This article examines the Sentencing Council's recent definitive guideline on what reductions in sentence can be offered for a guilty plea. We argue that its emphasis on facilitating early guilty pleas represents more than just an incentive to those intending to plead guilty and poses significant risks for defendants with vulnerabilities.
Freedom of contract requires the integrity of social institutions that ensure the preconditions for private autonomy. This has been largely ignored by a private law doctrine that works on the assumption of the state being the supplier of background justice. The article argues for an institutional turn in contract interpretation.
Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. This article explains how the doctrine came into being and indicates how its re‐working is the precondition of constitutional renewal.
This article provides a critical assessment of the UK Modern Slavery Act 2015 three years after its enactment. It puts forward three claims: that the MSA has failed to increase prosecutions and to provide adequate remedies to victims; that heavy reliance on criminal law for the regulation of severe labour exploitation is insufficient; and that the MSA is too weak in tackling modern slavery by businesses in their supply chains.
In Opinion 1/15 the CJEU held that the proposed EU‐Canada Passenger Name Record agreement must be revised because parts of it are incompatible with the EU fundamental rights framework. This note argues that the significance of Opinion 1/15 can only be understood in the broader historical context of increasing international securitisation between the 9/11 attacks in 2001 and the Snowden revelations in 2013.
Substitutive accounts of contract damages have burgeoned over the last twenty years. In broad terms they conceptualise at least some forms of damages for breach of contract as providing a pecuniary substitute either for the claimant’s ‘performance interest’, or a purported right to performance. David Winterton’s book, Money Awards in Contract Law is a thought-provoking and lucid work, representing the best ‘hard substitutivist’ account thus far because, unlike other accounts, his analysis accommodates both contract damages measured according to difference in value and cost-of-cure under the substitutionary umbrella.
Peter Cane’ s, Controlling Administrative Power: A Historical Comparison is an important contribution to the comparative study of administrative law and its methodology. It is an ambitious project spanning over 500 pages and many centuries which references primary legal materials, and extensive political science as well as constitutional and administrative law literature.
Cécile Laborde’s splendid new book is a highly illuminating exploration of the ways in which liberal political philosophy can best come to grips with the complex problems posed by the various religions that exist alongside one another (and alongside any number of secular outlooks) in modern Western societies.
This book is concerned with addressing the issues raised by the variety of choices of same gender domestic partnerships now offered in England and Wales, and available in different ways elsewhere. Importantly, there is more to this book than a disconnected list of different jurisdictions’ laws on ‘registered’ partnership.
Culpable Carelessness by Findlay Stark is a careful and considered contribution to the ‘punishment for negligence’ debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates.
Over twenty years ago the American legal historian, Morton Horwitz, asked ‘Why is Anglo-American Jurisprudence Unhistorical? ((1997) 17 OJLS 551). The editors of Law in Theory and History have assembled an impressive list of contributors to re-pose, unpack, and attempt to answer Horwitz’s still relevant and nagging question for legal scholars.
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?
The November Issue of the Modern Law Review is now available online, with articles examining sentencing guidelines on guilty pleas, an institutional turn for contract interpretation, British misunderstandings around sovereignty, notes evaluating the UK Modern Slavery Act and data privacy case law at the EU, and reviews of new books on topics ranging from contract damages to registered partnerships to the dialogue between history and law.
The September Issue of the Modern Law Review is now available, with articles covering the imperial background to A V Dicey’s theory of the rule of law, a new theory of top-down constitutional conventions, and Ireland’s post-GFC supervised consumer bankruptcy reforms, a legislative note on recent changes to campus free speech laws, case notes dealing with gay rights in Hong Kong and minimum alcohol pricing in UK and EU courts, a review essay on Roger Cotterrell’s new book, and book reviews on environmental law and international legal history.
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.
When does an incentive to plead guilty turn into an inducement, and with what risks for defendants with vulnerabili… https://t.co/IM8lYfn6Ti
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