Current Legal Problems最新文献

{"title":"Mutual Recognition: Promise and Denial, from Sapiens to Brexit","authors":"Kalypso Nicolaïdis","doi":"10.1093/CLP/CUX009","DOIUrl":"https://doi.org/10.1093/CLP/CUX009","url":null,"abstract":"This contribution argues that the European crisis in general and Brexit in particular, can be seen to reflect the partial loss of the ethos of a principle that has been at the heart of the EU, namely mutual recognition. While familiar to legal scholars as a norm governing the integration of markets and the management of conflicts of law, the essay seeks to show how this principle bears on our current European predicament as a philosophical concept and a form of governance between states before dwelling on the intricacies of mutual recognition in the EU single market. Because recognition is sought, obtained or denied in all social spheres, every discipline has its own complex variation on this simple theme requiring to connect legal theory with anthropology, philosophy, history, sociology and international relations. The essay spans all these fields through eight takes (mutual Recognition shunned, invented, enshrined, constitutionalised, managed, ‘on trial’, lost, and for grabs) which can also be interpreted as different time horizons (from Sapiens to Brexit through Westphalia). Each take provides a variation on what is referred to as “mutual recognition paradox”, eg how to increase mutual engagement and mutual deference at the very same time.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"227-266"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44875907","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}

{"title":"For Helen Reece, in memoriam","authors":"Jeff A. King, Paul Mitchell, K. Trapp","doi":"10.1093/CLP/CUX012","DOIUrl":"https://doi.org/10.1093/CLP/CUX012","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"1-1"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45966186","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}

{"title":"Foucault's pendulum: Text, context and good faith in contract law","authors":"Gerard Mcmeel","doi":"10.1093/CLP/CUX005","DOIUrl":"https://doi.org/10.1093/CLP/CUX005","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"365-397"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46797713","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}

{"title":"Illegality after Patel v Mirza","authors":"A. Burrows","doi":"10.1093/CLP/CUX008","DOIUrl":"https://doi.org/10.1093/CLP/CUX008","url":null,"abstract":"English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (which, if carried out, would constitute the crime of insider dealing). The agreement was not carried out because the information was not forthcoming. Was the claimant entitled to repayment of that money? In answering that question, a majority of the Supreme Court set out a controversial new approach to this area of the law, which was vigorously rejected by the minority judges. This lecture examines the reasoning in the case and asks whether Patel v Mirza constitutes a triumph or a tragedy for the law of illegality.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"55-71"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42076473","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}

{"title":"Hospitality, Tolerance, and Exclusion in Legal Form: Private International Law and the Politics of Difference","authors":"H. Watt","doi":"10.1093/CLP/CUX004","DOIUrl":"https://doi.org/10.1093/CLP/CUX004","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"111-147"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41408366","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}

{"title":"Changing Values and Growing Expectations: The Evolution of Capacity Law","authors":"M. Donnelly","doi":"10.1093/CLP/CUX007","DOIUrl":"https://doi.org/10.1093/CLP/CUX007","url":null,"abstract":"","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"305-336"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47808428","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}

{"title":"Patient No Longer? What Next in Healthcare Law?","authors":"J. Montgomery","doi":"10.1093/CLP/CUX006","DOIUrl":"https://doi.org/10.1093/CLP/CUX006","url":null,"abstract":"A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights of health service users as citizens. Aintree (2013) suggests that respect for professional expertise probably remains intact, but its scope is expressly limited by Montgomery (2015). That case purports to bring the law’s understanding of patients into the modern era, although a close examination reveals that the analysis is deeply flawed. The Supreme Court Justices have shown an intent to give greater scope for human rights arguments, although the basis for this, as yet, lacks a clear rationale or coherence. Montgomery claims to be a radical departure from the previous orthodoxy and suggests a need to revisit many earlier cases. The human rights turn not only alters the doctrines that underpin the law affecting healthcare, but also provides a basis for the courts to assert jurisdiction. While the European Court of Human Rights has developed jurisprudence that defers to a margin of appreciation for democratic legislatures, Nicklinson (2014) shows the UK Supreme Court asserting its authority over Parliament and may indicate that the boundaries of healthcare law are being redrawn. A v N CCG (2017) seems to continue some features of the traditional approach, but R (A & B) v Sec State for Health (2017) confirms Article 8 of the ECHR as a limiting factor, while Doogan (2014) seems to limit its scope in healthcare law (in favour of being able to balance human rights issues through employment law). Together, these developments may represent a profound shift in the constitution of healthcare law.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"70 1","pages":"73-109"},"PeriodicalIF":1.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUX006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44456276","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}

{"title":"Structural Principles and their Role in EU External Relations Law","authors":"Marise Cremona","doi":"10.1093/CLP/CUW005","DOIUrl":"https://doi.org/10.1093/CLP/CUW005","url":null,"abstract":"The nature of the Treaty provisions on EU external action, with a set of open-ended policy objectives and fewer policy-directed legal obligations on the Member States, has left much to the agenda-setting of the political institutions. The Court of Justice emphasises the need for the institutions to retain their discretion, their room for manoeuvre; it is non-interventionist, tending to take those choices at face value without seeking to define or shape them. Instead it has taken on another role: it ensures that the institutions act within their powers, and that the Member States do not obstruct the formation and implementation of Union policy. It is in fact engaged in establishing and protecting an institutional space within which policy may be formed, in which the different actors understand and work within their respective roles. The principles which have been drawn from the Treaties and elaborated by the Court to establish this institutional space are identified here as ‘structural principles’. They include the duty of sincere cooperation, the principles of conferral and institutional balance, mutual solidarity, subsidiarity, and the principle of autonomy. By identifying and developing these principles, which by their nature are flexible and capable of evolution, the Court of Justice exercises a formidable role in the governance of EU external action despite its hands-off approach to substantive policy choice. This paper seeks to explore further the nature of these structural principles as legal norms. It first offers an explanation for the importance of structural principles in the EU’s external relations by exploring the nature of EU external relations powers. Second it begins an enquiry into the nature of structural principles: what does it mean to say that they are principles, that they are structural, and that they operate within external relations? Third, it offers a tentative typology of structural principles and some ideas on the ways in which they may complement and operate in tension with each other. * European University Institute © The Author 2016. Published by Oxford University Press on behalf of Faculty of Laws, University College London. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"69 1","pages":"35-66"},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60877917","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}

{"title":"‘Unjust Enrichment’—the Potion that Induces Well-meaning Sloppiness of Thought","authors":"Peter G. Watts","doi":"10.1093/CLP/CUW010","DOIUrl":"https://doi.org/10.1093/CLP/CUW010","url":null,"abstract":"Making enrichment the focus of restitutionary liability is a fundamental error. It leads to an untenable prejudice against unearned gain. At the same time, it denies restitution to parties who should obtain it. Only limited interests have been, and ought to be, protected by the law of restitution. These include autonomy in the transfer of our property and in committing ourselves to binding obligations. Where the protections are triggered, restitution follows whether or not the defendant has been enriched. Expenditure of our time and effort is not (or is almost never) a protected interest, nor is our paying a third party to do things, even if others are enriched thereby. Such others need to have requested the expenditure or otherwise participated in a way that makes it just that they cover or contribute to the resulting costs—where such participation is present, enrichment is (almost always) superfluous. By buying into the concept of “unjust enrichment”, English courts since Banque Financiere have overlooked and sometimes ignored paths of long-established precedent, and headed off into the wilderness. Bad claims have been recognised and good ones spurned. Even when the courts alight at the right place, we find judges not clearly or consistently identifying the enrichment that they say helped them get there, or we find them deeming an enrichment to have been present when they know it was not really there.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"69 1","pages":"289-325"},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CLP/CUW010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878124","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}

{"title":"The Myth of the Remedial Constructive Trust","authors":"C. Webb","doi":"10.1093/clp/cuw013","DOIUrl":"https://doi.org/10.1093/clp/cuw013","url":null,"abstract":"Remedial constructive trusts are held out as a way for the courts to make better decisions: freed from the strictures of rules, courts would be better positioned to do justice on the facts, tailoring a remedy to the circumstances of the case. If this were true, their rejection in English law would be a serious failing. But a closer look at the relationship between rules and discretion suggests that it’s not true and that, when discretion is in genuine opposition to rule-determined decision-making, the outcome is not more justice but less. Moreover, when we look to the arguments of those calling for remedial constructive trusts to be introduced into English law and to those jurisdictions which claim to recognize them, this much seems to be agreed. Such differences as there are go instead to the substantive rules which govern the operation of constructive trusts. So the question English law faces is not whether we should recognise some ‘new model’ of constructive trust, but rather the more familiar inquiry into what rules are best. In addressing this question, the idea of the ‘remedial’ constructive trust is only an unnecessary distraction.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"69 1","pages":"353-376"},"PeriodicalIF":1.2,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/clp/cuw013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60878331","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}