The ‘Reasonable Man’, his Nineteenth‐century ‘Siblings’, and their Legacy

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth‐century common law. This article introduces the man's siblings – including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial; this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person ‘ (negligence) and the ‘person skilled in the art’ (patents).     

‘Consumer’ versus ‘Customer’: The Devil in the Detail

According to the European Commission, the objective of EU competition rules is enhancing ‘consumer welfare’. In EU competition law, however, ‘consumer’ means ‘customer’ and encompasses intermediate customers as well as final consumers. Under Article 102TFEU, harming intermediate ‘customers’ is generally presumed to harm ‘consumers’ and where intermediate customers are not competitors of the dominant undertaking, there is no requisite to assess the effects of conduct on users further downstream. Using advances in economics of vertical restraints and, in particular, non‐linear pricing, this article shows that there are instances where the effect on ‘customer welfare’ does not coincide with the effect on ‘consumer welfare’ and the presumption can potentially lead to decisional errors. Thus, if the law is to serve the interests of ‘consumers’, the Commission should reconsider this presumption and its interpretation of the ‘consumer’ in ‘consumer welfare’; otherwise, it remains questionable whose interests EU competition law serves.     

Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.     

Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt

The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding‐scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision‐theoretic approach.     

Medicolegal investigation of an eighteenth century homicide

The skeleton of an adult man, recovered from an eighteenth century French fort site in Indiana, exhibited a series of sharp force wounds. The lesions, three cranial and one postcranial, had apparently been made by a heavy metal instrument similar to one of the European ax heads discovered elsewhere at the site. In this paper we describe the wounds, argue that the instrument used to create them was a European ax, and offer the opinion that the manner of death in this case was homicide.     

Anthropological facial ‘reconstruction’ – recognizing the fallacies, ‘unembracing’ the errors, and realizing method limits

Despite being practiced for over the last 200 years, facial approximation methods remain in their infancy as the soft tissue prediction methods employed have not been tested and justified. Scientific testing is the only way forward and much of it is needed. The lack of systematic scientific tests in the past has enabled many misleading notions to become established. Many of these notions appear to have arisen and been sustained as a result of practitioner biases--this is clearly evident even in the name commonly used to describe the method of building faces from skulls, for "facial reconstruction" implies everything the method is not, e.g., technical/scientific, exact, and credible. Although facial approximation methods are useful for forensic investigation (even if they do not generate identifications through true positive recognitions of the faces), the public should beware of the marketing and political ploys employed within the profession. These ploys give rise to some impressive, but unjustifiable claims--but do not just take my word for it; evaluate the evidence for yourself with disregard to the indoctrination waged by the facial "reconstruction" field in general, including that promoted by what I have had to say here. Use your own reason and intellect and see which conclusions you reach.     

From ‘Interinstitutional Agreements’ to ‘Interinstitutional Agencies/Offices’?

Abstract:  This article tries to trace a line between Interinstitutional Agreements (IIAs) and Interinstitutional Agencies/Offices, recently established on the basis of the new 'externalisation policy' of the European Commission. Both phenomena serve, to a certain extent, to achieve the same objective, namely a smoother and more effective cooperation between the main institutions within the European Union. On the basis of an empirical documentation of more than 100 IIAs, the article classifies and assesses the extraordinary variety and diversity of IIAs collected in this compilation—according to their chronological distribution, number of parties involved in the conclusion, denomination, and substantial content. The evaluation of these IIAs first addresses the question of their permissibility, proceeding with the examination of their legal nature and effects. The article concludes by asking which of the two dichotomous instruments—IIAs or Interinstitutional Agencies/Offices—will prevail, and hence ensure a more expeditious discharge of the Commissions bureaucracy.     

Four forms of ‘offender’ rehabilitation: Towards an interdisciplinary perspective

This paper aims to advance the case for a more fully interdisciplinary understanding of offender rehabilitation, partly as a means of shedding light upon and moving beyond contemporary ‘paradigm conflicts’. It begins with a review of current arguments about what a credible ‘offender’ rehabilitation theory requires and by exploring some aspects of current debates about different theories. It goes on to locate this specific kind of contemporary theory building in the context of historical arguments about and critiques of rehabilitation as a concept and in practice. In the third part of the paper, I explore the nature of the relationship between desistance theories and rehabilitation theories, so as to develop my concluding argument; that is, that debates about psychological rehabilitation have been hampered by a failure to engage fully with debates about at least three other forms of rehabilitation (legal, moral, and social) that emerge as being equally important in the process of desistance from crime.     

Legal ‘Elasticity’ and ‘Sidestepping’ in European Crisis Management of Financial Markets

This paper explores the roles played by law in crisis management of financial markets and some possible consequences. Three questions are raised ‐‐about the ‘elastic’ use of law, about ‘sidestepping’ existing legal order by invention of new structures and about redistributive consequences. These questions are appraised empirically in relation to three areas of financial market law: public support given to banking from 2008 onwards; English case law concerning derivatives contracts when confronted with Lehman‐style insolvencies; and the European Stability Mechanism, which during summer 2015 was being primed in relation to Greece. On the first two case studies, law, having been mightily stretched, did not break. Likewise, legal sidestepping, as epitomised by the European Stability Mechanism, may result in a less coherent legal structure; however such incoherence may be not be fatal to the ensemble. On all three fronts, redistributive questions remain controversial, but controversy in itself does not undermine legal structures. A particular form of theory, the Legal Theory of Finance, is discussed in light of the case studies. Such theory may have an unfulfilled longing to discern law‐like regularities (ironically chasing economics).     

Case Comment: The Legality of ‘Kettling’ after Austin

This case comment considers the European Court of Human Rights decision of Austin v United Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public protest in London amounted to a violation of her right to liberty under Article 5 of the European Convention of Human Rights. This case comment suggests that the court took an unexpected and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come to undermine the protections afforded by Article 5 and extend the current exceptions to Article 5 to an indefinite range of situations.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook

Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third‐country nationals over the past two decades, which—unlike the mobility of EU citizens—received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third‐country nationals and shows in how far they depart from the paradigm of intra‐European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants' rights and self‐government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.     

Beyond ‘Constitutionalism Beyond the State’

For contemporary constitutional theory, the key challenge posed by globalization undermines the traditional link between constitutionalism and the state: in response to multi‐level governance, theories of constitutionalism beyond the state have been advanced. This focus on levels obscures more fundamental epistemological questions raised by globalization about the nature of constitutionalism itself. Critical analysis of three leading schools of constitutionalism beyond the state – supranational, societal, and new constitutionalism – highlights their shared assumptions with state‐based thought regarding the separation between economics and politics, and the necessarily hegemonic character of constitutionalism. However, globalization intensifies critique of these assumptions, and questions their translation to the transnational context. An alternative scholarly fault line to the state/non‐state cleavage emerges between working within and transcending the politics of constitutional knowledge produced during the nation‐state era. A broader globalization perspective reveals the extent to which such processes of constitutional rethinking are under way through developments in the global South.