Scholarly Works - Law
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Item Open Access Accepted version Peer-reviewed Legal Fictions in Theory and Practice(Cambridge University Press) Shmilovits, Liron; Shmilovits, Liron [0000-0003-1928-4974]Book review of 'Legal Fictions in Theory and Practice', edited by Maksymilian Del Mar and William Twining (Springer 2015)Item Open Access Accepted version Peer-reviewed The state: A sine qua non of public law? A critique of Martin Loughlin’s state-centred approach to public law(Informa UK Limited, 2019-01-02) Psarras, H; Psarras, H [0000-0003-2473-4335]Abstract: This article critically considers a state-centred approach to public law that has been epitomised in Martin Loughlin’s claim that the concept of the state is the sine qua non of public law. More precisely, the article argues against two theoretical tenets that underlie this state-centred approach. The first tenet is the consideration of state authority as absolute authority. The second tenet claims that public law has a deep distinctness from all other fields of law, which are contrasted to it by being described as constituting the realm of ordinary law. The article also challenges the ability of the aforementioned state-centred approach to fully account for the status and role of the doctrine of parliamentary sovereignty in the UK constitutional order. This challenge is discussed in light of a distinction between state sovereignty and parliamentary sovereignty.Item Open Access Accepted version Peer-reviewed Agents and Organisations: Attribution Rules in Unjust Enrichment Claims(Marinex Press, 2018-04-13) Watterson, SWMuch of our commercial activity is conducted via agents. This is true of natural persons, but also of organisations, whether unincorporated or corporate entities. “Attribution” questions are therefore pervasive. Despite this, over 50 years since the publication of the first edition of Goff and Jones, there is virtually no learning on the attribution rules applicable within the law of unjust enrichment. This article makes a tentative attempt to set an agenda for future debate. It proceeds in two major parts. It begins with a bird’s-eye view of the landscape—highlighting a range of concerns that might legitimately shape the law’s approach to attribution in the context of organisational claims. Thereafter, it takes a closer look at a small but important part of that territory—the establishment of organisational claims in unjust enrichment based on the ground of mistake.Item Open Access Accepted version Peer-reviewed The Law-Technology Cycle and the Future of Work(FrancoAngeli, 2018-07) Deakin, SF; Markou, Christopher; Deakin, Simon [0000-0002-1725-5216]Features of the ‘fourth industrial revolution’, such as platforms, AI and machine learning, pose challenges for the application of regulatory rules, in the area of labour law as elsewhere. However, today’s digital technologies have their origins in earlier phases of industrialisation, and do not, in themselves, mark a step change in the evolution of capitalism, which was, and is, characterised by successive waves of creative destruction. The law does not simply respond to technological change; it also facilitates and mediates it. Digitalisation, by permitting the appropriation of collective knowledge, has the capacity to undermine existing forms of regulation, while creating the space for new ones. It may erode the position of some professions while enabling others, complementary to new technologies, to emerge. It is unlikely to bring about the redundancy of forms of labour law regulation centred on the employment relationship. We appear to reaching a point in the law-technology cycle where push-back against regulatory arbitrage can be expected.Item Open Access Accepted version Peer-reviewed The economic significance of laws relating to employment protection and different forms of employment: Analysis of a panel of 117 countries, 1990–2013(Wiley, 2019) Adams, Z; Bishop, L; Deakin, S; Fenwick, C; Martinsson Garzelli, S; Rusconi, G; Deakin, Simon [0000-0002-1725-5216]AbstractThe authors use time series econometric analysis applying non‐stationary panel data methods to estimate the relationships between employment protection legislation and legal protection of different forms of employment (part‐time, fixed‐term and agency work), and economic outcomes, with a data set based on the Centre for Business Research Labour Regulation Index (CBR–LRI), covering 117 countries from 1970 to 2013. Findings suggest that these laws have become significantly more protective over time and that strengthening worker protection is associated with an increase in labour's share of national income, rising labour force participation, rising employment, and falling unemployment, although the observed magnitudes are small when set against wider economic trends.Item Open Access Accepted version Peer-reviewed Regulatory alignment and divergence after Brexit(Informa UK Limited, 2018) Armstrong, KA; Armstrong, Kenneth [0000-0001-6997-8566]The United Kingdom (UK) has launched the process by which it will terminate its membership of the European Union (EU). A key research question concerns the extent to which UK regulatory policy will align with, or diverge from, EU policy after decades of delegation to, and dependency upon EU rules and regulatory structures. While we ought to expect that UK regulatory policy will continue to align with the EU in the short-term, the scope for future divergence requires further analysis. Whether exiting the EU will lead to regulatory alignment or regulatory divergence is evaluated in light of existing literatures on Europeanisation, in general, and the EU’s external governance, in particular. It is contended that the dynamics of alignment/divergence between the UK and EU will be a function of the operation – and interaction – of different modes of governance: hierarchy, markets, coordination and networks/community. However, the study cautions against assumptions that the dynamics of UK regulatory policy post-membership are reducible solely to EU influences. More specifically it contends that the global regulatory context in which both the UK and EU are situated constitutes an important factor that will mediate EU influence over UK policy.Item Open Access Accepted version Peer-reviewed External Dimensions of the French ConstitutionBell, John; Bell, John [0000-0003-2385-129X]France lives with a tension between its internationalist and Universalist aspirations and the national preoccupations of its domestic politics. On the one hand, international treaties prevail over ordinary domestic legislation. On the other hand, constitutional control over treaties ensures that essential elements of “national sovereignty” are preserved. This concept is unclear and gives considerable scope for judicial interpretation. The treatment of foreigners by French law starts from the requirement to afford them basic minimum rights and freedoms, including the right to asylum. Constitutional rights are limited, but they are enlarged by the ordinary law, which the legislator is free to change. Basic civil liberties are well protected, but the legislator has a greater margin of appreciation in relation to social advantages and assistance justified by the constitutional principle of solidarity. Basic medical, income, and legal protection are assured, but beyond that the legislator is free to allocate benefits according to criteria related to the degree to which the foreigner is integrated into French societyItem Open Access Accepted version Peer-reviewed SOURCES OF LAW(Cambridge University Press (CUP), 2018-03) Bell, John; Bell, John [0000-0003-2385-129X]AbstractThis article aims to clarify what is meant by “a source of law” argument. A source of law argument justifies an action by showing that it has as its legal basis the best interpretation of a rule, principle or value identified in a material source of law. Such an argument is authority-based in that it appeals for its correctness to a collective decision to adopt a particular rule. The identification comes from an analysis of the practices within a specific legal community. The concept of “a rule of recognition” is not helpful since it glosses over the contestability of what is a source of law and its revisability over time. In a second part, the article illustrates the dynamics of change by reference to the status of EEC/EU law in a number of national laws and the 1966 Practice Statement on precedent in the House of Lords.Item Open Access Accepted version Peer-reviewed Replies to the Symposium Articles on LIBERALISM WITH EXCELLENCE(Oxford University Press, 2018-06-01) Kramer, MHThis article replies to seven other articles in which some major philosophers engage with my 2017 book LIBERALISM WITH EXCELLENCE.Item Open Access Accepted version Peer-reviewed The Croatia/Slovenia arbitral award of 29 June 2017: is there a common method for delimiting all maritime zones under international law?Lando, MFIn its award of 29 June 2017, the arbitral tribunal which had been requested to settle the boundary dispute between Croatia and Slovenia stated that the method for delimiting maritime zones is identical whether the boundary runs within or beyond 12 nautical miles from the coast. This statement does not seem to be entirely convincing, for a number of reasons mentioned in this note.Item Open Access Accepted version Peer-reviewed ‘Wage’, ‘Salary’ and ‘Remuneration’: A Genealogical Exploration of Juridical Terms and their Significance for the Employer’s Power to Make Deductions from Wages(Oxford University Press (OUP), 2019-02-21) Adams, ZoeAbstract The Supreme Court in Hartley v King Edwards VI College (2017) has confirmed that an employee who refuses to work in accordance with his contract forfeits his right to be paid for the duration of the breach. The decision extends to professional employees paid a periodical salary the principle established in Miles v Wakefield MDC (1987). The present article sheds new light on these decisions by situating them within a broader debate concerning the function of the wage and the proper relationship between work and payment. Drawing on insights from economic theory, and engaging in a genealogical analysis of legal concepts, the article shows how this debate has, over time, conditioned the use of concepts such as the ‘wage’, ‘the salary’ and ‘remuneration’ in legislation and case law concerning deductions. It shows that the legal concept of the ‘wage’ is closely related to the economic idea of the wage as the price of a commodity, while the legal concepts of ‘salary’ and ‘remuneration’ are more closely analogous to the economic idea of the wage as the cost of subsistence. The courts’ tendency to confuse these concepts, and to analyse the employer’s power to deduct as a right to withhold wages for non-performance of the contract, tells us much about the implicit assumptions underpinning cases, such as Miles and Hartley, and how they have shaped the path of the law.Item Open Access Accepted version Peer-reviewed The Relationship between Judicial Review & The Upper Tribunal: What Have the Courts Made of Cart?(2018-07) Bell, JRTen years have gone by since the enactment of the Tribunals, Courts and Enforcement Act (“TCEA”) which laid down the legislative framework for the most important and comprehensive reorganisation of the tribunal system which has ever taken place in the UK. It has, furthermore, been eight years since Carnwath LJ (as he was) published an article, which will surely come to be viewed as a classic, arguing that this reorganisation of the tribunals necessitated a judicial ‘rethink’ of ‘the traditional allocation’ of functions ‘as between courts and tribunals.’ Most importantly, six years have now passed since the Supreme Court decided in Cart that judicial review is not to operate in the ordinary way in relation to decisions by the Upper Tribunal (“UT”) to refuse permission to appeal, but is to be restricted by the application of the so-called ‘second-appeals criteria.’Item Open Access Accepted version Peer-reviewed Principle, Practice, and Precedent: Vindicating Justice, According to Law(Cambridge University Press, 2018) Allan, TRSLegal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin’s legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice—affirming its legitimacy under certain conditions—retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moral effects of our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.Item Open Access Study on Online Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market(Greens/EFA Group, 2017-01-01) Angelopoulos, CJ; Angelopoulos, Christina [0000-0001-6345-9466]Upon request of MEP Julia Reda, this study evaluates the provisions of the European Commission’s Proposal of 14 September 2016 for a Directive on Copyright in the Digital Single Market that are relevant to ‘information society service providers that store and provide to the public access to large amounts of works or other subject matter uploaded by their users’. It concludes that key elements of these provisions are incompatible with existing EU law, including the Charter of Fundamental Rights of the European Union. The provisions ought therefore to be withdrawn or amended. For the purposes of the latter option, the study provides a series of recommendations.Item Open Access Accepted version Peer-reviewed The Margin of Appreciation, subsidiarity and global challenges to democracy(Oxford University Press (OUP), 2018) Benvenisti, E; Benvenisti, Eyal [0000-0003-4568-9991]Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and, therefore, any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should, therefore, be secondary confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this essay is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.Item Open Access Published version Peer-reviewed United Kingdom Patent Decisions 2015(Springer Science and Business Media LLC, 2016-03) Powles, JuliaThis report highlights the main UK patent decisions from 2017, including a major Supreme Court infringement case introducing a doctrine of equivalents, the first ruling on FRAND royalty rates and injunctions, compensation for employee inventors, legal priority, patentable subject matter, and a novel, unsuccessful attempt by the State to sue a pharmaceutical company whose invalid patents delayed the entry of generics.Item Open Access Accepted version Peer-reviewed Hart and the Metaphysics and Semantics of Legal Normativity(Wiley, 2018-12) Kramer, MHA number of philosophers in recent years have maintained that H.L.A. Hart in "The Concept of Law" propounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters – the matters of reductionism and naturalism – that often lie behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like-minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics.Item Open Access Published version Peer-reviewed The Language of Administrative Law(2017-06-01) Daly, PAdministrative law has changed radically in its scope and breadth in recent decades. Old analytical frameworks have been cast aside and replaced by more open-textured concepts, such as “legality”, “rationality” and “fairness.” In demonstrating that administrative decisions are beyond the legal pale, lawyers have resort to various devices: mission statements, labels, terminological exactitude, metaphors and personification. Although language plays a useful descriptive role in administrative law, by setting out a landscape that can be comfortably viewed and usefully discussed from 20,000 feet, overreliance on these devices obfuscates the inevitably normative task judges have in judicial review cases: deciding and explaining whether intervention would be justifiable or not. Falling back on language may be a coping mechanism for judges, lawyers and academics deprived by the recent administrative law reformations of clear principles around which their work can be organized. In this paper, I demonstrate the limits of language in administrative law, with a view to understanding the role of judicial review more clearly. Descriptive language is often either useless—because it adds nothing but a conclusory label to a conclusion reached on other grounds—or downright dangerous—because it hides judicial value judgments. Administrative lawyers have to think and judges to justify themselves in normative terms. Mission statements, labels, terminological exactitude, metaphors and personification are descriptive devices better left to others.Item Open Access Accepted version Peer-reviewed EJIL Foreword: Upholding Democracy amid the Challenges of New Technology: What Role for the Law of Global Governance?(Oxford University Press (OUP), 2018-02) Benvenisti, E; Benvenisti, Eyal [0000-0003-4568-9991]The law on global governance that emerged after the Second World War was grounded in irrefutable trust in international organizations and an assumption that their subjection to legal discipline and judicial review would be unnecessary and, in fact, detrimental to their success. The law that evolved systematically insulated international organizations from internal and external scrutiny and absolved them of any inherent legal obligations – and, to a degree, continues to do so. Indeed, it was only well after the end of the Cold War that mistrust in global governance began to trickle through into the legal discourse and the realization gradually took hold that the operation of international organizations needed to be subject to the disciplining power of the law. Since the mid-1990s, scholars have sought to identify the conditions under which trust in global bodies can be regained, mainly by borrowing and adapting domestic public law precepts that emphasize accountability through communications with those affected. Today, although a ‘culture of accountability’ may have taken root, its legal tools are still shaping up and are often contested. More importantly, these communicative tools are ill-equipped to address the new modalities of governance that are based on decision-making by machines using raw data (rather than two-way exchange with stakeholders) as their input. The new information and communication technologies challenge the foundational premise of the accountability school – that ‘the more communication, the better’ – as voters-turned-users obtain their information from increasingly fragmented and privatized marketplaces of ideas that are manipulated for economic and political gain. In this article, I describe and analyse how the law has evolved to acknowledge the need for accountability, how it has designed norms for this purpose and continues in this endeavour – yet how the challenges it faces today are leaving its most fundamental assumptions open to question. I argue that, given the growing influence of public and private global governance bodies on our daily lives and the shape of our political communities, the task of the law of global governance is no longer limited to ensuring the accountability of global bodies, but is also to protect human dignity and the very viability of the democratic state.Item Open Access Accepted version Peer-reviewed The law of strangers: The form and substance of other-regarding international adjudication(University of Toronto Press, 2018-09) Shlomo Agon, Sivan; Benvenisti, Eyal; Benvenisti, Eyal [0000-0003-4568-9991]The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps toward globally affected others by (a) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies and (b) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on a close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.