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The Authority and Interpretation of Regulations

In the past half century, governments have increasingly relied on regulations—secondary legislation issued by administrative bodies and departments—to impose obligations on private parties, multiplying the occasions for regulatory interpretation. This article develops a theory of regulatory interpretation. Turning to the public law of the UK, US, and Australia, it argues that such a theory involves understanding the authority of regulations.

Andrew Edgar & Kevin M Stack

article

When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law

A large proportion of child contact cases in England take place within a context of domestic abuse. The legal response has largely been inadequate and the potential impact of human rights law by the family courts has yet to be fully explored. This paper analyses an exploratory empirical research project undertaken in 2017/2018 with Women's Aid England and 72 victims of domestic abuse regarding their experiences of human rights law in the family courts.

Shazia Choudhry

case

For the Want of Certainty: Vnuk, Juliana and Andrade and the Obligation to Insure

In 2014, the Court of Justice of the European Union extended the requirement for the owner of a motor vehicle to possess insurance cover where the vehicle is used on a road or other public place to vehicles on private land. Beyond disquiet as to this extension, there remains uncertainty at statutory and jurisprudential levels. Clarification is needed, through a seventh MVID or direction from the CJEU.

James Marson & Katy Ferris

case

Wiltshire Council v Cooper Estates Strategic Land Ltd: Development Plans and the Restriction of Town and Village Green Applications

The Court of Appeal has, for the first time, considered the scheme of ‘trigger events’ introduced in the Growth and Infrastructure Act 2013 which preclude the registration of land as a town or village green (or TVG). This note suggests that the court's interpretation of ‘identification for potential development’ is unconvincing, and was motivated primarily by policy.

Harley Ronan

review article

In Search of Foundations: Ethics and Metaethics in Constitutional Adjudication

Courts, no doubt, can get moral answers wrong, but can they also get morality itself wrong? This book aims to elucidate the use of ethical or moral arguments in constitutional reasoning by searching for their metaethical foundations. As I aim to show in this review, however, MeCA’s categorisation of ethical argument at times seems crudely reductive, and its own metaethical theory is not entirely convincing.

Justin Lindeboom

book review

Review of MacLean, Mavis and Eekelaar, John, After the Act: Access to Family Justice after LASPO, Oxford: Hart Publishing, 2019, 197 pp, hb £54.00.

This book is concerned with the withdrawal of legal aid from most private law family actions. This latest work showcases the authors’ well-honed socio-legal technique, and provides an unrivalled analysis of the extent to which the public, private and third sectors have filled the gap in legal aid in family cases created by LASPO.

Chris Barton

book review

Review of Delmas, Candice, A Duty to Resist: When Disobedience Should Be Uncivil, Oxford: Oxford University Press, 2018, 312 pp, hb £19.99.

Widespread popular resistance in Europe and beyond has ushered the debate of justified disobedience to the forefront. A Duty to Resist offers a thorough and nuanced assessment of citizens’ political obligations. Eschewing conventional academic wisdom that misleadingly reduces political obligation to a moral duty to obey law, Candice Delmas proposes an expansive understanding of the term.

Andreas Marcou

book review

Review of Meese, James, Authors, Users, and Pirates: Copyright Law and Subjectivity, Cambridge, Mass: MIT Press, 2018, 240 pp, hb $35.00/£27.00.

A type of legal fiction exists in copyright law which presumes the existence ofclearly defined and sufficiently delineated legal subjects. As attractive as this proposition may be, anyone who is involved in this area will know that this is simply not thecase. This less sharply delineated reality fundamentally underlies James Meese’s recent book, which proposes a new relational framework of understanding.

Amy Thomas

book review

Review of Ahmed, Mukarrum, The Nature and Enforcement of Choice of Court Agreements – A Comparative Study, Oxford: Hart/ Bloomsbury, 2017, 300 pp, hb £80.00.

This book is a delight at both the conceptual/theoretical and the practical level. Just as practitioners will enjoy its use as a reference work for case-law and statutory development particularly in the EU and its Member States, so too will those with an interest in the public/private international law divide appreciate the important scholarly contribution the author has made.

Geert Van Calster

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

November Issue now available

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.

September Issue now online

The September Issue of the Modern Law Review is now available, with articles on the rescission of trusts, pensaion trusts, state use of data, planning and prototyping, and religious freedom and antidiscrimination, notes on housing reform, civil partnerships and copyrighting foods, a review essay on radical markets, and reviews of books on topics from European contract law to improperly obtained evidence.

July Issue now out

The July Issue of the Modern Law Review is now available, with articles on constitutional directives, judicial bias and law and the anthropocene, notes on corporate governance codes, transferred loss and actionable damage, and reviews of new books on topics from comparative policing to non-military drones and forensic evidence.

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