Nevertheless, it is argued that for it to effectively accomplish these objectives certain important reforms must be carried out designed to disentangle it from the state and make it more independent and accountable. It is made clear that the new PSM model neither requires a public monopoly or public sector control nor that the state should be totally cut off, but rather a new redefined role for the state. The new model is built around at least five fundamental principles that should be crafted into any new media legislation dealing with the public media which will ensure public accountability, independence from partisan manipulation and a level playing field for all political actors.

From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer

Abstract: The modern idea of criminal justice is organised around a series of antinomies which include the formal and the substantive, the universal and the particular, the individual and the social. This paper examines the place of these antinomies in four different but connected settings: the plight of the humane judge, the classical enlightenment theory of retributive punishment, the judgment of provoked killing, and the critique of orthodox subjectivism in the Anglo–American law. The play of the universal and the particular and the formal and substantive within law reflects and embodies the underlying antinomy of the individual and the social – even where it does not mention it. The qualitative moment is preserved in all quantification, as the substrate of that which is to be quantified.

Creating a children’s champion for Wales? The Care Standards Act 2000 (Part V) and the Children’s Commissioner for Wales Act 2001

Abstract: The advent of the United Nations Convention on the Rights of the Child in 19892 has brought with it a growing public awareness of the separate and special interests of children. The use of a ‘children’s commissioner’ or ombudsman has come to be regarded as one of the most effective means of ensuring that those interests are protected. Many states have accordingly established such an office as part of their response to meeting their obligations under the Convention to promote its principles and provisions.3 In the United Kingdom, calls for the creation of a post of this kind have been made for over a decade, most notably in a report in 1991, Taking Children Seriously: A Proposal for a Children’s Rights Commissioner.4 A Children’s Commissioner for Wales, though not for the rest of the United Kingdom, has now been created under Part V of the Care Standards Act 2000 and the Children’s Commissioner for Wales Act 2001.5 The office was established following recommendations in the Waterhouse report6 and a request to the Westminster Government from the National Assembly for Wales. The Care Standards Act, which at the time was before Parliament, was used rather than waiting for space in the parliamentary timetable for a dedicated piece of legislation because of the perceived urgency in establishing the post. The Children’s Commissioner for Wales Act amends the Care Standards Act and extends the role

Déjà vu in International Law

Abstract: Book reviewed in this article: Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960

Remoteness Criteria in Equity

Abstract: It is sometimes said that the compensation with which a defaulting trustee may be charged should not be cut back because the loss is of an unforeseeable type or because it is properly attributable to an intervening cause.' This position is advocated by the author of Lewin on Trusts amongst others.2 The more moderate position has also been taken that compensation for breach of trust is not contained by the rules of remoteness and causation that apply in tort or contract, thereby inviting the development of tailored equitable rules fulfilling a similar function.3 Lord Browne-Wilkinson's controversial dictum in Target Holdings Ltd v Redferns accommodates both of these positions: 'Even if the immediate cause of the loss is the dishonesty or failure of a third party, the trustee is liable to make good the loss to the trust estate if, but for the breach, such loss would not have occurred ... Thus the common law rules of remoteness of damage and causation do not apply'.4 Notwithstanding the broad terms in which Lord Browne-Wilkinson expressed himself, subsequent authorities both in England and elsewhere in the Commonwealth have signalled a retreat towards recognition that reparative liability for breach of trust must be limited by remoteness criteria of some sort. The most notable amongst these is Fisher J's decision at first instance in Bank of New Zealand v New Zealand Guardian Trust Co Ltd.5 The contention advanced in this

Ancillary Financial Relief and Fat Cat(tle) Divorce

Abstract: Any policy informing ancillary financial relief (AFR) on divorce is unlikely to obtain for very long nor even be met with overall satisfaction during its tenure. There are too many pressures, new and old, for it to be otherwise. These include: the place of marriage in society; the parties' high emotions, which are possibly unique to intra-family litigation; popular misunderstanding of the policy; gender imbalances; the ease (if only perceived) with which a party can 'cheat'; the ongoing needs of children, which cannot normally be segregated from those of the resident parent; the needs of second or more families; a subsequent wish to re-open matters; and the pressure on the public purse. (It is therefore ironic that some people would now make AFR available to unmarried couples, and/or make marriage available to more sorts of pairs and even more remarkable that, under existing domestic partnership law, Mrs White might have got at least as much had she never married Mr White).

Cost–sharing in Group Litigation: Preserving Access to Justice

Abstract: Plainly there is a need for the English courts to restate the application of remoteness criteria to money claims against defaulting trustees. The dicta in Target Holdings and Collins v Brebner as well as the statement in Lewin on Trusts provide an unsatisfactory basis for deciding future cases. A more refined approach would recognise that whether remoteness criteria apply at all depends on the nature of the claim advanced, for they are only apposite where the beneficiary seeks compensation for loss incurred by reason of the defendant’s misconduct. Remoteness criteria have no purchase where the beneficiary instead overlooks the breach and requires his trustee to perform his primary duties, even if that performance is to be effected in money. Greater refinement is also needed in formulating the criteria that condition liability where the claim is for reparation of loss. In this the English courts should adopt the two principles that underpinned Fisher J’s approach in the Guardian Trust case: they should tailor the applicable criteria to the different types of breach of trust that may be committed and they should develop those criteria harmoniously with the law as it applies to cognate common law wrongs. The progress of the law is towards treating reparation claims for breach of trust in two broad compartments that correspond to the two major compartments discernable in tort law. The first includes claims arising from unintentional and judicious breaches of trust; here the principal remoteness test should be reasonable foreseeability of the kind of loss. The second includes claims arising from intentional disloyalty; here unforeseeable losses should be recoverable so long as they are the direct result of the breach.