Flexible rules cum constrained discretion: a new consensus in monetary policy

This paper demonstrates that recent influential contributions to monetary policy imply an emerging consensus whereby neither rigid rules nor complete discretion are found optimal. Instead, middle-ground monetary regimes based on rules (operative under 'normal' circumstances) to anchor inflation expectations over the long run, but designed with enough flexibility to mitigate the short-run effect of shocks (with communicated discretion in 'exceptional' circumstances temporarily overriding these rules), are gaining support in theoretical models and policy formulation and implementation. The opposition of 'rules versus discretion' has, thus, reappeared as the synthesis of 'rules cum discretion', in essence as inflation-forecast targeting. But such synthesis is not without major theoretical problems, as we argue in this contribution. Furthermore, the very recent real-world events have made it obvious that the inflation targeting strategy of monetary policy, which rests upon the new consensus paradigm in modern macroeconomics is at best a 'fair weather' model. In the turbulent economic climate of highly unstable inflation, deep financial crisis and world-wide, abrupt economic slowdown nowadays this approach needs serious rethinking to say the least, if not abandoning it altogether

A matter of choice: strategy and discretion in the shadow of World War Two

American policy-makers are predisposed towards the idea of a necessary war of survival, fought with little room for choice. This reflects a dominant memory of World War II that teaches Americans that they live in a dangerously small world that imposes conflict. Critics argue that the ‘choice versus necessity’ schema is ahistorical and mischievous. This article offers supporting fire to those critiques. America’s war against the Axis (1941–45) is a crucial case through which to test the ‘small world’ view. Arguments for war in 1941 pose overblown scenarios of the rise of a Eurasian super-threat. In 1941 conflict was discretionary and not strictly necessary in the interests of national security. The argument for intervention is a closer call that often assumed. This has implications for America’s choices today.

Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

Reflections on the sociology of law: A rejection of law as 'socially marginal'

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locatc law as a critical matter of social structure - and power - which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the ernpifical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, 'the social', and the operation of law. It concludes that law is not 'socially marginal' but socially, totally central. (c) 2009 Elsevier Ltd. All rights reserved.

Health and safety on construction sites in Ghana

The state of health and safety on construction sites in Ghana was investigated using first hand observation of fourteen (14) construction project sites in 2009 and 2010. At each site, the construction project, workers and the physical environment of the site were inspected and evaluated against health and safety indicators taken from the literature. The results reveal a poor state of health and safety on Ghanaian construction sites. The primary reasons are a lack of strong institutional framework for governing construction activities and poor enforcement of health and safety policies and procedures. Also, Ghanaian society does not place a high premium on health and safety of construction workers on site. Interviews with workers indicated that injuries and accidents are common on sites. However, compensation for injury is often at the discretion of the contractor although collective bargaining agreements between Labour unions and employers prescribe obligations for the contractor in the event of injury to a worker.

Studying the effect of systemisation on design activity

It is considered that systemisation, the use of standard systems of components and design solutions, has an effect on the activities of the designer. This paper draws on many areas of knowledge; design movements, economic theory, quality evaluation and organisation theory to substantiate the view that systemisation will reduce the designer's discretion at the point of design. A methodology to test this hypothesis is described which will be of use to other researchers studying the social processes of construction organisations.

Access to the countryside of England and Wales: popular leisure; commodified culture

Risk and uncertainty are, to say the least, poorly considered by most individuals involved in real estate analysis - in both development and investment appraisal. Surveyors continue to express 'uncertainty' about the value (risk) of using relatively objective methods of analysis to account for these factors. These methods attempt to identify the risk elements more explicitly. Conventionally this is done by deriving probability distributions for the uncontrolled variables in the system. A suggested 'new' way of "being able to express our uncertainty or slight vagueness about some of the qualitative judgements and not From its modern origins, associated with the urbanising effect of industrialisation, walking has remained a popular form of outdoor recreation. It has, furthermore, remained an important site of class struggle, with the 'landless' seeking to establish their moral 'citizen' right to roam over open country in contradistinction to the 'landed', who have successfully limited this right to legally-defined public rights of way. In the face of declining farm incomes, however, farmers and landowners have, apparently, modified their attitudes towards public access, but only in return for compensation and management payments under grant schemes such as Countryside Stewardship and the Countryside Premium Scheme. With the Ministry of Agriculture, Fisheries and Food now seeking to extend paid access arrangements to other grant schemes, as part of its response to the European Union's Agri-Environment Regulations, access 'rights' are assuming an increasingly commodified form, thereby questioning, if not undermining, the former citizen claims. For rather than being a benefit of citizenship, the existence of limited, often poorly maintained and inadequately signposted, public rights of way has tied inextricably the extension of legally-enforceable access to the needs of the landowners and farmers. At a time of falling prosperity in agriculture, therefore, they have now exercised their discretion by annexing the populism of consumer culture to reproduce the bourgeois liberal values of the market as a principal determinant of the extension of citizen rights of access to the countryside.

Protecting recognized Geneva Convention refugees outside their states of asylum

This article highlights the predicament of persons recognized as refugees according to the Convention Relating to the Status of Refugees (CSR1951 refugees) when they travel outside their state of asylum. Their status entails ipso facto that, if they are ill-treated abroad, they cannot turn to representatives of their state of nationality and request its diplomatic protection, nor can they expect to receive its consular assistance. It is submitted that a state of asylum ought to extend the scope of protection that it offers CSR1951 refugees residing in its territory, and provide them diplomatic protection and consular assistance when they travel abroad as if they were its nationals. Four claims are advanced in support of this contention: First: the advent of human rights treaties has not rendered obsolete the protection of nationals abroad nor has the practice fallen into disuse. On the contrary, protection abroad retains its pedigree and significance, as is illustrated by the recently adopted International Law Commission's Draft Articles on Diplomatic Protection and by frequent resort to consular assistance. Second: while states previously enjoyed unfettered discretion concerning whether and when to protect their nationals abroad, recent developments in domestic jurisdictions as well as in European Union (EU) treaties point to the potential emergence of a qualified duty to exercise state protection or to be willing to provide justifications for its refusal. These developments call particular attention to the vulnerability of CSR1951 refugees: the professed aim of the EU treaty regime is that EU citizens should enjoy effective state protection wherever they travel; by contrast, CSR1951 refugees are in need of state protection wherever they travel. Third: according to CSR1951, states of asylum are required to issue Convention Travel Documents (CTDs) to recognized refugees lawfully staying in their territory. While CTDs do not in of themselves authorize states of asylum to provide protection abroad to their CSR1951 refugees, they reflect partial recognition of the instrumental role of these states in facilitating safe refugee travel. Fourth: while the 'nationality of claims' requirement remains pivotal to the institution of diplomatic protection, and efforts to effectuate its general relaxation have thus far failed, the International Law Commission (ILC) has 'carved out' an exception authorizing states of asylum to provide protection abroad to their recognized refugees. The ILC's protection-enhancing agenda, reflecting progressive development of the law, is laudable, even though it has opted for a rather cautious approach.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Understanding unconscionability in proprietary estoppel

In a series of recent cases, courts have reasserted unconscionability as the basis of proprietary estoppel and in doing so have moved away from the structured form of discretion envisaged in the classic Taylors Fashions formula. In light of these developments, this paper traces the use of unconscionability in estoppel and examines the changing role attributed to the concept. In a parallel development, in exercising their remedial discretion once a claim to estoppel has been established, the courts have emphasised the foundation of estoppel in unconscionability to assert the need for proportionality between the detriment and remedy as ‘the most essential requirement’. Collectively, the cases demonstrate a lack of transparency or consistency, which raises concerns that the courts are descending into a form of individualised discretion. These developments are of particular concern as they come at a time when commentators are predicting a ‘boom’ in estoppel to follow the introduction of electronic conveyancing.