{"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":null,"pages":null},"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}
This contribution argues that the European crisis in general and Brexit in particular, can be seen to reflect the partial loss of the ethos of a principle that has been at the heart of the EU, namely mutual recognition. While familiar to legal scholars as a norm governing the integration of markets and the management of conflicts of law, the essay seeks to show how this principle bears on our current European predicament as a philosophical concept and a form of governance between states before dwelling on the intricacies of mutual recognition in the EU single market. Because recognition is sought, obtained or denied in all social spheres, every discipline has its own complex variation on this simple theme requiring to connect legal theory with anthropology, philosophy, history, sociology and international relations. The essay spans all these fields through eight takes (mutual Recognition shunned, invented, enshrined, constitutionalised, managed, ‘on trial’, lost, and for grabs) which can also be interpreted as different time horizons (from Sapiens to Brexit through Westphalia). Each take provides a variation on what is referred to as “mutual recognition paradox”, eg how to increase mutual engagement and mutual deference at the very same time.
{"title":"Mutual Recognition: Promise and Denial, from Sapiens to Brexit","authors":"Kalypso Nicolaïdis","doi":"10.1093/CLP/CUX009","DOIUrl":"https://doi.org/10.1093/CLP/CUX009","url":null,"abstract":"This contribution argues that the European crisis in general and Brexit in particular, can be seen to reflect the partial loss of the ethos of a principle that has been at the heart of the EU, namely mutual recognition. While familiar to legal scholars as a norm governing the integration of markets and the management of conflicts of law, the essay seeks to show how this principle bears on our current European predicament as a philosophical concept and a form of governance between states before dwelling on the intricacies of mutual recognition in the EU single market. Because recognition is sought, obtained or denied in all social spheres, every discipline has its own complex variation on this simple theme requiring to connect legal theory with anthropology, philosophy, history, sociology and international relations. The essay spans all these fields through eight takes (mutual Recognition shunned, invented, enshrined, constitutionalised, managed, ‘on trial’, lost, and for grabs) which can also be interpreted as different time horizons (from Sapiens to Brexit through Westphalia). Each take provides a variation on what is referred to as “mutual recognition paradox”, eg how to increase mutual engagement and mutual deference at the very same time.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44875907","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":"For Helen Reece, in memoriam","authors":"Jeff A. King, Paul Mitchell, K. Trapp","doi":"10.1093/CLP/CUX012","DOIUrl":"https://doi.org/10.1093/CLP/CUX012","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45966186","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":"Foucault's pendulum: Text, context and good faith in contract law","authors":"Gerard Mcmeel","doi":"10.1093/CLP/CUX005","DOIUrl":"https://doi.org/10.1093/CLP/CUX005","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46797713","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}
English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (which, if carried out, would constitute the crime of insider dealing). The agreement was not carried out because the information was not forthcoming. Was the claimant entitled to repayment of that money? In answering that question, a majority of the Supreme Court set out a controversial new approach to this area of the law, which was vigorously rejected by the minority judges. This lecture examines the reasoning in the case and asks whether Patel v Mirza constitutes a triumph or a tragedy for the law of illegality.
{"title":"Illegality after Patel v Mirza","authors":"A. Burrows","doi":"10.1093/CLP/CUX008","DOIUrl":"https://doi.org/10.1093/CLP/CUX008","url":null,"abstract":"English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (which, if carried out, would constitute the crime of insider dealing). The agreement was not carried out because the information was not forthcoming. Was the claimant entitled to repayment of that money? In answering that question, a majority of the Supreme Court set out a controversial new approach to this area of the law, which was vigorously rejected by the minority judges. This lecture examines the reasoning in the case and asks whether Patel v Mirza constitutes a triumph or a tragedy for the law of illegality.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42076473","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":"Hospitality, Tolerance, and Exclusion in Legal Form: Private International Law and the Politics of Difference","authors":"H. Watt","doi":"10.1093/CLP/CUX004","DOIUrl":"https://doi.org/10.1093/CLP/CUX004","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41408366","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":"Changing Values and Growing Expectations: The Evolution of Capacity Law","authors":"M. Donnelly","doi":"10.1093/CLP/CUX007","DOIUrl":"https://doi.org/10.1093/CLP/CUX007","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47808428","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}
A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights of health service users as citizens. Aintree (2013) suggests that respect for professional expertise probably remains intact, but its scope is expressly limited by Montgomery (2015). That case purports to bring the law’s understanding of patients into the modern era, although a close examination reveals that the analysis is deeply flawed. The Supreme Court Justices have shown an intent to give greater scope for human rights arguments, although the basis for this, as yet, lacks a clear rationale or coherence. Montgomery claims to be a radical departure from the previous orthodoxy and suggests a need to revisit many earlier cases. The human rights turn not only alters the doctrines that underpin the law affecting healthcare, but also provides a basis for the courts to assert jurisdiction. While the European Court of Human Rights has developed jurisprudence that defers to a margin of appreciation for democratic legislatures, Nicklinson (2014) shows the UK Supreme Court asserting its authority over Parliament and may indicate that the boundaries of healthcare law are being redrawn. A v N CCG (2017) seems to continue some features of the traditional approach, but R (A & B) v Sec State for Health (2017) confirms Article 8 of the ECHR as a limiting factor, while Doogan (2014) seems to limit its scope in healthcare law (in favour of being able to balance human rights issues through employment law). Together, these developments may represent a profound shift in the constitution of healthcare law.
自2013年以来，最高法院的一系列判决重新审视了20世纪80年代建立的医疗保健和医疗法律的基本原则，其中Bolam测试成为卓越的。这些决定是一个分水岭，表明正在进行重新定位，其中法律正在降低患者地位的重要性，以便更好地承认保健服务使用者作为公民的人权。Aintree(2013)认为，对专业知识的尊重可能保持不变，但Montgomery(2015)明确限制了其范围。这一案例旨在将法律对病人的理解带入现代，尽管仔细研究表明，这种分析存在严重缺陷。最高法院的法官们已经表明了给人权论点更大空间的意图，尽管这样做的基础迄今缺乏明确的理由或连贯性。蒙哥马利声称自己彻底背离了之前的正统观点，并建议有必要重新审视许多早期的案例。人权转向不仅改变了影响医疗保健的法律的基础理论，而且还为法院维护管辖权提供了基础。虽然欧洲人权法院已经制定了尊重民主立法机构的法理学，但Nicklinson(2014)显示，英国最高法院主张其对议会的权威，并可能表明医疗保健法的边界正在重新划定。A诉N CCG(2017)似乎延续了传统方法的一些特征，但R (A & B)诉Sec State for Health(2017)确认《欧洲人权公约》第8条是一个限制因素，而Doogan(2014)似乎限制了其在医疗保健法中的范围(有利于通过就业法平衡人权问题)。总之，这些发展可能代表了医疗保健法构成的深刻转变。
{"title":"Patient No Longer? What Next in Healthcare Law?","authors":"J. Montgomery","doi":"10.1093/CLP/CUX006","DOIUrl":"https://doi.org/10.1093/CLP/CUX006","url":null,"abstract":"A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights of health service users as citizens. Aintree (2013) suggests that respect for professional expertise probably remains intact, but its scope is expressly limited by Montgomery (2015). That case purports to bring the law’s understanding of patients into the modern era, although a close examination reveals that the analysis is deeply flawed. The Supreme Court Justices have shown an intent to give greater scope for human rights arguments, although the basis for this, as yet, lacks a clear rationale or coherence. Montgomery claims to be a radical departure from the previous orthodoxy and suggests a need to revisit many earlier cases. The human rights turn not only alters the doctrines that underpin the law affecting healthcare, but also provides a basis for the courts to assert jurisdiction. While the European Court of Human Rights has developed jurisprudence that defers to a margin of appreciation for democratic legislatures, Nicklinson (2014) shows the UK Supreme Court asserting its authority over Parliament and may indicate that the boundaries of healthcare law are being redrawn. A v N CCG (2017) seems to continue some features of the traditional approach, but R (A & B) v Sec State for Health (2017) confirms Article 8 of the ECHR as a limiting factor, while Doogan (2014) seems to limit its scope in healthcare law (in favour of being able to balance human rights issues through employment law). Together, these developments may represent a profound shift in the constitution of healthcare law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44456276","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}
Making enrichment the focus of restitutionary liability is a fundamental error. It leads to an untenable prejudice against unearned gain. At the same time, it denies restitution to parties who should obtain it. Only limited interests have been, and ought to be, protected by the law of restitution. These include autonomy in the transfer of our property and in committing ourselves to binding obligations. Where the protections are triggered, restitution follows whether or not the defendant has been enriched. Expenditure of our time and effort is not (or is almost never) a protected interest, nor is our paying a third party to do things, even if others are enriched thereby. Such others need to have requested the expenditure or otherwise participated in a way that makes it just that they cover or contribute to the resulting costs—where such participation is present, enrichment is (almost always) superfluous. By buying into the concept of “unjust enrichment”, English courts since Banque Financiere have overlooked and sometimes ignored paths of long-established precedent, and headed off into the wilderness. Bad claims have been recognised and good ones spurned. Even when the courts alight at the right place, we find judges not clearly or consistently identifying the enrichment that they say helped them get there, or we find them deeming an enrichment to have been present when they know it was not really there.
{"title":"‘Unjust Enrichment’—the Potion that Induces Well-meaning Sloppiness of Thought","authors":"Peter G. Watts","doi":"10.1093/CLP/CUW010","DOIUrl":"https://doi.org/10.1093/CLP/CUW010","url":null,"abstract":"Making enrichment the focus of restitutionary liability is a fundamental error. It leads to an untenable prejudice against unearned gain. At the same time, it denies restitution to parties who should obtain it. Only limited interests have been, and ought to be, protected by the law of restitution. These include autonomy in the transfer of our property and in committing ourselves to binding obligations. Where the protections are triggered, restitution follows whether or not the defendant has been enriched. Expenditure of our time and effort is not (or is almost never) a protected interest, nor is our paying a third party to do things, even if others are enriched thereby. Such others need to have requested the expenditure or otherwise participated in a way that makes it just that they cover or contribute to the resulting costs—where such participation is present, enrichment is (almost always) superfluous. By buying into the concept of “unjust enrichment”, English courts since Banque Financiere have overlooked and sometimes ignored paths of long-established precedent, and headed off into the wilderness. Bad claims have been recognised and good ones spurned. Even when the courts alight at the right place, we find judges not clearly or consistently identifying the enrichment that they say helped them get there, or we find them deeming an enrichment to have been present when they know it was not really there.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878124","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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