article

Regulation by Blockchain: the Emerging Battle for Supremacy between the Code of Law and Code as Law

This paper critically examines the intersection and interactions between conventional law produced and enforced by national legal systems (ie the ‘code of law’) and the internal rules of blockchain systems, which take the form of executable software code and cryptographic algorithms operating across a distributed computing network (‘code as law’). In so doing, it seeks to identify whether, and to what extent, ‘regulation by blockchain’ will successfully avoid governance by conventional law.

Karen Yeung

article

The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings

Research evaluation is increasingly influenced by quantitative data. We focus on the influential Web of Science Journal Citation Reports (JCR) ranking of law journals and critically assess its methodology. In particular, we consider the existence and impact of a tacit citation cartel between US law reviews.

Oren Perez, Judit Bar‐Ilan, Reuven Cohen and Nir Schreiber

article

Statistical Evidence, Assertions and Responsibility

The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications.

Liat Levanon

article

Justice, Legitimacy and the Authority of Legislation within the European Union

What are we to make of the authority of legislation within the EU? EU lawyers have questioned the significance of legislative decision‐making within the EU. This article challenges these views and argues that the EU legislature must enjoy adequate freedom to shape EU law with the general interest in mind.

Martijn van den Brink

legislation

Constitutional Principle, the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 is the cornerstone of UK legislation designed to accomplish the legal dimension of Brexit. This article explicates the principal provisions of the 2018 Act, and the concerns as to constitutional principle and the rule of law raised by the legislation. The tensions in the drafting process are made apparent, and uncertainties in the resulting text are revealed.

Paul Craig

legislation

So Long, Farewell, Auf Wiedersehen, Adieu: Brexit and the Charter of Fundamental Rights

The UK's relationship with the Charter of Fundamental Rights of the European Union can at best be described as strained, at worst, actively hostile. This article charts the UK's approach to the Charter from its inception to its demise in the EU (Withdrawal) Act 2018.

Catherine Barnard

case

Two Steps Forward, One Step Back: One Step (Support) LTD v Morris‐Garner and Another

One Step is an important decision that deals with the circumstances in which a claimant may recover damages in contract on the so‐called Wrotham Park basis. This note argues that, although the Supreme Court was right not to award damages on this basis in this case, the test laid down by their Lordships for when such damages are available is unclear and will be difficult to apply.

Caspar Bartscherer

case

Fog in the Gateway: Brownlie v Four Seasons Holdings Inc

In Brownlie v Four Seasons Holdings Inc, the UK Supreme Court for the first time addressed the meaning of ‘damage’ in the gateway for jurisdiction in tort cases. This note criticises the views advanced by the majority for endorsing the more expansive interpretation on the grounds that it fails to take account of the legislative history and applies an incomplete conception of justice in justifying its position.

Joseph Crampin

book review

Review of E. Voyiakis, Private Law and the Value of Choice, Oxford: Hart Publishing, 2017, 268 pp, hb £70.00.

This book offers a normative theory of tort and contract law. Its animating idea is that tort and contract rules are justifiable to a person only if the burdens they impose upon that person are sensitive in a certain way to the valuable opportunities the person has under those rules.

Sandy Steel

book review

Review of Peter Duff and Pamela R. Ferguson (eds), Scottish Criminal Evidence Law: Current Developments and Future Trends, Edinburgh: Edinburgh University Press, 2018, 278 pp, hb £75.00.

This collection of essays edited by Peter Duff and Pamela Ferguson will be of interest to all common law criminal evidence scholars. Each contributor seeks to provide a part of the answer to the two big questions posed by current policy initiatives: what is driving the rapid change in Scottish criminal procedure law, and where are these reform processes heading?

P. J. Schwikkard

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