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Article

Access_open Approach with Caution

Sunset Clauses as Safeguards of Democracy?

Journal European Journal of Law Reform, Issue 2 2021
Keywords emergency legislation, sunset clauses, post-legislative review, COVID-19
Authors Sean Molloy
AbstractAuthor's information

    In response to the COVID-19 pandemic, leaders across the globe scrambled to adopt emergency legislation. Amongst other things, these measures gave significant powers to governments in order to curb the spreading of a virus, which has shown itself to be both indiscriminate and deadly. Nevertheless, exceptional measures, however necessary in the short term, can have adverse consequences both on the enjoyment of human rights specifically and democracy more generally. Not only are liberties severely restricted and normal processes of democratic deliberation and accountability constrained but the duration of exceptional powers is also often unclear. One potentially ameliorating measure is the use of sunset clauses: dispositions that determine the expiry of a law or regulation within a predetermined period unless a review determines that there are reasons for extension. The article argues that without effective review processes, far from safeguarding rights and limiting state power, sunset clauses can be utilized to facilitate the transferring of emergency powers whilst failing to guarantee the very problems of normalized emergency they are included to prevent. Thus, sunset clauses and the review processes that attach to them should be approached with caution.


Sean Molloy
Dr Sean Molloy is a Lecturer in Law at Northumbria University.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Fixed Book Price Regimes

Beyond the Rift between Social and Economic Regulation

Journal European Journal of Law Reform, Issue 3 2017
Keywords fixed book price policies (FBP), Brazil, Resale Price Maintenance (RPM), social regulation, antitrust law
Authors Carlos Ragazzo and João Marcelo da Costa e Silva Lima
AbstractAuthor's information

    Brazil is currently discussing the introduction of a nation-wide Fixed Book Price (“FBP”) policy, thus providing context for a discussion of its welfare benefits. There is a rift between the reasons for implementing FBP regimes, and those used to scrutinize them. In order for the debate surrounding the pros and cons of implementing FBP regimes to become more productive, one must investigate the links between the reasons for designing and enforcing such policies, on one side, and standard antitrust analysis, on the other. There are many interesting arguments at the table that both corroborate and compromise the case for an FPB policy. However, throughout history, these policies have experimented cognizable trends. The objective FBP regimes pursue and their design have changed subtly, yet relevantly throughout history. In our view, the current academic and public policy debate surrounding FBP regimes, in both countries considering adopting or revoking them, would benefit from an enhanced awareness of these trends and their policy implications. Ultimately, so would the antitrust analysis of these policies. We argue that a better grasp of these trends could potentially result in a more sober examination of the welfare risks associated with FBP policies.


Carlos Ragazzo
Carlos Ragazzo is Professor of Law at Fundação Getulio Vargas in Rio de Janeiro; he has a doctorate degree from Universidade do Estado do Rio de Janeiro (UERJ) and an LL.M from New York University School of Law.

João Marcelo da Costa e Silva Lima
João Marcelo da Costa e Silva Lima has an M.A. in Regulatory Law from Fundação Getulio Vargas in Rio de Janeiro.
Article

The European Space Agency as a European Institution and a Space Law Maker

Journal European Journal of Law Reform, Issue 1 2016
Keywords European institution, access to space, innovation and development, space law, international cooperation
Authors Marco Ferrazzani
AbstractAuthor's information

    The European Space Agency was set-up over 40 years ago and has delivered on expectations from the scientific community’s quest for more knowledge, from the politicians wishing for more Europe and from the business community developing industrial and operational capabilities. All has been made possible thanks to hard-working scientists and space engineers who created and progressively refined a magic formula of balanced interests and respectful co-operation. The diplomats and lawyers well understood the challenges and so defined long-term policy objectives and a stable legal framework necessary to meet them, therefore providing institutional skills and appropriate financing tools which proved successful, and still today make this particular aspect of Europe. The ESA Convention, along with the activities and programmes based in its framework continue to serve as a living example of how to make Europe with a cooperative formula of a common Agency and law maker, giving access to space for all European citizens.


Marco Ferrazzani
ESA Legal Counsel, European Space Agency, 10 rue Mario Nikis, 75015 Paris. Email: marco.ferrazzani@esa.int.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Goodwill/Intangibles Accounting Rules, Earnings Management, and Competition

Journal European Journal of Law Reform, Issue 1 2015
Keywords fraud, mergers and acquisitions, Games economic psychology, regulation, goodwill and intangibles
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    Intangible assets account for 60%-75% of the market capitalization value in most developed stock markets around the world. The US GAAP and IFRS Goodwill and Intangibles accounting regulations (ASC 805, Business Combinations; ASC 350, Goodwill and Intangible Assets; IFRS-3R, Business Combinations; and IAS 38, Accounting for Intangible Assets) are inefficient and create potentially harmful psychological biases. These regulations facilitate earnings management and money laundering, reduce competition within industries, and are likely to increase the incidence of fraud and misconduct. This article introduces a new goodwill/intangibles disclosure/accounting model that can reduce the incidence of fraud, information asymmetry, moral hazard, adverse selection, and inaccuracy. The article also introduces new economic psychological theories that can explain fraud, misconduct, and non-compliance arising from the implementation of the goodwill/intangibles accounting rules.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. Emails: mcn2225@aol.com; mcn111@juno.com. Phone: 234-909-606-8162.
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

Internet Trolling and the 2011 UK Riots

The Need for a Dualist Reform of the Constitutional, Administrative and Security Frameworks in Great Britain

Journal European Journal of Law Reform, Issue 1 2014
Keywords UK riots, tort law, criminal law, dualism, Internet trolling
Authors Jonathan Bishop
Abstract

    This article proposes the need for ‘dualism’ in the legal system, where civil and criminal offences are considered at the same time, and where both the person complaining and the person responding are on trial at the same time. Considered is how reforming the police and judiciary, such as by replacing the police with legal aid solicitors and giving many of their other powers to the National Crime Agency could improve outcomes for all. The perils of the current system, which treats the accused as criminals until proven not guilty, are critiqued, and suggestions for replacing this process with courts of law that treat complainant and respondent equally are made. The article discusses how such a system based on dualism might have operated during the August 2011 UK riots, where the situation had such a dramatic effect on how the social networking aspects, such as ‘Internet trolling’, affected it.


Jonathan Bishop
Article

Consultation: A Contribution to Efficiency of Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords consultation, stakeholders, efficiency of drafting process, elements of efficiency, policy development
Authors Noor Azlina Hashim
AbstractAuthor's information

    Consultation in legislative drafting process is important and widely acknowledged. So far, many countries in the world have taken steps to foster consultation during the early stage of the drafting process. In Malaysia, the importance of opinion from the public or stakeholders in the output of the drafting process was recently evident when several bills presented before the Parliament were criticized because of the failure to take into consideration views and opinions from the public. In some cases, bills were postponed for policy review and refinement. This article examines and discusses consultation practices during the drafting process and analyses and considers the influence of consultation on the efficiency of the drafting process in Malaysia. The influence of consultation practice in relation to the drafting process were shown from a survey conducted on the drafters in the Drafting Division of the Attorney General’s Chambers of Malaysia.


Noor Azlina Hashim
The Attorney General’s Chambers of Malaysia.
Article

The Combination of Negative with Positive Constitutionalism in Europe

The Quest of a ‘Just Distance’ between Citizens and the Public Power

Journal European Journal of Law Reform, Issue 1 2011
Keywords democracy, constitutionalism, totalitarism, fundamental rights, judicial review
Authors Cesare Pinelli
AbstractAuthor's information

    The article is focused on European constitutionalism as resulting from the transformations following the experiences of totalitarian states. The notion of democracy was then significantly re-shaped, to the extent that democratic devices (federalism and sometimes referendum) were introduced with a view to balance the excesses of a purely representative democracy. The recognition of social rights and of human dignity reacted against totalitarism and, on other hand, against the individualistic notion of rights affecting the XIX century’s constitutionalism. Constitutional review of legislation was introduced, thus overriding the myth of parliamentary sovereignty, particularly the idea of parliament as the sole authority capable of granting fundamental rights.


Cesare Pinelli
Cesare Pinelli is Professor of Constitutional Law in the Faculty of Law, La Sapienza University of Rome.
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