Preferential Treatment, Social Justice, and the Part-time Law Student – The Case for the Value-added Part-time Law Degree

There has been growing pressure to increase diversity in legal education and the legal profession in England and Wales. While this has focused upon the absence of certain groups such as women, ethnic minorities, and the disabled, there has been no specific discussion of part-time law students. Drawing on questionnaires and focus groups with part-time law students across England and Wales, this article examines how their background and experiences may hamper their ability to participate and succeed in higher education and legal practice. In response to the consistent omission of part-time students' needs from attempts to enhance social diversity in universities and the legal profession, it also argues that affirmative action is now necessary and justified in respect of these students. Pragmatic suggestions are made for a contextual approach to affirmative action for part-time law students which adds value to their degree. Finally, the potential effects of affirmative action on part-time law students themselves and upon the gatekeepers to the legal profession are explored.     

英国专家证据可采性问题研究

现代科学技术的突飞猛进,使社会分工越来越细,专业化要求越来越高,在刑事诉讼中专家证据的作用也越来越明显.英美法系国家的专家证人制度起源于英国,经过几个世纪无数判例的积累和发展,有关专家证据的可采性问题已形成一整套相当具体、完备的规则,如专家资格规则、有用性规则,专业技术领域规则、普通知识规则以及终局性问题规则等.在现代刑事诉讼中,专家证据的重要性越来越明现,其在改革中的发展趋势,可以为我国亟待完善的司法鉴定制度提供一些有价值的借鉴作用.     

Territorial justice and access to knowledge: the distribution of high-level legal skills in the regions of England and Wales

This paper conducts a mapping for the regions of England and Wales of legal specialisms which are explained in terms of spatial forces of gravitation. There are geographic barriers to access to justice arising out of the ‘friction of distance’. There is a filter effect which varies, depending on the type of legal problem which correlates with distance in respect of some categories of legal work which, in turn, raises considerations of territorial justice. Whether the role of law in this respect is thought of as a matter of access to justice or of access to competitive advantage raises important issues as to the effectiveness of the current organisation of the legal profession. Significant questions arise as to the capacity of solicitor firms within the regions of England and Wales to support the development of regional knowledge-based economic strategies. In turn, this has implications for the reform of the court structure in England and Wales and also various policy considerations in respect of nurturing the development of high level legal skills within the regions.     

The failure of british obscenity law in the regulation of pornography

Abstract

Summary: In this paper the author addresses the problem of pornography with particular reference to legal regulation in England and Wales against the wider context of the lack of adequate control of pornography world-wide. This is explored first by an examination of the nature and increasing availability of pornography. Second, is provided a consideration of the competing philosophical and ideological arguments for and against its regulation. Third, is provided a statement of the current legal regulatory mechanisms of control germane to the global dissemination of pornography. Finally, the application and effectiveness of obscenity law in England and Wales is considered.     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

Seeking Shelter in Personal Insolvency Law: Recession,Eviction, and Bankruptcy's Social Safety Net

Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.     

School exclusions: Lessons from Northern Ireland

In Northern Ireland there are many fewer permanent exclusion from school than in England and Wales. It has been suggested that this may be linked to differences in the statutory schemes which regulate exclusion. This article compares the legal framework for school exclusions in Northern Ireland and England and Wales; provides a comparative analysis of the statistical data in relation to school exclusions; assesses whether the differences in the legal framework may have an impact on the propensity to permanently exclude; and considers whether there are any other non-legal factors which may explain lower rates of school exclusions. The overall objective is to see whether the legal differences which exist have a meaningful effect on the overall rate of school exclusion and to extrapolate best practice. In particular, the analysis focuses on experience of the statutory pre-expulsion consultation procedure in Northern Ireland, which has no equivalent in England and Wales.     

Borders and Boundaries: Locating the Law in Film

The essay examines the emergence of law and film in the curricula of law schools in the context of Britain. It outlines the development of legal education in England and Wales and the relationship between legal education and training. It notes the broadening out of the syllabus to encompass more politicized courses taught within their socio-economic context like family law and labour law. From this shift of academic focus the politically contextual has extended to the cultural context. The relationship between law and culture both in literature and in other areas has been the end result of this relaxation of focus on professional education. Finally, the precise nature of law and film and its boundaries are discussed.     

Academic perspectives on teaching international family law in higher education institutions in England and Wales

ABSTRACT

The increasing prevalence of family law disputes in England and Wales with an international element is well documented in the development of domestic legislation, case law and family practice. However, despite changes to the legal landscape and the academic recognition of international family law as a legal subject, it is still often disregarded within the undergraduate family law curriculum or as a standalone module. This article explores the development of international family law in England and Wales and presents the findings of a national questionnaire into whether international family law is taught as part of the undergraduate curriculum. The article also explores what barriers exist to including international family law topics. To conclude, the author offers some general advice about incorporating these topics into the curriculum to ensure that students are equipped to deal with the realities of family practice in England and Wales.     

Cohabitation in Twentieth Century England and Wales: Law and Policy

This article reviews the complex, and sometimes conflicting, policies adopted by the law of England and Wales over the course of the twentieth century. Its aim is to highlight the fact that cohabitation is not merely a modern legal issue, but one with which both the legislature and the courts have had to grapple for decades. It argues that reform has been piecemeal and context-specific because the courts and legislature have not adopted a coherent policy toward cohabiting relationships.     

Lessons from Roman law: EU law in England and Wales after Brexit

ABSTRACT

The experience of Roman law in legal education in England and Wales may serve as a cautionary tale for EU law post-Brexit. Similarly, past debates as to the position of Roman law in the curriculum may also be instructive in the EU law context. After tracing the history of the teaching of Roman law in England and Wales, this article posits first that the factors that appear to have caused the decline of Roman law could apply equally in the context of EU law. Secondly, based on both pragmatic and liberal education arguments that have historically been proffered for the study of Roman law, it advances arguments for the retention of a compulsory stand-alone EU law module in England and Wales after Brexit. To this end, the paper contends that the arguments for the retention of EU law in legal education are more robust than those asserted traditionally in favour of Roman law.     

Accountability and the Regulation of the Large Law Firm Lawyer

The regulation of solicitors in England and Wales has undergone great change in the wake of the Legal Services Act 2007. This article considers these regulatory developments through the lens of accountability, focussing on the regulation of transactional lawyers and the large commercial firms. It examines to what extent the Solicitors Regulation Authority's regulatory framework promotes accountability, examining entity regulation, outcomes‐focussed and principles‐based regulation, reporting and disclosure obligations, the Compliance Officer for Legal Practice and the sanctions system. It argues that although transactional lawyers cannot claim the benefit of the ethical principle of non‐accountability, as far as they and their firms are concerned, the regulatory framework is both unnecessary and insufficient. It duplicates the function of accountability to the client and fails to hold transactional lawyers to account for significant regulatory risks that they present, such as the practice of creative compliance.     

State, Citizen, and Character in French Criminal Process

This paper charts some major differences in the way in which evidence of the defendant's character is treated in France when compared with practice in England and Wales. Such evidence is more pervasive and visible (especially in the most serious cases) and its relevance is more broadly defined. Further, its presentation is shaped by a developed and positive conception of the French citizen. In part, these differences may be explained by differences in procedural tradition: the unitary trial structure in France, the dominance of fact—finding by the professional judiciary, and the rejection of general exclusionary rules of evidence. But a full explanation requires French legal culture to be understood in the context of French political culture. This reveals a very different conception of relations between state and citizen to that of Anglo-Saxon liberalism. As a result the legitimacy of trial is seen in terms of the rehabilitation of the accused as a citizen of the state rather than simply the punishment of a particular infraction.     

Expertise in law, medicine, and health care

As the practice of science-based medical evidence has challenged the medical profession to consider the scientific bases for its methods and procedures, on a seemingly parallel path, the United States Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals has challenged the legal system to consider the science underlying claims of medical expertise. This article examines how the legal system has responded to that challenge and why the response has been more limited than many had expected; the implications of the legal system's approach to scrutiny of claims of medical expertise for the practice of science-based medical evidence; and, the central elements of any meaningful change in legal assessments of expertise in medicine and health care.     

The Rise of Digital Justice: Courtroom Technology,Public Participation and Access to Justice

This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. Against the backdrop of the government's current programme of digital court modernisation in England and Wales, it examines the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. The article contends that legal reforms have omitted any detailed consideration of the type and quality of citizen participation in newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court‐based processes; and for enhancing democratic procedure through improved access to justice. It is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice.     

论中世纪英国教会的婚姻家庭法

伴随着西罗马帝国的灭亡,基督教会在中世纪的西欧逐渐取得相对独立的地位,并在一个相当长的历史时期对当时人们的生活产生了极其重要的影响。这种影响表现在法律领域便是一种所谓教会法的问世,由此反映出基督教会对于当时世俗生活的积极引导抑或干预。其中,教会的婚姻家庭法构成了教会法的一个重要的部分。英国的基督教化的历史始于公元597年。从此,英国与这一宗教即结下了不解之缘。英国统一的教会组织体系建立于盎格鲁—撒克逊时期。但是,自征服者威廉一世禁止百户区法院受理宗教案件后,英国才出现独立的教会法院并开始了对婚姻家庭等方面的积极干预。     

Investment Treaty Arbitration as a Species of Global Administrative Law

The article outlines a simple thesis: that international investmentarbitration – pursuant to regional and bilateral investmenttreaties – offers the clearest example of global administrativelaw, strictly construed, yet to have emerged. We present thisthesis by explicating four key features of investment treaties:they permit investor claims against the state without exhaustinglocal remedies; they allow claims for damages; they allow investorsto directly seek enforcement of awards before domestic courts;and they facilitate forum-shopping. Our argument is that, owingto this unique conjunction of features, the regulatory conductof states is, to an unusual extent, subject to control throughcompulsory international adjudication. Having highlighted thesefeatures, we then claim that investment arbitration is bestanalogized to domestic administrative law rather than to internationalcommercial arbitration, especially since investment arbitrationengages disputes arising from the exercise of public authorityby the state as opposed to private acts of the state. Further,we claim that the linkages between investment arbitration anddomestic legal systems are more direct and more closely integratedthan other forms of international adjudication in the publicsphere. For these reasons, we argue that the emerging regimeof investment arbitration is to be understood as constitutingan important and powerful manifestation of global administrativelaw.     

Why community compulsion became the solution - Reforming mental health law in Sweden

The aim of this article is to understand how compulsory community care (CCC) has become a solution in mental health policy in so many different legal and social contexts during the last 20 years. The recent introduction of CCC in Sweden is used as a case in point, which is then contrasted against the processes in Norway, England/Wales and New York State.In Sweden, the issue of CCC was initiated following high-profile acts of violence. Contrary to several other states, there was agreement about the (lack of) evidence about its effectiveness. Rather than focusing on dangerousness, the government proposal about CCC was framed within an ideology of integrating the disabled. The new legislation allowed for a broad range of measures to control patients at the same time as it was presented as a means to protect positive rights for patients. Compared to previous legislation in Sweden, the scope of social control has remained largely the same, although the rationale has changed — from medical treatment via community treatment and rehabilitation, to reducing the risk of violence, and then shifting back to rehabilitation in the community.The Swedish approach to CCC is similar to Norway, while New York and England/Wales have followed different routes. Differences in ideology, social control and rights orientations can be understood with reference to the general welfare and care regimes that characterize the four states.     

Diversity in the Judiciary: The Case For Positive Action

A range of policies has been developed in England and Wales to reform the judicial appointments process so as to promote greater diversity. But despite two decades of official activity, the pace of change has been far slower than anticipated. Increasing awareness of the intransigence of the problem has led to a greater willingness to revisit some of the more fundamental tenets which have underpinned the approach to the problem to date, in particular, the unquestioning and inflexible commitment to the principle of equal treatment. This article examines the different forms of positive action which might play a part in the development of new diversity strategies for the judiciary. It reviews the arguments for and against different types, in terms of effectiveness, quality of appointments, and equity. It goes on to consider the legal frameworks which govern diversity and equality policies and assesses the legal implications of adopting different forms of positive action.     

Public Procurement Law, Public Bodies, and the General Interest: Perspectives from Higher Education

Abstract This article examines the interaction of EC public procurement law with the legislative framework governing higher education in England and Wales. It focuses on the impact of this interaction on changing status of higher education institutions, organisations that are at the margins of the much‐discussed public–private divide in law. The Higher Education Act 2004 is viewed as a driver of potential change in status, and a distinction is drawn between mechanisms which appear to support the introduction of change and those that instead introduce fluctuation and lead to concerns for legal certainty at the margins of public law. The study thus also has wider relevance where public‐sector reform is premised upon organisational forms with hybrid or ambiguous status.