The Review

July 2017 Issue

articles

Why Judicial Control of Price Terms in Consumer Contracts Might Not Always Be the Right Answer – Insights from Behavioural Law and Economics

Regulators everywhere are confronted with the question of how to react to contractual pricing structures that serve to hide rather than reveal the real cost of goods and services and thereby abuse limitations in the cognitive competences of consumers. The aim of this article is twofold: first, to show the weaknesses of an ex post judicial control of pricing techniques, and second, to discuss policy tools which could counterbalance consumer biases on which the techniques rely.

Yeşim M Atamer

legislation

cases

Mixed Messages in Bottles: the European Union, Devolution, and the Future of the Constitution

The UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union comprehensively rejected the Government's argument that it could begin withdrawing from the EU using a prerogative power, but accepted that the Government did not need consent from devolved legislatures before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.

Jo Eric Khushal Murkens

Devotion to Legalism: On the Brexit Case

In Miller v Secretary of State for Exiting the European Union, the UK Supreme Court's preferred basis for dismissing the Government's argument that the foreign affairs prerogative provided the legal basis for beginning Brexit rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

Thomas Poole

Brexit and Parliamentary Sovereignty

This note addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision. However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was that Parliament had already provided sufficient authority for the triggering of Article 50.

Keith Ewing

R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms

The parties in Miller made submissions in terms of two competing syllogisms. The Government argued that ministers, exercising Crown prerogative, had the power to give notice without statutory authorisation. The Applicants argued that the process required authorisation by Act of Parliament because the UK's withdrawal would deprive people of rights arising under EU law. However, a majority of the Supreme Court decided in favour of the Applicants based on a third and significantly different syllogism. This note assesses the three competing syllogisms and examines the constitutional significance of the majority's proposition that these new EU sources of law were integrated into UK domestic law without disrupting the principle of parliamentary sovereignty.

Nicholas Aroney

review article

book reviews

Review of Ben Golder, Foucault and the Politics of Rights, Stanford: Stanford University Press, xi + 246 pp, cloth $85.00.

In recent times, Ben Golder has emerged as a pivotal figure in the field of Foucauldian legal studies, reviving an area of research that seemed to have encountered a dead-end. Foucault and the Politics of Rights reads as an ideal continuation of Golder’s previous project as it addresses squarely the question of the possibility of a Foucauldian use of rights as a subversive instrument against power.

Jacopo Martire

Review of Rabeea Assy, Injustice in Person: The Right to Self-Representation, Oxford: Oxford University Press, 2015, xxiii + 233 pp, hb £70.00.

The self-evident legal status of the (assumed) right to self-representation is Rabeea Assy’s first target in this original and sure-footed monograph. His second target is the right itself, which Assy regards as devoid of any convincing rationale, at least in the context of civil litigation between private individuals. How does Assy fare in propounding his revisionist thesis? Very well, in my estimation. This is a compelling piece of legal scholarship in the best traditions of counter-intuitive normative jurisprudence.

Paul Roberts

The Review

Published July 2017
Frequency Bi-Monthly
Volume 80
Issue 4
Print ISSN 0026-7961
Online ISSN 1468-2230

Virtual Issues

Virtual Issues contain curated content drawn from the MLR

GO TO VIRTUAL ISSUES