{"title":"Institutional Choice in the Internal Market","authors":"Martijn van den Brink","doi":"10.1111/1468-2230.12892","DOIUrl":"https://doi.org/10.1111/1468-2230.12892","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"34 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140629395","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}
Priority setting by independent regulatory agencies (IRAs) is an invisible, yet essential component of regulatory law enforcement. The selection of which cases to enforce and which to disregard is vital given IRAs’ finite resources, and due to the function of concretising open‐ended administrative norms. Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and doctrinal importance, solve complex socio‐economic problems and build credible, independent, and accountable authorities. However, as a blindspot of administrative discretion, to date neither a normative framework to assess IRAs’ priority setting rules and practices nor a shared terminology to evaluate its different features has developed. This article fills this gap by developing a novel typology and normative framework to guide IRAs’ priority setting, based on a historical, conceptual, and empirical study focusing on the case of independent competition authorities. It combines insights from top‐down analysis of administrative and criminal law enforcement with bottom‐up empirical research and engagement with IRAs using EU competition law enforcement as a case study.
{"title":"Priority Setting as the Blind Spot of Administrative Law Enforcement: A Theoretical, Conceptual, and Empirical Study of Competition Authorities in Europe","authors":"Or Brook, Katalin J. Cseres","doi":"10.1111/1468-2230.12881","DOIUrl":"https://doi.org/10.1111/1468-2230.12881","url":null,"abstract":"Priority setting by independent regulatory agencies (IRAs) is an invisible, yet essential component of regulatory law enforcement. The selection of which cases to enforce and which to disregard is vital given IRAs’ finite resources, and due to the function of concretising open‐ended administrative norms. Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and doctrinal importance, solve complex socio‐economic problems and build credible, independent, and accountable authorities. However, as a blindspot of administrative discretion, to date neither a normative framework to assess IRAs’ priority setting rules and practices nor a shared terminology to evaluate its different features has developed. This article fills this gap by developing a novel typology and normative framework to guide IRAs’ priority setting, based on a historical, conceptual, and empirical study focusing on the case of independent competition authorities. It combines insights from top‐down analysis of administrative and criminal law enforcement with bottom‐up empirical research and engagement with IRAs using EU competition law enforcement as a case study.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"13 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140617667","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}
Historically, the cy‐près doctrine required that, upon the substantive alteration of a charitable trust, the new purposes should be ‘as near as possible’ to the old. This is no longer the case. Subject to section 67(3) of the Charities Act 2011, the redrafting court or Charity Commission must have regard to factors other than proximity of purpose. Zedra Fiduciary Services (UK) Ltd v Attorney General is the first high‐level authority to consider the meaning of the statute, and, with it, the scope of the contemporary statutory cy‐près doctrine. This note argues that the Court of Appeal read down the statutory factors conservatively, prioritising fidelity to the original objects of the trust. The note considers the method of the Court and suggests that a more creative approach might have been taken. Finally, the note considers the impact of the authority on the Charity Commission's routine, day‐to‐day cy‐près casework .
从历史上看，"慈善信托原则 "要求在对慈善信托进行实质性修改时，新的目的应 "尽可能接近 "旧的目的。现在情况不再如此。在遵守 2011 年《慈善法》第 67(3)条的前提下，重新起草的法院或慈善委员会必须考虑目的接近性以外的因素。Zedra Fiduciary Services (UK) Ltd v Attorney General 案是第一个考虑法规含义的高级别权威案件，同时也是考虑当代法定担保原则范围的案件。本说明认为，上诉法院保守地解读了法定因素，优先考虑忠实于信托的原始目的。本说明考虑了法院的方法，并提出本可以采取更具创造性的方法。最后，本说明考虑了该权威对慈善委员会日常慈善案件工作的影响。
{"title":"Zedra Fiduciary Services (UK) Ltd v Attorney General: the contemporary Scope of the Statutory Cy‐près Doctrine","authors":"John Picton","doi":"10.1111/1468-2230.12887","DOIUrl":"https://doi.org/10.1111/1468-2230.12887","url":null,"abstract":"Historically, the <jats:italic>cy‐près </jats:italic>doctrine required that, upon the substantive alteration of a charitable trust, the new purposes should be ‘as near as possible’ to the old. This is no longer the case. Subject to section 67(3) of the Charities Act 2011, the redrafting court or Charity Commission must have regard to factors other than proximity of purpose. <jats:italic>Zedra Fiduciary Services (UK) Ltd</jats:italic> v <jats:italic>Attorney General</jats:italic> is the first high‐level authority to consider the meaning of the statute, and, with it, the scope of the contemporary statutory <jats:italic>cy‐près</jats:italic> doctrine. This note argues that the Court of Appeal read down the statutory factors conservatively, prioritising fidelity to the original objects of the trust. The note considers the method of the Court and suggests that a more creative approach might have been taken. Finally, the note considers the impact of the authority on the Charity Commission's routine, day‐to‐day<jats:italic> cy‐près </jats:italic>casework .","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"61 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140595948","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}
While literature has explored the influence of imagination and economic thought on (environmental) law, less attention has been paid to the influence of the economic imagination – specifically economic imaginaries – and their capacity to shape environmental regulation. Taking EU pesticides policy and regulation as a case study and drawing on theory regarding the performative power of imaginaries, this piece identifies economic imaginaries expressed in EU policy and demonstrates how those imaginaries have shaped that policy to pursue economic growth and competitiveness. It examines the evolution of a key piece of pesticides legislation and charts how establishing measures to pursue those economic goals gradually prevails, while providing for transparency – a crucial principle for supporting environmental protection – is deprioritised. It argues that these developments were driven by the EU's economic imaginaries and shows how economic considerations can subtly and indirectly undermine environmental protection.
{"title":"Economic Imaginaries and Environmental Regulation","authors":"Olivia Hamlyn","doi":"10.1111/1468-2230.12889","DOIUrl":"https://doi.org/10.1111/1468-2230.12889","url":null,"abstract":"While literature has explored the influence of imagination and economic thought on (environmental) law, less attention has been paid to the influence of the economic imagination – specifically economic imaginaries – and their capacity to shape environmental regulation. Taking EU pesticides policy and regulation as a case study and drawing on theory regarding the performative power of imaginaries, this piece identifies economic imaginaries expressed in EU policy and demonstrates how those imaginaries have shaped that policy to pursue economic growth and competitiveness. It examines the evolution of a key piece of pesticides legislation and charts how establishing measures to pursue those economic goals gradually prevails, while providing for transparency – a crucial principle for supporting environmental protection – is deprioritised. It argues that these developments were driven by the EU's economic imaginaries and shows how economic considerations can subtly and indirectly undermine environmental protection.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140596073","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}
{"title":"AbdiAidid and BenjaminAlarie, The Legal Singularity: How Artificial Intelligence Can Make Law Radically Better, Toronto, University of Toronto Press, 2023, 218 pp, hb £31.00","authors":"William Lucy","doi":"10.1111/1468-2230.12890","DOIUrl":"https://doi.org/10.1111/1468-2230.12890","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"96 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140596154","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}
In Byers v Saudi National Bank, the Supreme Court held that where a right is transferred in breach of trust and the beneficiary's beneficial interest in the right is extinguished by the transfer, a personal claim for knowing receipt is not available against the recipient. Lord Briggs and Lord Burrows offered different reasons for this conclusion. This note argues that their approaches, while superficially similar, could lead to divergent results in future cases. It argues that Lord Briggs’ analysis is to be preferred, and is best understood to mean that a personal claim for knowing receipt is one for breach of a restorative duty or a custodial duty. Whilst Lord Briggs did not offer a justification for these duties, this note argues that these duties, and therefore the personal claim for knowing receipt, are justified by a third party knowingly depriving the beneficiary of the performance of their trustee's duties.
{"title":"Byers v Saudi National Bank: What's the Wrong in Knowing Receipt?","authors":"Rory Gregson, Timothy Pilkington","doi":"10.1111/1468-2230.12888","DOIUrl":"https://doi.org/10.1111/1468-2230.12888","url":null,"abstract":"In <jats:italic>Byers</jats:italic> v <jats:italic>Saudi National Bank</jats:italic>, the Supreme Court held that where a right is transferred in breach of trust and the beneficiary's beneficial interest in the right is extinguished by the transfer, a personal claim for knowing receipt is not available against the recipient. Lord Briggs and Lord Burrows offered different reasons for this conclusion. This note argues that their approaches, while superficially similar, could lead to divergent results in future cases. It argues that Lord Briggs’ analysis is to be preferred, and is best understood to mean that a personal claim for knowing receipt is one for breach of a restorative duty or a custodial duty. Whilst Lord Briggs did not offer a justification for these duties, this note argues that these duties, and therefore the personal claim for knowing receipt, are justified by a third party knowingly depriving the beneficiary of the performance of their trustee's duties.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"38 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140565402","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}
On 5 July 2023 the Supreme Court handed down its judgment in R (on the application of W80) v Director General of the Independent Office for Police Conduct. The issue before the Court was which test should be applied in assessing whether officers’ use of force amounts to misconduct; the criminal law test for self‐defence (as the Divisional Court found), the test set out in the Police Conduct Regulations 2012 (ie that officers should only use force when it is ‘necessary, proportionate and reasonable in all the circumstances’) (as the Court of Appeal held) or the civil law test for self‐defence which the Supreme Court ultimately decided was the correct approach. The Court's affirmation that the criminal law test is inconsistent with the purposes of the police conduct system is to be welcomed. However, this case note argues that their Lordships’ reasoning in other regards was unconvincing and obscured deeper issues concerning police accountability which the recent Casey Review confirms need to be more openly addressed.
{"title":"R (on the application of W80) v Director General of the Independent Office of Police Conduct: Landmark Ruling or Business as Usual?","authors":"Clare Torrible","doi":"10.1111/1468-2230.12885","DOIUrl":"https://doi.org/10.1111/1468-2230.12885","url":null,"abstract":"On 5 July 2023 the Supreme Court handed down its judgment in <jats:italic>R (on the application of W80)</jats:italic> v <jats:italic>Director General of the Independent Office for Police Conduct</jats:italic>. The issue before the Court was which test should be applied in assessing whether officers’ use of force amounts to misconduct; the criminal law test for self‐defence (as the Divisional Court found), the test set out in the Police Conduct Regulations 2012 (ie that officers should only use force when it is ‘necessary, proportionate and reasonable in all the circumstances’) (as the Court of Appeal held) or the civil law test for self‐defence which the Supreme Court ultimately decided was the correct approach. The Court's affirmation that the criminal law test is inconsistent with the purposes of the police conduct system is to be welcomed. However, this case note argues that their Lordships’ reasoning in other regards was unconvincing and obscured deeper issues concerning police accountability which the recent Casey Review confirms need to be more openly addressed.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"25 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140201772","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}
British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics and aesthetics all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.
{"title":"Sovereignty and the Persistence of the Aesthetic","authors":"Illan Wall, Daniel Matthews","doi":"10.1111/1468-2230.12880","DOIUrl":"https://doi.org/10.1111/1468-2230.12880","url":null,"abstract":"British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics <i>and aesthetics</i> all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":"3 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140181823","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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