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Equality Law and the Protected Characteristics

UK anti‐discrimination law is founded on a grounds‐based system of protected characteristics. These characteristics must satisfy three conditions: they must have some definitional and categorical stability, they must broadly reflect people's understanding of social reality and lived experiences and they must align with the most significant axes of discrimination in society. This article argues that all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio‐economic status as a legally protected characteristic.

Kate Malleson

article

Adapting the Police Authority Concept to a Centralised National Police Service: Appearance over Substance in the Republic of Ireland?

The Republic of Ireland has been convulsed by a series of police corruption scandals over the past fifteen years and they show no sign of abating. This article critically examines whether the new Irish Policing Authority can be interpreted as a successful adaptation of the traditional police authority concept to a parliamentary democracy policed by a single, national body.

Dermot Walsh

legislation

Testing Times Ahead: Non‐Invasive Prenatal Testing and the Kind of Community We Want to Be

This article reviews the Nuffield Council on Bioethics’ report on Non‐Invasive Prenatal Testing (NIPT); and introduces two general questions provoked by the report – concerning, respectively, the nature and extent of the informational interests that are to be recognised in today's ‘information societies’ and the membership of today's ‘genetic societies’.

Roger Brownsword and Jeff Wale

case

(Non‐)Enforcement of Directors’ Duties in Corporate Groups: Goh Chan Peng v Beyonics Technology Ltd

Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.

Alan K Koh

case

Workplace Monitoring and the Right to Private Life at Work

In Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.

Joe Atkinson

review article

Policing Critique

What is critique? For Martti Koskenniemi, the subject of this collection of essays and ‘one of the icons’ of international law, it is to say ‘no’. He provides an epilogue to this volume of critical readings of his work which responds to the contributors in a series of noes – no to abstraction, no to empiricism, no to constructivism, no to enchantment – but ends in a tantalising ‘perhaps’. Perhaps it is possible to do international law work critically. Who is this critical professional? What are moral instincts? How can we introduce them into our professional lives? For all Koskenniemi's noes, we never find out.

Isobel Roele

book review

Review of Kate Greasley, Arguments about Abortion: Personhood, Morality and Law, Oxford: Oxford University Press, 2017, 269 pp, hb £50.00

Is the fetus a person? In this rigorous, elegant and ambitious book, Kate Greasley does not attempt to sidestep anything. Greasley tackles the moral status of the fetus head‐on, and while it would be impossible for one book to resolve, conclusively and to everyone's satisfaction, the question of fetal personhood, her important new monograph must now be required reading for anyone who wishes to claim in the future that the fetus either is, or is not, a person.

Emily Jackson

book review

Review of Chris Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post‐National Legal Structure. Cambridge: Cambridge University Press, 2017, 520 pp, hb £69.99

Chris Thornhill's A Sociology of Transnational Constitutions advances the thesis that there is a distinctly transnational constitutional order to which domestic constitutional systems are increasingly referring in setting out the parameters of their domestic orderings. Taken in very broad brush, Thornhill's thesis seems right. But beyond this, it is hard for this reviewer to know what to make of it, because his narrative is pitched at a very high level of abstraction, deploys a vocabulary with which this reviewer is unfamiliar, and which is never given grounding in real‐world examples.

Michael W Dowdle

book review

Review of Eduardo Baistrocchi (ed), A Global Analysis of Tax Treaty Disputes, Cambridge: Cambridge University Press, 2017, 2 vols, 1,588 pp, £300.00.

Eduardo Baistrocchi's A Global Analysis of Tax Treaty Disputes provides an unprecedented collection of expertly written reviews of the tax treaty disputes in OECD countries, BRICS countries and beyond. Each of the country reporters – a particularly impressive group of renowned experts in the field – provides a comprehensive analysis of tax treaty disputes in their respective jurisdictions.

Tsilly Dagan

book review

Review of Helen Stalford, Kathryn Hollingsworth & Stephen Gilmore (eds), Rewriting Children's Rights Judgments: from Academic Vision to New Practice, Oxford and Portland, Oregon: Hart Publishing, 2017, 593 pp, hb £80.00.

If the sub‐title may seem a trifle self‐congratulatory, the main one may mislead. It would be more accurate, if more cumbersome, to say, ‘Law Reports Re‐Written from a Children's Rights Perspective’. This is a scholarly, informative and heartfelt work with no let‐downs. Perhaps the commentaries are inevitably more valuable given that they are analyses and not, unlike the ‘judgments’, necessarily largely imaginative. By the same token, the latter are more enjoyable and not merely for those academics who promoted themselves from spectators to players, critics to doers.

Chris Barton

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

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.

May 2018 now up

The articles, notes and reviews in theMay issue of the Modern Law Review are now online. This issue contains three articles, dealing with free speech suppression during the Korean War, the rights to reproductive health under the ECHR, and the category of the ‘child’ in European human rights law. Notes on the Fixed-Term Parliaments Act, the UNISON case, and a ECtHR decision on gender transition recognition are followed by seven reviews on books ranging from the instability in the WTO system to martial law in early modern England.

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