OUP: Oxford Journal of Legal Studies最新文献

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Revisiting the Contribution of Literal Meaning to Legal Meaning 重新审视字面意义对法律意义的贡献

OUP: Oxford Journal of Legal Studies Pub Date : 2010-06-20 DOI: 10.1093/OJLS/GQP030

B. Flanagan

引用次数: 8

Justifying Gain-Based Remedies for Invasions of Privacy 为侵犯隐私的利益救济辩护

OUP: Oxford Journal of Legal Studies Pub Date : 2009-06-20 DOI: 10.1093/OJLS/GQP005

N. Witzleb

{"title":"Justifying Gain-Based Remedies for Invasions of Privacy","authors":"N. Witzleb","doi":"10.1093/OJLS/GQP005","DOIUrl":"https://doi.org/10.1093/OJLS/GQP005","url":null,"abstract":"In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights.","PeriodicalId":344576,"journal":{"name":"OUP: Oxford Journal of Legal Studies","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125308892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

Europe's Constitutional Monstrosity* 欧洲的宪法怪物*

OUP: Oxford Journal of Legal Studies Pub Date : 2005-07-01 DOI: 10.1093/OJLS/GQI016

Nico Krisch

{"title":"Europe's Constitutional Monstrosity*","authors":"Nico Krisch","doi":"10.1093/OJLS/GQI016","DOIUrl":"https://doi.org/10.1093/OJLS/GQI016","url":null,"abstract":"Reason often falls into despair when confronted with its distance from reality. In 1667, Samuel Pufendorf realized this distance and he became furious: the political structure in which he lived, the German Holy Roman Empire, appeared to him so irregular and arbitrary that he could only call it “monstro simile”: similar to a monster.1 Philip Allott may be today’s Pufendorf, except that it is yet unclear whether the idea of reason he believes in is, like that of his predecessor, on the rise; in these late-modern or even post-modern times, he may well fight a losing battle. For Allott today, it is the European Union that is unbearably irregular and contradictory in its construction: he sees it as an Ungeheuer, as a monster produced, in Goya’s words, by the sleep of reason.2 His vision is, instead, that of a well-ordered, coherent structure: of a unity brought about by European society in an act of “self-constituting”. But his is only an epilogue in the volume under review, and his vision of unity is hardly shared by the other authors in it. With many different nuances, most of them agree with Allott’s characterization of the irregularity of the European Union, yet they do not call it “monstrous” but “pluralist” or “polycentric” and do not see anything inherently bad in it. Some even praise polycentricity as a model for the future; most, however, acknowledge it as a fact and, in pragmatic fashion, base their further theorizing upon it. In this they may be not so far from the theorists of the Holy Roman Empire, of whom one observer stated at the end of the 17th century: “While in the other disciplines of law reason prevails, in the public law of Germany it is history instead.”3","PeriodicalId":344576,"journal":{"name":"OUP: Oxford Journal of Legal Studies","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132060190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 14