A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

The 1990s brought about a change in the international law of foreign investment due to the primacy achieved by the tenets of neo-liberalism. They drove concerns about the environment and poverty away from the concerns of the law and gave priority to the interests of multinational corporations by enhancing their ability for movement of assets and the absolute protection of these assets through treaty rules. The regime created by this law was operated through secure systems of dispute settlement through arbitration which also enabled the stabilization of these rules. In the process, private power of a section within the hegemonic state was able to subvert international law through the use of low order sources of the law and secure a system of investment promotion and protection. The restoration of the more universal themes of environmental protection and poverty alleviation is necessary. This paper outlines the developments that accentuated the sectional interests of multinational capital and explores the means by which a change that reflects the global interests could be effected.

The uncertain future of data retention laws in the EU: Is a legislative reset possible?

The article discusses the CJEU's most important case law, including interpretations presented in recent cases relating to data retention for both national security purposes (Privacy International, La Quadrature du Net) and the fight against serious crime (H.K). The analysis is a starting point for discussing the draft e-Privacy Regulation, in particular a controversial proposal introduced by the EU Council that may limit the Court's jurisdiction in cases involving data retention rules that cover state security.Negotiated over the past five years, the draft e-Privacy Regulation fleshes out EU data protection rules governing electronic communication services. As a result, the way in which obligations under the Regulation are defined is critical in setting a standard for retention rules consistent with CJEU case law for decades to come. At the same time, succumbing to pressure from Member States may have the opposite result – the emergence of new ambiguities concerning not only the admissibility of data retention but also the competence of EU institutions to regulate this area of the telecommunications sector.     

Is the death of the death penalty near? The impact of Atkins and Roper on the future of capital punishment for mentally ill defendants

In recent years, the U.S. Supreme Court has created two categorical exemptions to the death penalty. In Atkins v. Virginia, the Court exempted mentally retarded offenders. Three years later, in Roper v. Simmons, the Court extended the protection to juveniles. Based on these cases, the practices of foreign countries, and the opinions of professional organizations with relevant expertise, legal scholars speculate that the Court may, in the future, categorically exclude severely mentally ill offenders from the death penalty. This Note examines the feasibility of such an exemption for the mentally ill and considers its possible repercussions.     

A century of the law profession in Palestine: quo vadis?

The main challenge encountered by the law profession in Palestine throughout its 100-year history is the division over political lines. The split started with the establishment of the Palestinian Jewish and Arab Bar Associations under British rule before 1948. The division took another form of separation between Palestinian lawyers in the West Bank, Gaza, and Israel between 1948 and 1967. Under Israeli occupation (1967–1994), lawyers were partitioned into three factions: striking lawyers who affiliated with the Jordanian Bar Association, practicing lawyers who formed the Arab Lawyers Union, and the Gaza lawyers who founded the Lawyers Society. Together these three bodies formed the transitional council of a Palestinian Bar in 1997. Since the 2003 Bar election, lawyers have been unified under the Palestinian Bar Association, which has become a well-established body, notwithstanding all the challenges facing not only the law profession but also the country as a whole.     

The importance of ethics in the law curriculum: essential or incidental?

Recently, the debate as to whether ethics should be a compulsory requirement of a law degree was refuelled when the English and Welsh Legal Education Training Review (LETR) recommended that professional ethics should be primarily addressed in vocational Legal Services and Education Training programmes and that learning outcomes in the academic curriculum should include reference to morality and the law, the values supporting the legal system and their connection to the role of lawyers. This debate is also occurring in other jurisdictions. In Australia the debate is focused on the proposal that ethics be removed as a compulsory subject in the law degree. This proposal has raised a concern that law students will be denied the opportunity to develop as ethically competent lawyers. This paper argues for the continuation of ethics as a core component of a law degree and evidences the model used for the teaching of ethics in the law degree at the University of Technology Sydney in support of our argument. The background to the model is examined to highlight the significance of student feedback and ongoing curriculum review, including the alignment of parallel pedagogical factors. This model serves as an example of not only why ethics should be core to a law degree but, in order to provide graduates who are ethical and reflective practitioners, why ethics should be pervasively taught throughout the degree and supported by an introductory and capstone presence.     

Is there a “common law” of responsibility?

Contrary to common expectations and a good deal of legal folk wisdom, several surveys have failed to find group differences in the way people attribute responsibility and assign punishments. These nonfinding, suggest that there is a considerable degree of consensus about how to judge wrongdoing. The nature of this consensus is examined using survey data collected in two Japanese and one American cities. We examine the extent of group differences in the evaluation of inputs (here a set of hypothetical vignettes), decision rules, and punishments. The paper concludes with a discussion of the conceptual, theoretical, and methodological issues raised by these and similar findings of small group differences. Collectively, these three issues define, an agenda for future research on the nature and extent of a common law of responsibility.This is a revised version of a paper presented at the 1986 meeting of the Law and Society Association. The research was supported by seed funds from the Social Science Research Council and from the University of Michigan and by N.S.F. grant No. SOC 77-242918. Japanese data were gathered and analyzed with support from the Nihon Gakujutsu Shinkokai and Mombusho to the Japanese investigators: Yoko Hosoi, Zensuke Ishimura, Nozomu Matsubara, Haruo Nishimura, Nobuho Tomita, and Kazuhiko Tokoro. They have recently published a book on the project. (Ishimura et al., 1986).     

MiFID II – A radical contribution to the development of data law?

Away from the hubbub about HFT (High Frequency Trading) a quiet storm is blowing in to the EU that will radically change securities trading in bonds, OTC derivatives and other asset classes. The rules, called MiFID II,² top off the alphabet soup of an extensive new rule book that, after the European Parliament's ‘Super Tuesday’ on 15 April 2014, is finally set to become law. Radical changes are afoot!     

Who decides on the future of data protection? Role of law firms in shaping European data protection regime

Drawing on theories of European integration and governance and sociological studies on the influence of elite law firms on rule-setting, this paper shows that law firms (a) operate in the area of data protection that is of extreme complexity and requires expert knowledge; and (b) display characteristics similar to other actors who succeeded in influencing agenda-setting and the results of policy-making despite having no formal competence to do so. This article proposes a hypothesis of the influence of elite law firms in EU data protection rule-setting. It argues that the EU data protection sector is prone to such influence as it is by definition transnational and, at some technical and some core points, inadequate to reflect the real data processing practices and therefore is entrenched with uncertainty. Therefore, the research into politics of data protection in Europe cannot disregard the role of these actors in shaping the European data protection regime.     

Reflections on the sociology of law: A rejection of law as ‘socially marginal’

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locate law as a critical matter of social structure – and power – which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the empirical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, ‘the social’, and the operation of law. It concludes that law is not ‘socially marginal’ but socially, totally central.     

Is it unethical to offer predictions of future violence?

An examination of the nature, foundation, and consequences of predictive testimony about future violence does not support the assertion, sometimes heard, that such testimony is necessarily unethical. Certain types of predictive testimony about future violence may have adequate scientific support. Moreover, society does not require certainty about future violence in order to restrict various liberties. Proper performance of an evaluation related to certain types of predictive testimony can provide an adequate foundation for the testimony. Finally, a consideration of the consequences of legal proceedings that restrict liberty does not support the conclusion that predictive testimony is necessarily ethically improper merely because it uses probabilities that create the potential for a significant number of false-positive legal decisions. Therefore, we would not advise psychology, psychiatry, or the courts to conclude that predictions of dangerousness as a class are unethical.This paper was supported in part by funding from the John D. and Catherine T. MacArthur Foundation Research Network on Mental Health and the Law. The authors wish to thank Alexander Greer, John Monahan, Stephen Morse, and Ed Mulvey for their helpful comments on an earlier draft.     

The role of soft law in advancing the rights of persons with disabilities in the EU: A ‘hybridity’ approach to EU disability law

This article discusses the role of soft law in advancing the rights of persons with disabilities in the European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross-cutting, field of ‘EU disability law’ through the lens of the ‘hybridity theory’ advanced inter alia by Trubek and Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area for an enquiry into the dynamic relationship between hard and soft law. Until the entry into force of the Treaty of Amsterdam, soft law was crucial to attract disability within the sphere of action of the EU and to embed the social model of disability, displaying a value-setting role. In the post-Amsterdam period, soft law and hard law coexisted, being complementary to one another. Both contributed to a common objective, namely that of advancing equality of opportunities for persons with disabilities. After the conclusion of the UN Convention on the Rights of Persons with Disabilities, the dynamic relationship between hard and soft law has become more complex and akin to what Trubek and Trubek define as ‘transformation’.     

Equal before the law?

This article reviews empirically the relationship between politicians and decisions to prosecute or not to prosecute businesspeople who are suspected of fraud and of complicity in the supply of arms to Iraq, within the context of (a) conventional ideas about impartiality of the administration of law; and (b) the politics of bureaucratic survival. It discusses some key difficulties in ascertaining “what happened” and relative culpability in serious fraud trials, and the personal interest-inspired factors that can influence testimony. It concludes that in the UK, there is relative autonomy in decision-making in serious fraud cases, but that in “politically sensitive areas” such as the supply of arms to Iraq, there has been overt interference on purported “public interest” grounds with the information made available to the defence and even to the prosecution itself. It notes that without access to the grounds for decisionsnot to prosecute, their “purely legal” justification is difficult to challenge, and this is of most social significance where members of social elites are concerned. It concludes by addressing some difficulties in producing procedural models which provide genuine accountability for white-collar prosecutions and non-prosecutions in different countries.     

One law to rule them all? The reach of EU data protection law after the Google v CNIL case

Google v CNIL is, arguably, one of the landmark cases of EU data protection law and it has been an important development regarding its territorial reach. The judgment's findings in this regard have been controversial and have led to much discussion about their legitimacy and potential repercussions. This paper examines two aspects of this case. First, it considers the holdings of this judgment regarding the global application of EU law in relation to international law and sovereignty. This article argues that though EU decision-makers might have a degree of ‘data imperialism’ in their thinking, this judgment is not at odds with neither international law nor sovereignty. Second, the paper examines the methodology of the Court and the role it accorded to the Charter of Fundamental Rights of the EU– an aspect that many commentators overlook. In this regard, I argue that the Court's methodology was problematic and that it failed to duly consider the role of the Charter, thus fragmenting EU law.