{"title":"Putting behavioural economics in its place: the new realism of law, economics and psychology and its alternatives","authors":"Sabine Frerichs","doi":"10.53386/nilq.v72i4.920","DOIUrl":"https://doi.org/10.53386/nilq.v72i4.920","url":null,"abstract":"The behavioural turn in economics has spilled over into the field of law and economics. Some scholars even consider behavioural economics a variety of new legal realism, invoking earlier efforts to promote law as a behavioural and social science. In fact, behavioural economics works towards more realistic assumptions about human behaviour by drawing on empirical research methods, namely economic experiments. However, not all realisms are alike. Much of the mainstream of behavioural economics is inspired by cognitive psychology, which entails a move from behaviour to cognition and, ultimately, to brains. For scholars with a socio-legal background, legal realism rather points in the opposite direction: to the social contexts and institutional frameworks that shape individual behaviour. By exploring alternative options for a new realism at the intersection of law, economics, and related disciplines, this article exposes the relative neglect of institutions in behavioural economics and the tendency to reduce them to a corrective for cognitive biases in applications to law. At the same time, it provides a broad overview of different varieties of realism next to behavioural-economic ones.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45851428","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":"‘I presume she wanted it to happen’: rape, reasonable belief in consent, and law reform in Northern Ireland","authors":"E. Dowds","doi":"10.53386/nilq.v73iad1.946","DOIUrl":"https://doi.org/10.53386/nilq.v73iad1.946","url":null,"abstract":"In Northern Ireland (NI), determinations of whether the crime of rape has occurred require consideration of the accused’s reasonable belief in the complainant’s consent (the ‘reasonable belief threshold’). Drawing on the rich body of feminist scholarship critiquing this threshold, this article makes two core contributions. First, through a thematic analysis of trial transcripts and news reports from the high-profile 2018 ‘Rugby Rape Trial’ in NI, the article illustrates how trial narratives around consent and reasonable belief in consent ‘responsibilise’ the complainant while minimising the (in)actions of the accused. Second, the article evaluates the proposal in the 2019 Gillen Review that this threshold should be reworded to take account of the accused’s failure to take steps to ascertain the complainant’s consent. It is argued that, while this proposal has the potential to subtly redistribute narratives of responsibility, such potential can only be realised through a change in prosecutorial practice to ensure attention to the ‘steps to ascertain consent’ provision.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44350089","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":"Against the act/omission distinction","authors":"Mark Dsouza","doi":"10.53386/nilq.v73iad1.945","DOIUrl":"https://doi.org/10.53386/nilq.v73iad1.945","url":null,"abstract":"The act/omission distinction is widely thought of as being of foundational importance in the substantive criminal law of liberal states. While acts can be proper targets for criminal offences, it is thought that we should only exceptionally criminalise omissions. I argue against this piece of criminal law orthodoxy by showing that if we are careful to fairly compare acts and omissions qua targets for criminalisation, then none of the standard arguments in favour of the act/omission distinction convince. In fact, on close examination, there is little reason to think that an omission cannot perform the role played by the conduct element in the structure of a criminal offence, just as well as an act can.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48371361","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":"Protecting private information in the digital era:","authors":"Fiona Brimblecombe, H. Fenwick","doi":"10.53386/nilq.v73iad1.937","DOIUrl":"https://doi.org/10.53386/nilq.v73iad1.937","url":null,"abstract":"Globally, enhanced data protection schemes are being introduced in the face of threats to privacy in the digital era. In England and Wales, protection from one such threat – from unconsented-to disclosures of private information online – is covered by both the established tort of misuse of private information and a recently enhanced data protection scheme, arising under the General Data Protection Regulation 2016 (GDPR), providing, in particular, the right to erasure. The previous scheme ran alongside the tort, in an uneasy relationship which, until recently, saw its marginalisation in the privacy context under consideration, with the result that the data protection jurisprudence in this context is impoverished, while the tort jurisprudence and scholarship has flourished. This article argues that merely noting that the two causes of action are available and may arise in the same claim provides a limited response. With the advent of the United Kingdom GDPR and the rise in the dangers to protection of private information posed by the ‘tech’ companies, it presents a new argument in opposition to the two separate silos into which scholarship in this area has fallen and, more importantly, in favour of the opportunities the two actions provide for addressing the range and variety of privacy claims, especially against online ‘intermediaries’, including from non-celebrities. To that end it probes the differences between the designs of the key elements of the two actions which might render one more apt or able to provide privacy protection, depending on the situation, than the other, especially in the online context. It also considers as a warning potentialities within both that could detract from their efficacy.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41732077","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":"The Law and Practice of the Ireland-Northern Ireland Protocol","authors":"Gary M. Simpson","doi":"10.1017/9781009109840","DOIUrl":"https://doi.org/10.1017/9781009109840","url":null,"abstract":"The Ireland-Northern Ireland Protocol, part of the Withdrawal Agreement concluded between the European Union and the United Kingdom, is intended to address the difficult and complex impact of Brexit on the island of Ireland, North and South, and between Ireland and Great Britain. It has become an exceptionally important, if controversial, part of the new architecture that governs the relationship between the UK and the EU more generally, covering issues that range from trade flows to free movement, from North-South Co-operation to the protection of human rights, from customs arrangements to democratic oversight by the Northern Ireland Assembly. This edited collection offers insights from a wide array of academic experts and practitioners in each of the various areas of legal practice that the Protocol affects, providing a comprehensive examination of the Protocol in all its legal dimensions, drawing on international law, European Union Law, and domestic constitutional and public law. This title is also available as Open Access.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48741075","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":"What happened in there? Confessions, credibility and automatic exclusion: the case of Artt and confession admissibility","authors":"Eamonn Rea","doi":"10.53386/nilq.v73iad1.869","DOIUrl":"https://doi.org/10.53386/nilq.v73iad1.869","url":null,"abstract":"Confessions ought to be excluded if it is shown that credibility of the police’s version of events at interview is disputed, and it is found procedural requirements relating to recording of interviews under Police and Criminal Evidence Act 1984 Codes were not observed. This article posits that, where the assessment of what occurred in an interview room depends on the trial judge’s assessment of the accused’s credibility versus the police’s credibility, a breach of the relevant Codes should mean a trial judge should doubt the police’s version of events and prefer the accused’s version of events. This leads to the exclusion of the confession.While giving particular attention to the recent Northern Ireland Court of Appeal decision of R v Kevin Artt, this article suggests a policy that can apply to jurisdictions beyond the Northern Irish jurisdiction, especially where recording of interviews is not routine. Analogies will be made with similar provisions in the United States where appropriate.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42230722","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":"Secretary of State for Justice v A Local Authority and others: disability and access to sex workers","authors":"M. Regan, K. Brown","doi":"10.53386/nilq.v72i3.970","DOIUrl":"https://doi.org/10.53386/nilq.v72i3.970","url":null,"abstract":"This is a commentary on Secretary of State for Justice v A Local Authority and others, where the decision of the Court of Protection has been overturned by the Court of Appeal. The judgment has implications for (i) the article 8 and article 14 rights of those who lack capacity to arrange lawful sexual services; (ii) the criminal liability of their carers who are enlisted to assist with such arrangements; and, potentially, (iii) the ban on payment for sexual services in Northern Ireland.\u0000 ","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48187236","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":"‘Survival of the fittest’? Perceptions of wellbeing at The Bar of Northern Ireland","authors":"Neil Graffin, Emma Jones","doi":"10.53386/nilq.v72i3.715","DOIUrl":"https://doi.org/10.53386/nilq.v72i3.715","url":null,"abstract":"This article, based on a qualitative study conducted in June–July 2019, assesses how barristers at the Bar of Northern Ireland perceive wellbeing and mental ill-health within their profession. It will argue that the Bar can be a competitive and potentially hostile workplace environment, leading to detrimental impacts on wellbeing. It will also contend that being a barrister in Northern Ireland provides its own unique challenges for practitioners due to the self-employed independent nature of the role, where practitioners do not work in chambers or stables like their counterparts in England & Wales and Scotland. At the same time, barristers spoke positively about the flexibility of their roles and beneficial forms of collegiality, as well as an evolving culture which places greater emphasis on wellbeing. This article will argue, using the ‘job demands and resources’ model, that efforts should be made to decrease job demands and increase the job resources of barristers of the Bar of Northern Ireland to improve levels of wellbeing. This model could also be applied to the Bar in other jurisdictions to assess the impact of both shared and unique challenges and opportunities.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42166935","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":"Confiscation orders, confusion and a lament for the past: the case of Bernadette Hilton: R v Hilton [2020] UKSC 29","authors":"J. Stannard","doi":"10.53386/nilq.v72i3.971","DOIUrl":"https://doi.org/10.53386/nilq.v72i3.971","url":null,"abstract":"<jats:p>N/A</jats:p>","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46099256","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":"Motor insurers ignore the law, again","authors":"Dorothy Dowling","doi":"10.53386/nilq.v72i3.883","DOIUrl":"https://doi.org/10.53386/nilq.v72i3.883","url":null,"abstract":"At the 2020 AGM of the Chartered Insurance Institute it was conceded that COVID-19 had caused reputational damage to the sector because of its treatment of consumers during the current crisis. That, however, was at a time of public spotlight on only some of the underlying issues of corporate culture. An ongoing question that needs to be addressed is that of insurers’ lack of fairness to claimants, particularly those injured by uninsured vehicles, and the failure or even refusal of governments to redress that imbalance. One aspect of that enquiry is addressed in this article.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46810919","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}