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Corporations as Moral Agents: Trade‐Offs in Criminal Liability and Human Rights for Corporations

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.

Nick Friedman

article

Indeterminacy, Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017

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.

Michael Blackwell

article

The Evolution of EU Antitrust Policy: 1966–2017

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.

Pablo Ibáñez Colomo & Andriani Kalintiri

legislation

The Problematic Development of the Stalking Protection Order

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.

Rory Kelly

case

Kwok Cheuk Kin v Lam Cheng Yuet Ngor: Government Chastisement of Dissidents and Judicial Review That Never Was?

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.

Kai Yeung Wong

book review

Review of Mason Meier, Benjamin and Gostin, Lawrence O. (eds), Human Rights in Global Health: Rights‐Based Governance for a Globalizing World, New York: Oxford University Press, 2018, 616 pp, pb, £39.99

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.

Claire Lougarre

book review

Review of Carvalho, Henrique, The Preventive Turn in Criminal Law, Oxford: Oxford University Press, 2017, 224 pp, hb £60.00.

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.

Zachary Hoskins

book review

Review of Pitcher, Kelly, Judicial Responses to Pre‐Trial Procedural Violations in International Criminal Proceedings, Berlin: Springer, 2018, 557 pp, hb £175, eBook £140.

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.

Dimitrios Giannoulopoulos

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 online

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.

January Issue now up

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.

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.

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