The regulatory anticommons of green infrastructures

Development of green infrastructures (renewable energy plants and transmission networks) is urgently needed if significant reductions of greenhouse gas emissions are to be accomplished in the next few decades. But the huge financial investments required by these infrastructures will not be undertaken without a well-designed regulatory framework. This paper argues that barriers to the implementation of such a framework can best be understood by drawing analogies to the Law and Economics literature on anticommons. Although situations of ownership anticommons (many owners with veto rights) and regulatory anticommons (many regulators with veto rights) display some differences from the point of view of the preferences and the coordination costs, it is submitted that this analytic framework can be employed to assess and criticize recent EU and US proposals which try to improve planning and siting procedures for cross-border green infrastructures. The literature on anticommons also suggests that effective remedies to suboptimal resource use are directly dependent on the design of the coordination mechanisms among all the regulatory levels.     

Globaloney: Economic Versus Cultural Convergence Under Conditions of Globalization

Using the theory of the commons and social obligation theory of inclusion, this article critically examines current art museum fundraising practices in the United States that rely too much on traditional White, wealthy patrons. This leads museums to emphasize the limited interests of traditional donors, neglecting the needs of and potential support from their broader communities. This results in the tragedy of the anticommons, where museums are underused by diverse publics. The article advocates for more inclusive relationship-based fundraising practices that build relationships with local community members and include their perspectives on fundraising practices through diversifying fundraising leadership, understanding diverse giving patterns, and utilizing innovative fundraising methods while remaining sensitive to cultural differences.     

Fueling global crime: the mechanics of money laundering

Money laundering has been practiced in one form or another for thousands of years, dating back well before the birth of Christ, when highly motivated merchants moved their wealth beyond the confiscatory grasp of local rulers. Only in the recent past was the name ‘money laundering’ given to this financial hocus‐pocus. Popularly believed to have derived from Mafia ownership of Laundromats through which an endless stream of cash generated by extortion, prostitution and gambling flowed, ‘money laundering’ did not attract serious interest until the 1980s, and even then it fell primarily within a drug trafficking context. The phenomenon has pushed its way into the public consciousness as a mechanism used not only by traditional ‘underworld’ organizations, but some corporate and financial sector entities as well as individuals. Perhaps the events of 11 September 2001 did more to change the perception of money laundering as public discourse is now focused on methods used by terrorists to secure financing for their nefarious deeds. In point of fact, transnational criminality generally is exploding on a global level and money laundering is the lynchpin of their success. This article presents an overview summary of basic money laundering methods and is meant to help lay the foundation for further exploration.     

‘Accountable Independence’ of the European Central Bank: Seeing the Logics of Transparency

The European Central Bank (ECB) emerged from the financial crisis not only as the institutional ‘winner’ but also as the most central—and powerful—supranational institution of our times. This article challenges the so‐called ‘accountable independence’ of the ECB across the range of tasks it carries out. Citizens ‘see’ the ECB today especially for its role in promoting austerity and its involvement as part of the troika and otherwise in the economic decision making of troubled Member States. Far from ECB monetary policy heralding a ‘new democratic model’, the ECB today suffers from a clear deficit in democracy. In between the grandiose concept of ECB ‘independence’ and the more performative ECB ‘accountability’ lies ‘transparency’. Across the range of ECB practices there is a need to take the related concepts of ‘transparency’ and of (democratic) ‘accountability’ more seriously, both in conceptual terms and in their relationship to one another.     

Changing regulation and the future of the professional partnership: the case of the Legal Services Act, 2007 in England and Wales

The UK Legal Services Act 2007 permits external financing and unlimited non-lawyer ownership of legal practices through the formation of Alternative Business Structures (ABSs). For many, the impact of this changed regulation on the ‘professional partnership’, as the dominant organisational form through which legal services are delivered, will be considerable. However, to date few studies have explored this empirically. This paper addresses this gap by examining organisational changes within ABSs to assess how far these firms have departed from the professional partnership model. Focusing upon the ABS population licensed by the Solicitors Regulation Authority between January 2012 and August 2015, the study findings show a continuum of organisational responses against four specified indicators: incorporation; multi-disciplinary practices; non-lawyer ownership; and external investment. These range from those that depart little from traditional practices to those that are more radical. We conclude that, whilst regulatory reform has yet to dislodge the dominance of the professional partnership, it has disturbed the status quo and increased the variety of ‘economic units’ within which legal services are delivered.     

SUBSTITUTING COMPLEMENTS

The presence of multiple sellers in the provision of (nonsubstitutable)complementary goods leads to outcomes that are worse than thosegenerated by a monopoly (with a vertically integrated productionof complements), a problem known in the economic literatureas complementary oligopoly and recently popularized in the legalliterature as the tragedy of the anticommons. We ask the followingquestion: how many substitutes for each complement are necessaryto render the presence of multiple sellers preferable to a monopoly?Highlighting the asymmetries between Cournot (quantity) andBertrand (price) competition and their dual models, we showthat the results crucially depend on whether firms compete bycontrolling price or quantity. Two substitutes per componentare sufficient when firms choose price. However, when firmschoose quantity, the availability of substitutes, regardlessof their number, is ineffective. Considering more complex casesof multi-complementarity, we ask the related question of howmany complements need to be substitutable and offer commentson equilibrium prices and quantities under different scenarios.     

Universal Credit, ‘Positive Citizenship’, and the Working Poor: Squaring the Eternal Circle?

This article examines the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants. This legislation illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low‐paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions. It may be that the Act attempts too much reform to the social security system, trying to impose legislative uniformity on a highly complex set of socio‐economic circumstances which may be impervious to such rationalisation. This could result in the scheme requiring further reform, or even abolition. The ideological and historical underpinnings of Universal Credit are also examined to understand more clearly its nature and structure.     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

Recasting Competition Concurrency under the Enterprise and Regulatory Reform Act 2013

The concurrent enforcement power granted to certain sector economic regulators is one of the more remarkable features of UK competition law. In practice, regulators have tended to under‐enforce their competition powers, preferring to resolve market difficulties through regulatory interventions. Recent amendments to the concurrency framework, introduced by sections 51 to 53 of the Enterprise and Regulatory Reform Act 2013, seek both to strengthen the priority of competition enforcement and to provide plausible sanctions – including, ultimately, the removal of competition jurisdiction from regulators – for continued underuse. This article assesses these reforms in light of the history and (limited) application of the concurrent competition powers of regulators to date. It argues that the absence of an overarching policy rationale for this curious example of UK antitrust ‘exceptionalism’ complicates the determination of whether the reforms, which ostensibly seek to reinforce but potentially also undermine concurrency, are likely to have a positive market impact in practice.     

Laboratories of Statehood: Legal Intervention in Colonial Africa and Today

The immense body of contemporary work aimed at ‘promoting the rule of law’ is often accused of ‘neo‐imperialism’. Yet, despite many points of contiguity between past and present legal interventions, the charge is overbroad and rarely illuminating. This article attempts to move beyond polemic to track concrete historical and structural forerunners of today's rule of law work. Focusing mainly (though not exclusively) on late imperial British endeavours, it traces colonial legal interventions over time, the techniques adopted (and rejected), the shifting normative bases of legitimacy, and moments of strategic recalibration in the face of resistance. Three broad attitudes towards law across the period are (provisionally) characterised as ‘regulative’, ‘constitutive’ and ‘institutive’ moments. In each phase, the Powers treat colonial territories as laboratories of statehood, within which experiments are conducted to locate the optimal configuration of law. In conclusion some counterparts to these moments in today's ‘rule of law’ activities are identified.     

Condominium and the City: The Rise of Property in Vancouver

Condominium is a form of land ownership that combines private ownership of an individual unit in a multi‐unit building with an undivided share of the common property in the building and a right to participate in the collective governance of the private and common property. Introduced by statute across North America in the 1960s, condominium facilitated the vertical subdivision of land and enabled a massive increase in the density of private interests. This article describes condominium and considers the justifications that were offered for this rearrangement of property. It then chronicles the introduction of condominium to the city of Vancouver and maps its spread across the city from 1970 to 2010. In doing so, the article reveals that condominium, a legal innovation without peer in its capacity to increase the density of private ownership in land, has provided the legal architecture of ownership for the remaking of Vancouver.     

An appraisal of the risk–need–responsivity (RNR) model of offender rehabilitation and its application in correctional treatment

The science of effective offender rehabilitation remains a very young field: dominated theoretically and empirically by the work of a small group of Canadian psychologists. Their achievements include the ‘what works’ research literature, and the RNR model of offender rehabilitation. First disseminated in 1990, over the following 20 years, the Risk, Need and Responsivity Principles became the core of the theoretical framework used in those correctional systems around the world that use science as a basis for offender rehabilitation. This paper evaluates the strengths and weaknesses of the RNR model as a Level I rehabilitation framework. It proposes that unrealistic expectations and mistranslations of the model into practice are contributing to concerns about its validity and utility, and stifling needed innovation in the development both of mid‐level treatment resources, and of RNR‐adherent interventions. It concludes that although the RNR model's empirical validity and practical utility justify its place as the dominant model, it is not the ‘last word’ on offender rehabilitation; there is much work still to be done.     

“Experts by Experience”: The Involvement of Service Users and Families in Designing and Implementing Innovations in Family Justice

Drawing on international research, policy, and practice, this article explores what is meant by service user involvement, how it has developed, and how it has been implemented across different areas of practice. Using examples from across the health and social care fields, it reflects on how the learning from other areas of practice in which service user involvement has been successful may be applied to the family justice field. The arguments presented highlight the value of taking a bottom‐up approach in designing and implementing innovations in family justice, which would embrace the views of family members, including children, as ‘service users.’ It is important, however, to balance both the challenges and the opportunities offered by involving those who are ‘experts by experience’ in the family justice processes, in order to lead to improved services and experiences.     

Walter Scott and the Reform of the Scottish Judicature 1806–10

The significance of the effort to reform the Court of Session in the early nineteenth century lies in the fact that it represented the first time Westminster had proposed to alter a key Scottish institution protected by the articles of the 1707 Act of Union. Scott as a Clerk of Session played a crucial role in the process, initially resisting reform and then undertaking to shape it. At the same time, his literary patriotism as Britain's best-selling poet was criticized by Britain's most famous cultural critic, Francis Jeffrey, a fellow member of the Faculty of Advocates. Jeffrey as editor of the Edinburgh Review wrote a controversial review of Scott's best-selling poem about the Battle of Flodden, Marmion, which accused Scott of being too ‘English’ in his treatment of this Scottish tragedy. And yet, more than Jeffrey, Scott was opposed to the Whig project of reforming Scottish law to make it more ‘constitutional’ or ‘English’. Using original documents held by the National Archives of Scotland, the Advocates Library, and the National Library of Scotland, this article examines Scott's role in making this controversy a matter of interest for both British literature and legal history.     

The Current Status and Prospects of the 'Strategic Partnership' between the EU and China: Towards the Conclusion of a Partnership and Cooperation Agreement

Abstract: This article aims to evaluate legal aspects of the content and implementation of the ‘strategic partnership’ between the EU and the People's Republic of China. In the absence of a category of ‘emerging countries’ in international economic law, the Union must adapt its foreign policy with regard to this major economic and commercial power. Relations between the European Community and China are currently governed by a second‐generation agreement from 1985. However, a new dynamic has been set in motion since 2003, by the drawing up of preparatory documents by both parties and joint declarations at annual summits bearing on the ‘strategic partnership’. Seen in a long‐term perspective, this partnership helps provide a measure of predictability in relations between the two partners, through combining elements of ‘soft law’ and ‘hard law’. If the insertion of political dialogue into the strategic partnership seems to alter the coherence of the Union, notably with regard to the difficulties of implementing the dialogue on human rights, the added value of the partnership lies essentially in its economic and commercial aspects, through not only the putting into place of non‐binding ‘economic dialogues’ which cover a large spectrum of the relationship, but also by the multiplication of sector‐based accords in numerous areas (maritime transport, customs cooperation, etc.). This constant development has thus allowed parties, at the last annual summit, to envisage the conclusion of a new framework agreement: this is the origin of the mandate given to the Commission in December 2005 to conclude a partnership and cooperation agreement. This article will sketch out a forecast of the legal framework, measured against the yardsticks of Asiatic regional reconfigurations and the law of the World Trade Organisation (WTO). The commercial risks of the relationship could imply the integration of the domains known as ‘WTO plus’ into the future agreement, notably in the field of investments and intellectual property rights, which would introduce a greater variety into the agreement. That being the case, the negotiations risk being equally fragile at the political level, in particular concerning the insertion of a clause of democratic conditionality in the future agreement. Also, any clash between the values and the interests of the EU would be uncomfortably highlighted during negotiations.     

Cohabitation,female sacrifice,and judge-made law

This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a ‘joint family venture’ may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic integration, such as joint bank accounts and the presence of children. Despite the discourse of family diversity, gendered patterns run across all the couples, with women assuming primary care of children, shouldering domestic labour, and making career sacrifices for the family. In a sign of the limits of judge-made reforms, the doctrine may be harder for some claimants to access than for others, in ways not necessarily tracking commitment and economic integration.     

Proving the Dough: National Crime Agency v Baker & Ors

This note examines the High Court's recent decision in National Crime Agency v Baker to discharge three unexplained wealth orders (UWOs) relating to properties in London. The UWOs were originally granted on the basis that the properties were suspected of constituting ‘recoverable property’ for the purposes of the Proceeds of Crime Act 2002. The decision is the first to overturn an UWO. Given the few UWO applications to date, it is an important contribution to the available jurisprudence on the mechanism.  This comment examines the presiding judge's statements on the evidential thresholds to be met in raising a presumption that property constitutes the proceeds of crime and looks at the decision's emphasis on enforcement authorities’ obligations to meet proportionality requirements. It reviews the Court's discussion of complex property ownership structures. It concludes that the judgment raises issues which enforcement authorities may find challenging in seeking to use UWOs in future investigations.     

Proprietary Estoppel and Responsibility for Omissions

The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal‐individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right‐holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honoré termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.     

The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties

The European Commission's Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross‐border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services. This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author's view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.     

Political Law Notes in Conclusion of the 39th Federal General Election held in Canada on 23 January 2006

Traditionally, the discovery of natural resources raises the hope of such a state to secure wealth and economic growth. However, history shows that in some developing countries, particularly the resource-rich, many citizens do not actually benefit from the resource revenues. This is due to factors such as mismanagement of the resource revenues, lack of transparency and accountability and corruption among others. All of these factors are characterised by what is known as the ‘resource curse’ phenomenon. This article examines the resource curse phenomenon with reference to Nigeria’s oil-rich Niger Delta region. It considers a potential legal instrument, which is the Impact and Benefit Agreement (IBA) that could be used to resolve some of the problems characterised by the resource curse phenomenon in the region. Using Canada as a reference point, the article demonstrates that the adoption of IBAs can be an alternative legal strategy for resolving the socio-economic and environmental symptoms of the resource curse in Nigeria’s oil-rich region.