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Collective Action in the Digital Reality: The Case of Platform-Based Workers

The article explores the challenges of collective action in the digital reality and focuses on the efforts of platform-based workers to unionise and their legal right to do so in accordance with UK law. Using sociological scholarship, the article elaborates on the emergence of flexibility and individualisation in the digital reality, in particular in platform-based work, and on the way it hinders the creation of collective action.

Tammy Katsabian

article

Abuse of Rights in English Contract Law: Hidden in Plain Sight?

The article argues that the fetters on the exercise of unilateral contractual discretionary powers that were defined in Braganza v BP Shipping Ltd and the limits on damages clauses as redefined in Cavendish Square Holding BV v Talal El Makdessi are imposed to prevent the abuse of contractual rights or freedoms and this is suggestive that a broader principle against the abuse of rights might be at work in English contract law.

Solène Rowan

case

Expanding the Right to Remain as a Trafficked Person under Article 4 ECHR and the ECAT

MS (Pakistan) v Secretary of State for the Home Department, the first human trafficking case related to non-removal to reach the UK Supreme Court, clarifies the effects of the interplay between the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR), expanding the right to remain for trafficked persons under Article 4 ECHR with reference to the obligation to investigate trafficking under the ECAT.

Maja Grundler

review article

Examining the Structure of Remedial Law: Review of Stephen A. Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law, Oxford: Oxford University Press, 2019, 368pp, £80.00

Conventionally, a judicial private law remedy is understood as a court order made following two types of events: a violation of a legally recognised right, or a threatened violation of a legally recognised right. In Rights, Wrongs, and Injustices: The Structure of Remedial Law, Stephen Smith rejects the prevailing explanation of the primary and secondary duties in JPLRs. The book, which is the culmination of many years’ work, is an original and thought-provoking work of scholarship demanding serious engagement.

David Winterton & Timothy Pilkington

book review

Review of Frederick, Wilmot-Smith, Equal Justice: Fair Legal Systems in an Unfair World, Cambridge, Massachusetts: Harvard University Press, 2019, 272pp, hb £31.95

Equal Justice offers a timely and fresh take on injustices in the legal system. For Wilmot-Smith, economic disparity is a root cause of injustice. This is an important contribution, providing impetus for new empirical projects to test arguments advanced and to move the debate from a philosophical one to one of empirical validity, edging society towards a ‘just justice system’.

Debbie De Girolamo

book review

Review of Herlin-Karnell, Ester and Ryder, Nicholas, Market Manipulation and Insider Trading: Regulatory Challenges in the United States of America, the European Union, and the United Kingdom, Oxford: Hart Publishing, 2019, xiv + 148 pp, hb £60.00.

Despite the time that has elapsed since the 2007/08 financial crisis, many issues remain unresolved. The shadows cast by this crisis continue to shape the regulatory system for countering market abuse today, with a particular emphasis on insider trading and market manipulation. The comparative research in Market Manipulation and Insider Trading is a welcome and important contribution to the literature on how to address these forms of market abuse.

Bohan Liu

book review

Review of Lefkowitz, David, Philosophy and International Law: A Critical Introduction, Cambridge: Cambridge University Press, 277 pp, pb £22.99

Like global justice within political philosophy, international law is now firmly in fashion with legal philosophers. It is into this busy field that David Lefkowitz offers this book. The text is excellently written, exhibiting the author's typical clarity of expression and intellectual rigour. Unfortunately there is also a great deal missing that strikes me as essential to even the most rudimentary ‘critical introduction’.

Alex Green

book review

Review of Rubinelli, Lucia, Constituent Power: A History, Cambridge: Cambridge University Press, 2020, x + 255 pp, hb £75.00 Colón-Ríos, Joel, Constituent Power and the Law, Oxford: Oxford University Press, 2020, 352 pp, hb £80.00

The idea of popular power is not one confined to textbooks of constitutional law on the shelves of law libraries. It is one which has entered public discourse in the last few years, with the rise of populism across the globe. It is in this climate that two valuable academic contributions have been made to the discussion about constituent power.

Pravar Petkar

book review

Review of Morris, Shireen, A First Nations Voice in the Australian Constitution, Oxford: Hart Publishing, 2020, 344 pp, hb $108.00 (AUD)

The constitutional recognition and protection of Indigenous rights is a longstanding and difficult issue. It strikes at the heart of a nation's identity and raises some of the most fundamental legal and political questions. Shireen Morris’ A First Nations Voice in the Australian Constitution considers Indigenous constitutional protection in the Australian context, making the case for recognising Indigenous Australians in the Australian Constitution through, what she terms, a constitutionally guaranteed First Nations voice.

Kiri Toki

MLR Forum

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Of Chimeras, Ectogenesis, and Parenthood: Comment on Brian Sloan, ‘The “Chimera” of Parenthood’ (2021) 84(3) MLR 503–531

Brian Sloan’s analysis of the challenges a human chimera could pose for English law’s definition of fatherhood finds a parallel in the problems artificial wombs might raise for the designation of motherhood. While these hypothetical challenges point to important gaps in jurisprudence, a more pressing concern is the impact the limited flexibility of legally recognized parental roles in England has on already existing families.

Claire Horn

Hart’s Internal Perspective: Not a Matter of Endorsement? Comments on Alexander Somek’s Review of The Concept of Liberal Democratic Law

On the whole, Somek’s recent review of my book The Concept of Liberal Democratic Law is strikingly incongruous and self-contradictory. Considered in detail, it is grossly inaccurate and contains flagrant mistakes about elementary legal theory. Its tone and style, moreover, are unscholarly and un-collegial. In the comments that follow, I believe I make it abundantly clear that my book is not at all what Somek presents it to be.

Johan van der Walt

Stepping into the Normative Void: Comments on M Favale, M Kretschmer & PLC Torremans, ‘Who is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law’ (2020) 83 MLR 831

Intellectual property tends to be highly technical and of low political salience. Within the EU legislators tend to leave that complexity to be worked out by courts. Favale, Kretschmer and Torremans’ recent piece shows how the CJEU attempts to fill this ‘normative void’ and how Member States influence this process.

Luke McDonagh

Gender Self-Declaration and Women’s Rights: How Self Identification Undermines Women’s Rights and Will Lead to an Increase in Harms: A Reply to Alex Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (2020) 83(3) MLR 539

Alex Sharpe argues that gender self-declaration will not undermine women’s rights or lead to an increase in harms. We present the gender critical rebuttal, arguing that it indirectly undermines women’s rights to single sex spaces and that this will lead to harm.

Alessandra Asteriti and Rebecca Bull

Judging by Numbers: Comments on Gary Edmond and Kristy A. Martire, ‘Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision-Making’ (2019) 82(4) MLR 633

Experiments on bias demonstrate the inability of judges and jurors, and other professionals to shrug off so-called ‘anchoring’ effects, and other common cognitive biases. The goal of ‘Just Cognition’ is to interrogate precisely what these examples teach us about (the veracity of our assumptions about) how bias operates within the judicial sphere.

Tatiana Cutts

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

Members of MLR Editorial Committee Information Session on Articles Submission

Video on Youtube

This video follows on from the women’s panel of June 2020. It is a short discussion between Jo Braithwaite, Tatiana Cutts and Vanessa Munro about submitting a MLR article and designed to go along the panel video.

September 2021 now available

The September Issue of the Modern Law Review is now available, with articles on homelessness legislation, the blockchain, collective action for platform-based workers, trans and gender-diverse people under international human rights law and the abuse of law in English contract law. Case notes cover new decisions on trafficked persons, the overpaid tax litigation and illegality in tort post-Patel. A review essay examines a new book on judicial private law remedies, and book reviews cover new titles on topics from international legal theory to constituent power to a First Nations ‘Voice to Parliament’ in the Australian Constitution.

Professor Hugh Collins Chorley Lecture, 'Fat Cats, Production Networks and the Right to Fair Pay' will be held on 20 October 2021

We are delighted that Professor Hugh Collins postponed Chorley Lecture will be held on Wednesday 20th October 2021 starting at 6pm. The title of his lecture is ‘Fat Cats, Production Networks, and the Right to Fair Pay’. Due to restrictions on live public events at the LSE this year we will be holding the event at the Royal College of Surgeons (adjacent to LSE), The View, 6th Floor, 38-43 Lincoln’s Fields, London, WC2A 3PE.

Hugh Collins FBA is the Cassel Professor of Commercial Law at the London School of Economics. He studied law at the University of Oxford and Harvard Law School. He was formerly Professor of English Law at LSE (1991-2013) and the Vinerian Professor of English Law at All Souls College Oxford (2013-19). He has published books in the fields of employment law, contract law, human rights, and legal theory. His current research is concerned with the application of principles of justice to relations at work.

Please reply to: Amanda Tinnams (a.tinnams@lse.ac.uk) if you would like to attend the lecture.

July 2021 now up

The July Issue of the Modern Law Review is now available, with articles on corruption in procurement, new theories of the presumption of innocence and of judicial review as delegation, and empirical analyses of anti-money laundering regulations and judicial impartiality standards. Legislation notes cover the Stewardship Code, and cases examine new decisions on unconscionability in arbitration clauses and police surveillance and automatic facial recognition in Wales. Reviews cover books on justice in transactions and short reviews on titles covering theories of possession to a history of intellectual property through objects to the philosophical foundations of labour law, and many others.

MLR 4 days ago

RT @EdinaRl: Special issue alert: @lilianedwards @utakohl Remi Nwabueze and I are editing a special issue of @CompLawSecRev 'Post-mortem pe…

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