The Narratives of Financial Law

Benjamin, Joanna

doi:10.1093/ojls/gqq030

Cited by 14 publications

(6 citation statements)

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“…Further, the social landscape has been fundamentally transformed by financialisation, and financial firms ought not to be allowed to constantly rely on disclaimers of responsibility in bilateral narratives, a phenomenon that is increasingly incompatible with the financial sector's social footprint and expectations of responsibility commensurate with its power and footprint. 148 The appeal of the proposed 'duty of care' may lie in its nature as a 'general duty', such duty expected to fill the regulatory gaps in the scope of protection we have discussed above. However, unless otherwise clarified, the 'duty of care' itself does not magically fill existing gaps in scope of protection, as such a duty may still not apply to 'non-complex execution-only' or other 'executiononly' situations for non-retail customers.…”

Section: A Case For Addressing the Denuding Of Regulatory Protection mentioning

confidence: 99%

Articulating the gaps in financial consumer protection and policy choices for the financial conduct authority—moving beyond the question of imposing a duty of care

Chiu

Brener

2019

Capital Markets Law Journal

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We respond to the FCA's proposal to consider a statutory duty of care for financial services providers and argue that this is not the right solution to address perceived gaps in consumer or customer protection in financial services contexts. We analyse in detail the common law 'baggage' in the interpretation of the 'duty of care' and explore why it does not meet the purposes set out in the FCA's consultation paper. We also explore in comparison the general 'duty of best interests' under Australian law and the US federal fiduciary duty imposed on financial advisers. We offer a four-fold clarification of the gaps in financial consumer and customer protection under the existing regulatory regime and argue that these better capture the real concerns regarding shortfalls in law and regulation. We suggest that the FCA needs to consider if the 'scope' of protection offered to the three types of customers financial services firms need to classify are well designed. In particular, retail customers may not be adequately protected in non-advisory contexts, and borderline professional customers are given too little protection due to aggressive market practices in financial transactions. We suggest that the FCA needs to consider if standards of protection can be improved in order to incentivize good behavior on an ex ante basis and to avoid excessive proceduralisation. We suggest generally-framed duties can be added to the Treating Customers Fairly principle and the specific regulatory duties found in the MiFID and COBS. We suggest that the FCA needs to consider its deficiencies in its enforcement policy and practice which have given rise to concerns in independent reports and enforcement cases. Finally, we suggest that the FCA needs to consider the spectrum of redress options available to financial customers and consumers and address the weaknesses in the spectrum of options. Ideally we urge the FCA to take leadership in coupling public enforcement with customer restitution but as we do not see practical indications by the FCA towards this, it is crucially important to boost access to private litigation by aggrieved financial customers.

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Section: A Case For Addressing the Denuding Of Regulatory Protection mentioning

confidence: 99%

Articulating the gaps in financial consumer protection and policy choices for the financial conduct authority—moving beyond the question of imposing a duty of care

Chiu

Brener

2019

Capital Markets Law Journal

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“…It implies that the knowledge is deeply ingrained and clear to all, to such an extent that it is not necessary to set out the information in detail because everyone involved is already familiar with it. As Benjamin (2010: 788) notes, narratives may be characterized by their ‘pervasiveness and the confidence with which they are asserted’. In this way the narrative easily and unobtrusively provides the context for the discussion on legislating for abortion.…”

Section: Identifying the Narratives Within The Discourse On Abortionmentioning

confidence: 99%

The Protection of Life During Pregnancy Act 2013

Murray

2016

Social & Legal Studies

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Abortion is an issue that exposes deep divisions in Irish society and this was apparent during the debates on the Protection of Life During Pregnancy Act 2013. This introduced a framework regulating abortion into Irish law for the first time, but maintained the existing position where abortion is only available where the life of the woman is at risk. This article focuses on the centrality of suicide within the Irish discourse on abortion and the impact this had on the shape of the legislation ultimately introduced, in particular the inclusion of a more onerous process, which a woman must engage with before she can obtain an abortion where the risk to her life is from suicide. It highlights the practical consequences of this for the small number of very vulnerable women in Ireland who will be required to engage with the new statutory process which is deeply damaging. The 2013 Act reinforces the two-tier approach to healthcare that exists in Ireland in the specific context of reproductive healthcare as those with sufficient resources will be able to bypass the difficult and undignified statutory procedure and those who lack the socioeconomic capital will be compelled to remain.

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“…Critiques of neoliberalism are also proliferating in other disciplines: e.g. political/moral philosophy (Walzer, 2006;Cohen, 2009Dworkin, 2011;Judt, 2011), law (Benjamin, 2010) and political/financial journalism (Mason, 2010(Mason, , 2012Lanchester, 2010;Tett, 2010;Hutton, 2011;Shaxson, 2011;Frank, 2012).…”

Section: The Mediamentioning

confidence: 99%

What’s Left? The prospects for social democratic criminology

Reiner

2012

Crime, Media, Culture

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This paper analyses the fate of social democratic sensibility in thinking about crime and criminal justice that prevailed for most of the 20th century, until a profound rupture in culture, political economy, crime and criminal justice. The paper proposes an ideal-type of social democratic criminology, and contrasts it with the law-and-order perspective that displaced it after the 1970s. The sources and consequences of this seismic shift are analysed and evaluated. Finally, following the fracturing of the last forty years' neoliberal hegemony in the wake of the 2008 financial crash, it considers the prospects of a revival of the social democratic perspective in criminological thinking.Keywords critical criminology, neoliberalism, political economy of crime, radical criminology, social democratic criminology Prologue: Two Quotes in Search of an AnalysisWe are not letting the public in on our era's dirty little secret; that those who commit the crime which worries citizens most-violent street crime-are, for the most part, the products of poverty, unemployment, broken homes, rotten education, drug addiction and alcoholism, and other social and economic ills about which the police can do little, if anything. Rather than speaking up, most of us stand silent and let politicians get away with law and order rhetoric that reinforces the mistaken notion that the police-in ever greater numbers and with ever more gadgetry-can alone control crime. (Di Grazia, 1976) Crime is down: blame the police. (Bratton, 1998) This paper analyses the profound rupture in culture, political economy, crime and criminal justice that is highlighted by these contrasting quotes. It will probe the fate of social democratic sensibility

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The Narratives of Financial Law

Cited by 14 publications

References 0 publications

Articulating the gaps in financial consumer protection and policy choices for the financial conduct authority—moving beyond the question of imposing a duty of care

Articulating the gaps in financial consumer protection and policy choices for the financial conduct authority—moving beyond the question of imposing a duty of care

The Protection of Life During Pregnancy Act 2013

What’s Left? The prospects for social democratic criminology

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