In 2016 the government established a new sectoral regulator, with power to grant and withdraw licences, set performance standards, and impose sanctions, not as a statutory authority but in the form of a company wholly owned by the Secretary of State: the Oil and Gas Authority. This article critically examines this and other uses in the UK of government‐owned or ‐controlled companies to discharge public regulatory functions
Governments around the world are deploying automation tools in making decisions that affect rights and entitlements. The interests affected are very broad, ranging from time spent in detention to the receipt of social security benefits. This article focusses on the impact on rule of law values of automation.
UK pension fund trustees’ interpretations of their fiduciary duties may shape pension fund approaches to corporate stewardship and engagement envisioned by the UK Stewardship Code. This article develops a model identifying the spectrum of pension fund engagement, linking interpretations of fiduciary duty to intensity and methods of engagement in practice.
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.
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.
On 7 June 2018, the UK Supreme Court held that the Northern Ireland Human Rights Commission did not have standing to challenge the legality of abortion law in Northern Ireland. This case note argues that while a literal reading of the NIA exposes its inconsistencies, a purposive reading of both the NIA and HRA indicates that the NIHRC should have had standing.
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.
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.
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.
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.
Any legal text demands a scholarly commentary, preferably a detailed one. Common lawyers can readily acknowledge, the enormous achievement of this volume entitled Commentaries on European Contract Laws, written in excellent English, by a team of German law professors, led by two distinguished scholars.
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’.
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.
Adrian Vermeule’s lecture on the ‘Publius Paradox’ raises awkward questions for constitutional lawyers, as much in the United Kingdom as elsewhere.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
With Article 50 now triggered, and the ‘Great Repeal Bill’ White Paper published, was there ever such an agitated time for the British Constitution?
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?
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.
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.
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.
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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