article

Welfare‐to‐Work, Structural Injustice and Human Rights

This article discusses welfare‐to‐work schemes, places schemes with strict conditionality in the theoretical framework of structural injustice, and argues that they may violate human rights law. The article further argues that a framework of ‘state‐mediated structural injustice’ is the best way of explaining the wrong. It finally claims that this injustice violates principles that are enshrined in human rights law, which the authorities have an obligation to examine and address.

Virginia Mantouvalou

Most Recent

article

Welfare‐to‐Work, Structural Injustice and Human Rights

Virginia Mantouvalou

article

Unpopular Sovereignty?

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. The very concept of sovereignty thus becomes unpopular. This contribution aims to re‐establish the link between popular sovereignty and action by examining sovereignty's emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.

Alexander Somek & Michael A. Wilkinson

article

Commodity or Propriety? Unauthorised Transfer of Intangible Entitlements in the EU Emissions Trading System

This article argues that the law governing transfer of allowances within the EU Emissions Trading System (EU ETS) should place greater weight upon transactional (and environmental) integrity, even over market liquidity. More broadly, it reflects on the role played by registries in sharing or concealing information about the material world.

Bonnie Holligan

article

Failures for Consideration: Re‐Analysing Jurisdiction in Unjust Enrichment Claims

There has been little attempt to provide a full and coherent analysis of the rules governing service of a claim form out of the jurisdiction in claims concerning unjust enrichment. This article attempts not only to provide such an analysis but also one which is able to reconcile the wording of the rules with their underlying principles and the substantive law of unjust enrichment claims.

Matthew Hoyle

article

“This case is about you and your future”: Towards Judgments for Children

A handful of ‘child‐friendly’ judgments have emerged in the UK in recent years, attempting to adopt a child‐centred approach to the decision‐making stage of the legal process. This article examines how and why the form and presentation of judicial decisions is an important aspect of children's access to justice.

Helen Stalford & Kathryn Hollingsworth

case

Disability, Reasonable Accommodation and the Employer's Obligations: Nano Nagle School v Daly

The duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job.

Desmond Ryan & Mark Bell

case

The ‘Heathrow’ Case: Polycentricity, Legislation, and the Standard of Review

The recent Court of Appeal decision in the ‘Heathrow’ case is an illustration of the challenges of reviewing polycentric and expert decision‐making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts.

Joanna Bell & Elizabeth Fisher

review article

The Romantic Allure of Old Europe: Pertinent Questions and Non‐Responses

This review essay examines Questioning the Foundations of Public Law, a collection of probing essays on Martin Loughlin's formidable Foundations of Public Law. It first provides and overview the questions put to Loughlin, then turns to his reactions, then engages with key concerns that emerge from this exchange.

Johan van der Walt

book review

Review of Burrows, A., Remedies for Torts, Breach of Contract, and Equitable Wrongs, Oxford: Oxford University Press, 4th ed, 2019, 624 pp, pb £49.99, hb £125.00.

Now in its fourth edition, the great strength of Burrows' Remedies continues to be that it analyses judicial remedies in a manner that is at once accessible, critical and comprehensive.

Solène Rowan

book review

Review of Ripstein, Arthur, Private Wrongs, Cambridge, MA: Harvard University Press, 2016, 313 pp, hb $49.95.

Over the past several decades, scholars have sought to account for private law doctrine on its own terms. Arthur Ripstein’s Private Wrongs is a worthy contribution in this tradition. It is already an indispensable reference for scholars working in private law theory.

Robert Mullins

book review

Review of Ackerman, Bruce, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, Belknap Press: Harvard University Press, 2019, 472 pp, hb £28.95.

Bruce Ackerman’s latest work offers a fresh perspective in the analysis of constitutional legitimation.

Erika Arban, Eleonora Bottini & Dinesha Samararatne

book review

Review of McBride, Nicholas, The Humanity of Private Law, Part I: Explanation, Oxford: Hart Publishing, 2019, xviii + 272 pp, hb £80.00.

The concept of wellbeing is not a complete stranger to private law concepts. It is therefore surprising that no-one to date has written on the relationship between private law and wellbeing. At least, that was the case prior to McBride’s new book.

Yan Kai Zhou

book review

Review of Hock, Branislav, Extraterritoriality and International Bribery, Abingdon, New York, NY: Routledge, 2020, 272 pp, hb £120.00.

In his debut monograph Extraterritoriality and International Bribery, Branislav
Hock analyses the political and legal dimensions of the Gordian knot that is
international foreign bribery enforcement.

Samuel J. Hickey

book review

Review of Gorsuch, Neil M., A Republic, If You Can Keep It, New York, NY: Crown Forum, 2019, 326 pp, hb £22.50.

This work contains a lengthy explication of US Supreme Court Justice Neil Gorsuch's judicial philosophy. It provides valuable insights into the principles that underpin his legal opinions; and it sheds light on the reasons for some of the disagreements he has had with his colleagues.

John J. Magyar

book review

Review of Goldberg, John C. P. and Zipursky, Benjamin C., Recognizing Wrongs, Cambridge, MA: Harvard University Press, 2020, 380 pp, hb £36.95.

John Goldberg and Benjamin Zipursky's Recognizing Wrongs is such a wonderfully readable and detailed account of their view of tort law that it renders all their earlier writings on the subject redundant.

Nicholas J McBride

book review

Review of Fhima, Ilanah and Gangjee, Dev S., The Confusion Test in European Trade Mark Law, Oxford: Oxford University Press, 2019, 278 pp, hb £125.00.

Monographs on key aspects of trade mark law are a rare breed. The arrival of Ilanah Fhima and Dev Gangjee’s full-length study of the confusion test in European trade mark law is therefore a moment of joy for all trade mark experts, promising detailed, penetrating analysis by recognised experts in the ﬁeld.

Paul Torremans

MLR Forum

20.08.20

Gender and the Analytical Jurisprudential Mind: A Response to Leslie Green

The July 2020 issue of the MLR includes a review article of my book, Law and Gender (2013) by Professor Leslie Green. This response offers a robust corrective to Green’s misreading of the book and misrepresentation of its core arguments, highlighting the techniques Green deploys to advance claims about my book which are inaccurate and unsound.

Joanne Conaghan

03.08.20

Remote Justice? Litigants in Person and Participation in Court Processes during Covid-19

The impact of Covid-19 on the court system has been significant, substituting online and telephone hearings for face-to-face court proceedings. The implications of these forms of remote justice on the participative experiences of litigants in person is not yet well understood.

Gráinne McKeever

28.07.20

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

22.07.20

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

12.05.20

Consent, Autonomy and Coercion: A Response to Robin West

Robin West’s 2019 Chorley Lecture offers important insights in relation to the ethic of consent in sexual life. In this response, I argue that by embracing the contested nature of the concept of consent there is room for deeper conversations about the boundaries of sex, criminalisation and harm.

Eithne Dowds

20.04.20

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

04.10.19

Consent, Sex and ‘Sexceptionalism’: Comments on Robin West’s 2019 Chorley Lecture, 'Consent, Legitimation and Dysphoria'

A feminist discussion of consensual sex should consider when sex is wanted and when it is harmful. But is should also consider the justifications for exceptionalism concerning sex. A response to Robin West.

Maayan Niezna

02.04.19

The ‘Publius Paradox’ and the United Kingdom: Comments on Adrian Vermeule’s 2018 Chorley Lecture, ‘The Publius Paradox’ (2019) 82(1) MLR 1-16

Adrian Vermeule’s lecture on the ‘Publius Paradox’ raises awkward questions for constitutional lawyers, as much in the United Kingdom as elsewhere.

Paul F Scott

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

MLR news

MLR Covid Fellowships announced

The MLR is pleased to announce its 2020 Covid-19 Fellowship recipients:

Dr Adi Goldiner (UCL)
Dr Alex Green (University of Leeds)
Dr Ana Bobic (Hertie School)
Dr Ashleigh Keall (UCL)
Dr Chloe Deambrogio (University of Oxford)
Dr Claire Horn (Birkbeck)
Dr Eleanore Hickman (University of Cambridge)
Dr Martin Clark (University of Tasmania)
Dr Ndjodi Ndeunyema (University of Oxford)
Dr Robert Greally (University of Sheffield)
Dr Robyn Gill-Leslie (KCL)

Reminder: MLR Seminar Proposals due 9 November 2020

The Modern Law Review offers funding to support the organisation of scholarly seminars on any subject broadly within the publishing interests of the Review. The Review would like to encourage applications which facilitate scholarly European and international dialogue, and also those which are innovatory in their approach or objectives. A proposal might involve a single paper and discussion, or more than one paper. While the amount of financial support provided will be separately assessed in relation to each successful application, the Review is prepared to provide support of up to £5,000 for one major seminar each year. See further: https://www.modernlawreview.co.uk/about-mlr-seminars/

September Issue now available

The September Issue of the Modern Law Review is now available, with articles on welfare-to-work and human rights, the concept of popular sovereignty, EU emissions trading, unjust enrichment jurisdiction, and judgments for children, case notes on disability accommodations and the ‘Heathrow’ case, a review article of a collection of essays on Loughlin’s Foundations of Public Law, and eight book reviews covering a range of private law topics, revolutionary constitutions, judicial biography and European trademarks

MLR Covid-19 Fellowships

In response to the effect that Covid is having on opportunities for early career scholars, the MLR is making available a fund to support research through MLR Fellowships. The Fellowships provide funding for early career scholars of up to £10,000 as well as the option of mentoring support from an MLR Editorial Committee member. More details about the fund and the application process can be found here: https://www.modernlawreview.co.uk/about-mlr-scholarships/

MLR Information Session for Female Academics recording

On 10th June 2020 members of the Modern Law Review Editorial Committee hosted a Zoom information session for women on publishing in the MLR, with the goal of encouraging submissions from female academics.

The video is now available at this link.

The session was attended by 217 women from 62 institutions and 16 countries across the world. The MLR Committee were delighted to host the event, and will continue to reflect on ways to build on our commitment to ensuring that the MLR is a welcoming platform for women.

In the meantime, we look forward to receiving your submissions!

July Issue Now Online

The July Issue of the Modern Law Review is now available, with articles on macro and micro justice in contract, abortion law reform in Northern Ireland, new public management and the ombudsman, and member state influence on the CJEU, case notes on new decisions on data controllership and joint authorship, a review article on gender and analytic general jurisprudence, and book reviews on shareholder duties in common law Asia, private law theory, and biographies of academic lawyers.

Publishing in the Modern Law Review: A Zoom Information Session for Female Academics - Wednesday 10 June, 4-5pm BST

Members of the MLR Editorial Committee will host a Zoom information session for female academics on publishing in the Review. The session will take place on Wednesday 10 June at 4-5pm BST.

MLR Committee members Jo Braithwaite, Tatiana Cutts, Conor Gearty, Kate Greasley, Orla Lynskey, Virginia Mantouvalou, Vanessa Munro and Sarah Paterson will be providing information and answering questions about the kind of work published by the MLR, the nature of the MLR’s peer review process and how to increase your chances of publication. The session is open to women at all career stages, including doctoral students: email t.cutts@lse.ac.uk to register or ask any questions.

During the session, the committee will also be inviting views on potential barriers to submission, and other steps the Committee might take to help redress those barriers. If you would like to comment but would prefer to do so confidentially, please feel free to do so by email either before or after the session.

Chorley Lecture Rescheduled to June 2021

Due to the ongoing situation with Covid-19, we are very sorry to inform you that the MLR 49th Chorley Lecture and Dinner scheduled for 17th June 2020 has been cancelled. Professor Hugh Collins’ lecture: ‘Fat Cats, Production Networks, and the Right to Fair Pay’ will be rescheduled for June 2021 (dates to be confirmed).

MLR 33 days ago

RT @ana_bobic: An excellent initiative addressing the Covid-enhanced precariousness for early career scholars. Very happy and extremely gra…

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