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The Quiet‐Loud‐Quiet Politics of Post‐Crisis Consumer Bankruptcy Law: The Case of Ireland and the Troika

A decade after the Global Financial Crisis, many developed economies continue to strain under excessive household debt. This article presents evidence suggesting that the failure of policymakers to enact debt relief measures may lie in the superior influence of the coordinated and concentrated financial sector over legislative processes, as compared to the diffuse and disorganised interests of consumer debtors.

Joseph Spooner

legislation

Protecting Free Speech and Academic Freedom in Universities

Restrictions on speaking events in universities have been created both by recent student‐led efforts at ‘no‐platforming’ and by Part 5 of the Counter‐terrorism and Security Act 2015 which placed aspects of the government's Prevent strategy on a statutory basis. This article places the combined impact of Part 5 and student‐led curbs on campus speech in context by juxtaposing pre‐existing restrictions with the various free speech duties of universities.

Ian Cram and Helen Fenwick

case

An Incomplete Victory: The Implications of QT v Director of Immigration for the Protection of Gay Rights in Hong Kong

In the most important decision on gay rights in Hong Kong in ten years, the Court of Appeal of Hong Kong affirmed the right of same‐sex couples married or in a civil partnership overseas to be treated on an equal basis with married heterosexual couples. This note considers the strengths and shortcomings of the Court of Appeal's reasoning, in terms of its potential significance both to the rights of sexual minorities and to the wider protection of human rights by means of the common law.

Kai Yeung Wong

case

Minimum Alcohol Pricing: Balancing the ‘Essentially Incomparable’ in Scotch Whisky

This note contrasts the approaches taken by the Court of Justice of the European Union and the UK Supreme Court in the high‐profile litigation which preceded the introduction of minimum alcohol pricing in Scotland. The notably differing viewpoints adopted by the domestic and Union courts both illustrate the elusiveness of the proportionality criterion, and expose tensions between domestic and supranational control in the context of internal market regulation.

Niamh Dunne

review article

Toward a New Jurisprudence?

In this major new book, Roger Cotterrell refines and considerably extends an approach to jurisprudence that he has been developing for decades, reorienting sociological jurisprudence towards the emergence of forms of transnational law. Focusing on the supporting discussions of the 'juristic point of view' and of 'legal values', this review examines four central questions: (1) the nature of jurisprudential inquiry; (2) the notion of law ‘as an idea’; (3) the book’s moral relativism; and (4) individualism and social solidarity.

Sean Coyle

book review

Review of Eloise Scotford, Environmental Principles and the Evolution of Environmental Law, Oxford: Hart Publishing, 2017, 320 pp, hb £60.00.

These are uncertain times for UK environmental law, and clear analytical insight provides a most welcome tonic. Eloise Scotford’s Environmental Principles and the Evolution of Environmental Law offers exactly that – a much-needed dose of incisive scholarship on an issue of suddenly intractable proportions: how environmental principles will live on in the post-Brexit era.

Elen Stokes

book review

Review of Juan Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks, Oxford: Oxford University Press, 2017, 280 pp, hb £64.00.

Juan Pablo Scarfi reveals how international law was used and adapted by US and Latin American intellectuals to cement legal networks and steer US power politics in the period between 1890 and 1943 in the Americas. His meticulous study is a much-welcomed complement to recent works on Latin American international law by and fits within a wider trend to relinquish a Eurocentric viewpoint in discussing the history of international law.

I Van Hulle

MLR Forum

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Responsibility and Reason-Responsiveness: Comments on John Gardner’s 2016 Chorley Lecture, ‘The Negligence Standard: Political, Not Metaphysical’, (2017) 80(1) MLR 1-21

Is it OK for the law to assign responsibilities to persons who lack the ability to respond to reasons? For John Gardner, the answer is 'normally, no'. Even when we do saddle those persons with responsibilities, we do so because we treat them, fictitiously, as if they are able to respond to reasons. Is that right?

Emmanuel Voyiakis

Hans Kelsen’s Judicial Decisionism versus Carl Schmitt’s Concept of the One ‘Right’ Judicial Decision: Comments on Stanley L Paulson, 'Metamorphosis in Hans Kelsen's Legal Philosophy' (2017) 80(5) MLR 860-894

Stanley Paulson's intriguing tracing of the developments of Hans Kelsen's work seems to maintain that Kelsen's decisionist stance of judicial decision-making was tamed by his constructivist 'Kantian' approach to law. While agreeing with Paulson’s jurisprudential analysis, a denial of the radicalism of Kelsen's decisionism often is the basis for the classic juxtaposition between his and Carl Schmitt's decisionist theory. But the opposite view is more appropriate: Schmitt's judge has much less room for individual political views than Kelsen's.

Jochen von Bernstorff

The Past and Future of the World’s Smallest Global Court: Comments on Tracy Robinson and Arif Bulkan, ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights’ (2017) 80(3) MLR 379–411

Robinson and Bulkan make a convincing case that the past and present of Judicial Committee of the Privy Council is of great concern for the future constitutional orders of the Caribbean, Commonwealth and United Kingdom. This note further explores the historical context to understand that future and its politics.

Coel Kirkby

A Time Traveller’s Guide to Law and Finance: Comments on Carsten Gerner-Beuerle, ‘Law and Finance in Emerging Economies: Germany and Britain 1800–1913’ (2017) 80(2) MLR 263–98

This comment connects Gerner-Beuerle's article on the evolution of company and securities law to the 'law and finance school', exploring the problems of original 'law and finance' research, Gerner-Beuerle's contribution in this direction, and suggesting how and why we may need a 'time traveller's guide' to law and finance.

Mathias Siems

Keeping It Real? Comments on Kimberlee Weatherall, ‘The Consumer as the Empirical Measure of Trade Mark Law’ (2017) 80(1) MLR 57-87

Professor Weatherall’s thought-provoking critique of the selective resistance to empiricism in trade mark law is a significant and welcome intervention. But the existence of certain structural features suggests that only a qualified turn to empiricism is possible, and the broader engagement between Law and Science holds other cautionary lessons.

Dev S Gangjee

MLR news

September Issue now online

The September Issue of the Modern Law Review is now available, with articles covering the imperial background to A V Dicey’s theory of the rule of law, a new theory of top-down constitutional conventions, and Ireland’s post-GFC supervised consumer bankruptcy reforms, a legislative note on recent changes to campus free speech laws, case notes dealing with gay rights in Hong Kong and minimum alcohol pricing in UK and EU courts, a review essay on Roger Cotterrell’s new book, and book reviews on environmental law and international legal history.

July Issue now available

The July Issue of the Modern Law Review is now available, with articles covering the theory of the material constitution, protected characteristics in equality law, and Irish policing reforms, a legislation note examining pre-natal testing, and case notes covering recent decisions on corporate groups and the right to private life in the workplace. A review essay examines critique and international legal practice, and four book reviews new titles on abortion and personhood, transnational constitutionalism, tax treaty disputes and the re-writing of children’s rights judgments.

Recording of the 2018 Chorley Lecture now available

The recording of Professor Adrian Vermeule’s 2018 Chorley Lecture ‘The Publius Paradox: On the Dangers of a Weak Executive’, delivered on 5 June 2018, is now available here.

MLR 24 days ago

RT @PeatWorrier: Some - perhaps surprising - Scottish context. Here, the old offence of blasphemy has never been repealed (though the ECHR…

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