This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. If corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights.
This article explores the impact of the Human Rights Act 1998 on the decision making of the UKHL and UKSC. The Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content shows the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.
This article describes, and puts in context, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law. Enforcement has progressively moved towards the core and the outer boundaries of the system. It has become policy‐driven rather than law‐driven. The cases chosen by the Commission reflects its ‘more economics‐based approach’ to enforcement. Finally, these cases signal a more ambitious stage in the integration of Member States’ economies.
Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits. Examining their use in New Zealand, Scotland, and England and Wales, this article argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land.
In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the stalking protection order (SPO); a civil measure the breach of which is an offence. This article examines instead the roles of Government and Parliament in developing the stalking protection order. My central contention is that the Home Office undertook a problematic consultation and the issues to which it gave rise were not addressed in later parliamentary debates.
The Hong Kong Government issued a strongly‐worded official statement, subsequently adopted by the Chief Executive, to publicly condemn an outspoken constitutional law scholar for expressing views which the Government considered unconstitutional. Leave to judicially review the statement was refused. This note argues that, on a proper understanding of the supervisory jurisdiction of the HK High Court and the theory of the ‘third source’ of governmental power, neither ground should have precluded judicial review.
It is long established that a ‘reasonable offer’ for a petitioner's shares can defeat an unfair‐prejudice petition. In Prescott v Potamianos, the Court of Appeal has set out three factors that help to determine in general whether an offer is ‘reasonable’: the value offered; the likelihood of implementation; and the proximity to the unfairly prejudicial conduct.
Within the legal Western tradition, concepts such as system and order occupy a dominant role in structuring legal discourse. This volume focuses how past ‘thinkers’ have understood and conceptualised the ‘political and legal order beyond the boundaries of sovereign territories’ and the role of system and order in their accounts.
Human rights law has a lot to say on global health inequities, thanks to its underpinning values: the quest for dignity and equality for all human beings. This substantial edited volume comes at an opportune time, enabling the reader to reflect on how human rights have influenced and shaped global health, and what the future holds in this field.
This Handbook is to be very warmly welcomed for showcasing valuable research on a global institution at a time when ombudsman reform by the UK’s devolved institutions has been implemented but corresponding reform for England and non-devolved services is stalled at Westminster by Brexit.
In recent decades, the criminal law in England and Wales, and in other liberal legal systems, has increasingly been used for preventive purposes. In this book, Henrique Carvalho argues that expansions in the criminal law driven by the preventive rationale represent not a break with the liberal tradition but rather an expression of a deeply rooted tension within liberal theory itself.
Kelly Pitcher’s book undertakes an in-depth study of one of the most politically-charged, controversial and enduring questions of criminal evidence and procedure, namely whether pre-trial procedural violations, for which the police or prosecution authorities could be held to account, should trigger judicial remedies.
Maris Köpcke’s proposed approach to legal validity, the idea of correctly pinpointing a valid decision, is both original and distinctive. Its main objective consists in elucidating the moral need for legal validity, as opposed to providing some definition of legal validity or showing how legal validity is used.
Despite being one of the most important rules of private law, contributory negligence is poorly understood. The authors’ chief interest lies in two questions: how frequently is a plea of contributory negligence successful; and what size is the discount on damages?
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.
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 March Issue of the Modern Law Review is now available, with articles on corporations as moral agents, the impact of human rights on judicial disagreement in the UK, the evolution of EU antitrust policy and conservation covenants, notes on stalking protection orders and cases on Hong Kong dissidents and UK concepts of ‘reasonable offers’, a review article on international legal history and book reviews on new works from global health governance to preventive criminal law to negligence.
The January Issue of the Modern Law Review is now available, with Robin West’s Chorley Lecture, ‘Consent, Legitimation, and Dysphoria’ and articles on the definition of rape, the Bank Charter Act 1844, human rights and Northern Irish policing, and post-Brexit financial governance, notes on new roles for the executive in UK environmental regulation and cases covering customised goods and services and closed material procedures, a review essay on regulating the gig economy, and book reviews covering new releases on human rights and socio-economic justice, blockchain technology, austerity Britain, life imprisonment, Muslims in common law courts, and private military and security companies.
The November Issue of the Modern Law Review is now available, with articles on reason-giving in administrative law, new theories of regulation, social credit systems and the human rights of victims in domestic abuse cases, notes on voyeurism legislation and cases on vehicle insurance and green zones, and reviews of books on topics from metaethics in constitutional adjudication to civil disobedience to non-conventional copyright.
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