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Rail Franchises, Competition and Public Service

The use of franchises to deliver rail services has raised major problems. Franchises restrict competition in the market, competitive bidding for franchises has met with difficulties, and agreements are highly stipulative and do not achieve flexibility or innovation opportunities. For the future in the UK, possibilities include greater use of competition, a return to public ownership, regionalisation, and the use of concessions with limited risk transfer to secure stability.

Tony Prosser and Luke Butler


The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts

‘Crowdfunding’ is a burgeoning phenomenon, with a diversity of contracting practices that occupy a hinterland between existing regimes of securities law and consumer contract law. While crowdfunding poses real risks for funders, the classical regulatory techniques of securities and consumer law provide an ineffective response. Market mechnisms may provide meaningful protection, and this article argues for an initially permissive regulatory approach.

John Armour and Luca Enriques


The Dynamics of Enduring Property Relationships in Land

This article proposes a new way of looking at property relationships, focusing on property rights in land which are consensual in origin. Recognising both the temporal and spatial dimensions of land, the dynamics approach reflects the fact that most property relationships are lived relationships, and acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations.

Sarah Blandy, Susan Bright and Sarah Nield


Universal Credit, ‘Positive Citizenship’, and the Working Poor: Squaring the Eternal Circle?

This article examines the potential effects of the Welfare Reform Act 2012, which illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low-paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions.

Philip M Larkin


Frozen Corpses and Feuding Parents: Re JS (Disposal of Body)

In October 2016, a dying teenager won the legal right to have her remains cryogenically frozen and stored indefinitely in an American clinic. The cryonics aspect was novel, posing questions around the legality of this particular method of corpse ‘disposal’ in the UK and the processes involved. More significantly, the case raises other substantive legal issues around the fate of the dead, including the status of funeral instructions under English law, and how courts adjudicate parental disputes over the funeral arrangements for a dead child.

Heather Conway


On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. This note supports the UKSC's affirmative conclusions in principle, but argues that the court's reasoning, especially in answering the second question, leaves much to be desired.

Julius A W Grower

review article

In Defence of Constitutional Law

Modern thinkers are aware of the old dilemma between liberty and authority. But liberty and authority can come into conflict because any majority, however momentary or opportunistic, can become a threat to a minority. But if a constitution exists because of the authorisation of the majority, then how can it block what the majority desires? When constitutional law is exposed to arbitrariness and to incoherence, how can we defend constitutional law?

Pavlos Eleftheriadis

book review

Review of Ross Buckley, Emilios Avgouleas and Douglas Arner (eds), Reconceptualising Global Finance and its Regulation, Cambridge: Cambridge University Press, 2016, 484 pp, hb £89.99.

Global regulatory reforms in the global financial system after the 2008 crisis do not seem to have been as effective as they might have been. Yet, as fittingly observed in the book under review, none of these reform efforts seem to have given rise to truly fundamental changes to existing financial regulation. The reason lies, as the book argues, in the lack of a real fundamental and systematic rethinking of financial regulation on a global level.

Cheng-Yun Tsang

book review

Review of Hannah Quirk, The Rise and Fall of the Right of Silence, Abingdon: Routledge, 2017, xviii + 232 pp, hb £110.00.

One of the most controversial developments in the law of criminal evidence and procedure in England and Wales in recent decades has been the legislative erosion of the right of silence. This book is the only work (at least in recent times) that aims to focus squarely on the right and to provide a comprehensive coverage of it, rather than to take a broader sweep.

Andrew L-T Choo

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

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.

September Issue now available

The September 2017 Issue of the Modern Law Review is now available. This issue features articles on justifications for the Quistclose Trust, a re-engagement with the task of questioning sovereignty in the EU, new empirical analyses of public knowledge of consumer, housing and employment law, and an examination of Kelsen’s philosophical development. Legislation and Case Notes examine consumer law and its impact on private law, the illegality defence in Patel v Mirza, and recent Hong Kong jurisprudence on directors duties. Reviews this month cover critical and mainstream approaches to ethics in criminal law, to rhetoric in medical law, to new theories of cosmopolitan justice.

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RT @lawsheffield: New paper co-authored by Prof. Sarah Blandy @lawsheffield on the spatial, temporal and lived dimensions of property relat…

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