Showing papers in "Modern Law Review in 2005"

The British Regulatory State: High Modernism and Hyper‐Innovation

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Legality and Legitimacy

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After government? On representing law without the state

Abstract: For the greater part of the 20th century, representations of law as state law were dominant in the legal scholarship of the West. But over the last thirty years sustained attempts have been made, notably under the self-conscious banner of legal pluralism, to loosen the conceptual bonds between law and government. Early on, acephalous societies in formerly colonial territories and local groupings within the metropolis were represented as legal orders. Latterly, as attention shifted to orderings at regional and global level beyond the nation state, attempts have been made to delineate a general jurisprudence. It is argued here that these conceptual revisions have for the most part been problematic, made in the face of strong evidence linking the cultural assemblage we have come to call law with projects of government. The lecture concludes with a plea that we should be very cautious in representing what are essentially negotiated orders, whether at local or global level, as legal orders; these remain significantly different from those at the level of the state. Today, under an onslaught of jural discourse and institutional design, the distinctive rationalities and values of negotiated order, while arguably deserving to be celebrated, are effectively effaced.

Shareholder Primacy and the Distribution of Wealth

Abstract: In recent years a growing consensus has emerged in favour of the shareholder-oriented model of the corporation. Increasingly, this model is justified not on the basis of shareholder ownership rights but on efficiency grounds: whoever the immediate and direct beneficiaries of shareholder-orientation, it is argued, it ultimately indirectly benefits everyone by ensuring the maximization of aggregate social wealth. The prevalence of this view has caused the distributional dimensions of corporate governance to be neglected. This paper examines the distribution of share ownership and financial wealth in the US and the UK. Although share ownership has become more widely spread, it argues, it remains very heavily concentrated with the result that shareholder primacy is in reality the primacy of a small privileged elite. After an exploration of the contradictions of working class shareholding and the impact of greater shareholder-orientation on the distribution of wealth, the paper concludes by re-evaluating Hansmann and Kraakman's ‘end of corporate history’ thesis, arguing that recent developments represent a triumph not for efficiency but for the growing power of the shareholder class.

The ‘Best Interests of the Child’ and Parental Separation: on the ‘Civilizing of Parents’

Abstract: The concept of the ‘best interests of the child’ is both pivotal in family law and yet essentially contested. This paper reflects on the concept's position within a number of longer-term histories – of the jurisprudence surrounding child custody, of the social construction of childhood, and of the emotional constitution of family life more broadly. The turn to a co-parenting model from the 1970s onwards and the rise of the concept of the ‘civilized divorce’ is analysed by drawing on Norbert Elias's analysis of ‘processes of civilization’ in Western social life. The paper argues that the post-separation co-parenting model is only partially explained as the outcome of political manoeuvring by particular social and professional groups; it should also be understood as part of longer-term trends in family life, emotional management, and the socio-legal construction of childhood, as part of the on-going ‘civilizing of parents’.

Ideas, Norms and European Citizenship: Explaining Institutional Change

Abstract: Despite assessments that European Union citizenship, in the Treaty on European Union, was insufficient to induce real institutional change, institutional change has occurred. As an institutional designer and agent of change, the ECJ made tactical interventions in the period 1993-2003 which resulted in incremental-transformative institutional change. The ECJ's phased approach in-between Treaty revisions has strengthened the constitutional importance of European citizenship and the market citizenship template has been superseded by an understanding of European citizenship that privileges citizen status over economic activity. Three phases may be distinguished in this process: judicial minimalism (1993-97), signalling intentions (1998-00) and engineering institutional change (2001-03). An institutional constructivist approach to the judicial institutionalisation of Union citizenship highlights the role of ideas, cognitive templates and norms, in explaining the longitudinal process of its institutional development. It also shows that institutional change is a more complex phenomenon than is generally portrayed. In searching for conceptual tools that explain European judges' decisions not only to bring about qualitative institutional change, but also to ground 'a change' in such a way that future extension is possible, it is argued that a multivariable model entails some promising lines of inquiry into the subject. The introduction of Union Citizenship by the Treaty on European Union (1 November 1993) shattered prevailing economic approaches to European integration' and generated debates concerning issues of polity formation, such as European democracy and legitimacy, European constitutionalism, the formation of a European demos and the design of a European public sphere.2 As such,

Fragmenting Fatherhood: The Regulation of Reproductive Technologies

Abstract: Reproductive technologies offer the potential to break down parenthood into a number of constituent parts. These disruptive possibilities mean that the regulation of reproductive technologies holds important potential for study, providing a significant resource that has been little analysed with regard to fatherhood. This study attempts to remedy that lacuna through consideration of a range of recent developments in this area of English law. It reaches two general conclusions. First, while the law regulating reproductive technologies attributes great importance to fatherhood, this is rooted primarily (though not exclusively) in concerns for the symbolic importance of fathers, rather than in more practical considerations such as ensuring financial provision or a second hands-on carer for a child. Secondly, the Human Fertilisation and Embryology Act (1990) contains a clear attempt to protect and entrench the role of the father as completing the nuclear family. However, recent developments suggest that this legal preference for the nuclear family is subject to clear emerging cracks.

The Human Tissue Act 2004

Abstract: The Human Tissue Bill, described in Parliament as a'landmark Bill',' was introduced into the House of Commons on 3 December 2003 by Secretary of State John Reid, was brought to the House of Lords on 29 June 2004, completed its progress through the Upper House on 10 November 2004, and received the Royal Assent on 15 November 2004. It is due to come into force, for the most part, on days to be specified in commencement orders. Full implementation is not anticipated until at least April 2006, although transitional arrangements will be put in place. The Act will repeal in their entirety the Human Tissue Act 1961, the Anatomy Act 1984 and the Human Organ Transplants Act 1989 (except with regard to Scotland), and the Human Tissue Act (Northern Ireland) 1962, as well as making various other smaller and consequential amendments. The Act is principally a response to the furore generated by revelations about practices relating to the retention and use of human tissue in the Bristol Royal Infirmary2 (Kennedy) and Alder Hey Children's Hospital in Liverpool3 (Redfern) Inquiry Reports, and more latterly the Isaacs Report,4 in particular.5 These Reports catalogued local practices resulting in relatives, principally parents of dead children, lacking appreciation of subsequent tissue retention and use for research following (generally coroners')6 post-mortem examinations, often resulting in the burial or cremation of loved ones without the realisation that they were not 'complete', and some further burials or cremations of body parts.' It tran-

Evading Enron: taking principles too seriously in accounting regulation

Abstract: The UK's regulators and accounting profession are at one in their assessment of why the UK avoided its Enron: the UK's approach to accounting regulation is principles-based in contrast to the rules-based approach taken in the United States. According to this position, the UK has its principles-based regulatory technique to thank for keeping the integrity of its markets intact during the infectious greed of the 1990s. This article is an inquiry into the effect and validity of this claim. It investigates the effect that this claim has had upon structuring the UK's post-Enron regulatory process and provides a close analysis of UK and US accounting regulation to determine whether the UK's regulation is in fact distinctively principles-based. It concludes that the structuring effect of the claim was considerable, diverting the reform process away from some of the US's most important Enron lessons. This is of particular concern as the article also concludes that the claim is without foundation.

The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?

Abstract: This article examines the contribution which the European Court of Human Rights has made to the development of common evidentiary processes across the common law and civil law systems of criminal procedure in Europe. It is argued that the continuing use of terms such as ‘adversarial’ and ‘inquisitorial’ to describe models of criminal proof and procedure has obscured the genuinely transformative nature of the Court's jurisprudence. It is shown that over a number of years the Court has been steadily developing a new model of proof that is better characterised as ‘participatory’ than as ‘adversarial’ or ‘inquisitorial’. Instead of leading towards a convergence of existing ‘adversarial’ and ‘inquisitorial’ models of proof, this is more likely to lead towards a realignment of existing processes of proof which nonetheless allows plenty of scope for diverse application in different institutional and cultural settings.

Between Human Rights and the Rule of Law: Indefinite Detention and the Derogation Model of Constitutionalism

Abstract: The attacks on America on September 11, 2001 heralded an era of what has been described as defensive democracy.' Governments across the democratic world have acted to concentrate power into their own hands whilst shutting their outer gates. But although strength is undoubtedly the first necessity of any constitution, the line between strength and unbridled power is dangerously fine. Moreover, the first casualties of defensive measures are inevitably the civil liberties and human rights that individuals normally enjoy. It is therefore imperative that in order to maintain the very democratic systems that defensive postures are intended to protect, state constitutions operate to defend the threatened bridgeheads of legality and human rights. This issue is raised in no more stark form than in relation to the UK's postSeptember 11 derogation from the European Convention on Human Rights and the resistance to derogation (as well as to continued derogation) that has been provided by the non-governmental institutions of the UK's constitutional regime. The extent of the judicial resistance to derogation has now been authoritatively established by the House of Lords in Av. Secretary of Statefor the Home Department.2 This paper examines the decision against the background of three differing constitutional models relating to the nature of derogation. Each model represents a very different approach to the defence of the twin bridgeheads of legality and human rights. These models offer a perspective from which to evaluate the House of Lords' decision and, to some degree, we find each reflected in the decision. But before turning to these models and to the critical analysis of the decision, it is useful to begin by setting out the ruling and its immediate context.

Anti‐Discrimination Rights Without Equality

Abstract: Anti-discrimination rights are nearly always thought to be justified or explained by equality, although the precise nature of this relationship is rarely considered. In this article I consider the two most plausible relationships, both of which are commonly at least implicitly asserted: that anti-discrimination rights are deontic equal treatment norms, and that anti-discrimination rights are instrumentally aimed at achieving telic equality. I try to show that, as a conceptual matter, anti-discrimination rights are not equal treatment norms: they do not require that all people (perhaps in a certain category) are treated the same. They allow for different treatment, but they prohibit different treatment only on some grounds. Although the suggestion that anti-discrimination rights are instrumentally aimed at telic equality (in some dimension) is conceptually plausible (like all instrumental relationships), it is most unlikely that anti-discrimination rights can be justified on this ground.

Advance Refusals of Life‐Sustaining Medical Treatment: The Relativity of an Absolute Right

Abstract: English law gives the competent patient a right to refuse life-saving treatment, either contemporaneously or in an advance directive. This means that the patient's autonomous choice that in an anticipated situation his/her interests are better served by rejecting life-saving treatment needs to be respected. However, this right is undermined in practice by the courts' approach of applying a presumption in favour of preserving the patient's life whenever the validity and applicability of an advance directive is questioned. The article argues that the patient's right to refuse life-saving treatment only receives the respect it deserves if the decision whether or not a valid and applicable advance directive exists in a given case is instead be approached in an unbiased, disinterested way, and it analyses how this can be achieved in different scenarios.

Interpretive legal theory and the academic lawyer

Abstract: Stephen Waddams' Dimensions ofPrivate Law' is an important and timely book. But this is not because the argument of the book succeeds. Rather, it is because the book's thesis is based on a significant and widespread error that must be identified and eliminated. Moreover, the book exhibits this error in a most instructive manner: it does not merely found itself on the error, as many books and articles do, but it also draws out most of the important logical conclusions that flow from it. Thus, although in this review we focus on Dimensions of Private Law, our criticism is not aimed at Dimensions of Private Law alone, but at the assumptions that this book exhibits, assumptions which are shared by many other legal academics. Dimensions ofPrivate Law is a sustained critique of what its author perceives to be intellectual imperialism on the part of legal theorists.2 In Waddams' view, distortion of legal history is characteristic of much legal theorising. This is because legal theorists tend to misdescribe cases in order to make them fit with the theorist's

Empowerment and State Education: Rights of Choice and Participation

Abstract: Two separate discourses surround the involvement of parents in their children's education in schools. One is concerned with what is often referred to as ‘parent power,’ based on the conferment on parents of rights to a degree of choice and participation in respect of their children's education, a feature of legislative changes to the governance of state education that started with the Education Act 1980 and which, in part, rests on consumerist and liberal rights based notions. The other focuses on the home-school partnership ideal in which parents and schools have obligations to support each other in realising children's potential. Labour and Conservative 2005 general election campaigns included proposals to ‘empower’ parents. But social rights such as those in education, which are important to notions of citizenship, tend to be weak. This article concludes that over the past 25 years little power has been ceded to parents, individually or collectively, and that, in the case of rights of choice at least, any further empowerment seems unrealistic. Moreover, the principal mechanism of parental involvement, particularly since 1997, has been the enforcement of parental responsibility, a form of ‘technology of citizenship’. The extent to which children hold participation and choice rights is also considered.

Criminal Law and the Sexual Transmission of HIV: R v Dica

Abstract: In what circumstances should those who, during sexual intercourse, transmit serious disease to others, be subject to criminal sanctions? Despite the relative dearth of domestic appellate decisions, this question has provided a feast of academic and policy-oriented commentary and analysis;' and it is a question that has been rendered even more urgent by recent revelations about the dramatic increase in the rate at which SexuallyTransmitted Infections (STIs) are being spread.2 The interest generated by the subject has, one suspects, two principal causes. First, it is a

Determining the State of Exception: What Role for Parliament and the Courts?

Abstract: tion of fundamental principles Their Lordships were not taken to have proposed their considered view on the requirements of constitutional justice for consideration and resolution by politicians They were taken to have resolved the question of what the Convention requires The political debate was informed by, but ultimately took place within, the parameters of principle as expounded in their Lordships'speeches62 Whilst Lord Scott's comments are therefore of some concern, the treatment of the status of the decision by the Government and Parliament is greatly to be welcomed It is entirely in accordance with the form of constitutionalism at the heart of the HRA and the respective constitutional functions that it envisages63 It is of cardinal importance that under the HRA the courts are understood to retain their function of determining questions of rights and settling disputes of principle The HRA has enhanced this role as well as enhancing the exchange and dialogue with the other branches of the state Despite the apparently limited nature of the relief granted by the House of Lords, both the constitutional significance and impact of the decision are therefore of the highest order The decision is of central importance to an understanding of our constitution and of constitutionalism in the post-HRA era

Contractual Discretion and Administrative Discretion: A Unified Analysis

Abstract: While judicial control of discretionary power is at the centre of administrative law, it is a topic which has received little attention in contract. By tracing the development of the relevant case law in administrative law judicial review and in contract, the paper seeks to show how review in both contexts has converged upon a single core technique of control through decisional standards. The paper further argues that the consequent identity of method in public and private law review of discretion does not in itself weaken basic public/private law distinctions. While the territories of legislation and contract may overlap, they present basic differences as contexts for the exercise of judicial control of discretion, and these differences of context may weigh more heavily than identity of approach in determining the outcomes of litigation.1

Citizen Redress in Public Contracting for Human Services

Abstract: This article examines from a regulatory perspective the legal position of citizens in respect of contracted out human services. It argues that the inadequate protection of individual interests and the public interest here is a reflection of increasingly complex relationships between the state and independent sectors, expressed in the essentially hybrid character of contemporary public service organisation. Accordingly a hybrid reform strategy, rather than one that attempts to extend or develop private or public law in any particular direction, is most likely to be successful in addressing associated legal governance problems. The attainment of improved redress for service recipients, and increased accountability of contractors and other parties engaged in human services networks, requires the careful tailoring of remedies to the conditions prevailing in particular sectors. The goal of responsive law should be to foster qualities of good administration and respect for fundamental public interest values within the whole range of regulated agencies and bodies performing public service functions.

Parliamentary Review of Terrorism Measures

Abstract: My argument is not that judges should invalidate a substantive privative clause just because it violates the common law constitution. I do not rule out such an argument, but one does not need it to see that judges have a duty to maintain the common law constitution. Such a duty exists even if all judges can do is point out their inability to fulfill their role because the government has used legislation to abolish the rule of law.19 Rather, my argument is that in the looming constitutional battles in the United Kingdom and elsewhere, Lord Hoffmann's speech in A. is less than helpful to those who will take the side of the rule of law.

Review, Revenge and Retreat

Abstract: The article deals with a wide-ranging legal and political conflict of considerable constitutional significance, the attempt by UK ministers to restrict formal challenge of asylum decisions using a variety of devices and the fierce and partly successful opposition that this engendered. The article examines the legal and administrative roots of the controversy; the anatomy of the government's generalised counter-attack or ‘revenge package’; the main juridical elements in the resulting public furore; and the character of the government's eventual retreat. In so doing, it raises, and elaborates on, a series of linked themes: the powerful dynamics of judicial review in this policy domain; the historical sense of a gathering storm in relations between ministers and judges; the practical interplay of rule of law arguments with developments in common law constitutionalism; and an expanded role for legal elements in the political process.

The Licensing Act 2003: Liberal Constraint?

Abstract: Based broadly on the White Paper' published in April 2000 and introduced into the Lords on 14 November 2002, the Licensing Bill received the Royal Assent on 10 July 20032 Originally intended to become fully operational in July 2004, this date has been put back to November 20053 The Act aims, procedurally, to update, simplify and codify alcohol and entertainment licensing law and, substantively, to allow 'the responsible majority of people more freedom and choice about how they spend their leisure time It replaces an out-of-date, mishmash of legislation with a modern accessible regime, responsive to the society it serves It balances liberalisation and deregulation with new levels of protection for local residents and communities'4 This 'radically new system'5 will affect thousands of premises used by millions of people;6 as well as countless others who may be troubled by the operation of those premises or the behaviour of their customers Central government has long sought to regulate the supply of alcohol7 This regulatory history is characterised by successive moves between the tightening and relaxation of controls Simply put, alcohol-related problems have prompted stricter controls on availability, while social and commercial pressures have produced relaxation of controls Historical examples of the former can be seen in the 1780s (led by a campaign against vice and immorality) and of the latter in the

The Role of Competition in Determining Corporate Governance Outcomes: Lessons from Australia's Corporate Governance System

Abstract: Successive waves of corporate collapse in every decade of Australia's history suggest that there is a significant unresolved corporate governance problem in Australia. Corporate collapse has been followed by reform but with little effect on the overall pattern of collapse and reform every decade. This article suggests that one of the elements which entrenches corporate governance problems in Australia is the competitive environment in which companies operate, which currently is not regulating management. It is argued that this anti-competitive environment has two significant effects. First, key shareholders have retained controlling blocks of shares as the benefits of control and the costs of unconstrained management are high in such distorted markets. Secondly, management skills have stagnated, so that bad management and regular management failure have become features of the corporate governance system.