The Review

March 2016 Issue

articles

The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism

This article proposes a sociological critique of theories of political constitutionalism, which distinguish sharply between political and judicial constitutionalism and express hostility towards constitutions allowing extensive judicial control of legislation. It argues that such theories are usually undermined by a sociologically deficient account of politics. As an alternative, this article proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it claims that constitutions with a strong judicial emphasis, especially where judicial functions are supported by international norms, have served, in many societies, as an effective precondition for the emergence and persistence of a relatively secure, differentiated political domain. These claims are exemplified through analysis of recent constitution-making experiments in Russia, Kenya and Bolivia.

Chris Thornhill

‘All About That Bass’? Is Non-Ideal-Weight Discrimination Unlawful in the UK?

People of non-ideal-weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self-motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.

Tamara Hervey and Philip Rostant

British Abortion Law: Speaking from the Past to Govern the Future

This paper analyses the poor alignment of the aging statutory framework and modern understandings of medical best practice in the context of abortion services. With a particular focus on medical abortion, it assesses the significant challenges that the gulf between the two poses for clinicians, service providers, regulators and the courts. Law is said to be at its most effective where there is a shared regulatory community that accepts and endorses the values that underpin it. It is suggested that the example of abortion law provides a marked example of what happens when legal norms once justified by broadly shared moral understandings, concerns for patient safety and requirements of best practice are now either unsupported by or, indeed, sit in opposition to such concerns.

Sally Sheldon

legislation

GMOs in the Internal Market: New Legislation on National Flexibility

In an area where until now national autonomy has been tenaciously resisted, new EU legislation provides Member States with ‘flexibility to decide whether or not they wish to cultivate GMOs on their territory’. This forces attention on to the subtle, and not so subtle, ways in which internal market law constrains political actors in the EU. But it is similarly suggestive of how political actors might contribute to the evolution of the internal market. As well as exploring this relationship between the new legislation and internal market law, this article reflects on the ways in which lessons from the past have been addressed by legislators. Whilst it takes somewhat seriously the politics of GMOs, the new legislation simultaneously reinforces some of the limitations of our dominant models for generating knowledge, including the EU's problematic dichotomy between facts and values, risk assessment and risk management.

Maria Lee

cases

Anti-Suit Injunctions and the Doctrine of Comity

Hin-Pro International Logistics Limited v CSAV is an important case in the areas of anti-suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti-suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.

Felix W H Chan

book reviews

Review of Jeremias Prassl, The Concept of the Employer, Oxford: Oxford University Press, 2015, xxvii + 231 pp, hb, £60.00.

In this illuminating monograph, Prassl has produced the first comprehensive analytical critique of the unitary conception of ‘the employer’ in the English-speaking common law world. This is a project which has been long overdue, and follows in the footsteps of leading labour law scholars such as Collins, Davies, Deakin, Freedland and Fudge who produced a series of seminal papers in the 2000s on the issue of ascribing managerial responsibilities to a broader range of employing entities. The underlying premise of this work is that the common law’s unitary conception of the single entity employer (usually a body corporate with separate legal personality) tied to an identifiable individual employee on the basis of a bilateral contract of employment has become frayed at the edges.

David Cabrelli

Review of Susan Golombok, Modern Families; Parents and Children in New Family Forms, Cambridge: Cambridge University Press, 2015, 267 pp, pb, £19.99.

The author’s aim is to ‘enhance the debate’ on modern families which is ‘often based on speculation and assumption’ by collating the relevant ‘empirical research’ (xii). Right-on — aka politically-correct-perhaps-even-gone-mad — readers will hope it supplies credible information to counter those whom they see as rationalising, via the life chances of the children, their dislike of homosexuals, intentional single parenters, assisted reproducers and surrogacy commissioners. Golombok calls these units ‘new families’, ie those that ‘either did not exist or were hidden from society until the latter part of the twentieth century’, as opposed to ‘non-traditional’ families, ie those arising from parental separation and re-partnering (3). The impact on children of the latter has already been widely studied, Golombok reminds us, and points out that the ‘traditional’ nuclear family of a heterosexual married couple with biologically related children remains the gold standard against which all the others are measured.

Chris Barton

Review of Deborah L. Rhode, The Trouble With Lawyers, Oxford University Press, 2015, vii + 234 pp, hb, £19.99. Benjamin H. Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession, Oxford University Press, 2015, v + 305 pp, hb, £19.99.

The Trouble With Lawyers by Deborah Rhode and Glass Half Full: The Decline and Rebirth of the Legal Profession by Benjamin Barton are two honest, well researched accounts of the spectre of decreasing public access to justice that is resulting, inter alia, from an unsustainably increasing number of law schools, law students, and lawyers in the United States. Both books follow other respected works on these issues, including B. Tamanaha, Failing Law Schools (CUP, 2012); S. Harper, The Lawyer Bubble: A Profession in Crisis (Basic Books, 2013); J. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (OUP, 2013). Rhode and Barton have each been fearlessly frank about the ethical challenges that they, their law faculty colleagues, and the US legal profession face. Both authors also put into context the threat of technology disruption to legal services (which confronts all professions, not just lawyers: R. Susskind and D. Susskind, The Future of the Professions (OUP, 2015)) by clarifying that the way technology is changing some legal services is by potentially replacing lawyers entirely.

Magdalene D'Silva

The Review

Published March 2016
Frequency Bi-Monthly
Volume 79
Issue 2
Print ISSN 0026-7961
Online ISSN 1468-2230

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