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Tali Gal
Tali Gal is a Senior Lecturer and Head of School of Criminology at the University of Haifa, Israel. Contact author: tali.gal.04@gmail.com.
Article

Access_open Basel IV Postponed: A Chance to Regulate Shadow Banking?

Journal Erasmus Law Review, Issue 2 2020
Keywords Basel Accords, EU Law, shadow banking, financial stability, prudential regulation
Authors Katarzyna Parchimowicz and Ross Spence
AbstractAuthor's information

    In the aftermath of the 2007 global financial crisis, regulators have agreed a substantial tightening of prudential regulation for banks operating in the traditional banking sector (TBS). The TBS is stringently regulated under the Basel Accords to moderate financial stability and to minimise risk to government and taxpayers. While prudential regulation is important from a financial stability perspective, the flipside is that the Basel Accords only apply to the TBS, they do not regulate the shadow banking sector (SBS). While it is not disputed that the SBS provides numerous benefits given the net credit growth of the economy since the global financial crisis has come from the SBS rather than traditional banking channels, the SBS also poses many risks. Therefore, the fact that the SBS is not subject to prudential regulation is a cause of serious systemic concern. The introduction of Basel IV, which compliments Basel III, seeks to complete the Basel framework on prudential banking regulation. On the example of this set of standards and its potential negative consequences for the TBS, this paper aims to visualise the incentives for TBS institutions to move some of their activities into the SBS, and thus stress the need for more comprehensive regulation of the SBS. Current coronavirus crisis forced Basel Committee to postpone implementation of the Basel IV rules – this could be perceived as a chance to complete the financial regulatory framework and address the SBS as well.


Katarzyna Parchimowicz
LLM. Finance (Frankfurt), PhD candidate at the University of Wrocław, Poland, Young Researcher at the European Banking Institute, Frankfurt, Germany – katarzyna.parchimowicz@uwr.edu.pl.

Ross Spence
EURO-CEFG PhD Fellow at Leiden University Law School, Young Researcher at the European Banking Institute and Research Associate at the Amsterdam Centre for Law and Economics – r.spence@law.leidenuniv.nl.
Article

Interest Representation in Belgium

Mapping the Size and Diversity of an Interest Group Population in a Multi-layered Neo-corporatist Polity

Journal Politics of the Low Countries, Issue Online First 2020
Keywords interest groups, advocacy, access, advisory councils, media attention
Authors Evelien Willems, Jan Beyers and Frederik Heylen
AbstractAuthor's information

    This article assesses the size and diversity of Belgium’s interest group population by triangulating four data sources. Combining various sources allows us to describe which societal interests get mobilised, which interest organisations become politically active and who gains access to the policy process and obtains news media attention. Unique about the project is the systematic data collection, enabling us to compare interest representation at the national, Flemish and Francophone-Walloon government levels. We find that: (1) the national government level remains an important venue for interest groups, despite the continuous transfer of competences to the subnational and European levels, (2) neo-corporatist mobilisation patterns are a persistent feature of interest representation, despite substantial interest group diversity and (3) interest mobilisation substantially varies across government levels and political-administrative arenas.


Evelien Willems
Evelien Willems, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.

Jan Beyers
Jan Beyers, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.

Frederik Heylen
Frederik Heylen, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.
Article

The European Union and Space

A ‘Star Wars’ Saga?

Journal European Journal of Law Reform, Issue 4 2019
Keywords EU space competence, EU Space Policy, Galileo, Copernicus, Framework Agreement ESA-EU
Authors Rebecca-Emmanuela Papadopoulou
AbstractAuthor's information

    This article explores the complex relationship between the European Union (EU) and space, alias space’s ever-growing place and role in the EU legal order. Two distinct paths are identified in this respect. On the one hand, as from the mid-1980s and despite the lack of an express ‘space competence’, space policy parameters were introduced in EU acts regulating telecommunications, satellite communications and electronic databases, but only to the extent necessary to serve the functioning of the single market. On the other hand, an autonomous EU Space Policy has been progressively elaborated as from the late 1990s through several initiatives, namely the strengthening of the collaboration with the European Space Agency and the setting up of the Galileo and Global Monitoring for Environment and Security (GMES)/Copernicus programmes. This tendency was corroborated by the conferral of an express space competence on the EU by the Lisbon Treaty, whose constitutional and institutional implications are explored in this article. It is submitted that the new space competence shall allow the EU to reach a stage of maturity and claim a greater degree of autonomy at the international level and, at the same time, to project its own governance model, thus enhancing the quality of international cooperation in space.


Rebecca-Emmanuela Papadopoulou
Rebecca-Emmanuela Papadopoulou is Assistant Professor, Law School, NKUA.
Article

Access_open The New Dutch Model Investment Agreement: On the Road to Sustainability or Keeping up Appearances?

Journal Erasmus Law Review, Issue 4 2019
Keywords Dutch model BIT, foreign direct investment, bilateral investment treaties, investor-to-state dispute settlement, sustainable development goals
Authors Alessandra Arcuri and Bart-Jaap Verbeek
AbstractAuthor's information

    In 2019, the Dutch government presented a New Model Investment Agreement that seeks to contribute to the sustainability and inclusivity of future Dutch trade and investment policy. This article offers a critical analysis of the most relevant parts of the revised model text in order to appraise to what extent it could promote sustainability and inclusivity. It starts by providing an overview of the Dutch BIT (Bilateral Investment Treaty) programme, where the role of the Netherlands as a favourite conduit country for global FDI is highlighted. In the article, we identify the reasons why the Netherlands became a preferred jurisdiction for foreign investors and the negative implications for governments and their policy space to advance sustainable development. The 2019 model text is expressly set out to achieve a fairer system and to protect ‘sustainable investment in the interest of development’. While displaying a welcome engagement with key values of sustainable development, this article identifies a number of weaknesses of the 2019 model text. Some of the most criticised substantive and procedural provisions are being reproduced in the model text, including the reiteration of investors’ legitimate expectation as an enforceable right, the inclusion of an umbrella clause, and the unaltered broad coverage of investments. Most notably, the model text continues to marginalise the interests of investment-affected communities and stakeholders, while bestowing exclusive rights and privileges on foreign investors. The article concludes by hinting at possible reforms to better align existing and future Dutch investment treaties with the sustainable development goals.


Alessandra Arcuri
Alessandra Arcuri is Professor of Inclusive Global Law and Governance, Erasmus School of Law (ESL), Erasmus Initiative Dynamics of Inclusive Prosperity, Erasmus University Rotterdam, arcuri@law.eur.nl.

Bart-Jaap Verbeek
Bart-Jaap Verbeek is Researcher at Stichting Onderzoek Multinationale Ondernemingen (SOMO) and PhD Candidate Political Science at the Radboud University.

    Hoe was het met de Nederlandse rechtsfilosofie gesteld in de eerste jaren na de bevrijding? In die periode lag binnen de Vereniging voor Wijsbegeerte des Rechts (VWR) het accent op de verhouding tussen recht en gerechtigheid in het licht van het recente verleden. Dit artikel bespreekt interventies van drie actieve VWR-leden in de jaren 1946-1949: C.M.O. van Nispen tot Sevenaer, I. Kisch en G.E. Langemeijer. Gelet op het sterke accent op de relatie tussen recht en moraal in deze periode, is het niet verwonderlijk dat de rechtsfilosofie van Gustav Radbruch destijds binnen de VWR veel bijval kreeg. Wat was Radbruchs invloed op deze drie rechtsfilosofen? Het artikel besluit met een bespreking van de herdenkingsrede die VWR-voorzitter M.P. Vrij in 1949 uitsprak bij het dertigjarig bestaan. Deze rede markeert het eindpunt van vier jaar van intensieve aandacht voor de rechtsfilosofische implicaties van de ervaring van juridisch onrecht.


Wouter Veraart
Wouter Veraart is hoogleraar Rechtsfilosofie aan de Vrije Universiteit Amsterdam.
Literature review

Consensualism, Democratic Satisfaction, Political Trust and the Winner-Loser Gap

State of the Art of Two Decades of Research

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensualism, majoritarianism, political trust, satisfaction with democracy, Lijphart
Authors Tom van der Meer and Anna Kern
AbstractAuthor's information

    Lijphart (1999) argued that citizens tend to be more satisfied with democracy in consensual democracies than in majoritarian democracies and that the gap in democratic satisfaction between the winners and the losers of elections is smaller under consensualism. Twenty years on since then, this article takes stock of the literature on consensualism and political support. We find considerable ambiguity in the theoretical arguments and empirical evidence provided in this literature. Finally, we speculate on possible reasons for this ambiguity.


Tom van der Meer
Tom van der Meer, University of Amsterdam.

Anna Kern
Anna Kern, Ghent University.

Bas van Zelst
Article

Access_open Fostering Worker Cooperatives with Blockchain Technology: Lessons from the Colony Project

Journal Erasmus Law Review, Issue 3 2018
Keywords blockchain, collaborative economy, cooperative governance, decentralised governance, worker cooperatives
Authors Morshed Mannan
AbstractAuthor's information

    In recent years, there has been growing policy support for expanding worker ownership of businesses in the European Union. Debates on stimulating worker ownership are a regular feature of discussions on the collaborative economy and the future of work, given anxieties regarding the reconfiguration of the nature of work and the decline of standardised employment contracts. Yet, worker ownership, in the form of labour-managed firms such as worker cooperatives, remains marginal. This article explains the appeal of worker cooperatives and examines the reasons why they continue to be relatively scarce. Taking its cue from Henry Hansmann’s hypothesis that organisational innovations can make worker ownership of firms viable in previously untenable circumstances, this article explores how organisational innovations, such as those embodied in the capital and governance structure of Decentralised (Autonomous) Organisations (D(A)Os), can potentially facilitate the growth of LMFs. It does so by undertaking a case study of a blockchain project, Colony, which seeks to create decentralised, self-organising companies where decision-making power derives from high-quality work. For worker cooperatives, seeking to connect globally dispersed workers through an online workplace, Colony’s proposed capital and governance structure, based on technological and game theoretic insight may offer useful lessons. Drawing from this pre-figurative structure, self-imposed institutional rules may be deployed by worker cooperatives in their by-laws to avoid some of the main pitfalls associated with labour management and thereby, potentially, vitalise the formation of the cooperative form.


Morshed Mannan
Morshed Mannan, LLM (Adv.), PhD Candidate, Company Law Department, Institute of Private Law, Universiteit Leiden.
Part I Courts and ODR

Testing the Promise of Access to Justice through Online Courts

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online courts, empirical research, civil justice, access to justice
Authors Bridgette Toy-Cronin, Bridget Irvine, David M. Nichols e.a.
AbstractAuthor's information

    Modernization is increasingly knocking on the courthouse door. Many common law countries are investigating ways to introduce technology to improve civil courts, including the introduction of online courts. These state-led initiatives are primarily focused on lowering state costs in providing justice, as well as increasing access to dispute resolution. One possible solution some legal jurisdictions are exploring is ‘online courts’. Online courts hold the promise of making justice more accessible and affordable: a dispute can be filed at any time, from anywhere, by anyone. This model of delivering justice is envisioned as a system that either is lawyer-less or has a minimal role for lawyers. One of the assumptions underpinning an online court is, therefore, that laypeople can effectively explain a dispute to the court, without legal assistance. To date, there is no empirical research investigating that assumption. In this article, we will outline the proposed online court model, consider the need for robust empirical research, and describe a three-part investigation to explore how clearly and accurately people can explain a dispute.


Bridgette Toy-Cronin
Bridgette Toy-Cronin is the Director of the University of Otago Legal Issues Centre and a Senior Lecturer in the Faculty of Law, University of Otago.

Bridget Irvine
Bridget Irvine is a Postdoctoral Fellow at the University of Otago Legal Issues Centre.

David M. Nichols
David M. Nichols is an Associate Professor in Computer Science at the University of Waikato.

Sally Jo Cunningham
Sally Jo Cunningham is an Associate Professor in Computer Science at the University of Waikato.

Tatiana Tkacukova
Tatiana Tkacukova is a Senior Lecturer in the School of English, Birmingham City University. Authors appear in order of the contribution made to the paper.
Part I Courts and ODR

Ethical Concerns in Court-Connected Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court ODR, fourth party, ethics, access to justice, confidentiality, transparency, informed participation, accessibility, accountability, empowerment, trust
Authors Dorcas Quek Anderson
AbstractAuthor's information

    This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in private ODR, because of the association of the courts with substantive and procedural justice. As in any dispute resolution system, a coherent and effective court ODR system should be guided by dispute system design principles, which includes having clarity of the system’s underlying values and purposes. It is therefore pertinent for each court to resolve the key ethical tensions in order to articulate the foundational values that will undergird the design of its ODR system.


Dorcas Quek Anderson
Dorcas Quek Anderson is an Assistant Professor in the Singapore Management University School of Law. This research is supported by the National Research Foundation, Prime Minister’s Office, Singapore (NRF), and the Infocomm Media Development Authority (IMDA) under a grant to the Singapore Management University School of Law to helm a 5-year Research Program on the Governance of Artificial Intelligence and Data Use.
Article

Access_open ‘A Continuous Process of Becoming’: The Relevance of Qualitative Research into the Storylines of Law

Journal Erasmus Law Review, Issue 2 2018
Keywords storylines of law, qualitative research, law in action, law in books
Authors Danielle Antoinette Marguerite Chevalier
AbstractAuthor's information

    The maxim ‘law in books and law in action’ relays an implicit dichotomy, and though the constitutive nature of law is nowadays commonly professed, the reflex remains to use law in books as an autonomous starting point. Law however, it is argued in this article, has a storyline that commences before its institutional formalisation. Law as ‘a continuous process of becoming’ encompasses both law in books and law in action, and law in action encompasses timelines both before and after the formal coming about of law. To fully understand law, it is necessary to understand the entire storyline of law. Qualitative studies in law and society are well equipped to offer valuable insights on the facets of law outside the books. The insights are not additional to doctrinal understanding, but part and parcel of it. To illustrate this, an ethnographic case study of local bylaws regulating an ethnically diverse public space of everyday life is expanded upon. The case study is used to demonstrate the insights qualitative data yields with regard to the dynamics in which law comes about, and how these dynamics continue for law in action after law has made the books. This particular case study moreover exemplifies how law is one of many truths in the context in which it operates, and how formalised law is reflective of the power constellations that have brought it forth.


Danielle Antoinette Marguerite Chevalier
Dr. mr. Danielle Antoinette Marguerite Chevalier, PhD, is assistant professor at Leiden University, The Netherlands.
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Journal Erasmus Law Review, Issue 2 2018
Keywords empirical legal research, Europe, popularity, increase, journals
Authors Gijs van Dijck, Shahar Sverdlov and Gabriela Buck
AbstractAuthor's information

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.

    This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.

    The Act on the Exploration and Use of Space Resources (the Space Resources Act) adopted by Luxemburg Parliament in July 2017, in particular Article 1 which stipulates that “Space resources are capable of being appropriated”, has raised various discussions in the international community. Along with the U.S. Commercial Space Launch Competitiveness Act of 2015 (CSLCA), State Parties to the Outer Space Treaty (OST), which prohibits national appropriation of outer space whereby, has taken the first step towards an overall commercial exploitation of space resources by national recognition of private property rights thereon. Yet, such initiative, creating property rights over space resources obtained in missions conducted by private entities, has raised an inevitable question for other space-faring nations who might be State Parties to the OST or the Moon Agreement (MOON) or both of them: what should they do in their domestic laws?
    The CSLCA, in particular Title IV, was deliberately designed in a way that obviously act in accordance with existing international law. However, it grants ownership and other rights of space resources only to citizens of U.S., because of which the controversies raised by this nationality-oriented approach are continuing to focus on if its unilateral interpretation does accord with Art. I and II of the OST. The Space Resources Act, however, by stipulating conformity with Luxemburg’s international obligations in Art. 2(3) in the Space Resources Act, has taken an approach that is heading to the same direction yet different goal. Luxemburg is neither one of the super space powers nor a potential one when it officially announced its ambition on a domestic regulatory framework for commercial space industries. At the current stage, the legal certainty provided by the Space Resources Act works for the blueprint for the promising commercial investment in the space field. This article examines the similarities and differences between the CSLCA, in particular Title IV, and the Space Resources Act. By such review, this article presents the legal interpretation of core principles of international space law which converge to States’ practices on a national basis, and demonstrates to what extent are they in consistency with international space law to try to figure out for other States if there are more options of establishing a national legal framework for exploiting space resources.


Yangzi Tao
Keio University.
Article

The Negotiation Element in Mediation

The Impact of Anchoring

Journal Corporate Mediation Journal, Issue 2 2017
Authors Martin Brink
Author's information

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Article

The Law of Consumer Redress in an Evolving Digital Market

Upgrading from Alternative to Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords e-Commerce, Online Dispute Resolution, Alternative Dispute Resolution, consumer redress
Authors Pablo Cortés
AbstractAuthor's information

    This article contains the Introduction of a book with the same title recently published by Cambridge University Press, which is reproduced here with its permission. The book offers an updated analysis of the various consumer dispute resolution processes, its laws and best practices, which are collectively referred as the Law of Consumer Redress. The book argues that many consumer redress systems, and in particular publicly certified Alternative Dispute Resolution (ADR) entities, are more than a mere dispute resolution mechanism as they provide a public service for consumers that complements, and often replaces, the role of the courts. In examining the current redress models (i.e., public enforcement, private enforcement and other market options), the book calls for greater integration amongst these various redress options. It also advocates, inter alia, for processes that encourage parties to participate in ADR processes, settle meritorious claims and ensure extrajudicial enforcement of final outcomes. Lastly, the book calls for a more efficient rationalization of certified ADR entities, which should be better coordinated and accessible through technological means.


Pablo Cortés
Pablo Cortés is Professor of Civil Justice, University of Leicester, UK.
Article

Negotiating Co-Authorship, Ethically and Successfully

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords negotiation, ethics, academia, mentorship, authorship
Authors Andrea Schneider and Rachel Gur-Arie PhD
AbstractAuthor's information

    Authorship is a feature of career success and is relevant for practically all health science fields. Yet negotiating co-authorship is one of the most difficult processes academics encounter. The stakes are high, issues can be complex, and negotiators’ motivations are often multifaceted. The tools presented in this article – preparation, relationship development, and communication – can be used to increase the likelihood of a successful negotiation. Through the use of a case study, this article illustrates how a typical junior colleague can negotiate with their mentor. Additionally, this article outlines various standards of co-authorship to ensure that published authorship reflects appropriate standards of the field. The goal is for academics to be able to negotiate not only effectively, but also ethically.


Andrea Schneider
Professor Andrea Kupfer Schneider is the Director of the Dispute Resolution Program, Marquette University Law School.

Rachel Gur-Arie PhD
Rachel Gur-Arie is a PhD candidate in Health Systems Management within the School of Public Health at Ben-Gurion University of the Negev in Be’er Sheva, Israel.
Editorial

Foreword

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Authors Michal Alberstein, Nadav Davidovitch PHD and Shelly Kamin-Friedman
Author's information

Michal Alberstein
Michal Alberstein is a Full Professor at The Faculty of Law, Bar-Ilan University, Israel. She is also the Primary Investigator on an ERC consolidator grant to study Judicial Conflict Resolution (JCR).

Nadav Davidovitch PHD
Nadav Davidovitch, MD, MPH, PhD is an epidemiologist and public health physician. He is a Full Professor and Director, School of Public Health, Faculty of Health Sciences and the Guilford-Glaser Faculty of Business and Management at Ben-Gurion University of the Negev in Israel.

Shelly Kamin-Friedman
Adv. Shelly Kamin-Friedman, LL.B, MHA is a specialist in Health Law and a PhD candidate at the Department of Health Systems Management, Faculty of Health Sciences, Ben-Gurion University of the Negev, Be'er Sheva, Israel.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The German Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Supervision, twin track system, principle of proportionality, human rights, violent and sex offenders
Authors Bernd-Dieter Meier
AbstractAuthor's information

    After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany.


Bernd-Dieter Meier
Prof. Dr. Bernd-Dieter Meier is the Chair in Criminal Law and Criminology at the Law Faculty of Leibniz University Hannover.
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