Journals

Retraction

Law & Society Review - Wed, 2019-12-11 14:31
Law &Society Review, EarlyView.
Categories: Journals

Retraction

Law & Society Review - Wed, 2019-12-11 14:31
Law &Society Review, EarlyView.
Categories: Journals

Pure Altruistic Gift and the Ethics of Transplant Medicine

Journal of Bioethical Enquiry - Mon, 2019-12-09 22:00
AbstractThe article argues that altruistic giving based on anonymity, which is expected to promote social solidarity and block trade in human body parts, is conceptually defective and practically unproductive. It needs to be replaced by a more adequate notion which responds to the human practices of giving and receiving. The argument starts with identification of the main characteristics of the anonymous altruistic donation: social separation of the organ donor (or donor family) from the recipient, their mutual replaceability, non-obligatoriness of donation, and non-obligatoriness of reciprocation on the recipient ’s part. Since these characteristics are also central to typical market relations, anonymous altruistic donation not only cannot promote solidarity but may encourage proposals ...
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Freedom and Trust: A Rejoinder to Lovett and Pettit

Philosophy & Public Affairs - Sun, 2019-12-08 18:50
Philosophy &Public Affairs, EarlyView.
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Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

This paper considers ‘consent‐based’ and ‘coercion‐based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non‐violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non‐violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.

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Between the ‘Bank Screw’ and ‘Affording Assistance’. Rules, Standards, and the Bank Charter Act of 1844

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

This article explores a dilemma at the centre of the monetary order: how to counter inflation eroding the value of money and simultaneously allow bank‐created credit to meet the needs of an expanding economy. Building on recent scholarship on the history of money, the article analyses the Bank Charter Act of 1844 and the financial crisis of 1847 to reveal a response to this dilemma which continues to shape the modern context. That response relies on ex ante restrictive measures in a bid to limit the discretion of the monetary authorities and cultivate financially prudent behaviour. Yet the history of the mid‐nineteenth century exposes the challenges faced by those who enforce such rules, challenges which tie the mid‐nineteenth century to the post 2008 reforms in both the US and the Eurozone, and reveal the ongoing force of the dilemma: that simultaneous desire for both expansive credit and sound money.

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Post‐‘Brexit’ Financial Governance: Which Dispute Settlement Framework Should Be Utilised?

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

This contribution to the ongoing Brexit discussions addresses topical legal and regulatory issues in the post‐Brexit policy debate, especially the questions surrounding the important area of financial governance and dispute resolution. Specifically, a number of future UK/EU legal disputes with respect to financial services may emerge post‐Brexit. The article examines the UK's track record at the Court of Justice of the European Union, and discusses some likely future challenges. It then considers which institutional framework should be used for resolving disagreements. The article assesses the strengths and weaknesses of three potential models (the proposed Swiss/EU institutional framework; the EFTA ‘docking’ option; and the WTO system) and provides an original cross‐model evaluation. It also discusses the associated design challenges that EU and UK negotiators may encounter in the attempt to devise a post‐Brexit dispute settlement system.

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Consent, Legitimation, and Dysphoria

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad.  This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics.  Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex.  Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province.  This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs.  This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction.  Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.

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Executive Environmental Law

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.

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Ethno‐National Narratives of Human Rights: The Northern Ireland Policing Board

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

Policing in Northern Ireland has undergone one of the world's most extensive human rights reform programmes. The challenge has been whether the human rights paradigm can serve as a mutual basis for the region's sparring ethno‐national communities to deliberate over long‐contested issues of policing, accountability and justice. This article focuses on the Northern Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas that animate the Board's statutory duty to monitor policing on the basis of human rights. Marshalling qualitative data and drawing on legal anthropology, this article offers an account of the ‘social life’ of human rights and policing in the context of Northern Ireland's imperfect peace. It argues that, irrespective of legal standards, human rights oversight harbours deep sentiments and concerns, at the heart of which are communities’ own historical engagements with rights, competing legacies of the conflict and divergent understandings of contemporary policing.

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Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

Providers of customised goods and services do not directly discriminate against a customer when their refusal to fulfil an order is based on their objection to the message requested by the latter and not on any protected characteristics of the person. This is the conclusion reached by the Supreme Court of the United Kingdom when faced with a claim of direct discrimination on grounds of sexual orientation and religious beliefs or political opinions contrary to two Northern Ireland Statutory Rules against a bakery which objected to incorporating the message ‘Support Gay Marriage’ into a cake. In this case comment it is argued that the Supreme Court correctly identified the crucial distinction between a message and a person for the purposes of discrimination law. Each of the two grounds of discrimination at issue is examined and an explanation for the inapplicability of a finding of discrimination on either is offered.

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A New Chapter in the Normalisation of Closed Material Procedures

The Modern Law Review - Thu, 2019-12-05 19:22
Abstract

This note provides an analysis of the Supreme Court decision in Haralambous, which authorised the use of closed material procedures (CMPs) in proceedings surrounding search and seizure warrants issued under the Police and Criminal Evidence Act 1984 (PACE). After presenting the facts of the case and the reasoning of the Court, the note examines the decision as an instance of CMP normalisation consistent with the model of normalisation argued for by Eva Nanopoulos in a previous MLR article. The notes goes on to make the case that Haralambous may be distinguished from previous instances of CMP normalisation on account of the Supreme Court's more open acceptance of CMPs in the decision, which signals a new chapter in CMP normalisation in the UK.

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Samuel Moyn, Not Enough: Human Rights in an Unequal World, Cambridge, Massachusetts: Harvard University Press, 2018, 276 pp, hb £21.95.

The Modern Law Review - Thu, 2019-12-05 19:22
The Modern Law Review, Volume 83, Issue 1, Page 229-233, January 2020.
Categories: Journals

Regulating Gigs

The Modern Law Review - Thu, 2019-12-05 19:22
The Modern Law Review, Volume 83, Issue 1, Page 217-228, January 2020.
Categories: Journals

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