The Review

July 2016 Issue

articles

Regulatory Analysis in Corporate Law

Drawing on recent experiences in the US, UK, and EU, this article suggests that regulatory analysis of corporate law policies, as currently understood and applied, suffers from severe weaknesses. The effects of proposed corporate law policies are often difficult to predict and even more difficult to quantify, which negatively impacts analytical reliability. Moreover, given its nature and strong intersections with economic, societal and political issues, corporate law is less amenable to technocratic assessments than other areas of law. Based on three case studies, the article explores these problems. It outlines a revised ‘procedural’ view, suggesting that regulatory analysis in corporate law should be understood as a process for enhancing information, transparency, and monitoring, independently of specific normative criteria. This leads to several implications. In short, regulatory analysis should combine quantified analysis with leeway for regulatory judgment and focus on increased consultation, critical engagement, review, and transparency as the dominant guiding factors.

Martin Petrin

Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions

In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions at which we looked were: how often a defendant's plea of contributory negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant's age; the claimant's gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.

James Goudkamp and Donal Nolan

Beyond the Real and the Paper Deal: The Quest for Contextual Coherence in Contractual Interpretation

Contract lawyers are often divided between two schools of thought: formalism and contextualism. In the realm of contractual interpretation, this division illuminates various debates surrounding the modern contextual approach. Ultimately, however, the divide between the ‘real and the paper deal’ does not fully reflect the relevant fault lines. The real contest is between rival interpretations attempting to make the most coherent sense of the available text and context surrounding the document. In characterising the true nature of the exercise, I draw upon theories of coherence to articulate a framework of ‘contextual coherence’ that involves concepts of competing narratives, the rational motivations of the parties, and the need for a holistic assessment of the best hypothesis, in accordance with the English courts’ ‘iterative approach’ to interpretation. I demonstrate that this framework enables us to explain and evaluate recent cases such as the UK Supreme Court decision of Arnold v Britton.

Zhong Xing Tan

legislation

The International Development (Official Development Assistance Target) Act 2015: Legislative Spending Targets, Poverty Alleviation and Aid Scrutiny

With the enactment of the International Development (Official Development Assistance Target) Act 2015, the United Kingdom has enshrined an aid target in law. It is now under a legal duty to spend 0.7% of Gross National Income (GNI) each year on aid. This article assesses the implications of enshrining a spending target for development assistance in law. It argues that commentators have focused their analyses too narrowly on the legal target and that it is in fact the mechanisms for scrutinising development assistance contained in section 5 of the new Act that will be important in future. This is because judicial scrutiny of aid spending is a remote possibility as a result of the International Development Act 2002. The article provides an analysis of the new legislation in the context of the UK's now detailed legislative framework for international development aid and concludes that this framework is far from satisfactory.

Ambreena Manji

cases

Whither Remoteness? Wellesley Partners LLP v Withers LLP

In Wellesley v Withers, the Court of Appeal held that where a defendant is concurrently liable in tort and contract, the contractual rules for the remoteness of loss must apply. Two principal reasons emerge from the judgments. The first, that each party has had the chance to alert the other to unusual risks, is valid but often unconvincing. The second is more original and compelling: that the nature of any responsibility assumed in tort is distinct from, but wholly defined by, the valid contract. This note seeks to develop that argument. It then addresses the uncertain issue of concurrent liability in equity. It suggests that in a case in which any fiduciary duties arise out of, and are defined by, a valid contract, it may now be appropriate to apply the contractual remoteness rules to a concurrent claim for breach of contract and equitable compensation.

Aaron Taylor

Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights

The justification for the restrictions on religion inherent in secularism is the subject of lively debate in constitutional and political theory. As a rights-focused text, the ECHR struggles to accommodate constitutional principles such as secularism whose aims and justifications may go beyond the protection of the rights of others and include abstract goals such as upholding the religious neutrality of the state. Rights alone cannot provide an adequate account of the relationship between religion, state and law, and in Ebrahimian v France, the Strasbourg Court rightly reaffirmed that secularism and strict neutrality can be in harmony with the values of the Convention. However, the Court needs more clarity about the reasons for this stance and to be vigilant in its protection of private autonomy so that the use of abstract principles to restrict religious expression does not give excessive latitude to states to restrict individual autonomy and minority rights.

Ronan McCrea

review article

Redmayne's Character and Criminal Jurisprudence

Review of Redmayne's Character and Criminal Jurisprudence : Mike Redmayne, Character in the Criminal Trial, Oxford: Oxford University Press, 2015, xxiv + 289 pp, hb £60.00.

With this monograph, published shortly before his untimely death last year, Mike Redmayne cements his reputation as one of the foremost criminal justice scholars of his generation. Character in the Criminal Trial (CitCT) is an eminently worthy addition to the Oxford Monographs on Criminal Law and Justice series, edited by Andrew Ashworth, which over the last quarter century has showcased some of the best contemporary criminal law scholarship in the English language. CitCT is a mature work, written in a crisp, disarmingly accessible, matter-of-fact style which, at first blush, might belie both the book's erudition and the provocative unorthodoxy of some of its central contentions.

Paul Roberts

book reviews

Review of Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford: Oxford University Press, 2014, 304 pp, hb, £29.99.

Comparative Matters marks the conclusion to Ran Hirschl’s constitutional law trilogy that started with Towards Juristocracy (Cambridge, MA: Harvard University Press, 2007) and continued with Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2010). Like its predecessors, Comparative Matters shows the same marked brush strokes of exemplary interdisciplinary inquiry that underpins Hirschl’s mission to emphasise the political dimension within constitutional law, aided by his dual disciplinary background as a distinguished professor of both law and political science at the University of Toronto.

Sophie Flemig

Review of David Fox and Wolfgang Ernst (eds), The History of Money in the Western Legal Tradition: Middle Ages to Bretton Woods, Oxford: Oxford University Press, 2015, xxviii + 892 pp, hb £125.00.

Lawyers typically consume theories of money developed by theorists in other fields, particularly philosophy, sociology, and economics. When we do engage with the concept of money, it is usually obliquely, our primary interest being in the particular legal rules that govern money as a legal object. This heavy volume gives a ‘connected history’ of the main topics in monetary law at the most important stages of its development over 800 years, from the Middle Ages to Bretton Woods. It attempts to invigorate monetary law by collecting and presenting material forgotten by lawyers and neglected by historians, with the aim of ‘open[ing] new ground that other scholars can explore in greater detail’

J G Allen

Review of Mireille Hildebrandt, Smart Technologies and the End(s) of Law, Cheltenham: Edward Elgar, 2015, 296 pp, hb £72.00, pb £20.00.

Smart Technologies and the End(s) of Law is a provocative and unsettling book that elucidates precisely the nature of smart technologies and big data analytics. Positing these technologies as actors that are already fundamentally changing the way that society comes to understand itself and the law, nothing is taken for granted and everything is up for grabs.

Bernard Keenan

Review of Carl Schmitt, Dictatorship. From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, translated by Michael Hoelzl and Graham Ward, Cambridge: Polity Press, 2014, 314 pp, pb £17.99.

Almost a century after its original publication in 1921, Carl Schmitt’s book Dictatorship is available in English. The translation by Michael Hoelzl and Graham Ward has made it possible for the Anglophone world to access what remains, within twentieth century legal and political literature, a ‘classic’ work, which continues to attract scholarly attention, and to generate significant critical contributions around it

Gian Giacomo Fusco

Review of Thomas Grey, Formalism and Pragmatism in American Law, Leiden/Boston: Brill, 2014, 264 pp, hb $99.95.

‘The life of the law has not been logic; it has been experience’, said Oliver Wendell Holmes. This is more or less the argument that runs through the five chapters of Thomas Grey’s book published by Brill in the series, The Social Sciences of Practice: The History and Theory of Legal Practice. It is a collection of articles that have been published previously as journal articles by the author but re-organised to form a coherent theme for a book. The publication of the book was motivated by the dilemma that China and many developing countries face – that is, the choice between modernity and retention of traditional values.

Francis N Botchway

Review of Ruth Dukes, The Labour Constitution. The Enduring Idea of Labour Law, Oxford: Oxford University Press, 2014, 244 pp, hb £60.00.

The crisis of protective labour law is now well documented. Legal supports for collective bargaining have been eroding and while this is partially offset by growth in the legal regulation of the individual employment relation, often these laws have permitted greater business flexibility at the expense of worker protection or have simply failed to address the needs of the growing number
of workers who find themselves in precarious employment relations, including so-called self-employment, temporary and casual work, agency work, etc. So great has been the erosion that labour law scholars are increasingly engaged in discussions about what the purpose of labour law is—a sure sign of crisis (see G. Davidov and B. Langille (eds), The Idea of Labour Law (Oxford: OUP, 2011)). For these reasons, Ruth Dukes’ book is both a timely and a brave contribution to the unsettling debate over the purposes and possibilities of labour law in the opening decades of the twenty-first century.

Eric Tucker

Review of Adam J. MacLeod, Property and Practical Reason, Cambridge: Cambridge University Press, 2015, 268 pp, hb £69.99.

There aren’t as many competent philosophical studies of property law as there are of the other main fields of private law. In Property and Practical Reason, Adam J. MacLeod studies private property through a perfectionist lens. The book grounds property in accounts of perfectionism and flourishing developed by Joseph Raz and (especially) John Finnis. The book supplies an important normative justification for property. That justification also generates along the way several fine conceptual insights about property. Since interests in flourishing simultaneously justify and limit property rights, a sound grasp of flourishing clarifies how and why different parts of the common law expand and limit legal property rights.

Eric R Claeys

The Review

Published July 2016
Frequency Bi-Monthly
Volume 79
Issue 4
Print ISSN 0026-7961
Online ISSN 1468-2230

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