Targeted sanctions, such as asset freezes and travel bans, are an increasingly popular response to a wide array of wrongdoing. This article considers an especially problematic aspect of contemporary sanctions law and practice that has received little attention so far, namely the imposition of sanctions on the family members of the primary target. In charting out a coherent and principled approach to such sanctions, the article makes three distinct contributions. First, it offers a comprehensive survey of law, policy and practice related to family-member sanctions across the US, UK, EU and Australia. Secondly, it identifies the limits that international human rights law places on such sanctions, which effectively preclude automatic family-member sanctions. Thirdly and finally, it proposes a ‘profit-based’ sanctions model as an alternative to ‘activity-based’ and ‘status-based’ sanctions, as well as outlining its implications for the design of family-member sanctions.
{"title":"The Sins of the Fathers: Targeted Sanctions against Family Members of Primary Targets","authors":"Anton Moiseienko","doi":"10.1111/1468-2230.12864","DOIUrl":"https://doi.org/10.1111/1468-2230.12864","url":null,"abstract":"Targeted sanctions, such as asset freezes and travel bans, are an increasingly popular response to a wide array of wrongdoing. This article considers an especially problematic aspect of contemporary sanctions law and practice that has received little attention so far, namely the imposition of sanctions on the family members of the primary target. In charting out a coherent and principled approach to such sanctions, the article makes three distinct contributions. First, it offers a comprehensive survey of law, policy and practice related to family-member sanctions across the US, UK, EU and Australia. Secondly, it identifies the limits that international human rights law places on such sanctions, which effectively preclude automatic family-member sanctions. Thirdly and finally, it proposes a ‘profit-based’ sanctions model as an alternative to ‘activity-based’ and ‘status-based’ sanctions, as well as outlining its implications for the design of family-member sanctions.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139375506","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}
Regardless of economic cycles, financial regulation can be understood to be bound by an uncomfortable social policy trilemma. When faced with 1) providing market integrity, 2) fostering innovation, and 3) enabling financial inclusion, regulators have long been able to achieve, at best, only two of these three goals. Often the result of this trilemma are choices made in the name of consumer and investor protection, or innovation, that indirectly promote, enable or exacerbate wealth inequality by redlining capital markets or exposing the vulnerable to undue risk. In this article, I explain this trilemma and argue that addressing it will require novel innovations – from incorporating inclusion and innovation formally into regulatory mandates to upgrading existing offices of innovation, and creating offices of financial inclusion, to better navigate the tradeoffs inherent in the trilemma.
{"title":"Regulatory Agencies and the Inclusion Trilemma","authors":"Chris Brummer","doi":"10.1111/1468-2230.12857","DOIUrl":"https://doi.org/10.1111/1468-2230.12857","url":null,"abstract":"Regardless of economic cycles, financial regulation can be understood to be bound by an uncomfortable social policy trilemma. When faced with 1) providing market integrity, 2) fostering innovation, and 3) enabling financial inclusion, regulators have long been able to achieve, at best, only two of these three goals. Often the result of this trilemma are choices made in the name of consumer and investor protection, or innovation, that indirectly promote, enable or exacerbate wealth inequality by redlining capital markets or exposing the vulnerable to undue risk. In this article, I explain this trilemma and argue that addressing it will require novel innovations – from incorporating inclusion and innovation formally into regulatory mandates to upgrading existing offices of innovation, and creating offices of financial inclusion, to better navigate the tradeoffs inherent in the trilemma.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138825924","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}
Ideas of responsive law and regulation have been the subject of sustained scholarly attention but only recently have scholars turned their attention to what these ideas mean for constitutional law and governance. The article addresses this gap in the literature by exploring the idea of responsiveness in constitutional design and interpretation. It suggests that the idea of responsive constitutionalism points to the importance of both unwritten and written, and politically and judicially-enforced constitutional norms in promoting democratic responsiveness. In turn, responsive constitutionalism also reinforces the value of: (1) institutional pluralism; (2) overlapping institutional authority; (3) multiple access points to institutions; and (4) broad remedial power for relevant institutions, including courts. It further suggests the need for a true balance between constitutional norms that promote rights-enhancing forms of state action and limits on state action. And finally, it points to the value of strong institutional checks and balances and entrenchment of the ‘minimum core’ of a democratic constitution, but a more flexible set of constraints in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators. The article explores these ideas by reference to existing constitutional theoretic ideas but also through illustrations drawn from Australia, Kenya and the United Kingdom.
{"title":"The New Responsive Constitutionalism","authors":"Rosalind Dixon","doi":"10.1111/1468-2230.12853","DOIUrl":"https://doi.org/10.1111/1468-2230.12853","url":null,"abstract":"Ideas of responsive law and regulation have been the subject of sustained scholarly attention but only recently have scholars turned their attention to what these ideas mean for constitutional law and governance. The article addresses this gap in the literature by exploring the idea of responsiveness in constitutional design and interpretation. It suggests that the idea of responsive constitutionalism points to the importance of both unwritten and written, and politically and judicially-enforced constitutional norms in promoting democratic responsiveness. In turn, responsive constitutionalism also reinforces the value of: (1) institutional pluralism; (2) overlapping institutional authority; (3) multiple access points to institutions; and (4) broad remedial power for relevant institutions, including courts. It further suggests the need for a true balance between constitutional norms that promote rights-enhancing forms of state action and limits on state action. And finally, it points to the value of strong institutional checks and balances and entrenchment of the ‘minimum core’ of a democratic constitution, but a more flexible set of constraints in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators. The article explores these ideas by reference to existing constitutional theoretic ideas but also through illustrations drawn from Australia, Kenya and the United Kingdom.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536311","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}
Given their dominance in a range of sectors – from private renting to job search – the design of online platforms can impede access to markets and facilitate discrimination. Most legal scholarship on the equality implications of platform design focuses on algorithms. This paper instead interrogates the comparatively neglected issue of interface design. It argues that two areas of interface design – ‘structuring’ and ‘sorting’ functions – fall within the scope of the Equality Act 2010 as a ‘provision, criterion or practice’ that is not protected by a safe harbour. Drawing on web-scraping methods, it then provides an applied example of these arguments using ‘No DSS’ (Department for Social Security) discrimination on a leading rental platform in the UK. Using a sample of 3,336 listings collected years apart, the paper demonstrates how design choices in ‘structuring’ and ‘sorting’ interfaces can either facilitate or minimise discrimination on online platforms.
{"title":"Discrimination at the Interface: The Equality Act 2010 and Platform Interface Design","authors":"Jed Meers","doi":"10.1111/1468-2230.12855","DOIUrl":"https://doi.org/10.1111/1468-2230.12855","url":null,"abstract":"Given their dominance in a range of sectors – from private renting to job search – the design of online platforms can impede access to markets and facilitate discrimination. Most legal scholarship on the equality implications of platform design focuses on algorithms. This paper instead interrogates the comparatively neglected issue of interface design. It argues that two areas of interface design – ‘structuring’ and ‘sorting’ functions – fall within the scope of the Equality Act 2010 as a ‘provision, criterion or practice’ that is not protected by a safe harbour. Drawing on web-scraping methods, it then provides an applied example of these arguments using ‘No DSS’ (Department for Social Security) discrimination on a leading rental platform in the UK. Using a sample of 3,336 listings collected years apart, the paper demonstrates how design choices in ‘structuring’ and ‘sorting’ interfaces can either facilitate or minimise discrimination on online platforms.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536312","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 article considers the extra-judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work. It first considers briefly the role of judicial biography in understanding the work of judges and then the particular considerations which apply to such biography in the context of national security law and practice. The following sections consider Lord Diplock's role in national security oversight, emphasising the wide range of issues with a national security dimension which Diplock was called upon to consider. It then seeks to shed light on the reasons for which he was repeatedly entrusted by the government to consider matters of the utmost sensitivity by turning back to his early life, his service during the second world war, and his work thereafter.
{"title":"Judicial Biography in the National Security Constitution: Lord Diplock and a ‘Rather Silly Little Secret Racket’","authors":"Paul F. Scott","doi":"10.1111/1468-2230.12856","DOIUrl":"https://doi.org/10.1111/1468-2230.12856","url":null,"abstract":"This article considers the extra-judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work. It first considers briefly the role of judicial biography in understanding the work of judges and then the particular considerations which apply to such biography in the context of national security law and practice. The following sections consider Lord Diplock's role in national security oversight, emphasising the wide range of issues with a national security dimension which Diplock was called upon to consider. It then seeks to shed light on the reasons for which he was repeatedly entrusted by the government to consider matters of the utmost sensitivity by turning back to his early life, his service during the second world war, and his work thereafter.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138541964","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}
The Modern Law ReviewEarly View REVIEWS Cristy Clarke and John Page, The Lawful Forest: A Critical History of Property, Protest and Spatial Justice, Edinburgh: Edinburgh Critical Studies in Law, Literature and the Humanities, 2022, 225 pp, hb, £85.00 Lucy Finchett-Maddock, Lucy Finchett-Maddock [email protected] Associate Professor of Law, Bangor Law School.Search for more papers by this author Lucy Finchett-Maddock, Lucy Finchett-Maddock [email protected] Associate Professor of Law, Bangor Law School.Search for more papers by this author First published: 02 November 2023 https://doi.org/10.1111/1468-2230.12851 Email: [email protected] Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Early ViewOnline Version of Record before inclusion in an issue RelatedInformation
{"title":"CristyClarke and JohnPage, The Lawful Forest: A Critical History of Property, Protest and Spatial Justice, Edinburgh: Edinburgh Critical Studies in Law, Literature and the Humanities, 2022, 225 pp, hb, £85.00","authors":"Lucy Finchett‐Maddock","doi":"10.1111/1468-2230.12851","DOIUrl":"https://doi.org/10.1111/1468-2230.12851","url":null,"abstract":"The Modern Law ReviewEarly View REVIEWS Cristy Clarke and John Page, The Lawful Forest: A Critical History of Property, Protest and Spatial Justice, Edinburgh: Edinburgh Critical Studies in Law, Literature and the Humanities, 2022, 225 pp, hb, £85.00 Lucy Finchett-Maddock, Lucy Finchett-Maddock [email protected] Associate Professor of Law, Bangor Law School.Search for more papers by this author Lucy Finchett-Maddock, Lucy Finchett-Maddock [email protected] Associate Professor of Law, Bangor Law School.Search for more papers by this author First published: 02 November 2023 https://doi.org/10.1111/1468-2230.12851 Email: [email protected] Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Early ViewOnline Version of Record before inclusion in an issue RelatedInformation","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135934191","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}
The Modern Law ReviewEarly View REVIEWS McNeilly Kathryn and Warwick Ben (eds), The Times and Temporalities of International Human Rights Law, Oxford: Hart Publishing, 2022, 240 pp, hb, £85.00 Ntina Tzouvala, Corresponding Author Ntina Tzouvala [email protected] Associate Professor, ANU School of Law. Email: [email protected]Search for more papers by this author Ntina Tzouvala, Corresponding Author Ntina Tzouvala [email protected] Associate Professor, ANU School of Law. Email: [email protected]Search for more papers by this author First published: 01 November 2023 https://doi.org/10.1111/1468-2230.12854 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Early ViewOnline Version of Record before inclusion in an issue RelatedInformation
{"title":"KathrynMcNeilly and BenWarwick (eds), The Times and Temporalities of International Human Rights Law, Oxford: Hart Publishing, 2022, 240 pp, hb, £85.00","authors":"Ntina Tzouvala","doi":"10.1111/1468-2230.12854","DOIUrl":"https://doi.org/10.1111/1468-2230.12854","url":null,"abstract":"The Modern Law ReviewEarly View REVIEWS McNeilly Kathryn and Warwick Ben (eds), The Times and Temporalities of International Human Rights Law, Oxford: Hart Publishing, 2022, 240 pp, hb, £85.00 Ntina Tzouvala, Corresponding Author Ntina Tzouvala [email protected] Associate Professor, ANU School of Law. Email: [email protected]Search for more papers by this author Ntina Tzouvala, Corresponding Author Ntina Tzouvala [email protected] Associate Professor, ANU School of Law. Email: [email protected]Search for more papers by this author First published: 01 November 2023 https://doi.org/10.1111/1468-2230.12854 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Early ViewOnline Version of Record before inclusion in an issue RelatedInformation","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135325753","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}
At the heart of the use of assisted reproductive technologies (ARTs) is the attempt to realise a commonly anticipated future – the opportunity, if desired, to create and raise a genetically related child. For some, existing ARTs cannot assist, yet upcoming ones such as in vitro derived gametes (IVGs) may do so. However, the desire for genetically related children is frequently critiqued in debates about new ARTs. Since most heterosexual couples can have such children without assistance, and same‐sex couples are equally likely to desire them, this is highly problematic. This article presents the moral and legal case for the legalisation of IVGs, if and when judged sufficiently safe. It analyses development of the concept of ‘treatment’ in relevant UK law; argues that it is reasonable (that is, not unreasonable) to value the project of procreative parenting, thereby refuting the arguments that there is a moral duty to adopt, or that the alternatives of adoption or donor conception should suffice; explores legal recognition of the ordinary place of reproduction in social life; and considers the implications of the rights to private and family life and to non‐discrimination, particularly under the European Convention on Human Rights, highlighting the disabling nature of infertility.
{"title":"New Reproductive Technologies and Genetic Relatedness","authors":"Rosamund Scott","doi":"10.1111/1468-2230.12844","DOIUrl":"https://doi.org/10.1111/1468-2230.12844","url":null,"abstract":"At the heart of the use of assisted reproductive technologies (ARTs) is the attempt to realise a commonly anticipated future – the opportunity, if desired, to create and raise a genetically related child. For some, existing ARTs cannot assist, yet upcoming ones such as in vitro derived gametes (IVGs) may do so. However, the desire for genetically related children is frequently critiqued in debates about new ARTs. Since most heterosexual couples can have such children without assistance, and same‐sex couples are equally likely to desire them, this is highly problematic. This article presents the moral and legal case for the legalisation of IVGs, if and when judged sufficiently safe. It analyses development of the concept of ‘treatment’ in relevant UK law; argues that it is reasonable (that is, not unreasonable) to value the project of procreative parenting, thereby refuting the arguments that there is a moral duty to adopt, or that the alternatives of adoption or donor conception should suffice; explores legal recognition of the ordinary place of reproduction in social life; and considers the implications of the rights to private and family life and to non‐discrimination, particularly under the European Convention on Human Rights, highlighting the disabling nature of infertility.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136376974","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 Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on the scope of nuisance is a welcome one insofar as it decentres physical interference and aligns the operation of the tort with its normative underpinnings. More dubious is the majority's emphasis on the ‘common and ordinary use’ of land, an uncertain concept which is likely to generate difficulties in future cases. Finally, the note considers some of the broader implications of Fearn , reflecting on the public reaction to the decision and considering what the case means for privacy protection in particular.
{"title":"The View from the Top: Visual Intrusion as Nuisance in <i>Fearn</i> v <i>Tate Gallery</i>","authors":"Jeevan Hariharan","doi":"10.1111/1468-2230.12850","DOIUrl":"https://doi.org/10.1111/1468-2230.12850","url":null,"abstract":"In Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on the scope of nuisance is a welcome one insofar as it decentres physical interference and aligns the operation of the tort with its normative underpinnings. More dubious is the majority's emphasis on the ‘common and ordinary use’ of land, an uncertain concept which is likely to generate difficulties in future cases. Finally, the note considers some of the broader implications of Fearn , reflecting on the public reaction to the decision and considering what the case means for privacy protection in particular.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135266300","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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