Oxford Journal of Legal Studies最新文献

Regulation in healthcare has often been accused of protecting the professions and neglecting patients. 'Public protection appeals', used to challenge fitness to practise decisions considered to be 'insufficient' for the 'protection of the public', have created a welcome space for judicial scrutiny. Focusing on doctors, the present study of public protection appeals examines the contours of that scrutiny. It frames these appeals as a recalibration of the metaphorical 'regulatory bargain', finding that many of the resulting judgments signal a departure from traditional postures of 'deference' in professional regulation jurisprudence and a steady judicial assertion of jurisdiction over the core issue of 'seriousness' in doctor misconduct. Further exploration of that heightened scrutiny identifies several strands of new doctrine which fortify the regulatory regime in a variety of directions. This exploration also, however, isolates and critiques the emergence of a 'Bolton gloss'-a seam of cases which tilt decision making towards censure and risk disrupting regulatory strategies which have cultivated a commitment to rehabilitative approaches in the disciplinary process.

Acquisition of territory by force, once permitted, is strictly forbidden today. However, this normative shift has not led to a reconceptualization of annexation, which is still understood as the extension of sovereignty through formal state acts. Maintaining the requirement of formal state acts, we argue, undermines the norm and is further analytically flawed and generates a rule-of-law problem: it fails to capture instances of undeclared annexation, and incentivises states to avoid formal proclamations of annexation to evade legal consequences. This article therefore proposes a new theory of annexation. Drawing on theories of bureaucracy and administration, we suggest three qualifications for annexation: the normative organising framework with which the state manages the territory reflects a perception of the territory as part of its own; the organisational structure of control assimilates the management of the territory into the bureaucratic machinery of the state; and the symbolic performance of power erases symbolic differences between the territory and the annexing state. This reconceptualisation of annexation may support the goal of the contemporary international legal order to suppress aggressive use of force and ensure the self-determination of peoples.

Digitalising public programmes creates new accountability challenges, many of which are under-theorised. Using Universal Credit to illustrate its points, this article argues that the distributed infrastructures upon which digital government programmes rely create extended chains of decision-making actors. Each link along the chain is responsible for decision-making components, such as data entry and interpretation. This phenomenon has three significant effects. First, it distributes administrative responsibilities widely. Second, it 'publicises' actors previously considered 'private', by integrating companies and landlords into public decision-making processes. Third, it bureaucratically disempowers, because it makes it difficult for all actors to recognise and address errors. In some cases, it prevents them from knowing they are involved in decision-making processes at all. Drawing on public administration, socio-legal studies and public law scholarship, we reconceptualise 'administrative burden', 'bureaucratic disentitlement' and 'privatisation' to show how this distribution of responsibilities within novel 'decision chains' raises critical questions for public law.

The protest trial has distinctive features and should be governed by what we term the 'integrity principle': it should respect the moral consistency of the defendant; justifications, not excuses, should be privileged; and the 'remorse principle' should not apply. As such, the trial should enable effective communication where the defendant is held to account in meaningful terms. We apply this argument to three high-profile protest trials: the Frack Free Three; the Stansted 15; and the Colston 4. Using observation data, we argue the first two trials and subsequent appellant court rulings failed to respect the integrity principle. The third case provides a contrast: the defendants maintained moral consistency, and gave an authentic and contextualised account. This was, however, at some cost of political divestment. Nevertheless, the Colston 4 trial is exceptional in a process that typically pays little operational respect to the integrity principle.

This article draws out two injustices to which retrospective criminal legislation may give rise: undermining accessibility of law and challenging equality before the law. It is argued that the censuring function of criminal law exacerbates both wrongs. This sets the stage for an analysis of delaying prisoners' release. It is suggested that retrospective reform in this context threatens the same values as those threatened by retrospective criminalisation. Yet, the safeguards against retrospective reform of release provisions are weak due to two important strands of case law, one concerning which penalty was 'applicable at the time' of the offence and another which draws a distinction between penalties and their execution. Both strands of case law are in need of fundamental reconsideration if article 7 of the European Convention on Human Rights is to realise its purposes of upholding rule-of-law values and providing practicable safeguards.

Does private law punish? Should it? I question whether private law punishes in a form other than through a court order of punitive damages, by exploring a less obvious form of punishment to which less attention has been paid-'punitive disentitlement'-wherein a person is disentitled from a legal right, defence, or other legal advantage they would and should otherwise be entitled to, because of their misconduct. Potential instances are identified and analysed in a broad survey of private law doctrine, including the laws of property, contract, unjust enrichment and torts. The strongest reason for punitive disentitlement is its immunity to a powerful normative objection to punitive damages. Punitive disentitlement is not free from difficulties, however. It inherits some of the difficulties associated with punitive damages; it also runs into a separate set of objections. We should therefore be more alert to, and cautious about, its continued use.

This article takes a close look at the state of comparative constitutional studies as constitutional scholarship is taking a comparative turn. It first surveys the field and identifies four varieties - doctrinal, law-and-society, documentary, and cultural - of constitutional comparison and then critically investigates the state of comparative constitutional studies. Through this two-stage engagement, this article aims to make two main analytical points. First, at the core of each of the four varieties of comparative constitutional studies lies an interpretive exercise oriented by its distinctive purpose. Second, the social sciences' growing influence on constitutional comparison has entailed a myth of scientism in the field, which may inadvertently impoverish comparative constitutional studies as a whole. It concludes with a cautionary note on the comparative turn in studying constitutional ordering. With its prevalent focus on formal institutions and norms in constitutional orders, the comparative turn may unwittingly limit studies of the multifaceted constitutional phenomenon.

This article starts with a question that looks like it has been taken from an introductory legal reasoning class, namely, is coffee a non-alcoholic beverage? It will be seen that from a trade mark perspective there is reason to conclude that coffee is definitely a non-alcoholic beverage in Australia, is definitely not a non-alcoholic beverage under the European trade mark regime and may or may not be such a beverage in the UK. This divergence is itself worthy of attention, given efforts to facilitate cross-border registration using common terminology. More importantly, however, this article argues that the reason why trade mark law struggles with questions of this type is because it has never taken a clear view of the person at whom the trade marks register is aimed-in particular, it has never been clear as to the level of expertise and knowledge of the internal workings of the trade mark system that is to be attributed to the notional reader of the register. This oversight has important implications for matters that someone new to the field might imagine would have been resolved long ago.

It must be rare that discoveries which transform mathematics also undermine legal rules. Yet this is precisely what happened when probability was first developed in the second half of the 17th century and the first decades of the following one. The focus of this article is a doctoral thesis in law written in 1709 by Nicolaus Bernoulli, an important mathematician of the age. He highlighted the dramatic implications of the new mathematics of probability for a rule which was fundamental to contemporary contract law in continental Europe. This article reconstructs a remarkable story about the place of mathematics in the history of contractual justice and the place of contractual justice in the history of mathematics.

The Cambridge Handbook of Comparative Law, edited by Matthias Siems and Po Jen Yap, continues recent calls to expand the field of comparative law. By including authors drawn from all parts of the world, it presents 'new perspectives' on the field. This wide geographic remit proves successful as a way of moving beyond traditional 'families' and doctrinal topics. The contributors raise new themes for comparison, many related to public law and processes of change. But this, in turn, raises questions about the purposes of expanding the field. The volume largely concerns the laws and legal issues of modern states, and the authors do not venture far into history. Nor do they consider the alternatives offered by religious and traditional legal systems or forms of non-state ordering. I suggest that these subjects could productively expand the field even further, raising more theoretical questions about what law is and does.