Abstract As the UK left the European Union, a new body of UK law, labelled ‘retained EU law’, was introduced to save and convert certain parts of EU law into UK statutes. This paper explores the impact of Brexit on statutory interpretation in the UK in the context of VAT. In particular, it looks at whether, and the manner in which, UK courts and the Court of Justice of the European Union (CJEU) will move in different directions when interpreting what is essentially the same law. The paper predicts the post-Brexit evolution of statutory interpretation in UK courts based on an empirical study of cases concerning VAT referred by UK courts to the CJEU between 1973 and 2020, augmented by a doctrinal analysis of selected cases. The methodology is built on the premise that past case decisions may provide an indication of the nature of possible future divergence. A case study of VAT may offer wider implications as to departure from the CJEU jurisprudence in other legal areas in the coming years.
{"title":"Statutory interpretation after Brexit: implications from a case study of VAT","authors":"Yige Zu","doi":"10.1017/lst.2022.41","DOIUrl":"https://doi.org/10.1017/lst.2022.41","url":null,"abstract":"Abstract As the UK left the European Union, a new body of UK law, labelled ‘retained EU law’, was introduced to save and convert certain parts of EU law into UK statutes. This paper explores the impact of Brexit on statutory interpretation in the UK in the context of VAT. In particular, it looks at whether, and the manner in which, UK courts and the Court of Justice of the European Union (CJEU) will move in different directions when interpreting what is essentially the same law. The paper predicts the post-Brexit evolution of statutory interpretation in UK courts based on an empirical study of cases concerning VAT referred by UK courts to the CJEU between 1973 and 2020, augmented by a doctrinal analysis of selected cases. The methodology is built on the premise that past case decisions may provide an indication of the nature of possible future divergence. A case study of VAT may offer wider implications as to departure from the CJEU jurisprudence in other legal areas in the coming years.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"295 - 311"},"PeriodicalIF":0.7,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41592596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Camillia Kong, Rebecca Stickler, P. Cooper, M. Watkins, Michael C. Dunn
Abstract The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good practice demands of legal professionals in mental capacity law; secondly, it explains how these professionals orientate these norms in the day-to-day conduct of their work. The ‘human element’ further presents challenges that demand practical negotiation in relation to countervailing normative commitments to objectivity and socio-institutional expectations around professional hierarchies, expertise, and evidential thresholds.
{"title":"The ‘human element’ in the social space of the courtroom: framing and shaping the deliberative process in mental capacity law","authors":"Camillia Kong, Rebecca Stickler, P. Cooper, M. Watkins, Michael C. Dunn","doi":"10.1017/lst.2022.19","DOIUrl":"https://doi.org/10.1017/lst.2022.19","url":null,"abstract":"Abstract The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good practice demands of legal professionals in mental capacity law; secondly, it explains how these professionals orientate these norms in the day-to-day conduct of their work. The ‘human element’ further presents challenges that demand practical negotiation in relation to countervailing normative commitments to objectivity and socio-institutional expectations around professional hierarchies, expertise, and evidential thresholds.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"715 - 734"},"PeriodicalIF":0.7,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42113760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Rachel Dunn, T. Wyatt, Luke Johnson, Callam Willis, Hannah Millar
Abstract This paper investigates the knowledge of the general public on the legislative framework relating to wildlife conservation in England, with a specific focus on the Bern Convention and the public's awareness of the treaty, as well as the domestic legislation transposing it. By creating a publicly available survey, the study determined the environmental attitudes of the public and their knowledge of the legislative regime relating to wildlife conservation. Whilst the majority of the public displayed pro-environmental attitudes and support for greater efforts towards the conservation of flora and fauna, the overall awareness of the legislation was worryingly low, with only 5.6% of respondents recognising the Bern Convention. Accordingly, the study investigated how awareness of environmental legislation may be increased. Ultimately, the paper concludes that formal environmental education, including legislation, must be optimised, and the domestic legislative framework should be further consolidated.
{"title":"Investigating the English public's awareness of the Bern Convention and their education on environmental issues and laws","authors":"Rachel Dunn, T. Wyatt, Luke Johnson, Callam Willis, Hannah Millar","doi":"10.1017/lst.2022.37","DOIUrl":"https://doi.org/10.1017/lst.2022.37","url":null,"abstract":"Abstract This paper investigates the knowledge of the general public on the legislative framework relating to wildlife conservation in England, with a specific focus on the Bern Convention and the public's awareness of the treaty, as well as the domestic legislation transposing it. By creating a publicly available survey, the study determined the environmental attitudes of the public and their knowledge of the legislative regime relating to wildlife conservation. Whilst the majority of the public displayed pro-environmental attitudes and support for greater efforts towards the conservation of flora and fauna, the overall awareness of the legislation was worryingly low, with only 5.6% of respondents recognising the Bern Convention. Accordingly, the study investigated how awareness of environmental legislation may be increased. Ultimately, the paper concludes that formal environmental education, including legislation, must be optimised, and the domestic legislative framework should be further consolidated.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"402 - 424"},"PeriodicalIF":0.7,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42458126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The relationship between a conveyance's validity and its underlying contract has been a classic but unsettled topic for comparative private lawyers over the past three decades. This paper attempts to add positivist and normative observations drawn from property transfer theories and practices in English and Chinese law. A jurisdiction adopting an ‘intent plus’ model does not necessarily recognise a separate intent to convey distinct from the intent in the underlying contract, as exemplified by Chinese law, while a jurisdiction adopting the ‘intent alone’ model does not necessarily deny the separate intent to convey, as exemplified by English law. One advantage for a jurisdiction that takes the separatist approach is its flexibility, so that it can still choose between pure causality, pure abstraction, or context-based abstraction at a later stage. Recent developments show that English and Chinese law are moving towards this approach. As to whether flaws in the underlying contract infect the validity of the conveyance, the English position depends on vitiating factors, whereas the mainstream Chinese judgments tend to be pro-causal. Justifications favouring causality provided in the English and Chinese academia are different, though neither can stand up to scrutiny. The detecting opportunity argument submitted in this paper helps to justify abstraction.
{"title":"Revisiting property transfer theory: English law and Chinese law compared","authors":"Zhicheng Wu, L. Chen","doi":"10.1017/lst.2022.36","DOIUrl":"https://doi.org/10.1017/lst.2022.36","url":null,"abstract":"Abstract The relationship between a conveyance's validity and its underlying contract has been a classic but unsettled topic for comparative private lawyers over the past three decades. This paper attempts to add positivist and normative observations drawn from property transfer theories and practices in English and Chinese law. A jurisdiction adopting an ‘intent plus’ model does not necessarily recognise a separate intent to convey distinct from the intent in the underlying contract, as exemplified by Chinese law, while a jurisdiction adopting the ‘intent alone’ model does not necessarily deny the separate intent to convey, as exemplified by English law. One advantage for a jurisdiction that takes the separatist approach is its flexibility, so that it can still choose between pure causality, pure abstraction, or context-based abstraction at a later stage. Recent developments show that English and Chinese law are moving towards this approach. As to whether flaws in the underlying contract infect the validity of the conveyance, the English position depends on vitiating factors, whereas the mainstream Chinese judgments tend to be pro-causal. Justifications favouring causality provided in the English and Chinese academia are different, though neither can stand up to scrutiny. The detecting opportunity argument submitted in this paper helps to justify abstraction.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"259 - 277"},"PeriodicalIF":0.7,"publicationDate":"2022-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45233198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper makes a case for the integration of compulsory climate change topics across the core law curriculum. It argues that the most persuasive rationale for this is based in climate legal obligations and institutions, and a clear-eyed perception of climate risk, rather than the sustainability agenda. To this end, the paper outlines efforts taken to ‘mainstream’ climate change and environmental law education in a core course of the LLB degree – land law. An empirical study sought to evaluate the students’ engagement with these materials, and their broader views concerning climate change and their legal education. The paper critically evaluates the course and the results of the empirical study. It concludes that students want to be, and should be, taught climate law and the climate context of law as part of their prescribed learning throughout the core curriculum, rather than as optional or elective content.
{"title":"‘Climate Change isn't Optional’: Climate Change in the Core Law Curriculum – CORRIGENDUM","authors":"K. Bouwer, E. John, Oliver Luke, Amanda Rozhan","doi":"10.1017/lst.2022.35","DOIUrl":"https://doi.org/10.1017/lst.2022.35","url":null,"abstract":"\u0000 This paper makes a case for the integration of compulsory climate change topics across the core law curriculum. It argues that the most persuasive rationale for this is based in climate legal obligations and institutions, and a clear-eyed perception of climate risk, rather than the sustainability agenda. To this end, the paper outlines efforts taken to ‘mainstream’ climate change and environmental law education in a core course of the LLB degree – land law. An empirical study sought to evaluate the students’ engagement with these materials, and their broader views concerning climate change and their legal education. The paper critically evaluates the course and the results of the empirical study. It concludes that students want to be, and should be, taught climate law and the climate context of law as part of their prescribed learning throughout the core curriculum, rather than as optional or elective content.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"380 - 380"},"PeriodicalIF":0.7,"publicationDate":"2022-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49054840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This is the first work to explore the possibility of holding sports governing bodies and competition organisers vicariously liable for the tortious behaviour of athletes that compete under their auspices. In contrast to other scholarly contributions on vicarious liability in sport, this paper examines the scope of responsibility for athletes in individual sports (as opposed to team sports). It begins by drawing upon the recent tribunal proceedings between professional cyclist Jess Varnish and British Cycling to analyse the employment status of government-funded individual athletes. In calling for a contextual and policy-sensitive approach to the definition of an ‘employee’, this paper argues that certain normative and theoretical considerations ought to be granted more or less weight depending on the particular legal issue animating the dispute. Thereafter, and with one eye on the overly intrusive regulatory provisions found in sports such as tennis and golf, this paper also demonstrates that the vicarious liability of governing bodies and competition organisers could equally be extended to cover the tortious conduct of non-funded individual athletes. In making these claims, it is demonstrated how a sport-specific application of the doctrine may help to teach us a few broader lessons about vicarious liability more generally.
{"title":"The vicarious liability of sports governing bodies and competition organisers","authors":"James Brown","doi":"10.1017/lst.2022.34","DOIUrl":"https://doi.org/10.1017/lst.2022.34","url":null,"abstract":"Abstract This is the first work to explore the possibility of holding sports governing bodies and competition organisers vicariously liable for the tortious behaviour of athletes that compete under their auspices. In contrast to other scholarly contributions on vicarious liability in sport, this paper examines the scope of responsibility for athletes in individual sports (as opposed to team sports). It begins by drawing upon the recent tribunal proceedings between professional cyclist Jess Varnish and British Cycling to analyse the employment status of government-funded individual athletes. In calling for a contextual and policy-sensitive approach to the definition of an ‘employee’, this paper argues that certain normative and theoretical considerations ought to be granted more or less weight depending on the particular legal issue animating the dispute. Thereafter, and with one eye on the overly intrusive regulatory provisions found in sports such as tennis and golf, this paper also demonstrates that the vicarious liability of governing bodies and competition organisers could equally be extended to cover the tortious conduct of non-funded individual athletes. In making these claims, it is demonstrated how a sport-specific application of the doctrine may help to teach us a few broader lessons about vicarious liability more generally.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"221 - 239"},"PeriodicalIF":0.7,"publicationDate":"2022-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43693864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong and Singapore have addressed these difficulties. It argues that three categories of approaches can be discerned in these jurisdictions: class-focused, policy-focused, and justification-focused approaches. It critically evaluates each approach, argues in favour of a justification-focused approach to constitutional equal protection in the context of discrete executive acts, and explores the implications of such an approach for the proper relationship between constitutional equality and administrative law.
{"title":"Constitutional equality and executive action – a comparative perspective to the comparator problem","authors":"Kenny Chng","doi":"10.1017/lst.2022.33","DOIUrl":"https://doi.org/10.1017/lst.2022.33","url":null,"abstract":"Abstract A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong and Singapore have addressed these difficulties. It argues that three categories of approaches can be discerned in these jurisdictions: class-focused, policy-focused, and justification-focused approaches. It critically evaluates each approach, argues in favour of a justification-focused approach to constitutional equal protection in the context of discrete executive acts, and explores the implications of such an approach for the proper relationship between constitutional equality and administrative law.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"179 - 196"},"PeriodicalIF":0.7,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48756875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Financial globalisation has given issuers more freedom to carry out jurisdiction shopping. As a policy response, a growing number of stock markets have introduced the dual-class share structure to enhance global competitiveness. However, does the dual-class share structure help stock markets attract issuers? It is a question rarely examined empirically in existing scholarly work. This paper explores the practices of three jurisdictions with global financial centres, ie the US, China and Hong Kong, to narrow the research gap. Based on hand-collected data, it explains the infrequent listings with the dual-class share structure in China and Hong Kong in the post-reform era in two ways: low demand due to the use of substitutes; and limited allowance caused by the harsh ex ante regulation, and is the first comparative quantitative study in this field. Drawing on the empirical lessons, this paper recommends that China relax its ex ante regulation and suggests the wider community consider the necessity of introducing the dual-class share structure and the balance they aim to achieve between investor protection and market openness.
{"title":"Does the dual-class share structure help stock markets attract issuers? Empirical lessons from global financial centres","authors":"Fa Chen","doi":"10.1017/lst.2022.30","DOIUrl":"https://doi.org/10.1017/lst.2022.30","url":null,"abstract":"Abstract Financial globalisation has given issuers more freedom to carry out jurisdiction shopping. As a policy response, a growing number of stock markets have introduced the dual-class share structure to enhance global competitiveness. However, does the dual-class share structure help stock markets attract issuers? It is a question rarely examined empirically in existing scholarly work. This paper explores the practices of three jurisdictions with global financial centres, ie the US, China and Hong Kong, to narrow the research gap. Based on hand-collected data, it explains the infrequent listings with the dual-class share structure in China and Hong Kong in the post-reform era in two ways: low demand due to the use of substitutes; and limited allowance caused by the harsh ex ante regulation, and is the first comparative quantitative study in this field. Drawing on the empirical lessons, this paper recommends that China relax its ex ante regulation and suggests the wider community consider the necessity of introducing the dual-class share structure and the balance they aim to achieve between investor protection and market openness.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"159 - 178"},"PeriodicalIF":0.7,"publicationDate":"2022-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46894358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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