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Preview: Oxford Journal of Legal Studies - current issue

Oxford Journal of Legal Studies Current Issue

Published: Wed, 26 Oct 2016 00:00:00 GMT

Last Build Date: Tue, 03 Oct 2017 13:06:44 GMT


A Defence of the Right to Litigate in Person †


This review article examines Rabeea Assy’s case against granting litigants a general right to self-representation in civil proceedings. Assy argues that this right confers no significant value in terms of enforcing litigants’ substantive rights, or promoting their personal autonomy or satisfaction. In response, this review questions the limitations that Assy consciously imposes on his own analysis. He puts to one side, for instance, the question of litigants’ wealth, or their means to hire a lawyer. The focus of his argument is also limited to what he calls ‘ordinary’ civil litigation between individuals. His hope is to pitch the argument as a general contest between values. The effect of these limitations is to lose sight of the context in which self-representation takes place. Assy’s book reveals much about the foundations of the right to self-representation, but, when we consider the complications of the law in practice, he discounts too readily the contribution that the right of self-representation makes to the continuing legitimacy of the legal system.

Greek Debt Relief


Politicians, journalists and economists from around the world are calling for a debt restructuring or even large-scale debt relief to resolve the Greek sovereign debt crisis. These voices are thus treating the issue as a matter of political will. This article argues that it is not. Greek debt is predominantly owned by other eurozone member states and Eurosystem central banks. As such, these creditors are not free to decide as they or their voters wish. EU rules set strict limits on political and economic discretion with regard to financial assistance among EU Member States and vis-à-vis EU institutions. This article argues that these restrictive rules delineate clear boundaries for restructuring Greece’s debt, whether this debt is held by EU Member States, eurozone financial facilities or the Eurosystem. These rules even affect restructuring that is supported by a majority vote of creditors under collective action clauses in contracts associated with sovereign bond issuances. These conclusions are based on the recent ruling of the Court of Justice of the European Union in Gauweiler. Although the court has clarified that the Eurosystem is empowered to use a wide range of monetary policy tools in pursuit of the objectives in which it is mandated to engage, this article argues that the ruling also indicates that haircuts cannot be applied to debt instruments issued by EU Member States by the same logic that prohibits monetary state financing.

Freedom and Generalisation


Both inside and outside the courtroom, we commonly infer facts about individuals by using generalisations about how similar people tend to behave in similar situations. However, some types of generalisation seem intuitively objectionable (eg using the high rate of crimes involving illegal firearms in a certain neighbourhood to support the conviction of an individual resident in a crime involving an illegal firearm). This article seeks to propose a new approach to the use of generalisations in order to identify which uses are objectionable and to explain why this is the case. This new approach seeks to connect the problem of generalisation to the issue of free will. The crux of the argument is that using some types of generalisation requires presupposing that the individual’s behaviour was determined by a certain causal factor which renders such behaviour unfree. Yet, in some contexts, most importantly in criminal proceedings, it is necessary to presuppose the exact opposite: that the individual is free to determine her own behaviour. Using these generalisations in such contexts is objectionable because it involves contradicting presuppositions about the individual’s behaviour.

A Matter of Choice: Rethinking Legal Formalism’s Account of Private Law Rights


Ernest Weinrib’s theory of legal formalism argues that there are two mutually irreducible forms of justice: distributive justice and corrective justice. Formalism views private law exclusively through the lens of corrective justice and frames the legal relationship between individuals in terms of correlative rights and duties. This article considers the rights (and duties) of corrective justice with a focus on two principal issues: (i) where the rights of corrective justice come from; and (ii) what is wrong with formalism’s account of their origin. Although Kant’s doctrine of right serves as the foundation for the rights of corrective justice, formalism in its current form does not provide an adequate explanation of how these rights develop from the moral rights of Kant’s philosophy. This article attempts to address this disconnect by proposing an account of the transition from moral rights to legal rights. In doing so, it recasts distributive justice and corrective justice as integrated, mutually reinforcing aspects of a unified form of justice based on the principles of Kantian right.

The Absolute and the Relative Dimensions of Constitutional Rights


The principle of proportionality is necessary if it can claim validity in all legal systems. What can claim validity in all legal systems has absolute validity. On the other hand, what can only claim to have validity in some legal systems has merely relative validity. This distinction is applicable not only to the principle of proportionality as a norm about the application of constitutional rights, but also to the constitutional rights themselves, and to the institutionalization of the protection of constitutional rights by means of constitutional review. This leads to three questions, which are systematically closely connected: (1) Do constitutional rights have an absolute character? (2) Does the principle of proportionality have an absolute character? (3) Does constitutional review have an absolute character? Only the first two questions shall be discussed here.

Statutory Interpretation and the Many Virtues of Legislation


The question of statutory interpretation is closely connected to convictions we have in our political theory. This article explores one such connection, focusing on the relationship between the respect owed to legislative decisions and our interpretive practices. It develops two arguments in this regard. The first argument traces the way varying understandings of modern legislation and alternative accounts of the value of legislative practices entail different modes of statutory interpretation. The second argument criticises existing theories of statutory interpretation for assuming a monolithic account of the value of legislation and suggests that different approaches to statutory interpretation might be appropriate for dealing with different exercises of legislative power.

What’s Public About Crime?


It is often claimed that the fact that some wrongs are public is a fact that is important to our thinking about permissible criminalisation. We argue that it is not. Some say: what gives us reason to criminalise wrongs—when we have such a reason—is the fact that those wrongs are public. Others say: the fact that a wrong is public is a necessary condition of there being reason to criminalise that wrong, or of its permissible criminalisation. What we should make of these statements depends on what is meant by a public wrong. If the claim that a wrong is public is simply the conclusion of a sound argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements are true, but trivially so. If the claim that a wrong is public is a premise in an argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements, we argue, are false. We conclude that it would be better, when we think about permissible criminalisation, to do without the idea of a public wrong.

Dilution Law, Vertical Agreements, and the Construction of Consumption


Recent reorientations of the paradigms of 20th-century antitrust law have underscored today’s post-scarcity regime, with its focus on uncovering and stamping out behaviour that weakens product manufacturers’ incentives to invest in the scarcity, uniqueness and authenticity values that everyday goods and services conjure in consumers’ minds. Alongside the general intellectual property law developments that support dilution-avoiding business practices, this article identifies recent case law that underlines the ways in which dilution thinking is surfacing in antitrust law. It evaluates the legal implications of such thinking based on a substantial social science literature that reveals the mechanisms by which marketing strategies that focus on a high price, uniqueness and authenticity do their work. As businesses increasingly employ strategies that seek to condense product information into simple decision-making heuristics that deliberately invoke subconscious appeal to persuade, the normative force of consumer choice is called into question. In order to preserve the ability of consumers to effectively choose between alternatives, an increased promotion of intratype competition presents the greatest likelihood of arresting the sea change initiated by antitrust law’s dilution revolution. The reason for this finding, as this article demonstrates, resides in the fact that the economic background—the purchasing context—often determines to a significant extent the manner in which consumers decide and act.

A Critique of the Concept–Nature Nexus in Joseph Raz’s Methodology


Joseph Raz employs a methodology according to which we can learn truths about the nature of law by examining our concept of law. This article is devoted to interpreting and critiquing this idea, which I call the ‘concept–nature nexus’. I propose three interpretations of the concept–nature nexus that attempt to make sense of it, and expose the flaws in each. The first employs immodest conceptual analysis and is problematic for that reason. The second I call the ‘spotlight view’, and I argue that it makes sense of the concept–nature nexus only by defining the thing in question in a stipulative way that undermines the enterprise. The third relies on the idea that our concepts make the law what it is; I argue that this could make our concepts relevant to understanding law’s nature, but would involve prioritising the views of the legal officials with the power to make law what it is, which conflicts with Raz’s approach. I conclude that, in the absence of some further account of the concept–nature nexus, we should abandon it. In closing, I briefly explore methodological possibilities that require only a concept–concept or a nature–nature nexus, but suggest that these face their own problems.

Defending a Communicative Theory of Punishment: The Relationship between Hard Treatment and Amends


According to communicative theories of punishment, legal punishment is pro tanto justified because it communicates the censure that offenders deserve for their crimes. The aim of this article is to offer a modest defence for a particular version of a communicative theory. This version builds on the one that has been advanced by Antony Duff. According to him, legal punishment should be understood as a kind of (secular) penitential burden that is placed upon offenders to censure them for their crimes, with the aims that they will then come to repent, reform themselves and reconcile with those whom they have wronged. This article departs from Duff’s version, however, by arguing that the penitential burdens in question should be understood more specifically in terms of the amends that offenders ought to make to apologise for their criminal wrongdoings. The article then attempts to address three potential objections to this revised version of the communicative theory.