Every year the UK government spends billions of pounds purchasing goods, works and services that are vital to growth, development, health and social welfare. Performed well, public procurement helps a government to nurture competition, save money, and provide better public services. These benefits will not be reaped, however, if the system is not protected adequately from distortion by corruption and/or supplier collusion. This paper concludes that additional measures are required to protect the integrity of procurement processes in England & Wales.
The presumption of innocence is unanimously considered a fundamental requirement for criminal justice. This article contributes to the debate, advancing a novel theory of the meaning as well as of the justification of the presumption of innocence; a markedly deflationary account, according to which the presumption of innocence consists exclusively of a rule on the allocation of the burden of proof.
For over three decades, money laundering has been an area of concern for policymakers and law enforcement, with significant efforts undertaken at national and international levels to combat it. Drawing upon semi-structured interviews with estate agents and compliance officials, this study identifies critical aspects of AML compliance that are particularly problematic for those involved in it.
This paper offers an interpretive theory which aims to make sense of judicial review doctrine in light of its underlying rationale. The paper argues that the best internal rationale for judicial review doctrine is that it holds administrators to their moral duties qua delegates of Parliament or the Crown.
This article presents the results of an empirical study designed to assess the degree of convergence and divergence between public opinion and the fictional Fair Minded Observer (FMO) test used to determine whether a judge ought to be disqualified on the grounds of possible bias. Our results indicate that a gap exists between the FMO created by the courts and public opinion in both countries across a number of scenarios thought to give rise to possible bias, including financial relationships, the risk of prejudgement and fact patterns based on leading cases.
John Kingman's review of the Financial Reporting Council (FRC) doubted the effectiveness of the UK's Stewardship Code in encouraging informed and engaged stewardship by institutional investors of the companies in which they invest (issuers). Accordingly, the FRC updated the Stewardship Code in 2020 in a final bid to prove its effectiveness and relevance, and, in particular, to enhance issuer-specific engagement by institutional investors. But in relation to engagement, stewardship disclosure should focus on the types of engagement that institutional investors are motivated to exercise in practice, such as engagement in response to hedge fund activism, and engagement on systemic risks.
The Supreme Court of Canada held that requiring low-paid drivers to sign an Arbitration Clause removing their right to local court processes can be unconscionable and, if so, the clause is not enforceable. In this case note, it is argued that the Canadian decision opens the door for the United Kingdom to rethink the role of unconscionability and how the doctrine could apply to modern contractual arrangements.
In R (on the application of Bridges) v Chief Constable of South Wales Police the Court of Appeal held the deployment of live automated facial recognition technology (AFR) by the South Wales Police Force (SWP) unlawful on three grounds. It violated the right to respect for private life; the Data Protection Impact Assessment was deficient for failing to assess the risks to the rights and freedoms of individuals processed by the system; and SWP failed to fulfil the Public Service Equality Duty by failing to assess whether or not the software used in the AFR system was biased in relation to sex and race.
Justice in Transactions stands at the confluence of a number of currents in legal theory. It advances the theory of corrective justice, based on Aristotle's insight that private law concerns the justice of bilateral relationships. In this review article I will focus on Benson's intellectual commitments to a relational view of contract, linked to an essentially proprietary model of contract law, and to a liberal conception of the individual person.
When will a person ‘take possession’ such that a proprietary interest arises? And why should we distribute unowned resources according to a rule of first possession,
and not some other rule? In this book, Michael J.R. Crawford adds to the
literature that examines these questions, and offers a theory of the rule that
draws upon an impressively broad array of sources, ranging from the doctrinal
to the game theoretical.
Ernest Lim’s Sustainability and Corporate Mechanisms in Asia is clear, eye-opening, and absorbing. It is original, perceptive and distinct from existing literature in at least three respects: moving beyond US, UK and European jurisdictions, highlighting the impact of state owned enterprises, and shifting the debate from actor-centred to one based on the effect of corporate mechanisms on sustainability.
This is a collection of essays about the history of the branches of law that we today term intellectual property, each chapter taking a single object as its starting point: from the twelfth century to today, and from the Mona Lisa to the Kodak Camera, the Lego Brick to the Internet.
This book, written by leading philosophers and labour law scholars in the Anglo-Saxon world, makes a seminal contribution to the growing literature on the theory
of labour law. The discovery of the philosophical foundations of labour law is seen as a vital and to some extent existential exercise for the subject and paradigm of labour law.
This edited volume explores the fate of the ‘millennium directives’ – the Race Directive 2000/43/EC and the Framework Directive 2000/78/EC – which expanded the EU’s anti-discrimination law beyond gender (to race and ethnicity, religion, sexual orientation, age, and disability) and extended its scope (to access to goods and services for race). For this focus, as well as for the range and quality of its chapters, the book makes an important contribution to the literature on EU’s anti-discrimination law.
Administrative law is a subject that has been grappling with the search for a single ‘organising concept’, a harmonising theory or, as Bell describes it, some ‘monistic’ principle that is capable of uniting the whole compass of the subject in a uniquely beautiful way. Bell’s is among an increasing number of voices suggesting not only that such an organising concept is yet to be found, but also that the search may continue to prove fruitless.
The second volume of the history of the Harvard Law School is a massive example of the institutional historian’s art. I shall first summarise this book and then offer an assessment of it.
On the whole, Somek’s recent review of my book The Concept of Liberal Democratic Law is strikingly incongruous and self-contradictory. Considered in detail, it is grossly inaccurate and contains flagrant mistakes about elementary legal theory. Its tone and style, moreover, are unscholarly and un-collegial. In the comments that follow, I believe I make it abundantly clear that my book is not at all what Somek presents it to be.
Online courts have the potential to create or exacerbate pressures to plead guilty, particularly for vulnerable defendants. I explore these pressures in the context of the Covid-19 pandemic in which increasing use of online justice has coincided with a significant increase in guilty pleas.
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.
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.
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.
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.
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.
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.
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 July Issue of the Modern Law Review is now available, with articles on corruption in procurement, new theories of the presumption of innocence and of judicial review as delegation, and empirical analyses of anti-money laundering regulations and judicial impartiality standards. Legislation notes cover the Stewardship Code, and cases examine new decisions on unconscionability in arbitration clauses and police surveillance and automatic facial recognition in Wales. Reviews cover books on justice in transactions and short reviews on titles covering theories of possession to a history of intellectual property through objects to the philosophical foundations of labour law, and many others.
The May Issue of the Modern Law Review is now available, with articles on criminal law around false election and referendum claims, strip-searches, EU constitutionalism, parenthood, implied terms in undisclosed agency and executive accountability around national security. Cases cover new decisions on attribution and tracing, a review essay on EU competition law and the rule of law, and book reviews covering new titles on topics from competition law to natural law jurisprudence to third party funders.
The March Issue of the Modern Law Review is now available, with articles on administrative legal theory, fairness in EU competition law, unreasonableness in administrative decisions, provocation and trespass, and unwanted distribution of children’s images and development, case notes covering new decisions on contract and charity law, a review essay on liberalism and law, and book reviews on new titles from administrative justice to adoption to law, race and empire in Britain’s borders.
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.
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/
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.
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)
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
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/
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!
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.
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.
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).
New on the MLR Forum, Johan van der Walt's comments on Alexander Somek's review of his book, The Concept of Liberal… https://t.co/zkswhP5z2d
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