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Why Judicial Control of Price Terms in Consumer Contracts Might Not Always Be the Right Answer – Insights from Behavioural Law and Economics

Regulators everywhere are confronted with the question of how to react to contractual pricing structures that serve to hide rather than reveal the real cost of goods and services and thereby abuse limitations in the cognitive competences of consumers. The aim of this article is twofold: first, to show the weaknesses of an ex post judicial control of pricing techniques, and second, to discuss policy tools which could counterbalance consumer biases on which the techniques rely.

Yeşim M Atamer

case

Mixed Messages in Bottles: the European Union, Devolution, and the Future of the Constitution

The UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union comprehensively rejected the Government's argument that it could begin withdrawing from the EU using a prerogative power, but accepted that the Government did not need consent from devolved legislatures before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.

Jo Eric Khushal Murkens

case

Devotion to Legalism: On the Brexit Case

In Miller v Secretary of State for Exiting the European Union, the UK Supreme Court's preferred basis for dismissing the Government's argument that the foreign affairs prerogative provided the legal basis for beginning Brexit rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

Thomas Poole

case

Brexit and Parliamentary Sovereignty

This note addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision. However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was that Parliament had already provided sufficient authority for the triggering of Article 50.

Keith Ewing

case

R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms

The parties in Miller made submissions in terms of two competing syllogisms. The Government argued that ministers, exercising Crown prerogative, had the power to give notice without statutory authorisation. The Applicants argued that the process required authorisation by Act of Parliament because the UK's withdrawal would deprive people of rights arising under EU law. However, a majority of the Supreme Court decided in favour of the Applicants based on a third and significantly different syllogism. This note assesses the three competing syllogisms and examines the constitutional significance of the majority's proposition that these new EU sources of law were integrated into UK domestic law without disrupting the principle of parliamentary sovereignty.

Nicholas Aroney

book review

Review of Ben Golder, Foucault and the Politics of Rights, Stanford: Stanford University Press, xi + 246 pp, cloth $85.00.

In recent times, Ben Golder has emerged as a pivotal figure in the field of Foucauldian legal studies, reviving an area of research that seemed to have encountered a dead-end. Foucault and the Politics of Rights reads as an ideal continuation of Golder’s previous project as it addresses squarely the question of the possibility of a Foucauldian use of rights as a subversive instrument against power.

Jacopo Martire

book review

Review of Rabeea Assy, Injustice in Person: The Right to Self-Representation, Oxford: Oxford University Press, 2015, xxiii + 233 pp, hb £70.00.

The self-evident legal status of the (assumed) right to self-representation is Rabeea Assy’s first target in this original and sure-footed monograph. His second target is the right itself, which Assy regards as devoid of any convincing rationale, at least in the context of civil litigation between private individuals. How does Assy fare in propounding his revisionist thesis? Very well, in my estimation. This is a compelling piece of legal scholarship in the best traditions of counter-intuitive normative jurisprudence.

Paul Roberts

MLR Forum

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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

July Issue now up

The July 2017 Issue of the Modern Law Review is now available. This issue features articles on the public morals exception in the GATT, fairness in debt restructuring and judicial responses to pricing consumer contracts and a legislative note on the Housing and Planning Act 2016. July 2017 also includes a special set of four case notes exploring different angles on the UK Supreme Court’s judgment in the Brexit case, R (Miller) v Secretary of State for Exiting the European Union. Finally, the review section features an essay on Eric Heinze’s new book on hate speech in democracies and shorter reviews of recent works on Foucault and the politics of rights, and the right to self-representation.

May Issue of the MLR now available

The May 2017 Issue of the Modern Law Review is now available. May 2017 includes research articles on constitutional comparativism, vexatious claims before employment tribunals, bounded discretion in EU law and the recent history of prisons and proportionality. It also includes legislation notes on insurance law reform, case notes on recent decisions on surveillance and insurance law, and eight book reviews covering a range of topics from legal theories of the state to vulnerable adults and the law.

Reminder: 2017 Chorley Lecture, 6pm, 14 June 2017 at the Shaw Library

A reminder that the 2017 Chorley Lecture, to be delivered by Professor James R Crawford, will take place at 6pm in the Shaw Library at LSE on 14 June 2017. See the Chorley Lecture Page and the Facebook event for details.

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