article

Trust Parties’ Uniquely Easy Access to Rescission: Analysis, Critique and Reform

Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The article argues that this advantage is normatively unjustified, and recommends a uniform legal framework to govern the avoidance of voluntary dispositions resulting from mistakes or inadequate decision‐making, whether or not a trust was involved.

Adam Hofri‐Winogradow & Gadi Weiss

article

The Pension Trust: Fit For Purpose?

The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability mechanisms within trust law undermine the powerful normative force exerted by the language in which trust doctrine is so often couched.

M Scott Donald

article

From Planning to Prototypes: New Ways of Seeing Like a State

All states have pursued what James C. Scott characterised as modernist projects of legibility and simplification: maps, censuses, national economic plans and related legislative programs. The synoptic style of law and development has changed. Governments, NGOs and international agencies now aspire to draw upon immense repositories of digital data. Modes of analysis too have changed. Effective critical intervention in this field today requires careful attention to be paid to these emergent patterns of practice.

Fleur Johns

article

Religious Freedom and Religious Antidiscrimination

This article develops a theoretical framework that prompts a new understanding of the role of religious freedom and religious antidiscrimination in human rights law. The proposed framework illuminates the relationship of individual and collective aspects of religious freedom with discrimination law. The analysis has crucial implications for human rights interpretation in cases involving state interference with liberty, in relation to religion or belief, and more broadly.

Ilias Trispiotis

legislation

Improving Housing Conditions in the Private and Social Rented Sectors: The Homes (Fit for Human Habitation) Act 2018 ‐ Fit for Habitation but Fit for Purpose?

This article examines the key provisions of the Homes (Fit for Human Habitation) Act 2018, a significant piece of housing legislation which has the potential to transform the lives of those renting homes in both the private and social sectors in England. This article identifies the key deficiencies within the current legal framework around fitness for human habitation and explores how far the 2018 Act meets these challenges; set against the febrile backdrop of an acute housing crisis and the Grenfell Tower tragedy.

Chris Bevan

case

Equal Civil Partnerships, Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. The decision represents a clear victory for those campaigning for reform.

Andy Hayward

case

Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

The Court of Justice of the European Union's judgement in Levola Hengelo BV v Smilde Foods BV ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note critiques the CJEU's judgement, which is surprisingly brief, considering the gravity of the question, which probes the boundaries of the copyright work under EU law.

Jani McCutcheon

review article

The Non‐Existence of Markets in the Economic Analysis of Law à la Mode

Eric Posner and E Glen Weyl's Radical Markets contains an argument for the, in a sense, abolition of private property and for the, in a sense, obsolescence of consumer choice. The interest it has for the readers of this journal is the illustration it provides of the degradation of the concept of ‘the market’ in regulatory theory and its indication of a form the further degradation of that concept may well take.

David Campbell

book review

Review of Elizalde, Francisco (ed), Uniform Rules for European Contract Law? A Critical Assessment, Oxford: Hart Publishing, 2018, 256 pp, hb £75.00.

This collection of essays on European Contract Law presents the harmonisation of European contract law as a process marked by ambitions, successes, failures, unintended blessings, lessons learnt, and hopes for the future. Taken together, the essays present a timely overview of the state of play of harmonised European contract law.

Vanessa Mak

book review

Review of Wilcox, Vanessa, A Company's Right to Damages for Non‐Pecuniary Loss, Cambridge: Cambridge University Press, 2016, 192pp, hb £72.99, pb £21.99.

This book is the first work in English legal literature on the subject it addresses. This research is particularly interesting not only for its scholarly ambition to address a significant gap in the law of damages, but also for its impressive scope, covering both English law and the jurisprudence of the European Court of Human Rights. The book promotes a notably progressive understanding about a wider recovery of damages for non-pecuniary losses.

Zlatin Zlatev

book review

Review of Giannoulopoulos, Dimitrios, Improperly Obtained Evidence in Anglo‐American and Continental Law, Oxford: Hart Publishing, 2018, xxxv + 292 pp, hb £65.00.

Based on a doctoral thesis written in French, this is a thoroughly researched and comprehensively argued text. Giannoulopoulos uses the examples of France, Greece, England and Wales, and the United States to provide a unique comparative perspective on two main categories of improperly obtained evidence: evidence obtained in a manner that violates privacy and unlawfully obtained confessional evidence. This analysis builds up to a finale calling for a reinvigoration of what he terms the ‘rights thesis’, which places rights first and truth second.

Nina H. B. Jørgensen

book review

Review of Yalnazov, Orlin, Precedent and Statute: Lawmaking in the Courts versus Lawmaking in Parliament, Wiesbaden: Springer, 2018, 345 pp, pb £69.99.

For a long time now, it has been a settled point in law and economics that the common law is efficient and that the civil law is not. Most authors in that tradition treat the ‘the efficiency of common law hypothesis’ as an axiom. Precedent and Statute challenges that very hypothesis. The challenge is robust and original, and ambitious in both method and scope.

Alberto Quintavalla

04.10.19

Consent, Sex and ‘Sexceptionalism’: Comments on Robin West’s 2019 Chorley Lecture, 'Consent, Legitimation and Dysphoria'

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.

Maayan Niezna

02.04.19

The ‘Publius Paradox’ and the United Kingdom: Comments on Adrian Vermeule’s 2018 Chorley Lecture, ‘The Publius Paradox’ (2019) 82(1) MLR 1-16

Adrian Vermeule’s lecture on the ‘Publius Paradox’ raises awkward questions for constitutional lawyers, as much in the United Kingdom as elsewhere.

Paul F Scott

19.10.18

Degrees of Abstraction: Notes on Dowdle et al

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.

Chris Thornhill

12.06.18

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

06.06.18

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

03.04.18

Regarding Rationale-Based Defences: A Reply to James Edwards

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.

Mark Dsouza

09.03.18

'Whatever Happens on Earth Stays on Earth': Some Other Discourses and the 2017 Chorley Lecture

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.

Martin Clark

07.11.17

Vexatious Claims: Access to Justice, Judicial Scrutiny, and the Economics of the Rule of Law

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.

Abi Adams & Jeremias Prassl

29.08.17

The ‘Is’ and ‘Ought’ of Political Constitutionalism: Comments on Chris Thornhill’s ‘The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism’ (2016) 79(2) MLR 207-247

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.

Grégoire Webber

22.06.17

We Never Needed to Define the Convention of Non-Political Speech by Judges—Just to Police It. Comments on Patrick O’Brien, ‘Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009’ (2016) 79(5) MLR 786–812.

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.

Sophie Turenne

06.06.17

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

08.05.17

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

24.04.17

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

03.04.17

Brexit and the British Constitution: An Update on Sionaidh Douglas-Scott 'Brexit, Article 50 and the Contested British Constitution' (2016) 79(6) MLR 1019-40

With Article 50 now triggered, and the ‘Great Repeal Bill’ White Paper published, was there ever such an agitated time for the British Constitution?

Sionaidh Douglas-Scott

10.02.17

Comments on Eilís Ferran, 'Corporate Mobility and Company Law' (2016) 79(5) MLR 813–39

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?

Simon Witney