Oxford Journal of Legal Studies - recent issues

Corporate Governance and the Importance of Macroeconomic Context

Dignam, A., Galanis, M. — 2008-06-23

This article seeks to bring a focus to the significance of trade and finance in corporate governance outcomes. It explores the theoretical and historical link between micro-economic-level firm structure and macro-economic institutions such as trade and finance. The more open the economy, it argues, the more difficult it is in the long run to sustain an insider model. It then argues that changes in interdependent aspects of macro-economic policy in the UK and the US—primarily trade liberalization and the end of capital controls—combined with the presence of developed capital markets and a self-regulatory ethos, allowed institutional investors to refocus the market-level rules on shareholders despite the managerial bias of their legal systems, and enabled the emergence of the outsider shareholder-oriented systems present there today. The article then argues that core insider systems such as those in Germany and France operated with different financing arrangements which meant that they were less susceptible to immediate change. However, in the long run global economic conditions have continued to push shareholder-oriented norms on insider systems. The article concludes that if these conditions persist, then governments will lose, or may indeed already have lost, sovereignty with regard to choice of corporate governance system.

What Right Does Unjust Enrichment Law Protect?

Nadler, J. M. — 2008-06-23

This article offers an understanding of the normative basis of unjust enrichment. It begins by considering whether the right at stake in cases of unjust enrichment fits within a Kantian conception of right that treats free agency as the sole aspect of the person commanding respect. It argues that it does not because, in cases of unjust enrichment, recovery does not depend on finding a violation of the plaintiff's bare freedom to choose. The article then argues that unjust enrichment vindicates the plaintiff's right of self-determination—the realization of the capacity to live from self-chosen ends—when the laws of property and contract threaten to undermine it. This resolves the puzzles of unjust enrichment law that remain mysterious on other accounts, such as how the plaintiff can have a right to recovery even though property has been effectively transferred to the defendant, why the plaintiff may recover even though the defendant has been purely passive and has committed no wrong, and why unjust enrichment fails to exhibit the structure of corrective justice.

Beyond the Bottom Line: the Theoretical Aims of Moral Theorizing

Brennan, J. — 2008-06-23

Moral theory is no substitute for virtue, but virtue is no substitute for moral theory. Many critics of moral theory, with Richard Posner being one prominent recent example, complain that moral theory is too abstract, that it cannot generally be used to derive particular rights and wrongs, and that it does not improve people's characters. Posner complains that it is thus of no use to legal theorists. This article defends moral theory, and to some degree, philosophical inquiry in general, against such pragmatic complaints. I argue that the primary goal of moral theorizing is not pragmatic, but theoretical. Moral theory aims at explanation, at answering certain kinds of questions about morality. Moral theory is meant to deepen our insight into morality but, to count as deepening our insight, it need not provide a formula for calculating what to do in a particular circumstance, nor must it make us more virtuous. I provide an account of the scope and nature of explanation provided by moral theory as well as an account of why such explanations can be worth having, even if they were to have few pragmatic consequences.

Respecting the Living Means Respecting the Dead too

McGuinness, S., Brazier, M. — 2008-06-23

Why should we respect the wishes which individuals may have about how their body is treated after death? Reflecting on how and why the law respects the bodies of the living, we argue that we must also respect the ‘dead’. We contest the relevance of the argument ‘the dead have no interests’, rather we think that the pertinent argument is ‘the living have interests in what happens to their dead bodies’. And, we advance arguments why we should also respect the wishes of the relatives of the deceased regarding what happens to the bodies of their loved ones. In our analysis, we use objections to organ and tissue donation for conscientious reasons (often presented as religious reasons) to show why the living can have interests in their dead bodies, and those of their dead relatives, and why these interests should be respected.

How to do Things with Security Post 9/11

Kostakopoulou, D. — 2008-06-23

Discourses and the ideas, perceptions and templates upon which they are based exert a powerful influence on law-making, push policy-making in a precise direction and determine operational action and outcomes. British counterterrorist law and policy post 9/11 is heavily mediated through a conceptual filter that evokes a siege mode of democracy, which deliberately displaces the traditional rights-based model, and a security narrative based on a double asymmetry. By blending a discursive theoretical approach with an institutionalist perspective, the discussion examines the siege mode of democracy and its implications and the double asymmetry underpinning the Government's framing of the threat and of the means to counter it. Both features of the Government's security discourse are critical in explaining not only British counter-terrorist legislation and policy evolution in the 21st century and the controversial operation ‘Kratos’ adopted by ACPO in 2002, but also their official depiction as necessary, and singular, responses to some structured necessity and the associated logic of ‘no alternative’.

The Paradox of Constitutionalism or the Potential of Constitutional Theory?

Galligan, D. J. — 2008-06-23

Comparative Criminal Justice Goes Global

Roberts, P. — 2008-06-23

Rights, Reductionism and Tort Law

Murphy, J. — 2008-06-23

Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review

Stone, A. — 2008-03-19

This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review—at least as conducted throughout the Commonwealth—are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article tests that assumption and concludes that those who hold democracy-based objections to constitutional rights should seriously reconsider, and perhaps oppose, federal and structural judicial review as well.

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

Green, M. S. — 2008-03-19

In an article entitled ‘Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us about the Law’, I argued that in Law's Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ‘Dworkin's fallacy’. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law—‘conventionalism’, ‘pragmatism’ and ‘law as integrity’—in Law's Empire. Only the last of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes as the view that ‘the doctrinal concept of law is an interpretive concept’. In this Reply, I argue that Dworkin's argument that he does not commit Dworkin's fallacy is itself an example of the fallacy and that Dworkin's fallacy pervades Justice in Robes just as much as it did Law's Empire.

An Eye for an Eye: Proportionality as a Moral Principle of Punishment

Fish, M. J. — 2008-03-19

The lex talionis of the Old Testament has been widely perceived—understandably, but mistakenly—as a barbaric law of retribution in kind. It is better understood as a seminal expression of restraint and proportionality as moral principles of punishment. This has been recognized from the earliest times. Over the intervening centuries, the lex talionis has lost neither its moral significance nor its penal relevance. This is reflected in H.L.A. Hart's synthesis of modern retributivist and utilitarian theories of punishment and, again, in contemporary Canadian law through the recognition of proportionality as the fundamental principle of sentencing under the Criminal Code. The tension between this fundamental principle and Canada's increasing resort to mandatory minimum sentences of imprisonment is examined briefly in this light.

Damages for Breach of Contract: Compensation, Restitution and Vindication

Pearce, D., Halson, R. — 2008-03-19

In this article we examine the role which vindication plays in contract damages. Vindication describes the making good of a right by the award of an adequate remedy. We argue that, while the primary purpose of compensation is to provide an indemnity for loss, an award of compensatory damages will nevertheless generally vindicate the right to performance of the contract. We go on to consider a distinct measure of damages, vindicatory damages. These, we argue, are neither compensatory nor restitutionary, neither loss-based nor gain-based: they are a rights-based remedy. We then identify various situations in which the courts may be seen to have awarded what are, in substance, vindicatory damages. We conclude by considering the benefits which may follow from recognition of the availability of vindicatory damages as a contract remedy.

Restitution in America: Why the US Refuses to Join the Global Restitution Party

Saiman, C. — 2008-03-19

In the past generation, restitution law has emerged as a global phenomenon. From its Oxbridge home, restitution migrated to the rest of the Commonwealth, and ongoing Europeanization projects have brought the common law of restitution into contact with the Romanist concept of unjust enrichment, further internationalizing this movement. In contrast, in the United States, scholarly interest in restitution, in terms of books, articles, treatises, symposia and courses on restitution, is meager. Similarly, while restitution, equity and tracing cases receive considerable treatment at the highest levels of the English judiciary, US courts seem uninterested in these issues, rarely producing the theory-laden opinions that have become quite common in the House of Lords. The situation is particularly curious because restitution is generally thought to be the invention of late nineteenth-century American scholars. This article explains this divergence. I argue that the Commonwealth restitution discourse is largely a product of pre- or anti-realist legal thought which generates scepticism within the American academic-legal establishment. The article identifies the two dominant camps in American private law thought—left-leaning redistributionalists and the centre-right legal economists—and shows that neither has any use for the Commonwealth's discourse. I conclude by analysing the emerging drafts of the Restatement of Restitution and forecast the future of American restitution law.

Specifying Rights Out of Necessity

Oberdiek, J. — 2008-03-19

It is the purpose of this article to make the positive case for an under-appreciated conception of rights: specified rights. In contrast to rights conceived generally, a specified right can stand against different behaviour in different circumstances, so that what conflicts with a right in one context may not conflict with it in another. The specified conception of rights thus combines into a single inquiry the two questions that must be answered in invoking the general conception of rights, identifying the content of a right in light of what is justifiable to do under the circumstances. I present the case for specificationism in four sections, focusing on property rights. First, I argue that rights are based upon more fundamental reasons, and that this instrumentalism is compatible only with specificationism—a fact necessity cases illuminate. Next, I explain how specificationism embodies a fully moralized understanding of rights, and point to a dilemma that one faces in denying this. Third, I argue that the gap in property rights exposed in necessity cases entails that there is no right-based duty to compensate in such cases. Finally, I offer an error theory to explain the (false) attraction of the general conception of property rights.

Legal Originality

Siems, M. M. — 2008-03-19

In legal academia it is highly controversial how to ‘be original’ in legal research. This article will try to maintain an attitude of tolerance in not promoting or discrediting one particular methodology. Instead, it will identify four different ways of ‘being original’. Perhaps the most common approach is to deal with ‘micro-legal questions’. Many legal academics also pursue research in ‘macro-legal questions’. Less common but growing is the importance of ‘scientific legal research’ and research in ‘non-legal topics’.

The Normal Order of Family Law

Henaghan, M. — 2008-03-19

The Superpatriotic Fervour of the Moment

Gearty, C. — 2008-03-19

Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence

Coleman, J. L — 2007-11-26

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence.

What is a Crime?

Lamond, G. — 2007-11-26

This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged.

The Relational Principle of Trust and Confidence

Boyle, M. — 2007-11-26

This article seeks to explain why, in terms of Iain Macneil's relational theory of contract, the implied mutual duty of trust and confidence can be described as a quintessentially relational norm. The role played by the duty in the development of a relational approach to variation of the employment contract is examined. The potential for the trust duty to become a relational principle informing the content of the employment contract is explored. The impact of litigation based on the trust duty in creating a relational approach to employees’ contractual remedies at common law, which have traditionally been dominated by the notice rule, is assessed. Finally, the potential for there to develop a relational principle of trust and confidence capable of, to some extent, unifying the contractual, statutory and tortious elements of the law of the employment relationship is examined.

Equity and Conscience

Macnair, M. — 2007-11-26

This article argues that the peculiarly ‘common law tradition’ separation of common law and equity had at its origins a principled basis in the concept of ‘conscience’. But ‘conscience’ here did not mean primarily either the modern lay idea, or the ‘conscience’ of Christopher St German's exposition. Rather, it referred to the judge's, and the defendant's, private knowledge of facts which could not be proved at common law because of medieval common law conceptions of documentary evidence and of trial by jury. The concept of a jurisdiction peculiarly concerned with this issue allowed the ‘English bill’ procedure to be held back to a limited subject area rather than—as in Scotland and the Netherlands—overwhelming the old legal system. By the later 17th century, however, the concept of conscience had lost its specific content, leaving behind the problem, still with us, of justifying the separation of ‘equity’.

How To Reconcile Liberal Politics with Retributive Punishment

Metz, T. — 2007-11-26

There is a deep tension between liberalism and retributivism. On the face of it, one cannot coherently believe liberalism about the fundamental purpose of the state and retributivism about the basic end of legal punishment, given widely held and well-motivated or what I call ‘standard’ conceptions of these views. My aims in this article are to differentiate the types of conflict between liberalism and retributivism, to identify the strongest and most problematic type of conflict between them, to demonstrate that existing strategies in the literature that might be invoked to resolve this conflict fail, and to present a new, conclusive way to resolve it. The solution lies in changing the standard conception of liberalism, which change, I argue, is warranted on independent grounds. Liberalism, up to now, has been conceived in a way that fails to best capture liberal intuitions. Upon improving our understanding of what liberal purposes essentially are, it becomes clear that retributive punishment is not merely logically consistent with them, but also partially constitutive of them.

Patents as Credence Goods

Thambisetty, S. — 2007-11-26

The view of patents as well-defined property rights is as simplistic as it is ubiquitous. This article argues that in newly arising or immature technologies, patents are subject to intrinsic and extrinsic uncertainty that make them very opaque representations of the underlying inventions. The opacity is a result of unsettled legal doctrine and scientific terminology, uncertain commercial and technological prognosis, and leads to considerable ambiguity in property parameters. Patents in immature technologies do not solve Arrow's information paradox of non-rivalrous goods because they do not represent the sharp exclusive right that is central to his thesis. In such cases patents ought to be reclassified in terms of their perceived and actual function as credence goods. The difficulty in discovering the value of these patents necessitates credence verifiers, further increasing the transaction costs of encouraging innovation. The theoretical and empirical implications of credence explored in this article are based primarily on the Anglo-American legal protection of biotechnological inventions, but may be equally relevant to patents in general and patents in other newly arising technologies, in particular.

Taking Evil Seriously

Samet-Porat, I. — 2007-11-26

Ruling or Overruled? The People, Rights and Democracy

Sypnowich, C. — 2007-11-26

Natural Law in Jurisprudence and Politics

Crowe, J. — 2007-11-26