Reforming Non‐Possessory Secured Transactions Laws: A New Strategy?

Non‐possessory secured transactions are key components of market economies. National and international legal reform projects have been advanced to further their use and broaden access to credit. Yet reforms appear to be limited by practical obstacles posed by national legal categories. This article shifts the focus from domestically defined categories to the operational rules that allow secured transactions to perform their economic function of managing credit risk. This shift leads to a reconsideration of the rules governing publicity and an examination of the policy issues underpinning the evolution of publicity. The article argues that international publicity standards, based on a registry system, could offer a new strategy for reforming secured transactions laws. The recently adopted UNCITRAL's Registry Guide is analysed and considered as a possible tool for reforming national secured transactions laws.     

Hands‐Off or Hands‐On?: Deconstructing the ‘Test‐Case’ of Re G within a Culture of Children's Rights

This note challenges the so‐called ‘test‐case’ status of Re G in so far as it attempts to overturn the principle established in Re T that courts should adopt a neutral position when it comes to weighing the merits of different upbringings and the education provided by parents of minority religions. In determining the future upbringing and education of children who had been brought up in a minority religious community, Re G applies a principle of maximising educational opportunity in order to uphold the mother's proposed educational choice and way of life. This note argues that Re G was wrong to do so, should not be regarded as establishing any new principle and that the only relevant principle, both in determining this case and future cases, ought to rest on the psychological well‐being of the child.     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.     

The Ambivalent Notion of ‘Fundamental Breach’ in Indian Law of Contract: Towards a New Paradigm

Liverpool Law Review - This paper analyses the concept of fundamental breach under Indian law of contract. In doing so, it provides a comparative assessment with English law. It examines some...     

Anything New Under the Sun? Legal Clarifications as a Polish New Tool for Interpreting Business Law

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The aim of this article is to critically reflect on the Polish transformation taking place in...     

Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?

How should we conceive of regulation in the European context? This paper attempts to answer this by developing multilevel regulation as a theoretical concept. The basic aim of the paper is to explore the difference and convergence between regulation and governance and develop multilevel governance and multilevel regulation as two individual heuristic concepts. We suggest that it is useful to frame multilevel governance in the context of regulatory spaces. As an example, we undertake an exploratory investigation of multilevelness of the regulatory space of marketing authorisation of medical devices. This allows us to help focus on certain aspects of the regulatory process by acknowledging that it is no longer located in the hand of a single (governmental) actor and highlighting the necessity of considering interventions beyond the state in addressing regulatory effectiveness problems that may crop up in this context. Ultimately, we assess whether multilevel regulation is a legal translation of the concept of multilevel governance.     

There's Nothing New in Dying Now: Will Welfare Attorney Decision Making at End of Life Make a Real Difference?

Advance care planning is a way to express value‐based preferences in order to guide future treatment decisions following loss of decision‐making capacity. It aims to ensure that one's critical values continue to influence healthcare decisions, particularly at end of life. The Mental Capacity Act 2005 permits adults with capacity to appoint welfare attorneys to act as their proxy decision‐makers following loss of capacity. A focus group study was used to explore the views and perceptions of lawyers and health professionals to attorney decision making at end of life. Whilst participants gave a guarded welcome to the introduction of healthcare and welfare attorneys, potential challenges were identified, based upon professional norms and expectations. A shared consensus was that the realization of the full potential of proxy decision making was likely to be a theoretical, rather than real, benefit. Opinions were divided on elemental tenets such as prospective autonomy, best interests, and the potential for conflict.     

Can we handle the truth? Legal fictions in the determination of death

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.     

Embutramide,a Component of Tanax®(T‐61) as a New Drug of Abuse?

Tanax^®(T‐61) is a euthanasia solution commonly used in veterinary medicine in Europe. It consists of three active components: embutramide, mebezonium iodide, and tetracaine hydrochloride. Human consumption of Tanax^®(T‐61) is usually associated with suicide attempts. In our 15‐year‐long practice, embutramide was detected only three times but within a short period. First, it was found in the urine of a 42‐year‐old veterinarian, and the other two observations were made in a 16‐year‐old young man. Urine samples were analyzed using Shimadzu Prominence TOX.I.S.II. HPLC–DAD system with online SPE extraction system. Both of the two patients denied any intention to die. These cases show that this veterinary drug may also be considered as potential drugs of abuse.     

On a New Perspective of Legal Positivism Study——Based on the pure theory of law

分析实证法学的研究无法摆脱或超越分析实证法学理论“标签”的限制.在这样的研究局势下,研究成果将永远无法自我扬弃.通过讨论纯粹法理论,揭示其所包含的不可避免的政治因素,从而启示后来的研究者:如果以此种不同以往的进路进行研究,分析实证法领域将展现出一种超越“标签”之外的多面向的研究新境界.     

The Changing Position of Legal Academics in the United Kingdom: Professionalization or Proletarianization?

This article analyses changes to United Kingdom (UK) university law schools during the period coinciding with Phil Thomas’ career as a law teacher – the latter part of the twentieth century and the first two decades of the twenty-first – in part illustrating the analysis with other examples from Thomas’ career. We will focus specifically on the way in which what it means to be a legal academic has altered, with UK legal academics having been professionalized as a community during this era. Yet, seemingly paradoxically, it is also an era during which, many have suggested, academics in UK universities have become a proletariat.     

Achieving and Managing Equality in the Criminal Justice Process: Do the New Equality Measures Go Far Enough?

Abstract: This article will explore some of the legal and organisational challenges facing the various agencies involved in the delivery of criminal justice, in the UK, in adhering to the Equality Act 2006, Equality Duties and the forthcoming Single Equality Act (which, proposes a Single Equality Duty). We will consider the impact of these changes with reference to European legislation. Of particular interest will be the themes of effective implementation of the current Duties, equality of access and equality of outcome for both victims and offenders to appropriate services to tackle offending behaviour and the prevention of crime. This article will highlight issues surrounding impact assessment and the role of agency discretion and regulation. We offer some comments on future directions and the role of the regulatory bodies including the Equalities and Human Rights Commission (EHRC).     

Designing ETPIMs around ECHR Review or Normalisation of ‘Preventive’ Non‐Trial‐Based Executive Measures?

This article considers the transition in 2012 from control orders to more ECHR‐compliant ‘terrorism prevention and investigation measures’ under the Terrorism Prevention and Investigation Measures Act 2011. It argues that the interaction between security and liberty over the post 9/11 years has the appearance of a dialogue between courts and the executive that has resulted in a diminution in the repressive character of non‐trial based preventive measures. But such an impression, it will be contended, is obscuring the recalibration of ECHR rights that has occurred, easing the path to the introduction of the enhanced version of TPIMs, under the Enhanced Terrorism Prevention and Investigation Measures Bill. The proposed ETPIMs exhibit many of the objectionable features of control orders and are currently ready to introduce if the threat level rises.     

Diego Garcia: British-American Legal Black Hole in the Indian Ocean?

Environmental risks from US military construction on the atollof Diego Garcia (British Indian Ocean Territory) since 1971include damage caused by large-scale ‘coral mining’,the introduction of invasive alien plant species, continuoustransits of nuclear material and unreported major fuel spills;these risks are now compounded by those of sea-level rise andocean acidification due to global climate change. The US andUK governments have evaded accountability by way of a persistent‘black hole’ strategy, contending that some nationallaws and international treaties for the protection of humanrights and the environment do not apply to the island—aposition confirmed by a controversial appellate judgment ofthe House of Lords in October 2008, essentially relying on ‘prerogative’colonial law. This article draws attention to the fallacy ofthe black-hole syndrome, and to its potentially fatal consequencesfor the British claim to a 200-mile environment protection zonein the Chagos Archipelago.     

A New Alliance of De-legalisation and Legal Formalism? Reflections on Responses to the Social Deficit of the European Integration Project<Superscript>⋆</Superscript>

This paper will cover a wide range of issues. It will start with a reconstruction of the European Community’s ‘social deficit’, arguing that a credible response to this deficit would be a pre-condition for the democratic legitimacy of the deepened integration project. Such a response can be developed in a re-conceptualisation of European law as a new type of supranational/trans-statal conflict of laws – this is the thesis defended in the second section. This vision is contrasted in the third section, first with the steps towards Social Europe envisaged in the Draft Constitutional Treaty, and then with the messages of the recent judgments of the European Court of Justice (ECJ) in Viking and Laval. It goes without saying that the theoretical premises of the argument, let alone its many interdisciplinary dimensions and empirical background, can often only be signalled, but not developed systematically.

Deliberative Law-Making: A Case Study of the Process of Enacting of a ‘Constitution of the Third Sector’ in the Polish Sejm

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The main objective of the paper is to present a model of the good practices of deliberative...