The Modern Law Review最新文献

{"title":"Brexit, Covid-19, and Possible Frameworks for Future UK/EU Financial Governance Cooperation.","authors":"Elizabeth Howell","doi":"10.1111/1468-2230.12650","DOIUrl":"https://doi.org/10.1111/1468-2230.12650","url":null,"abstract":"<p><p>The EU project is at an inflection point. Intra-EU alliances are altering following the UK's departure, the EU's financial markets remain segmented, and there is limited appetite for completing the Banking Union. The second stage of Brexit negotiations also collided with the Covid-19 pandemic, which has strained economies around the world. These issues amount to a 'polycrisis' for the EU, raising existential questions about its future. This article focuses on one strand of the debates generated within this polycrisis: future UK/EU policy cooperation with respect to financial governance. The article discusses the importance of the financial services sector to the UK and the EU, and examines potential institutional options for future cooperation. In particular, it advocates harnessing dexterous aspects evident within precedents, including existing EU/third country association agreements, to develop a functional arrangement for future financial governance cooperation, which could also lead to closer UK/EU cooperation than currently appears likely.</p>","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"84 6","pages":"1227-1256"},"PeriodicalIF":0.9,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.12650","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"39429357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems.","authors":"Nicola Lacey, Hanna Pickard","doi":"10.1111/1468-2230.12114","DOIUrl":"10.1111/1468-2230.12114","url":null,"abstract":"<p><p>The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.</p>","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"78 2","pages":"216-240"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://ftp.ncbi.nlm.nih.gov/pub/pmc/oa_pdf/14/32/emss-63158.PMC4411308.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"33271672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Impotence or importance? Judicial review in an era of explicit NHS rationing.","authors":"Keith Syrett","doi":"10.1111/j.1468-2230.2004.00487.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2004.00487.x","url":null,"abstract":"","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"67 2","pages":"289-304"},"PeriodicalIF":0.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/j.1468-2230.2004.00487.x","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25906871","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}

{"title":"Reproductive opportunities and regulatory challenges.","authors":"Roger Brownsword","doi":"10.1111/j.1468-2230.2004.00488.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2004.00488.x","url":null,"abstract":"","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"67 2","pages":"304-21"},"PeriodicalIF":0.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/j.1468-2230.2004.00488.x","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25906872","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}

{"title":"Autonomy, guardianship and mental disorder: one problem, two solutions.","authors":"Genevra Richardson","doi":"10.1111/1468-2230.00404","DOIUrl":"https://doi.org/10.1111/1468-2230.00404","url":null,"abstract":"<p><p>The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.</p>","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"65 5","pages":"702-23"},"PeriodicalIF":0.9,"publicationDate":"2002-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579584","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}

{"title":"Stem cells, Superman, and the report of the Select Committee.","authors":"Roger Brownsword","doi":"10.1111/1468-2230.00396","DOIUrl":"https://doi.org/10.1111/1468-2230.00396","url":null,"abstract":"In 1998, the Wisconsin-based biologist James Thomson announced that his research group had made a major breakthrough by successfully isolating human embryonic stem cells (hES cells). On this side of the Atlantic, too, there have been important developments, both scientific and regulatory. Most recently, in February 2002, the Human Fertilisation and Embryology Authority announced that, pursuant to the Human Fertilisation and Embryology (Research Purposes) Regulations 2001,1 it had issued the first licences in the United Kingdom for basic hES cell research to be undertaken. Why have these, and similar, announcements prompted a sense of great excitement and anticipation but also, and in just about equal measure, a sense of tremendous anxiety and deep concern? Attempting to answer such questions, a House of Lords Select Committee has recently published the most detailed review yet in the United Kingdom of the science and ethics of stem cell research and the regulatory issues to which it gives rise.2 First, why the excitement? Stem cells are special because they are a potential source of new cells for example, blood stem cells will replenish blood cells, neural stem cells will replenish brain cells, skin stem cells will replace skin, and so on. ES cells, however, are special because they are still in a so-called pluripotent state. As pluripotent stem cells, hES cells have the potential to develop into any one of the 200 or so human cell types and, in natural development, they will duly differentiate in this way. Those stem cells that have already developed to perform one or more specialised functions are called 'adult' stem cells (regardless of whether they are located in an adult person); and, whilst adult stem cells might have a number of possible differentiated functions and, thus, are multipotent the othodox view is that their function in the human body is relatively stable. In other words, whilst say blood stem cells might be able to regenerate blood cells, they are not thought to have the capacity to regenerate brain cells; and, similarly, neural stem cells are not thought to have the capacity to regenerate blood cells. Having isolated, purified and cultured hES cells, the next step is to seek to understand and simulate the mechanisms by which they differentiate to become specialised adult stem cells. The importance of such an advance in our knowledge","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"65 4","pages":"568-87"},"PeriodicalIF":0.9,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00396","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24578515","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}

{"title":"Consent or property? Dealing with the body and its parts in the shadow of Bristol and Alder Hey.","authors":"K Mason,&nbsp;G Laurie","doi":"10.1111/1468-2230.00347","DOIUrl":"https://doi.org/10.1111/1468-2230.00347","url":null,"abstract":"<p><p>This article first considers the tenuous base on which the law of property in the body is founded, and then discusses the practical results of this in the light of the recent furore surrounding events at Bristol and Alder Hey. The authors suggest that neither the consent-based model followed by the official inquiries into these events nor a possible policy based on a full-blown property model adequately cover the private rights of an individual's next of kin or the right of the public to an efficient and reliable pathological service within the NHS. Rather, they propose that a combined model in which a 'cascade of possession' for the recognition of various property interests is initiated by assent on the part of the next of kin and terminates in full possession of the body vested in the execution for the purposes of its disposal. The authors recommend further that any reform of the law should apply property rights to body parts taken from both the living and the dead.</p>","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"64 5","pages":"710-29"},"PeriodicalIF":0.9,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00347","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22380823","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}

{"title":"Stenberg v Carhart: a divided US Supreme Court debates partial birth abortion.","authors":"L Heffernan","doi":"10.1111/1468-2230.00342","DOIUrl":"https://doi.org/10.1111/1468-2230.00342","url":null,"abstract":"Ultimately, it is suggested, the logic of the on-going constitutional change will require the setting up a properly established constitutional court for the United Kingdom, with properly identified, tenured and explicitly independent judges, perhaps appointed after parliamentary hearings along the lines of the US Supreme Court. The genie of constitutional reform is out of the bottle and has acquired its own dynamic. It would appear we have not completed the task of writing the constitution.","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"64 4","pages":"618-27"},"PeriodicalIF":0.9,"publicationDate":"2001-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00342","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25906870","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}

{"title":"Religious beliefs and teenage refusal of medical treatment.","authors":"C Bridge","doi":"10.1111/1468-2230.00224","DOIUrl":"https://doi.org/10.1111/1468-2230.00224","url":null,"abstract":"More than a decade ago the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority' appeared to grant mature minors the right to make independent decisions. The judgment was widely regarded as a triumph for children's rights and was quickly followed by legislative measures designed to enhance the status of children's wishes and feelings2 and recognise their rights to participate in decision-making.3 Adolescent autonomy in medical matters looked set to become a reality when a series of cases during the 1990s revealed the complexities and uncertainties inherent in the Gillick decision.4 In an apparent 'reversal of fortune' judges proceeded to overrule the medical decisions of older children in favour of the clinical judgments of their doctors. The welfare of the child appeared, superficially at least, to have overruled any newly acquired autonomy rights. Subsequent academic debate sought to analyse the diverse concerns which motivated the apparent retreat from Gillick.5 First, it focused on the socio-legal and medical factors responsible for triggering teenage refusal of treatment6 and, secondly, it sought to unravel the ethical concept of autonomy in relation to young people.7 It is now apparent that cases where legal intervention has been prompted by the young person's refusal to accept treatment fall into one of two categories: (1) the young person concerned has either been mentally disturbed or mentally ill thus rendering the objection to treatment invalid; or (2) the refusal has been prompted by a religious belief which denounces the specific form of treatment. In the former category all the teenagers were afflicted with defects in reasoning and control and lacked the capacity to make a true choice. The","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"62 4","pages":"585-94"},"PeriodicalIF":0.9,"publicationDate":"1999-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00224","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22408853","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}

{"title":"Adolescent autonomy, detention for medical treatment and Re C.","authors":"P de Cruz","doi":"10.1111/1468-2230.00225","DOIUrl":"https://doi.org/10.1111/1468-2230.00225","url":null,"abstract":"Does an adolescent suffering from anorexia have the 'right' to refuse life-saving treatment and have the 'right' to die?' Does she have autonomy in these circumstances the right to grant or refuse medical treatment? Do English courts have the right to authorise that adolescent's detention and the use of reasonable force to effect life-saving treatment? These issues faced the High Court in the case of Re C,2 concerning C, a 16-year-old anorexic girl. It aroused considerable media attention because it was reported as being the first case where a court had ruled that it had jurisdiction to authorise the forcible detention of a child at common law (and therefore outside the Mental Health Act) in order for that child to receive medical treatment. Yet this was not the first such case. In Re W (A Minor) (Consent to Medical Treatment)3 the Court of Appeal had declared (somewhat controversially) that while 16-year-olds could consent to treatment they could not refuse such treatment if the circumstances were such that the court considered them incom-","PeriodicalId":513081,"journal":{"name":"The Modern Law Review","volume":"62 4","pages":"595-604"},"PeriodicalIF":0.9,"publicationDate":"1999-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/1468-2230.00225","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22408855","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}