Why Is the Equal Merit Principle (Almost) Straightforwardly Wrong?

This article challenges the ‘Equal Merit Principle’, introduced to the judicial appointment process by the Crime and Courts Act 2013. The author argues that this principle does not take diversity seriously enough and none of its possible justifications stand up to close scrutiny. The author also claims that the doctrine that judges should be appointed solely on the basis of merit is either wrong, for the very same reasons as the Equal Merit Principle, or rather uninformative because it fails to give sufficient guidance to those who select judges.     

Why Do the Finns Trust the Police?

Ideological trends in the criminal policy of the Nordic countries since the 1960s are analysed. Although criminal policy in these countries is not unified, one can argue for the existence of a 'Scandinavian criminal policy' characterized by several common features concerning historical tradition, intensive cooperation and a similar approach to crime prevention and control. The following trends and characteristics are examined in some detail: the cycle from criticism of the treatment ideology to a reappraisal of the role of the criminal justice system and the function of penal sanctions; the differentiation of criminal policy strategies (e.g. social and situational crime prevention, cost-benefit thinking, criminal law policy, sanctions policy). Discernible tendencies towards more unified or, at least, more harmonized criminal policies on the international and European level are also examined. Active participation in this developmental process is encouraged to ensure that the fundamental principles of Scandinavian criminal policy are properly utilized.     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Is the Torrens System German?

Recently support has grown for the view that the Torrens system of lands titles registration, which has now spread to numerous jurisdictions throughout the world, was actually not Torrens's work at all, but a copy of a German system passed off by him as his own production. This article reviews the evidence, much of which is here discussed for the first time, and concludes that that view is incorrect. Torrens is entitled to the credit for conceiving the principles of the system; for drafting the bill to give effect to them (with the help of a circle of critical reviewers); and for convincing the public and politicians to support it.     

Is the Japanese diet consensual?

The institutional design of the Japanese Diet is commonly believed to necessitate interparty accommodation and to make the legislative process more ‘viscous’ than it appears. This common belief about the Diet is challenged by examining the Constitution, the Diet Law, the House Rules, and parliamentary practices with special attention to agenda setting procedures. It is argued that the ‘unanimity norm’ is less binding than commonly recognised. By applying the criteria proposed by Döring, this paper compares the Diet with western European parliaments, and shows that it ranks relatively high in terms of the ruling majority's ability to control the legislative agenda. Although the post‐war Diet is modelled on the legislative process in the US Congress, it is critically important to keep in mind that the constitutional principle of the Diet follows the fusion of power in the British parliament. The picture that emerges from the analysis is in strong contrast to the traditional image of the Japanese Diet and sheds new light on the majoritarian foundation of the Diet.     

Could technology resurrect the dignity of the FIFA World Cup refereeing?

The 2014 FIFA World Cup is over and was in most senses a success. However, the reality is that from the perspective of fairness, the 2014 World Cup was off to a remarkably bad start. Like many major football events in the past, this World Cup was plagued by controversial refereeing.     

Is the general data protection regulation the solution?

Never has a text been received with so many requests for amendments; never has the debate around it been so huge. Some see it as a simple duplicate of the Directive 95/46; others present the GDPR, as a monster. In the context of this birthday, it cannot be a question of analyzing this text or of launching new ideas, but simply of raising two questions. I state the first as follows: "In the end, what are the major features that cross and justify this regulation? In addition, the second: "Is the regulation adequate for today's digital challenges to our societies and freedoms? The answers given in the following lines express the opinion of their author. It is just an invitation for a dialogue to go forth in this journal where so many excellent reflections have been published on Digital Law, thanks to our common friend: Steve.     

Is the consumer directive advantageous for the consumers?

According to the EU Consumer Protection Directive a purchaser has the right to ask for either repair or replacement of a defect product, whereas before in some member countries only one of these remedies were available. It seems to be taken for granted in the Directive and in Green Papers that such a reform is an advantage to the consumers. An analysis of a case at the Supreme Court of Norway demonstrates that the opposite might be true. It will be argued that both purchasers and vendors will be better off if the Directive is interpreted in accordance with economic theory. Harmonization of consumer protection across EU countries might be counterproductive. The analysis is of general interest in the sense that it demonstrates that mandatory changes in rights and obligations among contracting parties may have distributive effects different from what is commonly assumed.     

Why Would Two-Level Consequentialists Punish Only the Guilty?

The most commonly encountered and most serious objection against consequentialist theories of punishment is that they could sometimes endorse punishing innocent people. Two-level consequentialists can resist this objection. Because of how deterrence works, a system of social protection would clearly need to be careful, most of the time, to pick out only the guilty for punishment. What about exceptional cases? Any institution empowered to secretly frame innocent people would pose a grave danger to democracy, a danger that could prove lethal under only moderately unusual conditions. Meanwhile, individual consequentialists working within the criminal justice system should fear that their own views could be distorted by confirmation bias and other cognitive errors. These officials should normally trust any moderately well-functioning adversarial trial process more than they trust their own judgment of who needs to be punished. They should use extra-legal discretion only in cases where both their confidence and the stakes are extremely high; and in cases where the stakes are extremely high, the consequentialist answer is no longer counter-intuitive.