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Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making 街头侵权法:责任决策的官僚正义
Wiley-Blackwell: Modern Law Review Pub Date : 2012-05-01 DOI: 10.1111/j.1468-2230.2012.00904.x
S. Halliday, J. Ilan, C. Scott
{"title":"Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making","authors":"S. Halliday, J. Ilan, C. Scott","doi":"10.1111/j.1468-2230.2012.00904.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2012.00904.x","url":null,"abstract":"Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision-making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non-state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114118671","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: 11
Transgender Marriage and the Legal Obligation to Disclose Gender History 跨性别婚姻与披露性别史的法律义务
Wiley-Blackwell: Modern Law Review Pub Date : 2012-01-01 DOI: 10.1111/j.1468-2230.2011.00887.x
A. Sharpe
{"title":"Transgender Marriage and the Legal Obligation to Disclose Gender History","authors":"A. Sharpe","doi":"10.1111/j.1468-2230.2011.00887.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00887.x","url":null,"abstract":"Section 12 of the Matrimonial Causes Act 1973 as amended by the Gender Recognition Act 2004 requires transgender people to disclose their ‘gender history’ to the other party to a marriage prior to the marriage ceremony. Failure to do so enables the other party to exit the relationship through nullity proceedings. This article argues that this provision is discriminatory and encroaches on the right to privacy, breaching Articles 14 and 8 of the European Convention on Human Rights. It challenges the idea, implicit in the provision, that non‐disclosure of gender history is unethical or fraudulent. Crucially, the article considers and rejects the claim that discrimination against and encroachments on the privacy of transgender people are justified because inadvertent sexual congress with a transgender person is potentially harmful. Finally, if a consent‐based right to know exists, it argues that it ought to be trumped by considerations of justice, legal consistency and public policy.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131310671","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: 17
Are Children's Best Interests Really Best? ZH (Tanzania) (FC) V Secretary of State for the Home Department 孩子的最大利益真的是最好的吗?ZH(坦桑尼亚)(FC) V内政部国务秘书
Wiley-Blackwell: Modern Law Review Pub Date : 2011-11-01 DOI: 10.1111/j.1468-2230.2011.00879.x
J. Fortin
{"title":"Are Children's Best Interests Really Best? ZH (Tanzania) (FC) V Secretary of State for the Home Department","authors":"J. Fortin","doi":"10.1111/j.1468-2230.2011.00879.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00879.x","url":null,"abstract":"Although the Supreme Court's decision in ZH (Tanzania) is an important one, as this note explains, it is less novel than many suppose – and is in some ways disappointing. By stressing the importance of immigrant children's best interests, it fails to use this opportunity to promote their Convention rights effectively.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116025531","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: 8
Horizontal Effect and the Constitutional Constraint 横向效应与宪法约束
Wiley-Blackwell: Modern Law Review Pub Date : 2011-11-01 DOI: 10.1111/j.1468-2230.2011.00876.x
Professor Gavin Phillipson, Alexander Williams
{"title":"Horizontal Effect and the Constitutional Constraint","authors":"Professor Gavin Phillipson, Alexander Williams","doi":"10.1111/j.1468-2230.2011.00876.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00876.x","url":null,"abstract":"This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard-edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non-Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"45 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114074702","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: 11
On Her Majesty's Commercial Service: Bribery, Public Officials and the UK Intelligence Services 《女王陛下的商业服务:贿赂、公职人员和英国情报机构》
Wiley-Blackwell: Modern Law Review Pub Date : 2011-11-01 DOI: 10.1111/J.1468-2230.2011.00877.X
Jeremy Horder
{"title":"On Her Majesty's Commercial Service: Bribery, Public Officials and the UK Intelligence Services","authors":"Jeremy Horder","doi":"10.1111/J.1468-2230.2011.00877.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2011.00877.X","url":null,"abstract":"This article sets into context and analyses the justification for committing bribery granted to the intelligence services by section 13 of the Bribery Act 2010. Particularly criticised is the extension of section 13 to include the intelligence services' statutory function of furthering ‘the economic well‐being’ of the UK. In a context in which there are high risks of corruption in forms of export business such as arms trading, it should not be acceptable that it is open to the intelligence services, if need be, to use bribery or related offences to further such business interests on behalf of the UK. More broadly, it is argued that the breadth of section 13 illustrates the moral ambivalence of the UK when it comes to bribery overseas. This is in spite of the strengthening of the law more generally through the Bribery Act 2010, in its application to overseas trade.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134038436","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: 2
Distorting Vicarious Liability 扭曲替代责任
Wiley-Blackwell: Modern Law Review Pub Date : 2011-11-01 DOI: 10.1111/J.1468-2230.2011.00878.X
P. Morgan
{"title":"Distorting Vicarious Liability","authors":"P. Morgan","doi":"10.1111/J.1468-2230.2011.00878.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2011.00878.X","url":null,"abstract":"The note considers the decision of the Court of Appeal in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church and analyses the application of the status based risk approach to vicarious liability in that case. It considers its application outside of the area of clerical sexual abuse, and also the role in vicarious liability of job conferred status which materially increases the risk of the commission of a tort, or helps to facilitate a tort.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129476265","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: 3
Libel: Its Purpose and Reform 诽谤:目的与改革
Wiley-Blackwell: Modern Law Review Pub Date : 2011-11-01 DOI: 10.1111/J.1468-2230.2011.00875.X
D. Howarth
{"title":"Libel: Its Purpose and Reform","authors":"D. Howarth","doi":"10.1111/J.1468-2230.2011.00875.X","DOIUrl":"https://doi.org/10.1111/J.1468-2230.2011.00875.X","url":null,"abstract":"Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132025717","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: 8
Deference on Questions of Law 法律问题上的尊重
Wiley-Blackwell: Modern Law Review Pub Date : 2011-09-01 DOI: 10.1111/j.1468-2230.2011.00867.x
P. Daly
{"title":"Deference on Questions of Law","authors":"P. Daly","doi":"10.1111/j.1468-2230.2011.00867.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00867.x","url":null,"abstract":"Contrary to the modern English position, it may be appropriate for reviewing courts to accord deference to interpretations of law rendered by administrators. There is no basis for the current strong presumption against according such deference. It is possible that the legislature intended to delegate the resolution of many questions of law to administrators, rather than to courts. Moreover, relative to administrators, courts may lack institutional competence to resolve questions of law. Courts must always police the boundaries of interpretation, in order to keep administrators in check and safeguard the rule of law, but the general presumption that the resolution of questions of law is a matter for courts should be jettisoned.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115760817","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: 7
Complicating Complicity: Aiding and Abetting Causing Death by Dangerous Driving in R v Martin 复杂的共犯:协助和教唆危险驾驶致人死亡
Wiley-Blackwell: Modern Law Review Pub Date : 2011-09-01 DOI: 10.1111/j.1468-2230.2011.00870.x
S. Cunningham
{"title":"Complicating Complicity: Aiding and Abetting Causing Death by Dangerous Driving in R v Martin","authors":"S. Cunningham","doi":"10.1111/j.1468-2230.2011.00870.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00870.x","url":null,"abstract":"The law of complicity, particularly relating to joint enterprise liability, appears to becoming more and more complicated. Cases on secondary liability for murder in the Court of Appeal demonstrate that this area of law is difficult to interpret and to apply. Even more complex is the question of how to apply these cases to offences other than murder. This case note attempts to address the Court of Appeal's questions in the case of R v Martin as to how the jury ought to be directed in a case of aiding and abetting causing death by dangerous driving.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121860655","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: 3
Introducing a New Diminished Responsibility Defence for England and Wales 为英格兰和威尔士引入新的减少责任防御
Wiley-Blackwell: Modern Law Review Pub Date : 2011-09-01 DOI: 10.1111/j.1468-2230.2011.00869.x
Louise Kennefick
{"title":"Introducing a New Diminished Responsibility Defence for England and Wales","authors":"Louise Kennefick","doi":"10.1111/j.1468-2230.2011.00869.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2011.00869.x","url":null,"abstract":"A divisive law from the outset, the diminished responsibility defence has continued to arouse criticism since its inception over fifity years ago under section 2 of the Homicide Act 1957. Increasing pressure from academics, practitioners, and mental health professionals, among others, to restructure the law has resulted in a reformulation of the wording of section 2 under the unassuming auspices of section 52 of the Coroners and Justice Act 2009. This paper examines the new definition of diminished responsibility on two levels: the broader context and structural significance of the Act and section 52's place within it; and, the technical detail of the section itself. In so doing, consideration is given as to whether the new law appeases the critics of the old, in addition to whether the Government has succeeded in bringing to bear its objectives of clarity, fairness and effectiveness.","PeriodicalId":426546,"journal":{"name":"Wiley-Blackwell: Modern Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129472372","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: 3
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