Oxford Journal of Legal Studies最新文献

The development of the principle of non-delegation in administrative law was a response to the perceived needs of a 'modern machinery of government', which emerged in post-war 1940s Britain. While it ostensibly sought to ensure that decision-makers appropriately retain their decision-making discretion, and through that political accountability, it has developed into a permissive doctrine that facilitates significant delegation of decision-making within public administration. As algorithmic decision-making (ADM) is increasingly used in public decision-making, it is necessary to question whether it remains fit for the modern machinery of government of the 2020s and beyond. This article considers the limitations of the doctrine in the context of public ADM, considers the shift in doctrinal approach that would be needed to accommodate this emerging machinery and concludes that the doctrine faces serious challenges in accommodating ADM in public decision-making.

Insiders can profit from material non-public information pertaining to their own firm by trading in the shares of their own company (traditional insider trading) or in the shares of other companies whose stock prices may also be affected by such information (shadow trading). We show that traditional insider trading and shadow trading have the same consequences for financial markets and corporate governance, but only the former is pursued aggressively by regulators in the European Union, the UK and the United States. Drawing on a variety of evidence, including a survey of 200 retail investors, we suggest that, rather than protecting unsuspecting outside investors, such an arrangement enables insiders to profit at their expense. The ban on the more salient practice of traditional insider dealing regulation lulls outside investors into a false sense of security, thus effectively operating as a placebo, whilst insiders can still profit by engaging in shadow trading. We further argue that, ironically, this arrangement may nonetheless be efficient.

Whether in the form of conceptual analysis or as grounding reduction, armchair theorising has been the main method of theory construction in general jurisprudence in the English-speaking world. Given important deficiencies in this way of proceeding, empiricist jurisprudence, particularly in the form of reductive naturalism, has emerged as an alternative to armchair theorising and has gained some support within the discipline. In this article, I argue that both of these methodological positions ultimately provide us with partial and thus inadequate explanations of the complex social phenomenon of law. In their failure, however, each position does get something right. I then further argue that to make good of these positions' strengths and simultaneously correct their shortcomings, we need to be able to navigate between the self-understanding of participants of the social practice of law and the viewpoints of social scientists and critical observers.

Ernest Weinrib's recent book, Reciprocal Freedom, considers the implications of his Kantian corrective justice account of private law for other aspects of the legal order (including distributive justice, constitutional rights and the rule of law). The book addresses an important ambiguity left open in Weinrib's past work: whether corrective justice places any limits on the substance of what can count as private law (what Kant calls 'constitutive' requirements). At first, Weinrib appears to deny this, implying that corrective justice is merely 'regulative'-that it helps judges interpret private law in a way that is more coherent and just, without excluding any particular legal content. But a closer reading reveals that he accepts such limits: private law that violates the innate right of persons is non-authoritative. This reading changes our understanding of Weinrib's work, and requires us to consider whether Weinrib can still claim to have a positivist account of law.

The procedural account of prison legitimacy proposes that inmates' compliance with correctional institutions depends more on whether they feel that prison guards treat them fairly during their daily interactions than on whether the guards' decisions are ultimately favourable to them. In Crime, Justice, and Social Order, Anthony Bottoms and Alison Liebling provide a compelling overview of their work in this area, highlighting the importance of respectful relationships for building feelings of trust in penal institutions and advancing a humanitarian account of legitimacy that is sensitive to the moral and relational dimensions of order maintenance. Despite their important contribution, Bottoms and Liebling's procedural approach advances a precarious notion of legitimacy that depends too heavily on the fair treatment of inmates by prison guards and too little on methods of inmate participation that might help the institution align its values with those of prisoners, creating a more stable, and truly normative, commitment towards compliance.

A growing critique regards judicial review as inhibiting infrastructure delivery on the basis of what I term 'litigant power', which may come to represent the dominant political critique of judicial review under the Labour administration. This differs from classic concerns of judicial power, focusing on how legal challenges by project opponents-notwithstanding their doctrinal outcome-can produce delay and embed a chilling overcaution among industry and policy makers. Having articulated the litigant power critique alongside judicial power, the article explores judicial review's impacts on infrastructure delivery through a case study of the legal challenges to England's High-Speed 2 railway project. I argue this litigation presents little evidence of judicial overreach, but in some ways supports litigant power concerns. Nevertheless, I suggest the litigant power critique risks oversimplification, especially in view of the radical reform often proposed, and it also downplays chilling effects associated with the constitution's centralisation of government decision-making power.

This article concerns the role of the UK Supreme Court in the devolution settlement. It starts by describing the approach adopted by the Supreme Court in relation to devolution cases, characterised by a style of reasoning strictly tied to the literal meaning of the statutory text, and an expansive understanding of the principle of parliamentary sovereignty. The article argues that the purpose of devolution is the accommodation of national pluralism: devolution institutionalises the unique plurinational nature of the UK, accommodating the claims to self-government advanced by the UK's minority nations. This has important implications for the Supreme Court: in deciding devolution cases, the Supreme Court can contribute positively or negatively to the achievement of this purpose. I maintain that the Court ought to reason and interpret the devolution statutes in a manner which promotes the accommodation of national pluralism, moving away from the current approach. The argument is illustrated with an analysis of the IndyRef2 judgment, in comparison with the Canadian Quebec Secession Reference.

Legal pluralism is a useful framework for analysing church-state relationships. Often overlooked, legal diversity also exists within religions. This article examines the interactions between the two. It discusses how church-state arrangements influence the internal legal pluralism of religious systems: how religious actors' depictions of church-state arrangements impact their self-perception of internal legal diversity. Understanding these often-overlooked nuanced and complex influences has descriptive and normative significance. This argument is demonstrated by analysing a case study: the modern transformations of a hyper-pluralistic doctrine in Jewish law, named 'Kim-Li'. Modern legal centralism rendered rabbinical reluctance towards its application. The article reveals the correlation between rabbinical interpretations of the doctrine and particular assumptions and aspirations regarding church-state structures. By employing legal pluralism/law and religion classifications, the article suggests that reactions to the 'shadow of the state' are more diverse and nuanced than the current literature foresees, and concludes by suggesting its rectification.

Debates about whether to remove, rename or 'retain and explain' monuments, buildings and street names play an important part in contemporary disputes about the construction and meaning of history. They also contribute to a significant cultural and socio-legal reassessment of Britain's colonial and slave-trading past. We explore how two local governmental legal processes dealt with renaming controversies. More specifically, we examine the extent to which they facilitated consultation and what impact this had on local debates. In doing so, we ask how legal processes around renaming can be prefigured to generate more transformative understandings of controversial histories without further polarising the 'culture war'. This exploration shines a critical light on the role of law in debates about Britain's past and offers valuable lessons for future legal development.

As the metaverse blurs the lines between physical and virtual realms, enhanced by haptic devices providing sensory feedback, it is poised to become integral to daily life. However, this new digital frontier is also a site for sexual violence. Women users increasingly report non-consensual touching, image-based sexual abuses and novel forms of gendered harm, often trivialised and inadequately addressed by current laws. Accordingly, this article proposes the new concept and terminology of 'meta-rape' to better capture the intense and embodied nature of these forms of sexual violence. We also provide a new categorisation of experiences of sexual harassment and abuse in the metaverse, together with a comprehensive analysis of the role and application of criminal law in tackling meta-rape. We suggest, contrary to conventional approaches, that current criminal laws could apply to some forms of meta-rape. We also propose strengthening and future-proofing criminal law, with laws proscribing intimate intrusions. By reframing our understanding of meta-rape, we aim to address the prevalence and impact of these gendered and sexualised harms, providing robust avenues for victim redress and promoting safety and autonomy in emerging virtual spaces.