Journals

From Planning to Prototypes: New Ways of Seeing Like a State

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

All states have pursued what James C. Scott characterised as modernist projects of legibility and simplification: maps, censuses, national economic plans and related legislative programs. Many, including Scott, have pointed out blindspots embedded in these tools. As such criticism persists, however, the synoptic style of law and development has changed. Governments, NGOs and international agencies now aspire to draw upon immense repositories of digital data. Modes of analysis too have changed. No longer is legibility a precondition for action. Law‐ and policy‐making are being informed by business development methods that prefer prototypes over plans. States and international institutions continue to plan, but also seek insight from the release of minimally viable policy mock‐ups. Familiar critiques of law and development work, and arguments for its reform, have limited purchase on these practices, Scott's included. Effective critical intervention in this field today requires careful attention to be paid to these emergent patterns of practice.

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Religious Freedom and Religious Antidiscrimination

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

This article develops a theoretical framework that prompts a new understanding of the role of religious freedom and religious antidiscrimination in human rights law. Proceeding from the prevailing theoretical and doctrinal uncertainty over the relationship between the two rights, which are currently seen as either synonymous or as distinct and in competition, the article develops an account of the moral right to ethical independence and argues that religious freedom and religious antidiscrimination share their main normative basis on that moral right. However, religious freedom and religious antidiscrimination have different emphasis, and both are essential to secure fair background circumstances for the pursuit of different individual plans of life. The proposed framework illuminates the relationship of individual and collective aspects of religious freedom with discrimination law. The analysis has crucial implications for human rights interpretation in cases involving state interference with liberty, in relation to religion or belief, and more broadly.

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The Pension Trust: Fit For Purpose?

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. It facilitates the operation of private law modalities, such as innovation and competition. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability mechanisms within trust law undermine the powerful normative force exerted by the language in which trust doctrine is so often couched. That said, the regulatory regimes buttress, and rely upon, the protections offered by trust law. The result is a compelling illustration of the nuanced way in which private law is employed in a modern regulatory state.

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Improving Housing Conditions in the Private and Social Rented Sectors: The Homes (Fit for Human Habitation) Act 2018 ‐ Fit for Habitation but Fit for Purpose?

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

The Homes (Fit for Human Habitation) Act 2018 became law in December 2018 and entered into force on 20 March 2019. This article examines the key provisions of this significant piece of housing legislation which has the potential to transform the lives of those renting homes in both the private and social sectors in England. The 2018 Act, through amendment to the Landlord and Tenant Act 1985, introduces a new obligation on landlords to ensure their residential properties are fit for human habitation and, for the first time in this jurisdiction, endows tenants with new civil rights to directly enforce this implied covenant against failing landlords. This article identifies the key deficiencies within the current legal framework around fitness for human habitation and explores how far the 2018 Act meets these challenges; set against the febrile backdrop of an acute housing crisis and the Grenfell Tower tragedy.

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Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings‐Bass to rescission in equity. The article argues that this advantage is normatively unjustified, and recommends a uniform legal framework to govern the avoidance of voluntary dispositions resulting from mistakes or inadequate decision‐making, whether or not a trust was involved. Under this framework, dispositions resulting from laypersons’ mistakes and inadequate decision‐making should be avoided, subject to appropriate defences, whenever that causative nexus is present, while dispositions resulting from professionals’ mistakes and inadequate decision‐making should only be avoided where the mistake or deliberative flaw was so serious as to render the transferee's retention of property transferred unjust.

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Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

The Court of Justice of the European Union's judgement in Levola Hengelo BV v Smilde Foods BV ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note describes the issues in the primary dispute concerning the claim of copyright in the taste of cheese, the reasoning of Advocate General M. Wathelet who advised the CJEU, and the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU's judgement, which is surprisingly brief, considering the gravity of the question, which probes the boundaries of the copyright work under EU law. The note explains the many opportunities that were overlooked by the court in its brief judgement, attempts to unravel some of the more ambiguous aspects of the judgement, and assesses the merit and utility of the court's primary pronouncement that a copyright work must be objectively identifiable.

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Equal Civil Partnerships, Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

The Modern Law Review - Fri, 2019-08-16 15:32
Abstract

In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.

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The Non‐existence of Markets in the Economic Analysis of Law à la Mode

The Modern Law Review - Fri, 2019-08-16 15:32
The Modern Law Review, Volume 82, Issue 5, Page 951-965, September 2019.
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Subsidizing PGD: The Moral Case for Funding Genetic Selection

Journal of Bioethical Enquiry - Wed, 2019-08-14 22:00
AbstractPreimplantation genetic diagnosis (PGD) allows the detection of genetic abnormalities in embryos produced through in vitro fertilization (IVF). Current funding models in Australia provide governmental subsidies for couples undergoing IVF, but do not extend to PGD. There are strong reasons for publicly funding PGD that follow from the moral principles of autonomy, beneficence and justice for both parents and children. We examine the objections to our proposal, specifically concerns regarding designer babies and the harm of disabled individuals, and show why these are substantially outweighed by arguments for subsidizing PGD. We argue that an acceptance of PGD is aligned with present attitudes towards procreative decision making and IVF use, and that it should therefore receive gover...
Categories: Journals

Civic Friendship, Public Reason

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 72-103, Winter 2019.
Categories: Journals

Wrongful Observation

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 104-137, Winter 2019.
Categories: Journals

Just Europe

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 5-36, Winter 2019.
Categories: Journals

The Power of Excuses

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 37-71, Winter 2019.
Categories: Journals

Notes on the Contributors

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 4-4, Winter 2019.
Categories: Journals

Issue Information

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 1-3, Winter 2019.
Categories: Journals

Wrongful Observation

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 104-137, Winter 2019.
Categories: Journals

Just Europe

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 5-36, Winter 2019.
Categories: Journals

The Power of Excuses

Philosophy & Public Affairs - Wed, 2019-08-14 19:34
Philosophy &Public Affairs, Volume 47, Issue 1, Page 37-71, Winter 2019.
Categories: Journals

Pages

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