Showing papers in "Modern Law Review in 2010"

The Challenges of Ambient Law and Legal Protection in the Profiling Era

Abstract: Ambient Intelligence is a vision of a future in which autonomic smart environments take an unprecedented number of decisions both for the private and the public good. It involves a shift to automated pattern recognition, a new paradigm in the construction of knowledge. This will fundamentally affect our lives, increasing specific types of errors, loss of autonomy and privacy, unfair discrimination and stigmatisation, and an absence of due process. Current law's articulation in the technology of the printed script is inadequate in the face of the new type of knowledge generation. A possible solution is to articulate legal protections within the socio-technical infrastructure. In particular, both privacy-enhancing and transparency-enhancing technologies must be developed that embed legal rules in ambient technologies themselves. This vision of ‘Ambient Law’ requires a novel approach to law making which addresses the challenges of technology, legitimacy, and political-legal theory. Only a constructive and collaborative effort to migrate law from books to other technologies can ensure that Ambient Law becomes reality, safeguarding the fundamental values underlying privacy, identity, and democracy in tomorrow's ambient intelligent world.

The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form

Abstract: The new parenthood provisions set out in Part 2 of the Human Fertilisation and Embryology Act 2008 have been attacked as dangerous and radical, offering a ‘lego-kit model of family life’ and a ‘magical mystery tour’ in how legal fatherhood is to be determined In this paper, we explain what is innovative about these new provisions but also explore what they owe to deep-rooted traditional assumptions about the family Relying both on published documentation relating to this reform process and a small number of key actor interviews, we trace the imprint of what fineman has described as the ‘sexual family’ model on the provisions We conclude that the way that parenthood is framed within the legislation relies on a number of important normative assumptions which received very little scrutiny in this process We also highlight a number of tensions within this framing which, we suggest, may create future problems for judicial determination

The Anatomy of Civic Integration

Abstract: Recent legislation on migration and citizenship in Europe and the EU framework on integration require migrants to meet integration requirements in order to enter, reside, reunite with their families and naturalise in the host country. Mandatory language course attendance and examination tests are viewed as means of enhancing integration, which is now framed as a ‘two way’ process or a contractual agreement between migrants and the host society. Despite the deployment of the notion of a contract, integration is, in reality, a one way process aimed at procuring conformity, discipline and migration control. Civic integration rests on an artificial homogenisation and displays the same elements of paternalism and ethnocentricity that characterised past initiatives. The civic integration paradigm is a crucial feature of a renewed, albeit old-fashioned, nationpolitics used by political elites to provide answers to a wide range of issues and to elicit support for a controlling state in the first decade of the 21st century.

Eliminating Poverty? ‘Financial Inclusion’, Access to Land, and Gender Equality in International Development

Abstract: The UK White Paper on International Development published in 2009 explicitly links access to financial services with poverty reduction. In doing so, it echoes the policies the World Bank set out in its 2008 Policy Research Report on Finance. This paper offers a detailed analysis of these development policies and connects the current plans for the expansion of financial sectors in the developing world with policies that promote the acquisition of formal land title. The paper argues that as asset-backed lending expands, commercial banks will come to play an increasingly important role in third world economies. In light of this, it reviews important first-hand accounts of the difficulties of drafting legislation to protect women's access to land in the face of opposition from commercial lenders, using Tanzania and Uganda as illustrative examples. The paper assesses the implications of expanding access to credit for gender equality and concludes that it is difficult to reconcile the promotion of financial inclusion with the aim of international development to end poverty.

A‐Legality: Postnationalism and the Question of Legal Boundaries

Abstract: This paper critically examines the prevailing assumption that legal boundaries are becoming irrelevant in postnationalism. While the boundaries of the nation-state are forfeiting some of their hold on human behaviour, postnational legal orders are simply not legal orders unless they can in some way draw the spatial, temporal, material and subjective boundaries that make it possible to qualify human behaviour as legal or illegal. This implies that reflexively constituted legal orders – whether national or postnational – must be presented as legal unities. To the extent that boundaries are the necessary condition of national and postnational legal orders, and therewith of legal unity, they also spawn the possibility of political plurality, manifested in behaviour that resists the very distinction between legality and illegality, as drawn by an order of positive law: a-legality. Rather than signalling the demise of legal boundaries, postnationalism ushers in a novel way of dealing therewith – and with a-legality.

The Stewardship Code's Achilles' Heel

Abstract: Many concerned about UK corporate governance have urged those who own equity in listed companies to forsake a traditional bias in favour of passivity and act as responsible, engaged ‘owners’. The recent financial crisis has given added impetus to such calls, with the notion of ‘stewardship’ taking centre stage and resulting in July 2010 with the launch of a Stewardship Code targeting UK-based institutional investors. This paper summarises the Stewardship Code initiative and argues that, primarily due to sustained fragmentation of share ownership occurring over the past 20 years, the Code is unlikely to foster substantially greater shareholder involvement in UK corporate governance.

Harmonisation by Example: European Laws against Unfair Commercial Practices

Abstract: This examination of the implementation of the European Union's Directive on Unfair Commercial Practices in the United Kingdom by the Consumer Protection from Unfair Trading Regulations 2008 assesses the likely impact on the national law governing the marketing practices of rogue traders, including its ambition to simplify and extend legal protection, and the likely success of the Directive in achieving the harmonisation of the laws and practices regulating marketing in Europe. In particular, the discussion evaluates the regulatory strategy of the Directive in its attempt to secure uniform laws through the combination of principles, rules, and concrete examples of prohibited practices. The paper also investigates the likely impact of the Regulations on the private law of contract and tort and the possibilities for improvements in a consumer's personal right of redress.

Gov 2.0: Towards a User Generated State?

Abstract: New elements associated with Web 2.0 relating to interactivity and end-user focus have combined with the availability of new levels of information to encourage the development of what may be termed a Gov 2.0 approach. This, in combination with recent initiatives in the modernising government programme, has emphasised new levels of public participation and engagement with government as well as a re-engineering of public services to make them more responsive to their end users. Adopting a governmentality perspective, it is argued that this involves a wider process of governing through constructing and reconstructing ideas of the public, community and individual citizen-consumers who take on a role in their own governance. It is argued that this fundamental re-working of the nature of what is public represents a constitutional change that is perhaps more significant than the constitutional reform programme directed to formal government which attracts more attention.

Parallel Proceedings in Investor‐State Treaty Arbitration: Responses for Treaty‐Drafters, Arbitrators and Parties

Abstract: Parallel investment treaty arbitrations present a demonstrated risk of inconsistent awards. This article examines several ameliorative responses to parallel investment treaty proceedings, executable by treaty-drafters, arbitrators and parties themselves. The unique jurisdiction mechanics and applicable law in investment treaty disputes frames the responses available. Despite the unique context within which parallel investment arbitrations occur, the challenges they pose to party interests, to principles including legal fairness and to the effective pursuit of dispute resolution closely resemble those posed by parallel proceedings in other domestic and international legal fora.

Forced Marriage as a Harm in Domestic and International Law

Abstract: This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.

CASES: Special Advocates, Control Orders and the Right to a Fair Trial

Abstract: In Secretary of State for the Home Department v AF (No 3), the House of Lords decided that Article 6 ECHR requires a ‘core irreducible minimum’ of procedural fairness such that ‘the controlled person must be given sufficient information about the allegations against him to give effective instructions to the Special Advocate’. This case-note will discuss the challenges facing Special Advocates in control order proceedings and the impact AF may have on the measure of procedural fairness owed to individuals in closed proceedings. It will also address the judicial use of sections 2 and 3 of the Human Rights Act 1998 in arriving at the outcome in AF.

The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law

Abstract: Islamic Law is not now and cannot be the state law of any state, whether Muslims are the majority or minority of the population. This view does not dispute the religious authority of Islamic Law for Muslims, which exists only outside the framework of the state. Still, some principles of Islamic Law should be relevant to the public discourse, provided the argument is made in terms of what the author calls 'civic reason' and not simply by assertions of religious conviction. While the two are different types of normative systems, each based on its own sources of authority and legitimacy, there are possibilities of compatibility and mutual influence between Islamic Law and state law as complementary normative systems, without requiring either to conform to the nature and role of the other. This lecture examines the requirements, scope and dynamics of this dialectic relationship, whether Muslims are majority or minority.

How to Make Bad Law: Lessons from Cyberspace

Abstract: There is a clear trend for law and regulation, particularly in cyberspace, to become increasingly precisely specified. The perceived benefit of this approach, increased certainty as to compliance, may be illusory. Over-complex laws have serious disadvantages, particularly a greatly weakened normative effect, and problems of contradiction and too-frequent amendment. The combined effect of these disadvantages can be to produce a ‘bad’ law system, assessed in terms of Fuller's internal morality of law. It may also result in a law-system which substantially fails to achieve its intended aims. This article proposes that these defects can be cured by abandoning the search for precision and substituting a method of lawmaking which requires the law's subjects to make their own qualitative assessments of whether they are meeting the obligations imposed on them. This will make the law more easily understandable by those to whom it applies, and will also increase the normative effect of cyberspace law.

Joint Criminal Enterprise

Abstract: The doctrine of joint criminal enterprise is in disarray. Despite repeated judicial scrutiny at the highest level, the doctrine's scope, proper doctrinal basis and function in relation to other modes of complicity remain uncertain. This article examines the doctrine's elements and underlying principles. It argues that while joint criminal enterprise is largely used to make individuals liable for offences committed by their associates in excess of the common criminal purpose, its proper function is to police the limits of associate liability and thus to exculpate rather than inculpate. The doctrine governs not only instances of accessorial liability; it also applies where the parties involved are joint principal offenders. As this puts into question the prevalent view that joint criminal enterprise is a form of secondary participation that results in accessorial liability, the article concludes that it is best seen as a doctrine sui generis.

What Conversation? Free Speech and Defamation Law

Abstract: Common rationales for free speech are offered in legal writing across many countries, even though their laws regulating speech differ markedly. This article suggests another way of thinking about speech, based on particular qualities of speech which help to explain why public speech – or at least public speech perceived as valuable for cultural, political or other purposes – is frequently thought of as a conversation. That often appears as the ideal, but a conversational conception can limit what is seen to be at stake in the control of speech. Instead of imagining public speech as open exchange that leads to agreement, here a slightly different vision is offered based more on the articulation of incommensurable world views and dissent. Implications of such an approach are considered for scholarly understanding, particularly of defamation law – an area of law commonly seen as important for the range and style of public speech.

Between law and language : when constitutionalism goes plural in a globalising world

Abstract: Riding the wave of globalisation, scholars and practitioners envision global governance as a legalised world order. This international rule of law movement is centred on the idea of global constitutionalism. However, the constitutional view of global governance raises fundamental questions pertaining to the nature of international law, the culture of constitutional orders, and the future of global governance: What is the added value for the international legal system to be viewed in constitutional terms? How would comprehensiveness characteristic of traditional constitutional orders figure in an increasingly fragmented world order? Does the new era of constitutionalism herald a paradigm shift in thinking constitutionalism? Ruling the World? Constitutionalism, International Law, and Global Governance, edited by Jeffrey L. Dunoff and Joel P. Trachtman, attempts to illuminate the idea of global constitutionalism. Engaging with the contributors to the collection, this article aims to achieve two goals. In addition to providing a typology of global constitutionalism to help discern the distinct locales where global constitutionalism emerges and dissect its plural meanings, this article argues that global constitutionalism sits at the crossroads of law and language. The ambiguity between legal nomos and narrative language lies at the heart of the current debates surrounding global constitutionalism.

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

Abstract: The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self-regulatory commons councils This article examines the ‘sustainable’ management of common land in historical and contemporary perspective It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post-institutional scholarship on common pool resource management It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article

Copyright and Parody: Taking Backward the Gowers Review

Abstract: In 2006 the Gowers Review of Intellectual Property made a series of recommendations for reforming the intellectual property regime to better serve the interests of both consumers and industry Among the proposed recommendations was that an exception for parody be introduced within the Copyright Designs and Patents Act 1988 In January 2008 the Intellectual Property Office (the IPO) launched the first part of a two-stage consultation process on exceptions to copyright As part of that consultation process, the IPO proposed a ‘fair dealing style exception’ for parody, and sought views on whether a new exception should be introduced as well as what form it might take In December 2009 the IPO launched the second stage of this consultation process The second consultation document rejected the case for a new parody exception This article considers the place of parody within the copyright regime and the objections levelled against the introduction of an exception set out within the IPO's second consultation document It invites the IPO to reconsider its decision not to recommend the introduction of a specific exception for parody within the UK

Top-up payments for expensive cancer drugs: rationing, fairness and the NHS

Abstract: This article examines the implications for patient care, and for the future of rationing within the NHS, of the recent decision to permit NHS patients to supplement their care by paying for medicines — mainly expensive new cancer drugs — which are not available within the NHS. The starting point is the recommendations of the Richards' Report and their implementation through new guidance issued by the Department of Health and the National Institute for Health and Clinical Excellence. Practical challenges arise from the insistence upon the 'separate' delivery of self-funded medicines, and more flexible cost-effectiveness thresholds for end of life medicines may have repercussions for other patients. While undoubtedly part of the trend towards explicit rationing, top-up fees might also represent a significant step towards regarding the NHS as a core, basic service. Finally, the issue of top-up fees is located within the broader context of current cancer research priorities and persisting health inequalities

Trust, Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht

Abstract: This article considers Gunther Jakobs' controversial theory of ‘the criminal law of the enemy’ (Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than normative principles, the article traces the implications of Jakobs' central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion and preventive orders in criminal justice. It identifies the various ways in which these current alternatives to the criminal sanctioning process link with neo-liberal technologies of government by connecting Jakobs' thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta-regulatory mechanism.

Natural Intellectual Property Rights and the Public Domain

Abstract: No natural rights theory justifies strong intellectual property rights.More specifically, no theorywithin the entire domain of natural rights thinking - encompassing classical liberalism, libertarianismand left-libertarianism, in all their innumerable variants coherently supports strengtheningcurrent intellectual property rights. Despite their many important differences, all thesenatural rights theories endorse some set of members of a common family of basic ethical precepts.These commitments include non-interference, fairness, non-worsening, consistency, universalisability,prior consent, self-ownership, self-governance, and the establishment of zones of autonomy.Such commitments have clear applications pertaining to the use and ownership of createdideas. I argue that each of these commitments require intellectual property rights to be substantiallylimited in scope, strength and duration. In this way the core mechanisms of natural rightsthinking ensure a robust public domain and categorically rule out strong intellectual propertyrights. © 2010 The Author. Journal Compilation © 2010 The Modern Law Review Limited

Labour Law in a Service World

Abstract: Drawing on the genealogy of the theoretical thought about services in economic and geographical economic literature, I argue in this article that in today's Service World it is highly important to develop an integrated approach that sees both consumption and production as impacting work relationships within legal thought. The current structure of labour law, which is based on the Fordist model of employment, is centred mainly on the production side, thus creating an incongruity between labour law and services. I propose thinking about work relations through a new framework –‘the nexus of service work’– that incorporates consumerism into the legal thought of work relationships, detaching it from the Fordist model of employment to achieve a more attuned approach to today's Service World.

Property Interests in Body Parts: Yearworth v North Bristol NHS Trust

Abstract: This note analyses Yearworth v North Bristol NHS Trust, in which the Court of Appeal accepted the existence of property interests in parts or products of the human body and considered the applicability of chattel torts where interference with such interests occurs. The writer questions whether the Court's decision to extend the law of bailment in the case was necessary, or whether the law of conversion or negligence should be available as the more appropriate causes of action.

Choice, Privacy and Publicly Funded Legal Advice at Police Stations

Abstract: Section 58 of the Police and Criminal Evidence Act 1984 confers on all suspects held in police custody a right to consult a solicitor in private. The free legal advice which suspects arrested for certain minor offences can request is restricted to telephone advice from a call-centre operated by CDS Direct. It is lawful for the Legal Services Commission to restrict the delivery of legal advice in this way. Empirical research, however, reveals that there are police stations that lack the facilities for suspects to speak by telephone with legal advisers secure in the knowledge that what is said will not be overheard. It is unlawful and incompatible with the European Convention on Human Rights to expect suspects to speak by telephone to a legal adviser under such conditions.

European Arrest Warrant Cases and the Principles of Non-discrimination and EU Citizenship

Abstract: This case comment provides an analysis of the recent judgment in Wolzenburg (C-123/08), delivered on 6 October 2009 not yet reported (Grand chamber) concerning the application of the EU principles of nondiscrimination and citizenship to the European Arrest Warrant cases It also considers the impact of the Lisbon Treaty as well as the implications of the Citizenship Directive 2004/38/EC for this area of law

Disobedience to Law – Debbie Purdy's Case

Abstract: This case note examines the implications of the House of Lords decision to order the DPP to issue offence specific guidelines allowing those contemplating assisting terminally ill persons to commit suicide to know the risk they face of prosecution under section 2(1) of the Suicide Act 1961. On the assumption that these guidelines will be law, and binding upon the DPP as well as the CPS, does this represent a change in the law, or a situation in which it may be unlawful to enforce the law, or even generate a legal right of disobedience to law?

An American future? Contingency fees, claims explosions and evidence from employment tribunals

Abstract: This article looks empirically at the notion of ‘American-style’ problems with contingency fees: in particular, the purported link between contingency fees and claims explosions. It does so in the light of renewed interest in contingency fees as a vehicle for access to justice and the resolution of costs problems in the civil justice system prompted by Jackson LJ and others. The article sheds light on the considerable debate about the (de)merits of contingency fees in one of the main – and most controversial – contexts where they are permitted: employment tribunals. The evidence casts doubt on the claim that contingency fees, coupled with US-style costs rules, lead inexorably to an explosion in litigation. The article also examines the significant inequalities in access to justice experienced by claimants and considers how far contingency fees address those concerns, suggesting limits to Kritzer's portfolio theory in relation to employment cases in England and Wales.