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Welfare‐to‐Work, Structural Injustice and Human Rights

This article discusses welfare‐to‐work schemes, places schemes with strict conditionality in the theoretical framework of structural injustice, and argues that they may violate human rights law. The article further argues that a framework of ‘state‐mediated structural injustice’ is the best way of explaining the wrong. It finally claims that this injustice violates principles that are enshrined in human rights law, which the authorities have an obligation to examine and address.

Virginia Mantouvalou

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Unpopular Sovereignty?

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. The very concept of sovereignty thus becomes unpopular. This contribution aims to re‐establish the link between popular sovereignty and action by examining sovereignty's emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.

Alexander Somek & Michael A. Wilkinson

case

Disability, Reasonable Accommodation and the Employer's Obligations: Nano Nagle School v Daly

The duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job.

Desmond Ryan & Mark Bell

MLR Forum

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Stepping into the Normative Void: Comments on M Favale, M Kretschmer & PLC Torremans, ‘Who is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law’ (2020) 83 MLR 831

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.

Luke McDonagh

Gender Self-Declaration and Women’s Rights: How Self Identification Undermines Women’s Rights and Will Lead to an Increase in Harms: A Reply to Alex Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (2020) 83(3) MLR 539

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.

Alessandra Asteriti and Rebecca Bull

Judging by Numbers: Comments on Gary Edmond and Kristy A. Martire, ‘Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision-Making’ (2019) 82(4) MLR 633

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.

Tatiana Cutts

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

MLR Covid Fellowships announced

The MLR is pleased to announce its 2020 Covid-19 Fellowship recipients:

Dr Adi Goldiner (UCL)
Dr Alex Green (University of Leeds)
Dr Ana Bobic (Hertie School)
Dr Ashleigh Keall (UCL)
Dr Chloe Deambrogio (University of Oxford)
Dr Claire Horn (Birkbeck)
Dr Eleanore Hickman (University of Cambridge)
Dr Martin Clark (University of Tasmania)
Dr Ndjodi Ndeunyema (University of Oxford)
Dr Robert Greally (University of Sheffield)
Dr Robyn Gill-Leslie (KCL)

Reminder: MLR Seminar Proposals due 9 November 2020

The Modern Law Review offers funding to support the organisation of scholarly seminars on any subject broadly within the publishing interests of the Review. The Review would like to encourage applications which facilitate scholarly European and international dialogue, and also those which are innovatory in their approach or objectives. A proposal might involve a single paper and discussion, or more than one paper. While the amount of financial support provided will be separately assessed in relation to each successful application, the Review is prepared to provide support of up to £5,000 for one major seminar each year. See further: https://www.modernlawreview.co.uk/about-mlr-seminars/

September Issue now available

The September Issue of the Modern Law Review is now available, with articles on welfare-to-work and human rights, the concept of popular sovereignty, EU emissions trading, unjust enrichment jurisdiction, and judgments for children, case notes on disability accommodations and the ‘Heathrow’ case, a review article of a collection of essays on Loughlin’s Foundations of Public Law, and eight book reviews covering a range of private law topics, revolutionary constitutions, judicial biography and European trademarks

MLR Covid-19 Fellowships

In response to the effect that Covid is having on opportunities for early career scholars, the MLR is making available a fund to support research through MLR Fellowships. The Fellowships provide funding for early career scholars of up to £10,000 as well as the option of mentoring support from an MLR Editorial Committee member. More details about the fund and the application process can be found here: https://www.modernlawreview.co.uk/about-mlr-scholarships/

MLR Information Session for Female Academics recording

On 10th June 2020 members of the Modern Law Review Editorial Committee hosted a Zoom information session for women on publishing in the MLR, with the goal of encouraging submissions from female academics.

The video is now available at this link.

The session was attended by 217 women from 62 institutions and 16 countries across the world. The MLR Committee were delighted to host the event, and will continue to reflect on ways to build on our commitment to ensuring that the MLR is a welcoming platform for women.

In the meantime, we look forward to receiving your submissions!

July Issue Now Online

The July Issue of the Modern Law Review is now available, with articles on macro and micro justice in contract, abortion law reform in Northern Ireland, new public management and the ombudsman, and member state influence on the CJEU, case notes on new decisions on data controllership and joint authorship, a review article on gender and analytic general jurisprudence, and book reviews on shareholder duties in common law Asia, private law theory, and biographies of academic lawyers.

Publishing in the Modern Law Review: A Zoom Information Session for Female Academics - Wednesday 10 June, 4-5pm BST

Members of the MLR Editorial Committee will host a Zoom information session for female academics on publishing in the Review. The session will take place on Wednesday 10 June at 4-5pm BST.

MLR Committee members Jo Braithwaite, Tatiana Cutts, Conor Gearty, Kate Greasley, Orla Lynskey, Virginia Mantouvalou, Vanessa Munro and Sarah Paterson will be providing information and answering questions about the kind of work published by the MLR, the nature of the MLR’s peer review process and how to increase your chances of publication. The session is open to women at all career stages, including doctoral students: email t.cutts@lse.ac.uk to register or ask any questions.

During the session, the committee will also be inviting views on potential barriers to submission, and other steps the Committee might take to help redress those barriers. If you would like to comment but would prefer to do so confidentially, please feel free to do so by email either before or after the session.

Chorley Lecture Rescheduled to June 2021

Due to the ongoing situation with Covid-19, we are very sorry to inform you that the MLR 49th Chorley Lecture and Dinner scheduled for 17th June 2020 has been cancelled. Professor Hugh Collins’ lecture: ‘Fat Cats, Production Networks, and the Right to Fair Pay’ will be rescheduled for June 2021 (dates to be confirmed).

MLR 33 days ago

RT @ana_bobic: An excellent initiative addressing the Covid-enhanced precariousness for early career scholars. Very happy and extremely gra…

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