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Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights

This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.

Tracy Robinson and Arif Bulkan


Vexatious Claims: Challenging the Case for Employment Tribunal Fees

Since July 2013, recourse to Employment Tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants. The impact of this reform has been dramatic: within a year, claims dropped by nearly 80 per cent. This paper suggests that this fee regime is in clear violation of domestic and international norms, disproportionate in light of the Government's stated policy, and have failed to deter vexatious litigants. The only vexatious claims, we find, appear to be those which motivated the reforms in the first place.

Abi Adams and Jeremias Prassl


Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. It proposes a public-interest-regarding conception of discretion where discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than how courts may review an exercise of discretion.

Joana Mendes


Prisons, Proportionality and Recent Penal History

A leading aim of the Criminal Justice Act 1991 was to install the principle of proportionality as the primary rationale for sentencing and to bring about a reduction in the use of imprisonment. In the decade that followed the prison population in England and Wales rose steeply. This article examines the reasons for the rising use of prison, in order to assess whether proportionality (or ‘just deserts’) was tried and failed.

Andrew Ashworth

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

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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