Are Older Workers Past Their Sell‐by‐Date? A View from UK Age Discrimination Law

This article assesses the effectiveness of United Kingdom age discrimination law in protecting older workers from claims that they are less productive and perform more poorly than younger workers. The article assesses employer perceptions and the incompatibility of such perceptions with existing research and the current interpretation of age discrimination law by the CJEU and the Supreme Court which accords with such research. The effectiveness of age discrimination law in practice is assessed through an analysis of existing compensation reduction rules. The article concludes that the existing rules which allow for a reduction in compensation payable where there is a chance that the same outcome would have been reached in the absence of discrimination (the ‘chance model’) reduces the effectiveness of the existing protections. A move to a ‘certainty model’ would be less speculative, would serve the objectives of anti‐discrimination law and would reduce concerns about compatibility with EU law.     

Rural Identity in the Twenty‐first Century: A Community of Crofters or Crofting Communities?

Crofting has been subjected to a specific regulatory regime in Scots law since the introduction of the Crofters' Holdings (Scotland) Act in 1886. The Act, introduced in response to the devastation caused by the Highland clearances, provided for security of tenure and associated rights and now provides for full ownership on both individual and collective bases. Consequently, the legal framework incorporates two distinct forms of crofting identity: one based on the crofting function and the other on a broader, place‐based definition incorporating all who live within crofting communities. Used as a basis for policymaking, each definition gives rise to different outcomes. In this paper, we use empirical research to show how such distinctions are manifested in specific conflicts of interest within contemporary crofting communities. This analysis is intended to inform the current debate surrounding the future of crofting as well as to contribute to the wider literature on the use of identity in the process of resource allocation.     

Philosophy in Law? A Legal‐Philosophical Inquiry

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it.     

Looking for the Nature of Law: On Shapiro’s Challenge

This article critically focuses on the methodological aspects of Scott Shapiro??s book Legality. Indeed Shapiro??s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first two sections I shall analyze Shapiro??s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro??s work.     

The Development of EU Case‐Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I'm Sixty‐Four’

This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies.     

Religious Radicalization and Lone‐Actor Terrorism: A Matter for Psychiatry?

This article discusses the place of the psychiatric field in the ongoing phenomenon of religious radicalization. First, the article provides an overview of the existing literature on lone‐actor terrorists and the link with mental illness. Current research is focusing increasingly on lone‐actor terrorists. This is the most recent and rising development on the global terrorism scene. The literature is currently developing a more precise and informed definition of lone‐actor terrorism. The article then describes and discusses the case study of a mentally ill patient arrested following his assault on a military serviceman on the grounds of religious radicalization. The patient, diagnosed with schizophrenia, is taken as an example of the specific case of religious radicalization in patients with schizophrenia. Finally, the article discusses the curative and preventive roles that can be played by psychiatrists and other professionals who are in contact with these types of patients.     

Trace Element Analysis of Rough Diamond by LA‐ICP‐MS: A Case of Source Discrimination?*,†

Abstract: Current profiling of rough diamond source is performed using different physical and/or morphological techniques that require strong knowledge and experience in the field. More recently, chemical impurities have been used to discriminate diamond source and with the advance of laser ablation–inductively coupled plasma–mass spectrometry (LA‐ICP‐MS) empirical profiling of rough diamonds is possible to some extent. In this study, we present a LA‐ICP‐MS methodology that we developed for analyzing ultra‐trace element impurities in rough diamond for origin determination (“profiling”). Diamonds from two sources were analyzed by LA‐ICP‐MS and were statistically classified by accepted methods. For the two diamond populations analyzed in this study, binomial logistic regression produced a better overall correct classification than linear discriminant analysis. The results suggest that an anticipated matrix match reference material would improve the robustness of our methodology for forensic applications.     

A Separate Peace? The Politics of Localized Law in the Post‐Revolutionary Era

Law is often seen as peripheral to Southern life before the Civil War, and the South as an outlier in the American legal history of that era. In The People and Their Peace (2009), Laura Edwards demonstrates the profoundly legal nature of Southern society and takes an important step toward integrating the legal history of the South with that of the nation. Edwards identifies two dueling legal cultures in North and South Carolina between 1787 and 1840—the law of local courts, which she terms localized law, and the state law of professionalized lawyers and reformers. She argues that white women, slaves, and the poor fared better in localized law—which was based on notions of popular sovereignty and the flexible rubric of restoring “the peace”—than in state courts, which were steeped in a national culture of individual rights that led to more restrictive results. This essay questions Edwards's dichotomy between local law and state law and her depiction of the popular content of localized law, while building on Edwards's innovations to suggest a new direction for Southern legal history.     

The Equal Employment Opportunity Law: A Decade of Change for Japanese Women?

This article analyzes the impact of the Equal Employment Opportunity Law in Japan, passed in 1986 and now over a decade old. The article views the law as weak and examines its role in relation to the three groups most affected by the legislation: women, bureaucrats, and employers. The article argues that, although the law has produced few gains in employment opportunities for women, it has led to renewed efforts at litigation, increased consciousness and activism among women, and amendments to the law, passed in 1997.     

Why Criminal Law: A Question of Content?

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments.

The Israeli Patient's Rights Law: evidence for deprofessionalization?

In this paper, the Israeli Patient's Rights Law of 1996 is discussed within the framework of Haug's predicted process of deprofessionalization. It is argued that the law reflects global processes such as the diffusion of knowledge, consumerism, and values that emphasize human rights and democracy. By guaranteeing patients' access to medical information, by submitting medical decisions to extra-professional regulation, the law erodes professional power.     

全球化下的普遍人权批判:基于欧洲的视角——评Global Law:A Triple Challenge

直面经济全球化,马蒂基于欧洲的视角,一方面反对美国式的独白式普遍主义的霸权性的解决方案,另一方面也反对四分五裂的消解普遍主义人权的努力,而给出了一种欧洲式的共同体下的世界法.这种世界法预设了一种普遍人权,这种普遍人权既有其自身难以克服的预设与论述之间的内在紧张,更为重要的是其预设本身就缺乏一种正当的对人之为人的生活样态的关注的理据.因之,在全球化下,对普遍人权的基础与正当性需要作出一种新的检讨.     

Video Advance Directives: A Turning Point for Advance Decision-Making? A Consideration of Their Roles and Implications for Law and Practice

Questions regarding making and implementing care preferences through advance directives have become increasingly significant as the greying population grows with rising numbers of people experiencing incapacity. Currently, there is no consensus in the format for making advance directives. Recent developments highlighted the use of recording technology as an option to counter the challenges of written forms. Services offering video and audio recording available for online and offline storage are emerging in the United States. These services presumably strengthen a person’s expression of care preferences for healthcare providers in making treatment decisions compared to written advance directives. This article examines the role video advance directives play in advance decision-making and their legal and practical implications to the existing framework. An appreciation of the legal challenges presented by this development facilitates an understanding of their use in contemporary advance directives and enables appropriate recommendations for implementing safeguards in their use.

     

Post‐Trial Victims' Rights in the EU: Do Law Enforcement Motives Still Reign Supreme?

The EU legislator has been accused of overemphasizing the repressive aspect of law enforcement, while paying less attention to civil liberties, such as fundamental victims' rights. This paper examines the current position of EU crime victims, with a special focus on the execution phase of a criminal procedure. A victimological assessment of (1) the Framework Decisions on custodial sentences and probation measures and (2) the recent EU Victim Directive shows that none of these instruments contains any mechanisms for safeguarding the rights of victims in the post‐trial stage. Regardless of the various praiseworthy efforts to further the emancipation of victims, when it comes to the execution phase, victims' rights are still largely neglected, thereby opening the door again to criticism. Granting victims a right to information and a (non‐influential) right to be heard would already improve matters greatly. A constitutional assessment indicates that Europe is competent to make these changes.     

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.     

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.     

Fazhi vs/and/or Rule of Law?: A Semiotic Venture into Chinese Law

The paper is an investigation offazhi (rule of law) in China. The studyproposes a tentative semiotic framework for theinterpretation of the rule of law as a legalconcept to be applied to China in the light ofits recent incorporation into the ChineseConstitution. The paper argues that legalconcepts such as the rule of law are triadic innature and their constituents are relative,relational and contextual in the semioticinterpretative process. The study examines howthe concept can be explicated with the thin orformal theory of the rule of law as a frame ofreference, and how the semiotic model maycontribute to the understanding of the Chineserule of law or the lack thereof. This approachalso attempts to account for the gap betweenthe legal ideal and reality in China andcanvasses cross-cultural considerations. In thefirst part of the paper, a semiotic frameworkfor legal concepts is postulated forconstructing the meaning of the rule of law,followed by its application to contemporaryChina.     

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.