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The Shibboleth of Sovereignty

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.

Martin Loughlin and Stephen Tierney

legislation

The UK Modern Slavery Act 2015 Three Years On

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.

Virginia Mantouvalou

case

Developing a European Standard for International Data Transfers after Snowden: Opinion 1/15 on the EU‐Canada PNR Agreement

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.

Monika Zalnieriute

review article

A Critical Consideration of Substitutive Awards in Contract Law

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.

Katy Barnett

book review

Review of Peter Cane, Controlling Administrative Power: A Historical Comparison, Cambridge: Cambridge University Press, 2016, 608 pp, hb £59.99

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.

Janet McLean

book review

Review of Jens M Scherpe and Andy Hayward (eds), The Future of Registered Partnerships: Family Recognition Beyond Marriage?, Cambridge, Antwerp, Portland: Intersentia, 2017, 591 pp, pb €98.00

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.

Chris Barton

book review

Review of Findlay Stark, Culpable Carelessness: Recklessness and Negligence in the Criminal Law, Cambridge: Cambridge University Press, 2016, 327 pp, hb £72.99

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.

Kimberly Kessler Ferzan

book review

Review of Maksymilian Del Mar and Michael Lobban (eds), Law in Theory and History: New Essays on a Neglected Dialogue, Oxford: Hart Publishing, 2016, ix + 347 pp, hb £80.00

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.

David Fraser

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

November Issue available now

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.

September Issue now online

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.

July Issue now available

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.

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