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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

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

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

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

March Issue now available

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.

January Issue now online

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.

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.

MLR 6 days ago

RT @SamanthaRasiah: Info & registration for our @ModernLRev Seminar 'Revisiting "Pressing problems in the Law: What is law school for?" 20…

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