Liverpool Law Review最新文献

Using the lenses and language of therapeutic jurisprudence, this paper will argue that the rights of pregnant workers are vulnerable in a post-Brexit climate. Whilst the sunset clause from the Retained EU Law Bill, which would have caused all retained EU law to automatically expire at the end of 2023 unless expressly stated otherwise by Ministers, was lifted, the original drafts of the Bill made clear the government’s lack of respect for and interest in protecting workers’ rights (amongst others). Furthermore, despite the abandonment of the sunset, the now legislated Retained EU Law (Revocation and Reform) Act 2023, aiming to deal with all laws that were once of European origin, still gives Ministers wide powers with limited input from Parliament to change EU derived legislation and replace with UK provision. Using an example from employment law, specifically, pregnant workers, this paper will show that the Act is a therapeutic jurisprudence unfriendly bottle as it has the potential to violate positive physical, social, and psychological outcomes. Recognising that these laws are currently vulnerable, we urge the government to keep intact (and potentially enhance) the laws protecting pregnant workers.

This article critically analyses the legal provisions on rape by deception in India. It begins by examining the strength of jurisprudence established by the courts in India for criminalising deceptive sex using doctrinal and theoretical methodologies. The article would then engage in an analysis of appellate judicial decisions in India on the said law. Thereafter, the article engages in a critical analysis of jurisprudence of the law on deceptive sex in the English jurisdiction in order to draw valuable lessons for the Indian jurisdiction. Then, the article would attempt to formulate a test for criminalising deceptive sex. Finally, the article will conclude by emphasising on the need to enact an offence independent of the existing rape law in India, that criminalises procuring sexual relations using deceptive means, based on the principle of fair labelling.

The advent of digital economy, more particularly platform markets has increased the role of ‘data’ massively. Data is the central fuel around which business strategies are made coupled with associated algorithms to increase the conversion rates. It is true that since today’s markets are data-driven in nature, dominant undertakings having access to data may end up prohibiting competitors to scale up their networks by exhibiting some explicit or implicit exclusionary conduct against them. Moreover, platform economies exhibit certain distinct characteristics such as network effects, feedback loops, economies of scope and scale and switching costs which in reality end up facilitating ostracization of small or new players. Various antitrust cases against big tech giants such as Google, Microsoft etc. in the recent past have brought forth the reality of such exclusionary conduct. Considering the fact that data is not only needed but is essential for today’s digital businesses, the question arises if sharing of data with market players in certain situations must be ensured. From the lens of antitrust, the central issue is whether data should be considered as an ‘essential facility’ and under what circumstances. Essential facilities doctrine is inspired by the firms’ duty to share which initially was applicable for infrastructural facilities such as phone lines and bridges, but considering that firms may refuse to share data impeding innovation in today’s era, the author argues that the said doctrine, with some qualifications, must be revisited to grant open access to data.

In response to extreme conditions, government endowed with extraordinary powers in the form of a state of exception, released from the norms of a rule of law legal order, has been accepted as a modern political institution with an essential role in safeguarding democracy. It is only then, that a democratic government may achieve effective measures necessary to best address the extremities unfolding. The lack of public law theory legitimizing such an institution, alongside the heavy reliance on the medieval principle necessitas legem non habet as the institution’s theoretic premise, prompt contemporary theorist Giorgio Agamben to question the role of the state of exception within modern democracy. This paper will first present how Agamben grounds the state of exception to the concept of necessity, tracing the theory of necessity to its apparent European origin, in the writings of Gratian and Thomas Aquinas. Then, this paper will focus on divergent interpretations of necessity drawn from the halls of the Swiss Federal Palace, whilst discussing the fate of recent state of exceptions. These divergent interpretations of necessity, namely by Ernest Paul Graber and Robert Grimm, both historic members of the Swiss Federal Assembly, indicate how necessity may be interpreted in different ways. Finally, this paper will question the extent to which this parallel relationship, between the state of exception and the concept of necessity, may undermine a democratic rule of law legal order.