Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.
{"title":"Contract Law When the Poor Pay More","authors":"Joseph Spooner","doi":"10.1093/ojls/gqae002","DOIUrl":"https://doi.org/10.1093/ojls/gqae002","url":null,"abstract":"Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society’s wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as ‘contingent charges’, and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139920109","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}
Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this article, we advance and defend an alternative realist conception of legislative intent: the rational unity account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know.
{"title":"Legislative Intent and Agency: A Rational Unity Account","authors":"Stephanie Collins, David Tan","doi":"10.1093/ojls/gqae001","DOIUrl":"https://doi.org/10.1093/ojls/gqae001","url":null,"abstract":"Realist theories of legislative intent can be divided between aggregative theories (on which legislative intent is what some proportion of legislators intend) and common intent theories (on which legislative intent is a unanimous intent among legislators). In this article, we advance and defend an alternative realist conception of legislative intent: the rational unity account. On this account, the legislature is an agent with a distinctive ‘rational point of view’—a concept we adopt from social ontology. The legislature’s rational point of view is shaped by its procedures and structures, in ways not determined by either a common intention held by legislators or an aggregation of the intentions of legislators. We explain how our view improves on existing accounts. We then apply it to three cases to demonstrate its implications for legal interpretation. Importantly, on the proposed account, legislative intent can depart from what individual legislators think or know.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139755645","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}
I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely.
{"title":"You Might be an Anarchist if …","authors":"Kenneth M Ehrenberg","doi":"10.1093/ojls/gqad027","DOIUrl":"https://doi.org/10.1093/ojls/gqad027","url":null,"abstract":"I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2024-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139465190","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}
Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features. This cuts through, and goes a long way to resolving, the ongoing historic debate as to the nature of the company. Second, the primary unit of study chosen—the modern company—reminds corporate lawyers of our role in studying this duality in a very crowded field. Third, despite eschewing ‘concession theories’ of company law (which hold that the company is merely a concession from the state), Watson demonstrates a role for the state in the modern company that is often overlooked.
{"title":"The Making of Corporate Legal Concession Theory","authors":"Jonathan Hardman","doi":"10.1093/ojls/gqad028","DOIUrl":"https://doi.org/10.1093/ojls/gqad028","url":null,"abstract":"\u0000 Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features. This cuts through, and goes a long way to resolving, the ongoing historic debate as to the nature of the company. Second, the primary unit of study chosen—the modern company—reminds corporate lawyers of our role in studying this duality in a very crowded field. Third, despite eschewing ‘concession theories’ of company law (which hold that the company is merely a concession from the state), Watson demonstrates a role for the state in the modern company that is often overlooked.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2024-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139439027","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}
Little attention has been paid to what the word ‘myth’ contributes to the concept of rape myths. Rape myths tend to be regarded as widely believed falsehoods that need to be debunked in order to address patriarchal injustices. This account draws upon a long-standing vernacular English association between myth and falsehood which originated in the Enlightenment. But it is not the only possible definition of myth. This article draws upon mythological studies across a range of disciplines to argue that rape myths should be considered authentically mythic; that is, rape ‘myths’ are culturally significant folk narratives about sexual wrongdoing. This reappraisal enables a shift in our understanding of what rape myths are, what they could be—and what we can do to reduce their pernicious influence on the criminal justice system. It also enables legal scholars to more generally reassess how the concept of ‘myth’ is used across our discipline(s).
{"title":"Are Rape Myths ‘Myths’?","authors":"David J Hayes","doi":"10.1093/ojls/gqad029","DOIUrl":"https://doi.org/10.1093/ojls/gqad029","url":null,"abstract":"Little attention has been paid to what the word ‘myth’ contributes to the concept of rape myths. Rape myths tend to be regarded as widely believed falsehoods that need to be debunked in order to address patriarchal injustices. This account draws upon a long-standing vernacular English association between myth and falsehood which originated in the Enlightenment. But it is not the only possible definition of myth. This article draws upon mythological studies across a range of disciplines to argue that rape myths should be considered authentically mythic; that is, rape ‘myths’ are culturally significant folk narratives about sexual wrongdoing. This reappraisal enables a shift in our understanding of what rape myths are, what they could be—and what we can do to reduce their pernicious influence on the criminal justice system. It also enables legal scholars to more generally reassess how the concept of ‘myth’ is used across our discipline(s).","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2024-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139376379","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}
According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.
{"title":"How Reasons Make Law","authors":"Angelo Ryu","doi":"10.1093/ojls/gqad026","DOIUrl":"https://doi.org/10.1093/ojls/gqad026","url":null,"abstract":"According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138686840","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 takes as its starting point the recent case of Crowter, which challenged the law permitting provision of abortion on the grounds of fetal anomaly. It begins by briefly locating the case within a longer ‘biography’ of the Abortion Act 1967, casting important light on the issue raised within it. It then focuses in detail on the claims made in Crowter, exploring how important moral, social and political concerns with disability discrimination were refracted through an anti-abortion lens as they were translated into legal argument. As a result, the legal remedies sought were simultaneously disproportionate and insufficient to address the harms described. Whilst agreeing that the Abortion Act reflects anachronistic and discriminatory understandings of disability and is overdue reform, the article argues that a response that fully reflects modern ethical values will require more radical change than envisaged in Crowter, and that this must refuse an opposition between the rights of pregnant and disabled people.
{"title":"Beyond the Tram Lines: Disability Discrimination, Reproductive Rights and Anachronistic Abortion Law","authors":"Sally Sheldon","doi":"10.1093/ojls/gqad025","DOIUrl":"https://doi.org/10.1093/ojls/gqad025","url":null,"abstract":"This article takes as its starting point the recent case of Crowter, which challenged the law permitting provision of abortion on the grounds of fetal anomaly. It begins by briefly locating the case within a longer ‘biography’ of the Abortion Act 1967, casting important light on the issue raised within it. It then focuses in detail on the claims made in Crowter, exploring how important moral, social and political concerns with disability discrimination were refracted through an anti-abortion lens as they were translated into legal argument. As a result, the legal remedies sought were simultaneously disproportionate and insufficient to address the harms described. Whilst agreeing that the Abortion Act reflects anachronistic and discriminatory understandings of disability and is overdue reform, the article argues that a response that fully reflects modern ethical values will require more radical change than envisaged in Crowter, and that this must refuse an opposition between the rights of pregnant and disabled people.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138538340","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}
Pub Date : 2023-12-02eCollection Date: 2024-01-01DOI: 10.1093/ojls/gqad024
Simon Douglas, Antonia Layard
This article considers 'ownership beneath' in light of the Economic Crime (Transparency and Enforcement) Act 2022, which has introduced a new Schedule 4A into the Land Registration Act 2002. The legislation, with notable exceptions, requires overseas entities to publicly reveal their beneficial owners, with criminal and land law consequences if transparency requirements are not met. The article explores how ownership beneath operates and can be made more transparent, noting the three different forms of beneficial ownership employed: as control, behind a trust and as a consequence. Emphasising the distinctive nature of beneficial ownership of land, the analysis recommends amending ECTEA 2022 to focus on land ownership, not merely landowning overseas entities, facilitating greater transparency by expanding the definition of registrable beneficial owners, closing the loophole where information is not available and requiring public disclosure of most trust information.
{"title":"Ownership Beneath: Transparency of Land Ownership in Times of Economic Crime.","authors":"Simon Douglas, Antonia Layard","doi":"10.1093/ojls/gqad024","DOIUrl":"https://doi.org/10.1093/ojls/gqad024","url":null,"abstract":"<p><p>This article considers 'ownership beneath' in light of the Economic Crime (Transparency and Enforcement) Act 2022, which has introduced a new Schedule 4A into the Land Registration Act 2002. The legislation, with notable exceptions, requires overseas entities to publicly reveal their beneficial owners, with criminal and land law consequences if transparency requirements are not met. The article explores how ownership beneath operates and can be made more transparent, noting the three different forms of beneficial ownership employed: as control, behind a trust and as a consequence. Emphasising the distinctive nature of beneficial ownership of land, the analysis recommends amending ECTEA 2022 to focus on land ownership, not merely landowning overseas entities, facilitating greater transparency by expanding the definition of registrable beneficial owners, closing the loophole where information is not available and requiring public disclosure of most trust information.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2023-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10921274/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140094804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract— In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential pathways—a plebiscitary election and an unauthorised referendum—through the lens of constituent power. We argue that both pathways are theoretically available if one accepts (as we argue) that the Scottish people is the bearer of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.
{"title":"How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence","authors":"Raffael N Fasel, Shona Wilson Stark","doi":"10.1093/ojls/gqad022","DOIUrl":"https://doi.org/10.1093/ojls/gqad022","url":null,"abstract":"Abstract— In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential pathways—a plebiscitary election and an unauthorised referendum—through the lens of constituent power. We argue that both pathways are theoretically available if one accepts (as we argue) that the Scottish people is the bearer of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135977427","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}
Abstract Akerlof’s seminal model on asymmetric information forms the basis for a broad range of regulatory interventions aimed at addressing the adverse effects of unequal information between transacting parties. While a groundbreaking model of the effects of information asymmetries in markets, Akerlof’s model does not examine why information asymmetries emerge. This article argues that an examination of the underlying drivers and origins of information asymmetries revitalises the policy rationale for regulatory intervention.
{"title":"The Origin of Asymmetric Information: Revisiting the Rationale for Regulation","authors":"Gareth Downing","doi":"10.1093/ojls/gqad023","DOIUrl":"https://doi.org/10.1093/ojls/gqad023","url":null,"abstract":"Abstract Akerlof’s seminal model on asymmetric information forms the basis for a broad range of regulatory interventions aimed at addressing the adverse effects of unequal information between transacting parties. While a groundbreaking model of the effects of information asymmetries in markets, Akerlof’s model does not examine why information asymmetries emerge. This article argues that an examination of the underlying drivers and origins of information asymmetries revitalises the policy rationale for regulatory intervention.","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135366732","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：