article

The Publius Paradox

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength.

Adrian Vermeule

article

Concurrent Duties

This paper offers an account of concurrent liability, and in particular the existence of, and interaction between, concurrent contractual and non‐contractual duties.

Aaron Taylor

article

Mos Geometricus and the Common Law Mind: Interrogating Contract Theory

Euclidian theories have it that there exist one or a small number of apex principles from which the entire fasciculus of rules of contract law can be logically deduced. It will be argued that the common law defies this picture of rules thus rendering Euclidian theory analytically impossible.

Shivprasad Swaminathan

legislation

UK Abortion Law: Reform Proposals, Private Members’ Bills, Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016.

Robert Brett Taylor and Adelyn L M Wilson

legislation

Reducing Homelessness or Re‐ordering the Deckchairs?

The Homelessness Reduction Act 2017 has come into force trumpeting nothing less than the need for a ‘culture change’ among local housing authorities implementing it. Although it aims to reduce homelessness, it is more likely to hide long‐term systemic issues in the housing system.

Dave Cowan

case

The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (formerly PNM) v Times Newspapers Limited

This case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment.

Robert Craig

case

Marr v Collie: The Ballooning of the Common Intention Constructive Trust

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal.

Alexander Y S Georgiou

review article

The Promise and Conundrums of Pluralist Jurisprudence

Legal pluralism involves the proposition that more than one manifestation of law exists in many social arenas. Jurisprudence is the latest field to take up legal pluralism. In Pursuit of Pluralist Jurisprudence, edited by Nicole Roughan and Andrew Halpin, is a collection of essays on the topic by a stellar cast of jurisprudents.

Brian Z. Tamanaha

book review

Review of Pablo Cortés, The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution, New York: Cambridge University Press, 2017, xii + 281 pp, hb £85.00.

The Law of Consumer Redress offers a high-quality Alternative Dispute Resolution and Online Dispute Resolution focused overview of the dispute resolution framework for low-value consumer disputes.

Gordon Kardos

book review

Review of F.C. Simon, Meta‐Regulation in Practice: Beyond Normative Views of Morality and Rationality, Abingdon: Routledge, 2017, xiv + 240 pp, hb £105.00

In this eloquent and ambitious book, F. C. Simon argues, by reference to the case of Australian retail energy markets, that the gap between the ideal and the practice of meta-regulation may be quite wide indeed.

Stergios Aidinlis

book review

Review of Michael Stolleis, Public Law in Germany: A Historical Introduction from the 16th to the 21st Century, Thomas Dunlap trans, Oxford: Oxford University Press, 2017, 215 pp, hb £45.00

This work from the pen of Germany's leading scholar of constitutional history condenses into a brief outline sketch the product of Michael Stolleis’ life‐long study of the subject.

Martin Loughlin

book review

Review of Cristie Ford, Innovation and the State: Finance, Regulation, and Justice, Cambridge: Cambridge University Press, 2017, 368 pp, pb £27.99

Cristie Ford's Innovation and the State explores the relationship between ‘flexible regulation’ and innovation.

Fenner Stewart

book review

Review of Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It, Cambridge, MA and London: Harvard University Press, 2018, 400 pp, hb £21.95

Yascha Mounk's new book is a well‐researched and thought‐provoking work of political and democratic theory with important implications for public policy.

Raphaël Girard

book review

Review of Dean R. Knight, Vigilance and Restraint in the Common Law of Judicial Review, Cambridge: Cambridge University Press, 2018, xx + 285 pp, hb £85.00

Dean Knight has written a rich and fascinating book about the conceptual architecture of the ‘Anglo‐Commonwealth’ law of judicial review of administrative action, focusing on Australia, Canada, England and New Zealand.

Peter Cane

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