Trade mark law and cognitive psychology are both concerned with establishing the mental states of consumers: in theory then we might expect these disciplines to have a close relationship, and to be engaged in ongoing dialogue. This is not the case and on further examination, real difficulties emerge, especially arising from trade mark law’s registration system. It is not simple to reconcile the goals, and the philosophical foundations, of these two disciplines. This article makes the argument that insights from psychology can play an important role in trade mark law, but for that to happen, we need to move away from the idea that insights from psychology are only useful to decide particular disputes before the courts. A better approach is to test trade mark law at a higher level of abstraction: to test trade mark law s assumptions about how consumers process information. Starting at this level could inform trade mark law, without disrupting the registration system.
{"title":"Towards a New Relationship Between Trade Mark Law and Psychology","authors":"R. Burrell, Kimberlee Weatherall","doi":"10.1093/CLP/CUY001","DOIUrl":"https://doi.org/10.1093/CLP/CUY001","url":null,"abstract":"Trade mark law and cognitive psychology are both concerned with establishing the mental states of consumers: in theory then we might expect these disciplines to have a close relationship, and to be engaged in ongoing dialogue. This is not the case and on further examination, real difficulties emerge, especially arising from trade mark law’s registration system. It is not simple to reconcile the goals, and the philosophical foundations, of these two disciplines. This article makes the argument that insights from psychology can play an important role in trade mark law, but for that to happen, we need to move away from the idea that insights from psychology are only useful to decide particular disputes before the courts. A better approach is to test trade mark law at a higher level of abstraction: to test trade mark law s assumptions about how consumers process information. Starting at this level could inform trade mark law, without disrupting the registration system.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"71 1","pages":"87-118"},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48218221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Who makes international law? That is the subject of this article, with a focus on the particular case of the law of armed conflict (international humanitarian law). Is it states and only states? Or are other actors also involved? What is the role of international courts and tribunals? And where does the work of the International Committee of the Red Cross fit? Drawing on ideas of communities of practice and interactional international law, the article argues that it is the community of international humanitarian lawyers that makes international humanitarian law through a process of dialogic interaction. This community includes states, international courts and tribunals, the International Committee of the Red Cross, academics, and others. Through interaction in the selection of issues, during the drafting of outputs, and following the publication of the finished product, the community makes and shapes international humanitarian law. States thus play a crucial role in law-making, particularly insofar as the conclusion of treaties and the formation of customary international law are concerned. However, states have tended not to react to the interpretation, application and identification of the law by other members of the community. This relative silence on the part of states has had a number of consequences. Silence has been taken as acquiescence. The response of other members of the community to the publication of an output has taken on a greater significance. And states have been side-lined. The Article concludes by discussing ways in which states can re-engage in the making and shaping of international humanitarian law.
{"title":"Making and Shaping the Law of Armed Conflict","authors":"S. Sivakumaran","doi":"10.2139/SSRN.3084238","DOIUrl":"https://doi.org/10.2139/SSRN.3084238","url":null,"abstract":"Who makes international law? That is the subject of this article, with a focus on the particular case of the law of armed conflict (international humanitarian law). Is it states and only states? Or are other actors also involved? What is the role of international courts and tribunals? And where does the work of the International Committee of the Red Cross fit? Drawing on ideas of communities of practice and interactional international law, the article argues that it is the community of international humanitarian lawyers that makes international humanitarian law through a process of dialogic interaction. This community includes states, international courts and tribunals, the International Committee of the Red Cross, academics, and others. Through interaction in the selection of issues, during the drafting of outputs, and following the publication of the finished product, the community makes and shapes international humanitarian law. States thus play a crucial role in law-making, particularly insofar as the conclusion of treaties and the formation of customary international law are concerned. However, states have tended not to react to the interpretation, application and identification of the law by other members of the community. This relative silence on the part of states has had a number of consequences. Silence has been taken as acquiescence. The response of other members of the community to the publication of an output has taken on a greater significance. And states have been side-lined. The Article concludes by discussing ways in which states can re-engage in the making and shaping of international humanitarian law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"71 1","pages":"119-160"},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45967225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid? A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here. The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.
{"title":"Humanity in Tort: Does Personality Affect Personal Injury Litigation?","authors":"R. Lewis","doi":"10.1093/CLP/CUY002","DOIUrl":"https://doi.org/10.1093/CLP/CUY002","url":null,"abstract":"This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid? \u0000A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here. \u0000The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"71 1","pages":"245-278"},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47855251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Thirty Years of Ultra Vires: Local Authorities, National Courts and the Global Derivatives Markets","authors":"J. Braithwaite","doi":"10.1093/CLP/CUY005","DOIUrl":"https://doi.org/10.1093/CLP/CUY005","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"71 1","pages":"369-402"},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42094484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Outside law we often judge an action to be wrongful in virtue of being disproportionate. This paper aims to develop a moral account of proportionality as it figures outside law, with a view to shed light on legal doctrines that employ proportionality reasoning. The understanding of proportionality as a balancing act between harms and goods, popular amongst lawyers, lacks a moral dimension capable of justifying why disproportionate action is wrong. The paper defends instead a reason-based approach. It argues that the moral dimension of proportionality lies in the idea of obligations of role: an action is proportionate when it fits the reasons that pertain to the normative role of the acting agent, properly understood. Proportionality as fittingness captures better not only the use of proportionality outside law but also judicial outcomes under proportionality reasoning.
{"title":"Proportionality as Fittingness: The Moral Dimension of Proportionality","authors":"G. Letsas","doi":"10.1093/CLP/CUY011","DOIUrl":"https://doi.org/10.1093/CLP/CUY011","url":null,"abstract":"Outside law we often judge an action to be wrongful in virtue of being disproportionate. This paper aims to develop a moral account of proportionality as it figures outside law, with a view to shed light on legal doctrines that employ proportionality reasoning. The understanding of proportionality as a balancing act between harms and goods, popular amongst lawyers, lacks a moral dimension capable of justifying why disproportionate action is wrong. The paper defends instead a reason-based approach. It argues that the moral dimension of proportionality lies in the idea of obligations of role: an action is proportionate when it fits the reasons that pertain to the normative role of the acting agent, properly understood. Proportionality as fittingness captures better not only the use of proportionality outside law but also judicial outcomes under proportionality reasoning.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"71 1","pages":"53-86"},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUY011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41503183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Making and Shaping the Law of Armed Conflict","authors":"Sandesh Sivakumaran","doi":"10.1093/clp/cuy004","DOIUrl":"https://doi.org/10.1093/clp/cuy004","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"22 1","pages":"119-160"},"PeriodicalIF":1.2,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138541936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The regulation of corporate behaviour has persisted in spite of peaks of neo-liberalism in many developed jurisdictions of the world, including the UK. This paradox is described as ‘regulatory capitalism’ by a number of scholars. Of particular note is the proliferation of corporate regulation to govern ‘socially responsible’ behaviour in recent legislative reforms in the EU and UK. In seeking to answer the broader question of whether corporate regulation indeed effectively governs and moderates corporate behaviour, this paper focuses on the nature of corporate regulation. Although different pieces of corporate regulation purport to achieve different objectives and impose different types of obligations, this paper offers an institutional account of corporate regulation, specifically in relation to the UK’s regulatory capitalism, which is in the mould of a liberal market economy. We argue that the nature and effectiveness of corporate regulation crucially depends on the nature of ‘regulatory capitalism’ in the type of economic order under discussion. Regulatory capitalism in the UK is characterised by three key tenets which reflect the spirit of the liberal market economy embraced here. Over time, gaps have been revealed in the achievements of these tenets of regulatory capitalism, particularly in relation to social expectations of the regulation of corporate behaviour. In the aftermath of the global financial crisis 2007-9, we observe increasing legalisation in the EU and UK of CSR issues, framed in ‘new governance’ regulatory techniques. They hold promise for change in corporate conduct through deeper forms of corporate engagement and accountability but they appear at the same time relatively undemanding and susceptible to cosmetic compliance. By discussing key examples in new corporate regulation reforms in the EU and UK, we seek to understand why recent corporate regulation reforms seem to offer mixed and in some cases, relatively limited achievements in governing corporate behaviour. We argue that the institutional account of corporate regulation continues to be able to explain regulatory weaknesses and limited achievements, in spite of the deployment of ‘new governance’ regulatory techniques. This is because ‘new governance’ regulatory techniques are implemented within the ethos of regulatory capitalism which limits their potential to introduce paradigm shifts. However the limitations of these regulatory reforms highlight more sharply the institutional shifts that are needed in order to connect the efficacy of corporate regulation with meeting social expectations.
{"title":"An Institutional Theory of Corporate Regulation","authors":"Iris H-Y Chiu","doi":"10.1093/clp/cuy006","DOIUrl":"https://doi.org/10.1093/clp/cuy006","url":null,"abstract":"The regulation of corporate behaviour has persisted in spite of peaks of neo-liberalism in many developed jurisdictions of the world, including the UK. This paradox is described as ‘regulatory capitalism’ by a number of scholars. Of particular note is the proliferation of corporate regulation to govern ‘socially responsible’ behaviour in recent legislative reforms in the EU and UK. In seeking to answer the broader question of whether corporate regulation indeed effectively governs and moderates corporate behaviour, this paper focuses on the nature of corporate regulation. Although different pieces of corporate regulation purport to achieve different objectives and impose different types of obligations, this paper offers an institutional account of corporate regulation, specifically in relation to the UK’s regulatory capitalism, which is in the mould of a liberal market economy. We argue that the nature and effectiveness of corporate regulation crucially depends on the nature of ‘regulatory capitalism’ in the type of economic order under discussion. Regulatory capitalism in the UK is characterised by three key tenets which reflect the spirit of the liberal market economy embraced here. Over time, gaps have been revealed in the achievements of these tenets of regulatory capitalism, particularly in relation to social expectations of the regulation of corporate behaviour. In the aftermath of the global financial crisis 2007-9, we observe increasing legalisation in the EU and UK of CSR issues, framed in ‘new governance’ regulatory techniques. They hold promise for change in corporate conduct through deeper forms of corporate engagement and accountability but they appear at the same time relatively undemanding and susceptible to cosmetic compliance. By discussing key examples in new corporate regulation reforms in the EU and UK, we seek to understand why recent corporate regulation reforms seem to offer mixed and in some cases, relatively limited achievements in governing corporate behaviour. We argue that the institutional account of corporate regulation continues to be able to explain regulatory weaknesses and limited achievements, in spite of the deployment of ‘new governance’ regulatory techniques. This is because ‘new governance’ regulatory techniques are implemented within the ethos of regulatory capitalism which limits their potential to introduce paradigm shifts. However the limitations of these regulatory reforms highlight more sharply the institutional shifts that are needed in order to connect the efficacy of corporate regulation with meeting social expectations.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"61 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article surveys the development of judicial control of administrative rule-making in the UK since the early 1970s and proposes a major reconceptualisation of the role of the courts in this area. Although the starting point for legal analysis of administrative rule-making remains the presumption that discretion must be retained, as encapsulated in the no-fettering rule, the article argues that judicial attitudes have changed substantially over the period under examination. The law has developed from a position which, without prohibiting administrative rule-making, deprived it of any significant legal status or effect, through an essentially permissive approach ushered in by British Oxygen Co Ltd v Minister of Technology. This landmark case paved the way for increasing judicial regulation of administrative rules from the 1980s onwards, culminating in the situation today in which, mainly under the influence of the Human Rights Act, the adoption of rules or policies may sometimes be mandatory. Nevertheless, despite increasing judicial control over rule-making practices, the article argues that the law in this area remains far from satisfactory. On the one hand, while the no-fettering rule continues to frame and shape judicial intervention, it exists in considerable tension with newer legal doctrines and its scope and functions appear to have altered. On the other hand, judicial regulation of administrative rule-making is still patchy and incomplete, and its conceptual basis is often unclear. The article therefore contends that the time is ripe for a fundamental reconsideration of judicial control of administrative rule-making. It proposes that a clearer distinction should be drawn between the questions (1) whether administrative actors should seek to structure their discretion through rules and (2) how administrative rules should be regulated if they have been adopted. It argues for a relaxation of judicial control over the former question, advocating the abandonment of the no-fettering rule in favour of residual, rationality-based control over the degree of structuring which is appropriate in particular contexts. However, it recommends an extension and systematisation of judicial control over administrative rules, once a decision has been made to employ them, drawing upon an understanding of the functions of administrative rule-making to generate suitable regulatory standards.
{"title":"Administrative Discretion, Administrative Rule-making, and Judicial Review","authors":"A. Mcharg","doi":"10.1093/CLP/CUX011","DOIUrl":"https://doi.org/10.1093/CLP/CUX011","url":null,"abstract":"This article surveys the development of judicial control of administrative rule-making in the UK since the early 1970s and proposes a major reconceptualisation of the role of the courts in this area. \u0000Although the starting point for legal analysis of administrative rule-making remains the presumption that discretion must be retained, as encapsulated in the no-fettering rule, the article argues that judicial attitudes have changed substantially over the period under examination. The law has developed from a position which, without prohibiting administrative rule-making, deprived it of any significant legal status or effect, through an essentially permissive approach ushered in by British Oxygen Co Ltd v Minister of Technology. This landmark case paved the way for increasing judicial regulation of administrative rules from the 1980s onwards, culminating in the situation today in which, mainly under the influence of the Human Rights Act, the adoption of rules or policies may sometimes be mandatory. Nevertheless, despite increasing judicial control over rule-making practices, the article argues that the law in this area remains far from satisfactory. On the one hand, while the no-fettering rule continues to frame and shape judicial intervention, it exists in considerable tension with newer legal doctrines and its scope and functions appear to have altered. On the other hand, judicial regulation of administrative rule-making is still patchy and incomplete, and its conceptual basis is often unclear. \u0000The article therefore contends that the time is ripe for a fundamental reconsideration of judicial control of administrative rule-making. It proposes that a clearer distinction should be drawn between the questions (1) whether administrative actors should seek to structure their discretion through rules and (2) how administrative rules should be regulated if they have been adopted. It argues for a relaxation of judicial control over the former question, advocating the abandonment of the no-fettering rule in favour of residual, rationality-based control over the degree of structuring which is appropriate in particular contexts. However, it recommends an extension and systematisation of judicial control over administrative rules, once a decision has been made to employ them, drawing upon an understanding of the functions of administrative rule-making to generate suitable regulatory standards.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"267-303"},"PeriodicalIF":1.2,"publicationDate":"2017-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46958145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis","authors":"Rachael Mulheron","doi":"10.1093/CLP/CUX002","DOIUrl":"https://doi.org/10.1093/CLP/CUX002","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"149-188"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41889629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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