article

British Torture, Then and Now: The Role of the Judges

This article is concerned with the return of torture and other related abusive conduct to the British counter‐insurgency arsenal following the initiation of military engagements in Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with the challenges that this torture and abusive conduct have posed, both in their capacity as judges proper and also as appointees to a range of inquiries that have been initiated in the wake of these actions.

Conor Gearty

Most Recent

article

Editorial

A note from General Editor David Kershaw on Covid and 2020: the 2020 Chorley Lecture rescheduling, the journal's production and operations through Covid, the MLR post-doctoral fellowships, and with deep thanks to our readers, authors, referees and publisher, with best wishes for 2021.

David Kershaw

article

The Standardisation of Tort Damages

This article explores the nature, scope, rationale and merits of the standardisation of compensatory damages in tort law. It argues that the avowed granting of compensatory damages which do not aim to correspond to the claimant's own loss should be resisted, and is in any event impossible because consequential losses can never be meaningfully standardised.

Eric Descheemaeker

article

Confessions in the Criminal Process

This article undertakes a theoretical exploration of the roles that confessions can play in the criminal process and of the importance that is placed on their voluntariness. Three possible perspectives on the topic are identified: the moral, the epistemic and the political. Adopting each of these perspectives in turn, I set out three distinct dimensions of confessions in the criminal process.

Hock Lai Ho

article

Sorting Out Mixtures of Property at Common Law

This article asks a simple question: when indistinguishable items of personal property owned by A and by B are mixed together, what rights do A and B have in relation to the resultant mass? It is argued that there is insufficient evidence in the positive law to provide any convincing answer to this question, and so it is asked which interpretation that can be drawn out from the law ought to be adopted.

Alexander Waghorn

article

Guilt Beyond Guilt: From Political Theory to Metaphysics with Herbert Morris

As it is presently conceptualised and applied in criminal law, moral guilt is bound by a narrow, legalistic framework that is rooted in a liberal political philosophy. In this paper, drawing on the work of Herbert Morris, I seek to open up and deepen the concept of moral guilt. I do this through the development of a four‐fold typology of guilt that charts Morris's journey from political theory to metaphysics.

Amanda Wilson

article

British Torture, Then and Now: The Role of the Judges

Conor Gearty

case

Investors’ Rights in (Crypto) Custodial Holdings: Ruscoe v Cryptopia Ltd (in Liquidation)

Ruscoe v Cryptopia Ltd (in Liquidation) is a landmark decision of the New Zealand High Court that considers for the first time in a comprehensive way whether cryptocurrencies are property at common law and to what extent account holders’ (interests in) cryptocurrencies are protected from the claims of the insolvent crypto‐exchange's creditors.

Matteo Solinas

case

Proving the Dough: National Crime Agency v Baker & Ors

This note examines the High Court's recent decision in National Crime Agency v Baker to discharge three unexplained wealth orders (UWOs) relating to properties in London. The UWOs were originally granted on the basis that the properties were suspected of constituting ‘recoverable property’ for the purposes of the Proceeds of Crime Act 2002. The decision is the first to overturn an UWO.

Áine Clancy

book review

Review of Ting Xu and Alison Clarke (eds), Legal Strategies for the Development and Protection of Communal Property, Oxford: Oxford University Press, 2018, 256 pp, hb £65.00.

The volume edited feeds into recent scholarship on collective use of crucial resources by adopting the specific standpoint and vocabulary of communal property. It provides a theoretical and empirical reflection on the legal strategies that are and should be put in place to develop and protect communal property in relation to land and other natural resources across different legal systems (England and Wales, Scotland, Italy, Israel, Cameroon, South Africa, and China).

Fabiana Bettini

book review

Review of John Eldridge and Timothy Pilkington (eds), Sir Owen Dixon's Legacy, Sydney: The Federation Press, 2019, 272 pp, hb $150 AustSir Owen Dixon, Jesting Pilate and Other Papers and Addresses, 3/e edited by Susan Crennan and William Gummow, Sydney: The Federation Press, 2019, 336 pp, hb $120 Aust.

The last year witnessed renewed interest in Sir Owen Dixon, one of Australia's preeminent jurists, with the publication these two books. They provide timely encapsulations of his legacy for law students, scholars and practitioners in the common law world and wider political domain.

Andrew Clarke

book review

Review of Susskind, Richard, Online Courts and the Future of Justice, Oxford: Oxford University Press, 2019, 368 pp, hb £18.99.

For nearly four decades, Richard Susskind has been advocating the use of information and communication technologies in legal and judicial practice. His latest book titled Online Courts and the Future of Justice argues that traditional courts should transform into online courts in order to increase access to justice.

Václav Janeček

book review

Review of Io Lo, Vai, Law and Society in China, Cheltenham, Edward Elgar, 2020, 265 pp, hb £75.00.

Given China's increasing prominence in global politics, the ubiquity of Chinese capital, and the epochal consequences of the coronavirus pandemic, China's governance has taken center stage. Chinese law and society also remains vastly understudied and even misunderstood. This book is thus a timely study of the thick relationship between Chinese law and Chinese society.

Matthew S. Erie

book review

Review of Imogen Goold, Jonathan Herring and Cressida Auckland (eds), Parental Rights, Best Interests and Significant Harms – Medical decision‐making on behalf of children post‐Great Ormond Street Hospital v Gard, Oxford: Hart, 2019, 256pp, hb £54.00

This timely collection, edited by three of the UK's leading experts in medical law and ethics, examines the case of Great Ormond Street Hospital v Gard, drawing on legal, medical, philosophical and sociological perspectives to explore the roles of parents, doctors and the courts in making decisions on behalf of critically ill children.

Claire Fenton‐Glynn

book review

Review of Zuloaga, Isabel, Reliance in the Breaking‐Off of Contractual Negotiations: Trust and Expectation in a Comparative Perspective, Cambridge, Intersentia, 2019, xxxviii + 254 pp, hb, € 69.

This a focused comparative analysis of one area of precontractual liability (breaking‐off negotiations), albeit an important and controversial one. There is a lot to learn from this book for scholars and especially for students.

Larry A. DiMatteo

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

January 2021 Issue now online

The January Issue of the Modern Law Review is now available, with articles on standardising tort damages, confessions, mixtures of property, criminal guilt and British judges’ examinations of torture. Cases cover cryptocurrencies and unexplained wealth orders, and book reviews examine new volumes on topics from communal property to Sir Owen Dixon to Chinese law and society.

2022 Seminar Funding now open, due 8 November

The MLR offers funding to support the organisation of scholarly seminars on any subject broadly within the publishing interests of the Review. It aims to fund seminars which could not otherwise take place A proposal might involve a single paper and discussion, or more than one paper, such as a workshop or conference. 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. Applications are due by 8 November 2021. See further: https://www.modernlawreview.co.uk/about-mlr-seminars/

November 2020 Issue now available

The November Issue of the Modern Law Review is now available, with articles on the UK Supreme Court’s position in Northern Ireland, rule of law reform, private law and housing justice, procedural fairness, state responsibility and fingerprint evidence. Cases cover bests interests of the child and mistakes in algorithmic cryptocurrency trading, and a range of book reviews cover new titles on topics from working poor tax credits, the contemporary roles of judges, and the sanctity of contract.

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)

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 14 days ago

RT @MohamedEBadar: With the generous support of @ModernLRev we are holding a conference on the 22-23 July 2021 at @NorthumbriaLaw in Newcas…

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