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Article

Which Direction Is the Regulatory Quality Pendulum Taking?

Journal European Journal of Law Reform, Issue 1 2015
Keywords regulatory quality, meta-policy, competitiveness, impact assessment, cognitive sciences
Authors Luca Di Donato
AbstractAuthor's information

    This article seeks a systematic definition of regulatory quality. Most of the literature has recognised that the concept of regulatory quality is particularly difficult to define. Member states, international organisations, and others have produced studies on regulatory quality, and they have reached different findings. Even if regulatory quality is based on conventional good governance principles, the enforcement and measurement of the quality of regulations and of its tools within any single country can differ widely and be very complicated.
    For these reasons, Part I explores regulatory quality in the European Union and – through the analysis of the policies, reports, and documents – indicates which direction the regulatory quality pendulum has taken.
    Part II, basing itself on the results of Part I, provides a general definition of quality, and it based on the procedures that legislator should comply with to enact its rules.
    Part III confirms the relationship between regulatory quality and competitiveness, and, in particular, this link has become more solid because the financial crisis has promoted new regulatory reforms by member states.
    Finally, this article notes that the legislator’s objectives can be achieved if the former takes into account the real people, including their irrational choices, human errors, and limits.


Luca Di Donato
PhD Candidate at Luiss Guido Carli University. Email: sdc.luca@gmail.com.
Article

Un-Constitutionality of the Dodd-Frank Act

Journal European Journal of Law Reform, Issue 1 2015
Keywords Dodd-Frank Act, enforcement games, systemic risk, financial services regulation, constitutional law
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    ‘Restoring American Financial Stability Act’ of 2010 (‘RAFSA’ or the ‘Dodd-Frank Act’) was the first set of statutes in any country that attempted to simultaneously address the Global Financial Crisis, the national securities law framework, the structure of the executive branch of the federal government, and delegation of powers to federal government agencies (to the detriment of state governments). Other countries have enacted statutes that are similar to RAFSA. However, RAFSA and similar statutes in many countries are inefficient and have failed to address the fundamental problems in financial systems, and parts of RAFSA are unconstitutional.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. E-mail: mcn2225@gmail.com; mcn2225@aol.com. Phone: 234-909-606-8162.
Article

Regulating Genetic Discrimination in the European Union

Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?

Journal European Journal of Law Reform, Issue 1 2015
Keywords genetics, regulation, discrimination, data protection, European Union
Authors Aisling de Paor and Delia Ferri
AbstractAuthor's information

    Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information.


Aisling de Paor
BCL, LLM, PhD, Solicitor (Law Society of Ireland) – Lecturer in Law, Dublin City University.

Delia Ferri
LLM, PhD in European and Italian constitutional law, Attorney at Law registered at the Verona Bar (Italy) – Lecturer in Law, National University of Ireland Maynooth.
Article

Bugs Bunny and Daffy Duck vs. Marvin the Martian

A Perspective from (Earthly) International Space Law

Journal International Institute of Space Law, Issue 3 2015
Authors Anette Floehlich
Author's information

Anette Floehlich
LL.M., MAS, SpaceTech (TU Graz)/German Aerospace Center (DLR), Mandelstr. 13/II, A-8010 Graz, Austria

    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    The seriousness of the incorporation problem in interdisciplinary legal research, this article argues, depends on how legal research is understood. If legal research is understood as a single, inherently interdisciplinary discipline, the problem largely falls away. On this view, the incorporation of other disciplines into legal research is what legal academics have for the last 40 years already successfully been doing. If, on the other hand, legal research is best conceived as a multi-disciplinary field, consisting of a core discipline – doctrinal research – and various other types of mono-disciplinary and interdisciplinary research, the incorporation of other disciplines presents real difficulties. For legal academics engaged in socio-legal research, in particular, two problems arise: the practical problem of trying to address a legal professional and academic audience at the same time and the philosophical problem of trying to integrate the internal perspective of doctrinal research with the external perspective of other disciplines. In the final part of the article, these practical and philosophical difficulties are illustrated by reference to the author’s research on the politics of judicial review in new democracies.


Theunis Robert Roux
Theunis Robert Roux is Professor of Law at the University of New South Wales, Australia.

    The article takes as its point of departure some of the author’s multidisciplinary projects. Special attention is given to the question of whether the disciplines united in the various research team members already constituted a kind of ‘inter-discipline’, through which a single object was studied. The issue of how the disciplinary orientations of the research team members occasionally clashed, on methodological issues, is also addressed.
    The outcomes of these and similar multidisciplinary research projects are followed back into legal practice and academic legal scholarship to uncover whether an incorporation problem indeed exists. Here, special attention will be given to policy recommendations and notably proposals for new legislation. After all, according to Van Dijck et al., the typical role model for legal researchers working from an internal perspective on the law is the legislator.
    The author concludes by making a somewhat bold case for reverse incorporation, that is, the need for (traditional) academic legal research to become an integral part of a more encompassing (inter-)discipline, referred to here as ‘conflict management studies’. Key factors that will contribute to the rise of such a broad (inter-)discipline are the changes that currently permeate legal practice (the target audience of traditional legal research) and the changes in the overall financing of academic research itself (with special reference to the Netherlands).


Annie de Roo
Erasmus School of Law, Erasmus University Rotterdam.

    The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.
    This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.
    This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.


Terry Hutchinson
Associate Professor, Faculty of Law, QUT Law School (t.hutchinson@qut.edu.au); Marika Chang (QUT Law School) was the research assistant on this project.

Charles Stotler
McGill University Institute of Air and Space Law (LL.M. Candidate), Montreal, Canada

Brian M. Stanford
Attorney-Advisor, Office of the General Counsel, National Aeronautics and Space Administration, United States
Article

Access_open The 2015 Manfred Lachs Space Law Moot Court Competition

Case Concerning Planetary Defense

Journal International Institute of Space Law, Issue 13 2015
Authors Frans G. von der Dunk and Leslie I. Tennen
Author's information

Frans G. von der Dunk
The Netherlands

Leslie I. Tennen
United States
Article

Access_open The Experience of Legal Injustice

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords legal injustice, legal subject, law and morality, Fuller, Arendt
Authors Wouter Veraart
AbstractAuthor's information

    This paper shows that Fuller and Arendt converge on a different point than the point Rundle focuses on. What Fuller and Arendt seem to share in their legal thoughts is not so much an interest in the experience of law-as-such (the interaction between responsible agency and law as a complex institution), but rather an interest in the junction of law and injustice. By not sufficiently focusing on the experience of legal injustice, Rundle overlooks an important point of divergence between Arendt and Fuller. In particular, Arendt differs from Fuller in her conviction that ‘injustice in a legal form’ is an integral part of modern legal systems.


Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy and Director of Research at the Free University Amsterdam; w.j.veraart@vu.nl.
Article

Access_open Reply

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Fuller, Arendt, normativism, methodology, the rule of law
Authors Kristen Rundle
AbstractAuthor's information

    Author’s reply to four commentaries on ‘Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt.’


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au
Article

Access_open Political Jurisprudence or Institutional Normativism? Maintaining the Difference Between Arendt and Fuller

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Arendt, Fuller, Hobbes, political jurisprudence, political freedom, authority, legality
Authors Michael Wilkinson
AbstractAuthor's information

    Can jurisprudence fruitfully pursue a synthesis of Arendt’s political theory and Fuller’s normative legal philosophy? Might their ideas of the juridical person and the legal subject be aligned as a result of a shared concern for the value of legality, specifically of an institutional complex which is structured through the stability and predictability of the rule of law? It is doubtful that Arendt's concern for the phenomena of plurality, political freedom and action can usefully be brought into line with Fuller's normativist focus on legality, subjectivity and the inner morality of law. This doubt is explored by juxtaposing Arendt's theory of action and her remarks on the revolution, foundation and augmentation of power and authority with Fuller's philosophy that, however critical of its positivist adversaries, remains ultimately tied to a Hobbesian tradition which views authority and power in abstract, hierarchical and individualist terms.


Michael Wilkinson
Michael Wilkinson is Associate Professor of Law at the London School of Economics; m.wilkinson@lse.ac.uk
Article

Access_open Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Fuller, Arendt, legal subject, juridical person, public rule of law theory
Authors Kristen Rundle
AbstractAuthor's information

    The ‘public’ character of the kind of rule of law theorizing with which Lon Fuller was engaged is signalled especially in his attention to the very notion of being a ’legal subject’ at all. This point is central to the aim of this paper to explore the animating commitments, of substance and method alike, of a particular direction of legal theorizing: one which commences its inquiry from an assessment of conditions of personhood within a public legal frame. Opening up this inquiry to resources beyond Fuller, the paper makes a novel move in its consideration of how the political theorist Hannah Arendt’s reflections on the ‘juridical person’ might aid a legal theoretical enterprise of this kind.


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au
Article

Addressing the Pension Challenge: Can the EU Respond?

Towards Facilitating the Portability of Supplementary (Occupational) Pension Rights

Journal European Journal of Law Reform, Issue 4 2014
Keywords Economic crisis, social protection, pension provision, occupational pensions, cross-border portability of pension rights
Authors Konstantina Kalogeropoulou
AbstractAuthor's information

    The European economic crisis has underlined the challenges that Member States of the European Union face towards ensuring adequate social protection provision for their citizens. The effects of the crisis have and can further impact on the capacity of pension schemes, both state provided and privately managed, that constitute a significant aspect of social protection, to deliver pension promises. This paper highlights the current situation that the common pension challenges pose for Member States and focuses on a particular issue around occupational pension provision, which has been on the European Commission’s agenda for a long time, and on which limited progress had been made. This is the issue of cross-border portability of supplementary pension rights. It is argued that current circumstances facilitate EU action to be taken in this area. In the first section, the paper identifies the main challenges around pension provision stemming from demographic ageing and the effects of the economic crisis. Section two provides a brief overview of the Commission’s holistic approach envisaged in its 2012 White Paper on safe, adequate, and sustainable pensions. Section three provides an overview of the issue of the portability of supplementary pension rights for EU workers. Section four outlines previous attempts and recent developments towards the adoption of legislative measures to promote the portability of such pension entitlements. The paper concludes by arguing that the renewed focus on pensions, in the context of current challenges and the need to enhance workers’ mobility and to provide adequate social protection, have paved the way towards the adoption of measures in this area.


Konstantina Kalogeropoulou
Senior Lecturer in Law, Kingston University. I would like to thank Dr Ioannis Glinavos for the invitation to participate in this special issue.
Article

Another Type of Deficit?

Human Rights, Corporate Social Responsibility, and the Shaping of the European Union’s Linkage Strategy

Journal European Journal of Law Reform, Issue 4 2014
Keywords human rights, corporate social responsibility, linkage strategy
Authors Aurora Voiculescu
AbstractAuthor's information

    This article engages with the European Union’s continuing strategy, in the context of the economic crisis, of addressing the human rights deficit of the current economic model by promoting a multifarious normative linkage between the economic, market-driven sphere and the human rights-anchored social sphere. The article looks into issues of normativity associated with the EU linkage agenda and interrogates some of its institutional and conceptual elements. It contends that, while the linkage discourse depends on a multitude of actors and factors, the EU encompasses a number of features that – by entropy as much as by design – facilitate an interrogation of the normative set-up that currently holds between human rights and the market mechanisms. The first part of the article addresses the linkage or ‘trade and’ debate that carries distinct nuances within contemporary international economic law. In the second part, the potential as well as the challenges brought about by the EU as a socio-political entity highlight the bringing together of competing normative issues. Lastly, the article considers the EU conceptual inroads in developing the necessary tools for consolidating and addressing the linkage agenda. Through this analysis, the article highlights an essential, dynamic nexus and a search for normative synchronisation between the economic development model and the social model. It is argued that coupling this nexus with a conceptual rethinking can increase the chances of matching the so far rhetorical persuasiveness of the linkage discourse with the so far elusive conceptual coherence and policy consistency.


Aurora Voiculescu
Westminster International Law and Theory Centre, University of Westminster, London, United Kingdom. A first draft of this paper was presented at the workshop organised by the Centre for the Law of EU External Relations (CLEER) ‘Linking trade and non-commercial interests: the EU as a global role model?’, on 9 November 2012 at the TMC Asser Institute, The Hague. I am very grateful to the workshop participants as well as to Tamara Takacs, Andrea Ott, and Angelos Dimopoulos for the very insightful comments that helped me develop the paper further. Of course, all remaining mistakes are entirely mine.
Article

Collective Action Clauses in the Eurozone

One Step Forward, Two Steps Back

Journal European Journal of Law Reform, Issue 4 2014
Keywords collective action clauses (CACs), sovereign debt restructuring, Eurozone, European Stability Mechanism
Authors Giuseppe Bianco
AbstractAuthor's information

    Amongst the measures taken inside the European Union to tackle the sovereign debt crisis, the focus of the legal scholarship has been mainly on the financial stability mechanisms and the European Central Bank’s action. These initiatives constitute the liquidity assistance part of the response. Arguably, less attention has been devoted to the initiatives intended to face issues of debt sustainability. As regards the course of action to adopt in case a country cannot repay its debt, the European Union opted for collective action clauses (CACs). This paper takes a critical look at the Eurozone CACs. It aims to answer the following research question: Are the adopted CACs an efficient means to achieve their purported objective (i.e. facilitate renegotiations of sovereign bonds between creditors and the sovereign debtor)? To do so, the paper investigates the CACs’ content and their historical bases. It then compares the final version with the initial draft and points to several interesting findings. The paper argues that it is likely that practical results from the use of CACs will be significantly below political leaders’ expectations.


Giuseppe Bianco
PhD Fellow, University of Oslo – Université Paris 1 Panthéon-Sorbonne. He can be reached at giuseppe.bianco@jus.uio.no. The author wishes to thank Régis Bismuth, Annamaria Viterbo, and Michael Waibel. Any errors and omissions are the sole responsibility of the author.
Article

Beyond Financialisation?

Transformative Strategies for More Sustainable Financial Markets in the European Union

Journal European Journal of Law Reform, Issue 4 2014
Keywords financialisation, financial market integration, financial reform, financial innovation, financial crisis
Authors Dieter Pesendorfer
AbstractAuthor's information

    The global financial crisis has led many regulators and lawmakers to a rethinking about current versus optimum financial market structures and activities that include a variety and even radical ideas about deleveraging and downsizing finance. This paper focuses on the flaws and shortcomings of regulatory reforms of finance and on the necessity of and scope for more radical transformative strategies. With ‘crisis economics’ back, the most developed countries, including the EU member states, are still on the edge of disaster and confronted with systemic risk. Changes in financial regulation adopted in the aftermath of the financial meltdown have not been radical enough to transform the overall system of finance-driven capitalism towards a more sustainable system with a more embedded finance. The paper discusses financialisation in order to understand the development trends in finance over the past decades and examines various theories to describe the typical trends and patterns in financial regulation. By focusing on a limited number of regulatory reforms in the European Union, the limitations of current reforms and the need for additional transformative strategies necessary to overcome the finance-driven accumulation regime are explored. Finally, the regulatory space for such transformative strategies and for taming finance in times of crisis, austerity, and increased public protest potential is analysed.


Dieter Pesendorfer
Queen’s University Belfast, School of Law, d.pesendorfer@qub.ac.uk.
Article

A Crisis Beyond Law, or a Crisis of Law?

Reflections on the European Economic Crisis

Journal European Journal of Law Reform, Issue 4 2014
Keywords Eurozone, economic crisis, Greece, debt, Grexit
Authors Ioannis Glinavos
AbstractAuthor's information

    This paper attempts to locate the place of law in debates on the economic crisis. It suggests that law is the meeting point of politics and economics, not simply the background to market operations. It is suggested therefore that the law should be seen as the conduit of the popular will through political decision making onto economic systems and processes. The paper argues that the crisis can be seen as being the consequence of the dis-embedding of the political from the economic, and it is this distance that causes legal frameworks to operate in unsatisfactory ways. With this theoretical basis, the paper examines the sovereign debt crisis in Europe. The European debt crisis in general and the plight of Greece in particular show why plasticity in policy making is necessary and also reveal why current orthodox solutions to economic calamities fail. The inflexibility of the neoclassical understanding of the state-market relationship does not allow for avenues out of crisis that are both theoretically coherent and politically welcome. Such realisations form the basis of the examination of the rules framing the Eurozone. This paper, after conducting an investigation of exit points from the Eurozone, condemns the current institutional framework of the EU, and especially the EMU as inflexible and inadequate to deal with the stress being placed on Europe by the crisis.


Ioannis Glinavos
Dr Ioannis Glinavos is Senior Lecturer in Law at the University of Westminster, i.glinavos@westminster.ac.uk.
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