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Regulating Complex Contracting: A Socio-legal Study of Decision-Making under EU and UK Law

The article evaluates interview data on decision-making under public procurement law using Halliday's analytical model on compliance with administrative law. Although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.

Eleanor Aspey and Richard Craven


We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments

The liability to return the value of mistaken payments is an example of the law's enforcing a duty of virtue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost.

J E Penner


From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions about Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. This article considers the advantages and disadvantages of providing additional guidance to decision-makers, and advocates for formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions.

Emily Jackson


Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) increasingly faces societal value-conflicts in EU law disputes. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study, and suggests that the CJEU's discourse of the various values seems unnecessarily one-sided and shallow.

Harri Kalimo, Trisha Meyer, and Tuomas Mylly


Bill of Sale Lending: Reforming a ‘Toxic’ Form of Credit

The Bills of Sale Acts were enacted in Victorian times as a form of secured credit. In the twenty-first century these bills are most commonly used as ‘logbook loans’ for vehicles with extortionate interest rates and very little protection for individual consumers. This article examines background to the Acts, provides a critique of the registration process, and examines reform proposals before the Law Commission.

Gerald Swaby, Rebecca Kelly and Paul Richards


Ideological Neutrality in the Workplace

Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole SA are the first CJEU cases dealing with religious discrimination under the Equal Treatment Directive 2000/43. This note criticises the Court's ruling that dismissal can be justified if pursued on the basis of a corporate policy of ideological neutrality, a conclusion which, inter alia, places too much weight on an employer's freedom to run its business.

Zoe Adams and John Olusegun Adenitire

book review

Review of Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, Cambridge: Cambridge University Press, 2015, ix + 296pp, hb £67.00

The debate between Hans Kelsen and Carl Schmitt in the context of the Weimar constitution chases the ‘big game’ of constitutional theory. Lars Vinx's collection and translation of their essays forming this debate contains an excellent introduction and notes, making the debate readily accessible to readers. In virtue of its style and composition, The Guardian of the Constitution will make interesting reading for these well-versed in Kelsen and Schmitt, and will serve as an apt entry-point for those new to the territory.

J G Allen

book review

Review of Eric Barendt, Anonymous Speech: Literature, Law and Politics, Oxford: Hart, 2016, xvii + 176 pp, hb £35.99

Should rights of free expression include anonymous speech? In our age of post-truth and internet trolls, Eric Barendt’s brisk and engaging book raises timely questions. As new electronic media continue to confront legislatures and courts with difficult problems of anonymity, this thought-provoking book illuminates the diversity and complexity of issues that will require attention into the foreseeable future.

Eric Heinze and Tom Hannant

book review

Review of Jorun Baumgartner, Treaty Shopping in International Investment Law, Oxford: Oxford University Press, 2016, 354 pp hb £80.00

Baumgartner's monograph is a comprehensive and detailed account of every aspect of international investment law as it relates to treaty shopping. As a legal reference, it sets a new benchmark, and will be an indispensable reference for practitioners. However, the book is less successful in providing an account of the policy issues at stake, or in mapping a path for reform.

Jonathan Bonnitcha

book review

Review of Andrea Bianchi, International Law Theories: An Enquiry into Different Ways of Thinking, Oxford and New York: Oxford University Press, 2016, 320 pp, hb £75.00, pb £24.99

The book successfully makes international law theories – or better, ‘different ways of thinking about international law’ – accessible and relatable, without being patronising or reductionist. It should be read, in particular, by any scholar or student who finds theorising impenetrable, abstract, frustrating or intimidating, and perhaps thinks of themselves as resolutely ‘not doing theory’.

Hemi Mistry

book review

Review of Hanoch Dagan and Michael Heller, The Choice Theory of Contracts, Cambridge: Cambridge University Press, 2017, xiii + 180 pp, pb £23.99

Contract law’s one ultimate value, Dagan and Heller tell us, is autonomy. Their ‘choice’ theory of contract is a valuable contribution to the field because it takes up a conception of autonomy many will find plausible – indeed, one deeply ingrained in the contemporary mindset – and vigorously pursues some of its implications.

Nick Sage

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

March 2018 Issue now available

The articles, notes and reviews from the March issue of the Modern Law Review are now available. This issue features articles on restitution theory, public procurement decision-making, patient capacity in treatment decisions, and value discourses in EU copyright law, a legislation note on bill of sale lending, case notes on upkeep costs for incorrectly conceived children and EU religious discrimination in the workplace, and reviews of books on topics ranging from anonymous speech to the choice theory of contracts.

January 2018 Issue now online

The articles, notes and reviews from the January issue of the Modern Law Review are now available. This issue begins with the published 2017 Chorley Lecture, and features articles on rail franchising, crowdfunding contracts and reconceptualising enduring property relationships. Notes cover recent changes to the UK welfare system and court decisions on cryogenically frozen corpses and the agent-principal relationship in commercial law. The issue also contains a review essay of two new books on constitutional theory, and short reviews of works on damages and human rights, global financial regulation and the right to silence.

November Issue now up

The articles, notes and reviews from the November issue of the Modern Law Review are now available. The issue features articles covering digital justice, the relationship between the right to life and criminal liability, the equal merit principle, and blockchain financial networks. A legislative note examines reforms to the Human Rights Act to ‘break the link’ with the ECtHR, and case notes examine recent decisions on ECHR fair trial rights and the UK ‘equitable recoupment’ right. A review essay examines a new biography of Otto Kahn-Freund, and book reviews cover works on legal interpretation, tort theory, bodily material and the law, EU contemporary criminal law, and financial regulation.

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RT @m_clark5: What better way to celebrate Kendrick's Pulitzer than to read my blather on the album, in relation to international law and t…

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