Proper Scope Research Articles

Brussels I and Third States: Future Imperfect?

AbstractIn December 2010 the European Commission published its long-awaited proposals for the reform of the Brussels I Regulation on civil jurisdiction and the enforcement of judgments. These concern matters of considerable practical importance. But they also expose fundamental questions about the Regulation’s proper scope, and its role in complex commercial disputes, which will persist long after the terms of the amended Regulation are settled.

Brussels I and Third States: Future Imperfect?

Abstract In December 2010 the European Commission published its long-awaited proposals for the reform of the Brussels I Regulation on civil jurisdiction and the enforcement of judgments. These concern matters of considerable practical importance. But they also expose fundamental questions about the Regulation’s proper scope, and its role in complex commercial disputes, which will persist long after the terms of the amended Regulation are settled.

Republication of Defamation under the Doctrine of Reportage--The Evolution of Common Law Qualified Privilege in England and Wales

This paper examines the ‘doctrine of reportage’—a particular application of the Reynolds qualified privilege defence to defamation recognized by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognized in Reynolds and that its jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected.

Duties beyond Borders

Duties Beyond BordersA via media approach to morality in international politics?Is there a place for moral and ethical action in international politics? And if yes, what is the proper scope and place of those concerns in the making of states' foreign policy? What are the obstacles and possibilities for the realization of ethical foreign policy? Where do ethical concerns stem from, i.e., what is their origin? What are the target and agency of an ethical foreign policy? In his now-classical Duties Beyond Borders - the 1982 winner of Le Prix Adolphe Bentick for its contribution to the unity and cause of peace in Europe - Stanley Hoffmann gives an affirmative answer to the first question and elaborates on the others.1 Though he is driven by a staunch commitment to liberal values and the advancement of moral cause in international affairs, Hoffmann is sharply aware of the reality of international life characterized by power politics. Thus, in his endeavour to open up space for morality in the game of politics, he lays out a moral politics, paying attention to pragmatic and realist constraints in international affairs. In elaborating his notion of an ethical foreign policy, Hoffmann gives us important clues about his understanding of international relations, especiaUy insofar as world society, its basic features, and the role of the states and individuals within that society are concerned. It is upon those latter aspects that this article intends primarily to focus.THE BOOK IN CONTEXT: MORALITY AND INTERNATIONAL RELATIONSIn Duties beyond Borders, consisting of five lectures delivered at Syracuse University, Hoffmann takes on an age-old controversy, the place of morality in international politics. Although traditional Machia veUian statecraft did not place ethical concerns high on the agenda of international politics, there existed a stream of thought that gave priority to advancing nonmaterial aspects of international relations - for example, the just war tradition or the Kantian project of cosmopolitanism. Yet the burgeoning discipline of international relations in the post- Second World War period pushed those considerations to the margins ofthe academic study of world politics. Above all, realism, the dominant paradigm of postwar international relations, defined itself vis-a-vis the moralism, or idealism, of the interwar period, which was blamed for causing the calamities of a great war. Second, the methodological debates within the discipline, which ended with the triumph of a scientific or behaviouralist approach over a traditionalist one, contributed to the isolation of international politics from the contaminating effects of moralism. Indeed, it proved to be rather difficult to study elusive moral issues with scientific rigour in a positivistic research agenda. Moreover, a strict commitment to MachiaveUian ethics, with its heavy emphasis on the primacy ofthe state, the survival ofthe state, and advancing states' interests, complemented the tendency to exclude ethical dimensions of international politics. In an age of superpowers equipped with nuclear weapons, how could one dare pursue any moral end other than the survival ofthe nation? Even the (neo)liberal institutionalist theories that mounted the major challenge against mainstream realism by emphasizing the cooperative and non-power aspects of international relations could not escape this tendency. Not only did they construct their theories by mirroring (neo)realist assumptions on the nature of international politics within a positivist paradigm, but they also took great pains to emphasize that their notion of cooperation was not based on assumptions about normative motivations on the part of the states, but rather convergence ofthe common interests of essentiaUy selfish actors.2However, on the fringes of mainstream international relations, attention was paid to the ethical dimensions of foreign policy. Traditionalist international relations scholars were mostly concerned with the place and nature of morality in international politics. …

The Uncertainties in the Rule in Re Hasting-Bass

Writing extra-judicially, Sir Robert Walker once commented that ‘the decision in Re Hastings-Bass must be seen in its judicial context. It cannot be regarded as giving a “carte blanche” excuse to every body of trustees who have made a mistake. The law on the issue now stands in a state of some uncertainty’ (Walker, The limits of the principle in Re Hastings-Bass, P.C.B 226, 2002). There is no doubt in the minds of most commentators and, indeed those persons seeking to invoke the rule in Re Hastings-Bass on behalf of their clients, that much clarification is needed as to the proper scope of the rule. Recent judicial trends suggest that, not only is the rule in Hastings-Bass being applied at such an unprecedented rate with very little scrutiny from a court beyond that of the High Court, it is also showing signs of plaguing the wider fiduciary community. As the opportunity for the Court of Appeal, and indeed the Supreme Court, to exercise some judicial scrutiny of the rule may not be that far away, this article highlights some of the present uncertainties with the rule in Re Hastings-Bass.

Unilateral Exceptions to International Law: Systematic Legal Analysis and Critique of Doctrines that Seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight Against Terrorism

This paper on unilateral exceptions to human rights and international law in the fight against terrorism seeks to take stock of a whole range of arguments, doctrines or constructions that states may resort to when seeking to justify their unilateral exceptions to human rights norms in the fight against terrorism. The following constructions are discussed: (a) Denial of the applicability of human rights law during armed conflict (b) Denial to individuals of status as protected persons under international humanitarian law (c) The United Nations Charter as lex superior compared to human rights obligations (d) Denial of attribution to an individual state of action by intergovernmental organizations (e) Denial of extraterritorial effect of human rights (treaties) (f) Reservations to human rights treaties (g) Persistent objection to norms of customary international law (h) Derogation during times of emergency (i) Overly broad use of permissible limitations or restrictions (j) Withdrawal from treaties. Many of those constructions have a valid legal basis and a proper scope of application. However, they often affect only a specific treaty, or the availability of a procedure, but do not affect the substantive obligations of the state in question under international law. Some of the constructions are open to abuse, i.e. bad faith efforts to distort international law to the detriment of human rights. Because of the complexity of the overall consequences of the various excuses and exceptions, there is need for a holistic approach that seeks to address the combined effect of the various constructions of unilateral exception.

An Examination on the Doctrine of Negotiorum Gestio- focusing on limiting the doctrine to its proper scope -

An Examination on the Doctrine of Negotiorum Gestio- focusing on limiting the doctrine to its proper scope -

Reinventing Regulation/Reinventing Accountability: Judicial Review in New Governance Regimes

This Essay considers the doctrinal and institutional challenges courts and designers of New Governance systems face when considering the availability and scope of judicial review. Part II briefly summarizes New Governance principles, while Part III explains the challenges they pose for American standing law. The Essay then considers solutions. Part IV considers aspects of other nations’ administrative standing law, considering whether those nations’ legal innovations overcome these hurdles while remaining true to courts’ proper role in reviewing agency action. Other nations have taken significant steps to resolve these issues; however, it remains unclear whether those resolutions transfer to the different institutional and legal structure in the United States. Part V considers whether the problem of standing can be resolved in a principled way by reconceptualizing the injury plaintiffs allege when they challenge New Governance regulation. Finally, Part VI considers the proper scope of judicial review of New Governance regulation.Cet article traite des défis doctrinaux et institutionnels qui se présentent aux tribunaux et aux concepteurs de systèmes de Nouvelle Gouvernance lorsqu’ils envisagent la disponibilité et la portée de la révision judiciaire. La partie II résume brièvement les principes de Nouvelle Gouvernance alors que la partie III explique les défis qu’ils présentent pour la législation américaine en vigueur. L’article considère ensuite des solutions. La partie IV traite d’aspects de la législation administrative en vigueur d’autres nations, en examinant si les innovations juridiques de ces nations surmontent ces obstacles tout en demeurant fidèles au rôle approprié des tribunaux lorsqu’ils révisent les actions d’agences. D’autres nations ont adopté des mesures importantes pour solutionner ces questions; toutefois, il n’est pas encore clair si ces solutions peuvent s’appliquer à la structure institutionnelle et juridique différente des États-Unis. La partie V considère si le problème de la qualité pour agir peut être résolu de façon qui respecte les principes en conceptualisant différemment le préjudice allégué par le demandeur qui conteste la réglementation de la Nouvelle Gouvernance. Finalement, la partie VI considère la portée appropriée de la révision judiciaire de la réglementation de Nouvelle Gouvernance.

Evaluating the Effects of International Law: Next Steps

It is hard to quarrel with the claim that international law scholars should pay attention to all of the effects of international law, and not just to compliance. In this respect, Professors Howse and Teitel are on solid ground. I believe that the (mostly unnamed) authors of compliance studies are aware of this point and have not claimed that compliance is all that matters. But there is a significant irony here. To understand what it is, one must recall some intellectual history. Howse and Teitel say that ‘in most fields of legal study, the question of why, how and to what extent the actors bound by legal rules comply with them has been a secondary, if not marginal, one for scholarly inquiry by jurists’ (p. 128). This statement is incorrect. The question of legal compliance has been an obsession in American legal scholarship, one that began in the early part of the 20th century with the legal realist movement, and then after a brief pause gathered momentum in the 1960s. Today, the difference between the ‘law on the books’ and the ‘law in action’ is a significant theme in scholarly inquiry, in every field of law (at least in the United States, where the new international law skepticism emerged) except – international law. The easiest way to understand the new international law skepticism that began in the United States in the late 1990s is as an application of these ideas from domestic legal scholarship to international law scholarship. It may well be, as Howse and Teitel argue, that the focus on compliance is too narrow. I prefer to think that the proper scope of a study depends on the question to be asked. When governments or advocates propose a treaty that has some goal – let’s say, the elimination of landmines – the main question they will want to ask is whether the treaty will in fact achieve that goal, which here is the elimination of landmines. If they can expect signatories not to destroy their landmines, that is certainly an important consideration. They may also care about whether the treaty will have other effects, positive or negative. But when these are hard to predict, as they almost always will be, then it is not surprising that compliance will be foremost among their concerns. For this reason, compliance is a legitimate focus for academics. But the larger point is that the focus on compliance arose in reaction to the once dominant and still widespread assumption that international law ‘on the books’ works as advertised. This attitude, exemplified by Louis Henkin’s (1979, p. 47) complacent line that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’, echoes the formalist tenets that the legal realists attacked. The empirical work on international law is in its infancy but some of it – particularly the work on human rights treaties – has blasted holes in the Henkin view. To resuscitate this view, scholars now argue that even if states do not always comply with human rights treaties, those treaties may nonetheless advance the cause of human rights through a range of alternative pathways. Howse and Teitel’s argument is a more general version of this confession-and-avoidance claim. Howse and Teitel cite Ryan Goodman and Derek Jinks, who propose a theory that explains how norms could migrate from state to state, but if Howse and Teitel are as serious about empirical work as they claim, they would do well to note that Goodman and Jinks do not supply statistical evidence for their theory. Howse and Teitel also cite a recent book by Beth Simmons. This is also an odd choice. Simmons tests compliance in the narrow sense Howse and Teitel criticize, while merely noting that the effects of treaties can be more general. She does not note that these general effects could be negative as well as positive (Simmons, 2009, p. 365). It should be kept *Howse, R. and Teitel, R. (2010) ‘Beyond Compliance: Rethinking Why International Law Really Matters’, Global Policy, Vol. 1, No. 2, pp. 127–136. DOI: 10.1111/j.1758-5899.2010.00035.x Global Policy Volume 1 . Issue 3 . October 2010

IJPR: beyond the limit and limiting the beyond

It is now almost 20 years since Janicaud’s critique of the ‘theological turn in French phenomenology’ (Janicaud 1991, 2000), with its emphasis on phenomenology and theology as two and never one. Yet since that time there been an explosion of phenomenologies which are, if not overtly, implicitly religious and phenomenology. Thus, we have phenomenologies of prayer, or love, or hope, and the possibilities of further phenomenologies. The challenge of these emerging phenomenologies is that there seems to be no noematic correlate to a noesis in intentionality. To the fore in the reconsideration of this phenomenological challenge is Jean-Luc Marion (although there are others such as Levinas, Jean-Louis Chretien, and Michel Henry): all aspects of lived experience appear now to belong to the proper scope of phenomenology. Marion considers the relation in Husserl between intentions and intuitions which fulfil these intentions, and suggests a reversal. In Marion, although intentionality is not rejected, the phenomenological flow which the reduction brings to light is from the object as such as it gives itself in intuition, and then from intuition to intention. For Marion, phenomena are saturated—they give too much. Religion becomes a test-case for all phenomenology. This bearing, drawing mainly on The Visible and the Revealed, offers some of the key things in Marion’s phenomenology.

Understanding Market Access: Exploring the Economic Rationality of Different Conceptions of Free Movement Law

There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.

Regulatory Federalism in the Age of Broadband: A U.S. Perspective

AbstractBroadband is poised to transform many sectors of the economy in the United States. Indeed, the federal government, via the President, Congress, and the Federal Communications Commission, has identified this technology as a key tool for realizing an array of “national purposes,” including fundamental changes to how healthcare, energy, education, and an array of other services are delivered to and consumed by citizens. However, as broadband begins to inure itself into the business models of services that are largely regulated by the states, novel questions regarding the proper scope of regulatory federalism—that is, the ways in which federal and state government share oversight of a wide range of industries, from telecommunications to energy to healthcare—are likely to arise. This article examines the historical balance of federalism in the regulation of communications services, healthcare, and energy, identifies novel issues that have arisen and that are likely to arise as broadband is used to transform these services, and proposes a framework for efficiently and effectively addressing these issues.

Relationships of Equality: A Camping Trip Revisited

G. A. Cohen incisively argued that our judgments of social justice should fit our convictions about how to interact with others in our personal lives. Ironically, the ordinary morality of cooperation invoked in his last book undermines his favored principle of equality, and supports John Rawls’ reliance on a relevantly impartial choice promoting appropriate fundamental interests as a basis for distributive standards. His further objections to Rawls’ account of distributive justice neglect the role of social relations in establishing the proper scope of that impartiality and the moral force of Rawls’ taxonomy of non-ideal societies. In contrast, the powerful evocation of goods of community at the end of Cohen’s last book points to a genuine inadequacy. Conscientious fellow-citizens must take account of the impact of their political choices on options for sharing and caring. In finding a proper balance between these goods and competing individualist concerns, the original position is of too little use to sustain Rawls’ assessment of his conception of justice as complete. In the face of our strong moral convictions about how to live together, both Cohen’s luck egalitarianism and Rawls’ barriers between aspirations to community and political choice must give way.

Lost in Transition?

A critical discourse analysis of Irish nurse academics' comments reveals a dependent, fragmented discipline with a weak academic infrastructure, prone to colonization by other discourses. Respondents lack a language that articulates an academic and professional nursing identity, the form and content of educational programs that are distinctively nursing, and lack the proper focus and scope of nursing research. These findings are discussed in light of the role of academic clinical practice and nursing discipline-specific discourses in providing the conditions of possibility for the establishment, maintenance, and reproduction of a critical mass of nurse scholars with both academic and clinical legitimacy.

Digital Copyright and Culture

For many years, New Zealand has struggled with how to develop its economy into a knowledge-based economy. Other small market economies have faced similar issues. Intellectual property is an important aspect of such an economy, as are the copyright and other laws that protect intellectual property. In recent years, cultural producers have debated with copyright users on the proper scope of legal protection for intellectual property. Both sides of this debate have utilized concepts of promoting and creating culture as justifications for their stance. Copyright lawmakers have the task of finding a balance between the competing views. This article focuses on the way in which New Zealand copyright law developed and that law's relationship with culture during the years in which Helen Clark was Prime Minister. In particular, this article discusses the copyright law reform undertaken to address the impact of digital technologies.

Direct democracy and the courts

Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders - the people, through direct democracy, and the courts. Now available in nearly half the states, direct democracy has surged in recent decades. Through ballot measures, voters have slashed taxes, mandated government spending, imposed term limits on elected officials, enacted campaign finance reform, barred affirmative action, banned same-sex marriage, and adopted many other controversial laws. In several states, citizens now bypass legislatures to make the most important policy decisions. However, the 'people's rule' is not absolute. This book demonstrates that courts have used an expanding power of judicial review to invalidate citizen-enacted laws at remarkably high rates. The resulting conflict between the people and the courts threatens to produce a popular backlash against judges and raises profound questions about the proper scope of popular sovereignty and judicial power in a constitutional system.

Towards a Theory of Criminal Law?

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we should determine the proper scope of the criminal law.

Reinventing Regulation/Reinventing Accountability: Judicial Review in New Governance Regimes

This Essay considers the doctrinal and institutional challenges courts and designers of New Governance systems face when considering the availability and scope of judicial review. Part II briefly summarizes New Governance principles, while Part III explains the challenges they pose for American standing law. The Essay then considers solutions. Part IV considers aspects of other nations’ administrative standing law, considering whether those nations’ legal innovations overcome these hurdles while remaining true to courts’ proper role in reviewing agency action. Other nations have taken significant steps to resolve these issues; however, it remains unclear whether those resolutions transfer to the different institutional and legal structure in the United States. Part V considers whether the problem of standing can be resolved in a principled way by reconceptualizing the injury plaintiffs allege when they challenge New Governance regulation. Finally, Part VI considers the proper scope of judicial review of New Governance regulation.

The Proper Scope of IP Rights: Trade Marks - A European Perspective

Paper presented at INTA Annual Conference 2010 in Boston, discussing the proper scope of IP rights in general and trade marks in particular. The paper first addresses whether IP suffers from 'over protection' or is 'under siege'. The author subsequently touches on 'free ride and free lunch v. free speech and free flow'. After discussing a number of balancing mechanisms, the paper compares and contrasts 4 trends in trade mark practice:1.Confusion over dilution2. Prescriptive rules v. cognitive research3. Separatism v. realism4. Functionalism v. expansionism

Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide Offence

This article involves a discussion of the proper scope and interpretation of the Criminal Code provisions relating to the offence of infanticide. A review of the legislative history indicates that the biological rationale for the offence did not appear to have been scientifically established. Thus, despite the wording of the provision, the law of infanticide developed not from medical science, but instead as a way of dealing with unsatisfactory outcomes of homicide litigation directed at new mothers. In recent years, the medical rationale for infanticide has become less accepted and the trend has been to charge more mothers accused of killing their newborns with murder. This may be attributed, in part, because the conditions that created a sympathetic response to young women facing unwanted children in the past no longer exist. Nevertheless, it is asserted that the stress of child rearing should serve to reduce the culpability of some individuals who kill their children. Consequently, the author recommends a repeal of the current infanticide provisions, to be replaced by a more generally applicable defence of diminished responsibility applicable to not just biological mothers, but fathers and adoptive parents as well.