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‘Sovereignty and the Persistence of the Aesthetic’: Some Thoughts on Academic Writing

In moments of self-reflection, all legal academics must surely come to the realisation that much of the work they are obliged to read – and indeed write – is dense, obscure, monotonous, and repetitive. Surely our job is to clarify, to make complex topics more accessible. What makes ‘Sovereignty and the Persistence of the Aesthetic’ – on its face, a well-crafted article – an exemplar of poor academic writing is not its stylistic shortcomings: it is its ignorance about the position it seeks to correct.

Martin Loughlin

Defending the Orthodoxy: Central Bank Money as Liabilities: A Reply to Will Bateman and Jason Allen, ‘The Law of Central Bank Reserve Creation’ (2022) 85(2) MLR 401

Despite their importance in modern financial systems, central bank reserves have uncertain legal origin. Recently, Will Bateman and Jason Allen suggested a bifurcated view of reserve creation which specifies a ‘deposit pathway’ and a ‘transaction pathway’. I argue that this is misconceived, and that central banks create all reserves by issuing debt.

Shukri Shahizam

Of Chimeras, Ectogenesis, and Parenthood: Comment on Brian Sloan, ‘The “Chimera” of Parenthood’ (2021) 84(3) MLR 503–531

Brian Sloan’s analysis of the challenges a human chimera could pose for English law’s definition of fatherhood finds a parallel in the problems artificial wombs might raise for the designation of motherhood. While these hypothetical challenges point to important gaps in jurisprudence, a more pressing concern is the impact the limited flexibility of legally recognized parental roles in England has on already existing families.

Claire Horn

Hart’s Internal Perspective: Not a Matter of Endorsement? Comments on Alexander Somek’s Review of The Concept of Liberal Democratic Law

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.

Johan van der Walt

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

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

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

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

May issue now up

The May Issue of the Modern Law Review is now available, with articles on misunderstandings of the rules on evidence, opinion and evaluation in criminal trials, conditions of imprisonment and sentencing, Lord Diplock’s work in national security oversight, discrimination in platform design, and a new frame for state duties towards migrants. Case notes cover decisions on visual nuisance intrusion, jurisdiction and admissibility in arbitration, the international law on reparations, and international law’s non-reception in English contract law. A review essay covers a new book on the absurdity of intellectual property, and reviews cover new titles on civil recovery of criminal property, modern slavery, and access to justice for energy-poor consumers.

January issue now online

The January Issue of the Modern Law Review is now available, with articles on the regulatory ‘trilemma’, the history of treason, housing inequality and social movements, xenophobic discrimination in international law, legal professional privilege and the law officers’ convention, and self defence and domestic abuse survivors. Notes cover subsidy control laws, modern slavery and diplomatic immunity, and disability discrimination and abortion law. Book reviews cover new titles on regulators and economic evidence, mental capacity law, and charity law and the university.

November issue now up

The November Issue of the Modern Law Review is now available, with articles on ordoliberalism, animal and nature rights in EU law, inherent jurisdiction and adult welfare, smart contracts, the objective/subjective standard in contract and reasonableness in capacity law. Notes cover amendments to UK fertility treatment law, and case law from the CJEU on state aid and taxation and the UKSC on proprietary estoppel remedies and the Begum citizenship stripping decision. Reviews include an essay on Dyzenhaus’s new book on authority and legitimacy, and new books on EU anti-trust law, global business and human rights and constitutional pluralism.

September issue now online

The September Issue of the Modern Law Review is now available, with articles on legal scholarship trends, a decriminalisation approach to European human rights, consent in employment contracts, employment status and human rights, and counter-terrorism in family courts. Notes cover the human trafficking failures of the Nationality and Borders Act 2022, and new cases on intersex human rights and the relation of smart contracts and digital property. Book reviews cover new titles on legal reasoning, the ‘vanishing’ of contract law, and a counter-Birks approach to the law of restitution.

July Issue now up

The July Issue of the Modern Law Review is now available, with articles on repudiation contract damages, tort anomalies, prisoner voting, civil disobedience, choice architecture in poverty law, and adolescent decisions to refuse life-sustaining treatment. Notes cover donor dissuasion in the new Charities Act, expertise in ECtHR jurisprudence on vaccine mandates, and the ‘proprietary fiction’ in bailment. Book reviews cover new titles on private law theory, age discrimination and intermediate criminal verdicts.

May issue now online

The May Issue of the Modern Law Review is now available, with articles on common good constitutionalism, historiography in constitutional adjudication, assessing the Mental Capacity Act 2005, a liberal property theory approach to trusts, and a performative theory of judicial dissent. Notes cover the Aarhus Convention’s implementation in the UK, and new cases on the immigration exception in the GDPR and Henry VIII powers. A review essay examines the distinction between creation and application of law, and reviews cover new titles on the author and copyright and lawyers in conflict and transitional justice zones.

March issue now available

The March Issue of the Modern Law Review is now available, with articles on defining direct/indirect discrimination, crowdfunded litigation, legal system continuity, debtholder stewardship, corporate restructures and a righto to minimum subsistence. Notes cover new regulations on police cultural competence, and cases on unjust enrichment in Singapore, corporate criminal attribution regarding constructive trusts, and vehicle insurance law. A review essay examines Matthew Kramer’s freedom of expression, and book reviews cover new titles on progressive lawyering in the UK, human judgment, and political constitutionalism amid global neoliberalism.

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