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legislation

The UK Domestic Gas Electricity (Tariff Cap) Act: Re‐Regulating the Retail Energy Market

The UK retail energy market has witnessed multiple regulatory interventions since its liberalisation almost two decades ago, reaching their peak with the UK Domestic Gas Electricity (Tariff Cap) Act in July 2018. This article highlights the difficulties inherent in reconciling price caps – both practically and conceptually – with the competitive process and consumer empowerment.

Maria Ioannidou and Despoina Mantzari

case

The Georgia State Litigation: Literal Copying in Education

This case note examines the long‐standing litigation against Georgia State University in relation to the posting, by faculty and library staff, of unauthorised copies of book extracts on the University's electronic reserves and virtual learning environment. This note discusses how market effect has been analysed in Georgia State, including the recent rejection by the Court of Appeals for the Eleventh Circuit of a strongly empirical approach to market harm.

Emily Hudson

review article

There is No Such Thing as a Safe Space

In Winning Arguments, Stanley Fish tells us that argument may sweep away the politico-legal frameworks, or normative worlds, we make and inhabit and that invest our lives with a sense of significance and security. Thus there is no ‘oasis’ or ‘safe space’ that is entirely secure. This article will not seek to gainsay this view. However, there are reasons for thinking that it may be possible to establish a normatively appealing, enduring, but not entirely safe politico-legal space.

Richard Mullender

book review

Review of Grégoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller and Francisco J. Urbina, Legislated Rights: Securing Human Rights Through Legislation, Cambridge: Cambridge University Press, 2018, 209 pp, hb £85.00

Legislatures, as the authors of this book acknowledge, are not generally regarded by theorists, lawyers or citizens as the principal institutions for securing human rights. This task is generally credited to judges and courts. The aim of Legislated Rights is to challenge these perceptions, by dislodging the automatic presumption in favour of judicial oversight and emphasising the protective role that only legislatures can play in securing human rights.

Leah Trueblood

book review

Review of A. E. L. Brown and Charlotte Waelde (eds), Research Handbook on Intellectual Property and Creative Industries, Cheltenham: Edward Elgar, 2018, 416 pp, hb £170.00.

Understanding the interface between creative industries and intellectual property goes beyond assessing the economic value of creativity, to encompass fuller consideration of the ways in which cultural industries generate social and cultural value. The editors
of this new research handbook on CI and IP law have curated a balanced and detailed volume on this fairly novel topic, featuring a multidisciplinary approach incorporating a range of perspectives including law, economics, history, philosophy and language studies.

Sabine Jacques

book review

Review of Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl, Cheltenham: Edward Elgar Publishing, 2018, 328 pp, £90.00

In international law, human rights are held out as the primary mechanism for achieving freedom Yet, all too often, the international
human rights framework operates to discipline, regulate and exclude the very subjects it purports to free. Ratna Kapur’s book, Gender, Alterity and Human Rights: Freedom in a Fishbowl, joins a growing body of critical scholarship that exposes the ‘dark side’ of human rights. But unlike other human rights critics who tend to follow their critique with a redemptive return to the human rights project, Kapur breaks free of the confines of the Western liberal ‘fishbowl’ and begins to explore alternative emancipatory pathways through an engagement with non-liberal epistemologies.

Claerwen O'Hara

book review

Review of Christoph Kletzer, The Idea of a Pure Theory of Law, Oxford: Hart Publishing, 2018, 150 pp, hb £54.00

Any ordinary person with experience of the law knows it as a potentially force-bearing feature of the social landscape. In The Idea of a Pure Theory of Law, Christoph Kletzer works this intellectual seam, although Hans Kelsen and his predecessors and successors provide the raw material of the study. The book is an elegant, clear and admirably succinct defence of the pure theory of law and, in particular, of the claim that ‘law is an order of force or violence’.

William Lucy

book review

Review of James Plunkett, The Duty of Care in Negligence, Oxford: Hart Publishing, 2018, xxiv + 256 pp, hb £55.00.

If timing is everything then James Plunkett has been unfortunate with the release date of this book. According to Plunkett, the duty of care element of the negligence enquiry is a ‘mess’ and the aim of this monograph is to ‘provide some much-needed clarity to the concept in the hope it will assist us in cleaning it up’. Alas, last year the United Kingdom Supreme Court stole a march on him with a series of decisions that have improved the intelligibility of this area of law. Fortunately, though, the approach adopted by the Supreme Court vindicates many of Plunkett’s arguments and so The Duty of Care in Negligence remains a must-read for all tort scholars.

Craig Purshouse

MLR Forum

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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

May Issue out now

The May Issue of the Modern Law Review is now available, with articles on government companies as regulators, the rule of law and autonomous decision-making, and fiduciary duties in pension fund management. Notes cover the UK retail energy market, copyright in US higher education and standing and the Northern Ireland HRC. Reviews cover books on topics from argument and ‘safe spaces’ to the ‘dark side’ of human rights to the duty of care in negligence.

March Issue now available

The March Issue of the Modern Law Review is now available, with articles covering blockchain regulation, law review citation cartels, the use of statistical evidence, and legislation throughout the EU, legislation notes examining the 2018 EU Withdrawal Bill and the Charter of Fundamental Rights, case notes covering UKSC decisions on Wrotham Park damages and the meaning of ‘damage’ in tort jurisdiction matters, and book reviews on a ‘value of choice’ theory of private law and Scottish criminal evidence laws.

January Issue now online

The January Issue of the Modern Law Review is now available, with the 2018 Chorley Lecture, ‘The Publius Paradox’, articles covering concurrent liability and Euclidean contract theory, legislation notes on UK abortion law reforms since 2016 and homelessness reforms, case notes on free speech and the common intention constructive trust, a review essay on legal pluralism theory, and review of books on topics ranging from consumer redress laws to German public law to common law judicial review.

MLR 2 days ago

RT @FleurEJ: I’ve just published a new piece in The Modern Law Review: ‘From Planning to Prototypes: New Ways of Seeing Like a State’ https…

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