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Constitutional Directives: Morally‐Committed Political Constitutionalism

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.

Tarunabh Khaitan

article

Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making

Common law judges have traditionally been concerned about bias and the appearance of bias. This article contrasts legal approaches to bias with a range of biases, explains how, notwithstanding express concern with bias, there has been limited legal engagement with many risks known to actually bias decision‐making, and discusses the implications of more empirically‐based approaches to bias for decision making and institutional legitimacy.

Gary Edmond & Kristy A. Martire

article

From Global to Anthropocenic Assemblages: Re‐Thinking Territory, Authority and Rights in the New Climatic Regime

In a widely read study, Saskia Sassen uses the territory, authority, rights (TAR) framework in order to analyse the transformation of social life in the West from ‘medieval’ to ‘global’ assemblages. In the context of rapid, planetary climatic change, this article examines the limitations of Sassen's TAR framework, arguing that alternative theoretical resources are required in order to grasp the changing dynamics of social life in the context of the new climatic regime.

Daniel Matthews

legislation

Thinking Outside the Box – Eliminating the Perniciousness of Box‐Ticking in the New Corporate Governance Code

The new corporate governance code has attenuated the process of ‘box‐ticking’: companies complying with the letter rather than the spirit of the provisions, and, not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it.

Bobby V. Reddy

case

Reconsidering Transferred Loss

The Supreme Court's recent reconsideration of the ‘transferred loss’ exception stopped short of clarifying why it is justified at all. The usual candidates are that it applies to loss transferred with property, or operates more broadly to vindicate the claimant's interest in performance. This note suggests that neither is a sound basis for the rule, and that the promisee ought generally to be entitled to sue for loss suffered by third parties, but is obliged to pass on the damages he recovers.

Andrew Trotter

case

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

In Dryden v Johnson Matthey, the Supreme Court found, unanimously, that merely becoming sensitised to platinum salts, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences.

Jarret J. Huang

book review

Review of den Boer, Monica (ed), Comparative Policing from a Legal Perspective, Cheltenham UK and Northampton, MA: Edward Elgar Publishing, 2018, 496 pp, hb £185.00.

Police Studies has become a major field of social scientific and socio-legal inquiry. Once a backwater of intellectual concern, arguably the politics of policing has become the defining feature of a precarious twenty-first century global ‘system’ teetering on the brink of uncertainty and insecurity. This collection provides a wealth of expert and detailed material from a strong representative selection of current international socio-legal scholarship on policing.

James Sheptycki

book review

Review of Husa, Jaakko, Advanced Introduction to Law and Globalisation, Cheltenham: Edward Elgar, 2018, 218 pp, hb £63.00.

Advanced Introduction to Law and Globalisation provides a well-reasoned and articulated analysis of the interconnections between international law, individual rights and the fiduciary expectations of multinational businesses and international organisations. Rich in supporting narratives, this text argues that modern legal reasoning across the globe is becoming, at an ever-increasing pace, a manifestation of a shared global legal culture.

Vito Breda

book review

Review of Chazournez, Laurence Boisson, Mbengue, Makane Moïse, Tignino, Mara and Sangbana, Romlan (eds) (associate editor Jason Rudall), The UN Convention on the Law of the Non‐Navigational Uses of International Watercourses. A Commentary, Oxford: Oxford University Press, 2018, v‐vii + 504 pp, hb £150.00.

The Commentary to the UN Watercourses Convention is without doubt a major achievement. It deals in a competent and scholarly manner with a complex Convention, which is not free from controversies. All chapters are in-formative and, at the same time, analytical.

Malgosia Fitzmaurice

book review

Review of Gilbert, Andrew, British Conservatism and the Legal Regulation of Intimate Relationships, Oxford: Hart Publishing, 2018, 231 pp, hb £60.00.

Gilbert's subject is how government ‘holds together the apparent . . . tensions of liberty and authority in a way which maximises social order and human happiness’ among family membership. His uncontentious contention is that much work on family law ‘does seem to escape detailed politico-legal analysis’ and his book ‘aims, in part, to make a contribution to addressing this deficiency’, ‘drawing principally on a critical reading of around two million words of Hansard’. It is at its excellent best when using plain language to assess the fruits of the author’s definitive surveys of what its prime subjects actually wrote and said.

Chris Barton

book review

Review of Masutti, Anna and Tomasello, Filippo, International Regulation of Non‐Military Drones, Cheltenham: Edward Elgar Publishing, 2018, 288 pp, hb £85.00.

In their new book, Anna Masutti and Filippo Tomasello assiduously examine many of the most pressing regulatory issues associated with civilian drone technologies. Their book is a much-needed summary of the diverse set of regulatory structures evolving across the globe to govern the nascent drone industry. The book offers an interesting glimpse into the striking variety of ways governments are responding to a disruptive innovation within a well-established and heavily-regulated industry.

Troy A. Rule

book review

Review of Roberts, Paul and Stockdale, Michael (eds), Forensic Science Evidence and Expert Witness Testimony: Reliability Through Reform? Cheltenham: Edward Elgar Publishing, 2018, xxii + 431 pp, hb £120.00 (eBook version from £22/$31).

If forensic science and expert witness testimony were areas where everything worked perfectly, there would be no need for this book. Unfortunately, the reality is different. The usage of science in legal proceedings is affected by continuing struggles and intricate systemic problems. This book addresses two themes: evidential reliability and institutional reform. These themes are used as lenses through which the authors examine the practical and theoretical challenges that derive from problematic and faulty forensic science.

Alex Biedermann

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

July Issue now out

The July Issue of the Modern Law Review is now available, with articles on constitutional directives, judicial bias and law and the anthropocene, notes on corporate governance codes, transferred loss and actionable damage, and reviews of new books on topics from comparative policing to non-military drones and forensic evidence.

Robin West's 2019 Chorley Lecture now available online

Professor Robin L West’s 2019 Chorley lecture, ‘Consent, Legitimation and Dysphoria’ is now available on the LSE Law Youtube page here. Please share widely!

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.

MLR 1 day ago

RT @Fatima_Ahdash: So delighted that I was awarded a Modern Law Review Scholarship, and even more happy that it was the Helen Reece scholar…

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