FORTHCOMING

Deadline for Submissions
30th May 2014

Comment: the Instagram Lawscape
Pravin Jeyaraj & Andreas Philippopoulos-Mihalopoulos

Andreas Philippopoulos-Mihalopoulos has recently published a collection of what he calls “picpoems”, which were poems inspired by pictures that he took using an iPhone. The pictures were taken and subsequently listened to through a posthuman methodology, which resulted in his composition of the poems. This comment comprises a conversation between Pravin Jeyaraj and Philippopoulos-Mihalopoulos, in which Jeyaraj explores how the picpoems offer a visualisation of being inside the lawscape, which is an environment created by an invisible law. He argues that the role of law is to highlight the lack of control we have over our bodies and how suicide is the only way we can have any form of control over our escape.

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New Ink: The Perils Of Superimposing Copyright Law On The Tattoo Industry
Elaine O'Connor

Historically the tattoo industry has been considered outside the law and not subject to the same laws and regulations as other art forms. However, in recent years the popularity of tattoos has increased dramatically which has seen a parallel rise in the intellectual property issues related to the industry. While tattoos may be protected under s4 of the Copyright, Designs and Patents Act 19881 (CDPA), the normal conventions will not always apply when the art is fixed on another human being. Important human rights issues arise concerning display and modification. The industry remains sceptical about the use of copyright laws to resolve disputes, preferring to operate outside the realms of traditional law. Although the English courts have yet to rule on the matter, the increased popularity of tattoos and the parallel use of tattoos for commercial gain confirms that copyright issues must be addressed and embraced by the industry.

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WTO Dispute Resolution and Cross Retaliation under Trips: Is it Sanctioned Piracy of Intellectual Property?
A Case Study of the US - Gambling (Antigua) Case

Danish

The WTO Dispute Settlement Mechanism and its effectiveness for developing nations have always been hotly debated issues. While it offers several solutions for global trade problems, none of the remedies available under this system generate as much controversy as the suspension of obligations under TRIPs Agreement as a form of trade retaliation. In order to understand the wrangling over this issue, the article lists the provisions governing the WTO Dispute Settlement Mechanism and its judicial workings. It further elaborates on the TRIPs Agreement and the retaliatory measures against illegal trade practices that are available under Part V of the Agreement. The allegations of piracy of intellectual property that invariably arise in this context have been analysed in view of the recent ruling in the case of US – Gambling1 of the WTO, the findings of which have been elaborated. The article proves that the rhetoric surrounding such a unique remedy lends an air of mendacity to the entire proceeding and muddles the clear legal rulings that demand compliance. It further argues that this kind of nomenclature imbalances legal disputes and brings them into an emotional context, which is completely unwarranted. The article concludes by highlighting various lacunae in the existing system and offers possible solutions for a more efficient system of dispute resolution.

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Power Struggles in International Economic Law:
Introducing a Political Dimension to Socio-Legal Methods

Rebecca Grace Tan

Socio-legal approaches to the study of International Economic Law (IEL) have added greatly to our understanding of the subject area. However, this article proposes that it is insufficient to study IEL merely within its broader social context. It aims to demonstrate that the politics of power struggles must be included in such studies in order to better understand how IEL is crafted and subsequently implemented. It examines how state and non-state actors seek to shape IEL to further their own interests. The power struggles that occur as a result of competing interests have ramifications for IEL in two particular stages: the formulation and implementation phases. In the formulation of IEL, political struggles often determine the strength of the law, who it affects and what underlying ideology it reflects. In the subsequent implementation of the law, conflict often arises between actors over how the law ought to be interpreted and applied. Furthermore, the application of the law often has unwanted and unexpected ramifications that result in further turmoil. Ultimately, this article demonstrates that while we should see IEL as embedded in a social context, it is also vital to remember that the very nature of this setting is highly politicised.

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Towards Mediated Legitimacy: the application of Adorno’s critique of instrumental reason to understanding the possibility of non-instrumental legitimacy
Patrick Wheatley

This paper argues that Adorno’s analysis of epistemology as a project towards non-instrumental reason forces us to rethink the legal-rational legitimacy of law. It advances the view that the possibility of an epistemology that reflects the mediations of complex society provides a platform from which to consider a pathway towards non-instrumental legitimacy. The paper takes the premise of Adorno’s negative dialectic to show that, by questioning the moment of synthesis within the traditional Hegelian dialectic, the relationship of object and subject is placed into an irreconcilable mediation. In removing this ‘positive’ moment from dialectics, the view that there exists an underlying rationality to society is challenged; the implication which this paper draws attention to is the necessary removal of the belief that systems of law can continue to be legitimzied on the basis of legal-rationality.

With this in mind, the paper advances the view that if negative dialectics removes the notion of transcendence through synthesis, and that individuals must engage in immanent critique if instrumental reason is to be kept at bay, then a similar direction should be taken in the study of legal legitimacy. For example, if knowledge is shown to exist as a mediation, and to fall short of legitimacy when the subject is coerced into objectivity, as in instrumental reason, likewise, our understanding of law must raise suspicion over attempts to coerce forms of social reconciliation which aim at identity or at pure reason. Rather, following Adorno, we must reconsider forms of reconciliation that reflect mediation.

The legal-rational legitimacy of Max Weber, which draws its legitimacy from the pre-perceived rationality of its laws, is shown through Adorno’s study of instrumental reason, to lack any substantive legitimacy. For if instrumental reason is the pursuit of ‘rational’ thought aimed at liberating human beings, which in the process is shown to coerce mediation towards identity, what this paper suggests is that when such reason forms the basis of legal legitimacy, such legitimacy is in fact instrumental and undermined. What the paper points to is the need for non-instrumental, mediated legitimacy.

By mediated legitimacy, the paper suggests a system of law that mediates between the substantive and formal aspects of legal theory, and at its root, is built upon the project of critical theory in aiming, through immanent critique, to recognize the perpetual distance that exists between itself and society it represents, by virtue of negative dialectics. Mediated legitimacy is the attempt at greater proximity to its movements, so as to better reflect the society it serves by keeping instrumental legitimacy at bay, and therefore reflects the aesthetic reconciliation presented in Adorno’s notion of mediated non-identity that aims at non-instrumental reason. A full outline of what the paper considers to be mediated legitimacy is not undertaken however; the article should be seen as the groundwork for this project, which intends, at this stage, by diagnosing the problem, to point to the necessity of non-instrumental legitimacy rather than the means by which it should be achieved.

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Westminster Law Review National Debate Competition