article

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’

Joanna Bell

article

The Authority and Interpretation of Regulations

In the past half century, governments have increasingly relied on regulations—secondary legislation issued by administrative bodies and departments—to impose obligations on private parties, multiplying the occasions for regulatory interpretation. This article develops a theory of regulatory interpretation. Turning to the public law of the UK, US, and Australia, it argues that such a theory involves understanding the authority of regulations.

Andrew Edgar & Kevin M Stack

article

The Chinese Social Credit System: A Model for Other Countries?

In the view of many Western observers, the emerging Chinese Social Credit System indicates a paradigm shift from earlier rating systems. By contrast, this article suggests that the evolving forms of the Chinese system should be seen as a specific instance of a wider phenomenon.

Daithí Mac Síthigh & Mathias Siems

article

When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law

A large proportion of child contact cases in England take place within a context of domestic abuse. The legal response has largely been inadequate and the potential impact of human rights law by the family courts has yet to be fully explored. This paper analyses an exploratory empirical research project undertaken in 2017/2018 with Women's Aid England and 72 victims of domestic abuse regarding their experiences of human rights law in the family courts.

Shazia Choudhry

legislation

Tackling Voyeurism: Is The Voyeurism (Offences) Act 2019 A Wasted Opportunity?

The Voyeurism (Offences) Act 2019 ostensibly seeks to fill a loophole that exists within the law and to protect the sexual autonomy and inherent dignity of women. Instead, I will argue, the legislation deals with a niche area and is a wasted opportunity.

Alisdair A. Gillespie

case

For the Want of Certainty: Vnuk, Juliana and Andrade and the Obligation to Insure

In 2014, the Court of Justice of the European Union extended the requirement for the owner of a motor vehicle to possess insurance cover where the vehicle is used on a road or other public place to vehicles on private land. Beyond disquiet as to this extension, there remains uncertainty at statutory and jurisprudential levels. Clarification is needed, through a seventh MVID or direction from the CJEU.

James Marson & Katy Ferris

case

Wiltshire Council v Cooper Estates Strategic Land Ltd: Development Plans and the Restriction of Town and Village Green Applications

The Court of Appeal has, for the first time, considered the scheme of ‘trigger events’ introduced in the Growth and Infrastructure Act 2013 which preclude the registration of land as a town or village green (or TVG). This note suggests that the court's interpretation of ‘identification for potential development’ is unconvincing, and was motivated primarily by policy.

Harley Ronan

review article

In Search of Foundations: Ethics and Metaethics in Constitutional Adjudication

Courts, no doubt, can get moral answers wrong, but can they also get morality itself wrong? This book aims to elucidate the use of ethical or moral arguments in constitutional reasoning by searching for their metaethical foundations. As I aim to show in this review, however, MeCA’s categorisation of ethical argument at times seems crudely reductive, and its own metaethical theory is not entirely convincing.

Justin Lindeboom

book review

Review of MacLean, Mavis and Eekelaar, John, After the Act: Access to Family Justice after LASPO, Oxford: Hart Publishing, 2019, 197 pp, hb £54.00.

This book is concerned with the withdrawal of legal aid from most private law family actions. This latest work showcases the authors’ well-honed socio-legal technique, and provides an unrivalled analysis of the extent to which the public, private and third sectors have filled the gap in legal aid in family cases created by LASPO.

Chris Barton

book review

Review of Gur, Noam, Legal Directives and Practical Reasons, Oxford: Oxford University Press, 2018, 256 pp, hb £50.00.

Noam Gur has written a lucid and leading contribution to the rationalist strain of legal theory that argues that an adequate theory of the law’s import for our practical reasoning must capture the idea that legitimate law is binding within limits.

N P Adams

book review

Review of Hirsch, Andreas, Deserved Criminal Sentences: An Overview, London: Bloomsbury, 2017, 165 pp, hb £50.00.

What justifies the punishment of an offender? Andeas von Hirsch’s Deserved Criminal Sentences is an outstanding contribution towards our having a clearer idea about the issues raised by this question, by the leading defender of what the ‘desert model’ in an important restatement of his views.

Thom Brooks

book review

Review of Delmas, Candice, A Duty to Resist: When Disobedience Should Be Uncivil, Oxford: Oxford University Press, 2018, 312 pp, hb £19.99.

Widespread popular resistance in Europe and beyond has ushered the debate of justified disobedience to the forefront. A Duty to Resist offers a thorough and nuanced assessment of citizens’ political obligations. Eschewing conventional academic wisdom that misleadingly reduces political obligation to a moral duty to obey law, Candice Delmas proposes an expansive understanding of the term.

Andreas Marcou

book review

Review of Bonadio, Enrico and Lucchi, Nicola, Non‐Conventional Copyright, Cheltenham: Edward Elgar Publishing, 2018, 520 pp, hb £130.00.

Enrico Banadio and Nicola Lucchi should be congratulated for curating this edited volume which is both topical and ambitious in its coverage, including a range of subject matter from graffiti, tattoos, scent, comedic material and magic productions to engineered gene sequences and creations generated by artificial intelligence.

Poona Mysoor

book review

Review of Meese, James, Authors, Users, and Pirates: Copyright Law and Subjectivity, Cambridge, Mass: MIT Press, 2018, 240 pp, hb $35.00/£27.00.

A type of legal fiction exists in copyright law which presumes the existence ofclearly defined and sufficiently delineated legal subjects. As attractive as this proposition may be, anyone who is involved in this area will know that this is simply not thecase. This less sharply delineated reality fundamentally underlies James Meese’s recent book, which proposes a new relational framework of understanding.

Amy Thomas

book review

Review of Ahmed, Mukarrum, The Nature and Enforcement of Choice of Court Agreements – A Comparative Study, Oxford: Hart/ Bloomsbury, 2017, 300 pp, hb £80.00.

This book is a delight at both the conceptual/theoretical and the practical level. Just as practitioners will enjoy its use as a reference work for case-law and statutory development particularly in the EU and its Member States, so too will those with an interest in the public/private international law divide appreciate the important scholarly contribution the author has made.

Geert Van Calster

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