This article suggests that lawyers and judges may not understand the effects of their rules and procedures upon the production of evidence and its evaluation in criminal trials and appeals.
Recently, courts in Canada and England and Wales have started to recognise the relevance of certain prison conditions when deciding sentences. These approaches, however, have lacked conceptual clarity and consistency.
This article considers the extra-judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work, examining why he was repeatedly entrusted by the government to consider matters of the utmost sensitivity.
Most legal scholarship on the equality implications of platform design focuses on algorithms. This paper instead interrogates the comparatively neglected issue of interface design.
This article considers a novel frame for state duties towards ‘others’ and towards migrants. It explores the possibility that we should rather justify relevant duties from the perspective of citizenship and from within the social contract between state and citizen.
In Fearn the UKSC unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. This note argues that the court's landmark determination on the scope of nuisance is a welcome one. More dubious is the majority's emphasis on the ‘common and ordinary use’ of land.
The distinction between issues of jurisdiction and admissibility is at the heart of arbitration law due to the role it plays in defining the relationship between tribunals and the courts of the seat. C v D offered a rare opportunity for an apex court to consider the distinction between issues of jurisdiction and admissibility, and to resolve these controversies.
The ICJ decision in Armed Activities on the Territory of the Congo is significant for the law of reparations, with the Court adopting a controversial ‘global sum’ methodology in fixing compensation which was guided by equitable considerations.
In The Law Debenture Trust Corporation plc v Ukraine, a majority of the Supreme Court held that international law had no place in the English common law of duress and contractual defences. This note explains why, after Law Debenture, international law's reception into English law seems practically impossible.
For Bonadio and O'Connell, intellectual property is ‘excessive’ and that such excess is ‘absurd’. The article argues that excessive IP is absurd, although that is also not where IP's absurdity ends.
In their important book, King and Hendry employ comparative, socio-legal, doctrinal and theoretical methods to interrogate the operation and justifiability of civil recovery in Ireland and in England and Wales.
Jovanovic's book is an important addition to the growing legal literature on trafficking and related forms of exploitation. It establishes that human trafficking is not just a criminal act but is also a violation of a human right.
This book explicitly focuses on the experiences of vulnerable and energy-poor consumers, through an extensive empirical exploration of case studies from across a range of European countries.
Our article was not intended to be a thoroughgoing critique of Martin Loughlin’s writing on sovereignty. Instead, we took aspects of his work as a starting point for a broader reflection on the relationship between sovereignty and aesthetics.
In moments of self-reflection, all legal academics must surely come to the realisation that much of the work they are obliged to read – and indeed write – is dense, obscure, monotonous, and repetitive. Surely our job is to clarify, to make complex topics more accessible. What makes ‘Sovereignty and the Persistence of the Aesthetic’ – on its face, a well-crafted article – an exemplar of poor academic writing is not its stylistic shortcomings: it is its ignorance about the position it seeks to correct.
‘Promoting Change in the Legal System’ was the title of my Inaugural Lecture given here 45 years ago. I decided to revisit that subject, but with a slightly altered title reflecting a different perspective—‘Promoting Change in the Legal System—A Memoir’. Having reached the status of ‘ancient’, I hope I will be forgiven for basing my remarks tonight largely on my own experience.
Despite their importance in modern financial systems, central bank reserves have uncertain legal origin. Recently, Will Bateman and Jason Allen suggested a bifurcated view of reserve creation which specifies a ‘deposit pathway’ and a ‘transaction pathway’. I argue that this is misconceived, and that central banks create all reserves by issuing debt.
In a recent article, Chalmers, Leverick and Munro argued that Scotland’s third verdict, that of ‘not proven’, is probably compatible with the presumption of innocence. In this short reply, I reach the opposite conclusion, and argue that the presumption requires a system of binary verdicts.
The Small Claims Paper Determination Pilot removes the right to oral hearing for low-value claims in the County Courts. Such a move continues a worrying trend of filtering out claims and claimants who are deemed unworthy of the court’s time. Such a move requires more careful thought as to the potential consequences.
This symposium collects four comments on Martins Paparinskis's 2020 article 'A Case Against Crippling Compensation in International Law of State Responsibility', concluding with a response by the author.
Brian Sloan’s analysis of the challenges a human chimera could pose for English law’s definition of fatherhood finds a parallel in the problems artificial wombs might raise for the designation of motherhood. While these hypothetical challenges point to important gaps in jurisprudence, a more pressing concern is the impact the limited flexibility of legally recognized parental roles in England has on already existing families.
On the whole, Somek’s recent review of my book The Concept of Liberal Democratic Law is strikingly incongruous and self-contradictory. Considered in detail, it is grossly inaccurate and contains flagrant mistakes about elementary legal theory. Its tone and style, moreover, are unscholarly and un-collegial. In the comments that follow, I believe I make it abundantly clear that my book is not at all what Somek presents it to be.
Online courts have the potential to create or exacerbate pressures to plead guilty, particularly for vulnerable defendants. I explore these pressures in the context of the Covid-19 pandemic in which increasing use of online justice has coincided with a significant increase in guilty pleas.
The July 2020 issue of the MLR includes a review article of my book, Law and Gender (2013) by Professor Leslie Green. This response offers a robust corrective to Green’s misreading of the book and misrepresentation of its core arguments, highlighting the techniques Green deploys to advance claims about my book which are inaccurate and unsound.
The impact of Covid-19 on the court system has been significant, substituting online and telephone hearings for face-to-face court proceedings. The implications of these forms of remote justice on the participative experiences of litigants in person is not yet well understood.
Intellectual property tends to be highly technical and of low political salience. Within the EU legislators tend to leave that complexity to be worked out by courts. Favale, Kretschmer and Torremans’ recent piece shows how the CJEU attempts to fill this ‘normative void’ and how Member States influence this process.
Alex Sharpe argues that gender self-declaration will not undermine women’s rights or lead to an increase in harms. We present the gender critical rebuttal, arguing that it indirectly undermines women’s rights to single sex spaces and that this will lead to harm.
Robin West’s 2019 Chorley Lecture offers important insights in relation to the ethic of consent in sexual life. In this response, I argue that by embracing the contested nature of the concept of consent there is room for deeper conversations about the boundaries of sex, criminalisation and harm.
Experiments on bias demonstrate the inability of judges and jurors, and other professionals to shrug off so-called ‘anchoring’ effects, and other common cognitive biases. The goal of ‘Just Cognition’ is to interrogate precisely what these examples teach us about (the veracity of our assumptions about) how bias operates within the judicial sphere.
A feminist discussion of consensual sex should consider when sex is wanted and when it is harmful. But is should also consider the justifications for exceptionalism concerning sex. A response to Robin West.
Adrian Vermeule’s lecture on the ‘Publius Paradox’ raises awkward questions for constitutional lawyers, as much in the United Kingdom as elsewhere.
In recent months, the MLR has included publications, in printed and in electronic form, from authors who criticize claims contained in my research. I take this opportunity to respond to those criticisms.
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?
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.
James Edwards identifies four principal areas of concern about my book’s central thesis. My book structures its argument differently. I suspect that revisiting the four issues in the order in which they are tackled in the book would assuage some of Edwards’ concerns. Clarifying misunderstandings about my arguments, and drawing attention to key passages pre-empting objections, should assuage others.
Understanding the significance of 2017 for the world and its politics and laws -- domestic and international alike -- will take some time. In contributing to that discourse, jurists should look to new conversations in different places; mass movements, history and artistic expression.
Access to justice has been a fundamental principle of our constitution since King John’s Magna Carta of 1215. Then came the reign of Chris Grayling.
The revival of political constitutionalism has taken a normative turn. Chris Thornhill asks whether it should be more descriptively grounded. He may be asking the wrong question.
A convention of sorts, barring judges entering into partisan politics, does exist. In addition, circumspect judicial engagement with politics outside the courtroom is compatible with the function of the judiciary.
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.
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.
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.
With Article 50 now triggered, and the ‘Great Repeal Bill’ White Paper published, was there ever such an agitated time for the British Constitution?
Ferran's article raises an interesting question: why don’t we see more corporate law-driven migrations (or LLP conversions) in the UK, and more regulatory competition for this potentially lucrative business?
Illan Rua Wall and Daniel Matthews’ article ‘Sovereignty and the Persistence of the Aesthetic’ is now available to read in full on MLR Early View.
The May Issue of the Modern Law Review is now available, with articles on misunderstandings of the rules on evidence, opinion and evaluation in criminal trials, conditions of imprisonment and sentencing, Lord Diplock’s work in national security oversight, discrimination in platform design, and a new frame for state duties towards migrants. Case notes cover decisions on visual nuisance intrusion, jurisdiction and admissibility in arbitration, the international law on reparations, and international law’s non-reception in English contract law. A review essay covers a new book on the absurdity of intellectual property, and reviews cover new titles on civil recovery of criminal property, modern slavery, and access to justice for energy-poor consumers.
The January Issue of the Modern Law Review is now available, with articles on the regulatory ‘trilemma’, the history of treason, housing inequality and social movements, xenophobic discrimination in international law, legal professional privilege and the law officers’ convention, and self defence and domestic abuse survivors. Notes cover subsidy control laws, modern slavery and diplomatic immunity, and disability discrimination and abortion law. Book reviews cover new titles on regulators and economic evidence, mental capacity law, and charity law and the university.
The November Issue of the Modern Law Review is now available, with articles on ordoliberalism, animal and nature rights in EU law, inherent jurisdiction and adult welfare, smart contracts, the objective/subjective standard in contract and reasonableness in capacity law. Notes cover amendments to UK fertility treatment law, and case law from the CJEU on state aid and taxation and the UKSC on proprietary estoppel remedies and the Begum citizenship stripping decision. Reviews include an essay on Dyzenhaus’s new book on authority and legitimacy, and new books on EU anti-trust law, global business and human rights and constitutional pluralism.
The September Issue of the Modern Law Review is now available, with articles on legal scholarship trends, a decriminalisation approach to European human rights, consent in employment contracts, employment status and human rights, and counter-terrorism in family courts. Notes cover the human trafficking failures of the Nationality and Borders Act 2022, and new cases on intersex human rights and the relation of smart contracts and digital property. Book reviews cover new titles on legal reasoning, the ‘vanishing’ of contract law, and a counter-Birks approach to the law of restitution.
The July Issue of the Modern Law Review is now available, with articles on repudiation contract damages, tort anomalies, prisoner voting, civil disobedience, choice architecture in poverty law, and adolescent decisions to refuse life-sustaining treatment. Notes cover donor dissuasion in the new Charities Act, expertise in ECtHR jurisprudence on vaccine mandates, and the ‘proprietary fiction’ in bailment. Book reviews cover new titles on private law theory, age discrimination and intermediate criminal verdicts.
The May Issue of the Modern Law Review is now available, with articles on common good constitutionalism, historiography in constitutional adjudication, assessing the Mental Capacity Act 2005, a liberal property theory approach to trusts, and a performative theory of judicial dissent. Notes cover the Aarhus Convention’s implementation in the UK, and new cases on the immigration exception in the GDPR and Henry VIII powers. A review essay examines the distinction between creation and application of law, and reviews cover new titles on the author and copyright and lawyers in conflict and transitional justice zones.
The March Issue of the Modern Law Review is now available, with articles on defining direct/indirect discrimination, crowdfunded litigation, legal system continuity, debtholder stewardship, corporate restructures and a righto to minimum subsistence. Notes cover new regulations on police cultural competence, and cases on unjust enrichment in Singapore, corporate criminal attribution regarding constructive trusts, and vehicle insurance law. A review essay examines Matthew Kramer’s freedom of expression, and book reviews cover new titles on progressive lawyering in the UK, human judgment, and political constitutionalism amid global neoliberalism.
Professor Conor Gearty gives a quick outline of the MLR's Forum. The Forum is for short replies and discussions of MLR content, open for anyone from students to professors, with a light touch review and editorial process and quick turnaround. Please get in touch with queries or proposals at C.A.Gearty@lse.ac.uk.
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