Hybrid journal (It can contain Open Access articles) ISSN (Print) 0070-1998 - ISSN (Online) 2044-8422 Published by Oxford University Press[419 journals]
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Authors:Atrey S. Pages: 1 - 34 Abstract: AbstractWhat is the relationship between ‘racism’ and ‘race discrimination’' The paper explores this question. It shows that once we look beyond racism understood colloquially as individual bigotry, to racism understood in a structural sense as embedded in the social, economic, cultural and political dimensions of the State itself, it is possible to locate racism in the practice of discrimination law, within the category of race discrimination. Yet, discrimination law frequently fails to grasp structural racism. The paper reveals how this happens and in turn shows how race discrimination can be infiltrated with a structural view of racism. The overall purpose is to establish that discrimination law fails to be relevant in the face of contemporary forms of racism in the absence of a structural view. PubDate: Mon, 11 Oct 2021 00:00:00 GMT DOI: 10.1093/clp/cuab009 Issue No:Vol. 74, No. 1 (2021)
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Authors:Ho L. Pages: 35 - 60 Abstract: AbstractThere has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability. PubDate: Tue, 01 Jun 2021 00:00:00 GMT DOI: 10.1093/clp/cuab001 Issue No:Vol. 74, No. 1 (2021)
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Authors:Hakimi M. Pages: 101 - 123 Abstract: AbstractThere is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have misdiagnosed the main threat to the jus ad bellum, or at least, they have myopically focused on and grossly overstated the seriousness of a particular kind of threat. And in doing so, they have diverted attention away from other challenges that might actually push the contemporary jus ad bellum to the breaking point—and that we might now confront. PubDate: Sun, 01 Aug 2021 00:00:00 GMT DOI: 10.1093/clp/cuab003 Issue No:Vol. 74, No. 1 (2021)
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Authors:Rabinovich-Einy O. Pages: 125 - 148 Abstract: AbstractThis article chronicles the evolution of the field of online dispute resolution from its inception in the mid-1990s to its current application in and outside the court system. While originally ODR played a modest role in the limited domain of e-commerce, over the years its application has expanded significantly, as have its form and function: from processes that have sought to replicate online equivalents to ones that reimagine the design of procedures to better fit party needs and to address the justice system’s longstanding problems. The article predicts that the future of ODR lies in increased automation, which includes artificial intelligence and various forms of structured negotiation, and, consequently, a reduced role for human third parties. This will require a rethinking of the ways in which access to justice, procedural justice and substantive justice can be realized. The key for realizing the values and goals of the justice system lies in the careful design and ongoing evaluation of online systems, activities that have themselves been transformed by technology and the availability of big data. PubDate: Mon, 13 Sep 2021 00:00:00 GMT DOI: 10.1093/clp/cuab004 Issue No:Vol. 74, No. 1 (2021)
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Authors:Orford A. Pages: 149 - 194 Abstract: AbstractThis article argues that the old international law of empires, greater spaces, and regional orders did not disappear with the creation of the United Nations. While revisionist histories of international law have complicated the claim that a Westphalian order of independent states completely replaced a world of more varied political forms in the mid-seventeenth century, international lawyers nonetheless largely accept that such a transformation did take place at some point. The state is treated as the normative political subject of international law, and any move away from the geography of statehood as the foundation of the international legal system is seen as novel, exceptional, or illegal. The narrative that the state has become the primary political subject and spatial form of international law masks the persistence of regional orders as a core feature of the contemporary legal system. This article shows that international lawyers have been engaged in justifying, making sense of, narrating, and assembling regional orders for at least the past century. It explores the rival regionalisms promoted during the inter-war period, the struggles over regional orders during the early decades of decolonization, the expansive vision of regional orders consolidated in the early post-Cold War decades by the United States and its allies, and the regional ambitions of China in the twenty-first century. It analyses how regional orders are assembled and resisted through international law, what values are proclaimed to justify different forms of regional ordering, whose interests are represented, and the relation between grand narratives and technical transactions in that legal work. The article concludes that bringing the concept of regional orders to the foreground can open up a new and timely set of questions about politics, representation, and the future of international law. PubDate: Mon, 11 Oct 2021 00:00:00 GMT DOI: 10.1093/clp/cuab005 Issue No:Vol. 74, No. 1 (2021)
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Authors:Nic Shuibhne N. Pages: 195 - 234 Abstract: AbstractThis paper investigates whether the withdrawal of the United Kingdom from the European Union changed EU law. Brexit necessarily animated the law related to and produced by Article 50 TEU. Did it also imprint on fundamental premises of EU law that will continue to shape relations between the Member States and the Union, and between the Union and the wider world' These questions are examined through the examples of the legal force of political decision-making and the legal nature of relationships with third States. At one level, it will be seen that Brexit restored the centrality of Union institutions and processes in the EU law-making that responds to exceptional situations. At the same time, however, it has distorted and/or displaced some of the vital checks and balances that would normally apply. A course correction exploiting a rounded understanding of the effectiveness of EU law and provoking coherent articulation of the legal coordinates of Union membership is urged in response. PubDate: Sat, 25 Sep 2021 00:00:00 GMT DOI: 10.1093/clp/cuab006 Issue No:Vol. 74, No. 1 (2021)
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Authors:Benjamin L. Pages: 235 - 267 Abstract: AbstractA string of corporate litigation cases in the United Kingdom highlights the role of corporate group structures in complicating efforts to impose liability on parent companies for the activities of their subsidiaries, particularly where those subsidiaries are located in the Global South. Corporate group structures serve to insulate parent companies against liability for actions of their subsidiaries. This is the case even where economic benefits accrue to parent companies, which are often incorporated in the Global North. These group structures cabin liability for environmental and climate harms within subsidiary companies through reliance on company law principles such as limited liability and separate legal personality. These company law principles allow parent companies to enjoy corporate profits from the activities of their subsidiaries but disavow liability for any environmental damage resulting from such activities. This dichotomy has obvious equity implications, which are exacerbated in the extractive industries and in the context of climate change.Negative climate impacts are and will be felt predominantly in the Global South. In addition, environmental damage removes avenues of climate adaptation for vulnerable populations. But company law principles are not impervious to these equity challenges. These principles have never been absolute and courts have consistently found exceptions to them, although those exceptions have fluctuated in effectiveness and frequency over the years. Recent decisions by the Court of Appeal and Supreme Court in the United Kingdom imposed duties on parent companies for environmental damage caused by their subsidiaries. Cases following the decision in Chandler v Cape Industries illustrate tension between company law as interpreted in the Global North, and climate and environmental justice as experienced in the Global South. Climate change forces a reconceptualization of company law, including transnational corporate liability. This paper argues that these reconsiderations are not only appropriate, but given the contested histories of many of these companies in the Global South, long overdue. PubDate: Tue, 05 Oct 2021 00:00:00 GMT DOI: 10.1093/clp/cuab007 Issue No:Vol. 74, No. 1 (2021)
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Authors:Krisch N. Pages: 269 - 297 Abstract: AbstractLaw is constantly caught between stasis and dynamism, between the production of legal certainty and the adaptation to a changing environment. The tension between both is particularly acute in international law, given the absence of legislative mechanisms on the international level and the high doctrinal thresholds for change through treaties or customary law. Despite this apparent tendency towards stasis, international law is changing frequently and rapidly in many areas, though in ways that are not well understood. This article seeks to begin an inquiry into these ways of change, starting from two vignettes of recent change processes and presenting a number of conjectures about core elements of a conceptualization of change in international law. The resulting picture reflects significant variation across different areas of international law, multiple paths of change outside traditional categories, and states in different—and not always central—roles. Much change observed in contemporary international law travels on paths and is advanced by authorities created by social actors and their practices relatively independently from doctrinal representations. This presents a challenge for doctrinal categories, and it should provoke a broader, empirical reconstruction of the social life of international law today—a far more dynamic but also less orderly life than typically assumed. PubDate: Mon, 11 Oct 2021 00:00:00 GMT DOI: 10.1093/clp/cuab008 Issue No:Vol. 74, No. 1 (2021)
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Authors:Scotford E. Pages: 299 - 327 Abstract: AbstractFor lawyers and legal scholars, legislation seems a known quantity—a relatively permanent, public expression of democratic processes in parliamentary democracies and of the rule of law. This ‘knowable’ character can however be misleading, particularly in the field of environmental law. This article examines why research into environmental legislation is challenging but critically important. A short history of UK environmental law provides salient examples of political stress and highly complex, unsettled, even unknowable, environmental legislation. Collective environmental problems demand legislative responses in shaping individual behaviours and guiding social policies—but knowing how to craft these responses and how to evaluate the resulting legislation is often uncharted legal territory. Navigating that legislative terrain is a vital task for legal scholars and practitioners, particularly to investigate the serious legal problems that can arise from its construction, including poor legibility, legal fragmentation, and concerns about compatibility with the rule of law. PubDate: Sat, 23 Oct 2021 00:00:00 GMT DOI: 10.1093/clp/cuab010 Issue No:Vol. 74, No. 1 (2021)
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Authors:Harding R. Pages: 329 - 359 Abstract: AbstractThe issue of when and how disabled people can be lawfully deprived of their liberty is a major contemporary challenge for mental capacity law. People who lack capacity to consent to treatment that deprives them of their liberty must have access to safeguards to protect their rights under Article 5 ECHR. The current Deprivation of Liberty Safeguards are widely considered to be unfit for purpose, and a replacement scheme, the ‘Liberty Protection Safeguards’ (LPS) were proposed by the Law Commission of England and Wales in 2017. These safeguards were legislated for in 2018/19 in the Mental Capacity (Amendment) Act and are expected to be implemented in 2022. At the time the reforms were being debated in Parliament, multiple stakeholders expressed serious reservations about the proposals, some going so far as to claim that they are not ‘good law’. In this paper, I evaluate to what extent the LPS is (or has the potential to be) ‘good law’, drawing on two contrasting conceptual frameworks to guide that analysis: Bingham’s (2007) sub-principles of the rule of law; and the capabilities approach developed by Sen and Nussbaum (among others). I argue that despite the technical problems with the legislation that caused such concern during its passage through parliament, if the implementation process is grounded in a strong social justice conceptual frame, the LPS has the potential to be a positive legal reform. PubDate: Wed, 29 Dec 2021 00:00:00 GMT DOI: 10.1093/clp/cuab011 Issue No:Vol. 74, No. 1 (2021)
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Authors:Rubio-Marín R. Pages: 361 - 402 Abstract: AbstractThis article is an attempt to explain the forms in which constitutionalism has facilitated or hindered women’s equal citizenship throughout history and with a particular emphasis on Western constitutionalism, especially the US and continental Europe, but also with an eye on new constitutionalism and its innovations. In so doing, the article takes into account not only women’s access to the rights first conquered by men but also the extent to which the forms of participation traditionally assigned to women—neither in the state nor in the marketplace, but rather in the household and in the family—have become recognized as forms of citizenship contribution. In other words, it tells the story of the relevance of constitutionalism for women’s citizenship as defined in male terms (that is to say, with a focus on equal rights and participation in the so-called public sphere), as well as for women’s ability to redefine the very understanding of citizenship to include participation in social reproduction, in and through the so-called domestic sphere. PubDate: Tue, 09 Nov 2021 00:00:00 GMT DOI: 10.1093/clp/cuab013 Issue No:Vol. 74, No. 1 (2021)
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Authors:Lunney M. Pages: 403 - 403 Abstract: Current Legal Problems, 2021, https://doi.org/10.1093/clp/cuab002 PubDate: Fri, 03 Dec 2021 00:00:00 GMT DOI: 10.1093/clp/cuab012 Issue No:Vol. 74, No. 1 (2021)
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Authors:Benjamin L. Pages: 405 - 405 Abstract: Current Legal Problems, Vol. 74 (2021), pp. 235–267 https://doi.org/10.1093/clp/cuab007 PubDate: Sun, 01 Aug 2021 00:00:00 GMT DOI: 10.1093/clp/cuab015 Issue No:Vol. 74, No. 1 (2021)
Hybrid journal (It can contain Open Access articles)
[419 journals]
